Date: 20110629

File: 561-02-413 and 427

 

Citation: 2011 PSLRB 87

Public Service Labour Relations Act

Before the Public Service Labour Relations Board

Between

 

Glyn Merriman AND UNION OF CANADIAN CORRECTIONAL

OFFICERS - SYNDICAT DES AGENTS CORRECTIONNELS DU CANADA

(UCCO-SACC-CSN)

Complainants

 

and

 

THeresa MAcNeil AND corinne justason

 

Respondents

Indexed as

Merriman v. MacNeil

In the matter of complaints made under section 190 of the Public Service Labour Relations Act

Before: John J. Steeves, Board Member

For the Complainants: Marie-Pier Dupuis-Langis, UCCO-SACC-CSN

For the Respondents: Michel Girard, counsel

Heard at Abbotsford, British Columbia,

May 4 and 5 2011.

REASONS FOR DECISION

Complaint before the Board

[1] There are two complaints on behalf of two complainants, Glyn Merriman and his employee organization, UCCO-SACC-CSN ("the employee organization"). The respondents are Theresa MacNeil, Deputy Warden of Mission Institution at the material times, and Corinne Justason, Acting Warden at the time.

[2] The complainants allege that the respondents committed an unfair labour practice when they directed that Mr. Merriman could not telephone anyone at work while he was off-duty, except by first contacting a senior member of management. This included any contact with representatives of the complainant’s employee organization, UCCO-SACC-CSN, who might be at work. The respondent's direction to Mr. Merriman was a violation of section 185 of the Public Service Labour Relations Act ["the Act”], according to the complainants.

Positions of the parties

[3] The complainants challenge a letter given to Mr. Merriman during a meeting with one of the respondents, Ms. MacNeil, on August 27, 2009. It said, among other things: “You are not to telephone anyone at the institution other than the Warden or the Deputy Warden.” This was intended to include representatives of the employee organization who might be at work. Mr. Merriman and his representative questioned why this direction was given and the answer they received from the Deputy Warden was that she was only following orders. The complainants allege that there was an unfair labour practice contrary to the Act.

[4] By way of remedy, the complainants seek the following: a declaration that the respondents violated the Act; a public posting of the Public Service Labour Relation Board’s ("the Board") decision; an order from the Board directing the respondents to cease interfering with the employee organization's representation of its members; an order amending the August 27, 2009 letter to allow Mr. Merriman to contact his representative at work; and a written apology to Mr. Merriman and his representative, Allan Serdar.

[5] The respondents submit that there has been no violation of the Act. It is agreed that the letter of August 27, 2009 was given to Mr. Merriman at the meeting on that day and that it directed him not to telephone anyone at the institution other than the Warden or Deputy Warden. This included representatives of the employee organization, although this was subsequently allowed in November 2009. According to the respondents, this direction was justified and necessary because of concerns about the mental fitness of Mr. Merriman. The basis of these concerns included complaints from other employees and from a representative of the employee organization. The respondents seek the dismissal of the complaints.

Summary of the evidence

[6] The employer is the Correctional Service of Canada. It operates a number of correctional facilities across Canada and the events giving rise to these complaints took place at Mission Institution in British Columbia . Mr. Allan Serdar is the president of the local membership of the employee organization at Mission Institution. He testified that the employee organization represents its members in a variety of matters, including discipline, and that it also participates in a number of joint committees involving the employer and the employee organization.

[7] The employee organization has a small trailer outside the Mission Institution that serves as its office. Mr. Serdar explained that the office has a phone line but it is “dead” and the fax machine does not work. He has a cellular phone and members can phone him at that number when he is off-duty. For example, Mr. Merriman had Mr. Serdar’s cell phone number prior to the events giving rise to these complaints and he used it to communicate with Mr. Serdar.

[8] When members of the employee organization are off-duty, they sometimes contact their representatives at work at the Mission Institution. Members can telephone the switchboard and the call will be directed to the main control post. At the main control post there will be someone who would “usually” know if a representative was working and where he or she was working, as Mr. Serdar put it. Representatives such as Mr. Serdar are generally available, except when they are performing certain duties where security is an issue. For example, when they are escorting inmates, representatives of the employee organization are not available.

