King v. Canada (Attorney General)

King v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2012-04-26
Neutral citation
2012 FC 488
File numbers
T-2171-10
Notes
Digest
Decision Content
Date: 20120426
Docket: T-2171-10
Citation: 2012 FC 488
Ottawa, Ontario, April 26, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
JOHN KING
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant was hired in 1989 as customs inspector at Pearson International Airport [PIA]. Since 1996, he was on leave with pay, being engaged full-time in union matters. His employment with the Canada Border Services Agency [CBSA] was terminated in November 1997 following the posting on the union website of two statements that the deputy head viewed as counselling or procuring an illegal work stoppage.
[2] Alleging that the employer had violated the non-discrimination clause of the collective agreement and the non-interference provision of the Public Service Labour Relations Act, SC 2003, c 22, [PSLRA], the applicant filed grievances against a 30 day suspension issued on November 2, 2007 and his subsequent dismissal on November 20, 2007. Three years later, on November 29, 2010, the grievances were denied by a member of the Public Service Labour Relations Board [Board] acting as adjudicator (King v Deputy Head (Canada Boarder Service Agency), 2010 PSLRB 125), leading to the present judicial review application.
[3] In a nutshell, the adjudicator found that the deputy head had general authority under the Financial Administration Act, RSC 1985, c F-11 [FAA] to discipline the applicant. The statements posted on the union website constituted “counselling” or “procuring” an illegal strike contrary to subsection 194(1) of the PSLRA. Accordingly, there was no violation of the non-discrimination clause of the collective agreement or the non-interference provision of the PSLRA. The discipline imposed by the employer was appropriate and reasonable in the circumstances.
[4] The present judicial review application is dismissed. For the reasons below, the adjudicator’s findings of fact and law are reasonable. Accordingly, the Court must refrain from substituting its opinion to that of the adjudicator, despite the fact that the Court has some doubts with respect to the correctness of the interpretation made by the adjudicator of subsection 194(1) of the PSLRA. In this respect, the Court feels bound to apply the standard of reasonableness in view of most recent jurisprudence of the Federal Court of Appeal and the Supreme Court of Canada.
I. BACKGROUND
[5] In the arbitration proceeding, five witnesses testified on the management’s side, including the deputy head [Mr. John Gillan]. On the union’s side, three witnesses testified, including the applicant. Since a court reporter was not present at the hearing no transcripts are available. In preparing the background, the Court has considered the summary of the evidence found in the impugned decision itself (paragraphs 8-72), the numerous exhibits filed at the hearing by the applicant and the employer, including the parties’ written representations, as well as any affidavit filed in this proceeding (see volumes I, II and III of the applicant’s application record).
Union representative
[6] The applicant commenced his employment as a customs inspector in 1989, in a position which later became known as a “border services officer” at PIA. In November 1999, customs inspectors – until then employed with Revenue Canada – came under a newly created agency known as the Canada Customs and Revenue Agency. In December 2003, they were transferred to another agency, the CBSA, which also included agricultural inspectors – formerly employed by the Canadian Food Inspection Agency – and officers from PIA’s Immigration Department. These three groups were called the “legacy groups” by the management and the union.
[7] In summer of 1990, the applicant became a steward for Local 24 of the Customs Excise Union Douanes Accise [CEUDA], a component of the Public Service Alliance of Canada [PSAC]. He was later elected as a vice-president in 1993. He also served as the president of CEUDA Local 24 from 1996 to 1999 and from 2005 to June 2008. Between 1999 and 2005, he served as the National Executive of the CEUDA National Organization.
[8] It is not challenged that the applicant was acting in his union capacity when the alleged acts of misconduct took place and he was disciplined by the employer. At that time, the applicant was actively seeking the resolution of a long time conflict with respect to variable shift schedules arrangements [VSSA].
