FPSLREB Decisions

File: 161-2-751 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN PAUL D. LLEWELLYN Complainant and LINDA GARWOOD-FILBERT Respondent RE: Complaint under Section 23 of the Public Service Staff Relations Act

Before: Rosemary Vondette Simpson, Board Member For the Complainant: John Feldsted For the Respondent: David Landry, Public Service Alliance of Canada Heard at Winnipeg, Manitoba, November 23, 1995.

Decision Page 1 DECISION Mr. Paul D. Llewellyn complained under section 23 of the Public Service Staff Relations Act (the Act) that:

Regional Vice-President (RVP) Linda Garwood-Filbert acting on behalf of the Union of Solicitor General Employees component of the Public Service Alliance Canada withdrew two grievances respecting the complainant's suspension without pay for an indefinite period which the complainant had submitted to the employer 28 December 1994 without leave, instruction or permission from the complainant.

At the beginning of the hearing, Mr. Landry, representing the respondent, and Mr. Feldsted, representing the complainant, presented me with an Agreed Statement of Facts which reads as follows:

01.Paul Llewellyn is a Correctional Officer (CX-1) employed by the Correctional Service of Canada (hereinafter referred to as the CSC) at Stony Mountain Institution and a member of Stony Mountain Local 50026, Union of Solicitor General Employees - PSAC (hereinafter referred to as USGE).

02.Linda Garwood-Filbert is a Correctional Officer (CX-2) employed by the CSC at Stony Mountain Institution; and USGE Regional Vice President, CSC, Manitoba; and USGE Chief Trustee for Stony Mountain Local 50026.

03.On 22 December 1994 Mr. Llewellyn was suspended from work, without pay, for an indefinite period pending an investigation of alleged misconduct.

04.Mr. Llewellyn, the complainant, had been asked on December 22nd, by the employer if he wanted union representation and he declined.

05.On 28 December 1994 Ms. Lynn Ray, National President, USGE in Ottawa by facsimile requesting that representation for Mr. Llewellyn.

06.On 28 December 1994 Mr. Llewellyn filed two Grievances with the employer, hand delivered to Stony Mountain Institution by Mr. John Feldsted.

07.On or about 29 December 1994 Ms Garwood-Filbert removed the grievances filed by Mr. Llewellyn from the Personnel Department at Stony Mountain Institution. The

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Mr. Llewellyn contacted she arrange for union

Decision Page 2 complainant had not contacted the respondent prior to January 3, 1995. On or about December 29, 1994 the respondent was contacted by D. Weinez from Personnel about two grievances which had been signed by Mr. Feldsted. D. Weinez asked the respondent if it was alright for Mr. Feldsted to sign the grievances because he was not a shop steward at the time. The respondent said she would get direction and would get back to D. Weinez whereupon D. Weinez asked her to hold the grievances until she got back to her and the respondent did take the grievances.

08.On or about 04 January 1995 Ms Garwood-Filbert, acting on instructions from USGE National President Lynn Ray, contacted Mr. Llewellyn to offer union representation by either Mr. George Burns, an appointed Steward for Stony Mountain Local 50026 or Ms Diana Brown, Regional Representative, Public Service Alliance of Canada, Winnipeg Regional office. The respondent left a message on the complainant's telephone on January 3, 1995. The respondent and the complainant had telephone conversations on the 4th and 5th of January 1995.

09.Mr. Llewellyn chose Ms Brown as representative, and Ms Brown filed new grievances on behalf of Mr. Llewellyn 09 January 1995.

In addition to the Agreed Statement of Facts, some oral evidence was presented. The witnesses called on behalf of the complainant were Messrs. Edward Sokoloff and Jim Patton and the complainant himself.

