FPSLREB Decisions

Heard at Ottawa, Ontario,
January 18 to 20, 2016.
(Written submissions filed February 5, 12, and 16, 2016.)

REASONS FOR DECISION

I. Complaint before the Board

1 On April 30, 2015, the Public Service of Alliance of Canada (PSAC or “the bargaining agent”) filed a complaint before the Public Service Labour Relations and Employment Board (“the Board”) concerning the implementation by the Canadian Border Services Agency (“CBSA” or “the respondent”) of a new policy on the conduct of Professional Standards Investigations of Alleged or Suspected Employee Misconduct (“PSIs”).

2 That policy change, according to the PSAC, violates three provisions of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”): s. 106, concerning the duty to bargain in good faith; s. 107, concerning the statutory freeze on terms and conditions of employment; and s. 186(1)(a), prohibiting interfering in the representation of employees by their bargaining agent.

3 The PSAC is the certified bargaining agent for all employees in the Border Services Group. The collective agreement for that group expired on June 20, 2014. Notice to bargain was served on April 16, 2014. At the time the complaint was filed, bargaining was ongoing. The parties have met at the bargaining table on a number of occasions, but no agreement has yet been reached.

II. Summary of the evidence

4 The PSAC called five witnesses: Morgan Gay, PSAC national negotiator; Jean-Pierre Fortin, president of the Customs and Immigration Union (CIU), a PSAC component that represents border services officers at the CBSA; Dave Van Helvert, branch president of the CIU Fort Erie local; Don Turner, branch president of the CIU Southern British Columbia Region local; and Gus Kontogianis, first vice-president of the CIU Fort Erie local.

5 The respondent called three witnesses: Frank Bardoul, director of the PSI Unit, as well as Franca Passanante and Tom Torosian, both investigators in the PSI unit.

6 On January 30, 2015, the respondent published on its intranet a new policy, effective immediately, which replaced the former policy of October 29, 2007, on how PSIs would be conducted. No prior notice was given to the employees, and no consultation was held with the PSAC.

7 Mr. Bardoul testified that the reason for the new policy was that an update was necessary. Apparently, certain things were unclear, and the new policy was a way to ensure guidance to both investigators and the persons interviewed as respondents or witnesses in fact-finding investigations into alleged misconduct. As well, the respondent had some concerns about preserving the integrity of the investigations.

8 The two policies are formulated quite differently, but in terms of substantive differences, both parties’ witnesses agreed that the main changes were those concerning observers. The table that follows summarizes the differences between the two policies with respect to observers according to both the policies’ texts and the witnesses’ testimonies.

2007 policy (effective October 29, 2007) Internal Investigations into Alleged or Suspected Employee Misconduct	2015 policy (effective January 30, 2015) Policy on the Report, Review and Professional Standards Investigation of Alleged or Suspected Employee Misconduct
11.4 Any person being interviewed may, if so desired, be accompanied during the interview by a person of his/her choice as long as this person is not and will not be a witness in the investigation. Allowing the presence of an observer is a privilege and should not be considered a right. The third party present during the interview is not allowed to interfere in any way with the interview process; the third party’s role is limited to that of an observer. 11.5 At the beginning of the interview, the investigator will remind the person to be interviewed, when the latter is not accompanied by anyone, that an observer can accompany him or her. [No comment about union representatives.] [No mention of non-disclosure agreements.] [No comment on note taking by observers.] 11.7 … Should the person interviewed request permission to record the interview, it is recommended that the interviewer also arrange to record the interview, while at the same time making notes of the questions asked and the answers provided. [No mention of disruptive behaviour by observers.]	8. Employees may request that an observer be present during their interview with the Professional Standards Investigations Section Investigator. The decision to permit a specific observer during an investigation remains the sole discretion of the Investigator. The Investigator may limit the number of interviews that a specific observer can attend during the same investigation. An observer must be an employee of the CBSA, cannot be a witness in the current investigation and cannot attend the interview in the capacity of a union representative. All observers must sign a non-disclosure agreement in the form set out in Appendix C to this policy; failing which they may not attend the interview. An observer is not permitted to take notes or record the interview in any manner, make statements during the interview or disrupt the interview in any manner; failing which, the observer will be told to leave the room.
[No mention of notes, whether by observers, witnesses, or respondents.]	(Appendix B, 2f). While only respondents may take notes, they must be safeguarded and cannot be shared with anyone, under any circumstances; failing which disciplinary action may be taken. … The investigator will record whether the respondent is taking notes. The taking of notes by a respondent must not be obstructive to the flow of the interview. (Appendix B, 2i) Interviewees are not allowed to audio or video record the interview. Respondents may only take hand-written notes during their interview. Investigators will record the fact that a respondent has taken notes. Witnesses and observers will not be permitted to take notes.

