FPSLREB Decisions

File: 161-2-868 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN R. MAXINE COLLINS Complainant and PUBLIC SERVICE ALLIANCE OF CANADA Respondent RE: Complaint under section 23 of the Public Service Staff Relations Act

Before: P. Chodos, Vice-Chairperson For the Complainant: Herself For the Respondent: David Landry, Public Service Alliance of Canada Heard at Ottawa, Ontario, January 7, 1999.

Decision Page 1 DECISION The complainant is a PM-3 currently employed as an Interpretation Officer, Technical Interpretation Services (TIS), Client Services Branch of Revenue Canada; at this time her place of work is in Ottawa and she is a member of the PM bargaining unit, for which the respondent is the certified bargaining agent. The complainant alleges that the respondent is in violation of the unfair representation provision of the Public Service Staff Relations Act, that is, subsection 10(2) of the Act.

Ms. Collins was seconded to the headquarters area from the Toronto West - Taxation Services Office in order to work as a member of a team examining the “re-engineering” of certain operations within Revenue Canada; a major issue in respect of the re-engineering was the reclassification of a number of positions within the Department. According to the complainant, management was planning to reclassify certain PM positions into the AU occupational group; other PM positions, whose incumbents do not hold the requisite qualifications under the AU classification standard, were to be reclassified within the PM occupational group. A major concern of the employees affected by this impending reclassification was whether they would have to compete for the reclassified positions. Ms. Collins had previous experience working with the union, having been a shop steward. She noted that as a member of the re-engineering team she felt that she had something of a conflict of interest which prevented her from becoming actively involved through the union in respect of this issue; however, when her secondment ended she contacted Mr. Wayne Mercer, the Second National Vice-President of the Customs and Excise Douanes Accises (CEUDA), which is a National Component of the Public Service Alliance, and undertook to work with him in attempting to persuade management to make the appointments to the reclassified positions without competition. Ms. Collins also noted that a new Director General of the branch, Mr. Ed Gauthier, had been appointed during this period; according to Ms. Collins, Mr. Gauthier had indicated that he had not decided whether he would proceed to make the appointments without competition, or alternatively require all the affected staff to compete for their jobs. Ms. Collins stated that while she had not attended meetings between the union and management on this issue, she did receive feedback from management personnel about positions taken by Mr. Mercer at these meetings. It was Ms. Collins’ contention that Mr. Mercer, on behalf of the union, was concerned almost exclusively with protecting the jobs of the employees who would remain in that bargaining unit, and ignoring the same concerns which

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Decision Page 2 were held by those PM’s who would likely be reclassified as AU’s. In this context, the complainant referred to Exhibit C-1 an article published in the December 1998 issue of CEUDA Magazine which is published by the Component. Ms. Collins referred to the following passage on page 24: PM jobs in GST/HST Rulings and Interpretations - HQ and TIS Units

• Despite the appointment of Bill McCloskey to the position of ADM, Policy and Legislation, management’s desire to introduce AU jobs in GST/HST Rulings and Interpretation is unwavering; the PM stream in this Directorate will be replaced by a predominantly AU stream of jobs with a much smaller number of PM jobs

• Brother Mercer has been lobbying extensively to have our members working in this Directorate appointed without competition on the basis that CEUDA members occupying PM jobs have, for the most part, been doing the work since 1991 and should not have to compete for their own jobs, despite the fact that they do not have the university degree requirement set out in all AU jobs.

• Not more than two weeks ago management announced its decision to appoint without competition persons working in HQ GST/HST Rulings and Interpretations jobs; further, HQ management has agreed to send a letter to regional management encouraging them to follow the HQ lead in appointing without competition.

According to Ms. Collins the publication demonstrates that the Component is focussing on the interests of those members of the bargaining unit who would remain as PM’s, and is not addressing the needs of the members who will be reclassified as AU’s, and who will consequently become members of another bargaining unit represented by another bargaining agent.

