FPSLREB Decisions

I. Complaint before the Board

1 Gail Hager, Donna Henry and Linda Woods (“the complainants”) allege that their employer removed them from a work assignment because of their membership and participation in the activities of their bargaining agent, the Public Service Alliance of Canada. The issue to be determined in this case is whether the respondent, Statistical Survey Operations (Statistics Canada), committed an unfair labour practice when it changed their assignment.

2 The complaint was filed with the Public Service Labour Relations Board (“the Board”) on June 4, 2008, under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”). The complainants stated the issue in dispute and the corrective action sought as follows:

…

On or about March 28, 2008, the complainants were removed from their duties as part of the Core North Team, performing survey work for Statistical Survey Operations, an agency of Statistics Canada, because of their membership and participation in the activities of the union.

[corrective action]

A declaration that the employer, Statistical Survey Operations (Statistics Canada) has committed an unfair labour practice.

That the complainants be immediately reintegrated to the Core North Team and be compensated for any and all lost wages and benefits.

Any additional remedy deemed appropriate by the Board.

…

3 The respondent (also including at that time “the Minister responsible for Statistics Canada”) objected to the Board’s jurisdiction to consider the complaint. The respondent submitted two grounds for its objection: (1) that the complaint did not reveal a prima facie case that the respondent committed an unfair labour practice, and (2) that Ms. Woods failed to file a complaint within the 90-day limit specified by the Act.

4 In a preliminary proceeding, I asked the complainants to clarify their allegation against the respondent. I summarized the statement made on behalf of the complainants in response to my request in Hager et al. v. Statistics Survey Operations and the Minister responsible for Statistics Canada, 2009 PSLRB 80, as follows:

…

[10]    The complainants indicated that the Statistical Survey Operations created a group, the Core North Team, to conduct survey work in Canada’s north. The three complainants were seasonal employees and were part of that group. They were subject to the collective agreement, had become bargaining agent members and were involved in the bargaining agent’s local executive. In those capacities, they expressed views to the employer about how the collective agreement functions and applies — “… things that strong union members would be known for … all done lawfully.”…

[11]    The complainants explained that they were told, unbeknownst to each other, that they were no longer to be part of the Core North Team. There was strong speculation at that time that their removal from the group was not in keeping with any business plan but was instead driven by the complainants’ membership or activity in the bargaining agent. The employer did not provide the three complainants with a reason for removing them from the team.

[12]    The complainants stated that they have no documentary evidence to establish the reason for their removal from the Core North Team. They had received an indication from a bargaining agent member who was also a manager that “… complaining or pushing too hard on things will put you in a bad place.”

[13]    According to the complainants, they were the most experienced and competent members of the team, and it made no economic sense to remove them from the assignment. It seemed to the complainants that “… union executive members, those who speak and advocate the most …” were affected by the reconfiguration of Core North Team.

[14]    The complainants alleged that there are “indicia” that their bargaining agent activity “… has come back at them.” They are asking the Board to infer that their activity in the bargaining agent was “… at least a consideration.”

…

5 I asked the complainants to indicate the specific provision of the Act under which their allegation fell. They replied that the respondents had discriminated against them as members or officers of an employee organization, contrary to subparagraph 186(2)(a)(i), which reads as follows:

186. (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

(a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

(i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of an employee organization, or participates in the promotion, formation or administration of an employee organization …

6 After hearing arguments, I dismissed the respondent’s objection that the complaint did not reveal a prima facie case for an unfair labour practice. I declined to rule whether Ms. Woods had submitted her complaint in an untimely fashion until I heard further evidence. I issued the following order:

…

[53]    The respondents’ objection to the Board’s jurisdiction to consider the case on the grounds that the complainants have not established a prima facie case for a violation of subparagraph 186(2)(a)(i) of the Act is dismissed.

[54]    A hearing on the merits of the complaint will be convened on dates to be determined by the Registry of the Board in consultation with the parties.

[55]    At the hearing, the complainants will present their evidence on the merits first. Nevertheless, the reverse burden of proof requirement under subsection 191(3) of the Act will apply.

[56]    The respondents’ objection on timeliness in the case of Ms. Woods will be considered as part of the hearing.

…

7 I stated my reasons for ordering the complainants to present their evidence first at paragraph 44 of 2009 PSLRB 80 as follows:

[44]    I accept the respondents’ alternative argument that they face a situation similar to the one described in Gignac where the sparseness of the facts alleged by the complainants made it difficult for the respondents to know in adequate detail the nature of the complaint against which they had to defend. Accordingly, I will adopt the same procedure determined by the adjudicator in Gignac of requiring the complainants to present their evidence first — in effect, to provide the further particulars of their case — before the respondents proceed with their proof. It is nonetheless important to be clear that that procedural requirement does not change the respondents’ burden under subsection 191(3) of the Act.

8 I also ruled that the respondent to the complaint would subsequently be identified only as “Statistical Survey Operations (Statistics Canada)” unless the evidence on the merits established the involvement of “the Minister responsible for Statistics Canada” in the events that gave rise to the complaint.

9 The hearing reconvened pursuant to my order. The parties agreed that they would limit their evidence about the merits of the complaint to the case of Ms. Henry, stipulating that the finding for Ms. Henry would also apply to Ms. Hager and Ms. Woods. I accepted that approach. The parties were also required to address the outstanding issue of the timeliness of the complaint with respect to Ms. Woods.

II. Summary of the evidence

10 I have limited this summary to the evidence that I have found most relevant in considering Ms. Henry’s case as well as the timeliness of Ms. Woods’ complaint. I received considerable additional testimony about the survey work performed by Statistical Survey Operations (SSO), particularly in the Western and Northern Territories Region, about Ms. Henry’s career, and about the experiences of Ms. Hager and Ms. Woods on the Core North Team (CNT). While much of that information is absent from this summary, it provided useful context for my understanding of what happened to Ms. Henry.

11 Ms. Henry was the sole witness tendered in response to my order that the complainants adduce evidence first.

12 Before she was first engaged by the SSO as a part-time interviewer in January 2003, Ms. Henry worked in other positions in the federal government and with the Province of Manitoba. Her assignments, particularly with Parks Canada and the Manitoba Department of Culture, Heritage and Citizenship, provided her with extensive experience in, and knowledge of, northern communities.

13 In July 2003, Ms. Henry acquired indeterminate (part-time) employment status with the respondent. As an indeterminate employee, Ms. Henry worked regularly in 2003 and 2004 on several surveys in the North Kildonan section of Winnipeg, close to her home. Her hours of work averaged between 13 and 17 or 18 per week, keeping her above the 12.5-hour eligibility threshold for employment benefits.

14 After an annual general meeting of the local union held in July 2004, Ms. Henry agreed to serve as its vice-president. The newly established bargaining unit to which she belonged was composed of interviewers and senior interviewers working for the SSO. Its members had recently ratified their first collective agreement. As part of the local executive (on which she remained until October 2009), she was involved in efforts to identify the ongoing concerns of her members. On the basis of a detailed study that she conducted of 53 interviewers in Manitoba, Ms. Henry discovered that they were typically losing thousands of hours of pensionable earnings a year because their authorized weekly hours were set at an artificially low level compared to the actual hours that they worked. She testified that she completed her study “under a cone of silence” because her members felt that their jobs would be in jeopardy if management knew about the study.

15 Ms. Henry testified that her data collection manager (DCM), Carol Yablonski, threatened to fire her or lay her off in November 2004 when she found out about the study. The DCM also disciplined senior interviewers who had contributed information to the study. According to Ms. Henry, the same DCM stated one month earlier at a field interviewers’ conference that interviewers “… had priced themselves out of a job …” because of a recent pay increase, that Statistics Canada was exploring other options to contract out their work and that there would be cuts to the workforce. After her November encounter with the DCM, Ms. Henry complained to the DCM’s supervisor. An investigator assigned by the SSO agreed that Ms. Henry had been subject to unfair treatment. To remove her from a situation that she described as very uncomfortable, the region reassigned her to telephone survey work with respondents in the northern territories.

16 In February 2006, the SSO announced its intention to lay off interviewers across Canada. Ms. Henry received a telephone call from Arlene McCreary, the acting regional program manager, and Bonnie Holte, the regional head of human resources, offering her a position on a new CNT as an alternative to being laid off. She understood that the assignment continued her telephone survey work with northern respondents but that it also required her to conduct field interviews in the north approximately twice per year. Ms. Henry accepted the offer on the day it was made, welcoming it because of her previous love of working in the north.

17 From the beginning, Ms. Henry and Ms. Hager, the Manitoba members of the CNT assigned to surveys for Nunavut, found the work overwhelming because so few interviewers were assigned to complete it and encountered many problems in the field. Ms. Henry provided examples of the problems as follows:

(1) Her DCM arranged air travel on Easter Monday for a trip to the north in April 2006 but said that the travel would be compensated at the straight-time rate rather than at an overtime rate. Ms. Henry called her DCM on behalf of the bargaining agent to explain why it was concerned about the situation. She then called Ms. Holte and the Acting Regional Assistant Director and negotiated a one-time agreement under which the interviewers agreed to fly on Easter Monday at the straight-time rate but not to work once they reached their destinations. Ms. Henry testified that, after the incident, management became much more attentive about scheduling travel.

