FPSLREB Decisions

File: 181-02-388 181-02-438

Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN TREASURY BOARD Applicant and PUBLIC SERVICE ALLIANCE OF CANADA Respondent RE: Designated Positions- General Services Group (GS) (Supervisory and non-supervisory)

Before: Yvon Tarte, Chairperson For the Applicant: Pierre Hamel For the Respondent: David Yazbeck Heard at Ottawa, April 28, 1998

Decision Page 1 DECISION This is an application made by the Treasury Board for an extension of time under subsection 78.1(6) to notify the Public Service Staff Relations Board (PSSRB) that the parties have reached an agreement for the designation of 1,079 positions in the GS bargaining unit.

Six witnesses were called to testify by the applicant. No evidence was adduced by the respondent. Finally I asked that Gilles Brisson, Assistant Secretary of the PSSRB, testify briefly to clear up a specific matter.

The Factual Context The first witness to testify was Raymond Dionne who works for the Treasury Board as an Employer Representation Officer. In that capacity Mr. Dionne deals with designations and exclusions as well as grievances. In the area of designations the witness is responsible inter alia for the GS group.

Exhibit E-1, a letter dated 4 February 1997 from the applicant to the respondent, asks that the parties meet pursuant to subsection 78.1(4) to review positions in the GS group. This letter indicates that Mr. Dionne will be the employer representative to discuss designation proposals for the GS group.

On 4 March 1997, the applicant provided to the Board a statement of the positions in the GS group where the parties agreed had or did not have safety or security duties (Exhibit E-2). This statement also identified those positions in the GS group for which the parties disagreed. The positions in dispute were referred by the employer to a Designation Review Panel (DRP) in accordance with the provisions of subsection 78.1(7).

A DRP was appointed in early April 1997. The panel was set to meet with the parties on 6 May 1997 (Exhibit E-3). Prior to the scheduled meeting date, the Board was advised that a settlement had been reached in the designation process for the GS group. The parties were formally advised of that fact and the scheduled DRP meeting was canceled (Exhibit E-4).

Mr. Dionne testified that for the GS group each Department negotiated an agreement with the appropriate component of the Public Service Alliance of Canada

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Decision Page 2 (PSAC) and that by late April 1997, he had discussed with Amy Campbell of the PSAC the fact that all departments and components had reached an agreement. In the case Correctional Services Canada, the agreement was in the form of a formula which had to be applied locally to come up with an exact list of the positions to be designated. It was on the basis of these agreements that the Board was advised that the parties had reached an agreement and consequently that the DRP need not meet.

In mid May the applicant realized that 17 GS positions at Heritage Canada, originally identified as being in dispute, had been forgotten and left out of the agreement it had just concluded with the PSAC.

Following discussions with the respondent, the applicant asked the Board for an extension of time to refer the 17 disputed GS positions to the DRP. On 10 July 1997 (Exhibit E-11) the Board advised the parties that the applicant’s request for an extension of time to refer the 17 Heritage Canada GS positions to the DRP would not be granted. The employer did not contest the Board’s decision on this collateral issue.

Mr. Dionne then waited for the finalization of the Correctional Services Canada agreement with the Union of Solicitor General Employees, the PSAC component involved. The final determination of the GS positions at Correctional Services Canada came on 4 February 1998 and was signed by Lynne Brown of the Department and Michel Charbonneau of the component (Exhibit E-12). On 11 February 1998, the witness executed a final agreement for the designation of positions in the GS group. The document which refers to 1,079 positions agreed upon by the parties for designation was never executed by the PSAC (Exhibit E-13).

Mr. Dionne was advised prior to 11 February 1998 that the PSAC was objecting to the filing of the agreement for GS positions.

The next witness to testify was Angèle Régimbald who works as a Staff Relations Officer at Correctional Services Canada. She was involved in discussions with the PSAC component on GS designations. Following discussions in early February 1997, Ms. Régimbald and Mr. Charbonneau reached a tentative oral agreement on 27 February 1997. What they agreed upon was a formula to be applied in the various regions at each institution. The witness and Mr. Charbonneau had

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Decision Page 3 discussions in December 1997 and January 1998 and finally executed the agreement (Exhibit E-12) referred to earlier.

Between March 1997 and December 1997, Ms. Régimbald spoke to Mr. Charbonneau on several occasions with respect to other matters. During those discussions Mr. Charbonneau did not raise the preparation of the GS list in the regions nor did he talk of deadlines.

Ms. Régimbald indicated that persons holding the GS classification at Correctional Services Canada can be involved in food preparation, training, purchasing, laundering, cleaning, stores and driving.

The witness attributed the slowness in finalizing the Correctional Services Canada GS list on several factors including the work involved in liaising with the regions, the number of vacant GS positions and her own personal workload.

Micheline Maisonneuve who works as an Administrative Officer in the Labour Relations Division at the Treasury Board testified next. She prepared the tables contained in Exhibit E-23. In order to do so she examined the necessary Treasury Board files and in some cases talked to the various officers involved in the designation process for specific groups.

