Union of Canadian Correctional Officers - CSN v. Costello

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161-2-1219 (2003 PSSRB 54), Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Costello

Before: J. Potter
Appearances: J. Mancini, for the Complainant; J. Jaworski, for the Respondent
Decision rendered: July 3, 2003

s.23 PSSRA – Complaint – Employer interference in union activity – Application to amend the original complaint – new respondents and additional remedies sought – this decision dealt with a preliminary matter raised pursuant to a complaint filed under section 23 of the Public Service Staff Relations Act (PSSRA) – the complaint was filed by the Union of Canadian Correctional Officers on February 26, 2002 – the relief sought in the complaint was that the employer cease interfering in union affairs and that three union officials who had been suspended or removed from Matsqui Institution be reinstated – on April 29, 2003, UCCO-SACC-CSN sent a letter to the Public Service Staff Relations Board (PSSRB) seeking an amendment to the section 23 complaint – the amended complaint widened the breadth of the complaint by adding as respondents Treasury Board (Correctional Service of Canada), and five other enumerated individuals and by specifying that their concerted actions in direct conjunction with the actions of the employee constituted violations of sections 8(1), 8(2)(a) and 8(2)(c)(ii) of the PSSRA – the Board replied to the parties on May 9, 2003, informing them that the hearing on the complaint as filed would proceed as scheduled, but added that the Board would be ready to entertain the parties' representation on whether the said complaint should be amended as requested – there was nothing that the Board had been made aware of that advanced a reason for this delay; no new facts came to light between the time of the initial filing of the complaint and the filing of the amendment – this included a lengthy period during which the two parties themselves met in mediation to attempt resolution – the Board also considered the nature of the remedy claimed, including aspects of financial liability – the initial complaint stated that the remedy requested was a cease and desist order, as well as reinstating the three correctional officers to their former position – the amended complaint added the element of damages in the amount of $20,000, payable to each of the three correctional officers – the Board found that the additional request for damages significantly altered the original complaint – no longer was the UCCO-SACC-CSN limiting the corrective action to an order of compliance, but rather it was expanding it to seek an award of some $60,000 in total damages – the last element in considering this request is whether the passage of time would result in "&133; fading recollections, the unavailability of witnesses, the deterioration of evidence, or the disposal of records" – the Board indicated that it could not find any reason to grant the request for amending the complaint as no new facts were presented, nor were any reasons for the delay in filing provided – the Board confirmed its jurisprudence that the prohibitions contained in paragraph 8(2)(c) of the PSSRA apply to employers, not to employee organizations or their representatives – the same rationale applies to an alleged breach of paragraph 8(2)(a): a contextual reading of subsections 23(1) and 8(2) together leads to the conclusion that a person contemplated under those provisions must have some form of authority over employees, which is vested solely with the employer – the Board further noted that it would not have permitted adding the Treasury Board Secretariat (TBS) and the Correctional Service of Canada (CSC) as respondents because sections 8, 9 and 10 of the PSSRA refer to persons, not the employer – given that no new elements were being advanced, and that all facts were known to the complainants when the initial complaint was filed, the request for the amendment was denied.

Complaint dismissed.

Cases cited:

Horstead v. Public Service Alliance of Canada (161-2-739); Desrosiers v. Public Service Alliance of Canada, 2001 PSSRB 41 (161-2-968, 970 to 1014, 1016 to 1094, 1096 to 1102, 1105 and 1106); Lai v. Professional Institute of the Public Service of Canada, 2000 PSSRB 79 (161-34-1128); Tucci v. Professional Institute of the Public Service of Canada, 2000 PSSRB 80 (161-34-1129); Martel v. Veley, 2000 PSSRB 89 (161-2-1126); Godin v. Public Service Alliance of Canada (Union of Solicitor General Employees), 2001 PSSRB 16 (161-2-1121); Professional Institute of the Public Service of Canada v. Treasury Board (161-2-1104 and 169-2-620).