Variable shift schedule arrangements
[9] The legacy groups had all different work schedules. The immigration group was on a shifting schedule of two days on, two days off, and then three days on, three days off (the 2/2 schedule). The agriculture group had a schedule of four days on, four days off (the 4/4 schedule). The customs inspectors group had the least favourable schedule of five days on, three days off (the 5/3 schedule); this was still the situation in December 2006.
[10] The PSAC’s proposition for a 5/4 shift schedule for customs legacy employees having been continuously rejected by the management, CEUDA Local 24 conducted a vote in December 2006. All boarder services officers in Passengers Operations voted against the existing VSSAs. CEUDA Local 24 immediately cancelled the 5/3 schedule for the customs staff and requested consultations for negotiation of a new VSSA under clause 25.22, in absence of which shift scheduling would revert to that specified in clause 25.13 and 25.17 of the collective agreement.
[11] Discussions between CBSA and CEUDA Local 24 concerning the VSSA issue continued in January and February 2007. However, relying on clause 25.22(b) of the collective agreement, it was without agreement or consultation with the PSAC that the CBSA ultimately adopted a 6/2 schedule that included non-standard starting times for the customs legacy employees, requiring them to work 60 days more, per year, than under the previous scheduling arrangement. The new schedule became effective on February 12, 2007. According to the record before the Court, both management and union representatives acknowledged on different occasions that the imposition of the new standard shifts was not appreciated by affected employees and that it resulted in serious tensions and frequent accommodation and burn-out issues.
Policy grievance
[12] On February 27, 2007, the PSAC filed a policy grievance against the new schedule, alleging that the 6/2 shift schedule was contrary to clause 25.17 and a fundamental breach of the collective agreement. The PSAC also maintained that the employer had not only failed to engage in “meaningful consultations” with the union prior to the implementation of the new shift schedule, but had also failed to demonstrate a need to increase the number of shifts in the schedule in order either to meet the “needs of the public” or to ensure the “efficient operation of the services”, as required in clause 25.22(b) of the collective agreement.
[13] More than two years afterwards, despite the objection of the employer that the issue was moot, the policy grievance was allowed in part in May 2009. A declaration was issued by the adjudicator that the employer had breached the collective agreement regarding three shift starting times in passenger operations and one shift starting time in commercial operations (Public Service Alliance of Canada v Treasury Board (Canada Border Services Agency), 2009 PSLRB 66).
Debates with respect to legal strike position
[14] The collective agreement had expired on June 20, 2007. Throughout the summer of 2007, the parties remained at odds on the issue of shift schedules despite the significant efforts and progress that was made toward finalizing a new VSSA between CBSA and CEUDA Local 24. The general discontent and tension caused among affected employees as a result of the 6/2 shift schedule led to complaints and call for action by a number of CEUDA Local 24 members and VSSA discussions gradually generated a dispute with the management as to whether CBSA’s actions had placed CEUDA Local 24 in a legal strike position.
[15] At the internal union level, the debate was initiated by Brian O’Farrell, an official with CEUDA Local 24, who, on June 22, 2007, wrote to its local president (the applicant) and to CEUDA National president (Ron Moran) about having been approached by six members “inquiring into the propriety of withdrawing services”, and invited the recipients to “articulate at what point precisely would members be able to withdraw services without fear of recrimination”. The union official also advised that he would “consider the matter urgent, as more strong headed members may not be willing to calmly wait for verification”.
[16] In this context, the applicant continued writing to both Mr. Moran and Mr. Gordon (PSAC National president) seeking guidance and clarification on what legal options, including a strike action, were potentially available to Local 24 members in the circumstances. During the discussions engaged with CEUDA National, Mr. Moran confirmed that before a bargaining unit could be in a legal strike position an essential service agreement had to be in place, but indicated that he would obtain a legal opinion on the available legal recourses as requested by CEUDA Local 24 (Mr. Moran’s letters dated June 23 and June 25, 2007).
