FPSLREB Decisions

File: 142-2-321 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN ASSOCIATION OF MARINE ASSESSORS, INSPECTORS AND INVESTIGATORS OF THE PUBLIC SERVICE OF CANADA (AMAIIPSC)

Applicant and TREASURY BOARD Employer and PUBLIC SERVICE ALLIANCE OF CANADA Intervenor RE: Application for Certification Before: P. Chodos, Vice-Chairperson For the Applicant: S. Chaplin, Counsel For the Employer: M. LeFrançois, Counsel For the Intervenor: A. Raven, Counsel Heard at Ottawa, Ontario, November 25 to 27, 1997 and March 10 to 12, 1998.

Decision Page 1 DECISION The Association of Marine Assessors, Inspectors and Investigators (AMAIIPSC) is a newly formed organization which was established for the express purpose of representing employees currently classified in the Technical Inspection Group (TI) whose duties, broadly speaking, involve the investigation of marine incidents, and the regulation and inspection of marine vessels and facilities. In its application for certification the Applicant described the proposed bargaining unit as follows: All employees, both supervisory and non-supervisory, performing duties which involve the assessment of needs, and the development of plans and drawings, for the purchase and refitting of marine vessels (civilian and military), the inspection of marine vessels and dock facilities for compliance with all applicable laws and standards, including licensing, and the investigation of all maritime incidents for which federal law requires an investigation, along with any related duties.

According to the Applicant, the proposed bargaining unit contains 237 employees; this number is not disputed by the parties. These employees are employed almost exclusively in two organizations: the Inspectors are found in Transport Canada, and the Investigators are employed with the Transportation Safety Board (TSB). According to the employer, as of the date of this application (i.e. June 20, 1997) the TI bargaining unit, which currently subsumes these employees, consists of 1,133 employees.

This type of certification application is commonly referred to as a “carve-out” application: that is, the Association is seeking a determination from the Board, pursuant to its authority under section 33 of the Act, that the current TI bargaining unit does not permit satisfactory representation of those employees which the Association is seeking to represent, and consequently the marine employees should have their own discrete bargaining unit. This application also raises other issues, in particular, whether the Association was duly constituted, and authorized to make the subject application. The Applicant presented evidence with respect to these matters, and the Intervenor had raised a number of objections concerning those issues. While the objections are not without merit, the Board has decided to focus exclusively on the major issue, that is, the appropriateness of the proposed bargaining unit. In view of the Board’s conclusion on this issue, it is not necessary to address the procedural objections raised by the Intervenor.

Public Service Staff Relations Board

Decision Page 2 The Applicant presented evidence concerning the qualifications and responsibilities of the Marine Inspectors and the Marine Investigators primarily through the testimony of Mr. Eric Classen of Transport Canada and Mr. Jean Gagnon of the TSB. Both witnesses also testified extensively concerning the longstanding grievances which they and their colleagues have had concerning their many efforts to get the employer to recognize, by way of compensation, their professional expertise.

Mr. Classen has been employed in the Public Service for 30 years; for the last 10 years, he has been a Marine Surveyor or Steamship Inspector; he is currently located at Charlottetown. He holds a first class Marine Certificate from the Coast Guard College. Mr. Classen identified several documents which outlines the qualifications and responsibilities of Marine Surveyors; among other things the document notes the 10 appointments which persons such as Mr. Classen are conferred, as well as the many types of inspection that they may be called upon to perform. Mr. Classen noted in particular that as Steamship Inspector appointed pursuant to section 301 of the Canada Steamship Act, he has the authority to board any ship in Canadian waters. His authority also includes boarding and shutting down non-propelled barges and derricks, sometimes at considerable cost to the owners. Mr. Classen would also be involved in overseeing a series of safety tests, including sea trials involving a ship and its crew. He noted that the ships cannot legally set sail without a proper certificate. Inspectors bill the ships' owners for the cost of inspection time, which can be a substantial amount of money. He observed that Inspectors are subject to pressure from owners, port managers and sometimes even political pressures about their inspections however it is their call alone.