[9] Mr. Merriman is employed as a correctional officer II at Mission Institution and has been an employee since 1997. About mid-July 2009, there was an incident involving Mr. Merriman and an inmate. The details of that incident are not relevant to the complaints before me, but ultimately, Mr. Merriman was given an administrative sanction for his conduct. That incident and any sanction against him are not part of the complaints before me.

[10] Ms. Justason, one of the respondents, was the Acting Warden at Mission Institution starting in early August 2009. She testified that she learned that the employer was concerned about a “potential culpability issue with regards to the state of mind of Mr. Merriman” and that there were concerns about "potentially suicidal thoughts" by him. Before considering discipline, a decision was made to proceed with an assessment by Health Canada . According to Ms. Justason, the employer “felt it was appropriate to deal with that issue first.” Ms. Justason explained in her evidence that various discussions took place at a high level and that it was decided that a meeting with Mr. Merriman was necessary. The meeting took place on August 27, 2009 and in attendance were Mr. Merriman, Mr. Serdar and Ms. MacNeil, the Acting Deputy Warden, and Ms. Joy Burke, the chief human resources advisor for the employer. A letter of the same date was given to Mr. Merriman at the meeting. It was signed by Ms. MacNeil and reads as follows:

Referral to Health Canada

I am hereby advising you the disciplinary process regarding your inappropriate comments to Inmate [name deleted], is being held in abeyance pending a completion of a Fitness To Work Evaluation with Health Canada. We believe you pose a possible risk to yourself and others.

Effective today, you are not to enter any CSC premises without the permission of the Warden or their representative.

You are not to telephone anyone at the institution other than the Warden or the Deputy Warden.

You will be on administrative leave during this period, providing you continue to cooperate with the Health Canada Assessment process.

[Emphasis added]

 

I have underlined the third paragraph because it is the focus of the complaints in this case.

[11] Mr. Merriman testified that he had no previous notice of the meeting and that he did not otherwise know what it was about. He was flabbergasted by the letter and the meeting was a shock to him because he had just returned to work from his administrative leave and he was “... extremely glad to be back at work.” As well, he was working at a position at the main gate of Mission Institution and he enjoyed that work very much. He testified that he said to Ms. MacNeil and Ms. Burke, “... how could this be happening again, everything is fine.” To this, according to Mr. Merriman, Ms. MacNeil said that she could not tell him because she was “... following the orders of my boss.” Ms. MacNeil was “very explicit” (again, according to Mr. Merriman) that he was not to call Mission Institution unless he called the Deputy Warden "or higher" first. Only after making the call to the Deputy Warden or a person with higher authority could Mr. Merriman talk to a shop steward. Mr. Merriman testified that both he and Mr. Serdar asked why Mr. Merriman could not contact a shop steward and they were told by Ms. MacNeil that she was just following orders.

[12] Mr. Serdar also testified about the August 27, 2009 meeting and he agreed with Mr. Merriman that Ms. MacNeil said that Mr. Merriman was not allowed to telephone anyone except a Deputy Warden or higher. Mr. Serdar said at the meeting that, as Mr. Merriman's representative, he had to contact Mr. Merriman but Ms. MacNeil replied that she was following orders, that her “hands were tied” and that the letter was not negotiable. He also said, there was "...a lot of back pedalling” by the people representing the employer at this meeting.

[13] Ms. MacNeil testified about the meeting. She explained that she gave Mr. Merriman a copy of the August 27, 2009 letter and that she read it out to him. She asked whether Mr. Merriman had any concerns and she asked him if he wanted clarification about the direction not to telephone the institution. According to Ms. MacNeil, she said to Mr. Merriman that the direction was that he could only call a Warden or a Deputy Warden and that “we would make sure he was connected” to anyone Mr. Merriman wanted to contact. This included a representative of the employee organization. Ms. MacNeil did not testify and she was not cross-examined about whether she said something like she was "just following orders" or "my hands are tied."

