FPSLREB Decisions

Heard at Ottawa, Ontario,
June 2 to 4, 2015.

I. Request before the Board

1 The applicant, the Canadian Food Inspection Agency Financial Officer Association (CFOA), seeks, pursuant to section 43 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”or PSLRA), a review and an amendment of the certification order that the former Public Service Staff Relations Board (PSSRB) rendered in Canadian Food Inspection Agency v. Public Service Alliance of Canada, Professional Institute of the Public Service of Canada, Association of Public Service Financial Administrators, Social Science Employees Association, and Council of Graphic Arts Unions, PSSRB File No. 140-32-14 (19971027; “PSSRB File 140-32-14”). The applicant seeks a review of the composition of the bargaining unit represented by the Public Service Alliance of Canada (PSAC), which, pursuant to the PSSRB order, is composed of “all other employees” other than those for which the Professional Institute of the Public Service of Canada (PIPSC) was certified as the bargaining agent. The applicant, through this application, seeks to redefine the bargaining unit by removing the Financial Management (FI) Group from the PSAC bargaining group.

2 The applicant also seeks, pursuant to section 70 of the Act, to have the CFOA certified as the bargaining agent for the FI group formerly represented by the PSAC if the application under section 43 is granted.

3 The respondent Canadian Food Inspection Agency (CFIA) does not oppose or support this application. According to the response filed on its behalf, the CFIA is able to work within the current structure or within one in which the FI group is a separate bargaining agent. The respondent PSAC opposes the application on the grounds that the bargaining unit as currently constructed should not be disturbed without a compelling reason, which the applicant has failed to provide. The PSAC seeks to have this application dismissed.

II. Summary of the evidence

4 On October 27, 1997, the PSSRB rendered its decision on the certification and bargaining rights of the employees of the newly created separate employer, the CFIA. At the time, transitional issues arose, resulting from the creation of a new separate employer and from transferring employees from Part I to Part II of Schedule I to the Public Service Staff Relations Act (R.S.C. 1985, c P-35). The PSSRB determined that the PIPSC should be certified as the bargaining agent for all employees classified in the Veterinary Group, in the Scientific Regulation Group, and in the Agriculture, Biological Sciences, Chemistry, Commerce, Computer Systems Administration, Engineering and Land Survey, Purchasing and Supply, Scientific Research and Economics, Sociology and Statistics Groups. The PSAC was certified as the bargaining agent for all employees who did not fall within the other specified groups. This included the FI group, which had been represented by the Association of Public Service Financial Administrators (APSFA).

5 According to the applicant, since the PSAC was certified in 1997, the number of financial officers working at the CFIA has grown from 6 to 79. The PSAC is not able to provide adequate representation to the FI group, and the community of interest has diverged between the FI group and the other groups comprising the bargaining unit. Before the CFIA was created, the FIs were part of the core public administration. They enjoyed the same pay scales and benefits as the other FIs in the core public administration.

6 Since the CFIA was created, the pay rates for the FIs employed at the CFIA have not kept pace with those of their counterparts elsewhere in the core public administration and have fallen significantly behind other organizations, such as NAV Canada. In the applicant’s opinion, this resulted directly from the failure of the bargaining unit structure under the PSAC to properly represent the FI group. The PSAC has allegedly ignored or failed to respond to the FI group’s needs despite repeated attempts by its members to put forward bargaining proposals that directly affect them. Over successive rounds of collective bargaining, the PSAC has also chosen to negotiate away benefits that the CFIA offered to the FI group in favour of a package more acceptable to the entire bargaining unit, and the PSAC has consistently failed to seek input from the FI group. Moreover, the PSAC has no means by which the FI group may submit its demand requests for consideration as part of the bargaining proposals.

7 Terrence Renaud has been employed as an FI at the CFIA since 2007. He is currently a member of the CFOA executive. He described the FIs’ role at the CFIA as being the stewards of a $700 million budget. They are responsible for preparing and analyzing reports and making recommendations to senior management. They bring money into the CFIA, distribute funding to the branches, track expenditures, work with managers to ensure that they have appropriate funding, monitor accounts and ensure that the CFIA has an appropriate financial risk management framework. With the creation of the Chief Financial Officer (CFO) model, the FIs require post-secondary education, and depending on their classification level, they may also require a professional designation with a recognized accounting regulatory body. When the CFIA declares an emergency, such as during an avian influenza epidemic in the past, it must take immediate action. The FIs are required to ensure that there is appropriate funding sufficient to meet the CFIA’s needs in battling the emergency. The FIs work with program experts to identify needs and ensure that funding is in place to procure the materials needed or make compensation payments to producers.

8 The FIs may be required to supervise members of the Administrative Services (AS) and Clerical and Regulatory (CR) groups as well as lower-level members of the FI group. The education requirements differ significantly between members of the FI group and members of the AS or CR groups. The FI job description contains no duties similar to those of the AS or CR groups.

9 In 2013, an arbitration award was released for the Association of Canadian Financial Officers (ACFO), a bargaining agent representing public service financial officers in the core public administration, listing the details of what the FIs in the core would receive. Mr. Renaud emailed his union representative (Exhibit 4), asking if the PSAC was aware of the award and asking that the PSAC ensure that it included these gains as part of its bargaining proposals for the FI group at the CFIA. He also asked whether a more formal method was in place through which to submit his suggestions. He received a very general response from the PSAC. By the time the ACFO arbitration award was released, the PSAC had made its submissions to the Public Interest Commission (PIC), as negotiations with the CFIA had proved unproductive. Mr. Renaud was of the opinion that it was not too late for the PSAC to raise new issues to be included in the submissions made to the PIC.

