FPSLREB Decisions

[1]    This decision concerns eight separate complaints filed under both section 23 of the Public Service Staff Relations Act (PSSRA) and section 147 of Part II of the Canada Labour Code (The Code) . Four complaints were filed by John King and four other complaints were filed by Emerson Waugh. These complaints allege a violation of Section 8 of the PSSRA and a contravention of Section 147 of Part II of The Code. For this reason, the Public Service Staff Relations Board (the Board) has assigned the "161" prefix to those files alleging a violation of the PSSRA, and a "160" prefix to those files alleging a violation of The Code. The facts pertaining to all of the complaints are essentially the same. Furthermore, it should be noted that at the time when Mr. King and Mr. Waugh presented their complaints, they were employees of the Canada Customs Revenue Agency (CCRA), which was a separate employer. As a result of the government reorganization announced on December 12, 2003, the complainants' positions were moved from the CCRA to the Canada Border and Services Agency, for which the Treasury Board is the employer. Accordingly, my decision in this matter applies to the complainants and the Treasury Board.

[2]    The employer stated that under the current provisions of The Code, allegations of a contravention of Section 147 contain a reverse onus in situations where the employee alleges that discipline was taken because the employee withdrew his or her services. Since this is not a withdrawal of service issue, the normal burden of proof on the complainant applies. The complainants agreed.

[3]    On August 27, 2002, the employer issued a one-day suspension to Mr. King for his failure to comply with the employer's instructions to destroy a document. Mr. King filed his first complaint on October 24, 2002. In it, he alleged that the employer had ordered him to destroy a document titled "Critical Incident Summary Report", which purports to relate to the safety and health of union members. Additionally, Mr. King alleged he was threatened with progressive discipline if he failed to comply with the employer's instructions to destroy the document. Mr. King further stated in his complaint that the employer's actions prevented him from "...properly fulfilling my legal obligations under the PSSRA and Part II of the Canada Labour Code". As remedy, Mr. King sought reimbursement of the one-day's pay, reimbursement of all costs, a penalty for the employer consistent with Part II of The Code, an award of $100,000 to the complainant for personal damages and an order to those responsible for the discipline that a written apology be issued.

[4]    On September 13, 2002, the employer issued a ten-day suspension to Mr. King for his continued failure to comply with the employer's instruction to destroy the document. On November 8, 2002, Mr. King filed a second complaint. The nature of the complaint is, for all intents and purposes, the same as that outlined in the above paragraph. Mr. King requested reimbursement for his lost salary (note: this complaint states "reimbursement resulting from the one-day suspension". The employer agreed it should read "the ten-day suspension"). Mr. King also requested compensation of $1,000,000 for personal damages, as well as the requests outlined in the above paragraph for his one-day suspension.

[5]    Mr. Waugh filed his two complaints on October 28 and November 18, 2002, and the nature of these complaints and his requested corrective action are essentially the same as those contained in Mr. King's complaints outlined above.

[6]    Both Mr. King and Mr. Waugh chose to represent themselves in these proceedings, although Dan Fisher from the Public Service Alliance of Canada was there to assist, as need be, throughout the proceedings.

Background

[7]    John King is a Customs Officer, PM-2, whose substantive position is situated at Pearson Airport in Toronto. He is currently on leave with pay to pursue union activities and, at the time of the initial hearing, he was 1^st National Vice-President of the Customs and Excise Union Douanes Accise (CEUDA).

[8]    In his union capacity, Mr. King participated in a variety of committees, including a joint union/management National Policy Committee and a local Occupational Safety and Health (OSH) Committee.

[9]    Emerson Waugh is also a Customs Officer at Pearson Airport, and he too is on leave with pay in order to pursue union activities. At the time of the complaint, Mr. Waugh was the Toronto Branch President of CEUDA, where he also sits on the local OSH Committee meetings.

Evidence

[10]    In March 2002, Robert Tait, the Director General, Business Management, in CCRA was made aware of an e-mail, dubbed "The Kingman Report" (Exhibit G-8). The document is a ten-page report, which was distributed to some 146 employees. John King was a recipient of the document; however, Emerson Waugh was not on the distribution list.

[11]    Under the heading "subject", the report states:

This report attempts to reflect the national overview with respect to incidents that could be construed as being Life Threatening Encounters. These incidents can occur on a day to day basis at any given time at any given Customs work site.

These statistics have been documented so as to clearly show the need for Canadian Customs Officers to be issued side arms.

The rationale to have CCRA issue side arms is for the protection of the officer and for the protection of the traveling public who often find themselves in the midst of enforcement actions just because they to (sic) were crossing the border that day.

