A-60-89
Armando Almeida and Frank Capizzo (Appli-
cants)
v.
Her Majesty the Queen in Right of Canada as
represented by Treasury Board (Respondent)
INDEXED AS: ALMEIDA V. CANADA (TREASURY BOARD) (CA.)
Court of Appeal, Pratte, Heald and MacGuigan
JJ.A.—Ottawa, September 6 and October 12,
1990.
Public Service — Labour relations — Customs inspectors
suspended for refusing requests to remove Union buttons from
uniforms — Written reprimand issued later — Grievance
under Public Service Staff Relations Act, s. 92(1)(b) dismissed
— Whether Adjudicator erred in declining to review propriety
of written reprimands and in failing to hold wearing of buttons
constituted legitimate union activity protected by ss. 6 and 8
— Buttons supporting controversial bill introduced in Parlia
ment — Wearing buttons could draw grievors into public
debate — Important customs inspectors, as peace officers,
exude appearance of authority — Whether Quan v. Canada
(Treasury Board), upholding right of employees to wear union
buttons at work, applicable to instant case.
This was an application to review and set aside the dismissal
of a grievance by the Public Service Staff Relations Board. The
applicants were uniformed customs inspectors at Pearson Inter
national Airport in Toronto. They were briefly suspended for
refusing to remove from their uniforms buttons bearing their
Union logo and the words "Keep our customs inspectors" and
"KEEP OUT DRUGS & PORNO". Wearing of such buttons con
travened the employer's dress code. A written reprimand was
subsequently issued. The applicants grieved pursuant to Public
Service Staff Relations Act, paragraph 92(1)(b), which per
mits adjudication of grievances involving "disciplinary action
resulting in discharge, suspension or a financial penalty". In
dismissing the grievance, the Adjudicator held that while he
had jurisdiction to review the suspension, he lacked jurisdiction
to review the propriety of the written reprimand. He held that
the buttons conveyed two messages: (1) that there was a fear of
cutbacks and (2) that the person wearing the button was
against the importation of drugs and pornography. The infer
ence was that the greater the number of customs inspectors, the
less likely would be the availability of drugs and pornography
through undetected importation. He found that the message
was not offensive to most travellers, but had the potential for
bringing the operations of the employer into public debate. The
buttons showed support for controversial proposed legislation
increasing criminal sanctions against drugs and pornography.
The issues were whether the Adjudicator erred in (1) declining
to review the propriety of the written reprimands, and (2)
failing to find that the wearing of the buttons constituted a
legitimate union activity protected by sections 6 and 8 of the
Public Service Staff Relations Act. The employer argued that
the written reprimand could not be grieved under paragraph
92(1)(b) since it did not result in suspension, discharge or
financial penalty. The applicants relied upon Quan v. Canada
(Treasury Board), [1990] 2 F.C. 191 (C.A.) (wherein non-
uniformed employees wore buttons proclaiming "I'm on Strike
Alert" during contract negotiations) for the proposition that
employees have the right to wear union buttons at work unless
the employer can establish that such activity has a detrimental
effect on his capacity to manage or on his operations.
Held (MacGuigan J.A. dissenting), the application should be
dismissed.
Per Pratte J.A.: The principle established by Quan does not
apply where the message on the button is unrelated to the
bargaining process. Then the only requirement is that the
employer not act capriciously.
Per Heald J.A.: Quan should be distinguished. (1) Customs
inspectors are peace officers charged with upholding and
enforcing customs and excise laws. The appearance of authority
and control must not be diminished or subject to debate by the
general public. The requirement that they wear uniforms while
on duty is thus justified. (2) The grievors in Quan did not act in
an insubordinate fashion, unlike the applicants herein who
repeatedly refused to remove the buttons. (3) The buttons in
Quan contained neutral words. They were "neither insulting
nor flattering nor critical of the employer." The messages on
the buttons herein were not neutral as they supported con
troversial proposed legislation. Wearing the buttons while on
duty presented a potential for involving the employer in public
confrontation or debate.
Per MacGuigan J.A. (dissenting): The buttons' message
linking government policy, which would appear to require more
rather than less customs scrutiny, to the perceived threat to the
employment of union members, was inherently related to union
business. Quan cannot be limited to the issue of interpretation
of the collective agreement, and the principles therein apply
here. Section 6 of the Public Service Staff Relations Act
governs.
There is no requirement in Quan that the message on a
button be neutral. It may be quite pointed, provided that it is
not detrimental to the employer.
This case should not be distinguished from Quan on the basis
of the requirement that customs inspectors wear a uniform. The
wearing of a uniform is but one factor to be considered in
determining whether the employer can establish that the
employee's conduct is detrimental to its reputation or
operations.
The Adjudicator erred in considering whether the buttons'
message "would not or could not possibly have evoked com
ments or debate from passersby" once he had found that it was
not offensive to most travellers. He should not have further
considered the issue of harm and he should have required
evidence of at least a real or serious possibility of harm to the
employer.
The statement "KEEP OUT DRUGS & PORNO", which the
Adjudicator found harmful, was nothing more than a direct
reference to the Government's own policy and Bill. A support
ing reference by employees is not detrimental to an employer's
interests. An employer's discomfort in having such questions
raised in public is secondary to employees' freedom to express
their concern about workplace issues. Once an employee estab
lishes that the message represents a valid concern of his
employee organization, the onus shifts to the employer to show
a serious possibility of prejudicial effect. This balancing of
interests contains a slight weighting in favour of labour rela
tions expression.
The Adjudicator also erred in denying the grievances in
relation to the written reprimands. He erred in separating the
employer's disciplinary action into adjudiciable and non-adjudi-
ciable components. While paragraph 92(1)(b) may deny
adjudication with respect to grievances relating only to written
reprimands, it does not do so when the written reprimands are
part of a disciplinary action which results in suspension, merely
because the suspension occurs first and the reprimands a few
days later. Labour relations considerations require the
adjudicatorial consideration of the two forms of discipline in
such situations. The formal reprimand was intended as a
written explanation of the events, supplemented by the threat of
more severe disciplinary action in the event of repetition. It was
the final stage of management's response to the button-wearing
which precipitated the suspension, and fell within the Adjudica
tor's jurisdiction.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35,
ss. 6, 8, 91, 92(1)(b).