10 The FIs’ primary areas of concern that they wished included in bargaining were receiving an increase in vacation entitlements after five years, increased reimbursement for professional dues, payment for continuing professional development courses, replacing marriage leave with vacation and increasing salary rates. The fact that the AS and CR groups were seeking the harmonization of their salary levels was irrelevant to the FI group. From what Mr. Renaud has seen, the role of the AS group is to support the FIs administratively. He stated that he was unaware of their role elsewhere in the organization. The AS group is in the same work environment as the FIs; the General Labour and Trades (GL) and inspector groups are not.

11 Eventually, the PSAC sent a memo to all bargaining group members, to update them on the progress at the bargaining table. Three items were identified as hurdles: reducing the weekly hours of the GL group to 37.5 hours per week from 40, cumulative overtime calculations and wash-up time for meat inspectors. None was relevant to the FI group. When the parties were unable to reach an agreement at the bargaining table, a PIC was appointed. The CFIA refused to accept the PIC report citing the three hurdles.

12 The PSAC began strike preparations. The FIs did not receive that news well; they were not willing to strike over issues, such as wash-up time, which were not relevant to their needs. As a result, the FIs began looking at options to promote their interests, including leaving the PSAC. They created the CFOA, drafted a constitution, elected a board of directors and filed this application.

13 Eventually, the CFIA and the PSAC signed a collective agreement following the 2011 round of bargaining. The FIs were disappointed by the lack of improvements specific to them that had been negotiated. Their opinion was that given the additional educational requirements of their jobs and the level of responsibilities placed on them, they warranted benefits specific to their classifications and jobs beyond paying their professional dues, not just those that other bargaining group members also received. They were looking for something that recognized their differences from the other bargaining group members. Mr. Renaud did not recall other groups beside the FI group and members at the AS-02 level getting anything other than their standard wage increases. The FIs had 2% of their retention allowance rolled into their base salary, which made it pensionable. Improvements to severance, employment transition allowances, and bereavement and family-related leave benefitted all bargaining group members, not specifically the FIs, and merely kept them up with the core public administration.

14 The PSAC’s process to solicit input in preparation for bargaining is also not FI-specific. It is accessible to everyone in the bargaining unit. Even if the FIs submitted a proposal, it would not be supported by the majority of the bargaining group. No formal call was sent out to the FI group seeking input into bargaining proposals. Mr. Renaud checked the bulletin boards in his workplace and found notices that if a bargaining unit member was interested in providing input, he or she should email the PSAC executive.

15 Mr. Renaud never attended PSAC meetings. However, he did participate in the teleconference for the collective agreement ratification vote. He was not aware of the PSAC Facebook page; nor did he subscribe to receive emailed information from the PSAC. He has never contacted the national office to express his concerns with the negotiation of his collective agreement and the PSAC’s representation of the FI group. He has never been involved at the local level; nor have any of the 46 other FIs employed by the CFIA in the National Capital Region. Mr. Renaud was unaware of the PSAC’s constitution and the requirements for the bargaining team’s composition. Marlene O’Neill, the bargaining unit president, responded promptly to his emails about the ACFO arbitration award. Despite everything, Mr. Renaud stated that the union was basically not helping the FIs and that it did not respond to them in a timely fashion.

16 Mark Barney also testified on behalf of the applicant. He commenced work at the CFIA as a CR when he was a co-op student. He was eventually successful in securing a position first as a CR-05 and then as an FI once he had completed his education. As a CR-05, Mr. Barney dealt with mail, data entry and filing. He reported directly to an FI-02. Now, as an FI-02 (acting FI-03), he assigns work to members of the work group, does performance reviews and deals directly with vendors. There is a lot more to being an FI than being a CR or an AS, based on Mr. Barney’s experience in one CR job. The FIs manage agency-wide risk and are not task oriented. The FIs use professional judgement to evaluate and manage risk, while CRs function within a procedure-based work environment where decisions are made above their level. The CRs, ASs and FIs may all work on the same floor, but they do not work together.

17 Like Mr. Renaud, Mr. Barney participated in the ratification vote teleconference. Mr. Barney did ask how to submit demands for the last round of bargaining and was told to speak to Ms. O’Neill, to watch for the call letter and to watch the Facebook page for announcements. (He recently received a call for demands for the upcoming round of negotiations.) He emailed demands for bargaining proposals based on different agreements to Ms. O’Neill, recognizing that many of his proposed demands were not FI-specific.

18 The key to these demands was parity with the FIs in the core public administration. Mr. Barney also proposed that the FIs be excluded from any strike action taken by the bargaining group because the PSAC was talking about striking over something that applied to the 3000 inspectors employed at the CFIA but that had nothing to do with the FIs. At no time did Mr. Barney receive a call letter or a request to provide input in preparation for bargaining.