From time to time Inspectors would also assist in the interdiction of illegal goods on ships, in cooperation with police agencies. They would also inspect tackle and other loading equipment on shore as well as on the ship. He is also appointed by Order in Council as Port Warden, as Tonnage Inspector, and as an Examiner of Engineers, the latter, because of his qualifications as a Marine Engineer. Mr. Classen also noted that as a Pollution Convention Officer he has the authority to order clean ups and to determine whether a court proceeding should be recommended under the Arctic Waters Pollution Prevention Act, which would require him to prepare material for crown counsel and to testify in court. As a Safety Officer appointed pursuant to the Canada Labour Code, he is responsible for safety concerns on the wharf and on ships; Public Service Staff Relations Board

Decision Page 3 in response to a refusal to work under the Code, he can “tag out” equipment which prevents work being done. Mr. Classen also noted that he is an inspector under the Dangerous Goods Act pursuant to which he provides guidance respecting the transportation of dangerous goods and ensures compliance with that Act. He is also a Shipping Master which requires him to adjudicate complaints between captain and crew members respecting pay and working conditions; he can prevent a vessel from sailing until the disputes are resolved.

Mr. Classen maintained that the number of regulations for which Inspectors are responsible have been steadily increasing. He noted that when he first started 30 years ago the Marine Inspectors were not appointed as Examiners, or Tonnage Inspectors or Dangerous Goods Inspectors, or Safety Officers. He estimated that 60% of his time is devoted to crew issues, including examinations, 40% involves the inspection of equipment and mechanical devices.

He is currently classified at the top of the TI-6 level. He observed that Inspectors are not satisfied with this classification, and this has been an ongoing problem since 1979. Mr. Classen referred to a briefing paper dated January 2, 1991 entitled “The TI 06 Grievances, The Story So Far” which he had helped to prepare. The document outlines their concerns respecting the rating and classification of TI 06’s. This document was distributed by Mr. Anthony Woods, the Union Representative for PSAC (i.e. Public Service Alliance of Canada) / U.C.T.E (i.e. Union of Canadian Transport Employees). Mr. Classen explained that this grievance was commenced because of their concerns that the classification standard did not reflect some of the work that they did, in particular, their dealings with the marine industry, their professional qualifications, their appointments, and their contacts. He noted that they had lost many grievances over the years on these matters. Their complaints reflected their concerns that they were in the same classification as a group of machinists and welders, notwithstanding that their qualifications were not of the same order. It was their view that the only way to resolve this classification issue was to move them into an occupational group which recognizes their various levels of qualifications, for example, in the Ships Officers’ Group.

Mr. Classen referred to Exhibit A-9, a fourth level reply to his grievances dated February 28, 1991. He was not satisfied with that response and wanted to pursue this

Public Service Staff Relations Board

Decision Page 4 matter further; he was advised by the PSAC that the contents of the job description was a management prerogative. He prepared another document concerning the TI-6 classification issue dated April 9, 1991 (Exhibit A-10) which was also distributed by Mr. Woods. In a letter dated April 30, 1991 Mr. Classen advised that he wished to have his classification grievance held in abeyance pending results emanating from the so-called “Daniels” report (Exhibit A-12). This report dealt with a number of issues including pay and benefits problems. Mr. Classen also referred to Exhibit A-14 the job description for his Marine Surveyor position; he noted that he refused to sign this document, as in his view, it did not fully reflect his duties, for example, it did not state that he had full authority to do his inspection responsibilities without supervision.