Ms. Maisonneuve indicated that her practice was to file Memoranda of Agreement with the Board once they had been completed and that she had done so beyond the statutory deadlines on the numerous occasions referred to in Exhibit E-23 without the benefit of a Board order extending time limits.

Finally Ms. Maisonneuve indicated that on or about 3 February 1998 she spoke to Stephanie Copeland of the PSAC who was by then responsible for the GS designation file for the bargaining agent. During this conversation, Ms. Copeland agreed to contact the PSAC component to ascertain what was going on. Ms. Copeland and Ms. Maisonneuve had no further discussions on this matter.

Georges Hupé and Keith Willis who both work for the applicant and were involved in the designation process confirmed some of the information contained in

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Decision Page 4 Exhibit E-23 and the procedure used to refer finalized agreements on designations to the Board.

Gray Gillespie who is the Director of Representation and Consultation for the applicant was the next witness. He stated that on 3 February 1998 he received a phone call from Gilles Brisson the Assistant Secretary in charge of Operations at the Board. During this conversation, Mr. Brisson indicated that he was doing some “housekeeping” and had noticed that the GS agreement had not been filed to enable the Board to prepare a determination and the necessary Form 13 notices.

Mr. Brisson suggested that the Treasury Board request an extension of time limit to refer the GS agreement to the Board. No specific reasons for this suggestion were put forward by Mr. Brisson. The next day, 4 February 1998, Mr. Gillespie asked for an extension of time to provide the Board the necessary information to complete the GS designation process (Exhibit E-14).

The PSAC objected to the applicant’s request (Exhibit E-15 and E-16). On 12 February 1998 (Exhibit E-17) Mr. Gillespie explained the employer’s position while the PSAC submitted its position on 16 February 1998 maintaining its objection to the applicant’s request for an extension of time. On 2 March 1998 the Board advised the parties that a hearing would be held in this matter.

At my request and with the consent of the parties, Gilles Brisson testified. Mr. Brisson stated that in November 1997 his section was given the administrative responsibility for all Mediation Services files. This change in procedures at the Board required that he review all mediation files including the GS designation file for which the employer had not yet filed a Memorandum of Agreement.

On 2 February 1998, Mr. Brisson received a phone call from Ms. Copeland concerning the status of designations for the GS group. During that conversation Ms. Copeland might have intimated that there could be no GS designations since the employer was late in filing the necessary documentation.

On 4 February 1998, Mr. Brisson spoke to Gray Gillespie and while referring to the administrative transfer of mediation files to his service suggested that the

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Decision Page 5 Employer might ask for an extension of time to refer the GS documentation to the Board.

Argument For the applicant The provisions of the Public Service Staff Relations Act (PSSRA) which deal with the designation process contain precise time limits to ensure that the parties to collective bargaining are held to rigorous steps when they disagree on the positions to be designated in any given bargaining unit.

Pursuant to the 1993 amendment to the PSSRA, the Board now has the authority to extend the time limits contained in sections 78.1 and 78.2. The legislation does not specifically cover situations such as this one where the parties agree on designations following the time limit set to refer such matters to the Board. The Act is silent for situations where the parties resolve designation issues without a DRP report to trigger the application of subsections 78.1(9) or (10).

As much as it is important for the parties to abide by the strict time limits at the front end of the process, as much it is not so important to do so when the parties have reached an agreement.

Exhibit E-23 clearly shows the existence of a practice to allow late filing of designation agreements between the parties. Jurisprudence which precedes the 1993 amendments therefore has no application in this case. The Board now has an unfettered discretion to extend the necessary time limits.

In dealing with this request, the Board should determine if a proper explanation was given for the delay and secondly whether the respondent would suffer undue prejudice by the granting of the extension of the time limits.

The delay is properly explained by the time it took to finalize the Correctional Services Canada agreement and by the accepted practice of late filing. The practice of late filing is implicitly recognized in the numerous decisions of the Board which form

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Decision Page 6 part of Exhibit E-23. The employer recognizes that Correctional Services Canada could have moved more quickly in this matter but the fact remains that Mr. Charbonneau never once raised the issue of timeliness between February and December 1997. The employer tried to file the Memoranda of Agreement as soon as possible after 4 February 1998 when the parties finally reached a detailed agreement on the Correctional Services Canada positions.

In keeping with the established practice the employer did not, before this application, ask for an extension of time limits to refer to the Board the GS designation documents. If the PSAC wanted to change the established practice they should have stated so in a timely manner and discussed the issue with the Treasury Board. The PSAC is now estopped from going back on the practice which they lead the employer to believe was acceptable.

Since the respondent adduced no evidence it cannot claim that it would suffer prejudice if the extension sought were granted. In fact the public would suffer prejudice if the extension is not granted since it has been shown that nearly half of the 1,079 positions agreed upon by the parties are intrinsic to the proper functioning of prisons in Canada.

