FPSLREB Decisions

Heard at Kingston, Ontario,
October 31 to November 2, 2017, and January 4, 2018.

REASONS FOR DECISION

I. Complaint before the Board

1        Pedro Sousa-Dias (“the complainant”) is an employee of the Canada Border Services Agency (CBSA) at its Lansdowne Port of Entry in Ontario. He is a member of the Customs and Immigration Union (CIU), which is a component of the Public Service Alliance of Canada (“the respondent”).

2        On December 11, 2015, the complainant filed this complaint under s. 190(1)(e) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA). In it, he alleged that the respondent had failed to implement the collective agreement, namely, the Agreement between the Treasury Board and the Public Service Alliance of Canada; Group: Border Services (all employees), which expired on June 20, 2014 (“the collective agreement”).

3        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9), received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

4        A hearing was held on October 31 to November 2, 2017. The parties presented the Board with an agreed statement of facts and a joint book of documents. The complainant called as witnesses himself and Wanda Hogan, Chief Steward, Eastern Ontario Branch, CIU. The respondent’s witnesses were Jean-Pierre Fortin, National President, CIU, and Kim Poirier, Branch President, Eastern Ontario Branch, CIU.

5        The parties presented their closing arguments to the Board at a continuation of the hearing on January 4, 2018.

6        The Board must consider the following two questions:

• Does the Board have jurisdiction to consider the complaint?
• If so, is the complaint founded?

7        For the reasons that follow, I find that the Board has the authority to consider this complaint. However, the complainant has not met his burden of proving that the complaint is founded, and it is dismissed.

II. The Board’s jurisdiction

A. The positions of the parties

8        The complaint was filed pursuant to s. 190(1)(e) of the Act, which reads in part as follows:

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

…

(e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) ….

9        Section 117 states as follows:

117 Subject to the appropriation by or under the authority of Parliament of money that may be required by the employer, the parties must implement the provisions of a collective agreement

1. within the period specified in the collective agreement for that purpose; or
2. if no such period is specified in the collective agreement, within 90 days after the date it is signed or any longer period that the parties may agree to or that the Board, on application by either party, may set.

10        The respondent submits that the Board does not have jurisdiction to consider this complaint and that s. 190(1)(e) is intended to address issues between the parties to the collective agreement, which are the Treasury Board and the respondent. It refers to paragraph 4:1100 of Brown and Beatty, Canadian Labour Arbitration, Fourth Edition, which states that “… an essential ingredient of a collective agreement is that it be between an employer and a trade union.” The respondent notes that this is reflected in the Act, which defines a collective agreement as an agreement in writing between the employer and a bargaining agent (see s. 2(1)). Also in the Act, parties are defined as “… in relation to collective bargaining, arbitration, conciliation or a dispute … the employer and the bargaining agent” (see s. 4(1)).

11        The respondent notes that in Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22, the former Public Service Labour Relations Board (PSLRB) dealt with a complaint that the employer had failed to implement the collective agreement. The Board Member decided that the PSLRB could not consider the complaint because the complainant was not covered by the collective agreement in question. In addition, the Board Member, while not having to make a determination on the issue, suggested that it was “… unclear whether an employee covered by the collective agreement can prevail himself of the provision …” (at paragraph 62).

12        The respondent argues that to find in the complainant’s favour would set a far-reaching precedent with consequences not intended in the Act.

13        The respondent further states that the complainant’s concerns are not about the implementation of the collective agreement. They are about a disagreement as to how the provisions should be interpreted and applied. The interpretation and application of collective agreements rests with bargaining agents, not individual members.

14        Finally, the respondent submits that the focus of s. 117 is on timelines for implementing a collective agreement, and the complainant presented no evidence about whether the timelines were met. In Paradis v. Fraser, 2009 PSLRB 130, the Board stated as follows at paragraph 9: “Sections 117 and 157 of the Act deal with the timelines for implementing a negotiated collective agreement or an arbitral award. There are no facts or allegations in the complaint referring to non-compliance with those timelines.”

