FPSLREB Decisions

Complaint before the Board

1 The complainant, Imad Joseph Najem, is a parole officer with the Correctional Service of Canada. On November 3, 2010, he filed a complaint under paragraphs 190(1)(b), (d) and (g) of the Public Service Labour Relations Act (PSLRA), alleging that the Public Service Alliance of Canada (“PSAC or “the bargaining agent”), its president, John Gordon, and the Treasury Board (“the employer”) did not bargain in good faith during the last round of bargaining. The complainant specifically alleges that, during collective bargaining, the bargaining agent accepted, under duress, the employer’s proposal to terminate severance benefits. The complainant takes issue with the fact that the bargaining agent failed to consider the particular interests of the Welfare Programs Group (WP) with respect to classification, the organization of the various tables for collective bargaining, the bargaining itself and the ratification process.

2 On December 31, 2010, the employer objected to the Public Service Labour Relations Board’s (“the Board”) jurisdiction to hear this complaint, stating that the part of the complaint that referred to paragraphs 190(b) and (d) of the PSLRA was based on legislative provisions that relate exclusively to obligations between the employer and the bargaining agent that do not provide the complainant a personal right of recourse. As for the part of the complaint that alleged a violation of section 190(1)(g), the employer noted that it was not the subject of this allegation. The employer asked that the complaint against it be dismissed without a hearing. On January 20, 2011, the bargaining agent asked that the complaint be dismissed on the basis that the PSAC had fully complied with its obligations under section 106 and subsection 110(3) of the PSLRA to bargain in good faith and to conclude a collective agreement with a minimum of delay. The collective agreement was negotiated in the best interests of all employees and was fully consistent with the bargaining agent’s constitution.

3 The complainant had initially presented a complaint under paragraphs 190(1)(b), (d) and (g) of the PSLRA. However, in December 2010, after a request for clarification from the Board as to the nature of the complaint under paragraph 190(1)(g), the complainant sent an email to the Board stating that he had “checked two boxes and your inquiry on this box does not appear to relate to my complaint, so please uncheck this box.”. It was this statement on which the PSAC relied to make its submission in January 2011 that the complainant had checked that box in error. The complainant, in his response to the PSAC’s submission, made no effort to refute the PSAC’s conclusion regarding his intentions. Therefore, this decision refers only to paragraphs 190(1)(b) and (d) of the PSLRA.

4 On February 9, 2011, the complainant responded that union members pay dues to the PSAC, and as such, the PSAC should work in the best interest of its members and not give in to pressure by the employer at the bargaining table. The complainant stated that other unions and “even segments within the PSAC” had resisted the employer’s proposal to put an end to the accumulation of severance, and he admonished the PSAC for not having taken the same position.

5 Prior to filing the complaint, the complainant had written to the PSAC to express concern on the tentative agreement. In his response to the complainant on October 29, 2010, Mr. Gordon provided the background that led to the bargaining process that commenced in 2010. In early August 2010, the Treasury Board canvassed the PSAC’s interest in an early return to the bargaining table to allow for better budget planning in an era of budget freezes. The Treasury Board made it clear to the PSAC that, without cost certainty, especially for wages, departments would look elsewhere for savings, most likely wage freezes and significant job cuts. Because of those factors and the difficult economic climate, the elected leadership of the PSAC decided that it was best to engage in early talks that would allow negotiating wage increases and addressing some long-standing priorities of its membership.

6 At the bargaining table, the Treasury Board advanced that a priority of the Minister of Finance and the then-current government was to eliminate the future accumulation of severance pay, paid at resignation and retirement. The PSAC anticipated that, if it did not negotiate that issue immediately, it would likely be imposed by the upcoming 2011 budget, without benefit to its membership. In return for agreeing to eliminate severance pay, the PSAC obtained other key demands, including a wage package of 5.3% over 3 years, an expansion of the number of people eligible for severance pay and a choice of options for that payout. The PSAC also obtained such concessions as better working conditions for term employees, the renewal and expansion of the Joint Learning Program, and improvements to severance benefits in layoff situations, based on seniority. Three of the five bargaining teams reached tentative settlements and presented them for ratification. The complainant is a member of the PA group, one of the groups that did reach a settlement.

7 The complainant opposes the position taken by his bargaining agent at the bargaining table because he views the termination of severance rights as short-sighted and as favouring employees who change jobs often or quit rather than favouring the interests of indeterminate employees. In his view, better wages do not compensate for the longer-term loss of severance benefits. The complainant takes the view that the PSAC did not stand up for its members’ rights but that it caved under pressure from the Treasury Board to agree to its terms.

