FPSLREB Decisions

Files: 161-2-938 161-2-939 161-2-942 and 953

Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN George Czmola, John Feldsted, Gayle Fabris and Paul D. Llewellyn Complainants and Linda Garwood-Filbert Respondent RE: Complaints under section 23 alleging a violation of subsection 8(1) of the Public Service Staff Relations Act

Before: Yvon Tarte, Chairperson For the Complainants: John Feldsted For the Respondent: Derek Dagger Heard at Winnipeg, 23 February 1999

Decision Page 1 DECISION The complaints filed in October 1998 and January 1999 allege that the respondent, while occupying a position or positions that are included in the definition of ‘managerial or confidential position’ contained in the Public Service Staff Relations Act (PSSRA), served as Regional Vice-President with the Union of Solicitor General Employees (USGE) a component of the Public Service Alliance of Canada (PSAC) thereby violating subsection 8(1) of the PSSRA which prohibits any person “who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer” from participating in or interfering “with the formation or administration of an employee organization or the representation of employees by such an organization.”

The complainants ask that the respondent be prohibited from membership or participation in the activities of the USGE/PSAC for as long as she holds a position of Correctional Supervisor (CX-03) or higher with the Correctional Service of Canada (CSC).

Certain matters of fact concerning the respondent were agreed to by the parties at the hearing. The supervisory positions held by Ms. Garwood-Filbert have not been identified by the Board as managerial or confidential positions. The respondent Garwood-Filbert has been and continues to be a dues paying member of the PSAC. The substantive position of Ms. Garwood-Filbert has been and continues to be unionized.

At the hearing the respondent raised two objections in this matter. First and foremost, Mr. Dagger referred to the Board’s decision in Reckie and Thomson (Board file 161-2-855) where Board member Turner found that “the statutory rights under subsections 8(1) and 9(1) were established by Parliament to protect employee organizations, such as the PSAC, and not individual employees, against employer interference or discrimination.” On that basis, argued Mr. Dagger, the complainants who are not here as representatives of the PSAC, do not have standing to bring their section 23 complaints alleging violations of subsection 8(1) of the PSSRA by the respondent.

Second, Mr. Dagger argued that even if the matter was properly before the Board, the respondent is not a person who occupies a managerial or confidential position. A person can only be said to occupy a managerial or confidential position as

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Decision Page 2 defined in subsection 5.1(1) when the position in question has been officially identified as such pursuant to sections 5.1, 5.2 or 5.3 of the PSSRA which is not the case here.

In response to these objections, the complainants filed written arguments which deal with the matters raised herein as well as with issues raised in 161-2-944, 945, 946, 947, 954 and 955 and 150-2-45, 46, 47 and 48. The full verbatim text of these arguments is as follows: PSSRA SECTION 8(1) COMPLAINTS • We have filed complaints with the Board respecting failures to comply with prohibitions under Section 8(1) and 10(2) of the Public Service Staff Relations Act.

• Our understanding is that this hearing is to determine the substance and validity of our complaints and whether there is sufficient evidence to compel the Board 1) to make further investigations of fact; 2) to declare that there has been a failure to comply with prohibitions; and 3) to take appropriate action to deal with transgressors. This proceeding, as we understand it, is similar to a preliminary hearing except that the Board will determine if further hearings, proceedings or processes are required to deal with these complaints.

• There are three major complaints under Section 23 of the Act:

• The substance of the first complaint, in respect to Ms. Linda Garwood-Filbert, is that: § On or about June of 1996 Ms. Linda Garwood-Filbert accepted the position of Regional Vice-President, Manitoba (CSC) with the Union of Solicitor General Employees – PSAC and has held that position continuously since. § On or about September 1997 Ms. Linda Garwood-Filbert accepted the position of Correctional Supervisor (CX-03) with her employer, the Correctional Service of Canada and has held the position continuously since. § Ms. Linda Garwood-Filbert, at all material times, knew her position as Correctional Supervisor (CX-03) had been declared a ‘managerial or confidential position’ as defined in the Act, and placed herself in a conflict of interest and in direct violation of section 8(1) of the Act.