[17] The applicant responded that he would like another question answered as to whether the affected employees could report to work according to the standard shifts identified in clause 25.17 of the collective agreement (applicant’s letter dated June 27, 2007). Exchanges between the applicant and the national office in July 2007 show that the applicant was seeking a more expeditious resolution of the matter.
[18] On July 11, 2007, Mr. Moran provided an update to the applicant and he replied, asking what the PSAC’s next steps would be to put an end to the breach of the collective agreement. Mr. Moran replied on July 12, 2007 as follows:
As for the next steps, as you know I have now made the formal request for a legal opinion…For its part the bargaining agent is representing on the policy grievance which is working its way through the system. While I totally agree that these courses of action do not represent the rapid fix the affected members would like to see, they nonetheless represent the only established avenues currently at our disposal…
In my view, the next step should clearly be letting the affected members know that unless they individually act, we are not at the [level] of seeing this resolved in short order. Reminding them that assisting the employer in making the 6-2 work by doing such things as accepting overtime is undoubtedly an excellent place to start (though it should in no way end there). Knowing full well how the Minister’s Office and the media work, I can assure you that unless worksite disruptions are in play, neither will give the matter a second [thought].
[Emphasis added]
[19] The applicant replied on July 13, 2007, as follows:
…
Our members need to receive direction from a National President telling us to report for work on no shift other than what is stipulated in Article 25.17 unless the CBSA provides operational requirements as it is supposed to and as we interpret the Master Agreement to mean.
Once John or you give direction to follow the letter of the Agreement, we will do the rest. Such action will surely result in a speedy resolution.
…
All we need is the support and blessing from this union to follow our Agreement as we understand it. If our union can’t even do this, it’s time for change.
[Emphasis added]
[20] The above correspondence was forwarded to Minister of Public Safety, Stockwell Day, Prime Minister Stephen Harper, Vic Toews, President of the Treasury Board, and Stephen Rigby, Deputy Head of the CBSA, by Mr. O’Farrell on July 13, 2007 (Exhibit E-1, tab 8).
[21] In light of these exchanges, the employer took the position before the adjudicator that Mr. Moran was telling the applicant that they were not in a legal strike position but that the applicant should encourage individual members to engage in illegal job action, that simple threats were no longer enough and that more concrete action was needed. In response, the applicant was pushing Mr. Moran and seeking support from CEUDA national for strike activity. He was doing this by seeking authorization for employees not to report for any shift other than a standard shift specified in Article 25.17 of the collective agreement.
[22] Mr. Norm Sheridan, one of the employer’s representatives, testified at the arbitration that the effect of such a boycott would have been wide-scale interruption of services given that 65% of his staff was scheduled on shifts other than those provided for in Article 25.17. What was being advocated by the applicant was a boycott of the majority of shifts that had been implemented by the employer for which the union had a policy grievance working its way through the system. By any account what was being pursued was illegal strike activity on a massive scale. Mr. Sheridan testified that this boycott would have made it impossible to deliver the program, that the effects would be felt downstream with planes being stuck on the tarmac. In a word Mr. Sheridan indicated that it would be “pandemonium”.
[23] After his exchanges with Mr. Moran, the applicant wrote to two other union officials, Mr. Steve Pellerin-Fowlie and Mr. Gerry Halabecki, regarding the legality of a wildcat or a rotating strike and stated that he was seeking an opinion on what would/may constitute an illegal strike action in the circumstances considering that the collective agreement had expired since June 20, 2007, and that the employer had not proceeded to negotiate an essential service agreement (letter dated July 20, 2007).
[24] On July 26, 2007, the applicant wrote an email to a number of CBSA management representatives (including Mr. John Gillan) and CEUDA representatives, in which he stated that in light of the expiration of the collective agreement, the fact that the employer refused to honour the agreement and had not sought to negotiate essential service agreements, the union was in a legal position to walk off the job. He also requested that the regional management provide tentative dates for the union and management to formally consult on any concerns or legal arguments of the employer. On the same day, Mr. Gillan took the position that the collective agreement continued to be in effect and that the union was not in a legal strike position.