15        The complainant responds that s. 190(1)(e) does not limit using it to the parties of the collective agreement. On the contrary, it clearly states that the Board must examine and inquire into every complaint filed with it under that provision.

B. Analysis

16        There is no doubt that the parties to the collective agreement are the Treasury Board and the respondent and that the parties are responsible for implementing it.

17        However, in my view, this does not lead to the conclusion that only the parties to the collective agreement can make a complaint under s. 190(1)(e).

18        As the complainant points out, s. 190(1)(e) contains no limiting language. It states that “[t]he Board must examine and inquire into any complaint …” [emphasis added].

19        Therefore, I find that the Board has jurisdiction to consider this complaint.

20        The respondent raised a concern that deciding that the Board can consider a complaint under s. 190(1)(e) from a complainant who is not a party to the collective agreement would create a dangerous precedent. I have considered this viewpoint. However, in my view, adding the limitation that the respondent seeks would read-in a restriction that the legislators did not include.

21        The respondent further states that s. 117 is really about implementation timelines and that the complainant provided no evidence of any timelines not being complied with. I agree that it sets out the period during which the parties can do whatever is necessary to implement a collective agreement. Within that period, no one can complain about a lack of implementation. Once it ends, implementation must have occurred.

22        I consider that when he argued that implementation did not occur, the complainant implicitly took the position that the implementation timelines had expired, which the evidence shows was the case. Section 117 states that the deadline for implementation is either the date specified in the collective agreement for that purpose, or within 90 days after it is signed, or any longer period the Board may set when there is agreement between the parties. The collective agreement is silent about the date of implementation, and no evidence was presented about a longer date set by the Board. Therefore implementation was required to take place within 90 days of the date that the collective agreement was signed, which in this case was March 17, 2014.

23        The respondent also argues that the Board does not have jurisdiction because this complaint is not about implementation but rather about the application of provisions already implemented. In other words, the Board does not have jurisdiction because the complaint is unfounded. I find that whether or not the complainant is ultimately successful in proving that the complaint is founded is a question of its merits, not of jurisdiction.

24        The Board requested that the parties provide submissions on two prior cases that dealt with jurisdiction and complaints under s. 190(1)(e). In Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28, the PSLRB dealt with a complaint from a member that his bargaining agent had failed to implement the collective agreement when it refused to represent him in a grievance against the employer. The PSLRB found that ss. 157 and 117 did not apply, and stated, “The complainant’s employer is responsible for implementing collective agreements or arbitral awards, not the bargaining agent” (at paragraph 19).

25        In Halfacree v. Public Service Alliance of Canada, 2010 PSLRB 64, the PSLRB made the same finding in similar circumstances and added, “The complainant does not seem to understand that he cannot blame his bargaining agent for problems that he has experienced with his employer” (at paragraph 15).

26        The complainant submits that those decisions do not apply to the present matter because in them, the matters started as disputes with the employer, not the bargaining agent. He also points out that contrary to the statement in the first noted Halfacree decision that only the employer is responsible for implementing a collective agreement, s. 190(1)(e) names both the employer and the employee organization as possible subjects of a complaint about a failure to implement.

27        The respondent argues that the Halfacree decisions are relevant and that they show that s. 190(1)(e) cannot be used to complain about contract administration as opposed to implementation.

28        I find that the Halfacree decisions are not helpful because the subject in the present case is Appendix B of the collective agreement, which is a part of the collective agreement that the bargaining agent had to implement. In addition, unlike in thosecases, this complaint is not in any way related to a disagreement with the employer.

III. The merits of the complaint

A. Background

29        The complainant believes that the respondent has not implemented the collective agreement in the following two areas:

• the process chosen in 2015 for establishing a new variable shift schedule arrangement (VSSA) at the Lansdowne Port of Entry did not respect the collective agreement, in particular Appendix B; and
• the “Memorandum of Agreement” that sets out the new VSSA for that port contains provisions for amending it that are contrary to the collective agreement, in particular Appendix B.