In cross-examination, Ms. Collins acknowledged that she was not aware of who wrote this article, although she assumes it was approved by the Component before publication. She stated that in her view, the article appears to be drawing a line between those PM’s who qualify as AU’s and those who do not qualify; for example, the PM-2 jobs would disappear and would be replaced by PM-3 positions. While she agreed that at this point management has undertaken to make all the appointments without competition, this determination by Mr. Gauthier was as a result of another

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Decision Page 3 directorate, the Appeals Branch, taking the initiative in deciding to make appointments without competition; she observed that Mr. Gauthier was forced into following their lead. She agreed that the net result was that she would not have to compete for her job.

Ms. Collins was also referred to Exhibit R-1, an exchange of E-mails between Ms. Collins and Mr. Mercer on January 27 and 28, 1998. In this E-mail, Mr. Mercer stated the following: It is my opinion that all our members should be appointed under 10-2 of PSEA to the PM or AU positions, while discussing issues with Gauthier and company I stated that our members should all be appointed to the level which they qualify, the PM3 field job and PM 05 HQ job.

Our final goal is to have all the members that meet the requirements for the AU field position and AU HQ position be appointed under PSEA 10-2 to those positions.

Another point when talking to Field managers they are saying that HQ people are not truly aware of field work levels, example being that Gauthier is looking for 75 % AU content at the centres with the goal of a as PM officers leave that position would migrate to AU with the final situation being 100% AU.

Maxine if I still sound like I have missed the point please contact on the weekend at Les Suites or the National Office on Sunday or Monday.

I do not wish to harm anyones opportunities for advancement

Ms. Collins agreed that Mr. Mercer had stated in this E-mail that all members should be appointed without competition; in her opinion, Mr. Mercer was not being honest with her when he made this observation. She noted that she had received a copy of another E-mail (Exhibit C-2) from Mr. Serge Charette, the President of the Headquarters branch of the Component in which Mr. Charette made the following observations as part of the proposed text of an E-mail to Mr. Gauthier: I understand that during a recent meeting with the Second National Vice-President of CEUDA, certain participants voiced the opinion that CEUDA could and should be doing more in order to inform members of what was happening and why. In particular, I understand that reports of what transpired

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Decision Page 4 during the meeting had some questioning the union’s stance. It appears people were frustrated because the union argued forcefully that the PM-5 positions should be filled via reclassification while little was said concerning a similar process or appointment without competition for individuals going from PM to AU positions.

Ms. Collins was also referred in cross-examination to Exhibit R-2, a letter from Mr. Mercer to the then Assistant Deputy Minister, Atlantic region, Mr. Dan Tucker, dated September 11, 1997. She observed that that letter referred to members who do not possess a university degree. According to Ms. Collins this is a reference to those persons who will remain as PM’s, and is another example of Mr. Mercer omitting reference to the bargaining unit members who would be reclassified as AU’s. Ms. Collins also identified Exhibit R-3, a letter from Mr. Mercer to the union membership dated January 22, 1998. Ms. Collins noted that the letter contains the following sentence: ... I have and will continue to first urge the Department to appoint and/or reclassify our PM Members to the restructured positions affected by this re-engineering, while continuing to explore other options to ensure CEUDA Members are not negatively affected by this re-engineering.

Ms. Collins also observed that there were people from other classifications involved in GST rulings who appeared to have been ignored. She admitted that Mr. Mercer had never said to her, or to anyone else to her knowledge, that the PM’s whose jobs will be reclassified as AU’s should have to compete for their positions.

Mr. Wayne Mercer testified on behalf of the respondent. He currently works for Revenue Canada in the GST/HST Technical Interpretation Services division and is located in Halifax.

Mr. Mercer observed that he had attended many meetings concerning the re-engineering project, beginning in 1995 with the administrative consolidation of the Departments of Taxation and Customs and Excise. He noted that it had originally been proposed by management that there would be a consolidation of offices resulting in the elimination of a number of positions, and the creation of several new ones. It had been the union’s position that their members should not have to relocate or to compete for any other positions. At no time did the union make any distinction

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Decision Page 5 between its members. It was always the union's contention that all their members should have unrestricted appointments to their positions. Mr. Mercer referred to Exhibit R-2, the letter to Mr. Dan Tucker. He explained that a number of his members were very concerned that they might lose their jobs to AU’s, and as a result would be unemployed. It was, among other things, his purpose in writing this letter to highlight that concern. He also noted in the letter that all employees employed in the excise functions were underclassified before the restructuring.