19 Ms. O’Neill responded to Mr. Barney’s inquiries. She advised him that demands are advanced to the local for review and approval. She invited him to contact her or the local president by phone to discuss his concerns, but Mr. Barney chose not to as he preferred his communication in writing. He admitted that he was never stopped from participating in the bargaining unit. He chose never to attend the pre-annual general meeting in his workplace or the PSAC annual general meeting. He never attended any union meeting other than participating on the ratification phone call.

20 Dan Crabe has been employed with the CFIA since its beginning. Before that, he was with the Department of Agriculture and Agri-Food Canada (“the department”). While with the department, he was represented for bargaining purposes by the APSFA. Mr. Crabe described the introduction of the CFO model and its impact in terms of the financial accountability it imposed on the FI group. Enhancements occurred in the financial management of the budgeting and reporting processes, and a risk-management process was introduced into the FIs’ work. More reporting was required since financial statements now had to be audited. The move to the CFO model began before the CFIA was created.

21 Mr. Crabe also testified concerning his role and that of the FIs when a state of emergency is declared. He admitted that senior ASs at a local level, those at the AS-07 level in particular, do the same type of work as the FIs, to ensure that the managers have the correct financial delegation in an emergency and the flexibility to get the resources needed while respecting financial accountability rules. He confirmed that an AS-07 can do the same work as an FI in an emergency situation. In a non-emergency situation, an AS-07 runs his or her own budget and oversees the finances of his or her area office or lab. Other than the AS-07 level, there is no similarity between the AS group and the FI group, and there is no similarity between the work of a CR and an FI. Mr. Crabe develops the framework within which the CRs work.

22 Mr. Crabe was active within the APSFA and sat on the department’s labour-management committee as the APSFA representative. Once the PSAC was certified as the FIs’ bargaining agent, the PSAC directed him to no longer attend meetings as he was not an elected representative of the PSAC bargaining group at the CFIA. Following his resignation from the committee, Mr. Crabe did not participate with the PSAC. He did seek its assistance to resolve what he felt was a problem with his long-term disability plan, but it advised him that it could not assist him. Mr. Crabe continues to volunteer to audit the component local’s financial statements. He has on occasion participated in the local’s meetings.

23 When the CFIA was created, its employees were required to work a 7.5-hour work day rather than the 6.25-hour work day they had previously worked, without financial consideration. As a result, Mr. Crabe’s pay dropped. The PSAC did not consult its membership on this change. He sent correspondence to Robyn Benson, who at that time was the national president of the component to which the FIs belonged, seeking an agreement reopener to allow the FIs to catch up to the same pay level as the FIs working elsewhere in the public service. He was hoping to gain ground and reduce his union dues but was unsuccessful. The FIs have not been well represented by the PSAC. They were not consulted when the change from the APSFA to the PSAC was ordered. At the very least, if they could no longer be represented by the APSFA, they should have been listed among the groups for whom the PIPSC is the bargaining agent. The FIs have had no voice at the bargaining table, where the greatest emphasis is improving the inspectors’ lot.

24 When asked if he was aware that the number of hours the FIs worked had changed across the public service, Mr. Crabe replied that he was not. He also admitted that he was paid at the regular hourly rate for each extra hour worked as a result of the increase and that he had not in fact gone without compensation as a result; however, he continued to disagree that the FIs were compensated for the increase to their work hours. The rates of pay negotiated when the increase was made were not FI-specific and did not compensate the FIs for the increase to their work hours. Regardless of what increases the FIs received, they did not keep up with those received by the FIs in the core public administration. He was aware that an increase to the FI allowance had been negotiated and that 2% was to be rolled into his base pay for pension purposes. He did not agree that seeking wage parity with the core public administration for all members of the bargaining group was of particular benefit to the FIs. He was aware that advances were made on behalf of the FIs, the inspectors and the AS-02s at the CFIA through negotiations between the PSAC and the CFIA.

25 David Orfald has been employed by the PSAC since 1999. He commenced work as a research officer; his job was to work with the negotiator and the bargaining teams assigned to him. A research officer assists in the process of negotiating a collective agreement, drafts language, develops pay demands, and develops the content of the brief submitted to a PIC or arbitration board. The role involves looking across bargaining units and identifying common issues to be advanced through bargaining. In 2006, he became Director of Planning and Organizational Development at the PSAC. In 2013, he became the director of the PSAC collective bargaining branch.

26 Between the late 1990s and 2000, the Treasury Board, the largest federal public service employer, developed separate agencies. The largest ones are the Canada Revenue Agency, the CFIA and the Parks Canada Agency. Separate agencies negotiate separately from the core public administration and have large bargaining groups composed of a number of occupational groups and classifications. No separate agency can conclude a collective agreement without the approval of the Treasury Board Secretariat (TBS).

27 The PSAC process for collective bargaining is set out in its constitution (Exhibit 22). The roles and responsibilities of the bargaining team, how the teams are created, the rules for the team, the election process for the team, and a step-by-step process for reaching a collective agreement are all set out in this document, which is available on the PSAC website.

28 Stage 1 of the process is the input call, from which the negotiator and research officer put together a program of bargaining demands, which are sent to the component and locals in the bargaining unit for comment. The locals are encouraged to consult with their members and collect ideas for demands. Once the locals have reviewed the demands, the component then reviews and comments. Membership involvement is an essential part of stage 1 of the process since if there is no support at the stage of developing demands, there will be no support when it comes time to vote on a tentative agreement. Demands from minority members of the bargaining group are given full consideration when the proposals are drafted.