[12]    The document then goes on to list some 103 "High Risk Encounters by Canada Customs Officers in the Line of Duty", dating back some 25 years. Mr. Tait became immediately concerned about the document because he felt it contained customs information as defined in Section 107 of the Customs Act.

[13]    Mr. Tait testified that he was concerned because the document could also have been used to further the Customs Inspectors' agenda. Asked what the agenda was, Mr. Tait stated "inspectors want wage parity with the Police and the only way to get it is to get firearms. That is their agenda".

[14]    The document contained what Mr. Tait felt was confidential information and referred to confidential files. Disclosing this was, in Mr. Tait's view, a contravention of CCRA's Code of Conduct. Accordingly, on March 20, 2002, Mr. Tait sent out an e-mail to the recipients of the "Kingman Report" directing them to delete the e-mail from Mr. Kingman, as well as any copy of the e-mail (Exhibit G-10).

[15]    After receiving Mr. Tait's request to delete the Kingman document, Mr. King sent a reply e-mail to Mr. Tait, outlining certain sections of Part II of the Canada Labour Code, which relate to Safety and Health Committees and Representatives. Mr. King then stated in the e-mail (Exhibit E-2):

In light of the aforementioned legislation and as a member of the National Joint Occupational Safety and Health Policy Committee, I am somewhat compelled to inform you that I have no intent on complying with your direction as previously stated in paragraph seven (7) of said attachment.

I intend to retain all information and/or documents that has been brought to my attention, which relates to the safety and health of the members I represent. Further to this, it is my opinion that all employees who sit as members on local Occupational Safety and Health Committees, have an equal right to retain such information in their local files. Once again, for reasons previously stated.

[16]    Mr. Tait referred the matter to Barbara Hebert, Regional Director, Customs Southern Ontario Region. Ms. Hebert testified she had full managerial authority over the complainants, among other overall responsibilities for the provision of customs service in her location.

[17]    Ms. Hebert contacted Mr. King and arranged to meet with him to discuss his e-mail, wherein he declined to comply with the request to destroy the document. A meeting was scheduled for April 8, 2002.

[18]    At the meeting, Mr. King attended with his union representative, Mr. Waugh. Mr. King's position at the meeting was that, as a Health and Safety representative, and as a member of the OSH Committee, he had a right to retain the information. Ms. Hebert explained to him that any authority he had would come from work assigned to him from the committee, and neither the National Policy Committee nor the local workplace committee had assigned him this work. Therefore, in Ms. Hebert's opinion, Mr. King was not entitled to retain this information. Mr. King asked where the violation of Section 107 was occurring, and the reply he received was that the employer was there to give direction. He was not told where he was in violation of Section 107.

[19]    At the conclusion of the meeting, Mr. King asked Ms. Hebert to put her request in writing, then left saying he would not comply.

[20]    Ms. Hebert wrote to Mr. King (Exhibit G-12) on April 8, 2002, detailing the events that transpired in the meeting, and again directing Mr. King to comply with Mr. Tait's instructions to destroy copies of the Kingman report.

[21]    Mr. King was absent from the workplace when the April 8 letter was sent and did not receive it until his return on April 22, 2002. After reading the letter, he sent a reply to Ms. Hebert's supervisor, Ruby Howard, as well as to other individuals, saying he found Ms. Hebert's letter to be "inappropriate, threatening and unwelcome". He claimed it was "...one more example of ongoing harassment". Finally, he asked that no further action be taken with respect to the Kingman report until his union representative advised him on the issues.

[22]    The allegation of ongoing harassment was investigated internally, and on May 7, 2002, the Assistant Commissioner, Dan Tucker, sent Mr. King an e-mail stating that management had "...found that no harassment or abuse of authority had occurred".

[23]    On May 24, 2002, Mr. King wrote to Ms. Hebert and stated that he had deleted the Kingman report and the only hard copy he had made was with his lawyer. Mr. King concluded by saying "I have thus complied with your directive." (Exhibit G-13).

[24]    Ms. Hebert replied on May 30, acknowledging receipt, but also stating that if Mr. King were to make use of the hard copy, he would be in violation of the directive and discipline would follow (Exhibit G-16).

[25]    Under other circumstances, this might have ended the matter and this story would not have needed telling. However, while this was happening, Mr. Waugh was scheduled to attend an OSH Committee meeting on May 14, 2002, and he testified that "just prior" to this meeting he received an anonymous document at his home fax. He reviewed the document and tabled it at the May 14 OSH meeting. The document was titled "Canadian Customs Officers Critical Incident Summary Report".

[26]    Minutes of the OSH Committee meeting state that the document was handed out by Mr. Waugh, but was not accepted by the Committee (Exhibit G-39). Also, the origin and author were unknown, so the management co-chair, Allen Ilasewich, sent the document to his supervisor, Norm Sheridan, to ask what to do about it. Mr. Sheridan told Mr. Ilasewich that the spreadsheet was similar to the "Kingman" document, which the employer had ordered destroyed.