Mr. Classen also provided input to another internal management study, known as the Marois report; he noted that the report concluded that there were problems with the compensation of Marine Inspectors, which should be addressed by revising their classification (Exhibit A-13, page 8). A summary of the Marois report was provided to a TI Group Consultation Committee which was part of the U.C.T.E. component; the mandate of the committee, of which Mr. Classen was a member, was to ensure that surveyors had input in respect of the issues which the Marois and Daniels reports were to address. He noted that a meeting was called at Ottawa on September 16, 1992 by U.C.T.E. to address this problem. Prior to this meeting he discussed the issues with the union representatives. They met for an entire day on September 16th with Mr. Michael Turner, the Deputy Commissioner of the Coast Guard as well as with Huguette Marois, Chief, Ship Safety Renewal (the author of the Marois report), among others. The minutes of the Committee (Exhibit A-20) observes that: . . . ... the Committee suggested that the solution to the TI salary issue was the creation of a distinct Group or sub-Group for Marine Surveyors, but in a shorter time-frame than had been proposed in the Strategic Review. The Representatives recommended an immediate reopening of negotiations with the Treasury Board.

CCG management agreed that this was its favoured solution as well, but Personnel gave detailed explanations of the legal

Public Service Staff Relations Board

Decision Page 5 Acts, Regulations and authorities which prevented a quick solution to the problem.

. . . Mr. Classen received a draft of these minutes for his review from Mr. Ray Carrière, a Labour Relations Officer with U.C.T.E. who was his main contact with the union. Members of the Committee of U.C.T.E./Ship Safety Marine Surveyors, TI Advisory Committee also received a memorandum from Mr. R. Quail, the Commissioner of the Coast Guard, in which he states that: . . . I can assure you that both the Deputy Commissioner and I support the creation of a new Group or sub-Group which would include Marine Surveyors, and where there would be direct comparability between qualifications and experience required for all positions....

Mr. Classen also referred to Exhibit A-30, a memorandum dated October 1, 1993 from Mr. R. Lanteigne, the Acting Director General of the Coast Guard which referred to a proposal endorsed by the Coast Guard to create a “marine operations” occupational group which would be pursued with Treasury Board officials. A memorandum dated October 24, 1994 from the then Commissioner of the Coast Guard observed that: . . . Over the past several years, Marine Surveyors have voiced their concerns about the TI classification evaluation criteria. Their job responsibilities have expanded without the accompanying changes to classification levels....

The document went on to note that the proposal to Treasury Board recommended the creation of a sub-group for Coast Guard TI’s, among other things. This proposal was also endorsed by the Minister of Transport, as noted in a letter from the Minister to Ms. Coline Campbell, M.P. (Exhibit A-32).

At the 1993 U.C.T.E. convention, a resolution was passed providing funding to the TI Consultation Committee in order to continue to pursue their objectives. Mr. Classen observed that he had not received any negative comments from the union with respect to the objective of creating a new group or sub-group.

Public Service Staff Relations Board

Decision Page 6 Mr. Classen also referred to a number of grievances pertaining to compensation and classification matters which he submitted in March/92; in January 1993 Mr. Classen withdrew these grievances, in light of Mr. Quail’s memorandum of December 1992 which Mr. Classen viewed as “a very positive step towards resolution of the problem areas” (Exhibit A-28).

In 1997 the management of the Coast Guard directed Mr. Dick Theedom, who is an excluded employee, to revisit the issue of compensation and classification for Marine Surveyors. Mr. Classen, among others, provided input into the report entitled “Remarks on Marine Surveyor Issues” dated March 26, 1997 (Exhibit A-34) which was submitted by Mr. Theedom. This report recommended among other things that: • Highest level representation as possible to Treasury Board for urgent long term resolution of this situation through means such as La Releve, UCS or reclassification, etc. ....

Mr. Classen reviewed in detail the qualifications of Marine Surveyors. He noted that as a Marine Engineer he was required to complete a four-year college course at the Coast Guard College. A fourth class Marine Engineering certificate demands a thirty-six months relevant experience with examinations, in accordance with the Canada Shipping Act and Regulations. For a third class certificate, an additional twelve months experience is required, followed by a series of examinations. For a second class certificate one needs an additional twelve months experience, again with examinations. A further twelve months is needed for a first class certificate; in addition it must be established that the candidate holds a second class certificate and has been in charge of an engine room. He also noted that to become a TI-6 Marine Surveyor, one needs a first class engineer certificate; however, a Captain, Naval Architect, or Marine Electrician can be appointed to the TI-6 level, because of their professional qualifications.