[25] Mr. Moran was provided with a legal opinion on the matter on August 2, 2007. Essentially, the external opinion provided by legal counsel, after having reviewed the applicable principles and relevant case law, suggests that this is not a situation where the employees appear to have the right to refuse to comply to the imposed VSSA schedule and that the preferred way of settling the matter is to reach agreement with the employer or to press the policy grievance on to arbitration in an expeditious manner. Recognizing that a possible ground for refusing to comply with the imposed VSSA schedule is where irreparable harm or prejudice would be suffered by employees, legal counsel offers to re-examine the opinion “once additional facts respecting irreparable harm become available”.
[26] Judging that the legal opinion was inconclusive with respect to the rights of the members of CEUDA Local 24, the applicant wrote to Mr. Moran and Mr. Gordon on August 15, 2007, requesting for further review by counsel of specific factual circumstances at issue in the VSSA dispute. The applicant required clarification on whether the exception of a “patently obvious” breach of the collective agreement by the employer to the “obey now, grieve later” rule found application in their case.
[27] In his August 15, 2007 email, the applicant notably writes:
Why must we obey the collective agreement in its entirety if the employer is not?
…Why won’t you direct our members to report for work as required as per the standard shifts under Article 25.17 as the PSAC interprets the collective agreement or inform the CBSA that you will be directing us to follow the agreement as we interpret it unless this matter is resolved [emphasis added]?
[Emphasis in original]
[28] On August 24, 2007, Mr. Gordon wrote back to the applicant stating that the policy grievance was the proper mechanism to deal with the issue, and insisted that this solution was not tantamount to failing to protect the members’ rights or an acquiescence to the employer’s actions. On the same date, the applicant responded to Mr. Gordon reiterating his position on the members’ legal right to walk off the job in absence of an essential service agreement and requesting for PSAC’s final position in this respect.
[29] This now brings us to the two website postings which were the object of the disciplinary actions against the applicant (30 day suspension and termination of employment).
First website posting
[30] The first email which was posted on the CEUDA Local 24 website on September 11, 2007 is an update on some of the activities of the local on the VSSA negotiations. The posting is, in fact, a reproduction of the applicant’s response, dated September 11, 2007, to an email from a member requesting updates on the VSSA negotiations. It reads as follows:
Sisters and Brothers,
We agreed to have a joint resource committee come to Toronto last July and help with the situation. Barbara Hebert cancelled out.
Our 4th National V.P. suggested a mediator be called in to help resolve the issue and again, John Gillan refused the idea, stating it wasn’t necessary.
We submitted additional proposals for commercial operations for the employer to consider, and for their feedback on the operational feasibility, the employer has not gotten back to us.
My opinion, management was taking advantage of the additional staff (students) and during this time period over the summer was putting you to the test hoping you would burn out, forcing you to give in.
Management may have also been waiting to see what happened in Montreal. Montreal apparently also told the employer where to park their proposal and now in a similar situation as us facing a possible 6 & 2 themselves.
In the meantime I have been pressing the bargaining agent and CEUDA National for support to walk off the job now. We have been applying pressure to encourage management to return to the table and bargain in good faith. Hopefully we have achieved this via Gillan’s invitation to meet next Monday. I hope this will prove to be more than just a meeting to see whether we are willing to concede.
If management meets and proposes nothing more than what they proposed last February, be prepared to support future union activities.
In Solidarity,
Bro. King
[Emphasis added]
[31] On the employer’s side, Ms. Julie Burke, a labour relations officer with the CBSA was tasked to monitor the union website. Management became aware of the posting on September 14, 2007 but did not take immediate action. The VSSA negotiations continued between the parties in a meeting held on September 17, 2007 at PIA. On October 29, 2007, more than six weeks afterwards, the applicant was advised by his employer that if the posting was not removed from the union website by October 31, he would be subject to disciplinary action up to and including termination of his employment.