[Emphasis added]

9 Mr. Bardoul testified that the changes outlined in the table were implemented to ensure the integrity of the PSIs. If observers from outside the CBSA were allowed, it could pose a problem to the security and confidentiality of the information exchanged between the investigator and the interviewee. Therefore, with the new policy, only CBSA employees could be observers. Were note taking allowed, potential witnesses might learn in advance the content of the interview and the questions asked, thus jeopardizing the quality of their future answers. The non-disclosure commitment also served that purpose, which is preventing investigation contamination.

10        Mr. Kontogianis, Mr. Turner, and Mr. Van Helvert, who as union representatives have often sat as observers, testified to the importance of taking notes during interviews. They considered that part of the policy change the most important one. Before the new policy was implemented, they were able to take notes of meetings; they are no longer allowed to. This means that there will be no record other than the investigator’s. When the respondent receives the vetted report months later, it will be impossible for anyone to confront the report’s content with what he or she remembers of the meeting.

11        It is completely unrealistic, according to the PSAC’s witnesses, to expect respondents to take notes during interviews. The whole situation, in which their jobs might be on the line, is already extremely stressful for them. It is impossible to listen to a question, answer it as completely as possible, deal with one’s nervousness, and take notes. In the past, note taking had been one of the main functions of observers, to ensure that an objective and independent record of the meeting was made.

12        The PSAC’s witnesses also commented on the fact that now, only CBSA employees can be observers. Employees often request assistance from a union representative, which is still allowed, provided no representation occurs during the meeting, but some employees may prefer to bring an outside friend or family member to avoid the shame of being investigated in front of their colleagues. The PSAC’s witnesses also pointed out that the new policy excludes the possibility of having a lawyer present as an observer, something they find contrary to employees’ fundamental rights.

13        According to both PSAC witnesses who had acted as observers in the past and the investigators called as witnesses by the respondent, union representatives have always acted as observers in PSIs and not as union representatives. They ask questions, mainly procedural ones; they might ask for breaks, but they would never intervene to answer in the interviewee’s place or to counsel the interviewee on how he or she should or should not answer. The investigators agreed with the PSAC’s witnesses that the main changes are the prohibition on note taking or recording and the obligation to sign a non-disclosure agreement.

14        Mr. Gay testified on the ongoing negotiations between the parties. He stressed the importance of discipline as a major concern for CIU members, which is reflected in the demands made at the bargaining table. Mr. Fortin also emphasized the importance of discipline and the PSIs in recent years for his members. According to him, members have become increasingly alarmed by their vulnerability in PSIs, which are fact-finding exercises that can lead to discipline being imposed or to security decisions being made such as revoking a member’s reliability status (an essential condition for employment in the public service).

15        In its initial demands and in the course of the negotiations, the PSAC made it clear that rights and protections in the context of PSIs were a top priority. The PSAC proposed new language under article 17 (“Discipline”) to ensure the employees’ right to union representation not only for disciplinary hearings (as is the case already) but also for administrative or investigative hearings.

16        The PSAC’s witnesses testified to the fact that they had not been informed in advance of the new policy or notified when it came into effect. No consultations on the matter were held with the PSAC; its officials learned about it when investigators started applying it in the field.

III. Objection

17        After the PSAC presented its evidence, the respondent raised an objection based on Burchill v. Attorney General of Canada,[1981] 1 F.C. 109 (C.A.), to the effect that the importance of note taking had never been brought up in the PSAC’s complaint. Thus, the PSAC was precluded from raising it as an issue at the hearing. Despite the objection, the respondents’ witnesses also extensively mentioned the note taking that the PSAC raised in its evidence as a major difference between the old and the new policy.

18        The respondent maintained its objection, but it was decided that, since the Burchill argument was raised only at the hearing, arguments on this issue would proceed by way of written submissions after the hearing. Accordingly, at the end of the hearing, a schedule was set. The respondent’s final reply was received on February 16, 2016.

