FPSLREB Decisions

REASONS FOR DECISION

Complaint before the Board

1        This case is about shoelaces. The issue is whether border services officers (BSOs) working for the Canada Border Services Agency (CBSA) can wear them elsewhere than on their boots, for example, to tie their hair or as braided bracelets.

2        This case is about lawful union activities while on duty. The shoelaces are bright orange and are printed with the following message in black lettering: “I support my bargaining team.” The CBSA concedes that BSOs are allowed to wear a bright orange sticker on their uniform that carries the same message. However, it has issued a clear direction that the orange-with-black-lettering shoelaces must be worn as intended, i.e., threaded through the eyelets of boots.

3        The BSOs are employed exclusively at the CBSA, for which the respondent, the Treasury Board, is the employer. Their bargaining agent is the Public Service Alliance of Canada (PSAC or “the bargaining agent”), which is divided into several components. The relevant component for BSOs is the Customs and Immigration Union (CIU).

4        The bargaining agent seeks a declaration that the CBSA’S unilateral ban on wearing shoelaces other than on boots is an infringement of the right to union activity under ss. 5 and 186 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) and a violation of clause 19.01 of its collective agreement with the Treasury Board (expiry date June 30, 2014; “the collective agreement”).

5        For the reasons that follow, I declare that the blanket prohibition on wearing shoelaces as hair ties, bracelets, or other adornments is contrary to ss. 5 and 186 of the Act and a violation of clause 19.01 of the collective agreement. Subject to valid and legitimate operational concerns, the CBSA cannot dictate how employees choose to show support for their bargaining agent and bargaining team.

Summary of the evidence

6        The bargaining agent called two witnesses: Morgan Gay, Chief Negotiator, PSAC, and Jean-Pierre Fortin, CIU President. The respondent called one witness: Marc Thibodeau, Director General of Labour Relations, CBSA.

7        The CBSA is charged with controlling all entry points into Canada, whether by

land, sea, or air. BSOs are its enforcement agents. They work at ports of entry, whether land crossings, airports, or sea ports. They are responsible for ensuring that only authorized persons and goods cross the border into Canada.

8        Mr. Gay and Mr. Fortin both testified to a difficult relationship between the CBSA and the bargaining agent, as represented by both the CIU and the PSAC. Mr. Gay has been involved with collective bargaining with the CBSA since its creation in 2007 and is the chief negotiator for other groups. He stated that the CBSA has been the most difficult organization to deal with.

9        The most symptomatic aspect of this difficult relationship is the length of the bargaining rounds. The last bargaining round began on April 16, 2014. It had just concluded at the time of the hearing, and the members were voting on ratifying the new collective agreement, which has May 31, 2018, as its expiry date. By the time both parties sign the new agreement, it will have expired. The parties expect to be back at the bargaining table in the fall of 2018.

10        Mr. Gay stated that one of the difficulties that the negotiations sought to address was the issue of discipline at the CBSA. Management is perceived as    heavy-handed and as being prone to exercising reprisals against employees.

11        The shoelaces issue arose in the context of this tumultuous relationship. The story of their origin varied. Mr. Gay stated that they originated spontaneously in Coots, Alberta, as an expression of the employees’ frustration with the pace of collective bargaining. Mr. Fortin testified that they were printed and distributed by PSAC regional offices. All agreed that they were originally green and were now orange, after the colour of the collective agreement’s cover.

12        Tensions developed about the shoelaces when employees started to wear them as hair ties and bracelets. The bargaining agent and the CBSA’s Human Resources Branch had exchanges in the fall of 2017. Jacqueline Rigg, Vice-president responsible for the Human Resources Branch, reiterated several times that “… employees must wear items as intended when showing support for their bargaining team.” According to Mr. Fortin, he had received field reports that managers had told their employees to wear the shoelaces nowhere else but on their boots.

13        Mr. Thibodeau testified at the hearing that management reserved the right to decide case-by-case how union support apparel is to be worn. Sometimes it might be approved, sometimes not. He referred to a grievance in which the grievor had grieved the CBSA’s prohibition on wearing two patches with a union support message. Management relented at the first-level hearing, allowing the grievor to wear two patches, one in English, and one in French. The response at that level also added the following: “Management has never expressed concerns with employees wearing multiple individual union items at the same time (e.g. one bracelet, patch, shoelace and lanyard”.

14        At the hearing, Mr. Thibodeau stated that that was indeed management’s position. For example, the shoelaces could be made into lanyards with breakaway clips, which was acceptable. He explained that management’s concern was the safety risk posed by wearing shoelaces other than on boots — they could get caught in equipment or be grabbed by aggressive travellers. Lanyards had been deemed safe, as they would simply snap off if caught or grabbed.

