FPSLREB Decisions

[1]      On July 7, 1997, John King grieved a 10-day suspension, alleging that his rights had been violated contrary to Article M-15 of the Master Agreement between the Public Service Alliance of Canada (PSAC) and the Treasury Board as a result of his "engaging in an illegal strike which management stated did not take place."

[2]      Mr. King referred his grievance to adjudication on December 1, 1997. The grievance was heard by former Board Member Rosemary Vondette Simpson in Toronto from October 26 to 29, 1998, April 13 to 16, and November 23 to 26, 1999. A decision was rendered on May 11, 2000, whereby Mr. King's grievance was allowed in part and a five-day suspension was substituted therefor.

[3]      Following Mrs. Simpson's decision, Mr. King applied to the Trial Division of the Federal Court for judicial review. On December 20, 2001, Madam Justice Simpson rendered a judgement (King v. Canada (Attorney General), [2001] F.C.J. No. 1929, 2001 FCT 1407) stating that "this application is allowed and the applicant's Grievance, as defined in the Reasons, is to be reconsidered by another adjudicator."

[4]      Following the Court's judgment, a new hearing date was set for May 13 to 16, 2002; however, the hearing was postponed several times at the request of both parties. The parties agreed to attempt to resolve the matter through the Board's mediation services but were unsuccessful. A new hearing date was then set for January 20 to 22, 2003.

[5]      Counsel for the employer introduced 10 exhibits and called six witnesses; the grievor's representative introduced two exhibits and called two witnesses, including the grievor.

[6]      Both representatives agreed that Article M-15 of the Master Agreement and section 102 of the Public Service Staff Relations Act (PSSRA) were not in contention. It is also common ground that no job action ensued as a result of Mr. King's notice of May 28, 1997, to his members.

[7]      The grievor's representative raised several objections during the hearing. The objections were resolved to the satisfaction of both parties and were in fact just clarifications that hold no weight in my reasons for decision.

[8]      Norm Sheridan has been with the then Department since 1979; he currently holds the position of District Director of Passenger Operations at Pearson International Airport (PIA). Prior to that, he was a Customs Inspector for four years, as well as a Customs Superintendent for four years.

[9]      Mr. Sheridan testified that from April 14 to May 2, 1997, he was acting on behalf of Barbara Hébert as the Regional Director of the Greater Toronto Area. In assuming her duties, he was responsible for passenger processing and activities related to the delivery of program services.

[10]      Mr. Sheridan testified that on April 25, 1997, he discovered in Ms. Hébert's in-basket a copy of a letter dated April 3, 1997 (Exhibit E-1; tab 11 - "the letter"), signed by John King, Toronto District Branch President, Customs Excise Union Douanes Accise (CEUDA), addressed to The Honourable Jean Chrétien, The Honourable Jane Stewart, The Honourable Allan Rock and The Honourable David Anderson. The letter stated as follows:

We Canadians pride ourselves on the fact that we live in the number one country of the world. What makes Canada so great is the fact that our society is founded upon principles that recognize the supremacy of God and the rule of law. These principles of fairness and equality are enshrined in the Canadian Charter of Rights and Freedoms. How important is the Constitution to us and how far are we willing to go in order to protect it?

Since the commencement of my employment eight years ago, I have witnessed a great deal in regards to the internal workings of the Canadian government. To say that life is not fair is an understatement when you compare the standards and conditions of employment that are legislated to protect employees in the private sector, in comparison to those which apply to employees of the Crown. The question I asked the previous Minister of Revenue, the Minister of Justice and the Prime Minister of Canada back in 1995, was whether or not civil servants are protected in principle by the Canadian Charter of Rights and Freedoms. I was never provided with an answer.

If there is an obligation to co-operate with Internal Affairs, to the extent of being put in a line up so as to be viewed by a legal representative and a client, do we not have equal rights to counsel if requested, regardless of whether or not we are officially detained?

I write to you today on behalf of all civil servants and in particular to one, who was recently accused then discharged from duty, without being granted the opportunity to defend himself against the allegations. The individual was not informed of all the charges that he was suspect to nor was he cautioned or read his right to counsel prior to being interviewed. He was never charged with a crime nor was he ever proven guilty of one. There was never an opportunity for a hearing at which the employee could avail himself, in order to dispute the investigator's report that resulted in his discharge. Despite discrepancies and contradictions, the Director of Customs Border Services Inland, Southern Ontario Region, proceeded with the discipline despite our request to postpone.

It is important to note that this employee has performed his duties in a fully satisfactory manner for over twenty five years and has never before been counselled or disciplined. It is also clear that he has not been granted the necessary measure of fairness in the process leading up to his discharge and because of this, his livelihood has been taken away. Whatever happened to the presumption of innocence until proven guilty? In case you are curious as to the nature of the crime, it was the submission of an erroneous travel claim which was never paid.

In lieu of the aforementioned it is necessary to question what appears to be a two tiered system of justice within the federal government. I cannot avoid discussing the lack of accountability, deception and abuse that I have been witness to while working for the Revenue Canada in the Southern Ontario Region. The undoubted broad authority of management is accompanied by a responsibility of equal scope and that is to administer policies and legislation in a consistent and equitable manner. This is not common practice in this region.

Please explain why the aforementioned employee was immediately restricted access to his regular work site, discharged from duty in this manner, while at the same work location a seized prohibited weapon (AK-47) was removed from the Queens warehouse, taken off site with no required permits to carry or convey, and the manager responsible is not disciplined? Where is the fairness? Where is the accountability to the Canadian public?

Other issues of concern:

A minimal number of officers are required on duty in order to provide adequate border protection, as well as to prevent any inconvenience or delays to the traveling public and importers. Despite an increase in traffic and non-compliance, enforcement action has decreased in the Toronto area. High risk shipments that have been targeted for examination are overlooked because inspectors are instructed to release shipments prior to keying entries into the computer. This process known as recovery is due to the high volume of entries generated in comparison to the low number of staff on hand. Passenger operations are understaffed at times to the point that we do not have enough officers on duty to conduct personal examinations. We have requested several times to know what the minimal staff requirements are but management is unwilling to provide this information. The priority appears to be budget related rather than to service delivery. This may be directly related to the bonus or performance pay that upper management is eligible for.

Guidelines pertaining to conflict of interest are also not administered in a fair and consistent manner.

"At no time shall a former employee act for or on behalf of any person, commercial entity, association, or union in connection with any specific ongoing proceeding, transaction, negotiation or case to which the government is a party."

A number of managers while still employed with Canada Customs have been granted leave to work for one particular importer/brokerage firm, which in our opinion contradicts our conflict of interest guidelines. We have received complaints from competing companies in regards to a difference in the average release time of shipments. We have yet to determine whether there is a direct relation.

Speaking on behalf of those who remain professional and proud of the service we provide, we too are concerned with the conduct of some of our superiors. There is a continuous negative impact on both relationships with other agencies as well as to morale among employees. I hope you find these issues worthy of your immediate attention.

In lieu of the opening issue, I will be advising all Customs Inspectors not to perform any further examinations unless a fellow officer is present to witness. This practice will continue until such a time that our legal rights and obligations are clearly stated. The purpose of this is for no other reason than to protect the welfare of the employees.

(Emphasis added)

[11]      Mr. Sheridan stated that, in his opinion, the last paragraph of this letter was totally inappropriate. He described the operational impact at PIA if Customs Inspectors were to "double or team up". First and foremost, approximately 8.2 million passengers travel through PIA every year. The witness stated: "We have always needed more Customs Inspectors, as we have never been flush."