[32] The applicant was also advised that a disciplinary hearing by teleconference was scheduled on October 31, 2007, regarding the posting of this message. It is worth noting that Mr. Marc Thibodeau’s October 29, 2007 letter to the PSAC’s negotiator, in his capacity as the chief director of Treasury Board Secretariat, also stated that the September 11, 2007 posting was in contravention of subsection 194(1) of the PSLRA and mentioned that the employer would consider filing a complaint with the Board if the related portions of the message were not removed from the website by 5PM on October 31, 2007.
[33] On October 30, 2007, the applicant emailed the webmaster and asked that the posting be removed from the union webpage; the posting was removed the same day. Prior to the disciplinary hearing, the applicant also sent an email to Mr. Gillan and others, stating that he did not issue a direction to CEUDA members to participate in any activity or refrain from performing any of their duties. He also stated that there was no intent to counsel or procure illegal activity. He noted that he had been requesting a legal opinion on the matter since the imposition of the 6/2 shift schedule.
[34] On October 31, 2007, at the disciplinary hearing, the applicant was asked what the phrase “walk off the job now” meant and he said that he was still waiting for direction from the PSAC. He said that Mr. Gordon “will give the direction”. He stated that he was not “inciting”. The applicant was not asked about the reference to “future union activities”. However, he testified before the adjudicator that the kind of union activities that were contemplated included letter-writing campaigns, information pickets and getting the families of bargaining unit members involved. Those were not illegal actions.
[35] On November 2, 2007, after the disciplinary hearing, the applicant wrote an email to Mr. Gillan, other CBSA management representatives and the Minister of Public Safety where he stated that he viewed the employer’s actions as a violation of his rights under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [Charter] and a “…perceived attack on a fundamental right to communicate with our members by what can only be described as illegal government censorship”. Mr. Gillan replied, setting out the parts of the applicant’s message posted on the website that caused concern.
[36] The grievor replied as follows:
It is well within the union’s rights to mobilize members for future activities.
The CBSA cannot interfere with how a union prepares for such future activities that the union has the right to decide and manage. It is our right to maintain control on the administration of our union.
…
I made it clear that we had no intention of proceeding until such time that we did receive a legal opinion or requested support from the Bargaining Agent.
You and your superiors are clearly obsessed with targeting me, shutting down this Local and interfering with this union’s ability to communicate effectively with our members….
Your actions will only escalate current labour conflict within this region.
As long as we don’t issue direction, which we clearly have not, we are well within our right to advise our members whether we are seeking support, who we are seeking support from and on which subject we are seeking said support.
…
[Emphasis added]
[37] Later that day, in spite of the applicant’s compliance with CBSA’s request and the explanations offered during the disciplinary hearing (October 31, 2007) and afterwards (November 2, 2007), the employer proceeded to impose a 30 day suspension discipline on the applicant for the website posting. In imposing the disciplinary suspension, Mr. Gillan [the deputy head] considered that the applicant’s statement amounted to “counselling or procuring an illegal work stoppage” contrary to subsection 194(1) of the PSLRA, and which constituted “a serious act of misconduct and a contravention of the PSLRA”.
[38] The applicant was also warned by the deputy head that his “future communications and actions are expected to be in accordance with the provisions of the Values and Ethics Code for the Public Service, the CBSA’s Code of Conduct as well as the legislation, policies and directives underlying them. You should be aware that failure to adhere to this expectation may result in more severe disciplinary action being taken, up to and including termination of your employment.”
Second website posting
[39] On November 3, 2007, a second posting appeared on CEUDA Local 24 website. The posting was addressed to the bargaining unit membership and was purportedly intended to notify union members of the reason of the applicant’s suspension. For purposes of clarity, this second posting is reproduced in its entirety below:
By now many of you have heard that I just received another thirty day suspension without pay. As such, my access to CBSA premises has been restricted until December 14, 2007.