[14] The August 27, 2009 meeting ended with, according to the complainants, the employer being adamant that Mr. Merriman had to contact the Warden or Deputy Warden before contacting his employee organization representative at work. However, in an email dated November 5, 2009, the Warden at that time advised Mr. Merriman that he could contact Mr. Serdar “via telephone,” as well as a human resources advisor of the employer.

[15] The two complaints in this case are dated October 1, 2009. Each alleges that, among other things, the respondents were "... clearly abusive ..." and that the circumstances of the complaints ". . . demonstrate interference in the representation of employees and an attempt to restrain Mr. Merriman from seeking union representation." Again, the complainants are Mr. Merriman and the employee organization; the respondents are Ms. MacNeil and Ms. Justason.

[16] The assessment by Health Canada , referred to in the August 27, 2009 letter, took place in early 2010 and a letter from Health Canada , dated February 11, 2010, said that Mr. Merriman was "receiving appropriate medical treatment." It also advised that Mr. Merriman was fit to work without any restrictions and that he did not have any medical condition to “. . . explain his inappropriate behaviours in the workplace.” The letter from Health Canada was sent to the human resources department of the employer with a copy sent to Mr. Merriman.

Reasons

[17] As above, the complainants allege that the respondents violated section 185 of the Act and that they committed an unfair labour practice when Mr. Merriman was directed in the August 27, 2009 letter ". . . not to telephone anyone at the institution other than the Warden or the Deputy Warden." There is no dispute that this direction was intended to apply to telephone calls that Mr. Merriman might have wanted to make while off-duty to a representative of the employee organization who was at work, such as Mr. Serdar. The email of November 5, 2009 indicates that, as of that date, Mr. Merriman was permitted to contact his representative, Mr. Serdar at work using the employer's telephone system. Therefore, the period from August 27, 2009 to November 5, 2009 is at issue.

[18] Section 185 of the Act states that an unfair labour practice is anything prohibited by subsection 186(1) or (2) and other provisions of the Act. The relevant parts of section 186 are as follows:

186. (1) Neither the employer nor a person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall

(a) participate in or interfere with the formation or administration of an employee organization or the representation of employees by an employee organization; or

. . .

(2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall

. . .

(c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from

. . .

(iii) making an application or filing a complaint under this Part or presenting a grievance under Part 2.

 

[19] The complainants allege that the respondents violated both paragraphs 186(1)(a) and subparagraph 186(2)(c)(iii) of the Act.

[20] With regards to paragraph 186(2)(c) of the Act, I am unable to find that the circumstances of the complaints in this case involve an application or complaint within the meaning of that provision. Those terms have meanings specifically related to the Act and there is no evidence that the complainants were intimidated etc. by making an application or complaint under the Act. Therefore, those parts of the complaints that are based on paragraph 186(2)(c) are denied.

[21] Considering the complaints in light of paragraph 186(1)(a) of the Act, they can be characterized as allegations that the respondents interfered with the administration of the employee organization and its ability to represent its members, such as Mr. Merriman. This interference took the form of the direction to Mr. Merriman that he could not telephone his representative at work. The complainants seek an order that the respondents cease and desist this interference, among other things.

[22] One of the two complaints under paragraph 186(1)(a) is made by Mr. Merriman in his individual capacity. The other complaint is made by his employee organization. With respect to Mr. Merriman's complaint, this Board has previously decided that only an employee organization, or a person authorized by it, may file a complaint under that provision (Laplante v. Treasury Board (Department of Industry and the Communications Research Centre), 2007 PSLRB 95, at para 9 and 72). For this reason I deny the complaint made by Mr. Merriman under paragraph 186(1)(a).

[23] I will now proceed with a consideration of the issues that arise in the complaint made by the employee organization, UCCO-SACC-CSN, under paragraph 186(1)(a) of the Act. Henceforth, I am using "complaint" instead of "complaints" and "complainant" instead of "complainants", in all cases referring to the employee organization.

