Custom officer’s letter crossed the line for border agency

Union official suspended for writing letter to U.S. government outlining concerns about agency’s recruitment and training

Vice-president of union takes concerns to U.S.

In the wake of the Sept. 11 terrorist attacks, the union for customs officers pushed for more tools to help them enforce security at the border, such as handguns. The union was also at odds with the Canada Border Services Agency (CBSA) regarding the fact students were allowed to perform front-line security checks with regular officers, despite the fact they had less training. John King, the union’s vice-president, finally felt the need to bring the union’s concerns to the attention of another stakeholder — the United States government.

King wrote a letter to Tom Ridge, the secretary for the U.S. Department of Homeland Security, about the union’s main concerns and how they might affect security at the Canada-U.S. border.

When CBSA learned of the letter, it wasn’t pleased. What ensued was a debate between the right of unions to criticize employers and how far that right goes.

An executive of a customs union has been reinstated after being suspended for sending written criticism of Canada’s border security to the United States Department of Homeland Security.

John King began working for the Canada Border Services Agency (CBSA) in 1989 as a customs inspector at Toronto’s Pearson International Airport. He was active in his union and rose up to the position of first national vice-president of the union in 1999. Once he got the job as vice-president, he worked full-time for the union and rarely worked as a customs inspector.

After the Sept. 11 terrorist attacks, the union had concerns about some of CBSA’s practices with regards to security and protection. King often spoke out about his displeasure with some of the practices, including the use of students in customs inspector roles. King felt union officials had more latitude to make these kind of statements as part of their position supporting union rights.

On Sept. 13, 2001, King told management he was considering writing to U.S. President George W. Bush about the security risks of CBSA’s use of summer students on the primary inspection line at the airport. CBSA felt he was trying to take advantage of the uncertainty after Sept. 11 to push his agenda. CBSA told King he should not write to President Bush and, if he did, he would risk discipline up to and including termination.

Letter to Homeland Security outlined security concerns

On May 25, 2004, King sent a letter addressed to Tom Ridge, the secretary of the U.S. Department of Homeland Security. The letter, written on union letterhead, explained King’s concerns about the recruitment and staffing of Canadian border officers. King said little had changed in recruitment practices and positions were open to non-Canadian citizens. He referred to more than 60 full-time officers with satisfactory evaluations who had been terminated after failing a mandatory training course and the hiring of student officers with much less rigorous training for the same jobs. He also brought up the fact Canadian customs officers did not carry firearms and were not in a position to stop major security threats.

On May 28, 2004, a representative of the homeland security department at the U.S. Embassy in Ottawa contacted CBSA and advised it of the letter.

CBSA agreed much of the letter was based on factual information but “not all of the relevant facts were conveyed.” For example, everyone hired, whether citizens or not, were subject to the same security clearance procedures and there were tools and procedures other than firearms customs inspectors had available to them. CBSA also thought it was inappropriate to raise “serious internal issues” with someone from a foreign government, especially given the sensitive climate between the U.S. and Canada regarding security and border co-operation. It felt King’s letter tried to incite fear, insinuate non-citizens were less trustworthy, left the impression Canada’s border security was lax and undermined CBSA’s commitment to joint border security.

CBSA convened a fact-finding meeting with King on July 8, 2004, during which King talked about sending a second letter to Ridge and releasing the original letter to “the House of Commons, the United States Congress, northern American states and the public at large.” CBSA explained that he shouldn’t be critical of the agency, especially to a foreign government as this could exacerbate issues between the governments. Some in management felt he had betrayed the Canadian government by undermining American confidence in its border security and he violated its Code of Ethics and Conduct regarding criticism of CBSA. King didn’t explain the letter nor did he apologize. After some additional back-and-forth communication about the letter, King filed a harassment complaint which was later dismissed.

Suspended for breaching duty of loyalty

On July 26, 2004, CBSA suspended King for 30 days without pay. It sent him a disciplinary letter that explained his letter to Tom Ridge sent without its knowledge was a breach of his duty of loyalty to the federal government by pointing out weaknesses in Canada’ border management policies to a foreign government. It also said his implication that non-citizens were a security risk was “offensive and contrary to the values of adhered to by the CBSA and the Canadian government as a whole.”

King filed a grievance, claiming he didn’t deserve a suspension and CBSA was interfering with his union duties and personally harassed him after it learned of the letter. He filed a second grievance saying CBSA violated his fundamental rights under the Canadian Charter of Rights and Freedoms.

The arbitrator said the fact King worked essentially full-time for the union made no difference in determining the employer’s right to discipline a union representative as he was still technically an employee of CBSA.

The arbitrator found the sentiment of CBSA management was that the security situation after Sept. 11 affected the scope of what King could do as a union official. However, the onus was on CBSA to prove the letter was outside of the scope of his duties as an advocate of union concerns.

Union position allowed worker to criticize employer

Though King had no authorization to contact foreign government official, the arbitrator found there was no proof that this authorization was needed. The employer’s Code of Ethics and Conduct, while covering criticism of CBSA, didn’t specifically prohibit contacts with foreign government officials. As a result, the arbitrator said King did not act outside the proper scope of his union role.

The arbitrator also found King was disciplined the same as any employee would have been without taking into account he was a union official deserving of extra latitude in criticizing management. There was no reference to his status in the letter and no mention of the past warning about writing a letter to the U.S. government.

The arbitrator didn’t support CBSA’s contention that King had malicious and reckless intent, since he didn’t disseminate it to anyone other than to whom it was addressed and American officials likely already knew of CBSA’s security classification requirements. “Just as the employer is entitled to express its views about labour relations in a public forum without first vetting its statements with the union, so too is a union representative, and particularly a full-time union official, entitled to public expression without prior vetting by the employer,” the arbitrator said.

Since King acted within the scope of his union role and his conduct was not malicious and the statements in the letter were not recklessly false, the arbitrator ruled CBSA did not have cause to discipline him.

CBSA was ordered to restore any salary and benefits King lost during the suspension and to remove any references to it from his personal file. See King v. Canada (Treasury Board — Border Services Agency), 2008 CarswellNat 3036 (Can. P.S.L.R.B.).
Highlights of John King’s letter

The intent of this letter is to provide you with information which may prove useful when assessing risk to public safety and security and which will hopefully attribute the further enhancement of border protection. At this time, I will focus on matters pertaining to the recruitment and staffing of front line officers protecting Canada’s borders.

Since the terrorist attacks of Sept. 11, 2001, little has changed as far as the recruitment and staffing practices for Canada’s first line of defence.

It is my understanding that one must be a U.S. citizen in order to be eligible to apply for a Customs and Immigration position in the United States. In Canada, however, such positions are open to non-Canadian citizens with permanent resident status or that have been issued a work permit....This may raise concerns as all Customs Officers, regardless of status, have access to our port of entry coding systems, electronic database, internal intelligence bulletins and other sensitive and protected information as well as the authority to release persons and goods.

Our options as officers on our nation’s “First Line of Defence” is to tactically reposition and withdraw and hope the threat is apprehended after entering our country. This could prove fatal should front line officers encounter weapons of mass destruction being smuggled into or out of Canada.

Any delay, which may result in the apprehension of criminals and/or terrorists with their weapons, is not in the best interest of public safety or security in either country.

To read the full story, login below.

Not a subscriber?

Start your subscription today!