A. Respondent’s position

19        The respondent argues that note taking was never mentioned in the initial complaint. Therefore, the bargaining agent cannot rely on that fact to show how the new policy is different from the old. Doing so would be unfair, as it would raise a new ground for which the respondent is not prepared.

20        The respondent cites several decisions of former Boards and the Federal Court, starting with Burchill, which have maintained the principle that the subject of a grievance referred to adjudication (or of a complaint referred to the Board) cannot be changed at a hearing (see Boudreau v. Canada (Attorney General), 2011 FC 868; Cottrell v. Le Moullec,PSSRB File No. 161-02-682 (19970514); and Laughlin Walker v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 62).

21        The essence of the respondent’s position is that note taking is a new issue that was never raised before and that it is unprepared to respond to it, whether with evidence or in argument.

B. Bargaining agent’s position

22        The bargaining agent maintains that no new issues were raised at the hearing. The initial complaint concerned the unilateral change in policy, including changes to the role of union representatives, and encompassed tasks such as note taking.

23        The respondent’s attempt to use Burchill to suggest that evidence from note taking is not admissible is an erroneous application of Burchill.

24        Burchill does not preclude dealing with something that is within the scope of a complaint; rather, Burchill asserts that a grievance or complaint cannot be transformed mid-way through the grievance or complaint process.

25        The complaint is about the new policy’s unilateral implementation. The outright note taking prohibition is a feature of the new policy. The respondent’s witnesses saw changes to the policy as changes to what observers could or could not do.

C. Respondent’s rebuttal

26        The respondent maintains that tasks were not mentioned in the initial complaint, and therefore, the note taking issue should not be adjudicable.

D. Decision on the objection

27        Burchill reasoning is applied to prevent one party from raising a new issue at the hearing that might take the other party by surprise. It is, essentially, a matter of procedural fairness. Burchill stems from a grievance arbitration. It states that after going through the many levels of the grievance procedure, a grievance cannot be transformed into a different grievance when it is referred to adjudication.

28        The case before me is a complaint. No internal decision-making process must be completed before a complaint arrives before the Board. Therefore, it remains to be developed before the Board. If the Burchill principle is applied to a complaint, it cannot mean that further details cannot be added to present the stated case. Burchill precludes a complete change in a grievance referred to the Board; it does not state that particulars cannot be developed at a hearing, which is even more so in the case of a complaint, for which no evidence has been presented before the hearing.

29        The respondent did raise Cottrell as an example of a complaint to which the Burchill principle was applied. In that case, the complainant changed the nature of his complaint such that it was more akin to a grievance.

30        In Boudreau, the bargaining agent, when referring the grievance to adjudication, sought to reframe a grievance about the respondent’s harassment policy as a grievance under the relevant collective agreement. The adjudicator declined jurisdiction, and the Federal Court confirmed that he had been right to.

31        In Laughlin Walker, the grievor sought to characterize an acting-pay grievance as disciplinary, when discipline had not been mentioned throughout the grievance procedure.

32        In this case, there has been no change in the nature of the complaint.

33        The respondent argues that the bargaining agent emphasized in the complaint the hindrance of its representation as the major change to the new policy and not the prohibition on observers taking notes. As I read the PSAC’s complaint, I understand its complaint under s. 107 as “… a change in terms and conditions of employment” during the statutory freeze, which change was caused by the respondent implementing a new policy.

34        All the witnesses who were familiar with PSIs, whether for the bargaining agent or for the respondent, testified to the note taking prohibition as being a significant change, if not the significant change. I have difficulty accepting the respondent’s argument that it came as a surprise. Surely, it knew the content of its new policy.

35        A hearing’s purpose is to allow the parties to present evidence. In this case, the PSAC has the burden of proof to show that ss. 106, 107, and 186(1)(a) were breached. By showing the importance of the change brought about by the new note taking prohibition, the PSAC is simply showing as it must that a real, substantial change has been made such that the present terms and conditions of employment have been altered.

36        That is precisely the analysis that must be carried out under s. 107; that is, whether the terms and conditions of employment were changed by the new policy. The bargaining agent has never argued otherwise. The note taking prohibition considerably alters the PSI process and is an important feature of the new policy; I do not see how I can ignore it. Nor can the respondent pretend that it did not know about the change it implemented. Therefore, its objection is dismissed.