In support of its argument the applicant referred to Driedger on the Construction of Statutes (3rd Edition, Bulterworths), Canadian Labour Arbitration (3rd Edition, Brown and Beatty), Canada Law Book and Grewal v. Minister of Employment and Immigration, [1985] 2 C.F. 263.

For the respondent Even though the PSSRA was amended in 1993, the Board’s pre-1993 jurisprudence still applies. In Treasury Board and The Professional Institute of the Public Service of Canada (Board file 181-02-361) the Board clearly indicated that in cases of late filing the old jurisprudence would still be applicable.

The Federal Court and the Board have stated on numerous occasions that the time limits set out in the designation process are strict and should be extended only for good reasons. In providing good reasons to justify an extension of time the applicant must show that it was not at fault.

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Decision Page 7 The question of prejudice is dealt with squarely by the Federal Court in Attorney General of Canada v. Public Service Alliance of Canada ([1989] 3 C.F. 585, at page 592) when then Chief Justice Iacobucci replied to the Attorney General’s argument on prejudice this way: However, if one accepted the applicant’s argument that good cause also means a consideration of the important duties of the employees, that would be tantamount to allowing the time limit to be ignored and not complied with which could result in detriment to the collective bargaining rights of employees in a manner inconsistent with the Act.

In Council of Canadians et al. v. Director of Investigations and Research, Competition Act et al. (212 N.R. 254, F.C.A.) Mr. Justice Hugessen discusses the Grewal case raised by the applicant only to conclude that no extension of time can be granted if the delay which gave rise to the request is not satisfactorily explained.

The principle of Estoppel raised by the applicant has no application here. In their work, Brown and Beatty (supra at page 2-59) define the main elements of estoppel: Thus, the essentials of estoppel are: a finding that there was a representation by words or conduct, which may include silence, intended to be relied on by the party to which it was directed; some reliance in the form of some action or inaction; and detriment resulting therefrom.

None of the basic elements are satisfied by the facts of this case. The only witness who spoke to the reasons for the delay was Angèle Régimbald. The only excuse she could muster was that the designation process at Correctional Services Canada was complicated and she had a heavy workload in other areas. These are not the accidents or uncontrollable events referred to in the Board’s jurisprudence to justify extensions. To paraphrase Mr. Justice Iocobucci (supra) the delay was the sole fault of the employer and that is not enough. Although the PSAC did not object to the delay, the fact remains that the delay itself was not properly explained or justified by the applicant.

In his letter to the Board. (Exhibit E-17) Mr. Gillespie refers only to ongoing negotiations as being the cause for the delay. He does not mention the “practice”

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Decision Page 8 which the applicant now puts forth as argument for the granting of the extension it seeks.

The tables provided in Exhibit E-23 do not establish the existence of a practice accepted by the respondent. In any event whatever practice existed, was not created until after the deadline to refer the GS agreement to the Board had been missed. For all the other groups listed in Exhibit E-23, the time limits missed were significantly shorter. That cannot be presented as a practice to justify an eleven months delay.

The fact that the PSAC did not object sooner in this case or in any other designation process does not remove the right of the respondent to object now. Through its own inaction the employer created an inordinate delay in the GS designation process. The applicant could easily have requested an extension in a timely manner. It did not. The application should be rejected.

Reply The employer was required to provide an explanation for the delay and has done so. Pre 1993 jurisprudence should not be applied in a case such as this one. The Board now has a statutory discretion to extend time limits. That discretion is unfettered and should be exercised albeit carefully.

The employer does not disagree that the parties could have acted with more diligence, but the fact remains that they followed a practice which appeared to suit their needs.

Reasons for Decision I believe that the extension of time requested by the applicant should be granted. This case is not concerned with late filing in the initial steps of the designation process where the utmost diligence must be shown. The Board’s position in this regard was confirmed in its decision with respect to the 17 GS positions at Heritage Canada. Rather this case deals with a situation where all preliminary steps up to the appointment of a DRP were taken in a timely manner. Those steps or procedures were followed by an agreement between the parties.

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Decision Page 9 A practice has developed between the parties to allow such agreements to be filed with the Board outside the statutory time limits so that a formal determination can issue. The practice appears to have worked well in the designation process for many other groups (see Exhibit E-23). I do not believe that this is a proper case for the application of the doctrine of estoppel or even waiver. Given the circumstances of the case and particularly the conduct of the parties in allowing the practice to evolve, I feel that this is an appropriate case for the Board to exercise its discretion under subsection 78.1(6) of the Act.

Keeping in mind the ongoing discussions between Correctional Services Canada and the Union of Solicitor General Employees component of the PSAC, the fact Mr. Charbonneau signed the GS Memorandum of Agreement on 4 February 1998 and given the existing practice outlined in Exhibit E-23, the Board will exercise its discretion under subsection 78.1(6) to extend the time limit for the employer to notify the Board of those GS positions which the parties have agreed have safety or security duties. The time limit provided by subsection 78.1(6) as it relates to the GS group (supervisory and non-supervisory) is hereby extended until 29 May 1998.

Yvon Tarte Chairperson

OTTAWA, May 13, 1998

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