(2) When her DCM and her senior interviewer cancelled her participation in a trip scheduled for July 2006, Ms. Henry complained to the DCM that the decision was unfair. Her senior interviewer, Shelly Senchuk, then called to tell her that she would be included on the trip. On boarding the flight to the north, Ms. Senchuk said, “I’m going to show you girls what it’s like to work hard.” It was apparent to Ms. Henry that Ms. Senchuk was unhappy throughout the trip because Ms. Henry had complained.

(3) Increasingly, Ms. Henry’s colleague interviewers voiced their concerns about being required to work long hours in the field without receiving their days of rest and without appropriate compensation — concerns shared by Ms. Henry. In her role as a bargaining agent representative, she spoke to the senior interviewer and the DCM about those concerns. She complained that interviewers were expected to work for 14 days before leaving the field to rest and were paid only at the straight-time rate throughout the period. She also identified concerns that management did not provide interviewers with suitable clothing for winter work in the north or adequate safety equipment, such as flashlights and radios. With respect to clothing, Ms. Henry said that she took the issue to management “so many times” that it eventually agreed after two years of representations to provide interviewers with surplus winter gear from the Canadian Armed Forces.

(4) Ms. Henry testified that she spoke frequently with management about issues that her members encountered with the Travel Directive, especially with respect to continental breakfasts. She raised those issues at labour-management consultation committee meetings in Manitoba, as well as the concerns about overtime and safety and health.

(5) At consultation meetings and when representing individual members, Ms. Henry pressed complaints about the assignment of work. For example, she alleged that senior interviewers gave the lion’s share of the work on trips to interviewers who were their friends and that they took work away from interviewers who were not friends when the latter were unable to complete their work in the field.

(6) In January 2008, Ms. Henry faced a requirement to drive at night from Ft. Smith to Hay River using roads in Wood Buffalo National Park, which were frequently blocked by bison. She talked to her senior interviewer who, in turn, called her DCM, by then Chris Preston, to discuss other means of getting to Ft. Smith. He refused to consider other options, saying that “it was a fine time to try to change” the travel arrangements. Ultimately, Ms. Henry, on her own initiative, arranged travel by bus.

18 Ms. Henry recounted that she heard in October 2007 that management was planning changes to the CNT. When Mr. Preston became the DCM in November 2007, she called to introduce herself, to welcome him and to tell him that she wanted to stay on the team. Within days of that conversation, she saw a notice inviting all field interviewers to submit applications to join the CNT. Questioned by the local union about the notice at a consultation meeting, management said that interviewers were originally named to the CNT to avoid layoffs and that that might no longer be the best way to constitute the team. It stated that other interested and available southern interviewers should have an opportunity to join it and that management was considering rotating employees on and off the team to develop a small cadre of skilled and experienced interviewers in anticipation of the 2011 census in the north.

19 At another labour-management consultation committee, Regional Director Gerry Page said that it might be time to consider hiring local interviewers from Inuit communities. When Ms. Henry visited Gjoa Haven, Nunavut, in January 2008, she was astonished to find competition notices for interviewer jobs posted in several locations in the community.

20 Ms. Henry described her trip to Gjoa Haven as the beginning of the end of her career on the CNT. The weather and working conditions on the trip were terrible. On the first day of a week-long wait in Yellowknife before the weather allowed them to fly to Gjoa Haven, she called the regional office for authorization to rent a vehicle to allow her to conduct local interviews in the interim. No one answered her call. She then contacted the acting assistant regional director in Edmonton, who approved the request. According to Ms. Henry, her senior interviewer subsequently reprimanded her for bypassing her and others.

21 After finally reaching Gjoa Haven, it became evident to Ms. Henry that the interviewers could not complete the assigned work in the time available to them. Interviewers in other locations reported the same problem to Ms. Henry. She called Mr. Preston and asked him either to approve an extension to their stay in Gjoa Haven or to authorize overtime work on the Sunday before their scheduled Monday departure. Mr. Preston refused to authorize overtime and told one of the other interviewers that she could choose to work on Sunday but only at straight-time compensation. Ms. Henry called Mr. Preston back, now in her capacity as a bargaining agent representative, and asked him to clarify his instructions by facsimile. He first refused but then agreed when Ms. Henry told him that she intended to take the matter “up the ladder.” Nothing was sent. During a follow-up conversation on Monday, Mr. Preston told Ms. Henry that he would not send written clarification. Ms. Henry then received an email from the Acting Assistant Regional Director instructing interviewers to consult the employee manual or their managers about overtime, rather than Ms. Henry.

22 On March 28, 2010, Ms. Henry received a call from Ms. Preston. He told her that she was off the CNT. He said that management had decided to start rotating interviewers on and off the team. As it turned out, the only interviewers removed from the team were the three complainants. Management named three term interviewers to the CNT in their place. According to Ms. Henry, none of the replacements had the experience in, and knowledge of, the north that the complainants possessed. Two of the new members of the CNT needed a day to reposition to Winnipeg and Saskatoon respectively to fly to the north, increasing costs. Ms. Henry later learned that the workload in the north increased so much in April 2008 that extra help was required. For some interviewers, the workload doubled.

23 Ms. Henry never resumed work with the CNT. Management never asked her whether she was interested in returning to the north. Reassigning her to southern work had a significant impact. Her work hours in the second quarter fell to 128 from 499.75 in the first quarter of the year.

24 When she reflected on what had occurred, Ms. Henry concluded that there was a basis for an unfair labour practice complaint. In her view, management suddenly, over a three-month period, removed three interviewers from the CNT who were active bargaining agent advocates — first Ms. Woods in December 2007, and then Ms. Hager and herself in March 2008. Three other members of the team, also bargaining agent representatives, but who, in Ms. Henry’s view, “did not make waves” with the respondent, remained on the CNT. It was obvious to Ms. Henry that management had decided to change its approach to bargaining agent activists. The result of its decision was that each of the complainants suffered a substantial reduction to her hours of work and consequently to her income.

25 Ms. Henry claimed that colleagues said that management removed the complainants from the CNT because they pushed too hard on overtime issues and that management wanted to make an example of them. There were also rumours of an investigation in which management found things out about the complainants. Although never specified, those rumours damaged the complainants’ reputations. Ms. Henry testified that Ms. Woods and Ms. Senchuk had a conversation in which the latter said that management had succeeded in getting rid of three strong bargaining agent activists and that it was unlikely that they would ever return to the CNT. Ms. Henry also stated her opinion that the rapid deterioration of her relationship with Ms. Senchuk and Mr. Preston in the first three months of 2008 coincided with the complainants’ efforts to encourage other members of the CNT to take a day off if they were not paid overtime in the field. Those efforts convinced three other team members, impacting Mr. Preston’s budget.

26 Other than Ms. Senchuk and Mr. Preston, Ms. Henry maintained that she never had problems in her relationship with management.

27 In cross-examination, Ms. Henry made the following statements about some of the problems that she described in her examination-in-chief: (1) She agreed that management changed her work situation when the investigator found that she had been treated unfairly by Ms. Yablonski and that the acting assistant regional director, Milana Karaganis, was so concerned that she indicated her intention to monitor the DCM’s assignment of work. (2) She agreed that management addressed her concerns when her opportunity to travel to the north in July 2006 was cancelled. (3) She concurred that Ms. Holte and her DCM at that time, Nicole Anderson, helped her resolve her travel problem on Easter Monday 2006. Ms. Henry stated that Ms. Anderson always acted fairly and that she understood Ms. Henry’s bargaining agent role. (4) She agreed that Ms. Karaganis solved her issue in Yellowknife in 2008 by authorizing a vehicle rental.

28 Asked more generally whether management dealt with problems every time she raised them, Ms. Henry answered in the affirmative but indicated that the situation changed in October 2007 when Mr. Preston became her DCM. She agreed that her relationships with everyone in management other than Mr. Preston had been good. She conceded that she never took any steps to talk to Mr. Preston’s supervisors about her problems with him even though her past practice had been to raise concerns with management when necessary. She agreed that she could have approached Ms. Karaganis about her issues with Mr. Preston but that she did not, explaining that issues and conditions in the field from January to March 2008 caused tremendous stress. She testified that, had she stayed on the team, she would have tried to address her concerns, acknowledging nonetheless that she had not handled the situation “in her usual way.”

29 In response to a question about the July 2006 trip and Ms. Senchuk, Ms. Henry described Ms. Senchuk’s comportment as very aggressive and hands on, stating that she made it clear that Ms. Henry was an unwelcome partner on the trip. Pressed on the point, Ms. Henry stipulated that Ms. Senchuk never said that she was unwelcome. Ms. Henry also identified Ms. Senchuk as the person who told her after her removal from the CNT that negative things were being said about her. Ms. Henry acknowledged that Ms. Senchuk was not a member of the management team.