[27]    As a result of his discussion with Mr. Sheridan, Mr. Ilasewich sent Mr. Waugh an e-mail dated May 27, 2002, stating in part (Exhibit G-34):

. . .

The copies distributed by Emerson are of very poor quality and do not appear to contain any customs information that is contrary to section 107 however, as another version of the document itself has been retrieved in other locations, I would ask that you destroy any copies you have and if you have copied it and provided it to another to ask them to destroy the copies they have, etc.

. . .

[28]    On June 8, Mr. King wrote to Mr. Tait and requested a vetted copy of the Kingman Report (Exhibit G-17A). On July 9, Mr. Tait replied, saying, in part (E-5):

. . .

You also requested that management provide the union with a vetted copy of the "Kingman spreadsheet". This would not be a productive or cost-effective exercise due to the limitations of the "Kingman spreadsheet" noted in the preceding paragraph. Focusing on the new system that is being developed to record and report incidents is a more productive use of resources.

Similarly, you requested that a document presented by Emerson Waugh to the P.I.A. Passenger Operations Work Place Committee be compared to the "Kingman spreadsheet" . . . We believe that the information contained in these documents is not a local work place matter, given that it covers a much broader scope than the local work place.

Based on the foregoing, we are not able to agree to your request for information.

. . .

[29]    On June 11, 2002, Mr. King attended an OSH Committee meeting and he distributed copies of a document called a "Critical Incident Summary Report", and asked if it was the Kingman Report or not (Exhibit E-13). Mr. Ilasewich was again attending as the management co-chair, but Mr. Waugh was absent. The Committee decided to refer the document to the National OSH Policy Committee for further review (Tab 11).

[30]    Following the June 11 OSH meeting, Mr. Ilasewich sent Mr. King an e-mail saying, in part (Exhibit E-14):

. . .

John at our OSH meeting on June 11 you submitted copies of a document titled Canadian Customs Officers Critical Incident Summary Report. You had asked for confirmation if this was the same document submitted by Emerson Waugh at the May 14th OSH Meeting.

I have reviewed the document and can say that there are enough common elements in the document to say that it is the same.

. . .

I am asking you to destroy all copies of this document to prevent any violation of section 107...

. . .

[31]    On July 15, Mr. Ilasewich sent Messrs. King and Waugh another e-mail (Exhibit G-42), stating:

John and Emerson: A review has been conducted of the copy of the Canadian Customs Officers Critical Incident Summary Report submitted by Emerson to the OSH Committee on May 14th.

The review has determined that the document still contains information that if shared with others would be a violation of Section 107 of the Customs Act.

Accordingly, as previously requested, please destroy all copies of this document. Kindly confirm by e-mail that you have complied with my request by Monday, July 22, 2002. Thanks, Allen

[32]    Mr. Waugh wrote back to Mr. Ilasewich on July 16, asking how he was in violation of Section 107. He said that once this matter was clarified, he would destroy the document (Exhibit E-15).

[33]    Mr. Ilasewich replied on July 19, quoting Section 107 of the Customs Act and again directing Mr. Waugh to destroy all copies of said document by July 24 or face disciplinary action. This deadline was later extended to July 26, 2002 (Exhibit G-43).

[34]    On July 26, Mr. Waugh replied stating "... I am still unable to comply with the direction you have put to me and ask for continued consideration as such." (Exhibit E-16).

[35]    Jean Laronde is the Director, Labour Relations, and one of her functions is overseeing the National Policy Committee at Occupational Health and Safety Committee meetings. She attended one such meeting on July 23, 2002, at which time the then CEUDA President, Serge Charette, presented a report and asked if it was the one that employees were being asked to destroy. The employer undertook to forward the document to Mr. Tait in order to reply to Mr. Charette. The Committee did agree to meet again on July 31, to discuss the job hazard report.

[36]    At the July 31 meeting, the employer offered to conduct a review of the job hazards over the previous three years. The union asked for the review to go back five years, and the employer agreed. It was also agreed that a consulting firm would do this review.

[37]    On August 7, the Union National President, Betty Bannon, sent out an e-mail to a number of individuals, including Mr. King, saying the union had agreed to this five-year review (Exhibit E-1, page 4). Mr. King was not satisfied with limiting the review to a five-year period and stated as much in a reply to Ms. Bannon dated August 11, 2002 (Exhibit E-1, page 3).

[38]    In cross-examination, Ms. Laronde agreed that at the OSH Committee meetings, the participants were equals and as such, anyone could bring an issue forward. However, she also stated that generally there were to be no surprises, so items that were to be discussed at the Committee meetings were usually agreed to beforehand.

