FPSLREB Decisions

The grievance and the facts

1  The Canadian Association of Professional Employees (“the bargaining agent”) presented a policy grievance on June 28, 2012, in which it alleged that Human Resources and Skills Development Canada (“the department”) had violated the Work Force Adjustment Directive (“the WFAD”) in responding to a work force adjustment situation in the Strategic Policy and Research Branch (“the SPR”) of the department. The WFAD is incorporated by reference into the collective agreement between the bargaining agent and the Treasury Board (“the employer”) for the Economics and Social Science Services Group, which had an expiry date of June 21, 2011 (“the collective agreement”).

2 Although six witnesses testified and numerous documents were admitted into evidence, there was little or no conflict in the evidence, and the facts can be summarized quite briefly.

3 The work force adjustment situation arose in the spring of 2012 as a result of budgetary restraint in a branch that had been routinely running salary deficits and that was judged to have a top-heavy structure. Management decided that, in order to address the financial and structural problems in the SPR, it would replace 110 EC-07 and EC-08 positions with 59 new, restructured EC-07 positions. The 110 positions in question were the vast bulk of the EC-07 and EC-08 positions in the SPR (with the positions of a handful of employees who had recently been through a separate work force adjustment situation being excluded from this one). Management chose to accomplish its objective by running a staffing process for the 59 new EC-07 positions, in which all incumbents of the 110 EC-07 and EC-08 positions in question would be invited to participate, with a view to abolishing the 110 old positions once the staffing process was completed. The Public Service Commission was intimately involved in the planning and the administration of this process, as were human resources professionals within the department. The decision to embark on this process was first announced to the employees in question on May 1, 2012, at which time they were also notified that they were “affected employees” within the meaning of the WFAD. The bargaining agent had been given notice on April 25, 2012.

4 By the time this grievance was presented (on June 28, 2012), management had met with the bargaining agent and the employees to discuss the process. Specifically, the department met with the bargaining agent on three occasions in connection with this work force adjustment situation, namely on April 25, 2012, when notification of affected employees was provided to the Association; on April 30, 2012, the date that affected letters were delivered; and on May 23, 2012. The May 23 meeting coincided with a petition presented that same day to management, signed by about 50 employees, which criticized management’s plans. In addition, on or about the same date, the bargaining agent local addressed an open letter to management (Exhibit 4), also criticizing the plans.

5 Exhibit 4 is entitled “What we want: an open letter to the ADM of SPR from the CAPE 514 local executive on behalf of EC employees.” It reads, in part, as follows:

Through the many months of preparation for implementing workforce adjustment, senior management made very little effort to communicate or consult with us, the “human resources” in SPR. As a consequence, as management has revealed its plans during the past few days, many of us have been shocked by what we have heard. We need some real dialogue, and fast, to avoid making the mistrust even worse.

Through formal and informal discussion – at union and management organized meetings and in the hallways – it has become evident the EC staff in SPR (especially those who have received affected letters) want clear information and a cooperative approach from management on at least the following five issues:

(1) Affected employees on maternity leave

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(2) Alternation arrangements and EC 6’s

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(3) Explaining the legal rationale for a process that combines EC7s and EC8s in a single “competition” for EC7 level positions

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4) Supply side alternation strategy in HRSDC

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(5) ADM presence at meetings with affected and opting employees

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We urge the ADM in SPR to respond to these points during an all-staff within the next few days.

6 The assistant deputy minister (ADM) of SPR, to whom Exhibit 4 was addressed, was David McGovern. He testified that he had not seen this document before it was put to him during his cross-examination. However, at the meeting held on May 23, 2012, between management and bargaining agent representatives, the issues raised in Exhibit 4 were discussed, according to Mr. McGovern, since they were essentially the same as those dealt with in the petition presented that day.