Mr. Edward Sokoloff, a correctional officer at Rockwood Institution, formerly of the Stony Mountain Institution, testified that he had occasion to visit the latter Institution in December, 1994; his regular duties brought him there. As he entered the Institution, he met Ms. Linda Garwood-Filbert and asked her: “What’s new?” She then proceeded to tell him that Mr. Llewellyn had been suspended from his job because he had supposedly been caught stealing merchandise from a store. Mr. Sokoloff had known Ms. Garwood-Filbert for over 10 years and had worked with her at the Stony Mountain Institution during most of that time. He had socialized as well as worked with her and they were friends. He had not protested to her in any way the fact that she gave him this information; he just continued on about his business.

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Decision Page 3 Although he had worked closely with Mr. Llewellyn, they had not socialized to any great degree.

Mr. Jim Patton, a correctional officer recently retired from Corrections Canada, testified that on December 23, 1994 his post was the vestibule of the Institution. On that day, he overheard part of the conversation between Mr. Sokoloff and Ms. Garwood-Filbert. He only heard Mr. Llewellyn’s name and something about suspension before they moved out of the vestibule and “hushed up more”. This conversation ensued after Mr. Sokoloff asked Ms. Garwood-Filbert, “What’s new?”. He was friendly with Mr. Llewellyn at work but did not socialize with him. On December 22, he saw Mr. Llewellyn leave the workplace and knew that he had been sent home.

Mr. Paul Llewellyn testified that he has served approximately 11 years as a correctional officer. At the present time, he is a correctional officer at the Stony Mountain Institution. On December 22, 1994, he was suspended without pay for an indefinite period. He was called into the main office. When he attended in the office, he found two other officers there as well as two Winnipeg police officers. There he was shown a videotape which purported to show him engaged in shoplifting a box of cough drops. He did not ask for union representation at the time because he, himself, had been a shop steward and felt able to deal with the situation. Mr. Llewellyn indicated that he had no confidence in the union which was under trusteeship at the time. Later he was interviewed by the Warden. He did not get any opportunity to explain himself to the Warden before the latter suspended him indefinitely without pay. The Warden indicated to him that a Mr. Ken Thompson would investigate the allegations for a disciplinary hearing but that Mr. Thompson was on vacation and not available at present. Mr. Llewellyn was therefore to proceed on his suspension immediately. Mr. Llewellyn felt victimized by the way the administration handled the situation. He was in a dilemma with regard to union representation. He had no confidence in Mr. George Burns who was the grievance steward assigned to his squad. Neither had he any confidence in the other union stewards nor in Ms. Garwood-Filbert. During a period when Ms. Garwood-Filbert was a CX-3 correctional supervisor, she had occasion to write to Mr. Llewellyn to inquire about a damaged service revolver. Mr. Llewellyn felt "singled out from his peers" and discriminated against by Ms. Garwood-Filbert when she directed this inquiry to him. He had considered Public Service Staff Relations Board

Decision Page 4 harassment procedures against Ms. Garwood-Filbert relating to her handling of the damaged weapon situation. He in fact did not proceed with a harassment complaint. There was a poor relationship between Ms. Garwood-Filbert and Mr. Llewellyn. He did not trust her although he had always communicated correctly and politely with her. He saw a conflict between the role she played as a correctional supervisor looking into the damaged weapon situation and her role as the chief trustee of the local union.

On January 4, 1995, Mr. Llewellyn became aware, from Ms. Garwood-Filbert herself, that she had physically removed his grievances from Personnel. Mr. Llewellyn was very concerned about the processing of these grievances. He was a single parent with two children to support and he was suspended without pay.