[12]      Mr. Sheridan's testimony regarding the processing procedure for passengers disembarking from aircrafts at PIA and entering customs can be summarized as follows. The airline staff directs passengers to a large room (primary hall) where they queue up. When summoned by a Customs Inspector, a passenger proceeds and presents his/her customs declaration card (also referred to as an "E311"). A passenger might also be asked to produce identification, such as a driver's license, a birth certificate, passport and/or airline ticket. The Customs Inspector has access to databases such as the "Integrated Primary Inspection Line" (IPIL), where information on passengers is linked to the Immigration database, as well as the "Primary Automate Lookout System" (PALS). Based on the information and documentation provided by the passenger and the information from the databases, the Customs Inspector directs the passenger either to Immigration or to the secondary baggage hall.

[13]      If the Customs Inspector suspects that the passenger is concealing contraband or that duties and taxes are owing, the E311 is marked with a series of numbers and alphabetical codes.

[14]      Once the passenger picks up his/her baggage, the passenger proceeds to the "point" where a Customs Inspector reviews the coding noted on the E311 by the primary Customs Inspector. The "point" Inspector then checks any baggage for inconsistencies with the E311 and will either direct a passenger to go to secondary inspection or let the passenger leave. A passenger can be sent to secondary examination if the Customs Inspector has doubts or because of information from an intelligence source. The Customs Inspector's criteria to reach the "point of finality" in letting a passenger leave without going through a secondary inspection are based on a decision that there are no goods to declare, the declaration card was complete or it might just have been a communication problem which was since resolved.

[15]      The secondary inspection is performed by a Customs Inspector who asks for the passenger's E311, as well as identification to confirm that the person holding the E311 is one and the same. This is done because, in the past, it has been found that passengers have switched bags while waiting in line. The secondary Customs Inspector will look at the coding from the primary Customs Inspector to determine the reason for referral. The Customs Inspector will ask the passenger to place his/her baggage on the counter and most of the time the passenger will open his/her own baggage. Usually, the Customs Inspector will want to see the declared goods and will perform either a full or a cursory inspection of the baggage.

[16]      A full or detailed examination would entail removing the contents from the bag in order to detect concealed goods. The Customs Inspector needs to touch the contents of a bag, as passengers have sewn jewellery into seams of clothing, concealed narcotics in the soles of shoes, the bag itself might have a false bottom, drugs might be hidden in the tubular handles of a suitcase, heroin and cocaine can be diluted with water and then sprayed onto clothes, contraband has been hidden in cans of food and hash and cocaine in liquor bottles. Suffice to say that a Customs Inspector needs to handle the goods in order to perform a thorough examination of a passenger's baggage. The clothes sprayed with heroin and cocaine will feel waxy or slimy, shoes will weigh more if the soles are loaded with drugs, and cans of food holding vials of drugs inside will make a noise when lifted. Again, suffice to say that a visual examination would not effectively allow a Customs Inspector to perform his or her duties. One of the Department's primary mandates is to prevent certain substances or items from entering the country. These include narcotics, illegal firearms, child pornography, smuggled jewellery and agricultural products.

[17]      After a baggage examination has been completed and the Customs Inspector believes that the Customs Act and other laws have been complied with, the passenger repacks his/her bags and is allowed to leave.

[18]      Mr. Sheridan stated that, except in certain instances, it is not customary for Customs Inspectors to double or team up. Exhibit E-I, tab 2, is Chapter I, Part 4, of the "Examination and Search" portion of the Customs Enforcement Manual.

[19]      While referring to the Manual, Mr. Sheridan identified instances where a Customs Inspector could possibly double or team up. These include instances when Customs Inspectors are examining wallets, purses or pockets; where Customs Inspectors perform personal body searches or if a passenger is known to have a history of violence. The witness also identified Exhibit E-1, tab 4, entitled "Enforcement Bulletin", which outlines, in a more concise format than the Manual, procedures and approaches to be followed. Mr. Sheridan testified that Mr. King's "advice" to Customs Inspectors not to perform any further examinations without a fellow officer present as a witness would have had, if followed, an extreme operational impact. PIA was not resourced to double up for every examination. The effect, had it occurred, would have caused the queue to back up and would have had a ripple effect on the entire customs operation.

[20]      After reading Mr. King's letter of April 3, 1997 (Exhibit 1, tab 11), advising Members of Parliament and the Prime Minister that Customs Inspectors would be advised by their Local Union President to double up, Mr. Sheridan sent an e-mail to Ruby Howard, the Regional Assistant, Commissioner, Barbara Cattelan, Senior Coordinator, Human Resources, and Barbara Hébert, the Regional Director, informing them of this action. E-mails were also sent to the three terminal managers (John Szenczyk, Bonnie Lou Glancy and Terry Hale) to caution them on possible doubling up of Customs Officers and advising them to report any incidents immediately.

[21]      Mr. Sheridan testified he made the decision to talk with Mr. King on May 2, 1997. During a 40-minute telephone conversation, he clarified to the grievor that, based on the final paragraph of his letter, the steps Mr. King was proposing in doubling up Customs Inspectors could be viewed as an illegal strike and could be subject to discipline. Mr. Sheridan indicated that, as he was not the final decision-maker, he could only warn Mr. King and CEUDA. Mr. Sheridan felt it was his responsibility to caution Mr. King because in his mind staff, as members of the union, would follow Mr. King's direction. Mr. King, as President of his CEUDA local, has a lot of influence over his membership.

[22]      Mr. Sheridan summarized the telephone conversation as follows. "Mr. King and I had a fairly open conversation. He confirmed the intention of his letter, as he stated, 'I am safe. I am not ordering them but advising them.' Mr. King was calm during this conversation." After the conversation, Mr. Sheridan sent an e-mail (Exhibit E-1, tab 12) to senior management outlining as best he could the discussion between himself and Mr. King. He had no further dealings with this file.

[23]      During cross-examination, Mr. Sheridan acknowledged that to his knowledge there were no complaints from passengers concerning delays and no recollection of delays reported by terminal managers. He agreed that Mr. King took his union local responsibilities seriously; however, his belief is that some of the issues and concerns raised by Mr. King were for Mr. King's own benefit rather than for the benefit of his membership. He stated that Mr. King is influential as the Union Branch President and although no strike action took place, there was a clear intent, based on his conversation with Mr. King, to harm operations at PIA.

[24]      Terry Hale, Manager, Terminal 3, testified that on May 28, 1997, his secretary, Judy Ramanrace, observed Mr. King posting a notice (Exhibit E-1, tab 17 - "the notice") on a board inside the secure area of the Administration Section. The "notice" stated:

PLEASE POST

To:   All Members
       Toronto District Branch

This is a caution to all civil servants regarding the application of the Canadian Charter of Rights and Freedoms as well as a reminder of your right to procedural fairness during internal investigations.

Revenue Canada is one example of a department that continues to demonstrate an unwillingness to respect employees rights when conducting investigations into work related allegations. It appears that we Canadians who are employed to administer and enforce the legislation of this country have fewer rights than others in Canada, in comparison to visitors or those with criminal records.

Numerous requests have been made by myself seeking clarification of our legal rights and obligations. This is not an unreasonable request yet officials of Revenue Canada continue to be unwilling or unable to provide us with this information. It is more disturbing that the Minister of Revenue, the Minister of Justice and the Office of the Prime Minister are also not willing or able to answer these fundamental questions. Why?

The following two incidents will help explain our point and hopefully increase your awareness of the potential risk you face while working for the government.