[39]    Norm Sheridan is the District Director, Passenger Operations, Pearson International Airport. Both Messrs. King and Waugh ultimately report to Mr. Sheridan. Since both Messrs. King and Waugh were not complying with the destruction order, Mr. Sheridan met with them on August 12 to attempt to persuade them to do so. A number of issues were discussed, and Mr. Sheridan wrote to both Messrs. King and Waugh on August 13 outlining what he believed to be the issues discussed at their meeting and asked if he had captured them correctly (Exhibit E-17).

[40]    One of the issues Mr. King raised was outlined in the August 13 e-mail:

Issues of Mr. King

What information is in the report that is a contravention of the Customs Act, Section 107 and if that contravening information was deleted by vetting would that not be deemed sufficient to make the ISR a suitable document?

[41]    Neither Mr. King nor Mr. Waugh replied to Mr. Sheridan; consequently, on August 19, Mr. Sheridan wrote again and replied to the issues he himself had raised in his August 13 correspondence (Exhibit G-19). He wrote, in response to the issue Mr. King had raised:

1) I did not pursue the vetting issue as you did not confirm to Allen or I that the point was captured correctly. It is the opinion of CCRA management that the ISR that Emerson presented on May 14th at the PIA Passenger Operations OSH committee meeting contains traveller information contrary to the Customs Act, Section 107 ( CA s107). Accordingly, Allen asked everyone who received a copy at that meeting to destroy it.

[42]    On August 27, 2002, Mr. Sheridan met Messrs. King and Waugh to discipline them. Each received a one-day suspension. The letter stated, in part (Exhibits G-22 and G-23):

. . .

"Your continued and repeated refusal to obey management's direction constitutes insubordination. In view of the seriousness of the above noted misconduct ... you are being issued a one-day (7.5 hrs.) suspension ...".

[43]    Both Messrs. King and Waugh testified that, at the disciplinary meeting they attended, they again asked where the spreadsheet contravened Section 107 of the Customs Act. They were not told where the document violated this section.

[44]    In cross-examination, Mr. Sheridan confirmed he had never seen a legal opinion or investigative report indicating where the document contravened Section 107. He was told by Ms. Hebert that there was a legal opinion that the document contravened section 107, and he was instructed by Ms. Hebert to order the document destroyed.

[45]    Mr. Sheridan conceded that the mere possession of the document had no adverse impact on the delivery of service of the customs program at Pearson International Airport.

[46]    Also conceded by Mr. Sheridan was the fact that Messrs. King and Waugh offered to remove the names from the document if that was what was creating the problem.

[47]    A further order was given to the two complainants on September 4, 2002, to comply with the destruction order by September 6, 2002 (Exhibit G-27).

[48]    On September 5, 2002, Mr. King sent an e-mail to a variety of individuals saying "... we are 'unable', for various reasons, to comply with the order".

[49]    The employer issued Messrs. King and Waugh a ten-day suspension (Exhibits G-24 and G-25). The disciplinary notice states, in part:

. . .

Your continued defiance and refusal to obey management's direction constitutes insubordination ...

The Agency expects that you will obey direction issued to you by management.

. . .

[50]    On October 4, 2002, Mr. King sent an e-mail to various employer representatives stating, in part (Exhibit G-32):

. . .

"Under extreme duress, I have complied and destroyed the documents as directed."

[51]    Mr. Waugh also complied with the order following his ten-day suspension.

Argument for the Complainants

[52]    No one has been able to show where the violation of Section 107 occurred. In fact, the May 27 e-mail from Mr. Ilasewich stated the report does "...not appear to contain any customs information that is contrary to Section 107". Both complainants repeatedly offered to comply with whatever the violation was, but the employer never stated where the violation occurred.

[53]    The person who determined it was a violation of Section 107, Mr. Tait, stated the document was tied to a radical element. The complainants state that his actions were tainted by his views of the complainants being radicals. The complainants were simply trying to represent employees at the OHS meetings.

[54]    By issuing the directive to destroy the document, the employer effectively shut down the information the complainants were using to represent the members at the OSH Committee meetings. The document is gone; it cannot be retrieved. It may have contained legitimate information which could be used to advance the legitimate interests of the members. In essence, what the employer has done is shut down the representation of the complainants' members.

[55]    At no time did the complainants say the information was to be taken beyond the workplace. The only objective, which was stated to the employer, was to use the document at the OSH Committee meetings.

[56]    The OSH Committee's responsibility is to ensure employees are informed of all real and potential hazards in the workplace. The employer even agreed to conduct a review of the job hazards over the previous five years. Why did it agree to this? The reason is that the employer does not have this information, so it had to use the information contained in the spreadsheet to conduct this study.