IV. Summary of the arguments

A. For the PSAC

37        The bargaining agent alleges violations of ss. 106, 107, and 186 of the Act.

1. Section 106

38        The bargaining agent submits that the respondent’s conduct of modifying its PSI policy, without any consultation, violated the duty to bargain in good faith. The respondent has circumvented the bargaining process by unilaterally introducing changes to PSIs when such matters were being discussed at the bargaining table and could be included in the next collective agreement.

39        The duty to bargain in good faith means showing a willingness to engage the other party and listen to its position. Despite the PSAC’s clear articulation of its demands with respect to PSIs, not only has the respondent not responded at the bargaining table, but it also went ahead and changed its policy without consulting or notifying the PSAC. The duty to bargain in good faith entails making “… every reasonable effort to enter into a collective agreement”, as stated in s. 106 of the Act, which it seems the respondent denied by both its apparent refusal to enter into discussions and its imposition of even stricter measures than before.

2. Section 107

40        The introduction of the new policy after notice to bargain was served violated the statutory freeze provision, s. 107, which provides that any term or condition of employment that could be included in a collective agreement and that is in force at the time that notice to bargain is given remains in effect until a collective agreement is reached or the employees are in a legal strike position. The PSI policy, and particularly union representation, could be a term or condition of the next collective agreement, as it is a proposal at the bargaining table.

41        The respondent stated in its opening remarks that the new policy is no more than a codification or restatement of what already exists. Actually, the new policy amounts to substantial change for employees by prohibiting observers from taking notes, by requiring that observers be CBSA employees, by requiring observers to sign non-disclosure agreements, and by preventing union representatives from acting as union representatives. This affects the rights of employees called as witnesses or respondents at PSIs, at which their employment might be at stake.

42        The purpose of s. 107 is to preserve work conditions as they are at the time bargaining begins to allow proper collective bargaining. By changing work conditions after negotiations have started, the respondent imposed another reality on the bargaining agent’s starting point.

43        The former Board’s approach to interpreting the statutory freeze provision was to consider that fundamental changes to working conditions are not business as usual and therefore cannot be considered part of the respondent’s prerogative to organize the workplace as it sees fit (see Public Service Alliance of Canada v. Treasury Board (Canada Border Service Agency), 2013 PSLRB 46 (change to paid union leave); and Canadian Association of Professional Employees v. Library of Parliament, 2013 PSLRB 18 (statutory freeze provision under the Parliamentary Employment and Staff Relations Act; implementation of a workforce adjustment policy). A statutory freeze is a brake on the respondent’s rights in the context of collective bargaining to ensure a fairer process.

44        There can be no dispute that an important policy change occurred on an issue that is the subject of a PSAC proposal at the bargaining table, which is precisely what s. 107 seeks to prevent.

3. Paragraph 186(1)(a)

45        Modifying the role of observers (often union officials) in the PSI process is interference in the representation of employees by their bargaining agent.

46        The bargaining agent considers that assisting employees with PSIs is part of the general duty of fair representation that it owes bargaining unit members. It recognizes that observers may be ordinary employees or outsiders who are not part of the bargaining unit, but when its officials act as observers, they have a role to play that is partly linked to their role as union representatives. The respondent interfered with that role with the policy change.

47        The bargaining agent seeks as remedy a declaration that ss. 106, 107 and 186(1)(a) have been breached as well as an order to direct the respondent to cease denying union representation in PSI investigations, to bargain in good faith about employees’ rights in investigative and administrative processes, and to post the order in all its workplaces.

B. For the respondent

48        The respondent does not dispute that a new PSI policy was implemented while collective bargaining was underway. However, it amounted to no more than a codification of the existing practice in PSIs. Specifying the observers’ role and requiring them to sign non-disclosure agreements simply means safeguarding the integrity of administrative investigations, which is well within the purview of the respondent’s rights. The evidence shows that union representatives never played that role in PSIs and were always confined to an observer role, as opposed to a representative role. The CIU’s national president testified that members have been worried about PSIs since 2012, which is why a change was requested to the collective agreement to add the role of union representation in PSI interviews. This is not presently in the collective agreement and is therefore not a term or condition of employment. The new policy has made no substantial changes.

1. Section 106

49        There is no evidence that the respondent is unwilling to negotiate at the bargaining table. Despite the January 2015 policy change, the parties are in discussions at the table, and there is no evidence that the respondent has rejected the PSAC’s proposal. A number of proposals are under discussion, including the discipline article, and the PSI proposal under clause 17.03 is one item among many. There is no evidence to support that the respondent is not bargaining in good faith; the parties have not yet reached an impasse. Bargaining continues next month (February 2016).

