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A-317-78
In re Public Service Staff Relations Board deci sion dated June 16, 1978 (File 161-2-176)
Court of Appeal, Pratte, Heald and Urie JJ.— Ottawa, November 2 and 14, 1978.
Judicial review — Public Service — Arbitral award grant ing right to elect either August 1st holiday or other provincial or civic holiday, subject to operational requirements of Department — Notifications given before any elections made that only one holiday acceptable because of Department's operational requirements — Whether or not Board erred in law in holding that employer complied with award — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 20(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside a decision of the Public Service Staff Relations Board arising out of a complaint filed with the Board by the applicant, Public Service Alliance of Canada. The complaint alleged that the employer had failed to give effect to a provision of an arbitral award. The award granted the employees the right to elect in writing either the August 1st holiday or other provincial or civic holiday, subject to the operational requirements of the Department. Before any elections were made, the employees were notified that any choice other than St. Jean-Baptiste Day would be refused on the basis of operational requirements of the Department. Applicant alleges that the Board erred in law in finding that the employer had complied with the award. It is contended that a sequential process had been established—the employee indicating his preference between holidays, the employer giving effect to the choice, except where impractical due to operational demands, and followed in the case of refusal, by notification in writing by the employer, with reasons.
Held, the application is dismissed. There was an advance determination by the employer based on the employer's view that the granting of a choice of holiday for employees would be "operationally impossible". The arbitral award clearly gives the employer the right to determine, as a prerogative of manage ment, whether the choice of holiday made by an employee is compatible with "operational requirements". The employer's duty to consider the employees' requests and answer them does not preclude it from deciding in advance to reject all the choices except those of one particular day if there exists a situation which, in its view, makes it operationally impossible to give effect to all those other choices.
APPLICATION for judicial review. COUNSEL:
Maurice W. Wright, Q.C. and A. J. Raven for applicant Public Service Alliance of Canada.
W L. Nisbet, Q.C. for respondent Deputy Attorney General of Canada.
SOLICITORS:
Soloway, Wright, Houston, Greenberg, O'Grady & Morin, Ottawa, for applicant Public Service Alliance of Canada.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
HEALD J.: This is a section 28 application to review and set aside a decision of the Public Service Staff Relations Board arising out of a complaint filed with the Board by the applicant, Public Service Alliance of Canada, pursuant to section 20(1)(b) of the Public Service Staff Rela tions Act', R.S.C. 1970, c. P-35.
Said complaint alleged that one, Maurice LeClair, Secretary of the Treasury Board, acting on behalf of the employer, had failed to give effect to a provision of an arbitral award. The complain ant requested that the Board order the employer to act in keeping with the letter and spirit of the said arbitral award.
The arbitral award in question covered the Pur chasing and Supply Group in the Administrative and Foreign Service Category and was made fol lowing a request by the applicant to submit to arbitration certain terms and conditions of employment. The reference to arbitration was the result of an impasse between the applicant and the employer in negotiations for a new collective
' Section 20(1)(b) reads as follows:
20. (1) The Board shall examine and inquire into any complaint made to it that the employer, or any person acting on its behalf, or that an employee organization, or any person acting on its behalf, has failed
(a) to observe any prohibition contained in section 8, 9 or 10;
(b) to give effect to any provision of an arbitral award;
(c) to give effect to a decision of an adjudicator with respect to a grievance; or
(d) to comply with any regulation respecting grievances made by the Board pursuant to section 99.
agreement covering the said Purchasing and Supply Group.
One of the matters referred to arbitration and the issue which forms the basis of this section 28 application involved the question of "designated paid holidays". The applicant had sought in negotiations with the employer and in submissions to the Arbitration Tribunal to amend the existing Article 25 which dealt with the subject of "desig- nated paid holidays", by adding a new subclause in order to allow employees under certain circum stances to designate the provincial holiday of their choice.