30 Ms. Henry stated her understanding that interviewers on the CNT would only be given northern assignments provided that there was enough work. Ms. Henry agreed that management brought the issue of introducing rotation to the CNT to labour-management consultations and that it provided several reasons for its decision, one of which was to develop a larger pool of interviewers with northern experience. She also recalled discussing at a consultation meeting management’s October 3, 2007 memo to all interviewers (Exhibit R-2), which mentioned the possibility of a cross over of northern and southern assignments.

31 Ms. Henry testified that she was not aware of any provision in the applicable collective agreement that guarantees interviewers minimum or maximum hours of work.

32 Two witnesses testified on behalf of the respondent. The first witness, Ms. McCreary, acted as the region’s program manager for the Computer Assisted Personal Interviewing Program (CAPI) from August 2005 through November 2006. Her substantive position for the previous 16 years was the DCM for Saskatchewan. The respondent’s second witness was Ms. Karaganis, who performed the duties of assistant director, operations, in the same region on an acting basis from August 2007 into 2008. When she completed that assignment, she relocated to Ottawa to accept the position of Assistant Director, Collection Planning and Management Division.

33 Ms. McCreary explained that the SSO is composed of senior interviewers and interviewers hired under the Statistics Act, R.S.C., 1985, c. S-19, on a permanent, part-time basis to conduct interview work by telephone or in person in the field. The SSO is a separate employer. However, the individuals who manage its operations in positions above the ranks of the senior interviewers and interviewers are all public servants and employees of the Treasury Board (Statistics Canada). Senior interviewers who report to DCMs supervise interviewers. (Exhibit R-3, an organization chart for the region, shows nine DCM positions in the region reporting to the CAPI program manager.)

34 The DCMs assign work to interviewers using geography as the main criterion but also consider the training and experience of the individual senior interviewers and interviewers available to perform the work. Headquarters staff in Ottawa determine the volume of work, which varies from feast to famine, depending on the surveys that the clients of Statistics Canada ask it to perform.

35 Ms. McCreary testified that Ottawa informed the region in February or March 2006 that it anticipated a dramatic reduction in the CAPI’s workload, necessitating layoffs of interviewer staff across the country. Based on input from the DCMs about the number of interviewers needed for the remaining work in their respective areas in the south (using geography as the main factor along with training, performance and availability), management developed a list of persons for potential layoff.

36 To perform the required survey fieldwork in the northern territories, managers normally had had to scramble to find interviewers from the south to temporarily deploy to fieldwork in the north. Because of that difficulty, and with the prospect of pending layoffs in mind, the region’s management felt that it was an opportune time to try to identify a dedicated team of interviewers assigned only to northern work. Using the region’s list of persons for potential layoff, it identified individuals for possible appointment to a new eight-position CNT. The proximity of candidates on the layoff list to a major southern airport was an important cost-efficiency consideration in identifying candidates.

37 Ms. McCreary and the region’s head of human resources, Ms. Holte, contacted each candidate for the CNT by telephone to determine his or her interest in being appointed to it as an alternative to layoff. They used a standard set of speaking notes as the script for each conversation (Exhibit R-4). In the telephone call to Ms. Henry, who had been identified as one of the candidates for the CNT, Ms. McCreary stated that she did not deviate from the speaking notes and that she could not recall any further conversation with Ms. Henry about the CNT beyond the content of the script. Specifically, she testified that she did not say anything to Ms. Henry that suggested that the assignment offered to her was permanent because she could not have given that indication.

38 In cross-examination, Ms. McCreary confirmed that the regional director, Mr. Page, and his assistant director, Carole Dunstone, were responsible for the final approval of appointments to the CNT. Ms. McCreary reiterated that the notes that she used (Exhibit R-4) when speaking with Ms. Henry and with the other persons proposed for appointment to the CNT did not mention how long the work on the CNT would last. No guarantee was given about the number of hours of work that would be available beyond the first two quarters, only an indication that there could be an increase in the number of trips to the north if and when the northern workload increased. According to Ms. McCreary, the reference in the speaking notes to the formation of the CNT “on a pilot basis” reflected the fact that it was the first time that the region established a team of interviewers dedicated to conducting interviews with survey respondents in the northern territories.

39 Ms. McCreary reported that all eight persons contacted about the CNT, including Ms. Henry, accepted the assignment. Thus, the CNT initially was composed only of interviewers already working for the SSO who faced layoff as an alternative to accepting that assignment. Asked whether she was aware of any email or document (other than Exhibit R-4) confirming the appointment and the nature of the assignment, Ms. McCreary stated that she did not know of any. When pressed to say that she could have told Ms. Henry that the assignment was permanent, Ms. McCreary insisted that she would not have used those words.

40 As for the assigned workweek (AWW) for interviewers, Ms. McCreary outlined that the DCMs analyze the projected quarterly workload in their geographic areas based on the number and natures of the required surveys. From consultations with survey clients, Ottawa calculates an estimated time per unit (that is, for each interview) for each survey and sets the number of interview cases for each location in the survey sample. When the product of those two values, aggregated across the required surveys in a quarter, is divided by 13 (weeks in a quarter), the DCMs have a working AWW estimate, which they give to the interviewers. However, things can change in a given quarter.

41 Ms. Karaganis’ acting assistant director assignment included supervising the CAPI program within the region of which the CNT was a component. When she began her duties in August 2007, her initial briefings included information about the CNT. She understood that it was a pilot project and that its purpose was to help stabilize the process of finding interviewers for northern work. As a pilot project, the CNT would be reviewed as necessary, depending on workload developments in both the north and the south of the region.

42 Early in her tenure, Ms. Karaganis received estimates from Ottawa for the region for April 2006 to March 2011 that projected a significant increase to the workload (Exhibit R-5). Across the region as a whole, the data suggested that the workload would exceed capacity by winter 2009, with the increases concentrated in Manitoba and British Columbia. For the northern territories, the workload over much of the period was projected to remain stable, with a typical spike in the winter months when a number of special surveys generate extra survey work. Ms. Karaganis noted that the period of relative stability in the north extended to the next “post-censal period” — approximately four months beginning in fall 2011 when substantial survey work would be required to supplement the 2011 general census. The same requirement was evident in the workload data for the period following the last census, conducted in 2006. Beginning in October 2006 for four months, survey requirements had increased by a factor of five (from approximately 1000 interview hours per month to over 5000).

43 When capacity is insufficient to handle the projected work, Ms. Karaganis outlined that management needs to plan the existing workload across the region to ensure that it maximizes assignments per interviewer and that it fully utilizes all interviewers in the region. In some circumstances, it may also have to hire additional staff. In the case of the CNT, its members have substantial prior experience in southern locations. From an efficiency perspective, it makes more sense, where possible, to consider redeploying them to cover shortfalls in their home southern locations rather than hiring new interviewers in the south who would need extensive training, especially if the higher southern workloads are expected to last for an extended period.

44 With respect to the 2011 post-censal requirements in the northern territories, advance planning was also needed. The practice for survey work in general in the north before the CNT’s creation was to send interested interviewers from the south who were available and whose southern workloads permitted temporary northern assignments. From 2004 to 2006, that practice had provided the region with a pool of close to 150 interviewers with northern experience. Management was able to draw interviewers from that pool to handle the special requirements of the 2006 post-censal period.

45 Sometime after the CNT’s creation, management became increasingly concerned that it was losing the pool of experienced northern interviewers and that it would not be able to access sufficient knowledgeable staff to cover the next post-censal period, in 2011. That concern was a significant driver behind the concept of rotating interviewers to perform northern work approved by Mr. Page shortly after Ms. Karaganis’ arrival. He, Ms. Karaganis and Kelly Welsh, the CAPI program manager, decided that it was important to give a fair opportunity to all interviewers in the region to express their interest in, and be considered for, northern assignments. For that purpose, Ms. Welsh drafted and sent a “Notice of Interest” to all interviewers (Exhibit R-1). It stated the following criteria:

…

• Geographic location of rotating South and North team members.
• Performance and experience.
• Be fully available to work days, evenings and weekends as required within the majority of the work occurring in the evenings and weekends.
• Willingness to travel and work in Northern communities for extended periods of time.
• Possession of a valid Driver’s License and use of a vehicle.
• English language is essential.

…

46 Ms. Karaganis recalled that 23 interviewers responded to the Notice of Interest. From that initial group, management reduced the number to “around 10” interviewers based on input about workloads from the DCMs. Because there were staffing difficulties in British Columbia and Alberta, the 10 interviewers came exclusively from Manitoba and Saskatchewan. However, when preparing for the 2008 winter surveys, management determined that the Manitoba and Saskatchewan interviewers were still required to handle workloads in their southern locations. As a result, the region decided to postpone implementing rotations until spring 2008.

47 Initially, regional management planned to use the same criteria outlined in the notice of interest to identify interviewers to be rotated off the CNT. Before the anticipated implementation of rotation in spring 2008, several situations developed in the south for which immediate needs existed to adjust assignments. In November 2007, an assignment became available in Kelowna, British Columbia. Management knew that Ms. Woods had previously expressed in an email her interest in coming off the CNT and returning to a southern assignment in her home area. Therefore, it decided to take Ms. Woods off the CNT to address the workload requirement in Kelowna rather than hire a new interviewer. Ms. Woods received training for her new assignment in Kelowna on December 16 to 18, 2007, as substantiated by her pay claims for that period (Exhibits R-6 and R-7).