CASES JUDICIALLY CONSIDERED
APPLIED:
Boulis v. Minister of Manpower and Immigration,
[1974] S.C.R. 875; (1972), 26 D.L.R. (3d) 216.
DISTINGUISHED:
Quan v. Canada (Treasury Board); Canada (Attorney
General) v. Bodkin, [1990] 2 F.C. 191; (1990), 107 N.R.
147 (C.A.).
CONSIDERED:
Re Canada Post Corp. and Canadian Union of Postal
Workers (1986), 26 L.A.C. (3d) 58; Re Air Canada and
Canadian Air Line Employees' Assoc. (1985), 19 L.A.C.
(3d) 23; Re The Crown in right of Ontario (Ministry of
Solicitor-General) and Ontario Public Service
Employees Union (Polfer) (1986), 23 L.A.C. (3d) 289;
Baril v. Attorney General of Canada, [1980] 1 F.C. 55;
(1979), 106 D.L.R. (3d) 79; 36 N.R. 587 (C.A.).
COUNSEL:
Andrew J. Raven for applicants.
Harvey A. Newman for respondent.
SOLICITORS:
Soloway, Wright, Greenberg, Morin, Ottawa,
for applicants.
Treasury Board, Legal Services, Ottawa, for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.A.: I agree with Mr. Justice Heald
and only wish to add a few words of my own.
The applicants' counsel's argument is entirely
based on the decision of this Court in Quan'
which, he says, established two principles, namely:
(1) the wearing of a union button by a union
ized employee is a union activity within the
meaning of section 6 of the Public Service Staff
Relations Act [R.S.C., 1985, c. P-35], and
(2) the employer may not forbid his employees
to wear a union button during working hours
unless he can establish that such an activity has
a detrimental effect on his capacity to manage
or on his operations.
' Quan v. Canada (Treasury Board), [1990] 2 F.C. 191
(C.A.).
As, in this case, there was, according to the appli
cants' counsel, no evidence of such a detrimental
effect, he concludes that the Adjudicator erred in
deciding that the applicants' employer had the
right to require that the applicants remove the
union button that they were wearing.
In my view, the applicants misconstrue the
second principle established by Quan. That princi
ple cannot be applied without regard to the nature
of the message conveyed by the union button worn
by the employees. In Quan that message was
simply that the employee wearing the button was
"on strike alert". The message was, therefore,
directly related to the collective bargaining process
as it is regulated by the legislation. In such a case,
it is reasonable to say that the employer cannot
prevent the employees from wearing the union
button during working hours unless he is able to
demonstrate that such an activity will have a
prejudicial effect on his operations. The situation
is different, however, when, as is the case here, the
message conveyed by the union button is in no way
related to bargaining process. Then, the second
principle established by Quan does not apply and
all that can be required of the employer is that he
must not act capriciously. For instance, an employ
er would have the right to object, without having
to prove any detrimental effect, to the wearing by
his employees during working hours of union but
tons manifesting their opposition to some proposed
piece of legislation that the employer may happen
to support. Otherwise, the employer would, in a
sense, be forced to collaborate to the dissemination
of ideas of which he disapproves.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J.A.: This is a section 28 application to
review and set aside a decision rendered by Roger
Young, a member of the Public Service Staff
Relations Board (the Adjudicator) respecting a
grievance presented by each of the applicants pur
suant to the provisions of the Public Service Staff
Relations Act, R.S.C., 1985, c. P-35.
The relevant facts are undisputed and may be
shortly stated. During the material times, each of
the applicants were employed as Customs Inspec
tors, PM-1, with the Customs and Excise Branch
of Revenue Canada at Pearson International Air
port in Toronto. During working hours they were
required to wear Customs and Excise uniforms. At
all relevant times, the Customs and Excise Branch
had in place a Code of Conduct and Appearance
(Exhibit 1). This Code was not a negotiated stand
ard of discipline forming a part of a collective
agreement but was, rather, a unilaterally imposed
departmental policy. The relevant portion of
article 54 of the Code reads:
54. ...
(f) Uniformed Employees
(1) Uniformed employees of Customs and Excise have a
particular responsibility for maintaining a good appear
ance, since their uniforms foster immediate recognition,
by the public, of an official representative of the Federal
Government. The appearance of a Customs Inspector
constantly dealing with the public may enhance, or alter
natively detract from, not only the image of the Depart
ment, but also that of Canada.
(2) Accordingly, where a uniform is supplied, it shall be
worn in its entirety, complete in all details, and devoid of
ornaments which are not a part of the uniform. Uni
formed employees are responsible for maintaining their
uniforms in a clean, neat and well-pressed state.
On January 31, 1986, the applicants wore a
non-issue button on their uniform shirts while
working their afternoon shift. These buttons were
rectangular in shape and were approximately 1 3/4
inches high by 2 3/4 inches wide. They were of
three colours: red, white and blue. The top third of
the button had a red background overprinted with
the message "Keep our customs inspectors" in
white. The bottom two-thirds had a white back
ground overprinted with the message "KEEP OUT
DRUGS & PORNO" in heavy blue capitals but for
the ampersand which was in red. To the right side
of the button, midway between top and bottom
was situated the three-colour crest or logo of the
Customs and Excise Union, 3/4 of an inch in
diameter. The applicants were asked by manage
ment officials to remove the buttons. Their reply
was to the effect that they would only comply upon
confirmation in writing of the request. A repeated
oral request to remove the buttons was then made.
The applicants continued to refuse to remove them
whereupon the applicants were suspended without
pay and instructed to go home. Subsequently,
under date of February 5, 1986, a formal discipli
nary reprimand was issued to the applicants. That
reprimand stated (Case, at page 002):
As your refusal to comply with a legitimate order from your
Superintendent and the Senior Officer constitutes insubordina
tion you are being reprimanded in writing.