7 As for what was discussed on May 23, Brian McDougall, the Vice-President of the bargaining agent’s local, testified that Mr. McGovern was talking mainly about the financial and structural problems that had led to the work force adjustment situation, rather than answering the specific questions raised in both the petition and Exhibit 4. Mr. McDougall concluded that management seemed intent on proceeding with what the bargaining agent representatives viewed as a flawed process, which left the representatives talking among themselves about other possible options. The meeting lasted about one hour, according to Mr. McDougall.

8 Mr. McGovern testified that, at the May 23 meeting, the management team, which included himself and Ms. Marilyn Dingwall, the department’s senior human resources expert, as well as two Directors-General, addressed the “legality” of the selection process, which had been raised in both the petition and Exhibit 4. He testified that, although the bargaining agent had in no way substantiated its claim that the process was illegal, management had looked into the issue before the meeting, and it informed the bargaining agent representatives that the department was completely satisfied that it had the authority to proceed with its plans. The management representatives also spoke about the imperatives of the restructuring process. Mr. McGovern estimated that the meeting lasted about 90 minutes.

9 In addition to the meetings with the bargaining agent on April 25, April 30 and May 23, management held meetings with the affected employees as a group on May 1, 7 and 25.

10 On June 12, the employees were formally invited to compete for the new EC-07 positions. Fifty-eight employees at the EC-07 group and level chose to participate in the staffing process (and to continue in it until its conclusion), as did 17 at the EC-08 group and level. By early September 2012, the staffing process had come to an end, with employees who were successful in the process being appointed to new EC-07 positions and several other employees being given notice of lay-off and “opting letters” under the WFAD. As of the date of the completion of this hearing, all but two of the employees who participated in the staffing process had been appointed to one of the new EC-07 positions or to another position in the public service.

11 The process was a gruelling, onerous one for both employees and managers. Employees expressed frustration not only with the uncertainty surrounding their future employment, but also with what they viewed as an inherently unfair and unduly complex process, lacking in transparency. Several employees and managers suffered stress, and one suffered a heart attack, which they attributed to this work force adjustment situation.

12 The bargaining agent advanced several lines of argument, both in the summer of 2012 and at the adjudication, in support of its claim that the department violated the WFAD in handling this work force adjustment situation. The principal objections to the department’s actions were the following:

• that the staffing process used by the department was a “hybrid” process that was impossible to reconcile with the requirements of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (“the PSEA”), and the WFAD;
• that the department had failed to carry out effective human resource planning, in violation of section 1.1.2 of the WFAD;
• that, in violation of the WFAD’s guarantee of equitable treatment, employees at the EC-07 group and level were put in the position of having to seek letters of reference from their supervisors at the EC-08 group and level, who were themselves candidates in the staffing process;
• that it was unheard of in the public service, as well as being unfair and humiliating, for employees to be required to compete for a position that was at a lower rate of pay than their current position, as happened in the case of the employees at the EC-08 group and level;
• that, in violation of the WFAD, no attempts were made to place the employees at the EC-08 group and level in positions at the equivalent group and level; and
• that, in violation of the WFAD, management failed in its obligation to consult and advise the bargaining agent.

13 In its grievance, the bargaining agent had originally sought, among other measures, an order that the selection process be cancelled. However, in its submissions at adjudication, the bargaining agent dropped its request that the selection process be cancelled, stating that, the process having been completed, it would not be realistic or practical to redo it. Rather, it sought a declaration that the department had violated the WFAD, with the adjudicator to retain jurisdiction on the subject of appropriate relief in the event the parties were not able to agree.

14 In addition to denying all the bargaining agent’s allegations, the employer has objected to the adjudicator’s jurisdiction in this matter. It has argued that the essential allegations in the grievance dealt with staffing issues, which were outside the scope of the Public Service Labour Relations Act (“the PSLRA”), and for which the Public Service Staffing Tribunal was the appropriate forum. To this, the bargaining agent has responded that the “pith and substance” of the dispute was the alleged violation of the WFAD, a subject on which the adjudicator had jurisdiction.