48 In winter 2008, an interviewer from the Lac du Bonnet area of Manitoba accepted a two-year special survey assignment that would take her to locations throughout the region. Instead of hiring a new interviewer to take on her Lac du Bonnet workload, management considered reassigning Ms. Hager, who lived in the area, to cover it.

49 During the same period, a Manitoba DCM received detailed plans for 2008 survey work and identified a need to fill another assignment in Winnipeg — in Ms. Henry’s area. Here too, management had the choice of either assigning that work to Ms. Henry or hiring a new interviewer.

50 In sum, by the time management was in a position to go forward with rotation for the CNT in early spring 2008, it had reassigned Ms. Woods to work in her home area and had identified a need for interviewers in the home locations of both Ms. Hager and Ms. Henry. On that basis, it decided to rotate both Ms. Hager and Ms. Henry off the CNT. It also identified another interviewer, Favel Wiens, for rotation off the CNT based on cost considerations, but she subsequently remained on the CNT because there was no work in her home area and no replacement could be found for her.

51 With respect to rotations to the CNT, only 2 persons remained available for rotation from the 10 identified candidates in the south after the DCMs in Manitoba and Saskatchewan further assessed their work requirements in winter 2008. Management offered assignments to the CNT to both interviewers; both accepted. Only one was eventually able to join the team. With four CNT positions to fill at that time (the three complainants and the other interviewer initially identified for rotation off the CNT), management extended its search to include interviewers who had been hired in December 2007 for special survey work in winter 2008. Two of those persons had good performance records during the winter survey season, had expressed interest in the CNT and lived near major southern airports. Management rotated both interviewers to the CNT.

52 The cross-examination of Ms. Karaganis was lengthy. I found that the following points were most relevant:

(1) She reiterated her understanding that the CNT was a pilot project that would be reviewed depending on workload developments.

(2) When projecting a need to plan for a substantial increase in requirements for the 2011 post-censal period in the north, Ms. Karaganis extrapolated from the experience in 2006 when, according to information provided to her, there had been so much work that management was compelled to find extra interviewers to meet requirements.

(3) Concerning the predicted work spike in winter 2009, she testified that the responsible DCMs would have to determine whether the capacity shortfall could be met by increasing interviewer work hours.

(4) She did not personally have knowledge of the years of service and availability of individual interviewers or the number of hours each actually worked. The region depended on the DCMs to factor in such information when they submitted input about how to meet their workloads.

(5) In the specific case of the CNT, Mr. Preston was the DCM responsible for providing information to management.

(6) Mr. Page made the final decision to proceed with rotation for the CNT in March 2008. Ms. Welsh and Mr. Preston gathered information and made recommendations to management about whom to rotate on and off the team. Mr. Page made the decisions on a case-by-case basis using rationales developed by the DCMs and the CAPI program manager for each person.

(7) Ms. Karaganis confirmed that management expected that it might have to hire new staff at times to accomplish the required work. She was not aware whether there were any new hires for northern work in the first half of 2008.

(8) Asked whether she felt that it would be inappropriate for a DCM to consult a senior interviewer before recommending assignments, Ms. Karaganis stated that she did not think so. In the case of the CNT rotation, she said that she did not believe that the DCM consulted a senior interviewer and that, instead, he used the criteria of geography, interviewer availability and performance.

(9) She accepted that employees assigned census work in the north perform better if they have previous northern survey experience.

(10) She had no information about Ms. Hager’s and Ms. Henry’s assignment preferences.

53 The complainants focussed considerable attention on Exhibit R-5, the graphic representation of estimated interviewer hours for the region for the period from April 2006 to March 2011. Ms. Karaganis was not able to identify the person who had downloaded the data used to generate the graphs and could not say with precision exactly when the graphs were created. Challenged to explain why estimates that may have been produced as early as the first quarter of 2006 were not old by the time she arrived in her position in August 2007, she stated that Exhibit R-5 was “produced by normal procedures” and that it was the analysis that was provided to her in August 2007, which she used at that time. She maintained that her use of those data conformed to standard departmental procedures. Ms. Karaganis testified that the number of staff on strength when she assessed the situation was particularly low given the layoffs that had occurred. However, she could not say whether, or to what extent, the shortfall between potential and actual capacity depicted in the graphs reflected the impact of those layoffs; nor was she certain whether the data were generated before or after the layoffs.

54 Ms. Karaganis confirmed that she had seen the September 2006 email in which Ms. Woods asked to come off the CNT and return to assignments in the south. She stated that she could not recall anyone telling her that Ms. Woods subsequently changed her mind.

55 Referring specifically to Ms. Henry, the complainants asked whether another person, Betty Jones, could have taken over the Lac du Bonnet assignment to which Ms. Henry was rotated. Ms. Karaganis stated that she had no personal knowledge of the situation but reported that management accepted Mr. Preston’s recommendation that Ms. Henry lived closer to the assignment location than Ms. Jones. When Mr. Preston communicated the decision to rotate her off the CNT, he reported to management that Ms. Henry did not raise concerns or questions about the decision.

56 In the final stage of the cross-examination, the complainants asked Ms. Karaganis about her knowledge of problems or issues presented by members of the CNT about overtime or safety and health. Ms. Karaganis recalled a situation in October 2007, when Ms. Henry contacted Mr. Preston to approve overtime, which he did. She said that Mr. Preston, newly arrived to the CAPI program, had not understood that only Mr. Page had the authority to approve overtime. Compensation advisors determined that the overtime in question occurred on a day when the interviewer was ineligible for payment. Management had to reverse Mr. Preston’s decision.

57 Ms. Karaganis confirmed that she, Mr. Page and Ms. Welsh knew that the complainants were active in the bargaining agent. She also confirmed that it was common knowledge that the complainants approached management about employment issues. Ms. Karaganis testified that she also encountered other bargaining agent representatives because she sat on the CAPI labour-management consultation committees for each province in the region.

58 The complainants adduced reply evidence through Ms. Woods, Ms. Henry and Louise Granger, an interviewer on the CNT.

59 Ms. Woods testified that, in March 2006, she had to choose between being laid off and accepting an assignment to the CNT. She had never been in the north before but agreed to the assignment to avoid layoff. In September 2006, she faced the actual prospect of a trip to the north for the first time and panicked. She sent an email to Ms. Dunstone, her assistant director, resigning from her position. Within several days or a week, she reconsidered and asked Ms. Dunstone to allow her to withdraw her resignation. Ms. Dunstone agreed and reinstated Ms. Woods to her position on the CNT. Ms. Woods stated that her resignation email to Ms. Dunstone was the only document in which she ever indicated that she wanted to leave the CNT.

60 Ms. Woods indicated that she fell in love with the north. When Mr. Preston advised her in December 2007 that she was needed for work in the south, she felt blindsided. On leaving the CNT, she was assigned to two survey projects, the trucking commodity origin destination survey and the consumer price index (CPI) survey (Exhibit R-6, projects 33060 and 33080).

61 Asked why she filed her complaint at the same time as Ms. Hager and Ms. Henry, Ms. Woods stated that she “put two and two together” and realized that there was a pattern when she spoke with Ms. Hager and Ms. Henry after their removal from the CNT in March 2008. Those conversations made it apparent that they were all being treated the same way.

62 Ms. Henry explained that she received calls from colleagues after Ms. Welsh issued the Notice of Interest in early fall 2007, announcing that management was looking into “… augmenting and/or rotating current staff in and out of the CAPI South team and the CAPI north team” (Exhibit R-1). As the vice-president of her union local, she sought clarification from the regional director and assistant director. The result was the memo of October 3, 2007 (Exhibit R-2). Ms. Henry understood the memo to mean that she could be asked to do survey work in Winnipeg if she did not have an assignment in the north and if she were willing to take on southern duties. She viewed the announcement as a new arrangement because interviewers previously worked only on northern projects or only on southern projects. She interpreted the reference to rotation as reflecting management’s interest in increasing the pool of employees trained in northern work. She expected that people who were rotated off the CNT would have an opportunity to return to northern work in the future.

63 After leaving the CNT in March 2008, Ms. Henry was not given another opportunity to work in the north; nor did she request one. No one else subsequently became a member of the CNT, other than the persons who replaced the complainants.

64 When she returned to southern duties, Ms. Henry contacted Tasha Felix, the responsible DCM, who told her that she was not sure where Ms. Henry was going to work. Ms. Felix indicated that there were interviewers already working in North Kildonan, the north end, The Maples and East Kildonan — areas proximate to Ms. Henry’s home. Ms. Henry concluded that there was no plan to place her in new assignments, a conclusion reflected in a letter subsequently sent to her by Ms. Felix in late June (Exhibit C-5).

65 Ms. Henry’s work hours dropped significantly from April through June 2008 (Exhibit C-4). According to Ms. Henry, she would have lost her employment benefits had the situation continued because she was not meeting the threshold of 12.5 hours per week on average. She explained that management intervened when her situation was raised during collective bargaining and created an artificial assignment over the summer that preserved her status.

