FPSLREB Decisions

File: 181-2-348 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN TREASURY BOARD Employer and THE PUBLIC SERVICE ALLIANCE OF CANADA Bargaining Agent RE: Determination of Designated Positions - Library Science Group

Before: P. Chodos, Deputy Chairperson Appearances: Raymond Dionne, Harvey Newman, Counsel for the Employer Amy Campbell, Evelyne Henry for the Bargaining Agent

Heard at Ottawa, Ontario, February 7, 1997.

Decision Page 1 DECISION Pursuant to section 78. (1) of the Public Service Staff Relations Act, the parties met to consider which positions in the Library Science (LS) Group bargaining unit have duties “consisting in whole or in part of duties the performance of which at any particular time or after any specified period of time is or will be necessary in the interest of the safety or security of the public” (section 78. (1)). Following their discussions the parties entered into a Memorandum of Agreement, dated October 28, 1996, which determined the following: ... The parties have made the following determinations: 1. that 408 positions in the LS bargaining unit do not have duties and responsibilities related to the safety or security of the public.

2. that 8 positions in the bargaining unit in the following three departments (SUC = 2; FCC = 4, and SVC(TB) = 2) are still in dispute and are referred to a Designation Review Panel (DRP) under section 78.1(7).

As a result of further negotiations between the parties an agreement was reached with respect to all of the positions, with the exception of the three positions at the Federal Court (one of the Federal Court positions noted in paragraph 2 of the Memorandum is in fact a managerial or confidential exclusion, and was included in error). Those positions are described as follows: FCR-00402, LS-02, Reference Librarian; FCR-00466, LS-02, Collection Development Librarian; FCR-00403, LS-03, Head Technical Services and Systems. A designation review panel was duly established and submitted its recommendations to the parties concerning those positions on December 17, 1996. By letter dated January 15, 1997 the Board was advised by the employer that after considering the recommendations of the designation review panel, the parties continued to disagree on whether the positions in dispute have safety or security duties. Consequently, the employer requested that this dispute be referred to the Board in accordance with subsection 78.2(1) of the Act.

Counsel for the employer, with the consent of the representatives of the bargaining agent, submitted to the Board copies of the review panel recommendations, and requested the Board to take cognizance of the facts noted in the review panel reports. In addition, the parties submitted on consent the following documents:

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Decision Page 2 a list of proposed designations (Exhibit 1); an organization chart of the Federal Court Administration (Exhibit 2); position descriptions of the three Library Science positions in dispute, as well as the position description for the Head Librarian (Exhibits 3 to 6);

an excerpt from the Treasury Board Staff Relations Manual (Exhibit 7); a document identifying managerial and confidential exclusions at the Supreme Court of Canada (Exhibit 10); and

a chart outlining the number of proceedings instituted at the Federal Court between 1986 and 1996 (Exhibit 11).

The employer also called two witnesses: Mr. William Wendt, the Deputy Administrator of the Court, and Mr. Gordon Wilkins, the Senior Policy Development and Training Officer with the Court.

Mr. Wendt has been a Deputy Administrator with the Court for approximately ten years; currently the Library organization, through the Head Librarian, reports to him. Mr. Wendt in turn reports to the Administrator of the Court, who is its Chief Officer. The Library is headquartered in the Royal Bank Centre in Ottawa which also houses the offices of the Trial Division Judges, and the Law Courts of the Trial Division. In addition there is a reading room for appeal court judges located at the Supreme Court Building; the Federal Court also has offices in a number of regions across Canada, each of which has its own library collection. As well, the Library provides judges’ chambers with some materials. Mr. Wendt noted that the Federal Court Library is a specialized law library serving primarily judges, and secondarily the staff of the court who provide services to the judges; the Toronto library facility is open to the public; however, other library areas are restricted. The Library provides a number of services, including reference services, collection development and acquisitions, maintaining serials and bibliographical databases, as well as bookbinding.

Mr. Wendt observed that the Library is an essential resource to judges when making their decisions; the judges rely on law and precedents, and therefore research is critical to the completion of their decisions. He noted as well that an important aspect of justice is promptness; according to Mr. Wendt, if the Library Services were disrupted that would affect the judges’ ability to render justice expeditiously.