What is significant about the discipline is the timing of this suspension, the grounds on which I have been suspended and the fact that this us the third discipline I’ve received since John Gillan became the Regional Director for the GTA in the spring of 2006.
On the bright side, over course of the regional VSSA negotiations, senior officials (not all) within this region and Ottawa have finally been exposed.
Each of you have now witnessed the management deception, lies and abuse that continue to plague this organization, impede VSSA negotiations and the resolution of many other regional labour issues.
It is the truth that binds us in a common cause to be treated with dignity, respect and not to allow this employer to violate any of our contractual and/or legal rights.
I hope you take comfort in knowing that I am well, focused and more determined in protecting our rights than ever before.
The attached correspondence explains the latest discipline which is based on two sentences written in a VSSA update that was posted on our local website. The sentences are “In the meantime I have been pressing the bargaining agent and CEUDA National for support to walk off the job now.” & “If management meets and proposes nothing more than what they proposed last February, be prepared to support future union activities.”
[Emphasis in original]
[40] On November 13, 2007, Mr. Gillan called the applicant to a disciplinary hearing about the posting of November 3, 2007, given that the controversial portion of the first message that referred to walking off the job was quoted in the second posting. The applicant did not attend the disciplinary hearing, and in the meantime, wrote an email to the Minister of Public Safety, Senior Management of the CBSA, Mr. Gillan and a number of CEUDA representatives where he states that the employer’s representatives “have wrongfully and without lawful authority compelled me to abstain from communicating with CEUDA members as I have a lawful right to do.”
[41] On November 20, 2007, CBSA terminated the applicant’s employment for cause. According to the termination letter, the reposting of the statements is “a serious act of misconduct” and “the culminating incident” leading the deputy head to immediately terminate the applicant’s employment under the purported authority of paragraph 12(1)(c) of the FAA.
[42] Mr. Gillan testified at the arbitration that the applicant’s reposting of the sentences that were the subject of the previous discipline constituted a “serious act of misconduct” since the applicant could have explained his discipline in more general language. He also testified that one of the aggravating factors that he considered in imposing termination was the fact that this misconduct was exactly the same misconduct that the applicant had been disciplined for. He regarded the posting of November 3, 2007 as the “culminating incident” and an attempt by the applicant to build up support within the membership and to pressure the national union leadership to take illegal action.
II. GRIEVANCES
[43] On November 20, 2007, the same day he was terminated, the applicant grieved the 30 day suspension imposed by the deputy head on November 2, 2007:
November 20, 2007
GRIEVANCES – Against the Thirty Days Suspension Administered November 02, 2007
I grieve the above noted suspension is without merit. I also grieve that my rights as an employee under Article 19.01 of the Agreement between the Treasury Board and the PSAC have been violated as noted below.
Article 19 of the Agreement between the Treasury Board and the P.S.A.C. reads as follows:
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.
On November 2, 2007 I was disciplined as an employee for allegedly counselling or procuring an illegal work stoppage. As I was disciplined for an activity in the Alliance for which I would not be disciplined if I were not a representative of the Alliance, I have been treated differently from other employees and discriminated against. This discipline contravenes the spirit of Article 19.01 and must be immediately rescinded.
Not only do I refute Mr. Gillan’s allegation that I was counselling or procuring the declaration or authorization of a strike, I remind CBSA management that there is no language within the Agreement or P.S.L.R.A. that prohibits an employee from counselling or procuring an illegal work stoppage.
The Agreement prohibits employees from participation in an illegal strike only. For this reason I believe the employer lacks the authority to discipline employees in the absence of any identifiable employee misconduct and as such, I should not have been disciplined as an employee for an alleged prohibition under the P.S.L.R.A. that is only applicable to employee representatives.
As an employee, I should be protected from alleged contraventions only applicable to union representatives, which should be decided by the Public Service Labour Relations Board (P.S.L.R.B.) especially when said union activities occur outside the workplace and not on company time.