[57]    The evidence indicated that possession of the document had no adverse impact on the operation of the Agency. Given that, how is this order reasonable or lawful?

[58]    No evidence has been presented to show that the information contained in the spreadsheet was obtained illicitly or via access to the employer's data bank. The information can be obtained openly, so how can the employer claim there was a violation of section 107, given the fact that the information is public?

[59]    The bargaining agent has a right to collect information to use to represent its members. The simple compilation of information can't be construed as a violation. If the information is obtained in a public forum, then it is information that the union is entitled to use.

[60]    Section 8(1) of the PSSRA has been violated in that the employer has interfered with the union in its lawful representation of its members.

[61]    Most of the case law dealing with the employer's right to issue an order relates to an employee's performance of duties. Such is not the case here. In this situation, the employer issued a directive to OSH representatives, who are on leave, doing union business full time. Is it reasonable to state that union representatives can be held to the same standard as employees?

[62]    The employer issued an illegal order, in that it violated Section 430(1) of the Criminal Code. The employer committed mischief by interfering with the lawful use of data.

[63]    The employer has violated Section 147(b) of the Canada Labour Code by restricting the complainants' rights under this section. The complainants were engaged in a lawful activity under Part II of The Code, and the employer interfered with this lawful activity.

[64]    The employer violated the Canadian Bill of Rights, Part I, Section 2(e) by ordering the destruction of a document which the employer knew would be the subject of a proceeding before the Public Service Staff Relations Board.

[65]    The union referred to the following submissions: Kinhnicki v. Canada Customs and Revenue Agency, 2003 PSSRB 52; Boivin v. Canada Customs and Revenue Agency, 2003 PSSRB 94; Pruyn v. Canada Customs and Revenue Agency, 2002 PSSRB 17; Canada (Natural Resources) and Guilbeault [1997] C.L.C.R.S.O.D. No. 5; Marken and Carson, PSSRB File No. 161-2-605 (1992) and Professional Institute of the Public Service of Canada v. Treasury Board, 2000 PSSRB 5.

Argument for the Employer

[66]    This is a complaint under Section 23 of the Public Service Staff Relations Act and Section 147, Part II of the Canada Labour Code. As such, the complainants bear the burden. The question to be asked is, did the employer violate the employee's rights?

[67]    The Canada Customs and Revenue Agency was managing its affairs pursuant to Section 51 of the Canada Customs and Revenue Agency Act.

[68]    With respect to the alleged violation of Section 147 of The Code, the issue that must be decided is whether or not the employer's actions were tainted with retaliation. This issue was canvassed in a decision of the Canada Industrial Relations Board (Ouimet, [2002] CIRB No. 171). At paragraph 56 of the decision, the Board wrote:

56  The Board's role is not to determine if the level of discipline was fair, nor even whether the employer had just cause for taking whatever disciplinary action, as an arbitrator would do in a grievance procedure, according to the collective agreement. Its role is to be satisfied that the employer's action is not tainted with retaliation against the complainant for his role as co-chairperson of the committee and other related activities. It is therefore not up to the Board to decide if the disciplinary action taken was justified or excessive (see Patrick R. Ridge (1992), 88 di 20 (CLRB no. 934)). An employer may take disciplinary action against an employee for a good reason, a debatable reason or for no reason at all, as long as there is no violation of the provisions of the Code (see Claude H. Foisy et al., Canada Labour Relations Board Policies and Procedures (Toronto: Butterworths, 1986), at page 247).

[69]    A disciplinary sanction was awarded for misconduct. The complainants were not disciplined for exercising their right under the Canada Labour Code, so there is no basis for their claim that the employer has violated Section 147 of The Code.

[70]    Similarly, an argument under Section 23 of the Public Service Staff Relations Act that the employer has violated Section 8 of the Public Service Staff Relations Act requires proof that there was an element of bad faith in the employer's actions.

[71]    There was no element of bad faith here. In fact, the employer tried, on many occasions, to get the employees to comply before embarking on a course of discipline.

[72]    This is a simple case of applying the labour relations axiom "obey now, grieve later". The complainants could have complied with the axiom by giving a copy of the document to their lawyer. In doing so, they can preserve the document and grieve the order.

[73]    The union made a deal to review incidents over the previous five years. While the complainants may not like the deal, nevertheless it was made, so there is no irreparable harm by ordering the destruction of the documents.

[74]    The Agency's Human Resources Handbook cites four instances where an exception to the "obey now, grieve later" rule can apply. None of those exceptions is applicable here. Specifically, obeying the order would not harm anyone; the order was not impossible to carry out; the employees would not be committing an illegal act by obeying; and lastly, the order had a direct bearing on the ongoing operation of the Department in that it sought to protect customer information.