50        Refusing to provide information for bargaining purposes has been found an example of bad faith bargaining. In this case, the respondent has not refused to provide information. The new policy was published on its intranet. Nothing indicates that it was intended to prevent reaching an agreement at the bargaining table. It was implemented, according to Mr. Bardoul, without considering collective bargaining.

51        The PSAC’s bargaining proposal at issue is to have union representation at PSIs, which shows that the right did not exist under the old policy. The proposal states nothing about note taking.

2. Section 107

52        In countering the PSAC’s argument that the statutory freeze provision of the Act has been breached, the respondent invokes parts of ss. 7(1) and 11.1 of the Financial Administration Act(R.S.C., 1985, c. F-11), that read as follows:

7 (1) The Treasury Board may act for the Queen’s Privy Council for Canada on all matters relating to

…

(e) human resources management in the federal public administration, including the determination of the terms and conditions of employment of persons employed in it … .

…

11.1 (1) In the exercise of its human resources management responsibilities under paragraph 7(1)(e), the Treasury Board may

(a) determine the human resources requirements of the public service and provide for the allocation and effective utilization of human resources in the public service;

…

(j) provide for any other matters, including terms and conditions of employment not otherwise specifically provided for in this section, that it considers necessary for effective human resources management in the public service.

(2) The powers of the Treasury Board in relation to any of the matters specified in subsection (1)

(a) do not extend to any matter that is expressly determined, fixed, provided for, regulated or established by any Act otherwise than by the conferring of powers in relation to those matters on any authority or person specified in that Act … .

…

53        The respondent has the authority to unilaterally alter workplace conditions, subject only to a specific limitation in a statute or collective agreement. It invokes the principle of “business as usual” along with its obligation to ensure national security and public safety. According to the respondent, the statutory freeze does not stop it from modifying practices that enhance national security.

54        In this case, the PSI policy is not a term or condition of employment but rather a discretionary policy that the respondent may modify at will. In the old policy, the presence of the observer was a privilege, not a right, which has not changed. If the presence of the observer is not a right, then there can be no right to note taking either.

55        Two tests can be applied to determine whether a change has taken place that breaches the statutory freeze provision: the “business as usual” test and the “reasonable expectations” test.

56        Although the Act imposes a statutory freeze on terms and conditions of employment, labour jurisprudence has long recognized that the respondent must continue to manage the workplace during the collective bargaining period, which may involve making decisions. When these fall within management’s normal purview, follow an established pattern, and do not fundamentally alter terms and conditions of employment, they are considered “business as usual”.

57        Under the “reasonable expectations” approach, as described as follows in Canadian Union of United Brewery, Flour, Cereal Soft Drink and Distillery Workers v. Simpsons Limited, 1985 CanLII 949 (ON LRB), the emphasis is less on residual management rights and more on workers’ reasonable expectations, taking into account the respondent’s usual practice:

33.     The reasonable expectations approach clearly incorporates the practice of the employer in managing the operation. The standard is an objective one: what would a reasonable employee expect to constitute his or her privileges (or, benefits, to use a term often found in the jurisprudence) in the specific circumstances of that employer. The reasonable expectations test, though, must not be unduly narrow or mechanical given that some types of management decision (e.g., contracting out, workforce reorganization) would not be expected to occur everyday. Thus, where a pattern of contracting out is found, it is sensible to infer that an employee would reasonable expect such an occurrence during the freeze… .

58        Both approaches can be applied together, as seen in United Steelworkers of America v. Royalguard Vinyl Co., 1994 CanLII 9815 (ON LRB), in which the Ontario Labour Relations Board states the following:

18.     It was suggested that the “reasonable expectations” approach modified the Board’s “business as usual” or “business as before” approach. The reasonable expectations of employees would be considered in assisting the Board to understand what constituted the employer’s “business as before, or vice versa. The “business as before” approach was described in Spar Aerospace Products Limited, supra, at paragraph 23:

23.     The “business as before” approach does not mean that an employer cannot continue to manage its operation. What it does mean is simply that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the operation be managed as before. Such a condition, in our view, cannot be regarded as unduly onerous in light of the fact that it is management which is in the best position to know whether it is in fact carrying out business as before. This is an approach, moreover, that cuts both ways, in some cases preserving an entrenched employer right and in other cases preserving an established employee benefit.