30        To understand the parties’ positions on the first area of this complaint, it is helpful to know what the collective agreement says about VSSAs, how the CIU is organized, and how the VSSA negotiations at the Lansdowne Port of Entry were conducted. For the second area, it is important to review the provisions of the Lansdowne Port of Entry Memorandum of Agreement concerning the amendment process.

Variable shift schedule arrangements

31        The collective agreement contains rules for establishing shift schedules (see clauses 25.13 to 25.23). However, consultations can take place at a local level to establish a mutually acceptable VSSA that differs from the shift schedules described in the collective agreement (at clause 25.24).

32        Appendix B of the collective agreement sets out the process for establishing or modifying VSSAs.

33        Clause 1 states, “The intent of this appendix is to provide the parties with a process to facilitate reaching agreement at the local level, within prescribed timeframes.”

34        Clause 2 sets out the process for VSSA negotiations. The complainant’s concerns are about the first part of the VSSA process, described in the collective agreement as follows:

2.1Local consultation pursuant to paragraph 25.24(a) of the agreement will take place within five (5) days of notice served by either party to reopen an existing [VSSA] or negotiate a new [VSSA].…

…

2.3 Discussions at the local level shall be concluded within five (5) weeks from the time of the first meeting identified in paragraph 2.1 above.

2.4 Should the parties come to an agreement on a proposed VSSA schedule at the local level, the union shall submit the schedule for ratification by the employees.

2.5 Should the discussions at the local level not result in an agreement on a proposed VSSA schedule, the parties will immediately refer the outstanding issues to representatives from the Union and regional representatives from the Employer for further consultation.

…

2.7 Joint recommendations of the representatives identified under 2.5 above on the outstanding issues, or a proposed VSSA schedule shall be sent back to the local level for consideration for a maximum of one (1) week period.

2.8 Should the parties come to an agreement on a proposed VSSA schedule at the local level, the union shall submit the schedule for ratification by the employees. Otherwise, the union will submit the last Employer VSSA proposal to a vote.

…

The CIU’s organization

35        The CIU’s members are organized into 23 district branches, each with a number of work units. In each branch, the members elect a branch executive (a president, vice-presidents, a secretary, and a treasurer). The branch president is its chief executive officer. Stewards, who are either elected or appointed, assist members at different work units within the branch. There is also a national level, consisting of a national executive, the national convention, and a national board of directors.

VSSA negotiations at the Lansdowne Port of Entry in 2015

36        On September 14, 2015, the CBSA emailed the CIU’s Eastern Ontario Branch, in particular, the branch president (Ms. Poirier) and chief steward. In it, the CBSA advised that it wished to begin consultations to negotiate a new VSSA at the Lansdowne Port of Entry.

37        In its email, the CBSA stated, “As such, management and employee representatives will be following Appendix B of the collective agreement”. It also gave the names of the two persons that would act on its behalf in the VSSA consultations.

38        After receiving the email, Ms. Poirier took on the task of choosing people to represent the CIU on a VSSA negotiating committee, which would also include the two CBSA representatives. She asked for advice on this subject from several CIU officials, including the national president (Mr. Fortin) and other branch presidents.

39        On the same day, Ms. Poirier wrote to several Eastern Ontario branch union representatives, including the complainant. She told them that the CBSA wanted to negotiate a new VSSA for the Lansdowne Port of Entry. She also stated that she was seeking advice about the composition of the VSSA negotiation committee and guidance on the negotiations.

40        On September 15, 2015, Ms. Poirier asked for a meeting with union representatives, including the complainant, who at the time was the CIU’s executive second vice-president in the Eastern Ontario branch. He was not available.

41        Still on September 15, 2015, she emailed CIU members at the Lansdowne Port of Entry to advise them of the VSSA negotiations. She stated, “As you are no doubt aware, management has served notice as per Appendix B of the Collective Agreement to negotiate a new [VSSA].”

42        In her email, she explained that a VSSA negotiating committee was being formed. It would be composed of two employer representatives and two CIU member volunteers who did not hold union positions. Ms. Poirier stated that one union representative volunteer would be present, “to provide guidance and assistance to the committee,” but no union representative would formally be included in the VSSA negotiating committee.

