FPSLREB Decisions

Public Service Staff Relations Act BETWEEN COUNCIL OF GRAPHIC ARTS UNIONS OF THE PUBLIC SERVICE OF CANADA

Complainant and CANADA COMMUNICATION GROUP Respondent RE: Complaint under section 23 of the Public Service Staff Relations Act

Before: Yvon Tarte, Deputy Chairperson For the Complainant: James Shields, Counsel For the Respondent: Steven Chaplin, Counsel Heard at Ottawa, Ontario, December 20, 1995.

Files: 161-28-779 Before the Public Service Staff Relations Board

Decision Page 1 DECISION The Complaint The Council of Graphic Arts Unions of the Public Service of Canada (the Council) has filed a complaint under section 23 of the Public Service Staff Relations Act (PSSRA) alleging that the respondent employer "has failed to give effect to the arbitral award issued March 27, 1995, in contravention of subsection 71(1) of the Public Service Staff Relations Act." The facts of this case are set out in the complaint document and the employer's reply and to the extent reproduced in this decision are agreed to by the parties.

The Arbitral Award The arbitral award referred to in the complaint was issued on March 27, 1995 by Michael Bendel as chairperson of the arbitration board on which also sat Donald Fowler and Ronald O'Connell. It reads in part as follows:

This arbitration board has been established by the Chairperson of the Public Service Staff Relations Board, pursuant to section 65 of the Public Service Staff Relations Act ("PSSRA"), for the purpose of rendering an arbitral award in respect of certain matters in dispute between the Council of Graphic Arts Unions of the Public Service of Canada ("the Council") and the Canada Communication Group ("the employer") relating to the Printing Production and other related job functions Group bargaining unit ("the bargaining unit"). The request for arbitration was made by the Council on September 27, 1994, and the chairperson of this board was appointed on December 22, 1994. The Chairperson of the Public Service Staff Relations Board issued Terms of Reference on January 10, 1995. The board held hearings on January 17 and February 1, 1995, at which time the parties were given an opportunity to present evidence and make submissions. The board held an executive session on February 21 to consider the award to be rendered.

The matters in dispute between the parties, as of the date of hearing, were these:

Article 23 - Pay administration Article 24 - New Rates Article 31 - Duration of Agreement

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Decision Page 2 Pay Notes and Rates of Pay - Addenda "A" to "E" (the parties agree that this should read "H")

Compendium of Terms and Conditions. It quickly became apparent to the board of arbitration, upon reading the Terms of Reference and the parties' briefs, and upon hearing counsels' submissions, that there is one threshold issue to be decided before any other aspects of this dispute can be examined. (...)

The threshold issue for the board, stated in the baldest terms, is this:

have the compensation plans that were in effect as of February 1991 continued in force by reason of the PSCA, or have they been replaced by the one allegedly approved by the Treasury Board in June 1993 under section 7 (2) of the PSCA? (...)

At the hearing before the board of arbitration, Mr. Chaplin, counsel for the employer, reiterated that he was not at liberty to produce for the board the decision or document whereby changes to the compensation plans were allegedly effected in June 1993. (...)

The employer did, however, adduce certain evidence from which it asked us to find as a fact that the Treasury Board did effect changes to the compensation plans. Mr. Shields, counsel for the Council, while consenting to this evidence being received by us, objected strenuously to us finding, on the basis of this evidence, that the Treasury Board took the decision alleged by the employer.

The evidence adduced by Mr. Chaplin, with the consent of Mr. Shields, consists of the following:

a) internal information bulletins of the employer referring to the classification plan and pay structure approved by the Treasury Board on June 2, 1993;

b) correspondence between the employer and other government agencies, including the Treasury Board Secretariat and the Public Service Commission, referring to the new classification plan and pay structure; (any references to the Treasury Board decision itself have been deleted from this correspondence);

c) offers of employment referring to positions classified under the new classification plan;

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Decision Page 3 d) competition posters referring to the new classifications and to the new salary rates; and

e) a copy of the Appointment of Certain Employees of the Canada Communication Group to the Department of Supply and Services Exclusion Approval Order, P.C. 1994-1886, of November 15, 1994; and a statement by a Human Resources Adviser in Public Works and Government Services Canada explaining the need for this Order.