Mr. Mercer also referred to Exhibit R-3, which was a general information letter to the membership. He again maintained that in advocating that no one should have to compete for their own jobs, he had no intention of differentiating between various PM members. He observed that he had reiterated that position in his memorandum to the complainant (Exhibit R-1).

In cross-examination Mr. Mercer acknowledged that there were some employees classified as AS who were also qualified to be AU’s, and that he did not refer to those persons in his correspondence. He noted that AS and IS employees are part of a separate restructuring program, and that it was not his intention to exclude any person, when he referred to “our PM members” in Exhibit R-3. With respect to Exhibit C-2, that is the E-mail between Mr. Mercer and Mr. Charette dated January 26, 1998, Mr. Mercer stated that he is not aware of whether the meeting referred to in this correspondence took place, nor is he aware of whether the E-mail was actually sent to Mr. Gauthier. He denied ever making a statement that the union’s interests should take precedence over members’ interests.

He noted that initially the Department was going to use the AU standard only; under this proposal, at least 80 percent of the members would not have qualified for these positions. It was this concern that motivated his letter to Mr. Tucker (Exhibit R-2). Their position was that if their members were as qualified as AU’s, they should be appointed without competition. Mr. Mercer was referred to Exhibit C-3, the minutes of a National Union-Management Consultation Meeting held on February 3, 1998. These minutes contain the following observations: The Union stated that the Technical Interpretation Services employees had been performing the duties in the current draft work descriptions for the past 5½ years; therefore,

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Decision Page 6 employees should be appointed without competition to these positions.

Also, employees should not be prevented from appointment to AU positions because they could not meet the academic qualifications normally required for AU positions. Management agreed to review this issue and provide the Union with an update.

The Union asked to see the report where it explained that there was no significant link with these positions. Management agreed and would be available to discuss the significant link issue.

Mr. Mercer again maintained that there was no distinction being made here between the AU and PM positions. Mr. Mercer observed that management has agreed that there would be no competitions; as a result of the considerable efforts made by the union officers as well as by a number of union members including Ms. Collins, the AU positions in question would be staffed without competition.

In argument, Ms. Collins maintained that Mr. Mercer was aware that there were concerns expressed by those union members who were able to move into the AU stream about the prospect of having to compete for these positions; she noted that these concerns were evidenced by Exhibit C-2, that is, Mr. Charette’s proposed letter to Mr. Gauthier, a draft of which was forwarded to Mr. Mercer. The complainant contended that it was in the best interest of the Component that appointments from PM to AU be delayed in order to keep these employees as PM members for as long as possible. Accordingly, Mr. Mercer did nothing to assist those members who were to be appointed as AU’s. She also contended that while the TIS Branch did agree to appoint without competition, this was primarily as a result of the position taken by the Appeal Branch on this issue. According to Ms. Collins, it had been Mr. Mercer’s position that the union should first deal with those most at risk, that is, the PM’s who would not be qualified to move into AU positions. Mr. Mercer was always referring to “our PM members”; however, there were others such as employees classified in the AS group who would also be qualified to become AU’s. In Ms. Collins’ submission the correspondence from Mr. Charette suggest that Mr. Mercer’s focus was almost exclusively on those PM’s who would remain in the PM bargaining unit, to the detriment of other PM’s such as herself who would be moving into the AU occupational group.

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Decision Page 7 On behalf of the respondent, Mr. Landry submitted that there was no evidence as to the validity of the purported observation in Exhibit C-2 that little was being done on behalf of the PM’s who would be reclassified as AU’s. On the contrary, it is clear in Exhibit R-1 that Mr. Mercer had taken the position that all PM’s should be appointed without restriction, a position which he reiterated in his testimony. In fact, it appeared that management had accepted the union position which had always been consistent. Furthermore, Exhibit C-3 refutes the complainant’s contention, as it makes it clear that the union did seek to protect AU positions. Ms. Collins could not refute this evidence, as she admitted she had not attended any of the union/management meetings.