On March 5, 1986, the applicants presented griev
ances pursuant to what is now paragraph 92(1) (b)
of the Public Service Staff Relations Act, R.S.C.,
1985, c. P-35. That paragraph reads:
92. (1) Where an employee has presented a grievance, up to
and including the final level in the grievance process, with
respect to
(b) disciplinary action resulting in discharge, suspension or a
financial penalty,
and the grievance has not been dealt with to the satisfaction of
the employee, the employee may, subject to subsection (2),
refer the grievance to adjudication.
Adjudicator Young decided that the applicants'
grievances should be dismissed. Prior to addressing
the merits of the grievances, the Adjudicator ruled
on a preliminary issue raised by the employer's
counsel. This issue related to the Adjudicator's
jurisdiction to address the propriety of the written
reprimand given to each applicant. He decided
that while he had jurisdiction to review the
employer's action in suspending the applicants, he
was "without jurisdiction to adjudicate upon the
propriety of the written reprimand" (Case at page
083).
Counsel for the applicants asks for judicial
review on a twofold basis: firstly, because the
Adjudicator erred in law in wrongfully declining
jurisdiction to review the propriety of the written
reprimands delivered herein; and secondly, because
the Adjudicator further erred in law in failing to
find that the wearing of the buttons described
supra, by the applicants constituted a legitimate
union activity protected by sections 6 and 8 of the
Public Service Staff Relations Act and that, there-
fore, the employer's disciplinary action was
unjustified. 2
THE MERITS
On this issue, the applicants rely on this Court's
decision in the case of Quan v. Canada (Treasury
Board) 3 and the application therein of the provi
sions of section 6 of the Public Service Staff
Relations Act, supra, which provides:
6. Every employee may be a member of an employee organi
zation and may participate in the lawful activities of the
employee organization of which the employee is a member.
In the submission of counsel, Quan stands for
the view that the rights afforded to employees
pursuant to section 6 supra, "ought to be curtailed
only in cases where the employer can demonstrate
a detrimental effect on its capacity to manage or
on its own reputation." In the opinion of counsel,
Quan establishes that employees have the right to
wear buttons and other forms of union insignia
while at work unless the employer can establish
through evidence, that such activity prejudicially
affects the employer's operations. Counsel further
submits that:
In each instance, there must be a balancing of the legitimate
rights of employees to participate in the lawful activities of
their union with the legitimate rights of the employer to ensure
that such activities do not result in undue disruption. (Appli-
cant's memorandum of argument, paragraph 22.)
In his submission, the Adjudicator erred in law
since there was no evidence establishing prejudicial
effect and since he did not appear to balance the
rights of the parties.
In so far as the Quan decision is concerned, it is
an entirely different case from the case at bar. In
Quan, the employees were in the employ of the
Canada Employment and Immigration Commis-
' In their memorandum of fact and law, the applicants have
characterized the first issue as a procedural one and the second
issue as one going to merits of the application. I will discuss
these issues employing the same nomenclature.
3 [1990] 2 F.C. 191 (C.A.).
sion. There was no requirement that they wear
uniforms while on duty. During the course of
contract negotiations, employees wore buttons on
which was printed "I'm on strike alert". The evi
dence was to the effect that the buttons were worn
to promote union solidarity relating to perceived
delays in the negotiations for a renewed collective
agreement. Chief Justice Iacobucci, speaking for
the Court, adopted the reasoning of the Board, in a
companion case, Canada (Attorney General) v.
Bodkin [ [ 1990] 2 F.C. 191]. At page 196 of the
report, the Board decision quoted proceeds to ana
lyze the message which the button in the case
carried:
"In so doing, my premise has been that the employer should not
have to tolerate during working hours statements that are
derogatory or damaging to its reputation or detrimental to its
operations. It follows that there is a subjective element in
deciding whether a union button exceeds the permissible limits.
I have considered the message contained on the button, `I'm on
Strike Alert' and it is my conclusion that those words do not in
any way impinge on the employer's authority, nor can they be
qualified as damaging to the employer's reputation. Also, I fail
to see how, they can be detrimental to the employer's opera
tions. In my view, the words `I'm on Strike Alert' are neutral in
that they are neither insulting nor flattering nor critical of the
employer. They constitute a statement of fact. My own under
standing of those words is that the employees are contemplating
the possibility of a strike. I fail to see how by communicating
this possibility to the public, an employee is affecting the
employer's operations."
In the case at bar, the Adjudicator summarized
the evidence of Mr. Burns, the Chief of Shift
Passenger Operations (at pages 4-5 of the PSSRB
decision, files no. 166-2-17058 and 17059):
Burns viewed the buttons as unprofessional. He felt they
could elicit public comment and disrespect. Burns believed that
the buttons invited a dialogue and debate with members of the
travelling public. He also believed that the wearing of them
constituted the conducting of union business on the employer's
premises.
The Adjudicator added (at page 5 PSSRB):
Management believed that the buttons were part of a cam
paign by the union to fight threats of reduced staffing policies
rumoured to be contemplated by the government. The union
had been arguing that fewer employees would result in less
vigilance leading to an increase in the importation of drugs and
pornography. Burns stated that he advised the grievors that the
buttons were inappropriate and unauthorized. He asked the
men three times to remove them. When they refused, Burns
pointed out that they were being insubordinate. He advised the
men that discipline could result and that they would not be
permitted to complete their shift.
Furthermore, in discussing the requirements of
article 54 of the Code of Conduct and Appearance
supra, the Adjudicator stated [at page 15
PSSRB]:
The authority of the employer to impose such conditions as
are found here can not be seriously questioned. This is, after all,
an arm of the public service employed to uphold and enforce
the customs and excise laws of the nation. Its members are
Peace officers; there is very good reason for them to be
uniformed, easily recognizable, to exude the appearance of
authority and control. It can only be supportive of that role not
to have that appearance diminished, or subject to debate or
question by the general public.