[75]    With respect to an alleged violation of Section 430 of the Criminal Code, it is the employer's understanding that this has been dismissed by a Justice of the Peace.

[76]    There is no violation of the Bill of Rights as the employer has a right to protect its business. The employee's rights must be balanced with those of the employer.

[77]    The discipline in this case was for insubordination, nothing more and nothing less. There has been no violation of the Public Service Staff Relations Act or The Code.

[78]    The employer referred to the following submissions: Ouimet (Re) , [2002] CIRB No. 171; Blakely (Re) , [2003] C.I.R.B.D. No. 33; Ridge CLRB Decision No. 934; Gilmore, [1994] CLRB No. 1096; Alan Kucher, [1996] CLRB No. 1180; Boivin v. Canada Customs and Revenue Agency, 2003 PSSRB 94; Rozon v. Treasury Board (Human Resources Development Canada) , 2002 PSSRB 30; Buchanan v. Correctional Service of Canada, 2001 PSSRB 128; Day v. Blattman, PSSRB File Nos. 161-2-809, 161-2-810 (1999); Chopra and Canada (Health Canada) , PSSRB File Nos. 161-2-858, 161-2-860 (1998); Fairall and McGregor, PSSRB File No. 161-2-368 (1987); Tobin and Brown, PSSRB File No. 161-2-438 (1989); Jackson and Seguin, PSSRB File No. 161-2-399 (1988); Doucette v. Treasury Board (Department of National Defence) , 2003 PSSRB 66 and King v. Treasury Board (Revenue Canada - Customs, Excise & Taxation) , 2003 PSSRB 48.

Reply

[79]    Initially, the Kingman document came out and a review of it by Mr. Tait determined that it violated section 107. That document was destroyed and no discipline ensued. We are here because of a second document, one that was not reviewed by the employer to see if it violated section 107 or not. The order to destroy that document made it impossible for the complainants to represent their members.

[80]    The employer's action was definitely retaliation against the complainants who were simply trying to do their job. The employer made no effort to assist the complainants in having the document altered in order to comply with section 107.

Decision

[81]    The complainants have alleged a violation of section 147 of Part II of the Canada Labour Code, as well as a violation of section 8 of the PSSRA. I will deal with the alleged violation of the PSSRA first.

[82]    Section 8 of the PSSRA reads:

8. (1) No person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall participate in or interfere with the formation or administration of an employee organization or the representation of employees by such an organization.

(2) Subject to subsection (3), no person shall

(a) refuse to employ, to continue to employ, or otherwise discriminate against any person in regard to employment or to any term or condition of employment, because the person is a member of an employee organization or was or is exercising any right under this Act;

(b) impose any condition on an appointment or in a contract of employment, or propose the imposition of any condition on an appointment or in a contract of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Act; or

(c) seek by intimidation, threat of dismissal or any other kind of threat, by the imposition of a pecuniary or any other penalty or by any other means to compel an employee

(i) to become, refrain from becoming or cease to be, or, except as otherwise provided in a collective agreement, to continue to be a member of an employee organization, or

(ii) to refrain from exercising any other right under this Act.

[83]    The employer alleges that this is a case where the complainants were insubordinate and violated a labour relations tenet, namely "obey now, grieve later". As a result of their insubordination, they were disciplined. Therefore, in the employer's view, there was no violation of section 8.

[84]    Both complainants were health and safety representatives and, as such, they were regarded as equal to all other health and safety committee members, be they management or union. Health and Safety Committees are established to discuss issues of interest to either the bargaining agent or the employer, or both. Therefore, it stands to reason that any committee member can advance an issue related to health and safety. That is not to say that there has to be unanimous agreement on the issue raised, but if the committee is to be consultative in nature, I believe that there must be an equal opportunity for any member to at least raise an issue at the meeting. As equals at the meeting, Messrs. King and Waugh were surely entitled to raise areas about which they were concerned.

[85]    In Professional Institute of the Public Service of Canada v. Treasury Board (supra), the Board wrote:

1. Open and meaningful consultations based on trust and mutual respect lie at the heart of successful labour relations. The better the communications between parties are, the better their overall relationship will inevitably be. Conversely, as these cases show, the less parties are able to communicate, the more aggressive and adversarial their relationship unfortunately becomes.

. . .

37. In any unionized workplace, the employer has the right to manage to the extent that that right is not restricted by statute or by collective agreement. Similarly, the union has the right and, indeed, the obligation to represent the employees in the bargaining unit. Conflict and distrust inevitably arise when either side purports to exercise its rights to the exclusion of the other. Exercising and respecting one's rights should never lead to a breakdown in communications between an employer and a union.

I find that those words are most applicable here.