On the issue of "designated paid holidays", the award of the Arbitration Tribunal dated March 31, 1978 provided as follows:
ARTICLE 25
DESIGNATED PAID HOLIDAYS
The Board awards that Article 25.01, sub-clauses (a) to (j), of the expired collective agreement be renewed, and that prior sub-clause (k) of this Article be deleted and the following substituted therefor:
One additional day in each year, which is a recognized provincial or civic holiday in the area in which the employee is employed or resides. In any area where no such day is recognized as a provincial or civic holiday, the first Monday in August shall be the designated paid holiday.
An employee shall have the right to give not less than two (2) months' notice, in writing, to his supervisor as to which of any alternative recognized holidays he prefers to take and the employer shall give effect to this choice unless operational requirements make it impractical to do so. If the employer refuses to give effect to the choice of the employee, it shall so notify the employee, in writing, and give reasons for the refusal.
On April 14, 1978, a directive was issued by the Treasury Board over the signature of its Secretary, Maurice LeClair, and was specifically directed to "Deputy Heads, Heads of Agencies, Directors of Personnel". That directive stated in part as follows:
SUBJECT: Observance of St -Jean-Baptiste Day and August Civic Holiday
By virtue of an arbitral award rendered on March 31, 1978, employees in the Purchasing and Supply Bargaining Unit are entitled to a paid holiday which is recognized as a provincial or civic holiday in the area in which the employee is employed or resides. In any area where no such day is recognized as a provincial or civic holiday, the first Monday in August shall be the designated paid holiday. In addition an employee has a right to give not less than two months notice in writing to his supervisor as to which alternate holiday he prefers to take and
the Employer shall give effect to the choice unless operational requirements of the Department make it impractical to do so.
Since all collective agreements with the exception of the Pur chasing and Supply Group arbitral award result in the cessa tion of departmental operations in the Province of Quebec on St -Jean-Baptiste Day, the granting of a choice of holiday for employees in this group would be operationally impossible. Accordingly, requests for a choice of holiday by Purchasing and Supply Group employees shall be denied and, in accordance with the arbitral award, employees should be notified in writing that the Employer's refusal to give effect to their choice is on the basis that operational requirements make it impractical to do so. Hence Purchasing and Supply Group employees working in the Quebec sector of the National Capital Region will observe St. Jean-Baptiste Day and those working in Ontario will observe the August Civic Holiday. The principle expressed in this directive requiring the observance of the designated holiday in the area in which the employee is employed will of course, apply in other locations where a provincial or civic holiday exists.
Departments and Agencies are requested to inform all employees of the foregoing.
The said directive of April 14, 1978 was issued before any requests had been received from employees within the Purchasing and Supply Group. Following the issuance of the said direc tive, the applicant herein filed its complaint under section 20(1)(b) referred to supra alleging that the employer had failed to give effect to Article 25 of the arbitral award of March 31, 1978. At the hearing of the complaint before the Public Service Staff Relations Board, the applicant herein called as a witness one, Robert McCormick, who was employed within the Purchasing and Supply Group. He testified that, by a memorandum dated April 18, 1978, addressed to his supervisor, he advised said supervisor that in accordance with the Purchasing and Supply arbitral award dated March 31, 1978, he was electing to take the August Civic Holiday instead of the St. Jean-Bap- tiste Day Holiday. In response to this request, his supervisor by a memorandum dated May 8, 1978, advised Mr. McCormick as follows:
Reference is made to your memorandum to the undersigned concerning the subject matter. Please be advised that your request to take Monday, August 7, 1978, as your designated paid holiday in lieu of St-Jean Baptiste Day is hereby denied on the basis that "Operational Requirements make it impractical to do so".
A copy of the directive received from the Treasury Board is attached for your information.
Please acknowledge receipt of this memorandum by initialing the attached duplicate and return same to the undersigned for retention.
Attached to that memorandum was a copy of the directive of April 14, 1978 signed by Dr. Maurice LeClair and quoted earlier herein.