1)	A passenger is referred by Canada Customs for an examination. Three days after the traveller returns home, the individual notices over $5,000 missing from their baggage. The individual has a lawyer draft a letter to the department accusing an inspector of theft. This is a criminal offence which could result in criminal charges being laid. While being investigated, officers requests for counsel are ignored. The employees are then put in a line up to be observed by the passenger and lawyer. We felt that this was a violation of our civil rights and a request was made for clarification. An answer was never provided. It is important to note that no officer was found guilty of any wronging.
2)	A collections officer accesses the computer in the performance of his/her regular duties. The manager noticed a pattern that he/she felt was suspicious. The employee is suspended without pay until an investigation is completed by Internal Affairs. Again, no wrongdoing was found. The individual was just an above average employee doing his/her job. Was this fair?

In lieu of these and other incidents, it is incumbent on all employees to protect themselves while performing their duties. Least we forget on (sic) of our brothers who was recently deemed guilty of an offence and discharged from duty without a hearing. We offer the following advice that will minimize the risk while performing your duties.

1)	Do not touch the contents of any traveller's luggage. Have the passenger remove the contents from his/her bag and then have them re-pack the contents once your examination is complete.
2)	If a passenger refuses to cooperate, request assistance from your Superintendent. A witness will be your protection from false accusations and will also provide a safer work environment. You have the option of delaying the passenger until your assist is available. Only when you deem it safe, proceed with the examination. If there is not adequate staff available to provide you with an assist, discretion can be used to release the passenger without conducting an examination.

We have exhausted all internal avenues for the last two years are left with no choice but to exercise our last option. It must be understood that the purpose of this is for no other reason than to protect the welfare of those who are serving to protect this country.

[25]      Mr. Hale testified that he removed the notice but found another copy on the bulletin board in the reading room; this room is adjacent to the lunchroom where employees check their shift schedules. On the advice of Ms. Hébert, he contacted the managers of terminals 1 and 2 to make them aware of the notice and instructed them to remove any copies of the notice. The following day, he faxed a copy of the notice to Ms. Hébert. Mr. Hale stated that once he read the notice, he believed it was inappropriate and that it sent a message to Customs Inspectors not to perform their duties.

[26]      During cross-examination, Mr. Hale recounted that the notice was posted for possibly only four or five minutes before he removed it. He also stated that to his recollection no job action took place, nor was he approached by any Customs Inspector with regard to the notice. To his knowledge, the notice was not re-posted.

[27]      Bonnie Lou Glancy, who has been with the Department for 22 years and is now the Manager of Terminal 2, testified that, after being contacted by Mr. Hale on the afternoon of May 28, 1997, she found a notice posted in the lunchroom.

[28]      The witness stated that there were approximately 125 employees on staff, staggered through seven shifts, who could have seen the notice. She removed the notice from the union board and stated that no job action took place that day by employees of Terminal 2.

[29]      During cross-examination, the witness stated that the notice concerned her, as Terminal 2 is the busiest of the three terminals. Her job is to ensure that passengers are processed in a timely and professional manner and within the laws and acts governing customs and excise. Although not complied with by staff, the notice could have caused a morale problem and a slowdown in processing passengers at PIA.

[30]      Jean Laronde, Director of Labour Relations, identified Exhibit E-1, tab 3, as the "Policy and Procedures for Union/Management Relations between Revenue Canada and CEUDA". Pierre Gravelle, Deputy Minister, Revenue Canada, and Mansel Legacy, then National President, CEUDA, signed this document on October 18, 1994, and it was in effect until 1998; the policy was co-developed between union and management. Ms. Laronde's evidence can be summarized as follows.

[31]      The policy provided a forum for national consultations, although local and regional union/management meetings were held on a regular basis. A "Union/Management Referral Form" formed part of the policy, whereby any issue not resolved locally/regionally could be referred up the ladder to the national meeting. The onus was on the parties to resolve issues at the lowest possible level. Mr. King attended the local level meetings and received a copy of the minutes.

[32]      Ms. Laronde testified that on May 4 or 5, 1997, she received an e-mail concerning Mr. King's April 3, 1997 letter. In response, she sent a letter to Ronny Moran, National President, CEUDA, (Exhibit E-1, tab 13), advising him that the Department's intention was to treat the situation, should it materialize, as an illegal strike. As well, she advised Mr. Moran that Mr. King had given a copy of this letter to all CEUDA Branch presidents with a request that they await his further instructions before proceeding to the next step. In conclusion, she asked Mr. Moran to "take appropriate steps to cease and desist from such illegal strike activity and remind those responsible union officials accordingly." She did not send a copy of her letter to the grievor, as she believed the issue could escalate across the country and she expected Mr. Moran to advise all his local presidents.

[33]      Ms. Laronde stated the issues that were raised by Mr. King in his April 3, 1997, letter should have been brought up at the local level and if they were not dealt with to his satisfaction, he could escalate the issues though the regional or national committees. In cross-examination, the witness agreed that she was unaware of any job action that took place at PIA or across Canada. She stated as well that she first saw the May 28, 1997, notice during the first adjudication hearing, and she was unaware that Mr. King had received a 10-day suspension.

[34]      The employer summoned Michel D'Aoust. The witness, who graduated from the Quebec Bar in 1981, was, at the time of this grievance, a Technical Officer (grievances) with CEUDA. His responsibilities were to assist members of the local executive on collective agreement or departmental policy issues.

[35]      Mr. D'Aoust testified that Mr. King could have called him at any time for advice, suggested courses of action or to discuss problems encountered in the workplace. The witness said that if he needed advice, he (Mr. D'Aoust) could call J.C. Plamondon, who was in charge of Legal Services for the PSAC in Ottawa, or, for that matter, Mr. King himself could call. Mr. King could also use the "Policy and Procedures for Union/Management Relations" to bring his unresolved issues to different levels for resolution.

[36]      Mr. D'Aoust recollected he first saw Mr. King's April 3, 1997, letter at the union's Board of Directors meeting, which Mr. King attended. This letter, in which Mr. King stated he would be advising Customs Inspectors not to perform any further examinations without a witness present, caused him great concern. He was concerned that if an examination of every passenger's baggage were performed only with a witness present, there would be insufficient staff. He stated that at the Board of Directors meeting, Mr. King spoke about the number of Customs Inspectors at PIA.

[37]      Mr. D'Aoust testified that he had seen the letter (Exhibit E-1, tab 13) from Ms. Laronde to Mr. Moran dated May 8, 1997. Mr. D'Aoust contacted Mr. Plamondon, who in turn responded by letter dated May 22, 1997 (Exhibit E-1, tab 15), to the concerns Mr. D'Aoust had with respect to Mr. King's letter. Mr. D'Aoust stated: "There were no surprises in Mr. Plamondon's letter, as it was consistent with my views. The concerns were that there would be insufficient staff, it could be viewed as an illegal strike and as well it could contravene the minimum staffing policy at PIA." Mr. Plamondon sent a copy of his letter to Daryl Bean, President of the PSAC, and Evelyne Henry, Head of the Grievance and Adjudication Section.

[38]      Mr. D'Aoust recognized Exhibit E-1, tab 17, as the "notice" and testified that it was a caution to the membership because of management's lack of procedural fairness. He saw nothing wrong with the notice, as Mr. King was only advising his members. When asked in cross-examination if there was an internal union investigation into Mr. King's allegation that members' Canadian Charter of Rights and Freedoms had been violated, Mr. D'Aoust replied "no". When further questioned as to other options Mr. King could have chosen instead of issuing the notice, he replied that Mr. King could have sought advice from the union, as there were experienced lawyers on staff. The grievor also could have used the Department's Labour Management Relations Committee process or asked for an internal departmental investigation. He stated as well that Mr. King could have instructed Customs Inspectors to file grievances if they felt the employer had violated their rights. Mr. D'Aoust stated: "Members should obey now and grieve later, as this would avoid insubordinate charges and possible discipline."