66 Ms. Henry outlined that three term employees, hired for a study in the south from January to March 2008, were subsequently sent to the CNT when she and Ms. Hager were removed. She understood that some of the new members of the CNT did not live close to a major airport and that they had to stay overnight in a hotel at management’s expense before leaving from Winnipeg for their northern assignments.

67 Ms. Henry learned of her removal from the CNT from Mr. Preston on March 28, 2008, immediately after attending a conference for interviewers in Winnipeg on March 26 and 27. During the conference, she received her performance appraisal from Ms. Senchuk. It contained a less than fully satisfactory rating based on calculations that, in Ms. Henry’s view, mistakenly portrayed her time and cost per survey unit as too high.

68 Ms. Henry attributed her removal from the CNT to the fact that she had had a number of skirmishes with Mr. Preston about overtime and health and safety issues over the five months that he had been her DCM. She also stated that she had discussed health and safety issues with Ms. Senchuk, as her senior interviewer, who appeared to side with management, despite sitting as a bargaining agent representative on the local health and safety committee. According to Ms. Henry, she was always aware that her bargaining agent activities were putting her at risk of removal from her position.

69 Ms. Granger became a member of the CNT on its inception in 2006 from her base in Winnipeg, where she had been previously worked as an interviewer for many years. She testified that she always enjoyed good relations with her supervisors and managers and that she very much enjoyed her work.

70 Ms. Granger attended the interviewers’ conference on March 26 and 27, 2008. She was sitting beside Ms. Henry and Ms. Hager when the performance appraisals were distributed and heard their explanations of why their appraisals were in error. Because she had travelled with Ms. Henry in the north, Ms. Granger knew that the appraisal wrongly reported work on those trips as having been conducted by telephone and that that error resulted in time- and cost-per-unit calculations that were too high. Ms. Granger recalled that Ms. Senchuk stated at the meeting that all interviewers would have an opportunity to discuss their appraisals before they were finalized. When Ms. Granger talked with Ms. Henry two or three days later, she learned that Ms. Henry had been removed from the team and had been told that the high costs of her work were one reason.

71 Ms. Granger subsequently talked with Ms. Senchuk. She told Ms. Senchuk that it was unfair that Ms. Henry and Ms. Hager had not been given the opportunity to discuss their appraisals before management proceeded with the decision to remove them from the CNT. Ms. Granger reported that Ms. Senchuk told her that the performance appraisals and the issue of costs were not the only reasons for their removal and that “there were other things.” Ms. Senchuk proceeded to say that she “hoped this will teach people not to push so hard when they want something.” Ms. Senchuk’s comment flabbergasted Ms. Granger. She also felt that Ms. Senchuk had to have known that there were errors in the cost calculations reported in the appraisals because Ms. Senchuk had calculated them herself. Ms. Granger indicated that she knew from previous incidents that Ms. Senchuk was completely opposed to the efforts of Ms. Henry and Ms. Hager on behalf of their colleagues to secure a day off after 10 consecutive 12-hour days of work in the field and time-and-a-half compensation for work on Sundays.

72 In cross-examination, the respondent asked Ms. Granger whether it was possible that Ms. Senchuk’s opinion about disagreements with Ms. Henry and Ms. Hager might only be her personal view rather than management’s view. Ms. Granger replied that she had not witnessed how Ms. Senchuk interacted with management and could not speak to the reasons for her comments. She agreed that Ms. Senchuk did not say that management hoped that the removal of Ms. Henry and Ms. Hager from the CNT would teach people a lesson about not pushing too hard.

73 In re-examination, Ms. Granger expressed the view that Ms. Senchuk’s reports to management would have had an impact but that management would see other reports that Ms. Senchuk was not in a position to see. Ms. Granger stated that she could not indicate “how much or for what part” Ms. Senchuk was responsible.

III. Summary of the arguments

A. For the respondent

74 The respondent accepted its burden to prove that, on a balance of probabilities, its actions did not constitute an unfair labour practice; or specifically that the reason for removing the three complainants from the CNT was not anti-union animus. The respondent also acknowledged that it must prove the basis for its preliminary objection that the complaint was untimely with respect to Ms. Woods.

75 The decision of the Federal Court of Appeal in Canada (Attorney General) v. Social Science Employees Assn., 2004 FCA 165 (“Social Science Employees Assn.”), at para 53, confirmed the interpretation of the former Public Service Staff Relations Board that there must be a demonstrated intent on the part of an employer to discriminate on the basis of bargaining agent membership or activity to establish an unfair labour practice (citing Major Foods Ltd. v. R.W.D.S.U., Local 1065 (1989), 7 L.A.C. (4th) 129). Although the Act subsequently placed the burden of proof on respondents, the case law under the former Public Service Staff Relations Act, R.S.C., 1985, c. P-35, remains helpful in demonstrating the types of actions that reveal, or do not reveal, anti-union animus; see, for example, Sabir et al. v. Richmond et al., 2006 PSLRB 118, and Dubreuil v. Treasury Board (Correctional Service of Canada) et al., 2006 PSLRB 20. The case law supports the proposition that no anti-union animus will be found when the actions of management were a reasonable exercise of its rights.

76 The respondent maintains that it took reasonable and logical steps, mindful of operational requirements and costs, when it decided first to create and then to alter the CNT.

77 As established through Ms. McCreary’s testimony, the ultimate decision to create the CNT was made by Mr. Page and Ms. Dunstone, after consultations that included input from DCMs. Their intent was to create a dedicated work team to address what they anticipated at that time would be an increasing workload in the north. In the year following the CNT’s creation, Ms. Karaganis testified that the information collected by Ottawa instead projected a decrease in work in the north, while work in southern locations was to remain steady. On that basis, the respondent revisited the viability of maintaining a dedicated CNT. It also factored in the expectation that there would again be a need for more resources in the north in the 2011 census year. For organizational reasons, the respondent decided to disband the CNT as a dedicated unit and to allow other interested interviewers an opportunity to gain experience in the north so that the SSO would have a prepared workforce to accomplish the increased work anticipated in the census year.

78 Mr. Page, Ms. Karaganis and the DCMs discussed rotating employees off the CNT in late 2007. No senior interviewers were included in those discussions. They identified an immediate need to complete work in the southern areas in which Ms. Henry and Ms. Hager lived. Both interviewers were rotated off the CNT to meet that operational requirement, which superseded other criteria of cost and geographic location.

79 With respect to Ms. Woods, Ms. Karaganis testified that she saw her email indicating that she had concerns and anxiety about travelling to the north and requesting a work assignment elsewhere. Ms. Karaganis saw no other email indicating that Ms. Woods was no longer interested in a southern assignment. From Ms. Karaganis’ perspective, Ms. Woods was available for rotation off the CNT as soon as an assignment in her home area became available.

80 When initially staffing the CNT, the respondent attempted to retain employees rather than laying them off. Later, to insure the completion of work in the south and the training of new individuals for northern work, it decided to rotate employees off the CNT. Its decision was the result of a process that was months in the making and that carefully considered all possible options. Its actions were entirely reasonable and reflected a change in anticipated work.

81 In the case of Ms. Henry, she testified that she had always had a good working relationship with management. Her involvement with the bargaining agent began in 2004, but her rotation off the CNT did not occur until four years later. During those four years, the respondent did not attempt to alter or remove her workload. She remained on the CNT while there was work to be done and was taken off the team only when the respondent felt that she was required elsewhere. During her time on the CNT, her testimony confirmed that, on numerous occasions, she brought overtime and health and safety issues to the respondent’s attention and that it reacted by addressing those concerns satisfactorily. When she left the CNT, the respondent took steps to create an artificial assignment for her when she was in danger of working less than the 12.5-hour threshold for maintaining benefits and bargaining agent status, an action that management would not reasonably have undertaken were it motivated by an anti-union animus.

82 As for the sentiments expressed by Ms. Senchuk, the evidence is clear that she was not part of the team that decided to create the CNT or that later made the decision to rotate employees off it. Ms. Senchuk cannot be considered as acting on behalf of the respondent. She had no authority to do so. The performance appraisals that she wrote had to be signed off by the DCM or at higher levels. While Ms. Senchuk may have been consulted, the DCM was in charge of assigning work.

83 In summary, the respondent undertook a thoughtful, careful and prolonged process to consider the changing workload of employees and the changing needs of the organization. It assigned and reassigned employees based on operational requirements and costs. At every stage, it addressed the concerns expressed by employees and by bargaining agent representatives. As such, the respondent has met its burden of proving that, on a balance of probabilities, there was no anti-union animus underlying its decisions.

84 The respondent referred me to the following decisions about the timeliness of complaints under section 190 of the Act: Cuming v. Butcher et al., 2008 PSLRB 76, Dumont et al. v. Department of Social Development, 2008 PSLRB 15, and Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78.

85 The action or circumstance that gave rise to the complaint in Ms. Woods’ case was her removal from the CNT on or about December 16, 2007. Ms. Woods had been a bargaining agent member and representative for some time. If an anti-union animus operated while she was on the CNT, she should reasonably have known about it in December 2007. The 90-day time limit for submitting a complaint under section 190 of the Act is mandatory and was triggered in this case by the decision in December 2007. The complaint is untimely in her case, and the Board should dismiss it.