Reasons

8 The effectiveness of collective bargaining is based on employee association and on the negotiation of terms and conditions of employment for the betterment of all. An individual employee trying to negotiate his or her own working conditions is at a clear disadvantage. In an era in which one worker can substitute for another and in which job functions can be interchanged, individual employees are usually placed in situations in which they must accept the terms of employment being offered or do without their positions. By associating, employees have an opportunity to control the employer’s labour market through the possible use of economic sanctions to obtain more favourable terms and conditions of employment. Said otherwise, negotiation is the means by which competing economic forces communicate and arrive at an agreement. Moreover, the right to negotiate is not the right to achieve a particular bargain but to seek a bargain.

9 Certification is the concept whereby individual workers present a united economic front to their employer. Once certified under the PSLRA, the union has exclusive bargaining rights for all employees. The statutory duty to bargain collectively is based on the exclusivity of the bargaining agent to speak on behalf all the employees of the bargaining unit. In this case, the collective bargaining process that follows certification takes place between two parties; the employer who bargains on its own behalf and the certified bargaining agent on behalf of the members of the bargaining unit. The bargaining agent’s vested right to enter into a collective agreement is absolute. The bargaining agent controls the demands that are put forward to the employer on behalf of the employees of the bargaining unit, the spokesperson at the bargaining table, whether to accept the employer’s proposals and how the terms of settlement will be ratified.

10 Hence the make-up of the bargaining committee is chosen by the union and the bargaining committee may accept terms that were not part of the initial demands and bind the bargaining unit members it represents.

11 The corollary to allowing employees to organize and to bargain collectively to obtain better terms and conditions of employment is that they are restricted from negotiating individually once certification has taken place. That restriction is justified by the greater advantage obtained for the employee group by not permitting individuals to undermine the solidarity of collective action.

12 In the federal public sector, the PSLRA regulates the general scheme of collective bargaining and imposes on the Board the authority to enforce the statute. In exercising its authority, the Board must necessarily act within the confines of the PSLRA when it deals with complaints.

13 Section 67 of the PSLRA provides that, as a result of certification, the certified bargaining agent holds exclusive bargaining rights for the members of the bargaining unit as follows:

67. Certification of an employee organization as the bargaining agent for a bargaining unit has the following effects:

(a) the employee organization has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit;

…

[Emphasis added]

14 Section 106 of the PSLRA provides that parties must make every reasonable effort to conclude a collective agreement, without delay after notice to bargain has been given:

106. After the notice to bargain collectively is given, the bargaining agent and the employer must, without delay, and in any case within 20 days after the notice is given unless the parties otherwise agree,

(a) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith; and

(b) make every reasonable effort to enter into a collective agreement.

15 Section 111 of the PSLRA provides the authority for the Treasury Board to enter into a collective agreement with the bargaining agent as follows:

111. The Treasury Board may, in the manner that may be provided for by any rules or procedures determined by it under section 5 of the Financial Administration Act, enter into a collective agreement with the bargaining agent for a bargaining unit, other than a bargaining unit composed of employees of a separate agency.

16 In addition, the PSLRA provides at section 114, that collective agreements are binding on the employer, the bargaining agent and every employee of the bargaining unit:

114. Subject to, and for the purposes of, this Part, a collective agreement is binding on the employer, the bargaining agent and every employee in the bargaining unit on and after the day on which it has effect. To the extent that the collective agreement deals with matters referred to in section 12 of the Financial Administration Act, the collective agreement is also binding, on and after that day, on every deputy head responsible for any portion of the federal public administration that employs employees in the bargaining unit.

17 Paragraphs 190 (b) and (d) provide for a process to file a complaint, if the employer or the bargaining agent has failed to bargain in good faith:

190. (1) The Board must examine and inquire into any complaint made to it that

…

(b) the employer or a bargaining agent has failed to comply with section 106 (duty to bargain in good faith);

…

(d) the employer, a bargaining agent or a deputy head has failed to comply with subsection 110(3) (duty to bargain in good faith);

The difference between paragraphs (b) and (d) is that (d) refers to situations where the parties are engaged in two-tier bargaining under section 110 of the PSLRA.

18 The legislative provisions of the PSLRA are founded on the exclusive and mutual obligations of the bargaining agent and the employer to engage in collective bargaining with a view to concluding a collective agreement. Consequently, any recourse with respect to the duty to bargain in good faith under paragraphs 190 (b) and (d) lies with these parties and excludes employees represented by the bargaining agent from exercising individual rights to complain about the collective bargaining process. In point of fact, paragraphs 190(1) (b) or (d) preclude the complainant, as an individual member of the bargaining unit, from presenting a complaint before the Board disputing the collective bargaining process, in this case the employer’s offer of expedited collective bargaining to the PSAC, or the results of bargaining that led to the successful conclusion of a collective agreement.

19 Accordingly, the Board is without jurisdiction to hear the complaint.

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

Order

21 The complaint is dismissed.

June 23, 2011.

Michele A. Pineau,
Vice-Chairperson