Thereafter the Adjudicator, in much the same
fashion as the Adjudicator in Bodkin, supra pro
ceeded to analyze the buttons here in issue and to
draw certain conclusions therefrom. He said (at
pages 15 to 17 PSSRB):
In my view, these statements were meant to convey two clear
and distinct but interrelated messages. The first was that there
was, indeed, some fear of cutbacks or diminished numbers of
Customs staff in the offing; the second was that anyone wear
ing such a button was obviously against the importation of
drugs and pornography. The relationship between the two
statements exists through the suggestion that the greater the
number of Customs officers available, the less likely will be the
availability of drugs and pornography through undetected
importation.
The buttons were well and cleverly designed from the point
of view of their visual impact. They are not unattractive to the
eye. The message is, in all likelihood, not offensive to the vast
number either of returning Canadians or visitors to Canada
who must pass through Customs inspection. That is not to say
that the message necessarily would be viewed favourably by all
Canadians or all visitors, nor that it would not or could not
possibly have evoked comments or debate from passersby the
result of which could have had a negative impact upon the
employer's operations.
It was conceded in evidence during this hearing that the
introduction and debate of the particular Bill in Parliament
which the grievors claim to have been supporting by virtue of
their actions in wearing the buttons was not met with unani
mous support. Indeed, there were, it was recalled, a number of
heated exchanges on its merits both within and without Parlia
ment. This strengthens my conclusion that the wearing of these
buttons could well have drawn the grievors into public debate
with those who may, for one reason or another, have chosen to
take an opposing view. However commendable may have been
the sympathies of the grievors, the wearing by them of the
buttons in question while on duty and in close contact with the
public held within it the potential for bringing the operations of
the employer into public confrontation or debate.
I, therefore, find that it was with valid and reasonable
concern that management requested that the grievors remove
the offending buttons on, the evening in question while at their
workplaces on the employer's premises. The grievors were given
adequate time to assess their situation and to comply; in fact,
management appears to have attempted to handle the situation
with a great deal of tact and patience. The grievors refused to
comply with management's wishes after several clear and
repeated requests. The grievors were informed that failure to
comply would cost them the balance of their remaining shift
pay.
I find that management was acting properly within the
legitimate exercise of its authority in excluding the grievors
from the further performance of their duties on the evening in
question. Such action did not, in my view, deny the grievors
their right to express their personal, political opinions on their
own time, nor did it deny the union the opportunity to carry out
its lawful activities.
These grievances are hereby denied.
Based on the above excerpts, it is apparent that
there are many differences between Quan and the
case at bar. Firstly, the employees at bar are peace
officers whose duty it is to uphold and enforce our
customs and excise laws. It is important that they
"exude the appearance of authority and control"
and that that appearance is not "diminished, or
subject to debate or question by the general pub
lic." These circumstances provide a justifiable
rationale for the requirement that they wear stand
ard uniforms while on duty. It is not apparent that
the same rationale would apply to the employees in
Quan. Secondly, in Quan the grievors did not act
insubordinately. In the case at bar, the applicants
refused several requests to remove the offending
button and thus did act in an insubordinate fash
ion. Thirdly, the buttons in issue in Quan con
tained "neutral words", words which "constitute a
statement of fact" and are "neither insulting nor
flattering nor critical of the employer."
In contradistinction to Quan, there is nothing
"neutral" about the messages conveyed by the
buttons in this case. As noted by the Adjudicator,
this button supports a particular bill introduced in
Parliament and that bill was controversial, there
being "a number of heated exchanges" on the
merits of the bill. From these factual circum
stances, the Adjudicator concluded that the wear
ing of the buttons "could well have drawn the
grievors into public debate". In my view, based on
the evidence on this record, I think that the
Adjudicator was justified in concluding that the
wearing of the buttons on duty presented a poten
tial for involving the employer in public confronta
tion or debate. In my view, there is no question of
an error of law or a perverse finding without
regard to the evidence. The Adjudicator found
facts and drew inferences from those facts and, in
my view, those findings and those inferences were
clearly open to him. Likewise, I think that the
Adjudicator did balance the legitimate rights and
aspirations of the employees with those of the
employer. I so conclude because of the comments
of the Adjudicator contained in the last two para
graphs of his reasons (at page 17 PSSRB) quoted
supra. In my view, this passage makes it perfectly
clear that the Adjudicator was aware that a
balancing of the respective rights was necessary
and that he did, in fact, reach his conclusion only
after balancing those rights. Accordingly, and for
these reasons, I have concluded that the Adjudica
tor did not commit reviewable error. 4
THE JURISDICTIONAL ISSUE
In view of my conclusion that the Adjudicator
did not commit reviewable error in suspending the
applicants, it becomes unnecessary to consider fur
ther the submission of error with respect to his
refusal to adjudicate upon the propriety of the
written reprimands administered to the applicants
by the employer.
° In reaching this conclusion, I have kept in mind the views of
the Supreme Court of Canada expressed in Boulis v. Minister
of Manpower and Immigration, [1974] S.C.R. 875, at p. 885.
In that case Laskin J. (as he then was) enjoined appellate
courts not to read the reasons of tribunals of this nature
microscopically. Mr. Justice Laskin also said: "it is enough if
they show a grasp of the issues that are raised ... and of the
evidence addressed to them, without detailed reference." In my
view when the reasons of the Adjudicator are read in their
totality, they meet the Boulis test.
CONCLUSION
For the reasons given herein, I have concluded
that the section 28 application should be
dismissed.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A. (dissenting): The applicants
are both uniformed Customs Inspectors at Pearson
International Airport in Toronto. They brought
grievances under the Public Service Staff Rela
tions Act ("the PSSRA" or "the Act") disputing
the propriety of disciplinary action taken against
them in the form of a brief suspension from the
workplace along with a subsequent written repri
mand for their alleged breach of the employer's
dress code. The breach alleged consisted in their
wearing, while on the afternoon shift on January
31, 1986, non-issue buttons on their uniform shirts.
The buttons were rectangular in shape, roughly 2
inches by 3 inches in size, bore their union's
insignia, and carried the two slogans "Keep our
customs inspectors" (lower case in smaller letters)
and "KEEP OUT DRUGS & PORNO" (upper case
with larger letters).