B. For the complainants

86 In the case of Ms. Woods, the time limit for submitting a complaint under subsection 190(2) of the Act began on the date that she “… knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.” Ms. Woods testified that she became aware that her removal from the CNT might have been related to her bargaining agent activities when she talked with Ms. Hager and Ms. Henry, also bargaining agent activists, and learned that they too had been rotated off the CNT. When she acquired that knowledge in late March or early April 2008, it triggered her complaint. It transformed a business decision announced in December 2007 into an unfair labour practice because she became aware after talking with Ms. Hager and Ms. Henry that a pattern of anti-union animus was behind the respondent’s decisions.

87 The isolated and solitary nature of the work of field interviewers means that they are often unaware of what happens to other team members. For Ms. Woods, the respondent’s decision in December 2007 to return her to work in Kelowna appeared on its face to be neutral at that time. However, once she knew about the pattern in late March or early April 2008, the real nature of the decision became clear. Her initial removal from the CNT in December 2007 was part of the circumstances that gave rise to her complaint but was not sufficient to trigger the time limit for submitting her complaint. It remained for her to learn what happened to her colleagues before she could be fully aware of the circumstances giving rise to her complaint. On that basis, the time limit for her complaint began in late March or early April 2008. The complaint was filed on a timely basis.

88 Anti-union animus is not typically worn on one’s sleeve. Its existence must be determined based on a pattern of conduct viewed in context. Anti-union animus is revealed when the evidence is considered as a whole or when gaps in the evidence become apparent.

89 To satisfy the reverse burden of proof under subsection 191(3) of the Act, the respondent must adduce sufficient evidence to establish that its decision to remove the complainants from the CNT was for a legitimate business reason. For its part, the Board must assess whether the explanations offered by the respondent were a pretext to disguise an improper decision based on anti-union animus.

90 The complainants offered the following decisions to assist the Board’s analysis: Lamarche v. Marceau, 2005 PSLRB 153 and 2007 PSLRB 18, Perka et al. v. Department of Transport and Treasury Board, 2007 PSLRB 92, Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37, Shaw v. Deputy Head (Department of Human Resources and Skills Development), 2006 PSLRB 125, and Social Science Employees Assn.

91 The complainants submitted that the case law supports propositions such as the following: (1) that comments made about bargaining agent activity, if used for a determination about employment, are sufficient to establish anti-union animus; (2) that a complainant’s bargaining agent activities provide a basis for a finding of a breach of paragraph 186(2)(a) of the Act if the complainant’s employer fails to establish legitimate reasons for a decision; and (3) that context, patterns of conduct and the veracity of an employer’s justifications are all important factors to consider.

92 The complainants submit that the evidence in this case shows clearly that the respondent’s decision was driven by anti-union animus and that the business reasons that it offered for removing the complainants from the CNT were nothing more than a pretext for unlawful actions.

93 There is no dispute that all three complainants were members and representatives of their bargaining agent locals. It is also undisputed that, during the time frame for the respondent’s decision to change the CNT, they pushed hard as bargaining agent representatives on the issues of overtime and days of rest for CNT members. They were vocal, active and well-known to management. Ms. Karaganis testified that she was well aware of their bargaining agent activities. Ms. Henry testified that she contacted Mr. Page to press the respondent to comply with provisions of the applicable collective agreement. It is also clear that all three complainants were competent and experienced field interviewers and that all three were ready and willing to continue to work in the north as CNT members.

94 In that context, it is extremely telling that the complainants were the only individuals removed from the CNT. The rules changed once and only once. When the complainants’ removal from the team was accomplished, there were no other rotations off the team. For the respondent, it was then back to business as usual.

95 What were the stated business reasons for the respondent’s decisions? Ms. McCreary testified that the respondent created the CNT to get work done in the north in a cost efficient and effective manner. When assigning interviewers to the CNT, the respondent considered geography, workload, performance and availability. Team members were to live close to a major airport and were to be sent to parts of the north that were most cost effective, given their home locations. Ms. Karaganis testified that, once workload projections in Manitoba indicated a possible need to reassign interviewers, it was found more efficient to rotate a member off the CNT if there was work in her or his home location than to train an inexperienced person to do that work.

96 What actually happened? There was no work for Ms. Henry in her area in Winnipeg when she was removed from the CNT. Contrary to the stated business reasons, it was neither efficient nor effective to reassign Ms. Henry to southern work when there was little or no work in her area while at the same time new term employees were assigned to the CNT who required training to work in the north. Some of the employees assigned to replace the complainants did not live close to a major airport. Their travel to the north involved extra hotel costs as a result.

97 Even had there been work in Ms. Henry’s area after her removal from the CNT, the question remains why the respondent took her off the CNT, rather than Ms. Granger. Both interviewers shared the same home area, but Ms. Henry, the bargaining agent activist, was removed from the team. The absence of an explanation for the respondent’s choice of Ms. Henry over Ms. Granger is a significant gap in the evidence. There is also no answer from the respondent as to why Ms. Henry was removed from the CNT in March 2008 as opposed to three months later, when work in the south was finally made available.

98 What happened immediately before the respondent’s decision to remove Ms. Hager and Ms. Henry from the CNT tips the balance. Ms. Granger’s evidence confirms that both interviewers received performance appraisals based on inaccurate information that inflated their costs per unit of work. One day after receiving those appraisals, Ms. Hager and Ms. Henry were off the team. Ms. Granger, who was a hard-working employee with a good relationship with management and no axe to grind, confronted Ms. Senchuk about the erroneous information in the performance appraisals. She was flabbergasted to hear her say that she hoped that the decision would teach Ms. Hager and Ms. Henry a lesson not to push too hard on the issues of overtime and days of rest. Ms. Senchuk also, on an earlier occasion, called Ms. Henry and angrily indicated that going over her head to contact Mr. Preston was a performance issue.

99 Ms. Senchuk was Ms. Henry’s supervisor on the ground. She was aware of what was going on, wrote her performance appraisal and was involved in gathering information and making recommendations. Her role was important because no members of the management team were on the ground where the work was actually being done. Although she was not formally a member of the management team, her supervisory duties made her a person who acted on behalf of the respondet vis-à-vis the interviewers for whom she was responsible. Ms. Senchuk was the gateway to more senior management. She was not physically in the room when the respondent decided to rotate interviewers off the CNT, but the information that she provided, tainted by her anti-union animus, must have played a role. The evidence given by Ms. Karaganis was that Mr. Preston was involved in collecting the information on which Mr. Page’s final decisions about the CNT were based. It is simply not credible that Mr. Preston, a new DCM on the job for only five months, would not have relied on the tainted information that came from Ms. Senchuk and would not have passed it on to management.

100 The only three persons ever taken off the CNT were bargaining agent activists. In Ms. Henry’s case, her testimony indicates that she was actively pressing the issues of overtime and work on Sunday during the period leading up to her removal from the team. Those efforts were a problem for the respondent. Taking her off the CNT solved that problem.

101 The only conclusion that can be drawn from the evidence is that the respondent has not met its burden of establishing that it had a legitimate business reason to remove the complainants from the CNT. Instead, its action, understood in context, reveals an anti-union animus. The Board must uphold the complaint.

102 As corrective action, the complainants ask that the Board issue an order declaring that the respondent breached the Act, that it require the respondent to publish and to provide copies of its decision to all members of the CNT, and that it order the parties to work out appropriate payments to the complainants to compensate them for the losses that resulted from their removal from the CNT. For the purpose of resolving any related differences between the parties, the complainants ask the Board to remain seized of the matter for 90 days.

C. Respondent’s rebuttal

103 While the result was the removal of three employees, all bargaining agent representatives from the CNT, Ms. Karaganis testified that the respondent had identified another employee for rotation, Ms. Wiens. When the time came to rotate, no one was available to replace Ms. Wiens.

104 While Ms. Senchuk’s words might reveal an anti-union animus, the respondent reiterated that her views did not reflect those of the management team. She had no authority to reflect sentiments on behalf of the respondent and no decision-making authority. Ms. Karaganis’ testimony confirmed that senior interviewers were not involved in the consultation process that led to the decision to rotate employees off the CNT.

IV. Reasons

A. Preliminary matter — timeliness of the complaint with respect to Ms. Woods

105 The complaint is timely if the action or circumstances that gave rise to it occurred within 90 days of the filing date, June 4, 2008. The Board has repeatedly confirmed that the 90-day filing period for complaints under section 190 of the Act is mandatory and that it may not be varied.

106 The respondent’s objection to the timeliness of the complaint with respect to Ms. Woods rests on the argument that the 90-day period in her case began on or about December 16, 2007, the date on which she learned about her removal from the CNT. The respondent contends that Ms. Woods should have been aware of the existence of any anti-union animus underlying its decision at that time, especially given her prior experience as a local representative of the bargaining agent.