(...) We should preface our decision on this matter by noting that, under section 66 of the PSSRA, the Chairperson of the Public Service Staff Relations Board is responsible for deciding whether matters in dispute are excluded from the jurisdiction of the arbitration board by reason of section 69. We have serious doubts whether Parliament could have intended that a party dissatisfied with the Terms of Reference established by the Chairperson under section 66 should be free to reargue the matter before the arbitration board. The scheme of the PSSRA would seem to require that all issues as to whether an item is excluded from the jurisdiction of the arbitration board by section 69 should be dealt with by the Chairperson of the Public Service Staff Relations Board. We note, in this regard, that the question as to which compensation plan is in effect under the PSCA was argued before the Chairperson of the Public Service Staff Relations Board when he was deciding on our Terms of Reference, and is dealt with in the Terms of Reference at pages 12-13. His conclusion was that he could not consider the changes to the compensation plans purportedly made by the Treasury Board under section 7 (2) of the PSCA, since the employer had failed to establish that those changes had in fact been made.

However, in the present case, the employer produced evidence before us that was not put before the Chairperson of the Public Service Staff Relations Board. We heard no argument as to whether the new evidence was properly a matter for the board of arbitration, whether, in such a situation, the Chairperson had the authority under section 66 to amend Terms of Reference, or whether new evidence was simply not to be taken into account. Our receipt of the new evidence, we recall, was not objected to as such by union counsel. In addition, we note that union counsel made no serious objection to our authority to resolve the question as to which compensation plan has been frozen under the PSCA. (...)

We have therefore concluded that we should only find that the Treasury Board made the changes under section

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Decision Page 4 7 (2) of the PSCA if the evidence the employer presented would be sufficient to persuade a court of law of that fact.

It appears to us that the normal way to prove that a formal decision has been made would be by testimony from a person with first-hand knowledge of the making of the decision; or by the introduction of a document purporting to embody the decision, supported, if necessary, by the testimony of a person who was familiar with the document or with documents of that character. It would be logical to conclude, in the face of such evidence, that the purported decision was in fact made.

The evidence tendered by the employer in this case, while consistent with the possibility that the alleged decision was made, falls far short of persuading us that it was in fact made. We would not be surprised to learn, in light of this evidence, that a decision was duly taken by the Treasury Board under section 7 (2) of the PSCA, but that is a very different thing from saying that the evidence satisfies us that a decision was taken. (...)

If government officials have been prepared to act on the assumption that a decision was duly made by the Treasury Board pursuant to section 7 (2) without seeing the alleged decision, that is a matter for them. This arbitration board, however, can only conclude that a decision has been taken by the Treasury Board if evidence it has received would be sufficient to persuade a court of law of that fact. We have little hesitation in concluding that the evidence tendered falls short of the mark.

We should record the fact that we heard no argument on whether it would be legitimate for us to relax the evidentiary burden on the employer as the alleged decision might be "a confidence of the Queen's Privy Council for Canada", within the meaning of section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, and therefore immune from disclosure.

It is therefore our conclusion that this arbitration must proceed on the basis that no changes were effected to the compensation plans pursuant to section 7 (2) of the PSCA.

(...) Since we are powerless, as a result of the PSCA, to change the employees' compensation plans, our award is that, on all the items in dispute, the compensation plans shall continue in force as they were on February 26, 1991. This

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Decision Page 5 award is retroactive to May 6, 1994, when notice to bargain was given.

(...) Accordingly, we have decided that this award shall be operative until September 30, 1996.

The arbitral award was not subjected to judicial review. The Treasury Board Decisions Following the issuance of the arbitral award, the Treasury Board (by letter dated June 27, 1995, see employer's reply to the complaint) authorized for certain limited purposes, the release of an extract from the minutes of a meeting of the Treasury Board held in Ottawa on June 2, 1993.