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Decision Page 3 Mr. Wendt submitted that the duties of each of the three Librarians in dispute have important roles to play in providing services to the judiciary. For example, the Collection Development Librarian’s primary responsibility is to research the Library’s needs and make acquisitions in accordance with those needs. He referred to the relevant position description (Exhibit 6), in particular to paragraph 5.(e) which notes that the incumbent: 5. Compiles finding aids, bibliographies, office consolidations and other reference material to assist users in the acquisition of information on the law, by:

... e) noting up significant cases by reviewing judicial considerations and histories of cases of interest to the Federal Court;

The Deputy Administrator observed that the Reference Librarian works directly in support of the judicial function of the Court by providing reference services to the judges and law clerks; he noted that the greatest number of questions which the Reference Librarian must respond to emanates from the law clerks and the judges themselves. He referred to duty number 6 in the Reference Librarian job description which states that the Reference Librarian is also responsible for orienting new law clerks and training them in finding legal reference material.

Mr. Wendt also described the duties of the Head, Technical Services and Systems position (LS-03); this person looks after access to legal databases; currently a considerable amount of reliance is placed on legal databases and other material available on CD-ROMs as well as on computers, for example, QuickLaw. Mr. Wendt stated that if there is a failure in the system, the information contained in these databases would not be available. It is the responsibility of the incumbent of that position to look after the computer information system, transfer files, oversee the indexes of databases and in general take the necessary steps to provide information through computer systems; in the performance of this responsibility, the incumbent would obtain the support from the informatics staff.

Mr. Wendt agreed that the Manager of Informatics would have an understanding of the Library computer function and would be responsible for maintaining those functions. He also agreed that the Head Librarian, who is excluded from the bargaining Public Service Staff Relations Board

Decision Page 4 unit would have the ability to perform some of the functions of the Library staff reporting to her. Mr. Wendt acknowledged that the 36 law clerks and research assistants can do research, and have access to the Supreme Court Library and other legal libraries in Ottawa. He acknowledged as well that when the Librarians take vacation leave they would not be replaced; he observed that if they are absent for longer periods they could be replaced through a secondment or an acting assignment from a potential pool of candidates; however that had never been done during his tenure. He was also asked about the 1991 Public Service Alliance general strike in which the Librarians had participated; he had no knowledge of any delays in service as a result of their withdrawal of services at that time. Mr. Wendt was directed to the following statement in an exhibit filed by the employer with the review panel: "during the last strike, approximately half of the clerical and technical support staff went out on strike. All the LS staff, with the exception of the Head Librarian went off on strike. However the duration of the strike was such that essential services were maintained throughout, and the clients were not adversely affected." He stated that he does not disagree with this observation about the effect of the strike; however, he noted that the strike was of short duration and as a consequence it was possible to reassign staff in order to deal with urgent matters. He maintained it would be much more difficult to deal with the withdrawal of services of a more prolonged nature.

Mr. Gordon Wilkins has been employed with the Federal Court for nine years; among other duties, he is responsible for advising senior management on labour relations matters, including safety and security designations. He identified a document entitled “Federal Court Library” (Exhibit 8) which he had prepared for senior management of the Court in the context of the current LS designation process. Mr. Wilkins observed that there has been a significant increase in the number of total proceedings instituted in the Federal Court between 1991 and 1996; in 1991 there were 19,189 proceedings, compared to 1996 where there were 26,161 proceedings, an increase of 36%. During the same period there was also a dramatic increase in the usage of the Library; in 1991-1992 there were a total of 950 information requests by Library users, compared to 2,978 in 1995-1996. Mr. Wilkins also noted that from April 25, 1995 to January 28, 1997 there were 19,515 items processed by Library staff over a period of 412 working days, averaging approximately 50 publication items per working day.

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Decision Page 5 Mr. Wilkins highlighted parts of the position descriptions of each of the three Librarian positions. In particular, he noted that with respect to each position there is some degree of interaction with the judiciary. It was his conclusion that while in a strike of short duration the primary reference service could be maintained, there would be a general degradation in the service from the outset, which in his opinion would affect the independence of the judiciary and as a consequence, the administration of justice. Mr. Wilkins noted that upon reviewing the B.C.G.E.U. decision (British Columbia Government Employees Union v. Attorney General of British Columbia and the Attorney General of Canada [1988] 2 S.C.R. 214) and the CATCA decision (Canadian Air Traffic Control Association v. The Queen [1982] 1 S.C.R 696 management concluded that Federal Court employees could be considered as being essential to the safety and security of the public, as that term is used in subsection 78.1.