15        Counsel for the employer and the bargaining agent’s representative both momentarily stepped out of their roles to present direct evidence by demonstration — the employer’s counsel by snapping off his lanyard, and the bargaining agent’s representative by wearing a shoelace tightly wound to hold her ponytail. Mr. Thibodeau conceded that thus worn, the shoelace posed no threat to employee safety. For his part, Mr. Fortin said that he had learned only at the hearing that the shoelaces could be worn as lanyards.

16        Mr. Thibodeau illustrated the employer’s concern with improper use of union apparel by giving the example of buttons that would pierce the BSO’s safety vests. The CBSA had been advised that the vest manufacturer would not honour its warranty if the vests were damaged by piercing. The problem had occurred some years before, and had been resolved by the parties agreeing to use Velcro patches or stickers on the vests.

17        Mr. Thibodeau and Mr. Fortin mentioned another incident, in which a BSO had plastered a great number of stickers on his uniform to show support for his bargaining team. Mr. Thibodeau had spoken to Mr. Fortin, telling him that such behaviour was unacceptable. Mr. Fortin ensured that the BSO was made aware that his behaviour was excessive. The matter was resolved without further ado.

18        Mr. Fortin and Mr. Thibodeau both testified that the joint National Health and Safety Committee had not been consulted about the shoelaces.

Reasons

19        The respondent argued this matter as a question of balance between the employer’s right to manage the workplace and the employees’ legitimate right to participate in lawful union activities in the workplace. The bargaining agent sees it as an infringement of employees’ rights to engage in legitimate union activism.

20        According to the bargaining agent, the CBSA’s prohibition on wearing the shoelaces otherwise than as intended is an unfair labour practice, contrary to ss. 5 and 186 of the Act, and a violation of clause 19.01 of the collective agreement. The relevant provisions read as follows:

5 Every employee is free to join the employee organization of his or her choice and to participate in its lawful activities.

…

186 (2) No employer, no person acting on the employer’s behalf, and, whether or not they are acting on the employer’s behalf, no person who occupies a managerial or confidential position and no person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer, shall

(a) refuse to employ or to continue to employ, or suspend, lay off, discharge for the promotion of economy and efficiency in the Royal Canadian Mounted Police or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

…

(iv) has exercised any right under this Part [including s. 5] or Part 2 or 2.1 .…

…

19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.

21        Both parties argued that the starting point of this discussion is the decision in Bartlett v. Treasury Board (Canada Border Services Agency), 2012 PSLRB 21. In that decision, the adjudicator found that the employer had violated the collective agreement by ordering the grievors not to wear one-centimetre wide bracelets that bore the message, “support the bargaining team/support à l’équipe de négociation”.

22        The employer’s argument in Bartlett was that wearing the bracelet did not conform to the uniform code, since coloured bracelets are not part of the permissible additions to the uniform, such as a watch bracelet or stud earrings. The employees countered that it was a legitimate union activity.

23        The adjudicator in that case found that it was a legitimate union activity protected by previous decisions that had confirmed the right of federal public service employees to manifest their support for their bargaining agents when interacting with the public (see Public Service Alliance of Canada v. Treasury Board,2011 PSLRB 106; Bodkin v. Treasury Board (Employment & Immigration Canada), PSSRB File Nos. 166-02-18108 to 18116, 18183 to 18188, 18190, 18209 to 18217, 18242, and 18243 (19890525), [1989] C.P.S.S.R.B. No. 117 (QL), affirmed in Quan v. Canada (Treasury Board), [1990] 2 F.C. 191 (C.A.)).

24        The adjudicator in Bartlett stated that although the employer is entitled to have a uniform policy, it cannot impose its will when it is a matter of a union activity protected both by the anti-discrimination clause of the collective agreement and s. 5 of the Act. He wrote the following at paragraph 23:

[23] … Neither the Act nor the collective agreement provides employees the right to have blue hair, long fingernails, earrings in the lower lip or tattoos on the forehead. That absence of specification in the collective agreement allows the employer to adopt a policy that regulates those types of personal preferences. However, the situation is different with union activities. The employer cannot, by virtue of its own unilateral policy, remove employees’ rights granted by the Act or the collective agreement. What really matters in this case is not the wording of the policy but whether the bracelets negatively impacted the grievors’ capacity to perform their duties.

[Emphasis added]

25        The parties in this case submitted additional case law to support their respective cases. The bargaining agent presented decisions from Quebec that supported uniformed police officers wearing camouflage pants or cowboy hats. In response, the employer provided a recent enactment of the National Assembly of Quebec making the full uniform mandatory while police officers are on duty.

