Canada Employment and Immigration Union - http://ceiu-seic.ca/en/collective-agreement-interpretation/public-challenge-of-hrsdcservice-canada-upheld-by-labour-board/
November 20, 2006

Public challenge of HRSDC/Service Canada upheld by Labour Board

Project Officer Ian Shaw spoke out publicly against Service Canada’s Call for Proposals (CFP) process that hurt both community organizations and CEIU members who worked with them. In response, the employer handed him a 10 day suspension for saying publicly what members were thinking privately. Shaw took his case to the Public Service Labour Relations Board which overturned the suspension and found the department and former government minister Lucienne Robillard guilty of an unfair labour practice.

"This is a clear victory for Ian and for all members" said CEIU National President Jeannette Meunier-Mckay, "because it shows that union officers can speak out publicly on the issues that concern their members." She praised the stand Shaw took, adding that "Ian has provided exceptional leadership to the members in Ontario and will be greatly missed." Shaw, a CEIU National Vice-President for the Ontario region, will move to the provincial government in 2007 as part of the Labour Market Development Agreement between the governments of Canada and Ontario.

For his part, Shaw was pleased with the ruling that backed up his decision to speak publicly on behalf of the Project Officer community. "Project Officers and community groups had legitimate concerns with the CFP process and public pressure on our employer is what is sometimes needed to get the changes we deserve."

Shaw’s suspension came as a result of comments he made at a January 2005 public meeting held by the Social Planning Council of Toronto. The meeting had been convened so that community organizations and others affected by the new CFP process could discuss the effects of the change. A root concern was the new set of CFP requirements that made it extremely difficult for small, but effective, community organizations to apply for funding. The issue had received coverage by the city’s largest daily paper, the Toronto Star, a week before the meeting.

For CEIU members working as Project Officers, the new CFP process meant a dramatic shift in the nature of their work. Where they once developed projects from the ground up and worked in close collaboration with community organizations, they now faced a major reduction in their decision-making authority and filled their days with narrow bureaucratic tasks. The negative effects of the new CFP on community organizations were mirrored in the ranks of the department’s Project Officers.

Shaw was invited to speak at the public meeting as a representative of the CEIU. At the time, he was a local union president, a position he had held for 12 years. He subsequently became a National Vice-President for the Ontario region of the union. In his speech to the meeting, Shaw described the new CFP as flawed and linked it to a broader agenda of contracting out government work to the private sector. He also stated that the pressures exerted by regional review committees created an environment of fear and intimidation for Project Officers.

The employer considered Shaw’s comments to be a violation of the Values and Ethics Code for the Public Service, and on that basis imposed the 10 day suspension. At the adjudication hearing, the employer argued that Shaw had endangered the credibility of the department and shown disrespect for his employer.

The employer did concede that as a union representative, Shaw enjoyed greater latitude in the comments he could make as part of his union responsibilities. However it maintained that such latitude was limited and, more importantly, that Shaw’s statements at the public meeting could not be seen as falling within his responsibilities as a union officer. As a result, his role as a union officer did not provide any protection against the disciplinary action taken by the department.

The union advanced a number of arguments in defence of Shaw. First, it argued that his comments at the public meeting were within his responsibilities as a union officer. The union had challenged the CFP process and the contracting-out of its members work, including through an appearance before a committee of the House of Commons. The public meeting at which Shaw spoke was simply one of many challenges the union had made in the defence of its members.

The union also cited cases in support of the argument that union officers must be protected from disciplinary action for comments made in public and to the media. These cases recognize that in the performance of his or her duties, a union officer is always "…functioning on the borderline of insubordination…" and that "…if in the discharge of that role he is exposed to the threat of discipline for insubordination, his ability to carry out his role will be substantially compromised."

These same cases make clear, however, that protection for union officers is not unlimited. If they make statements that are malicious or knowingly or recklessly false, they cannot expect to be shielded from discipline.

In her decision, the adjudicator found that the employer had failed to show that Shaw’s comments were malicious or knowingly or recklessly false. She also found that his comments at the public meeting were within his responsibilities as a union officer. Accordingly, the department’s disciplinary action was ruled to be unjustified and the 10 day suspension was overturned.

The adjudicator also determined that the discipline imposed on Shaw amounted to an unfair labour practice. The Public Service Labour Relations Act protects employees who exercise their rights, including participation in the legitimate activities of a union, from discipline. This protection is vital because without it, employees would be wary of participating in the union for fear of reprisals from the employer.

By disciplining Shaw for his union activities, the employer was sending an illegal message to all employees: exercise your right to legitimate union activity and you can face discipline.

In its decision, the Public Service Labour Relations Board sent a very different message: your right to participate in the activities of your union is protected and you need not fear retaliation from your employer.

The Shaw case is important for all CEIU members but particularly valuable for stewards and local officers. Their role is vital to the operation of the union and this case shows clearly that their activities enjoy significant protection from pressure by the employer.

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