The two grievances were consolidated at the
request of the parties, heard by a member ("the
Adjudicator") of the Public Service Staff Rela
tions Board ("the Board"), and denied by the
Adjudicator in a decision rendered on January 25,
1989. This application is brought to review and set
aside that decision.
I
The relevant parts of the employer's departmental
Code of Conduct and Appearance are as follows
(at pages 36-38):
APPEARANCE
54. (a) Policy
It is the policy of Customs and Excise that the dress
and appearance of its employees will enhance the
professional image of the Department and will not be
detrimental to employee health and safety, or detract
from the work performance of others.
(b) Employees' Responsibilities
All employees are expected to be neat, clean and tidy
in appearance and to avoid any aspect of appearance
that could be detrimental to health and safety, the
work performance of others and the public image of
the Department.
(f) Uniformed Employees
(1) Uniformed employees of Customs and Excise have
a particular responsibility for maintaining a good
appearance, since their uniforms foster immediate
recognition, by the public, of an official representative
of the Federal Government. The appearance of a Cus
toms Inspector constantly dealing with the public may
enhance, or alternatively detract from, not only the
image of the Department, but also that of Canada.
(2) Accordingly, where a uniform is supplied, it shall
be worn in its entirety, complete in all details, and
devoid of ornaments which are not a part of the
uniform. Uniformed employees are responsible for
maintaining their uniforms in a clean, neat and well-
pressed state.
DISCIPLINARY ACTION
56. Where employees do not meet the requirements of this
Code of Conduct and Appearance, disciplinary action may
result. Such managerial action must be corrective rather than
punitive with a view to the correction of unacceptable behavi
our. This attitude is essential in the encouragement of an
employee to develop and display positive attitudes, to improve
performance and to motivate an employee to voluntarily abide
by the Code of Conduct and Appearance.
57. When disciplinary action is taken, it will vary according to
the nature of the misconduct and the employee's record. Where
offences of a minor nature are committed for the first time and
the employee is otherwise performing satisfactorily, a warning
in the form of an oral or written reprimand will normally result
and will indicate to the employee the corrective action and
improvement that is desired. If the employee's conduct does not
improve, then more severe action will be taken such as suspen
sion or ultimately, discharge. Serious offences may result in
immediate discharge or lengthy suspensions without pay.
58. Disciplinary action will be taken in accordance with the
appropriate Instruments of Delegation of Authority under the
Pulic Service Terms and Conditions of Employment Regula
tions and with the Departmental Policy on Discipline and
Disciplinary Procedure.
The basic right of membership in an employee
organization is provided by section 6 of the Act,
which reads as follows:
6. Every employee may be a member of an employee organi
zation and may participate in the lawful activities of the
employee organization of which the employee is a member.
The employees presented their grievances pursu
ant to what is now section 91 of the Act and the
grievances were referred to arbitration pursuant to
what is now section 92. The relevant parts of those
sections are as follows:
91. (1) Where any employee feels aggrieved
(a) by the interpretation or application, in respect of the
employee, of
(i) a provision of a statute, or of a regulation, by-law,
direction or other instrument made or issued by the employ
er, dealing with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral
award, or
(b) as a result of any occurrence or matter affecting the
terms and conditions of employment of the employee, other
than a provision described in subparagraph (a)(i) or (ii),
in respect of which no administrative procedure for redress is
provided in or under an Act of Parliament, the employee is
entitled, subject to subsection (2), to present the grievance at
each of the levels, up to and including the final level, in the
grievance process provided for by this Act.
[Subsection (2) deals with the approval of the
bargaining unit.]
92. (1) Where an employee has presented a grievance, up to
and including the final level in the grievance process, with
respect to
(a) the interpretation or application in respect of the
employee of a provision of a collective agreement or an
arbitral award, or
(b) disciplinary action resulting in discharge, suspension or a
financial penalty,
and the grievance has not been dealt with to the satisfaction of
the employee, the employee may, subject to subsection (2),
refer the grievance to adjudication.
[Subsection (2) deals with the approval of the
bargaining unit.]
II
At the outset of the hearing before the Board, the
employer raised the preliminary objection that the
Adjudicator lacked jurisdiction to entertain these
grievances, on the ground that the written repri
mand was the sum total of the discipline meted out
and that it could not be grieved under paragraph
91(1)(b) of the Act since it did not result in
suspension, discharge or financial penalty.
This argument rests on a particular interpreta
tion of the facts. When the grievors were ordered
to remove the offending buttons by their superior,
after reflection they took the position that they
would comply only if they received such instruc
tions in writing. They were given the choice be
tween removing the buttons, and being refused
entry to the workplace and sent home. Before the
Adjudicator the employer argued that the loss of
wages resulted from the employees' own actions,
and not from management's. It was simply a case
of "no work, no pay". Management's action, being
administrative rather than disciplinary, was
argued to be outside an adjudicator's scope of
review.
The Adjudicator's decision on this preliminary
objection was as follows (at pages 12-14 PSSRB):
I am of the opinion that, with respect to the preliminary
objection, I ought to conclude that I have jurisdiction to hear
and determine at least a portion of this matter. Given the
recent decision of the Federal Court of Appeal in the case of
Stefan Wodoslawsky et l'Office national du Film (Court File
A-553-88) and the thrust of an earlier decision of that Court in
Massip v. Canada (1985) 61 N.R. 114, I do not believe that the
loss of work, and therefore pay, for the balance of the grievors'
shifts on 31 January 1986, can be said to be either the result of
a simple administrative action or a "no work, no pay" situation.
The grievors were clearly contesting a managerial guideline
designed to promote order and decorum in the workplace—i.e.
the Code of Conduct. When the grievors' breach of the dress
code was brought to its attention, management sought, albeit
through a polite personal request, to have the grievors conform
to the code. The grievors were asked several times to do so and
stated that they would if so ordered in writing. (This demand is
rather curious and, had management acceded to it, it would
have been rather redundant, since the dress code is already
reduced to printed form). However, the grievors did not con
form to management's request. As a result they were not
permitted to return to their work stations and were sent home
for the balance of their shifts. Such action amounts, as I see it,
to a suspension.