29 If the PSAC hears from members that their local is not consulting them, it would raise it with the local president and refer it to the component. The PSAC constitution contains a complaint process to address this type of issue.

30 Stage 2 of the bargaining process is the bargaining conference, at which the bargaining teams are elected from the delegates in attendance. Other delegates are appointed to the team to ensure full representation. Delegates to bargaining are selected to ensure representation by region, classification and equity group.

31 At stage 3 of the process, the bargaining team agrees on the demands to be tabled. The demands are exchanged with the employer, and the negotiating begins. The duration of this part of the process is variable. If the parties reach an impasse, they proceed to dispute resolution. During this stage, updates are provided to bargaining unit members on the PSAC website. Email bulletins are sent to those who have subscribed to receive them, and they contain more information than is posted on the website. Internal communiques are sent to the components, which are to share them with members at local meetings.

32 Stage 4 is the ratification process of the tentative collective agreement. Ratification kits are sent to each member, describing the changes to their collective agreement. Meetings are held, such as the ratification teleconference described by the CFOA’s witnesses, at which the changes are explained. After that, the vote is conducted. If the parties are unable to reach a tentative agreement, a request is sent to the Public Service Labour Relations and Employment Board (PSLREB) to establish a PIC. After the parties receive the PIC report, face-to-face negotiations resume until either a strike is declared or an agreement is reached.

33 In the post-wage-freeze era of 1998, bargaining was conducted for classifications based on what the TBS called “tables.” Many different classification groups were included under one collective agreement. In 1999, the TBS created occupational groups for negotiations, which equated to the tables. In the 1980s, master agreements were negotiated for these tables, which were supplemented by various local agreements of specific application. The occupational groups were created by community of interest and historical affinity while not disrupting the bargaining agents’ representation rights. These occupational groups came into effect once notice of their creation was published in the Canada Gazette. The notice for the creation of the FI group was published in 1999 and went along bargaining agent lines; that is, those employees for whom the APSFA was the bargaining agent. Many community of interest issues did not get addressed by creating bargaining in this fashion. When the CFIA was created, the APSFA declined to intervene or participate in the application brought by the CFIA to determine, among other things, bargaining unit composition and certification.

34 Bonnie Bates is also a PSAC research officer. In her opinion, Mr. Orfald accurately described a research officer’s role and the bargaining process. In January 2014, she was assigned to support the CFIA negotiations. In preparation for the upcoming round of negotiations, she reviewed all the hard-copy archives of notes and materials from previous rounds of bargaining. She also reviewed the digital archive containing the same types of materials. She then identified comparator groups for the similar classifications represented by other bargaining agents.

35 As part of her research officer role, Ms. Bates sent the input call for the 2014 round of bargaining. She also reviewed the input call sent to the membership in February 2011 for the 2011 round of bargaining. Three demands proposed by the FIs were incorporated into the 2014 draft of demands prepared for exchange with the CFIA following the January 2015 bargaining conference.

36 Also as part of her research officer role, Ms. Bates prepared salary comparisons for the groups represented by the PSAC at the CFIA and other federal public service employers. Not only were salaries compared; full compensation packages, including leave and other benefits, were too. She has concluded that the FIs’ rates of pay at the CFIA are a little lower than those FIs for whom the Treasury Board is the employer and those at the Parks Canada Agency, while the wage rates for the Engineering and Scientific Support Group (EG), which is part of the same bargaining unit, are slightly ahead of its counterparts elsewhere.

37 In the proposals exchanged with the employer that she examined, she noted that the PSAC stated that it intended to seek parity between its members employed by the CFIA and their comparators in the core public administration. During negotiations, a more fulsome pay proposal was presented to describe how the PSAC intended to achieve this goal. Ms. Bates did not find a specific reference to FI professional fees, but she did recall seeing a reference to it being discussed in the negotiation notes from the previous round of bargaining. The reason that she did not find a PSAC proposal on the matter was that it had originated with the employer (Exhibit 34).

38 Lori Dulude is currently Manager of Human Resources, Strategic Services, at the CFIA. Before that, she was Manager of Classification Services at the CFIA and has 18 years’ experience classifying federal public service positions. She managed the development of the CFIA “Delegation of Classification Authority” (Exhibit 35), which adopted the Treasury Board’s occupational grouping. She helped develop the CFIA “Organization and Classification Policy” (Exhibit 36). Annex A of that policy defines Occupational Group. The CFIA has not published its occupational group structure in the Canada Gazette; it adopted what the Treasury Board published.

III. Summary of the arguments

A. For the applicant

39 The applicant seeks to have the PSLREB redefine the bargaining unit for which the PSAC was certified in PSSRB File 140-32-14 (as amended). The applicant seeks to have the FI group excluded from the PSAC bargaining group and considered as a group suitable for collective bargaining on its own. The CFIA does not object to this change.

40 The FIs do not share a community of interest with the others in the current bargaining group and have not been satisfactorily represented at the bargaining table. The FIs were included in the current bargaining unit because they fell within the category of all other employees of the CFIA that were not identified for the PIPSC’s representation, which was done by a consent order developed by the PIPSC and the PSAC in the absence of any appearance or representations by the APSFA, which had previously represented the FIs when they worked for the department of Agriculture and Agri-Food Canada. The PSSRB did not analyze the composition or address the community of interest of the groups when it issued the certification order.