Section 194 of the P.S.L.R.A. does not allow an employer to determine whether or not such an offence has been committed, does not authorize the employer to establish penalties beyond what has been established in the legislation or allow an employer to proceed and administer discipline against an employee representative for perceived contraventions under the P.S.L.R.A.
The employer has no more authority to discipline for alleged contraventions under the P.S.L.R.A. than it does the Criminal Code of Canada.
If employers are given the jurisdiction and permitted to decide the innocence or guilt and fate of union representatives that are considered as the employer’s adversarial counterparts, and are allowed to establish the quantum of discipline to be imposed on these adversarial counterparts for perceived contraventions under the Act, employer interference and abuse will flourish.
Employees will be discouraged from volunteering as union representatives, continue to be intimidated and not be able to properly fulfill their obligations as union representatives thus causing irreparable harm to both the labour movement and the daily administration of the union. In essence, as long as the employer has the unfettered right to control employee representatives to this extent, no employee representative is safe regardless of what protections or recourse is stated within the Agreement or Public Service Labour Relations Act for obvious reasons.
This employer’s practice of circumventing recourse under the Act and rendering discipline has further violated my right to due process and the right to be judged by an independent third party.
In this particular instance, John Gillan proceeded with blatant disregard to the stipulated recourse under the Act even though the Treasury Board had already initiated the threat of appropriate redress via correspondence to the bargaining agent in the letter dated October 29, 2007.
As such, there was no need for senior management officials within the Canada Border Services Agency to initiate an additional internal disciplinary process for the same alleged contravention that was already being addressed between the Treasury Board and Bargaining Agent or prior to the outcome of the other process.
I maintain that the comments in my reply to a CEUDA member that was posted on the CEUDA website outside of work cannot be considered as procuring illegal strike activity as it is clear and without question that I was doing nothing more than informing CEUDA members what the union was doing on their behalf when I stated that I was pressing the bargaining agent to support a work refusal. At no time did I request, encourage or pressure CEUDA members to support any specific activity on any given day. In fact, I mentioned future activities which cover all lawful union activities.
It is only because of my activity in the Alliance that I was disciplined for the alleged contravention of inciting illegal strike activity, for if I were not a volunteer union representative I would enjoy the same freedoms and protection under the Agreement as other employees that are not union representatives that would not be disciplined for such an allegation.
Once again, it is for this reason that I allege I am being treated differently from other employees that are not volunteer union representatives and that this different treatment under employee status constitutes discrimination.
In closing, I perceive this latest discipline by the CBSA as just one more blatant act of abuse, harassment, intimidation and interference of the administration of the union and in particular the union’s right to communicate with its membership.
Corrective Action
To be discussed during mediation with the employer or at the commencement of the Adjudication hearing.
Respectfully submitted and authorized by,
John King
President
Toronto District Branch
CEUDA Local 24
[Emphasis in original]
[44] On November 22, 2007, two days after the filing of the above grievance, a joint letter was addressed by the national presidents of the PSAC and CEUDA to the president of CBSA. It reads as follows:
November 22, 2007
Alain Jolicoeur
President
Canada Border Services Agency
191 Laurier West
Ottawa, Ontario K1A 0L8
Dear Mr. Jolicoeur:
We are in receipt of a copy of a letter dated November 20, 2007 from John Gillan, Regional Director General, CBSA Greater Toronto Area (GTA) Region to PSAC/CEUDA Local 024 Toronto District Branch President, John King, terminating his employment.
The PSAC and CEUDA hold firmly to the position that employees acting as union officials have a very broad ability to speak freely, and to disseminate information to and within the membership without fear of reprisal. This position has, on many occasions, been supported and reinforced by both labour boards and arbitrators when employers attempt to stifle free speech – whether they do it through disciplinary measures or otherwise.