Such action can only be considered as disciplinary. It was a
clear attempt by management to maintain order and control—
i.e. discipline—in the workplace. Indeed, the dress code itself
refers to disciplinary action as a means of enforcement of its
provisions. Therefore, I conclude that I have jurisdiction to
review that portion of the employer's action—i.e. the suspen
sion. The employer, though, acted in a two-stage manner.
Along with the suspension from work for the balance of their
shifts on 31 January 1986, the grievors also subsequently
received a written reprimand. It was argued by counsel for the
employer that only that portion of management's action repre
sented by the grievors' suspension could be reviewed by me. I
agree with that position; I am without jurisdiction to adjudicate
upon the propriety of the written reprimand.
The respondent accepted before us this jurisdic
tional decision of the Adjudicator. The applicants,
however, challenged his refusal to adjudicate upon
the propriety of the written reprimand. Since this
is not an issue I have to decide unless the appli
cants succeed on their argument with respect to
the wearing of the button, I turn first to that issue.
III
The Adjudicator's reasons for decision on the prin
cipal issue were as follows (at pages 15-17
PSSRB):
The cases cited by counsel for the grievors had, for the most
part, more to do with the wearing of union pins and insignia
than with the sort of button worn here. Those cases also arose
in support of claims that management's actions in forbidding
the wearing of such pins were an unfair labour practice which
restricted the lawful activities of the unions involved. Here, the
buttons went far beyond a simple union member's or steward's
lapel pin. The buttons contained two explicit statements: the
one, "keep our customs inspectors" in lower case, but clearly
legible letters; the other, "KEEP OUT DRUGS & PORNO"
in bold, upper case letters.
In my view, these statements were meant to convey two clear
and distinct but interrelated messages. The first was that there
was, indeed, some fear of cutbacks or diminished numbers of
Customs staff in the offing; the second was that anyone wear
ing such a button was obviously against the importation of
drugs and pornography. The relationship between the two
statements exists through the suggestion that the greater the
number of Customs officers available, the less likely will be the
availability of drugs and pornography through undetected
importation.
The buttons were well and cleverly designed from the point
of view of their visual impact. They are not unattractive to the
eye. The message is, in all likelihood, not offensive to the vast
number either of returning Canadians or visitors to Canada
who must pass through Customs inspection. That is not to say
that the message necessarily would be viewed favourably by all
Canadians or all visitors, not that it would not or could not
possibly have evoked comments or debate from passersby the
result of which could have had a negative impact upon the
employer's operations.
It was conceded in evidence during this hearing that the
introduction and debate of the particular Bill in Parliament
which the grievors claim to have been supporting by virtue of
their actions in wearing the buttons was not met with unani
mous support. Indeed, there were, it was recalled, a number of
heated exchanges on its merits both within and without Parlia
ment. This strengthens my conclusion that the wearing of these
buttons could well have drawn the grievors into public debate
with those who may, for one reason or another, have chosen to
take an opposing view. However commendable may have been
the sympathies of the grievors, the wearing by them of the
buttons in question while on duty and in close contact with the
public held within it the potential for bringing the operations of
the employer into public confrontation or debate.
I, therefore, find that it was with valid and reasonable
concern that management requested that the grievors remove
the offending buttons on the evening in question while at their
workplaces on the employer's premises. The grievors were given
adequate time to assess their situation and to comply; in fact,
management appears to have attempted to handle the situation
with a great deal of tact and patience. The grievors refused to
comply with management's wishes after several clear and
repeated requests. The grievors were informed that failure to
comply would cost them the balance of their remaining shift
pay.
I find that management was acting properly within the
legitimate exercise of its authority in excluding the grievors
from the further performance of their duties on the evening in
question. Such action did not, in my view, deny the grievors
their right to express their personal, political opinions on their
own time, nor did it deny the union the opportunity to carry out
its lawful activities.
These grievances are hereby denied.
The Adjudicator's analysis of the message on
the buttons, which was in my view a correct one, is
worthy of note. First, he observed that there were
two statements on the buttons, the first relating to
customs officers, the second to drugs and pornog
raphy. The meaning of the second statement had
already been established by the Adjudicator when
he pointed out earlier in his decision (at page 6
PSSRB):
Revenue Canada had taken a position of strict enforcement of
drug and pornography laws. The government had introduced a
Bill into the House of Commons with the intent of increasing
criminal sanctions against such activities.
Second, although there were two statements on
the buttons, the Adjudicator found only one mes
sage, viz. that "the greater the number of Customs
officers available, the less likely will be the availa
bility of drugs and pornography through undetect
ed importation." In other words, the employee
organization's message clearly linked the perceived
threat to the employment of its membership to a
government policy which would appear to require
more rather than less customs scrutiny. This very
analysis of the message makes clear its inherent
relationship to union business.
The Adjudicator followed this analysis with an
initial conclusion that "The message is, in all
likelihood, not offensive to the vast number either
of returning Canadians or visitors to Canada who
must pass through Customs inspection." However,
the Adjudicator then proceeded to hold that the
wearing of the buttons "while on duty and in close
contact with the public held within it the potential
for bringing the operations of the employer into
public confrontation or debate." In my opinion,
this ultimate conclusion cannot stand in the light
of the unanimous decision of this Court in Quan v.
Canada (Treasury Board), [1990] 2 F.C. 191, a
decision subsequent to that of the Adjudicator in
the case at bar.
Quan was also a "button case", carrying the
message "I'm on strike alert". It also involved an
additional issue as to the interpretation of a re
strictive clause of the master agreement between
the parties, but the Court held that the broader
words of section 6 of the Act as to membership in
an employee organization must prevail. In my
opinion, Quan cannot be limited to the issue of
contractual interpretation, as argued by the
respondent, and section 6, as applied in Quan,
clearly governs the instant case. Therefore the
principles adopted in Quan must determine the
result here.