41 The applicant bore the burden of providing compelling reasons for disturbing the current bargaining unit structure. The lack of community of interest between the FIs, the ASs, the CRs and other current bargaining group members supports this application. The test for community of interest is set out in Federal Government Dockyard Chargehands Association v. Treasury Board and Federal Government Dockyard Trades and Labour Council East, PSSRB File No. 146-02-278 (19880201), at 14. The test includes the nature of the work performed, conditions of employment, skills of employees, administration, geographic circumstances, and functional coherence and interdependence.

42 The evidence demonstrated that the FIs perform similar duties and have similar responsibilities at the CFIA. Since the introduction of the CFO model, Treasury Board policies on financial management have applied to the CFIA as has the FI-to-CFO career path, which outlines the qualifications and required education for each step from entry-level FI to the CFO level. The FI group has become a separate group, and recognizing it would not offend the CFIA classification structure, which already treats the FIs as a distinct group (Exhibit 37).

43 Mr. Renaud manages employees involved in the public disbursement process. He advises management on financial management, oversees public disbursements and ensures internal financial controls are in place. As a steward of a $700 million budget, he prepares and analyzes reports and monitors funding. He supervises other employees in the bargaining unit, assigns work to them, and verifies their productivity and the quality of their work. He exercises supervisory authority, which may bring him into conflict with other bargaining group members.

44 Mr. Barney worked as both a CR and an FI. He described the CR-05 level as involving basic entry-level work. As a CR-05, he reported to an FI-02. As an FI, he is required to make greater use of his professional judgement. Mr. Crabe also described the FIs’ greater accountability since the CFO model was introduced. He also noted that the number of FIs at the CFIA has grown to approximately 80.

45 In House of Commons v. Professional Institute of the Public Service of Canada, Public Service Alliance of Canada, Communications, Energy and Paperworkers Union of Canada, House of Commons Security Services Employees Association, 2009 PSLRB 23, the Public Service Labour Relations Board (PSLRB) stated that changes to an organization may result in an existing bargaining unit composition becoming inappropriate. The FIs’ educational requirements are specific to them and are not applicable to others in the bargaining group. FI-02s and above are required to have a degree or at the least be working toward one. The CRs require only a secondary-school diploma. The CFIA has treated the FIs as a separate occupational group. The nature of the FIs’ work is different from that of the ASs or CRs. These changes are sufficient to establish the inappropriateness of the current bargaining unit.

46 If the PSLREB is convinced that the current structure does not support effective bargaining, it may review the PSSRB’s order, carve out the FI group from the bargaining unit and constitute it as a separate group suitable for bargaining. The witnesses have explained their long-standing dissatisfaction with the representation they have received from the PSAC. They recognize the disparities in rates of pay and other benefits as a failure to bargain effectively. Any proposals that have benefitted the FIs have originated with the CFIA. The FIs are behind their counterparts in the core public administration, while others in the same bargaining group are ahead. The proof of the PSAC’s unsatisfactory representation is demonstrated by its failure to make gains and address these parity concerns.

47 It is true that the FIs’ demands are currently on the bargaining table, but that occurred only after this application was made. Effective representation is also about communicating. The applicant’s witnesses have testified that their inquiries did not receive timely responses. They did not receive notices of ratification kits or pre-annual general meetings via postings on workplace bulletin boards. No witness from the component or the local was called, yet they are responsible for the day-to-day representation of the FIs.

48 In response to this lack of representation, the FIs formed their own group. It will ensure that a small professional group will not become lost within a large heterogeneous group.

B. For the PSAC

49 The PSAC agreed that the applicant had a heavy burden of demonstrating that the bargaining unit structure must be revisited to ensure the proper representation of the FIs. The onus to be met was that the current structure does not allow effective representation. The burden was the civil standard of proof on the balance of probabilities. The evidence at this hearing did not come near to what is required to meet this standard. The applicant did not provide any compelling reason that the bargaining unit structure should be reviewed, which was required to meet the burden of proof. If the bargaining unit structure is truly the issue, the applicant had to demonstrate that the structure was the nature of the problem. Dissatisfaction with a particular representative does not go to problems stemming from a bargaining unit structure.

50 All three of the applicant’s witnesses confirmed that they did not seek to be involved in the PSAC bargaining process. They did not provide ideas for bargaining demands or raise concerns over the nature of the PSAC’s representation of them. Their claim that they were not represented is not credible given that they did not seek to participate and to be involved with the bargaining process or with the bargaining unit.

51 The initial order that certified the PSAC as the bargaining agent for the FI group was not contested by the FIs’ former bargaining agent or any affected employee despite the fact that notice was posted in the workplace concerning the composition of the proposed bargaining groups (seePSSRB File 140-32-14, at 1). Two subsequent decisions concluded that there was no reason not to include the FIs in the broader PSAC bargaining unit. The PSLREB and its predecessors have historically expressed consistent preference for larger bargaining units rather than fragmentation. The process of bargaining for larger bargaining units is more efficient. It ensures that the employer is not engaged in endless rounds of negotiations on the same issues and ensures fewer labour disruptions. Smaller bargaining units are less effective at bargaining.