26        In addition to those cases, both parties presented other cases that deal with the balance between the right to express one’s opinions and the employer’s right to manage its workplace.

27        I do not think that this additional case law is useful to my decision. The case before me deals with federal public servants’ right to signify their support for their unions, given the particular statutory scheme that applies to them. The employer has not challenged the message itself, which distinguishes this case from Almeida v. Treasury Board (Revenue Canada - Customs & Excise), PSSRB File Nos. 166-02-17058 and 17059 (19890125), [1989] C.P.S.S.R.B. No. 9 (QL).

28        The Bartlett decision, which both parties relied upon, is determinative. The parties are the same, and the facts are sufficiently similar to lead to the same conclusion. The right of union members to wear items that reflect union support is protected by both the Act and the collective agreement, as both this Board and its predecessors and the Federal Court of Appeal have consistently affirmed.

29        No doubt, the employer may have legitimate concerns when union activities pose a threat to the workplace or to its reputation. In this case, the CBSA’s main argument for insisting that shoelaces be used as intended is a health and safety concern. A dangling bracelet or a loose hair tie might be hazardous; an aggressive traveler might grasp it, or it might become entangled in equipment or machinery.

30        This argument, if genuine, is unconvincing. The evidence did not establish that anyone’s health or safety would in fact be at risk with this usage of the shoelaces.  Besides, why would officers charged with ensuring the safety of Canada’s national borders be unable to safely tie a shoelace when it is used as a hair ribbon? If they are entrusted with stopping terrorists, illegal goods, and criminals, why should they not be trusted to exercise common sense with a shoelace?

31        BSOs are not children in a playground that must be supervised for unexpected mishaps. They are adult men and women. Again, I wish to emphasize the important duties they are expected to carry out in their day-to-day work. I simply am not persuaded by the CBSA’s claimed health and safety concern, and therefore, I find that it is a pretext to impose on the BSOs the means by which they will express their solidarity with their bargaining team.

32        Dictating the way shoelaces may be worn is unacceptable and runs completely counter to the spirit of the Bartlett decision. The CBSA argues that it is in compliance with the Bartlett decision, but its micromanagement of people’s hair ties and friendship bracelets shows a thorough lack of understanding of the principles of the decision.

33        In contrast to the Bartlett decision, this decision does not deal with a grievance but rather with an unfair labour practice complaint. In Bartlett, the grievors were specifically told to remove their bracelets, or they would be seen as committing an act of insubordination. The grievance was based on clause 19.01 of the collective agreement.

34        In this case, I received no direct evidence from employees that they had been ordered to remove shoelaces worn as bracelets or hair ties. However, I accept Mr. Fortin’s evidence that this occurred. I also have very clear evidence that senior management repeatedly told the bargaining agent that shoelaces were to be worn only as intended. Mr. Thibodeau spoke of decisions made on a case-by-case basis, but again, it was clear from his testimony that management reserved the right to decide what was permissible, which implies a possibility of discipline.

35        I have no difficulty finding that this is contrary both to s. 186 and s. 5 of the Act, which ensure the right to lawful union activity without threat of discipline, and to clause 19.01 of the collective agreement, which states that there shall be “… no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action …”, notably because of union activity.

36        If the employer has genuine concerns based on real threats to its operations, they can be resolved, as illustrated when stickers and Velcro replaced buttons to avoid damaging safety vests. However, if an issue arises, the solution is not a blanket prohibition. Rather, the employer is to determine with the bargaining agent how rights can be exercised without risk of damage. If the employer was truly concerned about safety issues with the shoelaces, it could have raised the issue with the joint National Health and Safety Committee or with the bargaining agent directly.

37        The employer’s attitude appears to be that it will decide what lawful union activity is, despite having been told in several decisions that expressing union support is itself lawful. The CBSA cannot dictate how employees may express their solidarity with their bargaining team. Of course, it means that the CBSA must trust its employees to use good judgment when expressing their views without impeding the work they are paid to carry out. If there are true concerns, they should be raised at the national level with the bargaining agent, rather than having local managers threaten individual employees with imminent discipline or having national management issue a blanket prohibition.

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

Order

39        I declare that the ban on wearing the shoelaces at issue other than on boots is an unfair labour practice contrary to ss. 5 and 186 of the Federal Public Service Labour Relations Act and a violation of clause 19.01 of the collective agreement.

40        I order the employer to post this decision for 90 days on its intranet as well as at all BSO worksites.

August 15, 2018.