[39]      The witness went on further to note other options available to the grievor would be to refer a grievance to adjudication under section 91 of the PSSRA and have the Board issue a decision, or launch a complaint with the Canadian Human Rights Commission (CHRC).

[40]      The witness concluded by stating that the grievor's duties as president of the local were to raise concerns and issues and protect his members, but not put their jobs in jeopardy. As a Union Branch president, he has the right to provide vigorous representation, but his rights of representation do not give him "carte blanche".

[41]      Barbara Hébert has worked for Revenue Canada since September 1983 and has held many different positions. Currently, she is the Regional Director responsible for the delivery of program services for the Greater Toronto Area. Ms. Hébert testified that the "Policy and Procedures for Union/Management Relations" (Exhibit E-1, tab 3) was in place in 1997, and it was designed to move workplace issues forward through the four levels: (1) worksite; (2) divisional (her level); (3) regional; and (4) national. Issues that could not be resolved were moved forward to her boss, Ruby Howard, the Regional Assistant Commissioner for the Southern Ontario Region.

[42]      Ms. Hébert explained that the agenda was set for these meetings by seeking input from both the union and management sides and she described a number of events referred to by Mr. King in his letter and notice which were irritants to the union. (Note: For the purposes of this decision, I will not list the events, as those incidents were referred to by the grievor's representative in his written arguments, page 2, paragraph 6, as a "red herring". I will deal with this in my reasons for decision.)

[43]      Ms. Hébert testified she has known the grievor since 1996 and is well aware of his union role.

[44]      Ms. Hébert testified that she talked with Mr. Sheridan on May 2, 1997, and he apprised her of the grievor's letter. She asked Mr. Sheridan to speak to Mr. King to discuss the possible consequences his letter would have on operations at PIA. She stated that it would be inappropriate to double up Customs Inspectors, as it would affect the processing of passengers and she believed the consequences of Mr. King's advice to his membership could entail disciplinary action. The grievor was counselling a work slowdown; his role as a Union Branch president was not to advise his membership on how to perform their work. His advice was to slow down work, and it was totally inappropriate. At the time of his letter, the Department did not have an adequate number of Customs Inspectors on staff; in fact, the Department was in the middle of a staffing process.

[45]      Ms. Hébert identified Exhibit E-1, tab 14, as a newspaper article taken from The Toronto Sun:

Customs slowdown threatened

The Canada Customs union is threatening a work slowdown at Pearson airport next week to protest what it deems a lack of legal protection against charges by passengers.

"Travellers could face delays," John King, president of the Metro-area local of the Customs Excise Union, warned.

King said customs officers have no rights when passengers accuse them of theft or other wrongdoing, and some have been fired without having a chance to defend themselves.

"We are not being given the right to a formal hearing," the union executive said.

He said the 185 officers at Pearson airport will be advised next week not to examine passengers' baggage or commercial cargo unless witnessed by another officer.

In a letter to the union, acting director general Jean Laronde warned a work slowdown would be seen as "illegal strike activity."

Anyone joining in an illegal strike could be fired, the department said.

[46]      Ms. Hébert said it was because of this newspaper article that she decided, on May 21, 1997, to prepare a contingency action plan (Exhibit E-1, tab 16) in the event that a slowdown occurred.

[47]      On May 29, 1997, Ms. Hébert received a copy of the grievor's notice. She explained that the gist of the last two paragraphs would in effect slow down passenger processing operations at PIA and Customs Inspectors would not be performing their job effectively. Customs Inspectors do not have the discretion to release a passenger simply because an assist is not available; only when a Customs Inspector believes that a passenger has complied with the various acts and laws is the passenger to be released.

[48]      In reference to Exhibit E-1, tab 1, the "I Declare" booklet and the sentence on page 2 under the heading "You and the customs officer", "You are responsible for opening, unpacking and repacking your luggage"; the witness stated this is "not absolute standard procedure".

[49]      Ms. Hébert referred to Exhibit E-1, tab 2, page 5, paragraphs 23 and 24 of the Customs Enforcement Manual ("Examination and Search"), which states, with respect to conducting examinations:

23.	The [Customs and Excise] Act requires that a person importing goods shall present them to an officer, remove any covering from the goods, unload any conveyance, open or unpack any package or container and, generally, answer any question asked by the officer respecting the goods.
24.	In most instances, it will suffice to have the traveller present his baggage for examination, remove any lock from the suitcase and unzip or unclasp it for inspection. The officer will then remove what clothing or goods are necessary for the examination. In the case of a vehicle, the traveller should open the trunk or compartment that the officer wishes to examine, then remove the suitcase, package or container to be inspected and open it accordingly.

[50]      Ms. Hébert stated that in most cases Customs Inspectors assist passengers in the removal of items. Had the grievor quoted paragraph 24 in his notice, which is departmental policy, she would have had no objection. However, in his notice Mr. King stated: "Do not touch the contents of any travellers luggage", and that was inappropriate.

[51]      Ms. Hébert testified that her decision to impose a 10-day suspension without pay was taken after consultations she had with Ruby Howard, Regional Assistant Commissioner, John Johnson, Director, Customs Border Services, and Bruce Herd and André Pillion, Staff Relations Officers. The rationale she used to determine the penalty was:

1. Mr. King had been warned twice that his advice could put his membership in jeopardy of being disciplined - once by Mr. Sheridan and the other time by his national union's Legal Services;
2. Mr. King's position as a Union Branch president is a position of leadership and influence and although he has a lot of leeway, that does not extend to encouraging the membership to partake in illegal job action. As well as being the Union Branch president, Mr. King is also a Customs Inspector.
3. Review of relevant jurisprudence provided to her by her staff relations officers on similar cases.
4. She considered Mr. King's disciplinary record and the fact he had been with the Department for eight years.

[52]      At a disciplinary meeting held on June 5, 1997, with Mr. King, who had representation, Ms. Hébert read a "Notice of Disciplinary Action" (Exhibit E-1, tab 18) and offered him an opportunity to respond. She chose not to proceed under the appropriate sections of the PSSRA with criminal charges, as she felt administrative corrective action could change his behaviour as opposed to laying a complaint that could bring about a criminal conviction.

[53]      During cross-examination, the witness agreed that after the May 28, 1997, notice was posted on the bulletin boards, she did not discuss the matter with Customs Inspectors, the grievor or the union executive. With respect to the contingency plan, she stated that, as management believed that the proposed illegal slowdown was national in scope, it was on May 21, 1997, that her management team began talking about the contingency plan and it was completed on May 23, 1997.

[54]      As well, the witness explained that management viewed the grievor's actions as an instigation to contravene the PSSRA. By advising his members on the proposed actions in his notice, the grievor was counselling illegal strike activity.

[55]      Ms. Hébert confirmed that Mr. King was given 24 hours' advance notice of the disciplinary meeting held on June 5, 1997, and his representatives were Emerson Waugh, First Vice-President of Local 24 of the Toronto District Branch, and Mr. D'Aoust. She stated that she made the decision to impose a 10-day suspension on June 3, 1997, and after hearing the grievor's representations and arguments, she was satisfied that the quantum was appropriate for this serious misconduct and therefore signed the notice of disciplinary action.

[56]      Emerson Waugh, who testified on behalf of the grievor, was a Customs Inspector at the time of these events, and the First Vice-President of Local 24 of the Toronto District Branch. His testimony can be summarized as follows. His belief is that management was abusing the Customs Inspectors' rights and the notice was simply cautioning the membership to protect itself against false allegations by passengers.

[57]      Mr. Waugh attended a union steward meeting held on May 27, 1997, where all executive members, including Mr. Moran, were present. In his president's report, the grievor read the draft notice and its contents were debated by the attending members. The intent of the notice was not to violate the PSSRA and the union did not want it to be seen as promoting illegal job action. There were a few minor grammatical changes made and then the contents of the notice were moved, seconded and carried unanimously as a part of the president's report.