[24] I begin by noting that it is well established and important that confidential communications between a member of an employee organization and a representative of the organization, such as a shop steward, are subject to considerable protection. In one text this is described as follows: "Although shop stewards do not stand on the same footing as legal counsel, arbitrators have ruled that a privilege, akin to solicitor‑client privilege, attaches to communications between grievors and shop stewards . . ." [emphasis added] (Ronald M. Snyder, Collective Agreement Arbitration in Canada, Fourth Edition, 2009, paragraph 6.92; citing, among other authorities, Canada Safeway Ltd. (1984), 21 L.A.C. (3d) 50 (McColl)). The policy reason for this approach is that members of employee organizations should be encouraged to confide in their representatives without the fear that what they say will be used against them in, for example, an arbitration hearing. This is essentially the same reason that is used to protect the confidential nature of solicitor-client and doctor-patient relationships, although the protection afforded communications between officials of employee organizations and their members is not as extensive as it is for the solicitor-client relationship. For example, in Canada Safeway Ltd., the arbitrator declined to protect communications between a union member and his representative because such protection would have resulted in an abuse of the arbitration process.

[25] It goes without saying that this confidentiality operates to restrict access by employers to information arising from the confidential relationship between employee organizations and their members. Therefore, I have little difficulty in agreeing with the complainant that employer interference in confidential communications between employee organizations and their members is objectionable. When an employer interferes with the relationship between an employee organization and one of its members in this way, it does so at the risk of committing an unfair labour practice contrary to the Act. However, I do not agree with the complainant that this conclusion resolves all of the issues arising from this complaint.

[26] The telephone line and fax machine in the local office of the employee organization do not work and it is of some significance that the employee organization has become reliant on the telephone system of the employer to communicate with its members. For example, the evidence is that off-duty correctional officers telephone through to the main control post where they are connected to a representative, if he or she is available. That is what the respondents told Mr. Merriman in the August 27, 2009 letter that he could not do directly. The evidence is also that the employer has acquiesced in this practice in the past and, in November 2009, Ms. MacNeil advised Mr. Merriman that he could contact his representative directly, using the employer's telephone system.

[27] Nonetheless, it is alleged by the complainant that the respondent's decision to deny Mr. Merriman access to the employer's telephone system was an unfair labour practice, contrary to section 185 of the Act. Simply put, the complainant submits that it is entitled to use the employer's telephone system for communicating with its members. This raises the issue of the extent to which employer property is available to an employee organization for the purposes of communicating with and representing its members and whether the use of an employer's telephone system by an employee organization is protected under the unfair labour provisions of the Act.

[28] I note certain provisions in the applicable collective agreement (between Treasury Board and the employee organization, expiry date May 31, 2010) that are relevant here. Clause 9.01(a) requires the employer to make available to the employee organization "[r]easonable space on bulletin boards . . . for the posting of official . . . notices . . ." of the employee organization. This is a common provision in collective agreements that permits employee organizations to have access to what would otherwise be the exclusive property of the employer. Similarly, clause 9.01(b) permits the employee organization to use the employer's electronic network to distribute information to members, with some conditions. Clearly, the objective of these provisions is to create a contractual right that permits the employee organization to use employer property for certain specified purposes. The corollary of these provisions is that, generally, an employee organization does not have the right to use employer property to communicate with its members. Where that right exists it is usually a result of collective bargaining.

[29] I also note clauses 9.02(a) and (b) of the collective agreement state that the employer may provide an office for the employee organization "for its exclusive use" or, if there is no office, the parties will meet ". . . to try to find, if possible . . ." a location for an office. Clause 9.02(c) then states that the employer

. . .

. . . will provide, at no cost to the union, for each office made available to the local union, a desk, chairs, a phone and a phone line. Where the Union chooses to proceed with the installation of a direct line it will be responsible for all installation and user costs. In all instances, long distance costs are the expense of the Union.

 

I am unable to find in this language a right for the employee organization to access the employer's telephone system in any way that is at issue in this complaint. These provisions simply provide for a process whereby the employee organization can obtain office space "if possible" and a telephone line of its own. Alternatively, the employee organization may use a dedicated telephone line of the employer. But that is a much more restricted right than one that permits use of the employer's telephone system generally for the business of the employee organization, as asserted in this complaint.