52 The principles that should guide the PSLREB in exercising its discretion to fragment a larger bargaining unit by reviewing the PSSRB’s order under section 43 of the Act are set out in Canadian Union of Operating Engineers v. Canada (Treasury Board) and Public Service Alliance of Canada (Heating, Power and Stationary Plant Operations Group - Operational Category), PSSRB File Nos. 146-02-138 and 140 to 142 (19701211; “the heating and power case”), at 3 to 5. Fragmentation is also addressed in Parks Canada Agency v. Professional Institute of the Public Service of Canada, Public Service Alliance of Canada and Association of Public Service Financial Administrators, 2000 PSSRB 109, which cites the heating and power case, and states as follows at paragraph 127: “The Board has always indicated and continues to believe that there should not be a fragmentation or multiplicity of bargaining units in the work place [sic].” In deciding not to create a separate bargaining group for the FIs at the Parks Canada Agency, the PSSRB stated: “A bargaining unit that is too small in size will often have no real influence on the outcome of service wide [sic] issues and on the determination of the parameters for pay and benefits.” (See paragraph 129.)

53 Mr. Orfald testified about the impact of consolidating occupational groups for bargaining purposes. Bargaining rounds have become long and drawn out. The PSLRB has expressed concerns in the past that the more bargaining groups there are, the longer the rounds of bargaining will become. Fragmentation is impracticable (see Public Service Alliance of Canada and National Capital Commission, PSSRB File Nos. 142-29-312 and 313 (19940824), at 19). Many separate agencies have all-employee bargaining groups. Since the arbitration route is no longer available to bargaining agents due to recent legislative changes, the risk of a public service strike is larger than ever, which will only be exacerbated by the creation of yet another bargaining unit.

54 The introduction of a new classification plan is not sufficient to warrant carving out a group from an existing bargaining unit. Nor is speculation that a different structure would have worked out better for the bargaining unit members. Required is evidence of a deterioration of the existing relationship. (See House of Commons, at para 618; Association of Marine Assessors, Inspectors and Investigators of the Public Service of Canada v. Treasury Board and Public Service Alliance of Canada, PSSRB File No. 142-02-321 (19980608); and Federal Government Dockyard Chargehands Association, at 13).

55 There is no hint of a deterioration of the relationship between the PSAC and the applicant. The emails exchanged were cordial. Mr. Renaud testified that Ms. O’Neill was helpful in her email correspondence with Mr. Barney by suggesting he contact his local president. Mr. Renaud also admitted that the FIs were not treated differently from any other group in the bargaining unit. The FIs did not seek to be involved in the bargaining unit, to the best of Mr. Renaud’s knowledge. Nothing stopped them; they chose not to get involved.

56 The PSAC was unaware of any concerns from the FIs on how things were being dealt with at the bargaining table. They had never before put forward any proposals to address their concerns. The workplace and work environment are the same for all members of the bargaining unit. Nothing specific was raised concerning the FIs. As to the reluctance to strike on non-FI issues expressed by Mr. Renaud, the PSAC achieved FI-specific gains, such as the inclusion of 2% of the FI allowance in salary for pension purposes as well as improvements to the overtime provisions and leave provisions, which benefitted all members of the bargaining unit as a result of the strike threat.

57 Mr. Barney never contacted his union local before sending the emails he submitted at the hearing. He did not get involved or raise any FI-specific concerns. After emailing Ms. O’Neill, he did not follow up on her invitation to call her or his local president, Mr. Cottingham, because he wanted everything in writing.

58 Mr. Crabe has been involved with his local but has never raised concerns with it about FI-specific issues. His concerns were related to an increase in his work hours to 7.5 hours per day 20 years ago. He testified initially that he was not compensated for the extra hours worked but later admitted that he was. He acknowledged that when he wanted a contract reopener, the PSAC did everything it could to get one. He also acknowledged that the PSAC had made gains for the bargaining unit through bargaining.

59 The specific workplace concerns identified were that there was no formal input process, that the FI demands were ignored at bargaining, that the nature of FI work differs from that of the other bargaining unit members and that the workplace has changed. Mr. Orfald testified as to the importance of getting input from the bargaining unit members in preparation for bargaining. PSAC Regulation 15 (Exhibit 22) established the process for the PSAC to follow to ensure input from its membership. If there is any evidence that the PSAC did not follow its process, it is not an FI-specific problem.

60 The applicant provided no evidence that the FIs put forward FI-specific demands and that the PSAC did not pursue them. Seeking parity with the core public administration for the whole bargaining unit addresses the FIs’ concern about parity with the FIs elsewhere in the core public administration. The nature of FI work is different from other classifications within the bargaining group but does not mean that they cannot bargain together. The evidence tendered has established that CR work is different from FI work, but according to Mr. Crabe, the AS-07s do the same work as he does in an emergency, and in a non-emergency, the AS-07s run their own budgets and are responsible for their own financial management. There is no evidence of a change to the workplace. Financial management work has been amplified with more targeted reports and more frequent internal audits, but nothing else has occurred. The same arguments were unsuccessful in the Parks Canada Agency case.