[58]      In reference to Exhibit E-1, tab 1, the "I Declare" booklet, the witness stated: "If you don't touch the passengers' belongings, you can't be accused of missing money", referring to having only passengers pack and unpack their baggage. As far as seeking a slowdown at PIA, it was not the union's intent; the witness stated: "We never said to our members let's strike, as we are designated employees."

[59]      The witness confirmed he represented the grievor at his disciplinary hearing. His representations were that the 10-day suspension was excessive; Mr. King worked 8.57 hours per day compared to the 7.5 hours per day worked by other Customs Inspectors. Also, Mr. King was acting as a representative of the union and was vigorously representing the membership.

[60]      During cross-examination, the witness testified that at the time in question he was unaware of Exhibit E-1, tab 3, the "Policy and Procedures for Union/Management Relations". He stated that he was not policy-driven but rather membership-driven, and just because CEUDA at the national level signed off on this policy did not mean that he had to abide by it.

[61]      The witness stated that the union meeting of May 27, 1997, was open to the general membership but it lacked a quorum, although 18 stewards and members of the executive committee were present.

[62]      The witness's testimony with respect to the letter and notice was evasive, vague, unreliable and irrelevant. In my view, he demonstrated a lack of credibility; therefore, I will not report on his testimony any further.

[63]      At the time of this grievance, John King was the duly elected president of Local 24, CEUDA, representing approximately 1,500 members in 300 work sites. His union activities with CEUDA began in 1990 as a shop steward; from 1991 to 1993, he was an executive shop steward; in 1993, he was elected First Vice-President; and in 1996, he was elected President.

[64]      The grievor testified the notice was as a result of a Branch stewards' meeting held once a year. At this meeting, issues of concern are shared and concerns in the workplace are collectively addressed. Mr. King drafted the notice in an effort to address a series of events that he felt undermined the rights of the membership. He stated that Customs Officers were outraged with some of the Department's antics and they had submitted letters to him asking what the union was doing about the matter.

[65]      His letter of April 3, 1997, suggested that he had exhausted all available avenues, from 1994 to 1997, and that it was time for action. However, the last sentence stated: "The purpose of this is for no other reason than to protect the welfare of the employees." The grievor stated the letter was a "cry for help" to protect the membership.

[66]      The grievor confirmed that Mr. Sheridan had spoken to him about the tone of the letter and that the concerns raised might be perceived to be inviting illegal strike activity. He stated that that was precisely why at the union meeting of May 27, 1997, "we wanted to be sure we would not be contravening the PSSRA with our May 28, 1997, notice." He further stated that the notice was democratically voted upon and approved by stewards and although it has only his signature, it was a reflection of the views of the local membership and he was bound by the principles of democracy.

[67]      Mr. King stated that Customs Inspectors would know the notice was not asking them to initiate strike action; they would know the intent of the notice.

[68]      He testified that from May 28 to June 5, 1997, no one from management contacted him regarding the posting of the notice. He confirmed that the notice was not re-posted once copies had been removed. When asked by his representative if the notice's intent was to cause a slowdown at PIA, the grievor replied: "No, it was the opposite. It would be more time efficient for passengers to remove clothes from their luggage than a Customs Inspector. And besides, we would protect ourselves from being wrongfully accused of theft."

[69]      With regard to the line in the notice, "You have the option of delaying the passenger until your assist is available", the grievor stated that since Customs Inspectors know their job, he did not get into specific details to his members as to the meaning of the word "delaying". Also, with respect to the line, "If there is not adequate staff available to provide you with an assist, discretion can be used to release the passenger without conducting an examination", Mr. King stated: "This is a general statement. I would not insult my colleagues, as they are trained in their environment."

[70]      Mr. King stated that the notice was not designed to restrict or limit the employer's output; it was a reminder, a caution. He did not tell anyone to double up; he gave no direction whatsoever.

[71]      In conclusion, Mr. King stated that he worked an 8.57-hour day. He introduced, through his representative, the following letters (Exhibit G-2): (1) a letter of appreciation dated January 12, 1998, from the employer for his efficiency in performing his duties; (2) a letter dated July 31, 2002, from the Standing Senate Committee on National Security and Defence thanking Mr. King for his appearance before the Committee to speak about security operations at PIA; and (3) a letter dated October 24, 2002, nominating Mr. King for the CCRA's Assistant Commissioner's Award of Excellence.

[72]      In cross-examination, Mr. King again stated that his letter of April 3, 1997, was a "cry for help", and that nothing ensued as a result of the last paragraph. He stated: "It got management's attention, however". It was a heads-up to the Prime Minister that there was no consultation occurring, there was something wrong in the Department and the union needed to address the situation. The decision to post the notice was a collective one by the union and although the executive committee members did not put their signatures to it, it was his responsibility to do so as the Union Branch President.

[73]      With regard to the "Notice of Disciplinary Action" (Exhibit E-1, tab 18) where it states, "Management views these actions.to be instigation of illegal strike activities.", the grievor stated: "I understand I have certain latitudes. They are not unfettered. It is not open season. I did not tell anyone to break the law. It's a given."

Arguments

[74]      Both parties filed written submissions and they are summarized as follows.

For the Employer

[75]      The letter (Exhibit E-1, tab 10) of April 3, 1997, that Mr. King addressed to the Prime Minister, the then Minister of National Revenue (Jane Stewart), the then Minister of Justice (Allan Rock) and the former Minister of National Revenue (David Anderson) was a "cry for help" in the words of the grievor. The grievor testified, "It got their (management's) attention". In the closing paragraph of his letter, Mr. King stated: ".I will be advising all Customs Inspectors not to perform any further examinations unless a fellow officer is present to witness.." Mr. King did not send a copy of this letter to any management representatives of the employer.[76]      Mr. Sheridan testified that he was very concerned about the letter because the advice Mr. King was proposing to Customs Inspectors not to perform any further examinations without a fellow officer present as a witness would have had an extreme operational impact. The employer was not resourced to essentially double-up for every examination; if this were to occur, the line would back up. This backlog would have, in time, created a substantial ripple effect on the entire customs operations to the point that, ultimately, passengers would not have been able to deplane.

[77]      Ms. Hébert was also very concerned about the "advice" Mr. King was proposing to give to all Customs Inspectors.

[78]      Mr. Sheridan testified he talked with Mr. King for about 40 minutes on May 2, 1997, seeking clarification of the letter and indicating to Mr. King that such action would no doubt subject him to disciplinary action. The conversation was summarized by an e-mail.

[79]      Ms. Laronde also received a copy of the letter on or about May 5, 1997. She also was concerned about the advice and operational impact it would have at PIA. She testified she wrote a letter to Mr. Moran on May 8, 1997. She advised him that should the advice materialize, the employer would consider this an illegal job action. She advised Mr. Moran to take appropriate steps to avoid such a scenario and to advise his union officials accordingly (Exhibit E-1, tab 13).

[80]      Mr. D'Aoust testified he wrote to J.C. Plamondon, PSAC Legal Services, requesting an opinion on the advice described in the letter. The Legal Services opinion was that if the advice was followed by Customs Inspectors, "there is some certainty that the job action would be seen as an illegal strike" (Exhibit E-1, tab 15).

[81]      Ms. Hébert testified that she read the article in the Toronto Sun reporting that Mr. King would be advising Customs Inspectors at PIA not to examine passengers' bags unless witnessed by another officer. Ms. Hébert believed that it was a distinct possibility Mr. King would be inciting his members to begin an illegal job action. As a result, she and her management team prepared an action plan to prepare for the contingency of a work slowdown (Exhibit E-1, tab 16).