In Quan, Iacobucci C.J. adopted for the Court
the approach and language of the Board in
Canada (Attorney General) v. Bodkin [[1990] 2
F.C. 191], as cited in Quan, at page 196:
In considering whether a union button is a legitimate activity in
the union during working hours, one has no choice but to
consider the statement it bears. As a matter of fact, I have been
invited by both parties to do so. In so doing, my premise has
been that the employer should not have to tolerate during
working hours statements that are derogatory or damaging to
its reputation or detrimental to its operations. It follows that
there is a subjective element in deciding whether a union button
exceeds the permissible limits. I have considered the message
contained on the button, "I'm on Strike Alert" and it is my
conclusion that those words do not in any way impinge on the
employer's authority, nor can they be qualified as damaging to
the employer's reputation. Also, I fail to see how, they can be
detrimental to the employer's operations. In my view, the words
"I'm on Strike Alert" are neutral in that they are neither
insulting nor flattering nor critical of the employer. They
constitute a statement of fact. My own understanding of those
words is that the employees are contemplating the possibility of
a strike. I fail to see how by communicating this possibility to
the public, an employee is affecting the employer's operations.
In fact, there is no evidence that the employer's operations were
affected. As for the likelihood that the employer's operations
might have been or might be affected, I would have required
some evidence of some kind. In my view, in 1988, at the time of
the events, the possibility of a strike, or an impending strike as
the words "I'm on Strike Alert" imply, were notions which
were well embedded in the Canadian psyche. I have serious
doubts that a member of the public would not have gone about
his business with a particular government department because
its employees were merely contemplating going on strike.
There is in this test no requirement that the
message on a button be "neutral". It may be quite
pointed, provided that it not be detrimental to the
employer. The principles that I believe emerge
from the language of Bodkin, which was explicitly
adopted by this Court in Quan, are (1) that the
wearing during working hours of a button relating
to union business in a broad sense is legitimate
unless the "employer can demonstrate a detrimen
tal effect on its capacity to manage or on its
reputation", 5 and (2) that in measuring such pros
pective damage an adjudicator must look to the
probable result and not to some faint possibility
"As for the likelihood that the employer's opera
tions might have been or might be affected". It is
5 This quotation is from a previous paragraph in the Board's
decision which was also endorsed by Iacobucci C.J., at p. 196.
this second principle that is directly in question
here.
Both principles are in keeping with the develop
ing labour relations jurisprudence in this area, the
results of which, I believe, are accurately summa
rized in Re Canada Post Corp. and Canadian
Union of Postal Workers (1986), 26 L.A.C. (3d)
58, at pages 67-68, by Arbitrator Outhouse as
follows:
In my opinion, the foregoing cases are quite easily reconcil
able and have a common underlying theme. Stated quite
simply, it is that an employer must be able to show some
overriding interest in order to justify restricting an employee's
freedom of expression, particularly where the employee seeks to
exercise that freedom in the pursuit of a lawful union activity.
Such overriding interests will frequently, as demonstrated in
the above cases, take the form of maintaining an orderly
work-place as well as good customer relations. Thus, employees
are not entitled, while at work, to express themselves either in
verbal or written form in a manner which is calculated to
disrupt production or bring the employer into disrepute with its
customers. On the other hand, absent any interference with
production or harm to customer relations, an employee's free
dom of expression and the right to participate in lawful union
activities cannot validly be circumscribed by the employer.
Applying this understanding of the law, the Arbi
trator allowed the grievance respecting the button
slogan. "National Day of Protest—Nov. 6".
The cases make no distinction on the basis of
whether the employee wearing a button was in
uniform at the time. In Re Canada Post Corp. the
employees wearing buttons, although not in uni
form, were on wicket duty in immediate contact
with the public. In Re Air Canada and Canadian
Air Line Employees' Assoc. (1985), 19 L.A.C.
(3d) 23 a union grievance was allowed with respect
to "I Support CALEA" buttons worn by airline
employees in uniform in contact with the public. In
Re The Crown in right of Ontario (Ministry of
Solicitor-General) and Ontario Public Service
Employees Union (Polfer) (1986), 23 L.A.C. (3d)
289 a grievance was upheld against an order to
remove a union steward's pin, on behalf of a
uniformed security officer with the Ontario Gov
ernment Protective Service who was sworn as a
special constable pursuant to the Ontario Police
Act [R.S.O. 1980, c. 381] and designated as a
guard under the Ontario Public Works Protection
Act [R.S.O. 1980, c. 426]. Among her other duties
was the controlling of demonstrations by other
unionized employees.
In the case at bar the applicants were in uniform
and were sworn as peace officers. While there may
be additional considerations to be taken into
account in the case of officers engaged in actual
police or security duty, I do not find it necessary to
distinguish the instant case, on the sole basis of the
wearing of a uniform, from Quan, where the
employees were also obviously in contact with the
public. 6 Aside from a context in which the officers
carry weapons, where there may be an added
element of inappropriateness, the wearing of a
uniform, as I see it, is but one factor to be taken
into account in determining whether the employer
can establish that the employee's conduct is detri
mental to its reputation or operations. I find no
warrant to distinguish on that basis alone the
Customs employees here from the Employment
and Immigration employees in Quan.
In my view, the Adjudicator's error of law in the
case at bar was, after having found that the mes
sage on the button was not offensive "to the vast
number" of viewers, then to go on to the question
of whether it "would be viewed favourably by all
Canadians or all visitors" and particularly to con
sider whether it "would not or could not possibly
have evoked comments or debate from passersby"
[the emphasis is mine]. To the same effect was his
conclusion that the wearing of the buttons "held
within it the potential for bringing the operations
of the employer into public confrontation or
6 The Adjudicator in Quan held that the wearing of the
button had the potential to damage customer relations and
jeopardize the employer's public image, a decision which obvi
ously presupposed the employees' contact with the public.
debate" (again, the emphasis is mine). Not only
should the Adjudicator have required evidence of
at least a real or serious possibility of harm to the
employer, but having already found that the mes
sage on the buttons was not offensive to the vast
number of viewers, he could not logically further
consider the issue of harm.
Moreover, despite having carefully, and in my
view, correctly, analyzed the message, the
Adjudicator appears to have entirely ignored it
subsequently. What he found harmful to the
employer was not the message itself, but only the
subordinate statement, "KEEP OUT DRUGS & POR
No", which was nothing more than a direct refer
ence to the Government's own policy and Bill.