Pertinent provisions

15 The following provisions were referred to by the parties in their submissions.

From the PSLRA:

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113. A collective agreement may not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if

(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition; or

(b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act.

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220. (2) Neither the employer nor a bargaining agent may present a policy grievance in respect of which an administrative procedure for redress is provided under any other Act of Parliament, other than the Canadian Human Rights Act.

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From the PSEA:

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34. (1) For purposes of eligibility in any appointment process, other than an incumbent-based process, the Commission may determine an area of selection by establishing geographic, organizational or occupational criteria or by establishing, as a criterion, belonging to any of the designated groups within the meaning of section 3 of the Employment Equity Act.

(2) The Commission may establish different geographic, organizational or occupational criteria for designated groups within the meaning of section 3 of the Employment Equity Act than for other persons.

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64. (1) Where the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside those portions of the federal public administration named in Schedule I, IV or V to the Financial Administration Act, the deputy head may, in accordance with the regulations of the Commission, lay off the employee, in which case the deputy head shall so advise the employee.

(2) Where the deputy head determines under subsection (1) that some but not all of the employees in any part of the deputy head’s organization will be laid off, the employees to be laid off shall be selected in accordance with the regulations of the Commission.

(3) Subsection (1) does not apply where employment is terminated in the circumstances referred to in paragraph 12(1)(f) of the Financial Administration Act.

(4) An employee ceases to be an employee when the employee is laid off.

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77. (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Tribunal’s regulations — make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of

(a) an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2);

(b) an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal appointment process; or

(c) the failure of the Commission to assess the complainant in the official language of his or her choice as required by subsection 37(1).

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From the Public Service Employment Regulations, SOR/2005-334:

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21. (1) If the services of one or more employees of a part of an organization are no longer required in accordance with section 64 of the Act, the deputy head shall assess the merit of the employees employed in similar positions or performing similar duties in the same occupational group and level within that part of the organization, and identify, in accordance with merit, the employees who are to be retained having regard to the continuing functions of that part of the organization and the remaining employees who are to be advised that their services are no longer required and are to be laid off.

(2) Deputy heads shall record the reasons for the selection of those employees to be retained.

(3) Despite subsection (1), the determination of employees to be laid off in the Ship Repair group in the Department of National Defence shall be based on a combination of merit and seniority factors and shall be made in consultation with the bargaining agents concerned.

(4) Despite subsection (1), if an employee volunteers to be laid off, the deputy head may advise the employee that their services are no longer required and may lay off the employee.

(5) The deputy head shall, in writing, inform

(a) the Commission of the names of the employees who are to be laid off in accordance with this section and the proposed date of the lay-off; and

(b) any employee who is advised that their services are no longer required, of the proposed layoff date.

(6) Subsections (1) to (5) do not apply to an employee who is appointed for a specified period.

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From the WFAD:

General

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Collective agreement

With the exception of those provisions for which the PSC is responsible, this NJC Directive is deemed to be part of the collective agreements between the parties, and employees are to be afforded ready access to it.

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Definitions

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Affected employee (employé touché) – is an indeterminate employee who has been informed in writing that his or her services may no longer be required because of a work force adjustment situation.

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Surplus employee (employé excédentaire) – is an indeterminate employee who has been formally declared surplus, in writing, by his or her deputy head.

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Work force adjustment (réaménagement des effectifs) – is a situation that occurs when a deputy head decides that the services of one or more indeterminate employees will no longer be required beyond a specified date because of a lack of work, the discontinuance of a function, a relocation in which the employee does not wish to relocate or an alternative delivery initiative.

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Part I - Roles and Responsibilities

1.1 Departments or organizations

1.1.1 Since indeterminate employees who are affected by work force adjustment situations are not themselves responsible for such situations, it is the responsibility of departments or organizations to ensure that affected and surplus employees are treated equitably and given every reasonable opportunity to continue their careers as public service employees.