[30] In my view, restricting how a member contacts his or her employee organization is not the same as preventing any contact at all; a distinction must be made between the communication and the mechanism or medium of the communication. I pause to note that the respondents in this case did not say to Mr. Merriman that he was prohibited from talking to his employee organization at all. Instead, the respondents said that he could not use the employer's telephone system to contact the employee organization except through senior management. In fact, he used alternative methods, such as a cell phone, for the purpose of communicating with Mr. Serdar, his representative. Furthermore, Mr. Serdar participated actively in the meeting of August 27, 2009 and subsequently had extensive dealings with the employer on Mr. Merriman's behalf.

[31] In this case, there is no dispute that the telephone system at Mission Institution is the property of the employer. Nor is there any dispute that, unlike the use of bulletin boards and the employer's electronic network, the employee organization does not have rights under the collective agreement that permit it to use the employer's general telephone system for the purpose of communicating with its members. It follows that it is not an interference in the administration of an employee organization for an employer to decline to pass on a telephone call from an off-duty employee to a representative at work. No contractual provision is relied on for that assertion, and I am unable to find one in the collective agreement. Furthermore, I am not aware of any legal requirement, in the Act or otherwise, that an employer has to provide a medium of communication between a member of an employee organization and his or her representative, and no such requirement was presented to me.

[32] I might add that it is something of an anomaly for an employee organization to rely on an employer for communications between it and its members. It is not difficult to think of situations in which an employer should not know that there is any communication between an employee and an employee organization; for example, an employee/member might be seeking advice about a very personal issue that has not come to the attention of the employer and that should not come to its attention. When communications are made through, for example, the employer's telephone system, there is some risk that they will not remain confidential. It is a matter for the employee organization to decide, but if the objective is to prevent employer interference with, or even knowledge of, communications between an employee organization and its members, it is logical to keep those communications entirely separate from the employer. Again, the telephone system at issue is the property of the employer, it is subject to the control and regulation of the employer and I am unable to find in this case a legal restriction on how the employer uses its property.

[33] I next turn to some other aspects of this complaint that are noteworthy.

[34] It is important to consider the reason for the respondent's decision to restrict Mr. Merriman's access to Mission Institution by telephone. The evidence is that there was an incident involving inappropriate comments made by Mr. Merriman to an inmate. The employer's initial response was a disciplinary one but, as described in the August 27, 2009 letter, it was decided to hold any discipline in abeyance, pending a Fitness to Work evaluation by Health Canada . As described by Ms. MacNeil in the August 27, 2009 letter, the employer believed that Mr. Merriman posed "a possible risk" to himself and others. Her subsequent evidence that Mr. Merriman had "potentially suicidal thoughts" was not contradicted. Furthermore, these concerns were not limited to only the employer's assessment, as evidenced by Mr. Serdar's testimony that the employee organization had also expressed concern to the employer about Mr. Merriman. Ultimately, on February 11, 2010, Health Canada advised the employer, with a copy to Mr. Merriman, that he was fit to return to work immediately, that he was "receiving appropriate medical treatment" and that "[h]e does not have a medical condition to explain his inappropriate behaviours in the workplace."

[35] From this evidence, I conclude that the employer, including the respondents, had a reasonable basis for taking the actions they did in restricting Mr. Merriman's access to Mission Institution in August 2009. They were concerned for the safety and well-being of Mr. Merriman and other employees. It is true that he was ultimately declared fit to return to work, but that was more than five months later and even then he was apparently receiving medical treatment. I do not agree with the complainant that Mr. Merriman was fit to return to work in August 2009. The logic of this finding is that it cannot reasonably be said that the actions of the respondents were motivated by anti-union animus, in full or in part.