59        In this case, no fundamental change was made to the terms and conditions of employment. The respondent can take notes, and the respondent and observer can review the investigator’s notes. The observer’s notes are not that critical and thus cannot be seen as a term and condition of employment.

3. Paragraph 186(1)(a)

60        The bargaining agent’s right to represent its members was not interfered with since no such right existed under the old policy. Observers could act only as observers; this has not changed. The PSAC’s witnesses testified that they always played an observer role.

61        No anti-union animus or targeting of the bargaining agent or its ability to represent its members occurred. In the context of PSIs, the new policy simply clarifies the roles of all observers, including union representatives.

62        As stated in Naidu v. Canada Customs and Revenue Agency, 2001 PSSRB 124, absent a clear collective agreement provision, there is no right to union representation in an investigative meeting, which is confirmed in this case by the fact that including representation in investigative meetings is actually one of the PSAC’s demands at the bargaining table. Therefore, interference cannot have occurred with a right that does not presently exist.

63        In short, the respondent denies any breach of the Act.

V. Reasons

64        The PSAC filed its complaint pursuant to s. 190 of the Act, which provides that the Board must examine and inquire into any complaint that alleges that the respondent has failed to comply with a number of sections in the Act, including sections 106, 107 and 186. The relevant statutory provisions are as follows:

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.

107 Unless the parties otherwise agree, and subject to subsection 125(1), after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day on which the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or

(a) if the process for the resolution of a dispute is arbitration, an arbitral award is rendered; or

(b) if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).

…

185 In this Division, unfair labour practice means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

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

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

(b) discriminate against an employee organization.

[Emphasis in the original]

65        The issue is whether the respondent contravened any or all of these provisions. I will consider each alleged breach separately.

A. Bargaining in good faith

66        I will first turn to the breach of s. 106, concerning the duty to bargain in good faith.

67        The bargaining agent included in its complaint an allegation that the respondent breached s. 107 of the Act, the statutory freeze provision. I will discuss this allegation in the next section. As will be seen, part of the motivation behind a statutory freeze is, precisely, preserving equilibrium at the bargaining table by preventing the respondent from unilaterally changing the starting point from which the parties negotiate.

68        I believe the essence of the bargaining agent’s argument of bad faith bargaining is in fact tied to a violation of the statutory freeze provision. Sections 106 and 107 are distinct, and I believe that they serve different purposes. As will be seen, I conclude that the statutory freeze provision was violated; however, I cannot conclude that bad faith bargaining occurred.

69        Section 106 contains specific language to describe good faith bargaining: commence negotiations and make every reasonable effort to reach a collective agreement. The Supreme Court of Canada considered in Royal Oak Mines Inc. v. Canada (Labour Relations Board, [1996] 1 S.C.R. 369 the content of the duty to bargain in good faith. That case involved the Canada Labour Code (R.S.C., 1985, c. L-2), which contains similar language to the PSLRA. Justice Cory, writing for the majority, stated that the duty to bargain in good faith has a subjective component and an objective component. Entering into negotiations is measured on a subjective standard, while making every reasonable effort to reach a collective agreement is to be measured on an objective standard. In the words of the Court, at paragraph 42:

It is this latter part of the duty which prevents a party from hiding behind an assertion that it is sincerely trying to reach an agreement when, viewed objectively, it can be seen that its proposals are so far from the accepted norms of the industry that they must be unreasonable.

70        The parties have commenced negotiations and have not yet reached an impasse. The bargaining agent is arguing that by its unilateral imposition of a measure that is directly counter to what the bargaining agent proposes, the respondent is engaging in bad faith bargaining. Actually, that evidence is directly dealt with by s. 107: the Act prohibits modifying terms and conditions of employment that may be embodied in a collective agreement, and as the jurisprudence quoted later will show, the specific purpose of s. 107 is to prevent the hindrance of the bargaining process.

71        Further evidence would be required to make a finding of bad faith negotiation, such as adopting an unreasonably rigid stance or making a counter-proposal that is completely outside acceptable norms, with the result that concluding a collective agreement would be impossible. No evidence was presented on how the respondent had reacted to the specific proposal on investigative meetings, and as stated before, the discussions are on-going.