The copy of the extract, certified as a true copy of the original by R.J. Giroux, then Secretary of the Treasury Board, indicates that:

The Treasury Board at its meeting of June 2, 1993 in accordance with section 7(2) of the Public Sector Compensation Act changed the terms and conditions of employment of the compensation plans applicable to employees of Canada Communication Group (CCG) on April 1, 1993. In so doing it authorized the implementation of a conversion and the establishment of terms and conditions for new employees in order to implement the new classification standard. Specifically the Board authorized the following:

- the implementation of a 17 level gender neutral plan with salary scales attached as Annex A, effective April 1, 1993. The rate ranges attached to levels 1-13 will have an annual increment of 3.5% within each level. Levels 14-17 will be in accordance with the EX salary administration plan;

- in order to implement the conversion and new classification standards:

(a) conversion rules are changed in accordance with the terms outlined in Annex B;

(b) the terms and conditions of employment of compensation plans previously in effect are changed as is outlined in Annex C.

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Decision Page 6 - the development of terms and conditions of employment for new employees who have not been subject to plans previously in existence. These terms and conditions of employment will not introduce new benefits nor will they provide increases to current benefit levels.

The annexes referred to above need not be reproduced in this decision. Contained in the documentation forwarded to the Board by the complainant is a certified true copy of another extract from the minutes of a meeting of the Treasury Board held in Ottawa on June 15, 1995. The extract of that second Treasury Board decision reads as follows:

The Treasury Board, at its meeting of June 15, 1995, in order to ensure that Canada Communication Group (CCG) continues to comply with the Public Sector Compensation Act (PSCA), in accordance with section 12(3) of that Act, directs CCG not to implement the arbitral award issued on March 27, 1995 in respect of the Printing Production bargaining unit insofar as its implementation conflicts with the changes made to CCG's terms and condition of employment pursuant to section 7(2) of the PSCA.

Specifically, CCG is directed to ensure that the changes made, effective April 1, 1993, to its terms and conditions of employment which were in respect of the conversion that was required to implement the new classification plan shall be maintained and not altered in any way, notwithstanding anything in the above-noted arbitral award which if implemented would cause an alteration to be made and thus cause CCG to violate the PSCA.

The Treasury Board notes CCG will not be required to have implemented the award until the 90 day implementation period established by the Public Service Staff Relations Act expires. The period in this instance expires on June 26, 1995. Therefore, until that date CCG will not be in the position of having to implement the arbitral award and consequently not be in compliance with the PSCA.

In view of the contents of the Treasury Board decisions reflected in the above-quoted extracts, the employer has decided that it cannot implement in its totality the arbitral award signed by Mr. Bendel.

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Decision Page 7 Arguments For the Complainant: The arbitral award signed by chairperson Bendel clearly and unequivocally directs that the compensation plan which shall apply until September 30, 1996, is the plan which existed on February 26, 1991. The plan referred to in the arbitral award includes the article on new rates (Exhibit C-1) and addendum "G" containing pay notes (Exhibit C-2).

Exhibit C-1 deals with technological change, and Exhibit C-2 sets the percentages of rates to be given to apprentices. The employer has acknowledged that it has not fully implemented the relevant arbitral award.

The only possible result in this complaint is a finding that the employer has failed to give effect to the provisions of an arbitral award. The consequence of that failure must be an order by this Board directing the employer to give effect to all the provisions of the arbitral award signed by chairperson Bendel on March 27, 1995.

For the respondent: The Council's complaint is concerned with the non-implementation of two articles of a compensation plan. In light of the Treasury Board decision taken on June 2, 1993, the two articles in question (refer to Exhibits C-1 and C-2) cannot be implemented.

The board of arbitration did not have before it the appropriate documentation to show conclusively that the two articles had ceased to exist on June 2, 1993.

Mr. Bendel makes it quite clear in the arbitral award that the Public Sector Compensation Act governs in this matter. Subsection 7(2) of the Public Sector Compensation Act gives the Treasury Board the authority to change a compensation plan otherwise frozen by its terms.