In cross-examination Mr. Wilkins acknowledged that he could not say how often the Head of Technical Services meets with judges, nor does he have detailed knowledge of the daily responsibilities of any of the Librarians. He noted that he made his observations with respect to contacts with judiciary exclusively from his reading of the position descriptions. He agreed that the incumbents of these positions are not replaced when on vacation; he could not cite any example of “promptness” being affected by the normal absence of staff, nor was he aware of any delay in the issuance of decisions resulting from the 1991 strike. He agreed that when the Reference Librarian is away, the law clerks are able to conduct research in her absence. Mr. Wilkins also stated that it is his information the Supreme Court Administration did not propose any Library Science designations; he noted however that the Supreme Court has a 70% managerial and confidential exclusion rate, and some of the Librarians are classified in the LA (i.e. Law) group.

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Decision Page 6 Argument Counsel for the employer submitted that the issue in this case is to what extent would the administration of justice by the Federal Court be impeded by not having a full complement of Library staff. Mr. Newman maintained that if any position has an appreciable effect on the delivery of that function that position should be considered essential to the safety and security of the public. As well, anything which delays the administration of justice, or makes it more difficult to perform diminishes the public's safety and security. In support of this view, Mr. Newman referred to the B.C.G.E.U. decision (supra); he acknowledged that while the decision is not on all fours with the instant case, the general principles are applicable, in particular, the observation of the Court that “the importance of the right of citizens to have unimpeded and uninterrupted access to the courts and the authority of the courts to protect and vindicate that right” (p. 225).

Counsel also submitted that the Library is an integral part of the functioning of the Court itself; in order to maintain the Court's full level of service there must be a functioning library; accordingly, the level of service to be provided by the Library cannot be artificially restricted. According to Mr. Newman, it is self evident that the absence of a full library service would generate delays in the administration of justice; for example, electronic databases would not be kept up, and references would not be up-to-date. Counsel for the employer stated that it is the Court’s view that all employees of the court administration should be designated as essential to the safety and security of the public.

Mr. Newman noted that section 78. (1) of the Act refers to the interest of the safety and security of the public; that is, actual harm to the public does not have to be demonstrated, but only that there is potential for harm or loss of safety or security, keeping in mind that a strike could go on for some time. Mr. Newman also referred to the Supreme Court decision in the CATCA case (supra). According to Mr. Newman that case stands for the proposition that the Board is not authorized to determine the level of service to be provided to the public; this is a determination to be made by the employer. He also noted that under section 78. (1) there is a reference to duties “in whole or in part” essential to the safety and security of the public; accordingly not all

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Decision Page 7 of the duties are required to be necessary for safety and security in order to warrant designation.

Mr. Newman maintained that the Board does not sit in review of the Panel’s recommendations, which are non-binding and are intended only to assist the parties. He pointed out that the review panel recommendations were put before the Board in this proceeding as a partial agreed statement of facts and not as a precedent.

The representative of the union replied that the bargaining agent does not question the importance of the Federal Court to the public; the only issue before the Board is whether the duties performed by the incumbents of the three Librarian positions are essential to the public’s safety and security.

Ms. Campbell submitted that since designation under section 78. (1) results in the loss of rights otherwise conferred on employees, the proposed designation of positions should be viewed with caution. She noted that the Board has consistently stated that safety and security designation does not encompass inconvenience to the public, as noted, for example, in the Board decisions in the Radio Operation Group (Board file: 181-2-99) and the Education Group (Board file: 181-2-235).

The bargaining agent’s representative contended that there is nothing inherent in the duties of librarians which would suggest that in the foreseeable future the withdrawal of their services might affect the safety and security of the public. She observed that there is no evidence which suggests that the withdrawal of services by the three Librarians would at any point cause meaningful delay in the operations of the Court; the Library will continue to be there, QuickLaw would continue to be available and the law clerks would continue to perform their responsibilities. She also submitted that the increase in workload since 1991 is irrelevant, as it is the nature of the duties that is at issue here, not the number of times they are performed.

Ms. Campbell also contended that if the employer’s submissions were followed to their ultimate conclusion, every position throughout the government would be designated, thereby making a complete mockery of the Act. She noted that the B.C.G.E.U. case dealt with a picketing injunction; it was specifically observed in the Supreme Court decision that the injunction order “did not purport to require the staff of the courts to resume the discharge of their duties” (p. 226) and that “... nowhere in

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Decision Page 8 McEachern C.J.S.C.s’ order was there any suggestion of contempt on the part of those members of the court-house staff who, being on a legal strike, withdrew their services. The injunction was directed to the picketing.” (p. 228).