For whatever reason, the CBSA’s actions, as outlined in John Gillan’s November 20th letter, are a clear attempt to curtail the free speech of a PSAC/CEUDA elected official. As such, it is an unconscionable affront to our union and the members we are privileged to represent. In addition to the personal impact that the CBSA decision will have on John King, it has a significant impact on our members who work for the CBSA, particularly in the GTA.
As you know, the PSAC is in negotiations with Treasury Board for the FB Group, for a first collective agreement. Issues, both directly and indirectly related to the bargaining process have strained our relationship, particularly in some locations, including Pearson Airport.
On its face, the CBSA decision will erode that relationship further unless the CBSA moves quickly to resolve the VSSA issue and recognize the right of union representatives to freely communicate with their members. We urgently request that John King be reinstated without delay.
Sincerely,
John Gordon Ron Moran
National President National President
PSAC CEUDA
[45] On December 14, 2007, the applicant grieved his termination of employment through the filing of a second grievance. On December 20, 2007, he provided details of his grievance and the correction action requested (reinstatement to his position as a border services officer and compensation for his losses). In the details of his grievance, the applicant explained the purpose of his posting on November 3, 2007 as follows:
…I was simply clarifying the reason for my thirty (30) days of suspension as rumours and false accusations were being spread about me in the workplace.
[46] Failing satisfactory resolution between management and the union, the grievances were referred to adjudication pursuant to section 209 of the PSLRA.
III. ARBITRAL DECISION
[47] The matter was decided by Mr. Ian R. Mackenzie, the adjudicator designed by the Board pursuant to paragraph 223(2)(d) of the PSLRA. The latter conducted a hearing in May and June 2010 and considered the written submissions filed by the parties during the autumn 2010.
[48] Before the adjudicator, the deputy head argued that the applicant either knew or ought to have known that the union was not in a legal strike position, and thus, the September 11, 2007 message addressed to the bargaining unit membership violated subsection 194(1) of the PSLRA for:
· counselling and procuring a declaration or authorization of a strike by CEUDA and the PSAC of whom the applicant was by his own admission seeking “support to walk off the job”; and
· counselling and procuring employees to engage in such a strike if need be.
[49] The deputy head also contended that both the disciplinary suspension and the termination were appropriate measures in the circumstances given the seriousness of the offence, the applicant’s position of leadership and influence, as well as his prior disciplinary record, and absence of remorse.
[50] At this point, it is important to note that in the three years preceding the grievances of November and December 2007, the applicant had discipline imposed on him on three other occasions and which were still on his record for progressive discipline purposes at the time of his 30 day suspension and termination of employment. However, subsequently, these disciplinary penalties were either overturned or reduced from 80 days to 15 days:
· A first 30 day suspension that was imposed on the applicant on July 6, 2004 as a result of a letter that he had written to the Secretary of the United States Department of Homeland Security about issues related to security classification requirements for employees in the Canadian border administration was subsequently overturned at adjudication on August 8, 2008: King v Treasury Board (CBSA), 2008 PSLRB 64. On September 16, 2009, the Federal Court dismissed the application for judicial review brought by the employer against the arbitral award: Canada (Attorney General of Canada) v King, 2009 FC 922.
· A second 30 day suspension imposed on the applicant on July 19, 2006 was reduced to five days by way of settlement on April 23, 2009.
· A further 20 day suspension imposed on him on November 2, 2006 for having sent an email containing allegations against the deputy head to the Minister of Public Safety and the media, was also reduced to 10 days at adjudication on February 23, 2010: King v Deputy Head (Canada Border Services Agency), 2010 PSLRB 31.
[51] The deputy head submitted to the adjudicator that the fact that the quantum of discipline appearing on the applicant’s record had been reduced between in 2009 and 2010 was not determinative. In the alternative, the deputy head argued that if the termination grievance was allowed the appropriate remedy would be pay in lieu of reinstatement.
[52] The applicant maintained that there is no statutory prohibition of merely discussing the possibility or the legality of future strike action or other means of pressure during negotiations with the employ