72        Other than the new policy being unilaterally imposed, I have little evidence on the progress or lack of progress at the bargaining table. Mr. Gay stated that the parties had met on a number of occasions and that the respondent had not offered a counter-proposal to the PSAC’s proposal to have union representation at investigative and administrative meetings. Several demands are at issue, and the parties plan to meet again, starting in February 2016. For lack of evidence, then, I cannot find that s. 106 has been breached.

B. Statutory freeze

73        The purpose of s. 107 was stated in Canada (Treasury Board) v. Canadian Air Traffic Control Association, [1982] 2 F.C. 80 (C.A.), in which the Federal Court of Appeal refers as follows to s. 51 of the Public Service Staff Relations Act (R.S.C., 1985, c. P-35), which is essentially the same statutory freeze provision as s. 107 of the Act:

…

24      The purpose of section 51 of the Public Service Staff Relations Act is to maintain the status quo in respect of terms and conditions of employment while the parties are attempting to negotiate an agreement. It is a particular version of a provision generally found in labour relations legislation is [sic] designed to promote orderly and fair collective bargaining. There must be some firm and stable frame of reference from which bargaining can proceed. The provision should not be given a narrowly technical construction that would defeat its purpose.

25      Section 51 is directed to “any term or condition of employment applicable to the employees in the bargaining unit” at a given point of time. The term or condition must be one that may be embodied in a collective agreement, not necessarily one that is embodied in a collective agreement. And it must be “in force” at the time notice to bargain collectively was given.

…

74        The Canada Labour Code (R.S.C., 1985, c. L-2) includes a provision similar to s. 107 of the Act, at s. 50(b). In Air Canada (Re), 24 di 203, the Canadian Air Line Pilots Association had complained that Air Canada, the employer, had unilaterally changed conditions of employment by removing the first-class flight privileges of pilots reporting to or returning from flight duty. The Canada Labour Relations Board agreed that the statutory freeze provision, then s. 148(b), had been violated and stated the purpose of that provision in the following terms at page 213:

…

As a second method of attempting to creating an environment conducive to the settlement of collective bargaining differences and “cooperative efforts to develop good relations and constructive collective bargaining practices” and “constructive settlement of disputes” and “effective industrial relations for the determination of good working conditions and sound labour-management relations” (Preamble), Parliament has enacted section 148(b) of the Code. This section prohibits an employer from altering “the rates of pay, any term or condition of employment or any right or privilege of the employees in the bargaining unit” or “any right or privilege of the bargaining agent” until the time of a lawful work stoppage, unless “the bargaining agent consents to the alteration of such a term or condition or such a right or privilege”. The prohibition is imposed on the employer, because Parliament recognizes that in the normal course it is the employer that is in the position to influence the proceedings at the bargaining table by making decisions affecting its operation without prior consultation with the union. By making such decisions and acting unilaterally, the employer can undermine the authority of the employees’ bargaining agent, and also poison the environment within which collective bargaining is being conducted and thereby catalyst avoidable legal or illegal industrial conflict. Such unilateral action is contrary to the cooperative relationship envisioned by and sought to be promoted in the Canada Labour Code, Part V.

The scope of the prohibition in section 148(b) is deliberately more expansive than the scope of past collective agreements. Current or prospective negotiations between a trade union and employer are not restricted to the subjects addressed in previous collective agreements… The trade union may seek to negotiate with respect to any matter that is a term and condition of employment, expressed in either individual contracts of employment or a previous collective agreement, and any other matter, characterized by Parliament as “any right or privilege of the employees in the bargaining unit”. It may also seek to negotiate with respect to “any right or privilege of the bargaining agent” whether acquired in a previous collective agreement or otherwise enjoyed by the trade union… .

Our interpretation of the purposes of section 148(b), namely protecting the exclusive authority of the bargaining agent from being undermined by unilateral employer action, encouraging cooperative collective bargaining practices and the constructive settlements of disputes, is consistent with the requirement in section 148(b) that an employer alteration is permissible with the consent of the bargaining agent. The requirement for that consent requires the employer to recognize the authority and role of the bargaining agent and necessitates communication between the employer and bargaining agent, thereby fostering joint resolution of interests of either party.

…

[Emphasis added]

75        The purpose of a statutory freeze is thus to maintain a level playing field throughout negotiations by preventing the employer’s position from being unilaterally imposed on the conditions to be negotiated.