On May 26, 1978, Robert McCormick received an additional memorandum from one J. M. Des- Roches, the Deputy Minister of the Supply Administration of the Department of Supply and Services. This memorandum stated:
This is in response to your request for an alternative designated holiday and supersedes any previous correspondence or decision on this matter.
After having examined your request in light of the Supply Administration's operational requirements, I am officially informing you of my decision to deny your request on the basis that operational requirements make it impractical to do so.
Since all collective agreements, with the exception of the Purchasing and Supply Group Arbitral Award, result in a cessation of departmental operations in the Province of Quebec on St. Jean Baptiste Day, the granting of the holiday of your choice would be operationally impossible.
In dismissing the complaint the Board stated:
... we do not accept the contention of the complainant that the conduct of the employer was so arbitrary that it was tan tamount to a failure to give effect to the provisions of the Article.
In the result the Board finds that Article 25 of the arbitral award provides the Treasury Board, as the employer, with the authority to determine whether operational requirements make it impractical to grant a request for an alternative recognized holiday. Dr. LeClair, acting on behalf of the employer, has exercised that authority and, on the evidence before us, has done so in a manner that does not constitute a failure to give effect to the provisions of Article 25.
In the submission of counsel for the applicant, the error in law by the Board was in its finding that the employer had complied with the provi sions of Article 25.01(k) supra. It was counsel's submission that Article 25 establishes a sequential process—i.e., the right of an individual employee to give notice of his preference between "alterna- tive recognized holidays", followed by the duty of the employer to give effect to this choice except where operational requirements make it impracti cal to do so, and then followed, in the case of refusal, by a notification in writing to the employee giving the reasons for refusal.
Counsel then submits that in this case, the employer predetermined the issue of "alternative recognized holidays" by Dr. LeClair's directive of April 14th, which amounted to a blanket refusal before even one single request had been received from an employee and further failed to comply with Article 25.01(k) by not giving reasons for the refusal.
In my view, it is not correct to say that reasons for refusal were not given to the employee, Mr. McCormick. I think that reasons were given, those reasons being the ones set out in Dr. LeClair's directive of April 14, 1978, repeated in the super visor's letter and attachment of May 8, 1978 and repeated once more in the memorandum of May 26, 1978 from the Deputy Minister. In any event, this alleged irregularity is of no moment in so far as these proceedings are concerned since the com plaint which was dismissed by the Board was directed exclusively against Dr. LeClair's direc tive, not against the employer's refusal to accede to Mr. McCormick's request.
Furthermore, the complaint herein by the appli cant union, which was dealt with by the Board, makes no mention in that complaint of a failure to give reasons (see Case, pp. 1 and 2).
Counsel's other submission of error in law relates to the "determination in advance of request" of the question of "alternative recognized holidays".
It seems clear from the evidence that there was an advance determination by the employer based on the employer's view that the granting of a choice of holiday for employees in this group would be "operationally impossible" for the rea sons explained in Dr. LeClair's directive of April 14, 1978. Counsel for the applicant did not argue that the Board should have found that, in making that decision, the employer had acted arbitrarily, in bad faith or for irrelevant or improper motives. He argued that the Board should have found that Dr. LeClair had violated the arbitral award in sending his directive because the award did not contemplate that the employer would make a deci sion of general application in respect of a group of employees. According to counsel, the arbitral award provided that the employer was to consider,
on their respective merit, all the individual requests of the employees for a choice of holiday and determine, in each case, whether the request was to be granted.
I do not agree with that position. In my view, the arbitral award clearly gives the employer the right to determine, as a prerogative of manage ment, whether the choice of a holiday made by an employee is compatible with "operational require ments". The employer's duty to consider the employees' requests and answer them does not preclude it from deciding in advance to reject all the choices except those of one particular day if there exists a situation which, in its view, makes it operationally impossible to give effect to all those other choices.
I am therefore of the view that the Board did not err in holding that the employer had complied with Article 25 of the collective agreement as modified by the arbitral award. Accordingly, I would dismiss the application.
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PRATTE J.: I agree.
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URIE J.: I agree.
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