Even if the employer were prepared to recognize
that its Bill were controversial, it cannot be heard
to argue that a supporting reference to it by its
employees is detrimental to its interests. Presum
ably, the Government takes the position that, at
least on balance, its legislative proposal is
advantageous.
If anything could be considered detrimental to
the employer, it would have to be the real message
on the buttons, which integrated the two separate
statements. But there was neither evidence nor
argument that the message as such was detrimen
tal, and the Adjudicator did not find it to be so.
Where the employee organization does raise
issues as to the employer's managerial policies, no
doubt it is not comfortable for the employer to
have such questions raised, even implicitly, in full
view of the public, but that consideration must
take second place to the employee's freedom to
express their concern about workplace issues vital
to their employee organization. That is to say that,
once an employee has established that the message
on his button represents a valid concern of his
employee organization, the onus shifts to the
employer to show a serious possibility of prejudi
cial effect. Failing that, the employees' interest in
what I might call "labour relations expression"
must prevail. This process may be spoken of, as
has sometimes been done in the labour relations
cases, as a balancing of interests, but it is a
balancing with a slight weighting in favour of
labour relations expression.
The respondent also argued the application to
these facts of the general principle "obey now,
grieve later". In my opinion the answer to this
issue was admirably stated by the Adjudicator
(Case, at page 14 PSSRB):
As to the disciplinary suspension, it is generally considered
that concepts such as "obey now, grieve later" and insubordina
tion do not lend themselves, but for exceptional circumstances,
to disputes relating to personal appearance. I rely upon Brown
and Beatty, Canadian Labour Arbitration (2d) at pages 427,
447 for guidance in that regard. A key factor is whether the
grievance process would have provided the grievors with ade
quate redress. The previous case of Williamson (supra) decided
by the Chairperson of this Board suggests that having the right
to refer such a grievance to an impartial tribunal is part and
parcel of the question of adequate redress.
IV
Having decided that the Adjudicator erred in
denying the grievances with respect to the suspen
sion from work, I must now determine whether the
grievances should also be allowed in relation to the
written reprimands.
The effect of paragraph 92(1) (b) of the PSSRA
is to limit the consideration of mere grievances to
the internal grievance procedure, and to allow
adjudication of grievances before an adjudicator
appointed under the Act only when they involve
"disciplinary action resulting in discharge, suspen
sion or a financial penalty". This has the effect of
denying third-party adjudication with respect to
grievances relating only to written reprimands.
But does paragraph 92(1)(b) also have that
effect when, as here, the written reprimands are
part and parcel of a disciplinary action which does
result in suspension, merely because the suspension
occurs first and the reprimands a few days later? I
find no necessity either from the viewpoint of
statutory interpretation' or from that of labour
relations so to interpret the law. Indeed, while the
matter may perhaps be neutral from the stand
point of the statute, I believe that labour relations
considerations require the adjudicatorial consider
ation of the two forms of discipline in situations
like the present.
Most forms of disciplinary action are com
municated to affected employees by some form of
written notice. Usually, such notice identifies the
nature of the misconduct, the employer's attitude
to it and the reason for disciplinary action. It
makes no sense to have an adjudicator assess the
correctness of a disciplinary suspension but not the
written justification for it.
In the case at bar the written reprimand focused
exclusively on the reason for which the Adjudica
tor found the disciplinary action of a one-day
suspension was imposed, as witness the relevant
part of the reprimand issued to the applicant
Almeida on February 5, 1986 (Case, at page 2):
On 31 January 1986 you were assigned to work in the
Customs Secondary Baggage Examination Area in Terminal 2.
During the course of your assigned shift you were informed
by A/Superintendent S. Gerstl to remove a Union button from
your uniform as this button was not official Departmental issue
and, futhermore, the wearing of this unauthorized button was
construed as conducting Union business on Departmental
premises.
Although the order to remove the button was repeated you
refused to comply and you were duly informed that possible
disciplinary action might result.
During discussion with B. S. Burns, Chief, Shift Passenger
Operations, Customs, you again refused repeated orders to
remove the Union button from your uniform and return to your
assigned work location.
As your refusal to comply with a legitimate order from your
Superintendent and the Senior Officer constitutes insubordina
tion you are being reprimanded in writing. In issuing this
written reprimand Management sincerely hopes that you real
ize the seriousness of your actions which were amplified by the
fact that a Senior Officer advised you of possible disciplinary
action.
' The only case the respondent was able to cite, Baril v.
Attorney General of Canada, [1980] 1 F.C. 55 (C.A.), was one
in which it was admitted on the facts that the grievance could
not be referred to adjudication under what is now paragraph
92(1)(b) and an unsuccessful attempt was made to justify
arbitration under paragraph 92(1)(a) as relating to the applica
tion of a provision of a collective agreement.
Further occurrences of this nature may result in more severe
disciplinary action.
Clearly, this subsequent reprimand is intended as a
written explanation of the events of January 31,
1986, supplemented by the threat of more severe
disciplinary action in the event of a repetition. It
can be seen only, I think, as the final stage of
management's response to the button-wearing
which precipitated the suspension, and in my opin
ion it must fall within the Adjudicator's jurisdic
tion unless the statute compels a different result.
The statutory provision, as I read it, does no
such thing. What it requires is that an adjudica
tor's review be conditional upon the existence of
disciplinary action leading to discharge, suspension
or financial penalty. Once that condition is satis
fied, as it is here, the statute has nothing explicit
to say about how extensive the adjudicator's juris
diction is. In my view not only is there no need to
read it restrictively, but to do so in these circum
stances would prevent his consideration of the full
disciplinary action.
I therefore conclude that the Adjudicator erred
in law in separating the employer's disciplinary
action into adjudicable and non-adjudicable
components.
V
In the result the application should be allowed, the
Adjudicator's decision of January 25, 1989, set
aside, and the matter returned to the Adjudicator
for reconsideration not inconsistent with these
reasons.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.