43        Ms. Poirier explained her reasoning as follows:

In keeping with other Branch practices as well as past practice have decided [sic] that in the interest of ensuring all members affected by this notice have an opportunity to be a part of the committee which will be representative of the membership affected, I am seeking two members who do not hold union positions to volunteer to sit on the committee. I am also seeking one member holding a union position to volunteer to provide guidance and assistance to the committee where necessary.

[Emphasis added]

44        Committee members were chosen by an electronic vote of the membership. The complainant did not volunteer.

45        The VSSA negotiating committee held meetings. It then circulated possible VSSAs, and one was chosen by a membership vote.

46        The VSSA negotiating committee also drafted terms of reference in relation to the new VSSA. They are found in a “Memorandum of Agreement” (MOA) between the CIU, Local 027, and the CBSA.

47        On October 31, 2015, the membership ratified the new VSSA, along with the terms of reference.

Amendment process in the Lansdowne Port of Entry MOA

48        Clause 1.2 clarifies the scope of the MOA as follows:

1.2     The provisions of this Agreement shall not be considered all-inclusive but must be applied in conjunction with and considered additional to the Border Services Collective Agreement between the Treasury Board and the Public Service Alliance of Canada.

49        Clause 5 describes the amendment process as follows:

5.1     The scheduling committee will monitor, on an ongoing basis, the application of the schedule to existing traffic requirements.

5.2     This agreement may be amended by mutual consent, by giving 30 calendar days’ notice, following consultation on the reasons for such. No changes will be made to the schedule unless they have been mutually agreed upon by the scheduling committee.

5.3     If required, due to the staffing levels, lines in the VSSA may be added or subtracted in a manner that maintains the ratio of the current 2/2/3, 4/4, 5/4/4/3, 4/3/3/2.

5.4     Prior to the 48 week VSSA repopulation, the committee reserves the right to make adjustments to the ratio of 2/2/3, 4/4, 5/4/4/3, 4/3/3/2 lines if staff interest arises and it is operationally feasible. This does not in any way constitute a re-opening of the VSSA.

B. The complainant’s position

50        The complainant argues that when Appendix B refers to facilitating the reaching of agreement at the “local level” with “local consultation”, it means that union representatives at the work-unit level have control of the consultation for the first five weeks. Only if no agreement is reached at the local level do the branch-level officials get involved. On that basis, he believes that it was wrong for the Branch President to decide that there would be a VSSA negotiating committee and that it would not include union representatives.

51        The complainant also believes that the amendment process in the MOA constitutes a failure to implement the collective agreement because it goes against that agreement in two areas. First, it allows for amending a VSSA without following the required procedure. Second, it makes it necessary to set up a standing committee, which the collective agreement does not require.

C. The respondent’s position

52        The respondent submits that no language in the collective agreement places the first five weeks of consultation exclusively with the local union representatives. The agreement is actually silent on the details of organizing a local consultation.

53        The respondent also suggests that given the CIU’s organization, the branch level is actually the equivalent of what Appendix B refers to as the local level.

D. Analysis

54        This complaint is filed under sections 190(1)(e) and 117 of the Act. The complainant alleges that the respondent did not implement the provisions of the collective agreement related to VSSAs.

55        It is important to be clear about what implementation means. According to the Cambridge Dictionary, ‘implementation’ means “the act of putting a plan into action or of starting to use something”. This notion is confirmed in the French version of section 117, which states:

117 Sous réserve de l’affectation par le Parlement, ou sous son autorité, des crédits dont l’employeur peut avoir besoin à cette fin, les parties à une convention collective commencent à appliquer celle-ci :

1. au cours du délai éventuellement prévu à cette fin dans la convention;
2. en l’absence de délai de mise en application, dans les quatre-vingt-dix jours suivant la date de la signature de la convention ou dans le délai plus long dont peuvent convenir les parties ou que fixe la Commission sur demande de l’une ou l’autre des parties.