Mr. Llewellyn was not convicted of anything. In fact, the criminal charges were withdrawn. In any case, the amount in question was only $1.20; he had placed this amount in change on the counter to pay for his purchase. The two original grievances (Exhibits R-1 and R-2) were signed by Mr. Llewellyn and Mr. Feldsted as his representative; however, they were not signed by the employer. Both of these grievances arose out of the indefinite suspension. Three grievances (Exhibits R-3, R-4 and R-5) were filed on January 12, 1995. All three of these grievances relate to the indefinite suspension and there was nothing in the first two grievances that was not covered in the three grievances which were filed on January 12, 1995. They were substantially the same except for the difference in time of submission. These grievances were the three grievances filed on January 12, 1995 by Ms. Dianna Brown of the Winnipeg regional office of the Public Service Alliance of Canada (PSAC). Ms. Brown, in addition to filling out the grievances, also represented Mr. Llewellyn at the disciplinary hearing before the Warden on January 9, 1995. At this disciplinary hearing, Mr. Llewellyn’s indefinite suspension was reduced to a 15.5-day suspension. Mr. Llewellyn had no complaints about the representation he received from Ms. Brown at the meetings of January 9 and 28, 1995. He also had no complaints about the representation he received from Ms. Patricia Davis who represented him on his grievance at the regional level in Saskatoon. Nor did he have any complaints about Ms Linda McLaughlin who represented him at the final level of the grievance process in Ottawa. Just prior to the final level hearing, the suspension was again reduced, this time to a 10-day suspension. This grievance, having gone through the various levels of the grievance process, is now awaiting scheduling at adjudication. Public Service Staff Relations Board

Decision Page 5 When Mr. Llewellyn met with the Warden on December 22, 1994, he was offered union representation but he declined it because he stated he had no faith in the trusteeship of the local union. He had no faith in any of the stewards appointed by the trustees. When Mr. Llewellyn was called by Mr. Thompson on January 8, 1995, he informed Mr. Thompson that he wanted a union representative and that he would bring one with him. Mr. Llewellyn testified that he made no attempt to contact Ms. Garwood-Filbert between the date of his suspension on December 22, 1994 until January 4, 1995 after she had called and left a message and phone number for him on his telephone center. When he talked to Ms. Garwood-Filbert on January 4 and 5, it was established that he had two choices for union representation: Mr. George Burns, one of the stewards in the local union, or representation by someone from the regional office of the PSAC. Mr. Llewellyn had sent a facsimile to Ms. Lynn Ray, President of the Union of Solicitor General Employees (USGE), and explained his problem to her. In addition, Mr. Llewellyn had already been in touch with the regional office and had spoken to Mr. Larry Gagnon who is the regional representative of the PSAC. This was before Ms. Garwood-Filbert spoke to him on January 4 and 5, 1995.

In cross examination, Mr. Llewellyn characterized Ms. Garwood-Filbert’s letter to him of November 8 inquiring about the damaged weapon as a “disciplinary letter”. He objected to the fact that in her capacity as a CX-3 correctional supervisor she would be sending him a letter of this nature and at the same time was head of the local union. He felt she had a conflict of interest. The witness also stated that he did not call Mr. Burns between the time of his suspension on December 22, 1994 and January 3, 1995. He gave as his reason that he preferred someone more competent to represent him. He was very resentful of the fact that he was suspended without pay over the Christmas season without a disciplinary hearing and the fact that the disciplinary hearing had to await the return of Mr. Thompson who was on vacation.

In re-direct, Mr. Llewellyn used the term “withdrawal of grievances” to describe Ms. Garwood-Filbert’s action in taking the documents from the Personnel Department. Later, when closely questioned, the witness stated that he did not recall whether Ms. Garwood-Filbert had herself used the term “withdrawn” or the term “pull the grievances” or had just stated that she had removed or took the grievances. Mr. Llewellyn was questioned about writing to the PSAC about a number of specific complaints he had against Ms. Garwood-Filbert. When questioned about his Public Service Staff Relations Board

Decision Page 6 complaints concerning Ms. Garwood-Filbert, Mr. Llewellyn admitted that he had not said a word of complaint about her “withdrawing” or “pulling the grievances”. Mr. Llewellyn agreed that on December 28 when Mr. Feldsted submitted the first two grievances to the employer he knew that because it was a disciplinary matter he did not need a shop steward to file them; he could choose any representative he wished. He was asked whether or not he had informed Ms. Garwood-Filbert of this fact on January 4 and 5, 1995 when he spoke to her and when she indicated to him her procedural concerns and the perceived need to look into the correct filing of the grievances since Mr. Feldsted, who was not a shop steward, had filed them. Mr. Llewellyn agreed that he had not said anything to Ms. Garwood-Filbert about this fact when he spoke to her on January 4 and 5. Mr. Llewellyn reiterated his lack of trust of Ms. Garwood-Filbert. He made it clear that she was the only one that he was directing his complaints against. He had no complaints about the way the Union of Solicitor General Employees (USGE) and the PSAC had represented his interests.