61 There is no evidence of a different grievance history between the FIs and other members of the bargaining group or of FI demands being advanced and ignored. The demands advanced were based on a comparison of the ACFO arbitration award with the FIs’ current agreement. Very little difference appeared between the two when specific FI-related issues were searched for. The marriage leave conversion issue is not FI-specific; nor is the vacation leave progression. Wages are everyone’s concern. The market value of work is not a valid labour relations reason to segregate classifications (see Canada Customs and Revenue Agency v. Association of Public Service Financial Administrators, 2001 PSSRB 127).

62 The gains made in the area of the FI professional association dues were not, as the applicant argued, as a result of the employer’s proposal (Exhibit 34). The employer’s proposal was a housekeeping matter to remove a long-passed effective date. The cap of $1000 remained in the employer’s proposal. Any gains in the area were as a result of the PSAC’s efforts on behalf of the FIs.

63 When comparing the PSAC collective agreements to the ACFO collective agreements, one cannot look solely at wages. The entire benefit package must be compared. The PSAC leads on the amount of leave and is behind on wages. The evidence demonstrated that pay gaps exist at many levels, not just for the FIs. Addressing wage parity across the bargaining group addresses the FIs’ concerns as well as the others in the bargaining group. Contrary to the applicant’s submission that the FIs were not on the PSAC’s bargaining radar, the collective agreement (Exhibit 23) demonstrates that the FIs received a 2.5% increase as a group plus improvements to Appendix E of the agreement, none of which was to the benefit of any other members of the group. Through arbitration, only the FI, SI and AS-02 categories received anything more than any other member of the bargaining group.

64 Mr. Crabe acknowledged that some classifications may individually make gains at negotiations in addition to obtaining all the benefits that apply generally to the entire group, such as wage increases. There is no evidence that the current collective bargaining structure is not working. This application was the first indication that the FIs wanted to play a bigger role in bargaining. Nothing in the nature of FI work excludes the FIs from the bargaining unit based on earlier decisions in this matter. The current structure is effective, and there is no reason to review or amend it. This application should be dismissed.

IV. Reasons

65 Section 43 of the Act states as follows:

Review of orders and decisions

43. (1) Subject to subsection (2), the Board may review, rescind or amend any of its orders or decisions, or may re-hear any application before making an order in respect of the application.

Exception

(2) A right that is acquired by virtue of an order or a decision that is reviewed, rescinded or amended by the Board may not be altered or extinguished with effect from a day that is earlier than the day on which the review, rescission or amendment is made.

66 The jurisprudence of the PSLRB and its predecessor, the PSSRB, has established guidelines or criteria for exercising the PSLREB’s discretion to review or amend any of its orders or decisions. These guidelines were succinctly summarized in Chaudhry v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 39, at para 29, as follows: the reconsideration must not be a relitigation of the merits of the case, must be based on a material change in circumstances, must consider only new evidence or arguments that could not reasonably have been presented at the original hearing, must ensure that the new evidence or arguments have a material and determining effect on the outcome of the complaint, must ensure that there is a compelling reason for reconsideration, and must be used judiciously, infrequently and carefully. Moreover, as the Federal Court of Appeal stated in Chaudhry v. Canada (Attorney General), 2009 FCA 376,at para 8, a reconsideration under section 43 of the PSLRA is neither an appeal nor a redetermination of the decision; it is a limited exception to the finality of the PSLREB’s decisions in light of fresh evidence or a new argument.

67 According to Treasury Board (Canada Border Services Agency) v. Public Service Alliance of Canada, 2013 PSLRB 76, there are two possibilities for exercising the PSLREB’s discretion. The first, envisaged for a review under section 43 of the PSLRA, might apply to clerical or technical errors in the decision or order. For example, a party’s name might have been incorrectly written or errors might need fixing that resulted from an oversight or a miscalculation of a numerical or monetary amount, or the PSLREB or one of its predecessors might have omitted dealing with a collateral issue. In these situations, the PSLREB can be said to be clarifying its language or intent.

68 The second reason for the PSLREB to review one of its decisions or orders relates more to the merits of the case than to how the decision was expressed. In such cases, it must be made to appear to the PSLREB that there is some compelling reason for it to review its decision. This must of necessity mean more than that one party simply is unhappy with the decision or order that was rendered since when a decision is rendered, at least one party will likely be unhappy with the result. Thus, generally speaking, before the PSLREB will review one of its decisions or orders when the requested review is on the merits of the case, the party requesting the review has an onus to present substantial reasons for reviewing the decision.

69 The applicant seeks a review of the order certifying the PSAC as the bargaining agent for the FI group working at the CFIA in the hopes of having the FIs removed from the bargaining unit so that an application for certification by the newly created CFOA can proceed. It had the onus of demonstrating on the balance of probabilities that the current bargaining unit does not provide adequate representation of the FIs’ interests at the bargaining table. The evidence provided fell short of this onus and was based on the FIs’ apparent dissatisfaction with the results of the last round of collective bargaining, which saw them make gains of 2.5% in the FI bonus and saw an increase in the amount recoverable from the employer for professional dues. These gains were specific to the FIs, who also saw gains that applied to the entire bargaining group.

70 The applicant put a great deal of emphasis on the fact that the employer’s proposal was the source of the changes to the professional dues article of the collective agreement and that the PSAC did not raise that issue. As I noted to the applicant’s representative, the fact that the employer made a housekeeping proposal related to the professional dues article was not relevant. Both parties make proposals, which they think may be tempting to the other party, to win other concessions elsewhere in the bargaining process.