Mr. Classen also observed that there are non-marine TI-6’s at Transport Canada on the Aviation side, as well as Military personnel. He recently saw a competition poster for a TI-7 position which only required a grade twelve education; he is not aware of anyone having moved from the railway or aviation inspection area into a marine TI-6 position.

Public Service Staff Relations Board

Decision Page 7 Mr. Classen maintained that he had submitted proposals for collective bargaining to U.C.T.E.; however, none of them were put on the bargaining table; according to Mr. Carrière, they were all management rights issues which were not bargainable. Prior to the 1991 general strike, he was on the PSAC TI bargaining team. He noted that the issue of classification was never dealt with at the bargaining table. He stated that on occasion, grievances would be submitted without any knowledge as to who was responsible for them; the union would have an oiler or fireman attempting to explain the complexities of the marine surveyors' jobs. Mr. Classen also had to present the grievances to management himself. He observed that initially the union had no knowledge of marine issues, however, Mr. Carrière of U.C.T.E. did develop some understanding of these matters.

In cross-examination Mr. Classen acknowledged he has been advised unofficially that the Marine Surveyors will be reclassified at the TI-7 level shortly. The TI-6 is the working level for Marine Surveyors as well as for TI’s working in the aviation and rail side. He agreed that as a First Class Engineer, he cannot command a ship, although a Master Mariner can. Mr. Classen also acknowledged that the 54 Naval Architects, who are Marine Surveyors, are only required to complete a three or four-year university course. Some of the Marine Surveyors are Marine Electricians who have a four-year qualification period. He also acknowledged that not every Marine Surveyor has all the Order in Council appointments; the receipt of these appointments depends on where the individual in question works. Mr. Classen noted that the prestige traditionally associated with the position of Marine Surveyor has diminished, that the question of status is important to Marine Surveyors and constitutes part of his overall complaint. He observed that they are in the same bargaining unit as, for example, Weights and Measures Inspectors who have much lower qualifications. He is aware that Mr. Theedom is on the Treasury Board negotiating team; he believes that Mr. Theedom is doing a good job and has a good grasp of the concerns of Marine Surveyors; he continues to believe that the problem respecting recruitment and retention will not be addressed at the bargaining table as long as they remain within the TI group.

When cross-examined by the intervenor, Mr. Classen stated that he assumes Meat Inspectors are part of the TI group, although he has not met any. He does not feel that the TI benchmarked position covers the full range of their responsibilities, Public Service Staff Relations Board

Decision Page 8 although he acknowledged that the Marine Surveyor position is the benchmark for the TI-6 classification level standard. Mr. Classen insisted that when their concerns about the inadequacy of the standard in respect of Marine Surveyors were brought to the union’s attention they were told that there is only so far that this issue can go; he maintained that if they were in a separate bargaining unit a resolution of this problem would be focussed on them rather than dispersed and diluted throughout a wider bargaining unit.

Mr. Classen also agreed that when he had been on the TI bargaining team in 1991, a day had been devoted to discussions with the union negotiator about their concerns; however, they were told that their issues could not be on the table. The bargaining team never met with the employer. Mr. Classen also agreed that Exhibit A-1, at page 7, notes that he was participating with the union in helping to present their case on classification to management. He never appeared before a Treasury Board classification committee hearing, since he had withdrawn all of his grievances prior to that level.

Mr. Jean Gagnon has been a Marine Investigator for the TSB since 1990. From 1986 to 1990 he was employed with Transport Canada in the Marine Casualties Investigation Directorate. In 1990 the four different modes of investigations that is Aviation, Marine, Pipeline and Rail were united under the TSB. Whenever there is a marine occurrence, that is an accident or a collision or near accident the TSB makes the determination whether there should be an investigation. If so, Investigators are dispatched either individually or as a team to the site. They would then carry out interviews of, for example, the ships crew, pilots, owners, etc. and would review material such as the “classification societies” that is the standards used by underwriters as well as various personnel involved in vessel traffic, navigation, etc. They would examine ships, shore aids, navigation equipment and anything else that might influence the seaworthiness of a vessel, including management policies and procedures, as well as emergency plans. Mr. Gagnon noted that they must have a knowledge of both national and international regulations including approximately 20 conventions emanating from the International Maritime Organization. There are some 20 statutes which they are required to work with, for example, the Canada Shipping Act and the Canada Labour Code. Their powers as Investigators are set out in section 19 of the Canadian Transportation Accident Investigation and Safety Board Act Public Service Staff Relations Board