[86]    Both complainants, acting as OSH Committee representatives, had the right to represent the interests of bargaining unit members at these meetings. In doing so in this instance, they sought to introduce a document titled "Critical Incident Summary Report", or words to that effect. This first took place at the May 14, 2002 OSH Committee meeting.

[87]    The evidence indicated that the management co-chairman, Mr. Ilasewich, sent the document to his supervisor, Mr. Sheridan, seeking instructions on what to do with it. Once he received such instructions, he communicated them to the complainants. What did he say to them?

[88]    In an e-mail dated May 27, 2002, addressed to Mr. Waugh and copied to Mr. Sheridan, Mr. Ilasewich stated, in part:

The copies distributed by Emerson are of very poor quality and do not appear to contain any customs information that is contrary to section 107 however, ... I would ask that you destroy any copies you have ...

[89]    At the next OSH Committee meeting, held June 11, 2002, Mr. King distributed copies of a document titled "Critical Incident Summary Report" and asked if it was the same document as one tabled earlier.

[90]    The next day, June 12, 2002, Mr. Ilasewich replied to Mr. King saying, in part:

. . .

John at our OSH meeting on June 11 you submitted copies of a document titled Canadian Customs Officers Critical Incident Summary Report. You had asked for confirmation if this was the same document submitted by Emerson Waugh at the May 14th OSH Meeting.

I have reviewed the document and can say that there are enough common elements in the document to say that it is the same.

. . .

I am asking you to destroy all copies of this document to prevent any violation of section 107...

. . .

[91]    The evidence indicates clearly to me that both complainants were being asked to destroy documents that, in the words of Mr. Ilasewich, "... do not appear to contain any customs information that is contrary to section 107".

[92]    Neither complainant complied with the destruction order, and Mr. Ilasewich sent both complainants another e-mail on July 15, 2002, stating:

John and Emerson: A review has been conducted of the copy of the Canadian Customs Officers Critical Incident Summary Report submitted by Emerson to the OSH Committee on May 14th.

The review has determined that the document still contains information that if shared with others would be a violation of Section 107 of the Customs Act.

Accordingly, as previously requested, please destroy all copies of this document. Kindly confirm by e-mail that you have complied with my request by Monday, July 22, 2002. Thanks, Allen

[93]    The first review showed there was no violation of section 107 with the documents, and then the complainants were informed that there would be a violation, but only if the document was shared with others. The order to destroy the document was maintained.

[94]    Why ask the complainants to destroy a document if it did not violate section 107, or would only be in violation if shared with others? Mr. Tait testified that the Kingman report, of which the spreadsheet was a derivative, was tabled to further the customs inspectors' "agenda". This agenda was wage parity with police, and perhaps it was assumed that, by discussing this report, which listed various incidents at border crossings over a lengthy period of time, the inspectors were trying to make a case to be armed. The only conclusion I can draw is that the employer was attempting to negate this discussion by ordering the destruction of the document.

[95]    Further evidence that this was, in fact, the case can be shown by the employer's unwillingness to provide Mr. King with a vetted copy of the document in order to be in compliance with section 107 (Mr. Tait's e-mail of July 9, as well as the e-mail of Mr. Sheridan dated August 19, 2002). It would have been a simple matter to tell the complainants where the violation existed (if one existed at all) and also tell them how to comply.

[96]    Another important factor here is Mr. Sheridan's evidence; he stated that the possession of the document had no adverse impact on the operation. Again, why order it destroyed if no negative operational impact was being incurred?

[97]    By ordering the destruction of the document, I believe the complainants were prevented from using the data to discuss their health and safety concerns at the OSH Committee meetings.

[98]    Based upon the evidence, I can come to no other conclusion than that the employer was interfering with the rights of the complainants to represent employees and their interests at the OSH Committee meetings. This would, in my view, be a violation of section 8 of the PSSRA and such a violation is prohibited.

[99]    The complainants also allege a violation of section 147 of Part II of The Code. This section reads:

Disciplinary Action

147.

No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period of time that the employee would, but for the exercise of the employee's rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee

(a)	has testified or is about to testify in a proceeding taken or an inquiry held under this Part,
(b)	has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer, or
(c)	has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.

. . .

[100]    Was the employer's action in violation of The Code? In order to address this, I believe a good starting point is to look at The Code to determine what the complainants' role was in so far as health and safety is concerned.

[101]    Section 134.1 of The Code states, in part:

. . .

Policy Health and Safety Committees

134.1 (1) For the purposes of addressing health and safety matters that apply to the work, undertaking or business of an employer, every employer who normally employs directly three hundred or more employees shall establish a policy committee and, subject to section 135.1, select and appoint its members.

. . .

(4) A policy committee

. . .

(b) shall consider and expeditiously dispose of matters concerning health and safety raised by members of the committee or referred to it by a work place committee or a health and safety representative;

. . .