71 The law of physics that states that for every action there is an equal and opposite reaction is applicable to the collective bargaining process. If one gain is made for one group, others might suffer a loss or be unable to make other gains. For every benefit obtained by a bargaining agent, there is quid pro quo (“something for something”) elsewhere in the collective agreement. I agree with the PSAC that this gain is indicative that the FIs’ interests were of concern to it at the bargaining table.

72 The applicant’s witnesses have by choice had very little interaction with their bargaining agent with regard to collective bargaining. This is not because they have been excluded from the process or because they are a small group in a much larger group. Rather, it was that, by their own admission, they have not sought to participate in the bargaining process. The PSAC representatives contacted responded to their inquiries and invited them to discuss their issues further. All the witnesses indicated that they did not avail themselves of this opportunity; Mr. Barney testified he preferred all communication in writing. Mr. Crabe is still involved in his local, according to his testimony, yet he raised no concerns with the local about the PSAC’s representation of the FIs. His testimony that the PSAC removed him from the table at labour-management meetings to exclude him is unlikely. It is more likely that, and I believe it true, he was removed from the labour-management meetings because he was there as an APSFA representative, which no longer had a seat at the table. It was not a machination to exclude the FIs from the labour-management table.

73 The FIs’ education requirements, the introduction of the CFO model, which predated the CFIA’s creation, and the differences in the type of work between the FIs and other bargaining unit members, such as the ASs or the CRs, were not sufficient to discharge the applicant’s burden of proof. The evidence of Mr. Barney and Mr. Crabe pointed to similarities rather than differences in the work. In fact, Mr. Crabe testified that the AS-07s have many of the same responsibilities as the FIs. In addition, many managers who hire ASs seek professional accounting designations. The move to the CFO model is not new within the public service and has been ongoing for some time. The fact that the CFIA has moved that way is also not sufficiently new to warrant re-examining the certification order as it dates to when the CFIA classification structure was established.

74 Sufficient safeguards are in place within the PSAC’s constitution to ensure that an FI, or any bargaining group member, may have input into developing bargaining demands. Likewise, an FI interested in participating on the bargaining team may seek election to the bargaining committee through his or her local. The applicant’s witnesses chose not to do any of this and were unaware of any FI who had. Had they actually tried and been denied this right, their case for division might have been stronger.

75 Based on the evidence adduced by all the parties, the PSAC has been the FIs’ bargaining agent since the CFIA’s creation, when the APSFA chose not to challenge the certification of either the PIPSC or the PSAC as the bargaining agent for these employees whom until then, it had represented. In the absence of any challenge to the determination that the PSAC bargaining unit would include the FIs, the PSSRB ordered that the FIs be included in the PSAC bargaining group. I heard no new evidence that warrants reviewing that decision.

76 The lone employer witness established that the current bargaining groups at the CFIA are in fact co-extensive with the CFIA’s, and in fact the Treasury Board’s, occupational groups and subgroups. The CFIA merely adopted the Treasury Board classification system and occupational groups as its own. Before it created its classification system, the CFIA used the Treasury Board’s structure and classification plan. The introduction of this new classification plan does not warrant carving out a group from an existing bargaining unit. Nor does the fact that numerous classifications and occupational groups of diverse work and interests are included in the same bargaining group. Elsewhere in the public service, the large omnibus-type bargaining groups have been very successful. The PSLREB and its predecessors have long recognized that a bargaining unit that is too small will often have no real influence on the outcome of public-service-wide issues, including pay and benefits. (See Parks Canada Agency,at para 129.)

77 The current separate agency, multi-occupation group bargaining unit, like the one in which the witnesses for the applicant find themselves, is not rare in the public service. In those circumstances, as in this case, numerous classifications work jointly to ensure that the employer’s core mandate is met. The community of interest exists in the common goal. The applicant has not convinced me that this approach is wrong. There is sufficient community of interest based on each cog in the “machine” being essential to the machine’s overall viability.

78 Speculation that a different structure would have worked out better for the bargaining unit members is also insufficient to discharge the onus of proof. Required is evidence of a deterioration of the existing relationship. (See House of Commons, at para 618; Association of Marine Assessors, Inspectors and Investigators of the Public Service of Canada, at 125; and Federal Government Dockyard Chargehands Association, at 13). Evidence of any deterioration of the relationship between the applicant’s witnesses and the PSAC is non-existent, as no FIs chose to be involved with the PSAC, to attend meetings or to participate in the bargaining process.

79 The PSLREB and its predecessors have always indicated and the PSLREB continues to believe that there should not be a fragmentation or multiplicity of bargaining units in the workplace. (See Parks Canada Agency,at para 127.) To give effect to this application, in the absence of new compelling evidence that the FIs cannot be properly represented by the PSAC or that the relationship between the FIs and the PSAC has deteriorated to the point that they cannot be properly represented, flies in the face of this long-held belief.

80 To allow this application, in the absence of new compelling evidence of a deterioration of the relationship of the FIs and the PSAC, and in the absence of compelling evidence that the PSAC cannot effectively bargain on behalf of the FIs, would result in exactly what the predecessors to the PSLREB sought to avoid.

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

V. Order

82 This application is dismissed.

July 28, 2015.

Margaret T.A. Shannon,
a panel of the Public Service Labour Relations and Employment Board