107 The respondent’s position has merit. However, I am persuaded by the complainants’ counter-argument that the specific evidence in this case requires that I understand the circumstances giving rise to the complaint in a different and more nuanced fashion. Specifically, I accept that the essence of the complaint is that the breach of subparagraph 186(2)(a)(i) of the Act applies to the respondent’s decisions about three individual interviewers considered together. The unfair labour practice alleged by the complainants is that they were all bargaining agent activists and that they were all removed from the CNT because of their bargaining agent activities. Even though I have been asked to decide the merits of the complaint based on evidence about Ms. Henry’s experience, the context against which her experience must be assessed inevitably involves the experiences of her two colleagues. The alleged pattern in the respondent’s decision making is essential to the complaint.

108 From that perspective, I am satisfied that Ms. Woods became fully aware of the circumstances that gave rise to her complaint only once she talked with Ms. Henry and Ms. Hager and learned that they shared a common fate. It may be that Ms. Woods ought to have been suspicious about the nature of the decision to return her to work in Kelowna when it was conveyed to her in December 2007. However, the uncontradicted evidence is that only in late March or April did she come to understand that her experience was part of a pattern that might found a complaint. The complaint that she subsequently co-signed was filed within 90 days of acquiring that knowledge.

109 For that reason, I dismiss the respondent’s objection to the timeliness of the complaint with respect to Ms. Woods.

B. Merits of the complaint

110 The complaint requires that I assess the actions of the respondent as a possible breach of subparagraph 186(2)(a)(i) of the Act,which reads, once more, as follows:

186. (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

(a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

(i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of an employee organization, or participates in the promotion, formation or administration of an employee organization …

The allegation placed before the Board by the complainants is that the respondent or a person acting on its behalf unlawfully discriminated against the complainants in their employment by removing them from the CNT because of their membership in, or their activities as representatives of, an employee organization (their bargaining agent).

111 As a matter involving subsection 186(2) of the Act, the reverse burden of proof feature of subsection 191(3) is engaged. It reads as follows:

191. (3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.

112 The respondent maintains that its explanation of the decision to remove the complainants from the CNT proves that it reasonably exercised its authority based on its assessment of operational requirements and costs. In light of subsection 191(3) of the Act, it has the burden to prove that explanation, on a balance of probabilities, in preference to the allegation that it acted with an anti-union animus. As the case law of the Board provides, the absence of such proof, on a balance of probabilities, substantiates the presumption that an unfair labour practice occurred.

113 In my view, both parties effectively argued their respective positions about what occurred in this case. This is clearly not a situation in which the evidence and arguments point overwhelmingly to a ruling. I have no hesitation in saying that I found some of the evidence troubling and suggestive of a work environment in which anti-union animus did indeed play some role at some level. However, the issue is whether the specific decision that I have been asked to assess — the removal of Ms. Henry from the CNT — was a pretext disguising that anti-union animus or was the result of a non-discriminatory analysis of operational needs that did not violate the Act.

114 Cases of this type often involve indirect evidence, an evaluation of context and a search for underlying patterns. Looking behind the stated reasons for a decision to discover whether other factors or influences were actually at play is always challenging. In the charged scenario in which complainants allege that management retaliated against a bargaining agent, its members or its representatives, the task can be particularly difficult.

115 In my opinion, both Ms. McCreary and Ms. Karaganis offered credible testimony on behalf of the respondent that established legitimate business reasons for creating and staffing the CNT and then, later, for rotating interviewers off the CNT. On the basis of Ms. McCreary’s evidence, it is not difficult to accept that implementing the CNT in 2006 was a reasonable exercise of the respondent’s authority and that it staffed the team in a manner that, among other ends, allowed employees such as Ms. Henry to avoid the possibility of lay-off. I accept Ms. McCreary’s testimony that the original offer to Ms. Henry, and to others, of an assignment to a dedicated team did not guarantee permanent work on projects in the north. While Ms. Henry may have felt that to be the case, the balance of the evidence — including Ms. McCreary’s speaking notes (Exhibit R-4) — depict the CNT as a pilot project, indicating that its longer-term viability could or would be assessed as circumstances required.

116 Ms. Karaganis’ evidence outlined the business reasons for considering the option of rotating interviewers on and off the CNT one year later. Once more, I have no basis to challenge the respondent’s decision to alter its approach to resourcing northern survey work as other than a reasonable exercise of its authority. The objective of developing a larger pool of interviewers experienced in northern survey work appears to have been legitimate and neutral. The workload data discussed by Ms. Karaganis (Exhibit R-5) and her explanation of the cyclical nature of census work in the north provided reasonable support for the approach ultimately adopted by the respondent. Even were there good reason to interpret those data differently or to question whether rotation was the appropriate option to address the purported cyclical nature of work in the north, the respondent was well within its rights to alter its staffing strategy for the CNT, or even abolish the team entirely, provided that it did so for motives that did not breach the Act. On balance, I have not found in the evidence anything that would lead me to conclude that the concept of introducing rotation to the CNT was itself a pretext masking other motives.

117 My finding on that point is reinforced by the timeline. The evidence indicates that the decision to introduce rotation was made by Mr. Page, with Ms. Karaganis and Ms. Welsh, by early September 2007 at the latest. There is no evidence that the respondent had identified particular persons for rotation off the CNT at that time. Instead, it developed and published criteria for “augmenting and/or rotating current staff” on and off northern and southern assignments and solicited expressions of interest from interviewers across the western region and northern territories (Notice of Interest (Exhibit R-1)). The Notice of Interest yielded a number of candidates, as outlined by Ms. Karaganis, but the respondent decided to delay implementing rotation until spring 2008, after it determined that the candidates from Manitoba and Saskatchewan were still required to handle winter workloads in their southern locations. All that evidence is undisputed.

118 According to Ms. Karaganis, specific operational requirements arose in the months immediately before the delayed spring 2008 implementation of rotation that precipitated decisions about the complainants’ work assignments. In the case of Ms. Henry, Ms. Karaganis testified that a Manitoba DCM received detailed plans for 2008 survey work and identified a need to fill another assignment in Winnipeg in Ms. Henry’s area. Ms. Karaganis testified that the choice available to the respondent was to assign Ms. Henry to that work or to hire a new interviewer. The respondent chose the former option. The crux of the matter is whether that specific decision was made for legitimate organizational reasons or was due to the operation of an anti-union animus.

119 The respondent notified Ms. Henry about its decision on March 28, 2008. The timing of the decision appears to situate it as part of the wider plan for CNT rotation, delayed from the fall. While it is also possible to view Ms. Henry’s reassignment to work in Winnipeg as a distinct determination based on circumstances that arose independently, there seems little doubt that rotation was commonly understood as the backdrop for the respondent’s decision about Ms. Henry.

120 I have no precise evidence about the analysis of required survey work in Winnipeg that prompted the respondent to reassign Ms. Henry but also no persuasive contrary evidence that there was not a need, at some point, for staff to conduct survey work in the Winnipeg area. The name of the Manitoba DCM who identified the operational needs that ultimately brought Ms. Henry back to her home area is also not in evidence — it could have been Ms. Felix, to whom Ms. Henry subsequently reported. I note that Mr. Preston, the DCM with whom Ms. Henry purportedly had a difficult relationship, was consistently identified as the DCM for the CNT and not as a Manitoba DCM. I must conclude that he was not the person who identified the staffing requirement in Winnipeg.

121 Who made the final decision to remove Ms. Henry from the CNT? If the determination about Ms. Henry was indeed part of the broader decision making about rotation on and off the team — as the evidence on balance suggests — Ms. Karaganis’ testimony provides a specific answer. According to her, Ms. Welsh and Mr. Preston gathered information and made recommendations to management about whom to rotate on and off the team. Mr. Page made the decisions on a case-by-case basis using rationales developed by the DCMs and the CAPI program manager for each person. Ms. Karaganis testified that she did not believe that the DCM responsible for the CNT consulted a senior interviewer as part of the process.

122 Considering the evidence as a whole, I have no reason to question that the nexus of decision-making authority was as described by Ms. Karaganis. As I have stated, her testimony throughout struck me as straightforward and credible. In my view, nothing in her description of the process suggests that the senior representatives of the respondent, who exercised their authority to make and remake the CNT, knowingly acted for other than legitimate business reasons. There is no sign that persons such as Mr. Page, Ms. Welsh or Ms. Karaganis harboured anti-union sentiments or that they acted on such sentiments. The evidence confirms that they were well aware of the bargaining agent activities of Ms. Henry and of the other complainants but not that they drew negative inferences from those activities. Ms. Henry confirmed in her testimony that she had good relationships with more senior management and that her experiences in resolving concerns that she brought to senior management were positive.

123 If I am to find that the respondent’s decisions nonetheless masked anti-union animus, it could only be because the senior decision makers relied on information from other persons whose contributions to the process were tainted by anti-union animus. The evidence offers two possible candidates, Mr. Preston and Ms. Senchuk.