(f) shall cooperate with health and safety officers;

. . .

[102]    Section 135 states, in part:

Work Place Health and Safety Committees

135. (1) For the purposes of addressing health and safety matters that apply to individual work places, and subject to this section, every employer shall, for each work place controlled by the employer at which twenty or more employees are normally employed, establish a work place health and safety committee and, subject to section 135.1, select and appoint its members.

[103]    Section 136 states, in part:

. . .

Health and Safety Representatives

136. (1) Every employer shall, for each work place controlled by the employer at which fewer than twenty employees are normally employed or for which an employer is not required to establish a work place committee, appoint the person selected in accordance with subsection (2) as the health and safety representative for that work place.

. . .

(5) A health and safety representative, in respect of the work place for which the representative is appointed,

. . .

(c) shall meet with the employer as necessary to address health and safety matters;

[104]    If we return to the complaint itself, section 147 prohibits the employer from, among other things, suspending an employee because the employee has acted in accordance with the provisions of The Code.

[105]    The evidence showed that the employer suspended the complainants because they would not destroy a document. Both complainants, acting as health and safety committee members, had every right to bring items forward to the OSH Committee. What was the purpose of the Committee? Section 135 (1) of The Code states that the purpose of the committee was to address "...health and safety matters that apply to individual work places". By ordering the destruction of these documents, which according to the evidence did not contravene section 107 of the Customs Act, the complainants were prevented from addressing these health and safety concerns using this data, and a violation of The Code occurred.

[106]    Similarly, in my view, the employer violated section 134.1 (4) (b) of The Code in that the Committee was prevented from considering "...matters concerning health and safety raised by members of the committee". To state the obvious, if a committee member is prevented from raising an issue, it cannot be considered.

[107]    As I have found that the employer has violated section 8 of the PSSRA, and section 147 of The Code, what is the remedy?

[108]    Section 23 (2) of the PSSRA states:

23. (2) Where, under subsection (1), the Board determines that the employer, an employee organization or a person has failed in any matter described in that subsection, the Board may make an order directing the employer, employee organization or person to observe the prohibition, give effect to the provision or decision or comply with the regulation, as the case may be, or take such action as may be required in that behalf within such specified period as the Board may consider appropriate.

[109]    The documents have been destroyed, pursuant to the employer's order, so there is no possibility, as I understand it, of ordering the employer to return said documents to the complainants. In any event, one of the purposes in introducing the document was to address health and safety issues in relation to various incidents involving customs officials. The employer and the union agreed to study this issue, with the assistance of a consultant, so, to that extent, the issue is being addressed.

[110]    Each of the complainants was suspended for a period of 11 days. The employer says this was for misconduct. However, I have found that the employer's order violated the PSSRA and, by virtue of the authority in section 23, I order the employer to make full restitution to each of the complainants for the 11-day suspension. Such restitution would include removing all references to the suspensions from the complainants' files.

[111]    The complainants have also asked for reimbursement of costs (legal and otherwise), damages in the amount of $100,000 for the one-day suspension, $1,000,000 for the ten-day suspension and a written apology posted in an appropriate location.

[112]    I decline to grant each of these requested corrective actions. Insofar as costs and damages are concerned, I was not made aware of any quantifiable costs or damages suffered by the complainants. As stated above, the issue of reviewing incidents over the previous five years was agreed to between the union and the employer. Any harm that the complainants suffered, as the result of not being able to discuss their data, is, in my view, corrected by having the union agree to this review exercise. The union acts on behalf of all its members, including Mr. King and Mr. Waugh, and their agreement on a five-year review subsumed any disagreement Mr. King may have had on this issue. The issue was addressed.

[113]    I do not believe anything positive can be derived from ordering a written apology. This decision, when published, is available for anyone to read and speaks for itself.

[114]    I do not feel it necessary to comment on an alleged violation of the Canadian Bill of Rights or the Criminal Code.

[115]    To the extent detailed above, these complaints succeed.

[116]    The principle of "obey now, grieve later", has application in a grievance context. This case is a complaint, and upon finding a violation of the Act, which I have found, in my view the principle of "obey now, grieve later", is not relevant. If this had been a grievance, and there had been a referral to adjudication under section 92 of the PSSRA, this principle may well have applied. However, this is a complaint filed under section 23, and in my view, the "obey now, grieve later" principle has no application under these circumstances.

[117]    In addition, I would also state that the Board has extensive experience in preventive mediation, and its skilled mediators can provide assistance in the workplace, if invited to do so, at a very early opportunity. They can be invited in, under circumstances like this, to assist the parties in developing more positive solutions to seemingly difficult workplace issues.

Joseph W. Potter,
Vice-Chairperson.

OTTAWA, January 13, 2005.