[82]      On or about May 28, 1997, Mr. King wrote and posted a "notice" to all members of the Toronto District Branch. This notice was posted in various locations at PIA (Exhibit E-1, tab 17). The notice purported to advise his members to "minimize the risk while performing your duties". He advised them not to touch the contents of any traveller's luggage. Secondly, he advised that if a passenger were uncooperative, the Customs Inspector should request the assistant of a Superintendent. The notice stated that if there were not adequate staff to allow for a witness, the Customs Officer could exercise discretion and release the passenger without conducting an examination.

[83]      Mr. Sheridan and Ms. Hébert both testified there were numerous ingenious ways to smuggle items and that without physically manipulating a passenger's luggage, contents like contraband could not be detected.

[84]      With respect to the second paragraph, "You have the option of delaying the passenger until your assist is available. Only when you deem it safe, proceed with the examination. If there is not adequate staff available to provide you with an assist, discretion can be used to release the passenger without conducting an examination," Ms. Hébert and Mr. Sheridan testified that a Customs Inspector has the ability to exercise discretion. However, this discretion is on how extensive an examination will be and is solely based on the Customs Inspector's satisfaction that the passenger is in compliance with the law. Customs Inspectors do not have the discretion to release passengers without an examination for the sole reason that an assist is not available. Mr. Sheridan testified to the reasons for which Customs Inspectors would use discretion in calling an assist.

[85]      Mr. Hale advised Ms. Hébert that a copy of the notice was posted at Terminal 3. As a result, Ms. Hébert, after consulting with Ruby Howard and staff relations personnel, decided that disciplinary action was warranted. Her rationale for imposing the 10-day suspension was that Mr. King had been warned twice, once by Mr. Sheridan and once by his union's Legal Services. Ms. Hébert was aware that the employer could have sought criminal prosecution under the PSSRA but believed administrative corrective action would change Mr. King's behaviour. On June 4, 1997, Mr. King was given a "Notice of Disciplinary Action", and a meeting with Ms. Hébert, Messrs. D'Aoust and Waugh and Bruce Herd, a staff relations officer, occurred on June 5, 1997.

[86]      The employer's contention is that Mr. King counselled an illegal job action. Section 102 of the PSSRA prohibits employees from engaging in illegal strikes. Section 103 of the PSSRA provides:

No employee organization shall declare or authorize a strike of employees, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike of employees or the participation of employees in a strike, the effect of which is or would be to involve the participation of an employee in a strike in contravention of section 102.

[87]      Section 2.(1) of the PSSRA defines "strike" as follows:

"strike" includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slow-down of work or other concerted activity on the part of employees that is designed to restrict or limit output.

[88]      There is no question that Mr. King was counselling or advising his members. The only question is whether the content was such that he was counselling an illegal strike. Mr. King testified that his intention was simply to provide advice and to caution members. When questioned in cross-examination as to whether he believed his advice would cause a slowdown to customs operations at PIA, Mr. King testified that his intent was the exact opposite.

[89]      Counsel for the employer submitted the following cases: Re Abitibi Consolidated Inc. and Communications, Energy and Paperworkers Union of Canada, Local 161, (1998), 72 L.A.C. (4th) 422; Re Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245; Re General Paint Corp. v. Communications, Energy and Paperworkers Union, Local 601, [2001] B.C.C.A.A.A. No. 289; Re Nanaimo Regional General Hospital and Hospital Employees' Union (1999), 81 LA.C. (4th) 1; Re Parkland Developments Corporation Ltd. and Westside Holdings Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 1251 and B.C. Federation of Labour and Employees' Council of B.C. (1975), B.C.L.R.B. No. 6/75; Re Public Service Employee Relations Commission and British Columbia Government and Service Employees' Union (2001), 99 L.A.C. (4th) 349; Re Bell Canada and Communications, Energy and Paperworkers Union of Canada, (1996), 57 L.A.C. (4th) 289; and Re Millennium Construction Contractors and Construction and General Workers' Union, Local 92 (2001), 97 L.A.C. (4th) 1.

For the Grievor

[90]      The grievor's representative submitted that there is no evidence whatsoever that there was concerted activity designed to restrict or limit output. This is an essential component of the case and the reason why Madam Justice Simpson referred the case back to the Board to be heard by a different adjudicator.

[91]      The employer bears the burden but none of the approximately 450 Customs Inspectors were called to support its notion that the intent of the advice in the notice was to limit output. Also, no Customs Superintendents were called to testify that the notice could have been interpreted in a manner that incited any form of job action.

[92]      If it were the grievor's intent to have his members limit output, as the employer asserts, does it not damage the employer's perspective to learn not one Customs Inspector in any worksite, on any shift, in any of the three terminals, or even his own executive followed what the employer claims was Mr. King's clear advice? The evidence shows that once the notice was removed, it was not re-posted. Nowhere in the notice are Customs Inspectors instructed not to touch the contents of a traveller's luggage during the actual examination. The intent of the instructions not to touch the contents was meant to be applied only during the removal and repacking of the contents of a traveller's luggage. As stated by the grievor in the same paragraph, once the examination was complete, the Customs Inspector should have the passenger repack the contents of his/her luggage. If there were reasonable and probable grounds that warranted a more detailed examination or search, the Customs Officer would conduct one.

[93]      The grievor's testimony that having passengers remove and repack their goods would in fact expedite the processing of travellers was never challenged by counsel for the employer or refuted by management. It is common and more time-efficient for travellers themselves to locate and remove declared goods because they know where these items are situated in the luggage. In addition to this, it reduces the likelihood of disturbing the other contents and minimizes the traveller's time in having to refold clothing, etc., prior to closing his/her luggage. At no time did the grievor direct Customs Inspectors not to conduct examinations unless a witness was present, as indicated in the last paragraph of the April 3, 1997, letter. The grievor agreed with Mr. Sheridan's concerns that such action would have resulted in a slowdown; therefore, the grievor testified that this was not the intent of the message and for this reason never wrote such an advisory. Further, the letter of April 3, 1997, was never posted or circulated in the workplace. Regardless, the letter is somewhat irrelevant to the discipline, as it is not the basis of this discipline nor is it referred to in the actual letter of discipline.

[94]      As for paragraph 2, page 2, of the notice, the grievor gave no direction; he simply stated some options. In addition to this, he reminded officers of their authority to use discretion. One should not be faulted or disciplined for urging another to use discretion, as there is no right or wrong when discretion is used.

[95]      Mr. D'Aoust's testimony that there was some certainty that the job action, should it occur, would be seen as an illegal strike, is hardly dispositive evidence.

[96]      In conclusion, the grievor's representative submitted that the posting of the notice does not warrant disciplinary action. The grievor's union status is non-applicable in terms of discipline because the posting of the notice does not warrant discipline. As there was no misconduct, the 10-day suspension is unwarranted, as the grievor did his best on good collective advice to fulfill his mandate as president of Local 24. He further stated that, as far as he knew, no union official had ever been disciplined for inciting illegal strike activity without a strike or slowdown actually occurring.

Reply

[97]      Counsel for the employer stated that the grievor emphasized that there was no illegal strike activity; however, the grievor was disciplined for counselling or inciting illegal strike activity. Had the grievor's action resulted in illegal strike activity, the misconduct would have merited an even greater quantum of discipline.

[98]      The grievor refers to his letter of April 3, 1997, as being more severe than the May 28, 1997, notice. Mr. Sheridan and Ms. Hébert believed the notice to be more severe, in that he was telling Customs Inspectors to exercise their discretion inappropriately and also not to touch the contents of any traveller's baggage.