The employer readily recognizes that many problems in this case would have been avoided if the certified extracts of the Treasury Board decisions could have been released in a more timely manner. The unfortunate delay in releasing the extracts of the decisions does not however in any way invalidate the decisions taken. This is not Public Service Staff Relations Board

Decision Page 8 a mere question of evidence. Valid legislative orders governing the conduct of the parties have been issued by the Treasury Board.

Furthermore, the Treasury Board has on June 15, 1995, ordered the employer not to implement the arbitral award to the extent that it does not conform with its prior decision of June 2, 1993.

In British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd. [1995] 2 S.C.R. 739, the Supreme Court of Canada sets out the procedure and standards to be followed in cases where an agency is subjected to conflicting orders from different bodies which both control its activities.

In cases where conflicts cannot be resolved the Supreme Court resorts to the doctrine of paramountcy to determine which of the conflicting decisions must give way. There is no doubt that Parliament intended the Public Sector Compensation Act to be paramount over the Public Service Staff Relations Act.

This Board must look at the implementation of the arbitral award in the context of decisions taken which affect it.

Section 23 of the PSSRA deals with unfair labour practices. The section should not be concerned with innocent violations of its provisions required by law. Any order by this Board to fully implement the arbitral award would violate the Public Sector Compensation Act.

Subsection 23(2) of the PSSRA provides a discretion as to the making of an order directing compliance with the provisions of subsection 23(1).

It is clear from a cursory examination of Exhibits C-1 and C-2 that these provisions of the old collective agreement cannot stand in light of the Treasury Board decision of June 2, 1993. Whatever derogation from the arbitral award has occurred in this case was very narrow and required by law.

Reply of the Complainant: The arbitral award signed by Mr. Bendel remains intact. It was not subjected to judicial review. The award must therefore be respected. Neither this Board nor the

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Decision Page 9 bargaining agent was officially made aware of the Treasury Board decisions until after the arbitral award had been issued. This shows contempt for this Board and the Council. The Council has made application to the Federal Court to have the two Treasury Board decisions quashed.

The jurisdiction of this Board is limited and very narrow. It is concerned solely with the employer's failure to give effect to an arbitral award. This Board has no jurisdiction to see if the provisions of the compensation plan approved by the board of arbitration and set out in Exhibits C-1 and C-2 are in conflict with the Treasury Board decision of June 2, 1993.

On its face Exhibit C-1 deals with technological change and has nothing to do with the classification system set out in the June 2, 1993, Treasury Board decision. The same can be said of Exhibit C-2 which deals solely with apprentices.

Should the questions of paramountcy discussed in the Shaw Cable case (supra) apply in this case, they must be determined in another forum. This complaint must therefore be allowed and the appropriate order made.

Reasons for Decision The quagmire the parties find themselves in would likely not have arisen had the Treasury Board found, in a timely manner, a way to apprise the board of arbitration or the Chairperson of this Board, when he was setting out its terms of reference, of the decision it had taken on June 2, 1993.

Be that as it may, the jurisdiction of the Board under subsection 23(1)(b) is fairly narrow. The Board has no authority to review the arbitral award. The employer in this case has acknowledged that it has failed to fully give effect to the arbitral award signed by Mr. Bendel on March 27, 1995. I therefore have no problem in finding that the Council's complaint is founded.

The employer has suggested that this Board exercise its discretion under subsection 23(2) of the PSSRA and make no order directing compliance. In the circumstances, I do not believe this would be appropriate. I have no jurisdiction to reopen the arbitral award and attempt to determine whether the contents of

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Decision Page 10 Exhibits C-1 and C-2 in some way conflict with the Treasury Board decision of June 2, 1993.

If such a conflict does exist, the parties should attempt to resolve it through negotiations failing which a court of competent jurisdiction will have to resolve it for them. I realize that the making of an order in this case may well put the employer in a difficult situation. Nevertheless, such an order should be issued keeping in mind what precedes.

I hereby direct the employer to give effect to the provisions of the arbitral award signed by Mr. Bendel on March 27, 1995 which provisions are set out in Exhibits C-1 and C-2.

Yvon Tarte, Deputy Chairperson

OTTAWA, January 16, 1996.

Public Service Staff Relations Board