Decision Page 9 which includes the right of search and seizure. Their duties also require them to examine considerations such as the health of persons involved in marine transport, and whether they have been adequately assessed with respect to their competence and their training.

Mr. Gagnon noted that Marine Investigators are required to have a valid certificate as a Master Mariner, or as a First Class Marine Engineer (Exhibit A-35). He corroborated Mr. Classen’s testimony about the various certificates that are required to become the Master Mariner; he noted that most Master Mariners have a 30 month college certificate and then go through the four certificates of competency.

Mr. Gagnon stated that he has had several contacts with officers of the U.C.T.E. including the current President, Mr. Robert Desfonds, as well as Mr. Raymond Carrière, the Labour Relations Officer. He has also dealt with Mr. Michael Wing, the National Vice-President. He characterized his dealings with them as being very cordial; they tried to help him whenever he requested something, but the degree of help which could be provided was limited. Mr. Gagnon noted that he had submitted a classification grievance in July 1996 on behalf of ten out of the twelve TI-6’s employed at TSB at the time. They had received some assistance from U.C.T.E. as to how to file this grievance. When concerns were raised about the merits of the grievance from a Classification Officer with the PSAC they received support from Mr. Desfonds in pursuing this grievance. Ms. Elizabeth Millar, Co-ordinator for Classification and Equal Pay with the PSAC expressed reservations about the Alliance pursuing this grievance noting that “The Classification Grievance Process is management described and management controlled ... The Classification Standards are, as well, employer controlled and did not reflect the current work responsibilities of Public Service members (Ref. Letter to Mr. Desfonds dated September 19, 1996, Exhibit A-41).

From November 4 to November 7th, 1996 the Marine Investigators met with Mr. Desfonds as well as other officers of the union. Mr. Gagnon noted their dismay when one of the union officers commented that Marine Investigators could not obtain a higher classification because they do not have a licence like a pilot; it was the Marine Investigator’s conclusion from this comment that the union did not understand who they were dealing with. It was suggested that they send letters to the President of the TSB, Mr. Benoit Bouchard setting out their concerns. They in fact met with the

Public Service Staff Relations Board

Decision Page 10 Chairman on December 12, 1996; prior to that meeting, they briefed the Officers of U.C.T.E. respecting their duties and qualifications; at the meeting Mr. Desfonds and Mr. Carrière were in attendance as was Mr. Gagnon, a Captain Kasprzak and the Chairman. At the Chairman’s request they forwarded to him a briefing setting out their concerns in detail. On March 13, 1997 they received a reply from the Chairman in which he noted the concerns about the wage freeze detracting from the Board’s ability to employ staff; he observed that “New contract negotiations are now being initiated, and so both union and management have an opportunity to advance this issue.” He also made reference of the need to “advance our concerns within the development of the new Universal Classification System (UCS), which is still being targeted for introduction in 1998.” (Exhibit A-43) According to Mr. Gagnon, Mr. Carrière advised them that the union could not do much about this matter for the time being. The Marine Surveyors concluded they were just getting the “run around”. Mr. Gagnon and his colleagues wrote to Mr. Desfonds on April 11, 1997 advising that “... it is imperative that the union voice our classification group and level grievance at the present union negotiations for management to officially take action ... We believe that the present Technical Inspection classification group is not compatible with the duties and responsibilities of the job and more importantly it does not take in to consideration the qualifications and experience that are required for the TSB Marine Division to fulfill its mandate.” (Exhibit A-44). They never received a formal response to this letter, other than Mr. Carrière asking them to keep in touch.