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Decision Page 3 • The substance of the second complaint, in respect to the Union of Solicitor General Employees and the Public Service Alliance of Canada, is that: § On or about June of 1996 Ms. Linda Garwood-Filbert accepted the position of Regional Vice-President, Manitoba (CSC) with the Union of Solicitor General Employees – PSAC and has held that position continuously since. § On or about September 1997 Ms. Linda Garwood-Filbert accepted the position of Correctional Supervisor (CX-03) with her employer, the Correctional Service of Canada and has held the position continuously since. § On or about April of 1998, and in the months following, Ms. Linda Garwood-Filbert confirmed her intent and ambitions by accepting acting positions as a Unit Manager (AS-05) with her employer for varying durations. § On or about April of 1998, Ms. Linda Garwood-Filbert accepted a position on the contract negotiating team for the Public Service Alliance of Canada while holding an excluded position and acting in a managerial position for her employer. § At all material times the Union of Solicitor General Employees – PSAC and the Public Service Alliance of Canada were aware that Ms. Linda Garwood-Filbert was employed in a ‘managerial or confidential position’ as defined in the Act, and was acting in a higher managerial position from time to time.

• The substance of the second complaint, in respect to the Treasury Board of Canada and Correctional Service Canada, is that: § On or about June of 1996 Ms. Linda Garwood-Filbert accepted the position of Regional Vice-President, Manitoba (CSC) with the Union of Solicitor General Employees – PSAC and has held that position continuously since. § On or about September 1997 Ms. Linda Garwood-Filbert accepted the position of Correctional Supervisor (CX-03) with her employer, the Correctional Service of Canada and has held the position continuously since. § On or about April of 1998, and in the months following, Ms. Linda Garwood-Filbert confirmed her intent and ambitions by accepting acting positions as a Unit Manager (AS-05) wit her employer for varying durations. § On or about April of 1998, Ms. Linda Garwood-Filbert accepted a position on the contract negotiating team for the Public Service Alliance of Canada while

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Decision Page 4 holding an excluded position and acting in a managerial position for her employer. § At all material times the Treasury Board of Canada and the Correctional Service of Canada were aware that Ms. Linda Garwood-Filbert was employed in a ‘managerial or confidential position’ as defined in the Act, and was acting in a higher managerial position from time to time.

• In recognition that the complaints are intertwined and filed separated largely due to the definitions of each party under the Act, we propose to put forward our case in respect to all three respondents simultaneously.

• We submit that there is no practical value in dealing with Section 23 complaints separately with each respondent as the bulk of our submission will be repeated for each complaint. We do not wish to waste the time of the Board or that of the respondents.

• We propose to deal with the Section 43 complaint following the Section 23 complaints as only the Public Service Alliance of Canada is involved and the employer need not attend to this aspect of the hearings.

• We will deal first with our right to make a complaint under Section 23 of the Act. The complainants are all employees as defined under the Act and have a direct interest in who represents them in relations with the employer.

• As employees, we assuredly have an interest in who represents us in bargaining for a collective agreement with our employer. As has been proven in the recent past, the term of any collective agreement may be legislatively extended far beyond that envisaged by an employee organization when signing a contract in good faith.

• There is no restriction whatever under Section 23 of the Act as to who may, or may not, lay a complaint. There is a common law requirement that a complainant must have a lawful interest in the matter complained about. We submit that we meet the test as complainants and have a direct and ongoing interest in the matter before the Board today.

• We submit that the prohibitions under Sections 8, 9 and 10 of the Act are designed to firstly protect employees as defined in the Act and secondly to ensure fair and unbiased representation of those employees in negotiations with their employer. As employees, we find the election or appointment of an employer manager

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Decision Page 5 represent us and to act for us on our employee organization contract negotiating team unacceptable.

• We further submit that we do not need to prove impropriety to lodge a complaint under Section 23 of the Act. Section 8(1) stands as a bar to the possibility of employer involvement or impropriety in the formation and operation of an employee organization.

• Section 10(2) prohibits bad faith representation of employees and we submit that subverting contract negotiations by allowing an employer manager to sit on our negotiating team is an ultimate in bad faith representation.

• We appear here to ask the Board to uphold the prohibitions under Section 8(1) and 10(2) and submit again that we have the standing to do so.

• Next, we will deal with the theory that a management or confidential employee can continue to participate in the operation of an employee organization as long as the employer has not made application under Section 5.2 of the Act for identification of the position as a managerial or confidential exclusion.

• We submit to the Board that the application of Section 8(1) is separate and independent from, and not contingent or dependent on, applications under Section 5(2) of the Act.

• Section 8(1) does not specify position identified as being managerial or excluded positions, ONLY …..persons who occupy managerial or confidential positions as defined in the Act. We submit that if legislators had envisaged restricting the prohibition to positions identified under Section 5 as managerial or confidential positions they would have so stated in the wording of Section 8(1).