[36] There is something of a dispute about what was said at the meeting of August 27, 2009. Mr. Merriman and Mr. Serdar testified that they questioned Ms. MacNeil about the implications of the restriction on Mr. Merriman's use of the phone. That questioning was a reasonable response to the employer's position, as communicated by Ms. MacNeil at the meeting and as described in the letter of August 27, 2009. According to Mr. Merriman and Mr. Serdar, Ms. MacNeil refused to provide any answers to their questions except to say that she was "just following orders." Ms. MacNeil did not testify on this point, she was not cross-examined on it, so it is somewhat difficult to assess what was actually said. There is no question Mr. Merriman and Mr. Serdar were upset and even angry, they were pressing Ms. MacNeil and they may have been trying to get her to agree to things that she could not or would not agree to. Overall, I find that Ms. MacNeil declined at the meeting to provide any more information than was in the August 27, 2009 letter and that she probably deferred to other more senior members of management when she was pressed for answers. I appreciate that this was frustrating for Mr. Merriman and Mr. Serdar, but I cannot find that it was objectionable in the sense of an unfair labour practice under the Act.

[37] The complainant relies on Appendix "G" of the collective agreement. It sets out what is to happen for a disciplinary investigation of an incident involving a correctional officer and an inmate. It is as follows:

REMOVAL FROM DUTIES PENDING THE OUTCOME OF DISCIPLINARY INVESTIGATIONS IN REGARDS TO INCIDENTS INVOLVING OFFENDERS

1. When an employee is to be removed from his regular duties due to an incident involving an offender, the employee may be assigned other duties with pay or removed from his normal work site with pay pending the outcome of the disciplinary investigation provided he fully co-operate [sic] with the conduct of the investigation by attending interviews and hearings without undue delay. A refusal to attend interviews and hearings without undue delay shall result in the interruption of remuneration as long as the investigation has not been completed.

. . .

 

[38] According to the complainant, the employer, including the respondents, should have applied Appendix "G" in August 2009 so that Mr. Merriman was either re-assigned to other duties or removed from his normal work with pay. Instead of these options, he was told that he could not enter Mission Institution or telephone anyone except the Warden or Deputy Warden. In my view, a complete answer to this submission is that, as the August 27, 2009 letter says, the disciplinary process was put in abeyance on that date. Since Appendix "G" applies to a disciplinary investigation it had no application to the events that resulted from the August 2009 letter. The complainant attempted to characterize the situation as one of discipline because Mr. Merriman was off- work, but the evidence is that he was off work for non-disciplinary reasons as of August 27, 2009.

[39] Finally, the complainant relies on section 2(d) of Part I of the Constitution Act, 1982 ("the Charter"). That provision states that "everyone has the following fundamental freedoms," including "freedom of association." Reliance is also made on conventions from the International Labour Organization. For example, there is C98 Right to Organize and Collective Bargaining Convention, 1949, that states, among other things, that workers" . . . shall enjoy adequate protection against any acts of interference . . . in their functioning or administration." The thrust of this submission is similar to the one that is made under section 185 of the Act: the respondents cannot interfere with the administration of the employee organization by restricting Mr. Merriman's right to communicate with his representative. No arbitration, labour board or court decisions are relied on for this submission, there was some evidence on the section 2(d) issue and no evidence from either party on the section 1 issue under the Charter.

[40] In any event, for essentially the reasons discussed above, I do not agree that there was a violation of the freedom of association of the employee organization or Mr. Merriman. The respondents and the employer did not tell Mr. Merriman that he had to cease all communications with the employee organization. Indeed, he communicated with his representative and then he was represented by his representative in meetings with the employer without incident or comment. The respondents and the employer did say to Mr. Merriman that he and the employee organization could not use employer property, such as the telephone system at Mission Institution for communicating with each other. That is consistent with the rights available to the employee organization under the collective agreement and it is not a violation of the freedom of association. Finally, the respondents had a legitimate reason in restricting Mr. Merriman's access to the institution as evidenced by the evidence about his health and concerns from co-workers and the employee organization. Assuming that there was an element of protected freedom of association in the circumstances of this case, that is not an absolute protection and, in my view, the respondent's restrictions on Mr. Merriman's use of the employer's telephone system was based on reasonable grounds of protecting him and other staff.

[41] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

Order

[42] The complaints are dismissed.

June 29, 2011.

John J. Steeves,

Board Member