[99]      The grievor's representative submitted "one should not be faulted or disciplined for urging another to use discretion, as there is no right or wrong when discretion is used." Mr. Sheridan's and Ms. Hébert's unchallenged evidence was that discretion can only be exercised once a determination that there has been a complete and truthful declaration has been made. It is clear that a Customs Inspector's mandate is to ensure compliance with the law, which was never mentioned by the grievor.

[100]      The grievor submitted that the instruction not to touch the contents of a traveller's luggage was meant to be applied only during the removal and repacking of the contents of luggage. On this specific point, Madam Justice Simpson in her judgement (supra) disagreed and found:

I do not agree with the Applicant's submission on this issue. The main point made in the Notice is that no items are to be touched. This precludes a manual search which would reveal hidden objects or objects of inappropriate weight or texture. If the contents cannot be touched, only a visual examination is possible and, in my view, that is the only kind of search the Notice mandated in the absence of a witness.

[101]      Mr. King submitted that it would be more efficient for travellers to locate and remove their declared goods. As inferred by Madam Justice Simpson and testified to by Ms. Hébert and Mr. Sheridan, this ignores the critical fact that it is a Customs Inspector's job to ensure that there are no undeclared goods, including narcotics. In order to do so, a Customs Inspector must physically touch the contents of a passenger's luggage. As a result, by his advice to his members not to touch the contents of any travellers' baggage, the grievor was advising them, in essence, not to do their job. At this point, he was clearly advising illegal activity.

[102]      Counsel for the employer concluded by stating that the advice the grievor gave counselled his members to act in a manner which was in complete dereliction of their obligations as Customs Inspectors. The grievor intended that his members conduct themselves in a manner that would have had an adverse impact on the employer's operations.

Reasons for Decision

[103]      At the time of his grievance, John King was employed by Revenue Canada, Customs and Excise (which is now known as the Canada Customs and Revenue Agency (CCRA)). The grievor, a Customs Officer at PIA, was also the President of CEUDA, Local 24, which is a part of the PSAC.

[104]      The grievor's concerns with respect to the manner in which the employer proceeded with the rendering of discipline (a 10-day suspension without pay) will be dealt with in this decision. This grievance was first heard by former Board Member Rosemary Vondette Simpson and then reviewed by Madam Justice Simpson of the Trial Division of the Federal Court. Any flaws in the disciplinary procedure have been completely cured by the hearing de novo, as held by the Federal Court of Appeal in Tipple v. Canada (Treasury Board) (1985), F.C.J. No. 818 (C.A.).

[105]      The issues that I must decide are:

(1) Did the grievor contravene sections 2.(1) and 103 of the PSSRA?

(2) If so, was the grievor's role as president of CEUDA, Local 24, properly taken into consideration in the awarding of the 10-day suspension?

(3) Was the imposition of the 10-day suspension warranted?

Issue (1)

[106]      The grievor's letter of April 3, 1997 (Exhibit E-1, tab 11), to the Prime Minister and Members of Parliament raised a number of observations, irritants and complaints with respect to a variety of issues. Although these irritants and concerns were put into evidence and argued by both representatives, for the purposes of this decision they were not summarized, as they will not form the basis for my decision. The concerns in management's mind were not whether those observations, irritants and complaints were valid or legitimate, but rather the last paragraph of the letter, which states: "In lieu of the opening issue, I will be advising all Customs Inspectors not to perform any further examinations unless a fellow officer is present to witness."

[107]      The opening paragraph of the letter states: ".How important is the Constitution to us and how far are we willing to go in order to protect it?" In his testimony, Mr. King stated that the letter was a "cry for help" and "it got management's attention". It is my view that this letter was a "cry to arms", a letter drawing a line in the sand, an intent to exert pressure on the Government of Canada by threat of engaging in an illegal strike or illegal job action.

[108]      On May 2, 1997, Norm Sheridan, the Acting Regional Director of the Greater Toronto Area, had a 40-minute conversation with Mr. King. Mr. Sheridan clarified that Mr. King's proposition to double or team up Customs Inspectors could be viewed as an illegal strike and could also be the subject of disciplinary action. Mr. Sheridan testified that the grievor responded: "I am safe. I am not ordering them but advising them."

[109]      In their testimony, Mr. Sheridan and Barbara Hébert confirmed that there are specific instances where Customs Inspectors could double up (see Exhibit E-1, tab 2, "Examination and Search - Customs Enforcement Manual"). However, the advice Mr. King was giving to his members that all examinations would need a witness would have created a slowdown of passenger processing at PIA.

[110]      Jean Laronde, at the time of the grievance the Acting Director General, Staff Relations and Compensation Directorate, testified that she sent a letter on May 8, 1997 (Exhibit E-1, tab 13), to Ronny Moran advising him that, as the National President of CEUDA, he should take the appropriate steps to have Mr. King and other union officials cease and desist any actions that could be seen to be illegal and contravene Article M-15 of the PSAC collective agreement and sections 102 and 103 of the PSSRA.

[111]      Michel D'Aoust, a Technical Officer with CEUDA, testified that he requested an opinion from J.C. Plamondon, in charge of Legal Services at PSAC headquarters, with respect to the grievor's letter of April 3, 1997. His concerns were whether or not it would contravene sections 2.(1) and 103 of the PSSRA. The reply he received from Mr. Plamondon was that, if job action should occur, it would be seen as an illegal strike.

[112]      Mr. D'Aoust also testified that the observations, irritants and complaints that the grievor raised could have been dealt with through a number of different options, such as using the services of lawyers provided by PSAC headquarters, the use of the Department's Labour Management Relations Committee, an internal investigation, the filing of a CHRC complaint or having the membership submit grievances. Mr. D'Aoust also stated that, although it is the role of a Union Branch President to raise concerns and issues and protect the membership by providing vigorous representation, those rights of representation do not give him "carte blanche". He also stated that at a union meeting, Mr. King had discussed the shortage of staff at PIA.

[113]      The grievor testified that the concerns expressed by Mr. Sheridan with regard to the letter were taken into consideration and the notice was a watered-down version of the letter, and it was approved at the May 27, 1997, union meeting by the shop stewards and the executive committee in attendance.

[114]      Copies of the notice were posted by the grievor in several locations at PIA for a brief period of time. The first line in paragraph 2, page 2, states: "Do not touch the contents of any traveller's luggage." I agree with Madam Justice Simpson when she stated in her judgement (supra): "This precludes a manual search which would reveal hidden objects or objects of appropriate weight or texture. If the contents cannot be touched, only a visible examination is possible and, in my view, that is the only kind of search the Notice mandated in the absence of a witness."

[115]      Mr. Sheridan testified that visual examinations would not effectively allow a Customs Inspector to perform his or her duties, as the Department's mandate is to prevent narcotics, illegal firearms, child pornography, smuggled jewelry and agricultural products from entering the country. I note that the primary reason Customs Inspectors determine the need for a secondary examination is that they are highly suspicious that contraband may be in a traveler's possession.

[116]      It is also my view that the notice contravened section 24 of the "Customs Enforcement Manual" (Chapter 1, Part 4 - "Examination and Search). Section 24 states:

24.    In most instances, it will suffice to have the traveller present his baggage for examination, remove any lock from the suitcase and unzip or unclasp it for inspection. The officer will then remove what clothing or goods are necessary for the examination..

[Emphasis added]

[117]   As well, the Department's "I Declare" booklet (Exhibit E-1, tab 1) is not a statutory document and the grievor, who had eight years of experience as a Customs Officer, ought to and I believe should have realized that fact.