• We further submit that Section 5.2(1) of the Act is written in permissive rather than imperative language:

5.2 (1) Where, before or after the coming into force of this section, a bargaining agent has been certified by the Board, the employer may, in the prescribed manner, identify any position described in subsection 5.1(1) of an employee in the bargaining unit for which the bargaining agent was certified as a managerial or confidential position, and for the purpose of that identification the reference in paragraph 5.1(1)(d) to the Board shall be construed as a reference to the employer.

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Decision Page 6 An employer may identify a managerial or confidential position under Section 5.2 of the Act. There is no onus, no demand on and no requirement for an employer to do so.

We submit that at any given time, all positions defined as “managerial or confidential” under the Act will not necessarily be identified through an application for identification by the employer. There is, after all, no requirement for the employer to make application for identification, only permission to do so. The failure of an employer to identify managerial or confidential positions can be due to delays in process, oversight, clerical error or other innocent misadventure, but could conceivably be done by intent or even malice.

We further submit that making applications for, or the failure to make application for, identification of managerial or confidential positions under Section 5.2 of the Act does not, in any way, absolve an employer from a duty to avoid the prohibitions in Section 8(1) of the Act.

There is no requirement for a union or employee organization to identify managerial or confidential positions. We submit that it would be disadvantageous for an employee organization or union to do so. Membership numbers and income from dues would reduce. Indeed, Section 5.3 of the Act makes provision for an employee organization to challenge identification of positions as managerial or confidential to reacquire members.

We submit that an employee organization or union cannot transfer its responsibility for complying with prohibitions under Section 8(1) of the Act to the employer through relying solely on applications under Section 5 (2) of the Act to protect itself.

Our position is that the prohibitions contained in the Act, Sections 8, 9 and 10 cannot be read as contingent on identification of managerial or confidential positions as defined in the Act. We submit that if legislators had envisaged such a restriction they would have so stated in wording the prohibitions contained in sections 8, 9 and 10. They did not do so.

We further submit that if this were the case, Section 5 (2) would be written in imperative language requiring employer identification of managerial or confidential positions rather than in permissive language allowing the employer to make such identifications.

Under the Act, the sole authority on what is and is not a managerial or confidential position is the Board, as set out under Sections 5.1, ss (1), 5.2, ss (4) and 5.3, ss (2):

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Decision Page 7 5.1 (1) Where, in connection with the application for the certification of an employee organization as a bargaining agent, the Board is satisfied that any position of an employee in the group of employees for which certification is sought meets any of the following criteria, it shall identify the position as a managerial or confidential position:

(a) a position the occupant of which has substantial duties and responsibilities in the formulation and determination of any policy or program of the Government of Canada;

(b) a position the occupant of which has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with a grievance presented in accordance with the grievance process provided for by this Act;

(c) a position the occupant of which is directly involved in bargaining on behalf of the employer;

(d) a position the occupant of which has duties and responsibilities not otherwise described in this subsection and who in the opinion of the Board should not be included in a bargaining unit for reasons of conflict of interest or by reason of the person’s duties and responsibilities to the employer; and

(e) a position the occupant of which has, in relation to staff relations matters, duties and responsibilities confidential to a position described in paragraph (a), (b) or (c).

5.2 (4) Where an objection to an identification is filed pursuant to subsection (3), the Board, after considering the objection and giving the employer and the bargaining agent an opportunity to make representations, shall confirm or reject the identification.

5.3(2) Where an objection to an identification is filed pursuant to subsection (1), the Board, after considering the objection and giving the employer and the bargaining agent an opportunity to make representations, shall confirm or terminate the identification.

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the process of collective

Decision We submit that a decision on whether there has been a violation of the prohibition under Section 8(1) of the Act requires a separate Board decision on the managerial or confidential status of Ms. Garwood-Filbert.

We submit that the Board has the power, under Sections 23 and 25 of the Act, to make investigations required. We further submit that the Board holds the power to make a determination on the managerial or confidential status of the positions Ms. Garwood-Filbert holds with the Correctional Service of Canada, on both a substantive basis and in an acting capacity whether an application for identification has been made or not.

We further submit that the Board can make such determinations when considering complaints under Section 23 of the Act. The validity of such complaints cannot be assessed without this determination of status of the positions.