76        When determining the terms and conditions of employment to which a statutory freeze applies, the former Board adopted a liberal approach based on the “business as before” test (see Public Service Alliance of Canada and Canadian Association of Professional Employees). That test would not be contradicted by the “reasonable expectations” test described earlier, which is that the employees would expect the respondent’s normal practices to continue during the statutory freeze period.

77        The respondent argues that it could modify the policy applied to PSIs at any time. The bargaining agent argues that this policy in fact formed part of the employees’ terms and conditions of employment and thus is subject to the statutory freeze.

78        I agree with the bargaining agent on this point. The old policy, even if not part of the collective agreement, governed PSI interviews for employees, which are an important part of their workplace reality. They constitute a crucial step in the fact-finding exercise that may lead to discipline, termination, or revoking reliability status. The fact that they are included in the bargaining agent’s top priorities in this bargaining round is telling. When it modified the policy, the respondent was acting on something that could be embodied in a future collective agreement.

79        Not only is the PSI policy part of the terms and conditions of employment, the evidence of the witnesses, as well as the texts of the old and new policies, all point to significant changes in the way PSI interviews are carried out under the new policy. The alteration of the policy may have a considerable impact on employees, as they have been exposed to at least three major changes: the choice of observer, the signing of a non-disclosure agreement by the interviewees and the observers, and the denial to observers of an important component of their observer role, which is note taking.

80        Therefore, I find that the new policy is a real and substantial change to the terms and conditions of employment as it substantively modifies the policy that previously governed PSIs. It cannot be said that this is “business as before”, as it significantly departs from the pattern set by the old policy. In the statutory freeze period, employees would have reasonably expected that their rights during PSIs would be preserved during the bargaining period, including the right to choose the observer and to have the observer be able to take notes.

81        Therefore, I find that s. 107 was breached.

C. Interference in the bargaining agent’s relationship with its members

82        The bargaining agent submits that to the extent union representatives accompany bargaining unit members as observers, they should be able to fulfill their duties as observers properly, including carrying out note taking. The respondent has added in its policy that they cannot act as union representatives. That statement is new, but from the evidence received at the hearing, the practice has not changed. Union representatives have very often been observers, and investigators often knew that they were union representatives. However, according to the PSAC’s witnesses, even when union representatives were identified as such, they did not act as union representatives as they would in a disciplinary hearing. They might ask questions or ask for breaks, but that was the extent of their interventions before the policy change; their role has remained the same since the change, save for note taking, which is a new rule that applies to all observers.

83        It seems to me that the reasoning in Naidu still applies. There is no right to union representation in investigative meetings at the present time, and the matter is being discussed at the bargaining table. Specifying in the policy that union representatives cannot act as such in a PSI interview is a restatement of the already existing situation. The previous policy, although it does not specifically mention union representatives, did state that third parties were limited to an observer role. Union representatives cannot play that role at PSIs; the bargaining agent did not establish through its evidence that they ever did. The PSAC’s witnesses who testified to their presence at PSIs reported that although they might have introduced themselves as union representatives, they simply accompanied the respondents or witnesses and never played a representational role as they would in a disciplinary meeting.

84        It is true that union representatives have been rendered less effective at PSIs, given the note taking prohibition. However, it is a general prohibition that does not target the bargaining agent specifically. It could be seen as interference in the basic procedural rights of respondents and witnesses who are part of PSIs; however, it cannot be characterized as interference in the bargaining agent’s relationship with its members. It is not as union representatives that they cannot take notes but as observers.

85        Therefore, I find that s. 186(1)(a) has not been breached.

D. Conclusion

86        I find that there has been no violation of ss. 106 and 186(1)(a) of the Act. I also find that the respondent has breached s. 107 of the Act, by implementing a new PSI policy without consulting the bargaining agent, thus changing the terms and conditions of employment of CBSA employees after notice to bargain was served.

87        The new policy implemented on January 30, 2015 will be null and void until bargaining is concluded.

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

VI. Order

89        The complaint is partly allowed.

90        The Board finds no violation of s. 106 or s. 186(1)(a) of the Act.

91        The Board finds that the respondent breached s. 107 of the Act.

92        The new policy implemented on January 30, 2015 is rendered null and void until bargaining is concluded. For greater clarity, bargaining may conclude because the parties have entered into a new collective agreement, because an arbitral award has been rendered, or because a strike could be declared or authorized without contravening s. 194(1) of the Act.

93        The Board orders the respondent to post this decision in a prominent location in all the workplaces of the employees in the bargaining unit.

March 8, 2016.