[Emphasis added]

56        In our context, once the employer and the bargaining agent agree on a collective agreement, and after it is ratified by the membership, there is a point in time by which the provisions of the collective agreement must have come into force. From that time on, its provisions become binding on the parties and the collective agreement is considered to have been implemented.

57        The evidence shows that CBSA, CIU, the respondent, and the complainant were all acting on the basis that the provisions were in force and had to be followed in any VSSA negotiations.

58        For example, in the CBSA’s first email to the CIU expressing its desire to negotiate a new VSSA for the Lansdowne Port of Entry, its official stated that “… management wishes to begin consultation to negotiate a new [VSSA] at the Port of Lansdowne, as provided for in article 25.24(a) of the collective agreement”. She further stated, “As such, management and employee representatives will be following Appendix B of the collective agreement”.

59        The CIU believed that it was bound by the collective agreement. In her email to inform people about the CBSA’s request, Ms. Poirier stated, “As you are no doubt aware, management has served notice as per Appendix B of the Collective Agreement to negotiate a new [VSSA]…”.

60        The complainant also demonstrated that he believed that the collective agreement was in force and had to be respected. The basis of the complainant’s position is that the parties were bound by Appendix B. Furthermore, in one of his communications to the National President, he stated, “… in terms of the VSSA negotiations, only the [collective agreement] is to be considered”.

61        Thus, it is clear that the parties considered themselves bound by the provisions of the collective agreement and began putting them into action.

62        Based on this evidence, I find that the respondent implemented the collective agreement, in particular Appendix B. The complainant presented no evidence to prove the contrary. As a result, the complaint is dismissed.

IV. Observations

63        The evidence shows that the complainant’s concerns are not about implementation but about how the implemented collective agreement is to be interpreted and applied.

64        The complainant asks the Board to clarify the role of union representatives in VSSA local consultations and to order that the MOA amending process is null and void.

65        I cannot make determinations about interpreting and applying the collective agreement, because for this complaint, I can consider only the implementation issue. However, I make the following observations.

66        Appendix B describes a VSSA negotiation that starts at a local level. This is somewhat confusing in the CIU’s context, which is organized only by national and branch levels. Its documents do not define what “local level” means.

67        In the context of this case, the CBSA’s initial communication asking for VSSA negotiations under Appendix B provides some guidance. In it, the CBSA official identified the location for the VSSA as Lansdowne Port of Entry, a work unit included in the Eastern Ontario branch. It is reasonable to believe that in this case, this work unit constituted the local level, and it was on that level that the consultation started.

68        However, I note that Appendix B is silent about who organizes the local consultation, what it should look like, and who should be involved.

69        The MOA amendment process seems to provide for making changes to the VSSA without following the Appendix B process. However, the MOA also states that the MOA provisions “must be applied in conjunction with and considered additional to the Border Services Collective Agreement …” (see paragraph 1.2).

70        The complainant questions what recourse he has in situations in which he may disagree with his bargaining agent’s interpretation and application of the collective agreement.

71        The Act recognizes that the bargaining agent is responsible for applying and interpreting the collective agreement. Individual employees cannot grieve when they disagree with an interpretation unless they have the bargaining agent’s support, which would be unlikely in a case in which the dispute is with that bargaining agent. In Cavanagh v. Canada Revenue Agency, 2014 PSLRB 21 at para. 24, the PSLRB explained that the purpose of this rule is as follows:

[24] Since a bargaining agent represents all the employees in a bargaining unit when it negotiates a collective agreement, of necessity, it must be involved in any grievance that would interpret or apply the agreement, as it must ensure that the interests of the bargaining unit as a whole are represented.…

72        This means that generally, an individual employee cannot file a grievance about his or her bargaining agent’s interpretation and application of a collective agreement. However, if that person believes that the bargaining agent’s representation reaches the level of being unfair to the point of being arbitrary, discriminatory, or in bad faith, he or she may make a complaint under s. 190(g) of the Act (referring to s. 187, unfair representation by a bargaining agent).

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

V. Order

74        The Board has jurisdiction to consider this complaint.

75        The complaint is dismissed.

May 18, 2018.