The next person to give evidence was Ms. Dianna Brown who was a regional representative in the PSAC Winnipeg regional office at the time in question. The two grievances (Exhibits R-1 and R-2) came by fax to the Winnipeg regional office on January 6, 1995. On January 4, prior to receiving the fax, Ms. Brown had talked to Ms. Garwood-Filbert who had telephoned the regional office looking for Mr. Larry Gagnon, another regional representative. At that time, Ms. Garwood-Filbert indicated that she had been talking to the USGE component in Ottawa. Arrangements were made through Mr. Mike McTaggart, Director of Organization, PSAC, to have one of the regional representatives represent Mr. Llewellyn. It was assigned to Ms. Brown. Ms. Brown was asked whether Ms. Garwood-Filbert had said anything about “withdrawal” of Mr. Llewellyn’s grievances and she answered in the negative. She was also asked whether anyone at anytime had said anything to her about an allegation that Ms. Garwood-Filbert had withdrawn Mr. Llewellyn’s grievances and she answered to this also in the negative. On January 12, 1995, she filed three grievances with the employer (Exhibits R-3, R-4 and R-5); these were signed by her and Mr. Llewellyn. She and Mr. Gagnon had discussed the wording and made some changes to the original grievances. Mr. Llewellyn indicated that he had no problem with the new wording. Ms. Brown represented Mr. Llewellyn on January 9, 1995 at the disciplinary hearing and also represented him before the Warden in late January.

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Decision Page 7 Argument for the Complainant The complainant’s representative argued that Mr. Llewellyn’s right to file a grievance had been interfered with. Early filing was imperative because Mr. Llewellyn had been suspended without pay and he had limited resources. There was personal animosity in the relationship between Mr. Llewellyn and Ms. Garwood-Filbert. Following his suspension on December 22, 1994, there was no communication between Mr. Llewellyn and Ms. Garwood-Filbert or with any other officer of the local until January 4, 1995, some 13 days later. Mr. Llewellyn had filed his grievances on December 28, 1994 and believed that these would be attended to while he was arranging his union representation. Ms. Garwood-Filbert removed Mr. Llewellyn’s grievances from the Personnel Department and kept them. He urged that I conclude that she did not intend that these original grievances be processed. Mr. Llewellyn’s rights were interfered with by Ms. Garwood-Filbert. Since Mr. Llewellyn’s grievance was a disciplinary grievance, it did not require union approval. He argued that the actions taken by Ms. Garwood-Filbert with regard to Mr. Llewellyn’s grievances contravene paragraph 8(2)(c)(ii) of the Act. Since Mr. Llewellyn’s grievances did not require union support nor were they filed on behalf of the union, Ms. Garwood-Filbert had no right to take the documents. As a result of her actions, the employer was given more time to reply.

Prior to January 6, 1995, the grievances were the property of Mr. Llewellyn and the bargaining agent not being a party to them, had no right to access the documents.

While the union cannot control rumors in the workplace, it is poor form for a union official to engage in rumor spreading about alleged wrongdoing. The union official who did this would be considered to be not acting in good faith contrary to subsection 10(2) of the Act. Mr. Feldsted asked that I issue the orders requested in the complaint, especially numbers 1 and 3.

Argument for the Respondent The respondent’s representative argued that Mr. Llewellyn was not prejudiced by any delays in the processing of his grievances. The disciplinary hearing was only held on January 9, 1995. As a result of that hearing, he was allowed to go back to work on January 10. There was never any question of withdrawing the grievances.

