Date: 20250317

File: 572-29-48325

Citation: 2025 FPSLREB 25

Between

National Capital Commission

Applicant

and

Public Service Alliance of Canada

Respondent

Indexed as

National Capital Commission v. Public Service Alliance of Canada

In the matter of an application, under section 59(1) of the Federal Public Sector Labour Relations Act, for a declaration that a position is a managerial or confidential position

Before: Fazal Bhimji, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Applicant: Derek Seguin

For the Respondent: Louise Birdsell Bauer

Decided on the basis of written submissions,
filed September 27, October 18, and November 7, 2023, and April 3 and 23, 2024.

I. Introduction

[1] The National Capital Commission (NCC) applied for an order declaring that its position 3888 (titled Manager, Building Systems and Energy Management; “the position”) is a managerial or confidential position under s. 59(1)(e) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”), which states as follows:

II. The NCC’s position

[2] The manager, building systems and energy management, is responsible for providing energy-management and lifecycle-planning services for the NCC’s Official Residences Directorate (ORD). A copy of the job summary was provided for my review.

[3] The NCC submits that the position has substantial management duties, responsibilities, and authority over employees, and it provided an organizational chart to demonstrate that employees report to the position.

[4] Among the position’s duties are the responsibility to conduct performance reviews, manage unsatisfactory performance, deal with labour relations, and formally deal with grievances on the NCC’s behalf at the first level of the grievance process, all of which the NCC submits are matters that have or may have a significant impact on unionized employees.

[5] According to the NCC’s delegation instrument, the position is the first-level grievance officer; the second level is the director, the third level is the vice-president, and the fourth level is the chief executive officer. The delegation instrument requires that those involved in the grievance process be excluded from the bargaining unit, to guarantee impartiality and eliminate the risk of a conflict of interest. The delegation instrument also allows managers at this level to administer a suspension of up to three days.

[6] In May 2023, the ORD adjusted its organizational structure, which meant that the position’s incumbent became required to directly report to the director of official residences (OR). Until then, the position reported to position 1121, which is excluded from the bargaining unit. The reporting change also resulted in the position being responsible for responding to grievances at the first level, which previously was position 1121’s responsibility. A supervisor (in position 2967), who reports to position 3888, carries out most of the day-to-day employee supervision.

[7] The NCC refers me to Treasury Board v. Professional Institute of the Public Service of Canada, 2008 PSLRB 55 at para. 21, which states as follows:

[21] The case law is clear. The Board does not have the authority to question the motives behind an employer’s decision to designate an employee as a representative at a level of the grievance procedure. This was first established in Treasury Board v. Public Service Alliance of Canada, [1984] 2 F.C. 998. Then followed a large number of decisions of the PSSRB in the same direction. The decisions were all rendered under the Public Service Staff Relations Act (PSSRA). However, there is not enough of a difference between the provisions of the Act and those of the PSSRA to allow me to disregard the abundant jurisprudence already established.

III. The bargaining agent’s position

[8] In its initial reply to indicate its objection to the NCC’s application for exclusion, the Public Service Alliance of Canada (“the bargaining agent”) submits that there is no evidence that the position’s current incumbent has any formal responsibilities for grievances on the NCC’s behalf. It states that the current incumbent has never been asked to perform that role and that it does not know of any active grievances that that person would have to address.

IV. Reasons

[9] Initially, I invited submissions from both parties per the following schedule:

- they were to exchange documents by April 2, 2024;

- they were to provide their arguments by April 23, 2024;

- the Federal Public Sector Labour Relations and Employment Board (“the Board”) was then to provide each party with the submissions that it received by May 3, 2024; and

- their reply submissions were due by May 17, 2024.

[10] The bargaining agent’s argument was not received by the deadline of April 23, 2024. The Board followed up on May 6, 2024, with the parties, and the bargaining agent requested an extension until May 17, 2024. Its official responsible for filing a response did not normally work on exclusions and missed the deadline. It was granted a further extension, until August 16, 2024, to make its submissions. When that deadline passed, another extension was granted until September 13, 2024, and it was advised that no further extensions would be granted. As of December 13, 2024, it had still not filed reply submissions or an argument.

[11] The NCC’s application for exclusion is based on both grounds of s. 59(1)(e) that could justify excluding a position. It argues that the position has substantial management duties, responsibilities and authority over employees, and that it also has duties and responsibilities dealing formally on behalf of the employer with grievances presented in accordance with the grievance process.

[12] The NCC’s submissions explain that the position has some management duties and responsibilities and authority over employees. However, the supporting documents it provided, in particular the job summary, seem to contradict that the position has management duties, much less substantial management duties, responsibilities and authority over employees as required under that section of the Act. Given this contradiction, I find that the application cannot be granted under the first part of s. 59(1)(e).

[13] I have focused my analysis on the second part of s. 59(1)(e) which addresses duties related to the grievance process.

[14] The NCC changed its organizational structure which led it to designate the position as a level in the grievance process.

[15] The NCC provided documentation demonstrating that the position has the delegated authority to respond to the bargaining agent’s grievances at the first level of the grievance process because of its reorganization. While the bargaining agent argues that the position has not responded to grievances in the past, this does not establish that it will not be so responsible in the future. I also do not accept the bargaining agent’s assertion that it is unlikely that the position will respond to a grievance because the bargaining agent is not aware of any grievances that have been filed. The Act provides only that the position has the authority to respond to grievances, not that it currently has any to respond to.

[16] The NCC provided sufficient information to meet its burden of proving that the position meets the requirements for exclusion under s. 59(1)(e) of the Act because it has duties and responsibilities requiring dealing formally on the NCC’s behalf with grievances filed under the relevant grievance process. The NCC’s request to exclude the position is granted.

[17] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[18] The NCC’s position 3888 (titled Manager, Building Systems and Energy Management) is declared a managerial or confidential position under s. 59(1)(e) of the Act.

March 17, 2025.

Fazal Bhimji,

a panel of the Federal Public Sector

Labour Relations and Employment Board