1.1.2 Departments or organizations shall carry out effective human resource planning to minimize the impact of work force adjustment situations on indeterminate employees, on the department or organization, and on the public service.

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1.1.12 Departments or organizations shall advise and consult with the bargaining agent representatives as completely as possible regarding any work force adjustment situation as soon as possible after the decision has been made and throughout the process and will make available to the bargaining agent the name and work location of affected employees.

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1.1.16 Appointment of surplus employees to alternative positions, whether with or without retraining, shall normally be at a level equivalent to that previously held by the employee, but this does not preclude appointment to a lower level. Departments or organizations shall avoid appointment to a lower level except where all other avenues have been exhausted.

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Reasons for decision

16 As noted earlier, the parties made extensive submissions on my jurisdiction in this matter, with the employer pleading that most of the bargaining agent’s allegations were outside of my jurisdiction for a variety of reasons, primarily because they challenged staffing action taken by the department. Given the conclusions I have reached on the merits of the grievance, it is not necessary for me to summarize the parties’ jurisdictional submissions or to express any opinion on them.

17 The principal allegation by the bargaining agent is that the process chosen by the department to effect changes in the SPR did not comply with the PSEA and the WFAD. In particular, the bargaining agent maintains that the department should have followed the SERLO process (“Selection of Employees for Retention or Lay-Off”), the SERLO being provided for in section 64 of the PSEA and in section 21 of the Public Service Employment Regulations. The evidence revealed that a high level of frustration and uncertainty had been created among employees by the department’s plans, which led to stress among the employees, as well as among the managers having to run the process. If the department had complied with its obligations to conduct effective human resource planning to minimize the impact of the work force adjustment situation (as it was required to do by section 1.1.2 of the WFAD), the bargaining agent maintains that it could have achieved its manpower reduction objectives without employees experiencing uncertainty and stress to nearly the same degree.

18 Two of the bargaining agent’s central arguments on the alleged violation of the WFAD are undoubtedly plausible, but, in my view, they do not go beyond that. My reason for so concluding is essentially the same in both cases, namely, the lack of necessary evidence in relation to those allegations. While the Public Service Labour Relations Board has expertise on matters of labour relations, it is not an expert tribunal on all aspects of employment law and practice, such as staffing or human resources planning. These subjects can be presumed to be outside the experience and knowledge of adjudicators. As a result, an adjudicator cannot be expected to decide several of the types of questions raised in the grievance without the aid of certain pertinent evidence, which was not adduced in this case.

19 In particular, the bargaining agent’s central allegation is that the department failed to “carry out effective human resource planning” in this work force adjustment situation, contrary to section 1.1.2 of the WFAD. The parties to the collective agreement must have intended the expression “effective human resource planning” to have some specific meaning. However, I cannot rely on my own intuition, still less on my own research, to determine what, in the context of this grievance, the components or standards of “effective human resource planning” might be, or whether the department’s activities fell short of such standards. The bargaining agent, through its evidence and submissions, did little to elucidate these questions. I should add that, given the language of this provision, it would not have been enough for the bargaining agent to show that the department’s human resource planning could have been more effective, but the bargaining agent was required to demonstrate a failure to carry out any effective planning. On the basis of the evidence presented, it is impossible for me to characterize the department’s human resource planning activities as ineffective.

20 Similarly, the bargaining agent has criticized the department’s decision not to use the SERLO process. The advantages and disadvantages of that process compared to the selected process are not self-evident and were not explained by any witness. Even if this claim comes within my jurisdiction, something that the employer denies, and even if some basis could be found in the WFAD to support the claim that the department should have used the SERLO process, the absence of evidence on that process prevents me from ruling that the department violated the WFAD by not using that process.