[118]      Paragraph 2, page 2, of the Notice states:

2)    If a passenger refuses to cooperate, request assistance from your Superintendent. A witness will be your protection from false accusations and will also provide a safer work environment. You have the option of delaying the passenger until your assist is available. Only when you deem it safe, proceed with the examination. If there is not adequate staff available to provide you with an assist, discretion can be used to release the passenger without conducting an examination.

[119]      I agree that a Customs Inspector should seek the assistance of a Superintendent if a passenger is uncooperative. However, the grievor's advice that discretion could be used to release a passenger without conducting an examination because there is not adequate staff available to provide assistance is, in my view, advising Customs Inspectors to use discretion without limitations. If the grievor had added "in accordance with and in compliance with the Customs and Excise Act", the limitations would have changed the intent to one of compliance with the job duties of a Customs Officer. The grievor knew there was a shortage of staff at PIA. As well, he knew or ought to have known that discretion accorded to a Customs Officer does not allow him or her to delay passengers for the sole purpose of obtaining a witness, except in those exceptional circumstances, as noted in Mr. Sheridan's testimony.

[120]      Section 103 of the PSSRA states:

103. No employee organization shall declare or authorize a strike of employees, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike of employees or the participation of employees in a strike, the effect of which is or would be to involve the participation of an employee in a strike in contravention of section 102

[121]      At the relevant time, the grievor was the President of CEUDA, Local 24, a component of the PSAC, and pursuant to section 103 was an "officer" of an employee organization.

[122]      In his letter of April 3, 1997, he stated: "I will be advising all Customs Inspectors..". In the notice, he stated: "We offer the following advice." The "we", as the grievor testified, was the collective we - the union - and pursuant to section 103 "an employee organization".

[123]      The Concise Oxford Dictionary (Tenth Edition) defines the word counsel as "advice, especially that given formally." I find that, pursuant to section 103 of the PSSRA, the grievor's advice in the notice was counseling (formally) the membership to participate in a strike.

[124]      Section 2.(1) of the PSSRA defines "strike" as follows:

"strike" includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slow-down of work or other concerted activity on the part of employees that is designed to restrict or limit output;

[125]      Although there was no cessation of work or a refusal to work or to continue to work by employees, there was an attempt by the grievor, by the posting of the notice, for concerted activity by the membership. The concerted activity's sole purpose was to slow down work to restrict or limit output at PIA.

[126]      Mr. King's testimony that his advice would not cause a slowdown in the processing of passengers at PIA but rather would be more efficient, defies reason and credibility. I prefer the testimonies of Ms. Hébert and Mr. Sheridan on this point. At the relevant time, Mr. King had eight years of experience as a Customs Inspector and he knew or ought to have known that aside from specific circumstances where a witness is required or desirable, a Customs Inspector conducts an examination alone. Thus, he knew or ought to have known that his advice would prevent Customs Inspectors from performing their duties properly and would lead to a slowdown of customs operations at PIA.

[127]      It is my belief that by posting the notice, in which he advised the membership not to touch the contents of any traveler's luggage as well as to delay processing passengers until an assist was available, the grievor intended to slow down and restrict output at PIA, thereby contravening sections 2.(1) and 103 of the PSSRA.

Issue (2)

[128]      Barbara Hébert indicated that she has known the grievor since 1996 and is well aware of his role as President of Local 24, CEUDA.

[129]      She testified that the rationale she used for imposing a 10-day suspension was based on a number of factors and after consultation with departmental staff relations officers. She considered that the grievor had been warned twice, she reviewed relevant jurisprudence on similar cases, and she considered his disciplinary record as well as his years of service.

[130]      Mr. King was advised the day before that a disciplinary meeting with Ms. Hébert was scheduled for June 5, 1997. At the meeting, Messrs. Waugh and D'Aoust were present. Ms. Hébert read the charge and Mr. King was given an opportunity to respond. Ms. Hébert then rendered her decision to impose a 10-day suspension.

[131]      Ms. Hébert testified that it was her belief that advising the membership to engage in illegal strike activity was inappropriate behaviour by a union branch president. As a union branch president, Mr. King is given a lot of leeway in the performance of his union role; however, this leeway does not extend to encouraging his membership to participate in an illegal job action. Nevertheless, Mr. King is an employee, a Customs Inspector employed by CCRA.

[132]      Ms. Hébert also testified that she was attempting to change the grievor's unacceptable behaviour by imposing a 10-day suspension instead of laying charges pursuant to the PSSRA.

[133]      One of the leading cases with respect to the scope of immunity enjoyed by union officials is Re Bell Canada and C.E.P. (Hofstede), (1996), 57 L.A.C. 289. The board reviewed the existing arbitral jurisprudence, holding that the existing jurisprudence did not set out any definitive test for determining when immunity ceases for a union official. The board held:

In our view, the question of whether a union official is entitled to immunity from discipline must depend on the facts of each case. The starting point must be that there must be a recognition that once an employee is elected to union office his status in the workplace changes substantially. He has a dual role. As an employee, he must conform to the same rules and policies as his co-workers. However, when acting in his union capacity he is an integral part of the collective bargaining regime that governs the workplace on a day-to-day basis. He is then on an equal footing with members of management when carrying out his union duties. He must be free to police the collective agreement for compliance, and enforce it with vigour. In so doing, it is unavoidable that he will be required to take a higher profile than his fellow workers. Inevitably from time to time he will encounter areas of conflict with members of management. Regardless of the individual's degree of tact and diplomacy, it comes with the territory that on occasion he will be bordering the line between vigorously representing his fellow workers and engaging in insubordination towards members of management. Given this difficult role undertaken, the right of a union official to properly carry out his duties must be strictly protected except in the most extreme cases. Mere militancy or over zealousness should not result in penalty. A union official must be able to press his point of view with as much vigour and emotion as he wishes, even though it may turn out in the end that his point of view was wrong.

However, the forgoing considerations do not mean that there are no limits to acceptable behaviour on the part of a union official. A balance must be struck between the right of a union official to be accorded a wide latitude in the manner he goes about carrying out his union duties and his concomitant responsibility as a union official to scrupulously refrain from the abuse of his union position to cloak patent insubordination and defiant challenge of management's right to manage the workplace and carry on production without disruption.

Given the delicate balancing required between the right of the employer to be able to manage its workplace and to carry on its operation without interruption and the right of the union official to vigorously push the union's point of view in dealings with the employer, it is possible, and in our view would be dangerous, to attempt to set out a definitive test in order to determine when a union official's conduct ceases to be protected and becomes disciplinable. Each case must be determined on the basis of the total surrounding circumstances

[134]      I believe that the grievor had the union's interest in mind and perhaps union-management relations at the time were onerous. However, he chose not to pursue the appropriate departmental avenues or legal statutory options. Mr. Waugh's testimony that, "Just because our National Union has signed the policy and procedures for union/management relations, does not mean that I had to abide by it" no doubt sends a clear signal that Local 24, CEUDA, chose it own agenda (the notice) to deal with those irritants and concerns of the membership. Mr. D'Aoust's advice that the membership should "obey now, grieve later" was understood and accepted by the grievor.

Issue (3)

[135]      I conclude that by posting the notice of May 28, 1997, Mr. King contravened sections 2.(1) and 103 of the PSSRA by attempting to slow down and restrict output in the processing of passenger operations at PIA.

[136]      I note that the three letters filed as Exhibit G-2 were received after the May 28, 1997, event. Therefore, I do not see the relevance to the case at hand.

[137]      For all the reasons stated above, I find that the penalty imposed by the employer of a 10-day suspension at the hours worked by the grievor at the time of the discipline is well within an acceptable range for such behaviour. Therefore, I see no reason to mitigate the employer's discipline and the grievance is therefore dismissed.

D.R. Quigley,
Board Member

OTTAWA, June 20, 2003.