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Decision Page 8 When the initial grievances (Exhibits R-1 and R-2) were faxed to Ms. Dianna Brown on January 6, 1995, the wording was changed and it was decided to make three grievances instead of two. This was as a result of a discussion between Mr. Gagnon and Ms. Brown. Any statement made to Mr. Sokoloff was a matter of public knowledge. In fact, realistically, when someone is sent home from work people will ask questions - What is going on? - and people may very well respond to that.

Reasons for Decision Paragraph 8(2)(c)(ii) and subsection 10(2) of the Act read as follows: 8.(2) Subject to subsection (3), no person shall (c) seek by intimidation, threat of dismissal or any other kind of threat, by the imposition of a pecuniary or any other penalty or by any other means to compel an employee

(ii) to refrain from exercising any other right under this Act.

10.(2) No employee organization, or officer or representative of an employee organization, that is the bargaining agent for a bargaining unit shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit.

Mr. Llewellyn’s position was that Ms. Garwood-Filbert withdrew the grievances which he had submitted on December 28, 1994. They were in fact never withdrawn.

The initial grievances were never signed as received by the employer. The initial grievances were simply re-worded and separated into three grievances. All witnesses agree that these were substantially the same as the first ones. The Department’s Personnel Office expressed concern about their possible invalidity because they lacked official union support. In response, Ms. Garwood-Filbert took the grievances and sought direction on this point. There was no bad faith in her dealings with the grievances. Indeed, no time limits were breached. The grievances were processed through all levels of the grievance process and are now on the list for adjudication. Mr. Llewellyn was not prejudiced by the delay in filing the three grievances which replaced the first two. There is no suggestion that the rewording of

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Decision Page 9 the two initial grievances into the three presently pending grievances is prejudicial to the complainant.

It was on or about December 29, 1994 that Ms. Garwood-Filbert took the grievances. This was followed by the New Year’s weekend and holidays which ended on January 2, 1995. On January 3, Ms. Garwood-Filbert left a telephone message for Mr. Llewellyn on his message machine. On January 4, she again telephoned him and she also spoke to Ms. Brown at the regional office about arrangements for special representation for him through that office.

Since Mr. Thompson, who was assigned to do the disciplinary investigation, was away on holidays, the disciplinary hearing was not held until January 9, 1995. Mr. Llewellyn was allowed to go back to work the day following the disciplinary hearing. There is no evidence that this could have happened any faster if the original grievances had remained in the Personnel Office.

Ms. Garwood-Filbert was the chief trustee of the union local and so she was the logical person to be approached by Personnel for consultation about Mr. Llewellyn’s grievances. She was carrying out the duties of her union position when she undertook to look into the matter of their validity on his behalf. As it turned out, the grievances were not the type of grievances which required union support.

It was not until January 4, 1995 that Mr. Llewellyn learned that Ms. Garwood- Filbert had been involved with his grievances. In the same conversation in which she informed him of that fact she also informed him that he would have a special opportunity to be represented by someone outside the local. Arrangements had been made whereby he could choose to be represented by someone from the regional office rather than by the local union. On the same day, Ms. Garwood-Filbert was also in touch with Ms. Brown of the regional office to discuss these arrangements. It would appear that Ms. Garwood-Filbert was very diligent in representing Mr. Llewellyn’s interests and acted with great alacrity on his behalf.

The substance of the two initial grievances was incorporated in new wording in three separate grievances. Mr. Llewellyn testified that he was happy with the new wording and signed them. He was also happy with Ms. Brown and the others who represented him at the various levels of the grievance process. I do not accept the

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Decision Page 10 argument that Mr. Llewellyn’s proprietary rights in the grievances were infringed in any way. Neither do I accept the argument that Ms. Garwood-Filbert’s actions in revealing to Mr. Sokoloff the fact that Mr. Llewellyn had been suspended constituted a breach of the provisions of the Act relied upon by the complainant. Others knew that he had been sent home. There is no evidence of any bad faith on her part.

After reviewing all of the evidence, I find that there was no breach of either paragraph 8(2)(c)(ii) or subsection 10(2) of the Act.

Rosemary Vondette Simpson, Board Member

OTTAWA, January 31, 1996.

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