124 Mr. Preston provided input for the decision to rotate Ms. Henry off the CNT, as confirmed by Ms. Karaganis. He did not appear as a witness for the respondent, leaving me to accept as uncontradicted Ms. Henry’s evidence about her troubled relationship with him. A reasonable construction of that evidence suggests that Mr. Preston probably disagreed with, or even disapproved of, Ms. Henry’s continued efforts as a bargaining agent representative to press issues on behalf of CNT interviewers about health and safety, hours of work and overtime. He may well have formed a negative opinion about Ms. Henry because of those representational activities. However, the evidence takes me no further. Mr. Preston’s possible disagreement or discomfort with Ms. Henry’s representations does not necessarily establish that he formed and pursued an active anti-union animus. In my view, it remains conjecture that Mr. Preston could have used his opportunity to provide input to senior management in the period leading up to the implementation of rotation to ensure Ms. Henry’s removal from the CNT as a result of that animus. That possibility exists, but I am not prepared to impugn the respondent’s stated business reasons for reassigning Ms. Henry on that conjectured possibility.

125 The case of Ms. Senchuk is different. I need consider no other evidence than Ms. Granger’s unchallenged testimony about her conversation with Ms. Senchuk in late March or early April 2008 to find that Ms. Senchuk displayed an anti-union animus as Ms. Henry’s supervisor. Ms. Senchuk may have a different recollection of that conversation or give it a different interpretation, but I did not hear from her. As it is, the statement attributed to her that she “hoped this will teach people not to push so hard when they want something” unmistakably reveals a hostile attitude towards the complainants’ representational activities. Other testimony from Ms. Henry about Ms. Senchuk — such as her reaction that “I’m going to show you girls what it’s like to work hard” when Ms. Henry was included on the July 2006 trip to the north after complaining about being left out — lends further credibility to the portrait of Ms. Senchuk as someone who felt antipathy towards Ms. Henry and who probably acted on those feelings. The additional uncontradicted evidence that Ms. Senchuk wrote the performance appraisal for Ms. Henry that, according to Ms. Henry and as confirmed by Ms. Granger, relied on cost calculations that Ms. Senchuk either knew, or should have known, were incorrect, deepens the concern.

126 What impact does the evidence about Ms. Senchuk have on determining the nature of the respondent’s decision to remove Ms. Henry from the CNT? Ms. Senchuk clearly was not part of the formal decision-making process and had no management role or authority. Mr. Preston, who had input into the process and who was Ms. Senchuk’s supervising DCM, might have been exposed to Ms. Senchuk’s views about Ms. Henry. For her part, Ms. Karaganis testified that she did not feel that it would have been inappropriate for a DCM to consult a senior interviewer before recommending assignments but stated her belief that Mr. Preston had not done so in the case of the decision about rotations on and off the CNT. Even were I to assume otherwise (without corroborating evidence), I encounter a problem once more. If it was conjecture that Mr. Preston’s input into the decision-making process about rotations was tainted by some anti-union animus based on his own experience with Ms. Henry, the proposition that Ms. Senchuk’s anti-union animus affected the information that he passed on to senior management — and that that information motivated senior management’s decision — is, if anything, a higher level of conjecture. Here too, I find that it is a step too far to impugn the respondent’s stated business reasons for reassigning Ms. Henry on the basis of conjecture of that type.

127 I turn to the following three other issues that the complainants argued tipped the balance in favour of a finding of anti-union animus: (1) that the decision to remove Ms. Henry did not follow the respondent’s own criteria for rotation; (2) that the only persons removed from the CNT were bargaining agent activists, and (3) that no answer was provided as to why the respondent chose Ms. Henry rather than Ms. Granger for reassignment.

128 The first proposition appears to have two main aspects — that there was no plan for immediate assignments for Ms. Henry when she returned to Winnipeg and that the assignment of new members to the CNT did not conform to the geographic and cost factors outlined in Ms. Welsh’s Notice of Interest (Exhibit R-1).

129 Ms. Felix’s letter to Ms. Henry, dated June 26, 2008 (Exhibit C-5), offered the following explanation for the lack of assignments when she returned home:

…

… As it turned out the timing was not great as it was in between CCHS collection cycles and all cases for the March-April cycle had already been assigned including cases in the area that you were going to be assigned. For that reason we discussed different areas of the city you had previously worked in or were familiar. The goal being to find you an interim workload for the month of April until the new CCHS cycle started at which time you would be given a regular assignment…

…

130 The veracity of Ms. Felix’s written explanation was not directly challenged by the complainants. However, taken together with Ms. Henry’s testimony about her discussion with Ms. Felix about new assignments, there is some reason to question whether the timing of the respondent’s decision to remove Ms. Henry from the CNT made good operational sense. Equally, there are grounds to find that the appointment of replacement members to the CNT was not entirely faithful to the criteria governing rotation decisions expressed in the Notice of Interest (Exhibit R-1). On that point, Ms. Henry’s evidence that one or more of the new CNT interviewers did not live close to a major airport and required an overnight stay before departing for a northern assignment has some relevance.

131 If I accept that the evidence reveals some operational inconsistencies in the respondent’s decision, does that lend substance to the proposition that its stated reasons for rotating Ms. Henry off the CNT were a pretext? On balance, I think not. The respondent decided to proceed with rotation after the winter survey season and, perhaps not incidentally, at the end of the fiscal year. Its choice of timing may not have been uniformly ideal with respect to each interviewer, but the evidence depicting it as contrived or without operational foundation is not strong. Similarly, the respondent’s choice of replacements for the CNT may not have strictly conformed to its published criteria for the rotation process, but Ms. Karaganis provided evidence that only two interviewers remained in the pool of candidates for rotation when it came time to implement the process. Under those circumstances, I do not find it surprising that the respondent departed from uniform adherence to its selection criteria.

132 The argument that the only persons removed from the CNT were bargaining agent activists has two weaknesses. First, Ms. Karaganis provided evidence that Ms. Wiens, who was not an activist, was also identified by the respondent as a candidate for rotation off the CNT. Her unchallenged explanation of the reasons that led the respondent to keep her on the CNT — that there was no work in her home area and that no replacement could be found for her — is consistent with a decision-making process based on operational requirements. Second, Ms. Karaganis testified that, with respect to Ms. Woods, she acted on the belief that Ms. Woods remained interested in a southern assignment, as she indicated in an earlier email. While Ms. Woods’ testimony probably establishes that Ms. Karaganis’ belief was mistaken, I do not believe that it takes me further to infer anti-union animus. The evidence more persuasively links the respondent’s December 2007 decision to return Ms. Woods to Kelowna to the need to fill assignments that were immediately available (Exhibits R-6 and R-7). In her own testimony, Ms. Woods confirmed that she began work on the trucking commodity origin destination survey and the CPI survey on her return after training. Once more, what actually happened appears to have conformed to the business reasons stated by the respondent.

133 I am left with the issue of the absence of an answer to why the respondent chose Ms. Henry rather than Ms. Granger for reassignment to surveys in their common home area. I agree with the complainants that there is a gap in the evidence. However, I find myself unable to determine its significance without knowing more about how the respondent decided Ms. Granger’s assignments.

134 In summary, my analysis has examined a number of areas in the evidence that led the complainants to argue that the respondent’s decision to remove Ms. Henry from the CNT was motivated by an anti-union animus rather than by its claimed business reasons. As I indicated at the beginning of these reasons, there are effective arguments on both sides. Ultimately, my task is to weigh the competing depictions of what occurred to Ms. Henry and to decide whether the respondent has proven its case, on a balance of probabilities, as it is required by subsection 191(3) of the Act.

135 I believe that reasonable persons exposed to the evidence will find some cause to question the motives of one or more of the persons involved in this case, as did the complainants when they decided to bring their concerns to the Board. As I have outlined, for example, there was more than just a suggestion of anti-union animus in the statements attributed to Ms. Henry’s supervisor. Other aspects of the evidence suggest that the respondent’s implementation of staffing solutions was not always fully consistent with its stated criteria for addressing operational requirements. Perhaps most understandably, there remains in the outcome — the removal of three bargaining agent activists from the CNT — the outward appearance of something troubling. However, the ultimate issue is whether, on the balance of all the evidence, and despite the concerns identified by the complainants, the respondent’s version of what occurred remains more persuasive than the proposition that it acted with an anti-union animus.

136 I prefer the respondent’s position. I find that the senior representatives of the respondent who were most closely involved in, or who actually made, the decision to rotate Ms. Henry off the CNT exercised their authority for reasons based on an assessment of the requirements of the operation and of costs. While there may be reason to wonder whether Ms. Henry’s removal from the team, or the timing of her removal, was the best decision in light of operational requirements and costs, it nonetheless was shown on balance to be a legitimate business determination. In my view, the arguments to the contrary were not strong enough to tip that balance. The respondent offered evidence about the nature of its operations and about the factors that it considered when making its decisions that answered the majority of the questions posed on behalf of the complainants to my satisfaction. When a question remained unanswered, I was not convinced that the resulting uncertainty seriously impugned the respondent’s case.

137 In light of the agreement to decide this matter on the basis of the evidence about Ms. Henry’s experience, I rule that that the respondent has proven on a balance of probabilities that it acted for reasons other than an anti-union animus with respect to the complainants.

138 For all of the above reasons, the Board makes the following order:

V. Order

139 The respondent’s objection that the complaint is untimely with respect to Ms. Woods is dismissed.

140 The complaint is dismissed.

June 15, 2011.

Dan Butler,
Board Member