FPSLREB Decisions

Unfair labour practice - Complaint under paragraph 23(1)(a) of the Public Service Staff Relations Act alleging a violation of subsection 10(2) thereof - Duty of fair representation - the complainant had been authorized by his supervisor to attend a work-related conference which was to be conducted on board a cruise ship - on the strength of that authorization, he had bought a ticket for the cruise for his wife and had arranged to take some annual leave at the end of the cruise to enable him and his wife to visit some relatives in Florida - subsequently, the employer advised the complainant that it was withdrawing its authorization and that he was not to attend the conference on board the cruise ship - the complainant decided to purchase his own ticket and to accompany his wife on the cruise - however, he did not participate in the conference - following an investigation, the employer imposed a five-day suspension upon the complainant and ordered him to reimburse the employer for the cost of the conference and the cruise, being $2800 - the complainant consulted his bargaining agent - B, the representative of the bargaining agent who had been assigned responsibility to deal with the matter, read only the first and last page of the employer's investigation report which the complainant had provided to him - B did not undertake any independent investigation of the matter - throughout his dealings with the complainant, B was under the misapprehension that the complainant had participated in the conference, contrary to the employer's specific instructions - B repeatedly advised the complainant that he should admit his guilt and then they would attempt to obtain a reduction in the penalty imposed - the complainant rejected this suggestion - at B's suggestion, the complainant made his own representations at the first and second level of the grievance process, although B accompanied him - his grievance was denied at both levels - D, the bargaining agent's National Secretary Treasurer, represented the complainant at the final level of the grievance process without having spoken with him and also without having conducted any independent investigation - D was under the same misapprehension regarding the complainant's participation in the conference as was B - after the employer denied the complainant's grievance at the final level of the grievance process, D advised the complainant that the bargaining agent would not be representing him at adjudication, as they did not believe there was any chance that his grievance would succeed - D did not advise the complainant that he could refer the grievance to adjudication himself - nor did D advise him regarding the time limit involved - the Board found that the duty of fair representation imposed an obligation on the bargaining agent to conduct a thorough study of the facts of the case - the bargaining agent failed to meet this obligation and, in so doing, its representation of the complainant was arbitrary - accordingly, the Board allowed the complaint - the bargaining agent also failed in its obligation to advise the complainant of his right to proceed to adjudication on his own and of the time limit within which to do so - the Board directed the bargaining agent to represent the complainant on an application to the Board for an extension of time to refer his grievance to adjudication, pursuant to section 63 of the P.S.S.R.B. Regulations and Rules of Procedure, 1993 - the Board also ordered the bargaining agent to represent the complainant at adjudication, if it was successful in obtaining the extension of time. Complaint allowed. In allowing the complaint, the Board stated the following at paragraphs 125 to 127 of the decision: [125] I believe the current state of the law in Canada according to the existing jurisprudence can be summarized as follows. The power conferred upon a union, as such is found in subsection 10(2) of the PSSRA and other similar legislation, to act as spokesperson for the employees of a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit. For matters involving a complaint of unfair representation, as in section 23 of the PSSRA, the examination of the union's actions includes the union's decision to represent or not represent the member at all levels, including during the grievance process, as well as the union's decision to represent or not represent the member at arbitration. [126] When representation is undertaken by the union, such representation must be fair, genuine and not merely apparent. It must be undertaken with integrity and competence, without major negligence, and without hostility towards the employee. When a consideration is made in regard to arbitration, it is recognized that the employee does not have an absolute right to arbitration for the union enjoys considerable discretion in the making of this decision, but that discretion has limits based on the severity and impact of the disciplinary action upon the employee. The union's discretion must be exercised: a) in good faith, objectively and honestly; b) after a thorough study of the grievance and the case, and not merely cursory or perfunctory; c) having pondered all relevant considerations of the case; d) taking into account the significance of the grievance for the member and its consequences for the member; e) taking into account the legitimate interests of the union; f) with regard to proper motives only. [127] In the final analysis, the union's decision vis-à-vis the representation of its members will not be disturbed absent the elements of bad faith, or actions which are arbitrary, capricious, discriminatory or wrongful, providing that the union has met the criteria above. Cases cited: Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, [1990] 1 S.C.R. 1298; Rayonnier Canada (B.C.) and International Woodworkers of America, Local I-127, [1975] 2 Can. LRBR 196; Morin v. Ford (148-2-163); Charron v. Lafrance (448-H-4); Centre Hospitalier Régina Ltée v. Judge Bernard Prud'homme and the Labour Court and Cécile Montigny, [1990] 1 S.C.R. 1330; Sophocleous v. Pascucci (161-2-861); Re Korpan, [1999] S.L.R.B.D. No. 5; Jacques v. Public Service Alliance of Canada (161-2-731); Richard v. Public Service Alliance of Canada (161-2-1119); Lipscomb v. Public Service Alliance of Canada (161-34-1127); International Longshore and Warehouse Union, Ship and Dock Foremen, Local 514 v. Empire International Stevedores Ltd., [2000] F.C.J. No. 1929 (F.C.A.)