21 On the basis of the record in this case, it is thus impossible for me to find a violation of the WFAD in the department’s decisions on the design of the process used to effect a reduction in manpower in the SPR. The bargaining agent has claimed that management made poor decisions in addressing this work force adjustment situation. However, it has not alleged bad faith by the department in any part of the process. While I can fully appreciate the bargaining agent’s dissatisfaction with those decisions, an adjudicator is not equipped, in the absence of some evidence, preferably expert evidence, to resolve a dispute as to whether the department’s decisions complied with “effective human resource planning” practices. The onus was on the bargaining agent to satisfy me that the employer was in breach of the collective agreement, and, in the absence of this evidence, it has failed to discharge that onus.

22 The bargaining agent has also alleged that the department failed to use an equitable process in violation of section 1.1.1 of the WFAD. Its main concern was that EC-07s and EC-08s were all expected to compete for the same jobs, which was unfair both to the EC-07s, who were dependent on their EC-08 supervisors for letters of reference, and to the EC-08s, who were told that, to remain employed, they had to compete in the process for jobs at a lower level than their own. The department has insisted throughout that allowing all the EC-07s and EC-08s in the SPR to participate in the same process was the most equitable way of proceeding. The SPR, according to the evidence, was moving away from using EC-08 positions, as was the rest of the department, and the EC-07 and EC-08 classifications in the SPR had been used inconsistently. To have denied the EC-08s the opportunity of participating in this selection process would have been unfair to them, the department maintains, since their best prospects for continued employment were in the new EC-07 positions.

23 The alleged unfairness, according to the bargaining agent, arose, not from the administration of the process chosen by the department, but from the process itself. The process was described several times in the course of the hearing as “inherently unfair.” As regards the fairness of the process, the onus on the bargaining agent, it seems to me, was to demonstrate that, at a minimum, some other process that would have enabled the department to achieve its manpower objectives would have been, on balance, fairer to employees. It would be unrealistic for me to focus on the process chosen by the department in isolation and dub it as unfair, as if there were some litmus test for fairness. In the circumstances of this case, a finding of a violation of the guarantee of equitable treatment could only proceed from a determination that the department could have achieved its objectives in a manner that would have been on balance fairer to all the affected employees. I heard no evidence that would enable me to make any such determination.

24 The bargaining agent’s next allegation is that the department did not comply with its obligation under section 1.1.16 of the WFAD to “… avoid appointment to a lower level except where all other avenues have been exhausted.” It claims that no attempt was made to place employees classified at the EC-08 group and level in any alternative employment at an equivalent level.

25 The simple and complete answer to this allegation, as the employer has pointed out in its submissions, is that, according to the terms of section 1.1.16, only “surplus” employees are covered by this provision, and, as of the date of the filing of the grievance, the SPR employees were not yet “surplus” employees, merely “affected” employees.

26 The bargaining agent’s final allegation is that the department did not comply with section 1.1.12 of the WFAD, which required it to “advise and consult” with the bargaining agent. The bargaining agent has argued that the words “advise” and “consult” should not be understood as synonymous. It concedes that the department advised it of the work force adjustment situation in accordance with section 1.1.12. However, at the meetings between the bargaining agent and the department, as well as at meetings between employees and the department, answers to questions were not forthcoming from the department, and the department’s decision on how to address the work force adjustment situation was presented as a fait accompli, something that was not up for discussion. Going through the motions in this fashion, according to the bargaining agent, did not satisfy the contractual obligation to consult.

27 In reply, the employer notes that the obligation to advise and consult under the WFAD arose only after the department had decided that the services of certain employees would not be required after a specified date. The obligation was thus triggered shortly after the March 2012 budget. Top officials of the department informed the bargaining agent of the situation on April 25 and 30, 2012, and the employees on May 1, 2012.