Mr. Landry referred to the Board decision in Pavlik (Board file 161-2-792) which held that the Board should not engage in a “microscopic review” of a union’s actions.

Reasons for Decision This complaint alleges that the respondent has violated subsection 10(2) of the Act, which provides as follows: (2) No employee organization, or officer or representative of an employee organization, that is the bargaining agent for a bargaining unit shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit.

It should be noted that the representative of the respondent had submitted in correspondence to the Board dated January 6, 1999, and reiterated at this hearing, that the Board is without jurisdiction to address “failure to represent with respect to future proposed staffing actions ... staffing not being a bargainable item”. The undersigned had expressed in this proceeding considerable reservations about the merits of this objection; nevertheless, in view of the Board's determination on the substantive issue, this decision need not, and does not address this objection.

In effect, it is the complainant’s contention that the respondent arbitrarily and discriminatorily did not pursue the interests of those members (including herself) who are about to be reclassified as AU’s. More particularly, Ms. Collins submits that the union, in the person of Mr. Mercer, the Component Second National Vice-President, ignored the concerns of these members, who wished to be appointed to

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Decision Page 8 the reclassified AU positions without competition. Instead, according to Ms. Collins, he focussed his efforts on protecting those members in the PM bargaining unit who would be reclassified at a higher level within the PM occupational group and would remain in that bargaining unit.

In my view, her contention is not supported by the evidence and is entirely without foundation. Firstly, Mr. Mercer stated without equivocation or contradiction that it was the union’s position throughout its consultations with management that all of its members without differentiation should be appointed to the reclassified positions without competition. In fact, the documentation before this Board clearly corroborates Mr. Mercer’s testimony; for example, Exhibit R-1, an E-mail from Mr. Mercer to Ms. Collins states that: “It is my opinion that all our members should be appointed under 10-2 of PSEA to the PM or AU positions, ...”. In addition, in Mr. Mercer’s letter to Mr. Tucker (Exhibit R-2), he observes “In conclusion, I would like to provide that all employees working in the TIS Units across Canada, feel that their positions have been, and are underclassified.” (underlining added)

In support of her submission, Ms. Collins referred to Exhibit C-1, a magazine article published by the component; however, while the paragraphs noted by the complainant may be referring to those union members who would not qualify as AUs, I see nothing in that article which would support the contention that Mr. Mercer was favouring one group of PM’s over another in advocating that the positions affected by re-engineering should not be subject to competition. Furthermore, I do not interpret Mr. Mercer’s comment in his letter to the membership (Exhibit R-3) that he will “continue to first urge the Department to appoint and/or reclassify our PM Members to the restructured positions ...” as indicating an intention or mindset to protect only the interests of those PM’s who would not be reclassified as AU’s. I would suggest that this is an unwarranted leap of logic and a gross misinterpretation of the words used by Mr. Mercer in his correspondence. Indeed, the only evidence which Ms. Collins could point to as supporting her view that Mr. Mercer and the component were acting in a discriminatory and arbitrary fashion is the proposed draft letter from Mr. Charette to Mr. Gauthier which stated that “... little was said concerning a similar process of appointment without competition for individuals going from PM to AU positions.” However, neither Mr. Charette nor anyone else except Ms. Collins, testified on behalf of the complainant. In fact Ms. Collins could not say whether Mr. Charette Public Service Staff Relations Board

Decision Page 9 had actually sent this letter to Mr. Gauthier. This evidence is clearly hearsay; we have no idea whether this observation truly reflects Mr. Charette's opinions, nor is it possible to test the accuracy of that comment.

Finally, it is not disputed by Ms. Collins that in fact the Department has recognized and addressed the concerns of all the employees, including Ms. Collins, about having to compete for the reclassified positions. I would suggest that this also corroborates Mr. Mercer’s submission that the union and himself had always maintained in their consultations with management that none of the employees represented by the bargaining agent should have to compete for the reclassified positions.

In conclusion, the evidence falls far short of supporting the complainant's contention. Accordingly, this complaint is dismissed.

P. Chodos, Vice-Chairperson.

OTTAWA, January 25, 1999.

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