We submit that the failure to apply for identification under section 5(2) of the Act or an application in process for identification cannot be used as a subterfuge by either the employer or an employee organization to avoid a duty to comply with the specific prohibitions under section 8(1) of the Act.

We further submit that Section 8(1) applies to both employers and employee organizations and that there is onus on each adhere to the prohibition. We would bring the Board’s attention to Section 40(1) of the Act:

40. (1) The Board shall not certify as bargaining agent for a bargaining unit, any employee organization in the formation or administration of which there has been or is, in the opinion of the Board, participation by the employer or any person acting on behalf of the employer of such a nature as to impair its fitness to represent the interests of employees in the bargaining unit.

Clearly, the prohibition under Section 8(1) applies to an employee organization since certification as a bargaining agent is contingent on complying with the prohibition in Section 8(1) of the Act.

We submit that there is an onus on an employer to comply with the prohibitions under Section 8(1) as otherwise an employer could, by not advising the Board or employee organization that a given position was managerial or confidential, entrap an employee organization in violation of Section 8(1) and Section 40 of the Act.

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Page 8 the positions held by

Decision Page 9 We will now turn our attention to the specifics of violation of Section 8(1) of the Act:

For several months prior to the filing of the complaints before the Board, Linda Garwood-Filbert occupied a managerial or confidential position with the Correctional Service of Canada, as defined under the Act:

“managerial or confidential position” means a position (g) identified as such a position pursuant to section 5.1 or 5.2, the identification of which has not been terminated pursuant to section 5.3;

For further clarification, we draw the Board’s attention to Section 5.1 of the Act:

5.1(1) Where, in connection with the application for the certification of an employee organization as a bargaining agent, the Board is satisfied that any position of an employee in the group of employees for which certification is sought meets any of the following criteria, it shall identify the position as a managerial or confidential position:

(b) a position the occupant of which has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with a grievance presented in accordance with the grievance process provided for by this Act;

We will show that Ms. Garwood-Filbert’s positions for the past few months clearly involve the duties set out in definition sub-section (g) and further clarified under Section 5.1 subsection (b).

Ms. Garwood-Filbert’s substantive position has been that of a Correctional Supervisor (CX-03) and we submit the Correctional Supervisor (CX-3) generic work description as Exhibit # . We have added line numbers to the document for ease of reference. We draw the Board’s attention to Page 1, line 41 “evaluates staff performance, takes disciplinary actions” and to Page 3, lines 125 through 129:

The work involves: supervising and motivating a minimum staff of twelve (12) correctional officers, including defining training and development needs, preparing staff performance appraisals, monitoring the use of

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Decision Page 10 overtime and leave, recommending and taking disciplinary action, and maintaining a duty roster, supervising institutional staff during their shift.

We submit that the duties described, in particular the duty to invoke employee discipline, are within the definitions under Section 5.1 sub-section (1) item (b) of the Act.

As evidence of some of the occasions on which Ms. Garwood-Filbert has acted as a Unit Manager, we submit copies of the Stony Mountain Institution weekly Routine Orders dated 01 April 1998, 21 October 1998, 18 November 1998, 22 December 1998 and 27 January 1999 as Exhibits #

These documents indicate that Ms. Garwood-Filbert has acted as Unit Manager for the periods:

02 April to 20 April 1998 20 October to 22 October 1998 16 November 1998 to 18 December 1998 21 November 1998 to 04 January 1999 31 January 1999 to 02 February 1999 although we hasten to add that this list is by no means exhaustive or complete.

We submit the Unit Manager generic work description as Exhibit # . Again, we have added page and line numbers for ease of reference.

We draw the Board’s attention to page 3, lines 80 through 82. We submit that the duties outlined, which include discipline of employees and in particular the response to first level grievances, are within the definitions under Section 5.1 sub-section (1) item (b) of the Act.

We have not brought the actual work descriptions pertaining to Ms. Garwood-Filbert, as they are not available to us without a breach of the Privacy Act. If there is any question respecting the voracity of the work descriptions we have submitted, we invite the Board to exercise its powers and demand production of the appropriate authentic documents.

We also submit an instruction entitled “Steps in the Grievance Procedure” put out by Prairie Region Deputy Commissioner Mr. Remi Gobeil dated 30 September 1997. We have added page and line numbers for reference. This instruction was issued to support the employer contention that Correctional Supervisor positions were managerial or confidential exclusions.

We bring the Board’s attention to Page 4, lines 135 through 150. It is clear that both Correctional Supervisor and Unit Manager positions have responsibility for first level