28 In my view, it is important to distinguish meetings and communications between management and the affected employees, on the one hand, from those between management and the bargaining agent, on the other hand. Section 1.1.12 of the WFAD, which the department is alleged to have breached, only requires the department to advise and consult with “the bargaining agent representatives.” In particular, I note that the petition addressed to senior management by about 50 employees, delivered on May 23, seeking answers to pointed questions, cannot be considered an initiative by the bargaining agent. Nowhere in the petition was there any mention of, or even allusion to, the bargaining agent, let alone any assertion that the bargaining agent was behind the petition or supported it. It did not purport to reflect a position being taken by the bargaining agent. It opened with the following statement: “We the undersigned EC-07’s and EC-08’s [sic] employees of the Strategic Policy and Research Branch (SPR) at HRSDC want to express our profound disappointment with the unfair and non-transparent ‘process’ adopted by SPR management…” Much of the bargaining agent’s argument about the violation of section 1.1.12 was based on the department’s alleged failure to respond adequately to the petition. However, in my view, since the petition was the initiative of individual employees, rather than of the bargaining agent, no support can be found in it for the alleged violation of section 1.1.12.

29 I should add that a petition by employees would appear to be a strange way for a bargaining agent to engage with an employer. By reason of its status as the certified representative of the bargaining unit, it is authorized to speak and act on behalf of all the employees in the unit. A bargaining agent does not need employees’ signatures on a petition to legitimize any approach it makes to management. In the present case, it also benefitted from section 1.1.12 of the WFAD, which required the department to consult with it.

30 In Canadian Broadcasting Corp. v. Communications, Energy and Paperworkers Union of Canada, [1997] C.L.A.D. No. 554, the arbitrator explained what was meant by a contractual duty to consult. This is what the arbitrator stated at paragraph 113:

… Further, consultation implies, but goes far beyond the mere giving of information. It also implies the willingness to receive counsel and advice in return. It demands that the party with the obligation to consult remain open to suggestions and input before the final decision is made. But it does leave the right to make the final decision with the employer. The right to consult is not the right of veto power. The right to consult does not take away management’s right to make a decision.

31 As is implicit in the passage just quoted, when an employer has a contractual duty to consult, the onus is on the union to raise issues and move the consultation process forward. An employer’s compliance with a provision such as section 1.1.12 of the WFAD is judged by its response to the bargaining agent’s request to meet and discuss the issues under consideration.

32 In the present case, the department received, at most, one request from the bargaining agent to meet and discuss the work force adjustment situation, namely, Exhibit 4, a document that, according to Mr. McGovern, was not in fact received by him. In any event, whether in response to Exhibit 4, to the petition, or to both of them, a consultation meeting between the department and the bargaining agent took place on May 23, 2012. The evidence on what was said at that meeting, summarized earlier in this decision, is somewhat sketchy. However, it is impossible for me to conclude that the employer violated section 1.1.12 by its response at that meeting. The evidence does not satisfy me that the department’s attitude at the meeting was inconsistent with its obligation to listen to the bargaining agent’s comments and to take them into account. Management was certainly entitled to respond firmly, as it did, to the bargaining agent’s claim that the selection process was not authorized by statute or by the WFAD. The evidence, sketchy as it was, did not reveal unwillingness by the department to engage in further discussion with the bargaining agent. I cannot interpret anything management said or did at that meeting as tantamount to closing the door to further discussion, although it did explain its own perspectives. In my view, if the bargaining agent representatives were dissatisfied with what they heard from management at the meeting, they could have followed up, but they failed to do so. While a bargaining agent that encounters a firm approach by management at a consultation meeting is not expected to beat a dead horse, it is also not expected to take “no” as a final answer after a first meeting lasting no more than 90 minutes, particularly when the subject-matter is of such importance to its members. The meeting was barely over, it appears, before the bargaining agent representatives were talking among themselves about pursuing other possible options. While section 1.1.12 of the WFAD did not prevent them from pursuing options other than consultation, they can scarcely complain about a failure by the department to comply with that provision after they had prematurely abandoned the consultations and declared them to be at an impasse.

33 I am therefore unable to conclude that there was any violation of the WFAD.

34 For all of the above reasons, I make the following order:

Order

35 The grievance is dismissed.

September 4, 2013.

Michael Bendel,
adjudicator