Finally, Ms. Campbell submitted that the employer is urging that the Board grant the Federal Court special status, which is not contemplated by the Act; it is not enough to argue that the Court is somehow special, rather the employer must show the connection between the duties performed by the incumbents of the positions in question, and the safety and security of the public. With respect to the potential for delay, it was noted that the Federal Court Act does not require a particular time frame for the rendering of decisions.

Reasons for Decision This matter came before the Board following a consideration by a designation review panel appointed pursuant to subsection 78.1(8) of the Act. Subsection 78.1(9) provides that “a designation review panel shall ... review only the positions in dispute and make non-binding recommendations in writing to the parties as to whether the positions have safety or security duties”. If the parties, following a consideration of a review panel recommendations are still unable to reach agreement as to which positions, if any, have safety and security duties, the employer shall refer the positions in dispute to the Board pursuant to subsection 78.2(1) of the Act. Subsection 78.2 (2) provides that “The Board shall review the positions in dispute and, after giving each party an opportunity to make representations, determine if the positions have safety or security duties.”

The Board is in agreement with counsel for the employer that it is incumbent on the Board to in effect make a determination on safety and security designations de novo. That is, the Board does not sit in appeal of the review panel recommendations; those recommendations are intended only to assist the parties in resolving the matter themselves; it should be noted, for example, that pursuant to subsection 78.1(9) (supra) the recommendations of the panel are referred to the parties, and not to the Board. It is also clear from subsection 78.2(2) that the Board is obliged to conduct a full hearing in respect of the matters in dispute. Accordingly, the review panel’s recommendations are being considered solely for the purpose for which

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Decision Page 9 they were submitted to the Board in this proceeding, that is, as a substitute for a partial agreed statement of facts.

The Board’s responsibility in this proceeding is to determine whether the three Librarian positions in question, are subsumed by paragraph 78. (1)(a) which states as follows: 78. (1) The Chairperson shall not, pursuant to a request under section 76 in respect of a bargaining unit, act under subsection 77(1) or (2) until the position of each employee in that bargaining unit, in accordance with section 78.1 or 78.2,

(a) has been designated as having duties consisting in whole or in part of duties the performance of which at any particular time or after any specified period is or will be necessary in the interest of the safety or security of the public; or

While the 1993 amendments to the Act established a substantially new designation procedure, and provided for the designation of positions rather than persons, the criteria for safety and security designation have not been substantively altered, as is readily apparent from a comparison with former subsection 78. (1) of the Act. That provision stated: 78. (1) Notwithstanding section 77, no conciliation board shall be established for the investigation and conciliation of a dispute in respect of a bargaining unit until the parties have agreed on or the Board has determined pursuant to this section the employees or classes of employees in the bargaining unit, in this Act referred to as “designated employees”, whose duties consist in whole or in part of duties the performance of which at any particular time or after any specified period of time is or will be necessary in the interest of the safety or security of the public.

Accordingly, the Board’s previous decisions in this area continue to be relevant. As noted by the bargaining agent's representative, a common theme throughout the Board’s decisions on safety and security designations has been the importance of distinguishing between inconvenience to the public on the one hand, and safety and security on the other. The designation process represents an attempt to balance the right of employees who are members of a bargaining unit to participate with their fellow employees in what is otherwise a lawful strike, against the need to protect the vital interests of the public. In determining the proper balance, the Board has said that

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Decision Page 10 inconvenience is a natural result of a withdrawal of services (otherwise what purpose did those services serve in the first place). In other words, there is no equivalence between inconvenience and “duties ... at any particular time or after any specific period is or will be necessary in the interest of the safety or security of the public”.

In the Board's view, this concept was not diminished or supplanted as a result of the decision of the Supreme Court of Canada in the CATCA case (supra). The rationale for the court’s judgment is found at page 707 where Mr. Justice Martland stated the following: As I see it, the task of the Board when called upon to make a determination under subs. 79(3) is to consider those employees and classes of employees in the bargaining unit who have been designated by the employer, and to decide whether the performance of their stipulated duties as employees is necessary for public safety or security.

The whole procedure provided for in s. 79 occurs prior to the establishment of a conciliation board. I can find nothing in the section to indicate that the function of the Board is to determine, if conciliation should fail, what services normally provided by employees in the bargaining unit are, in the event of strike action, necessary to be continued in the interest of public security or safety, and the section contains no reference to any power in the Board to designate the duties of employees necessary in the interest of the safety or security of the public during a strike.