FPSLREB Decisions

Unfair labour practice - Complaint under paragraph 23(1)(a) of the Public Service Staff Relations Act (PSSRA) alleging violations of sections 8 and 9 thereof - Discrimination - Anti-union animus - Remedy - the complainants, the Social Science Employees Association (SSEA) and the Canadian Union of Professional and Technical Employees (CUPTE), each filed a complaint against C, Secretary of the Treasury Board, S, Human Resources Executive, Treasury Board, and the Treasury Board Secretariat as respondents alleging that they discriminated against the employees represented by the complainants by applying to these employees a less favourable method of retroactively calculating the revised rates of pay contained in the relevant collective agreements than they applied to non-represented employees - this policy was specifically enunciated in a memorandum issued by S to all Compensation Managers and Chiefs of Staff Relations - the Board found that this memorandum on its face discriminated between represented and unrepresented employees - the Board stated that it was possible for the employer to negotiate collective agreements with terms and conditions which were different from those it had set for excluded and unrepresented employees - however, those terms must be negotiated for the represented employees - in addition, there must be a legitimate business reason to grant the terms to the excluded and unrepresented employees - the evidence established that there were no such negotiations here in relation to the employees represented by the complainants - in fact, the employer made a conscious decision not to raise the issue during negotiations and not to deal with the matter unless it was raised by the complainants - as the respondents provided no legitimate business reason for the distinction in the treatment between represented and unrepresented employees, the Board found that the discrimination was contrary to the PSSRA since it discriminated against employees in bargaining units represented by the SSEA and the CUPTE because they were participating in collective bargaining - the Board indicated that discrimination contrary to sections 8 and 9 of the PSSRA required intent or anti-union animus - the Board concluded that, in this case, intent could be inferred from the employer's failure to provide an explanation of compelling business reasons for its actions - the Board further inferred that the detrimental effect of the discrimination on the employees in the bargaining units represented by the CUPTE and the SSEA was intended, as well as the repercussions to their bargaining agents - the complaint against S was allowed as the evidence was clear that he, on behalf of the employer, issued the memorandum in question - however, the complaint against C was dismissed as no evidence was adduced to show that he was aware or ought to have been aware of the employer's discriminatory policy - the Board noted that the evidence revealed that the effect of the discriminatory policy had been financially detrimental to employees in the bargaining units represented by the SSEA and the CUPTE - in addition, the policy may have undermined the credibility of the complainants as their bargaining agents - therefore, the Board issued an order to S and the Secretary of the Treasury Board to cease the discriminatory practice against employees in the bargaining units represented by the SSEA and the CUPTE relating to retroactive salary revisions - the Board also ordered the employer to apply the more financially beneficial method of determining retroactive salary entitlement to employees in the bargaining units represented by the SSEA and the CUPTE as it did for unrepresented employees. Complaints allowed to the extent indicated. Case cited: Canada (Attorney General) v. Lajoie (1992), 149 N.R. 223 (F.C.A.).