FPSLREB Decisions

File: 161-2-788 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN CHRISTIAN LAMARRE Complainant and MICHEL GINGRAS and THE PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA

Respondents RE: Complaint under section 23 of the Public Service Staff Relations Act

Before: Yvon Tarte, Deputy Chairperson For the Complainant: Himself For the Respondents: Michel Paquette, The Professional Institute of the Public Service of Canada

Heard at Ottawa, Ontario, February 22, 1996

Decision Page 1 DECISION Mr. Lamarre has filed a complaint pursuant to section 23 of the Public Service Staff Relations Act in which he alleges that the respondents, Michel Gingras and the Professional Institute of the Public Service of Canada (PIPSC), have failed to "act in a non arbitrary or good faith in the representation of any employee in the unit". By way of remedy, the complainant requested that the Board issue an order that the "Union defend the complainant in a decent way when the complainant has a trivial case to win, so that the points relevant to this case be addressed and documented appropriately". Although somewhat disjointed, this complaint appears on its face to allege that the respondents have failed to properly exercise the duty of fair representation which is owed to the complainant pursuant to subsection 10(2) of the Public Service Staff Relations Act. The hearing of this matter was conducted in English at the request of the complainant.

Summary of Evidence Mr. Lamarre, an Information Standardization and Integration Officer, was asked by his supervisor in early 1995 to undertake a project for which he eventually prepared a planning document in late May 1995 entitled "Promotion/Population of Oracle Case Repository" (Exhibit C-2). The document contains several annotations penned in by the complainant's supervisor, Ms. Denyer.

Mr. Lamarre pointed out that the document which he prepared excluded any specific role or responsibility for his supervisor whose only function would of necessity be stricly advisory.

In early June 1995, the complainant began the implementation of the project. Without specifically consulting his supervisor and relying on his interpretation of exhibit C-2, Mr. Lamarre forwarded a survey to several persons in the National Capital Region.

This activity obviously displeased Ms. Denyer who served on the complainant a letter of reprimand which reads as follows (Exhibit C-3):

On June 9th, you distributed a survey to a number of people in NCR. This was after being instructed to take no such action until after the review and approval of a business case

Public Service Staff Relations Board

Decision Page 2 and my discussion with the managers of the personnel involved.

Your refusal to comply with my instructions has caused embarrassment and has obstructed the delivery of the organization's services.

Apart from this letter, no disciplinary measures are being considered at this time. However, I am taking the opportunity to stress the fact that in future I expect you to follow my instructions so that more severe disciplinary action will not have to be taken in this regard or in any other aspect of your performance and behaviour.

Since Mr. Lamarre believed that his planning document (Exhibit C-2) gave him sufficient authority to act in the manner he did, he filed a grievance (Exhibit C-4) to denounce the disciplinary sanction and the fact that it had been drafted in English.

In order to prepare his grievance, Mr. Lamarre communicated with his bargaining agent. Mr. Michel Gingras, an Employment Relations Officer with PIPSC, was assigned to the file. Mr. Gingras holds a bachelor's degree in Industrial Relations. He has worked in the field of labour relations for several years in different capacities and in different sectors. Mr. Gingras helped in the drafting and filing of the grievance document.

Mr. Gingras met with Mr. Lamarre on two or three occasions prior to the first level grievance hearing on August 30, 1995. In addition, Mr. Lamarre gave to Mr. Gingras a letter dated August 21, 1995 (Exhibit S-1) in which he sets out certain arguments which he would like to see advanced at the grievance hearing.

Messrs. Lamarre and Gingras met with Ms. Beverly Hopkins, Director General, Information Management and Technical Services, for a first level grievance hearing. Prior to this meeting, Mr. Gingras had asked the complainant to remain silent so as to let him present the case. Mr. Gingras testified that this request was prompted by the fact that Mr. Lamarre is considered an "irritant" in the department. Furthermore, that fact is what motivated Mr. Gingras to suggest that Mr. Lamarre not attend the hearing at the last level of the grievance process. Mr. Gingras testified pointedly that if he had

Public Service Staff Relations Board

Decision Page 3 wanted to represent the complainant unfairly, he would simply have asked Mr. Lamarre to be present at the last level hearing.

Mr. Lamarre testified that in his opinion, his representative lacked focus and detail in providing to Ms. Hopkins the elements of his defense. Mr. Gingras on the other hand produced handwritten contemporaneous notes used at both hearings during the grievance process. Those notes (Exhibit S-2) contained a full statement of defense in line with the points raised previously by Mr. Lamarre. Mr. Gingras indicated that even though the handwritten notes were not read verbatim before Ms. Hopkins or Ms. Martha Hynna, Assistant Deputy Minister, at the last level of the grievance process, all points listed in them were in fact advanced. Mr. Gingras also indicated that Mr. Lamarre made no comments to him on the quality of the presentation he had made to Ms. Hopkins.

Both grievance replies (Exhibits C-5 and C-6) referred to the planning document (Exhibit C-2) and Ms. Denyer's annotations. Also, both replies dealt with Ms. Denyer's supervisory authority over the complainant.

Following these hearings, Mr. Lamarre asked that his grievance concerning the letter of reprimand be referred to adjudication. Mr. Gingras repeated the comment he had already made to the complainant that the Public Service Staff Relations Act did not allow the reference to adjudication of this type of disciplinary sanction. Mr. Lamarre also inquired whether the letter of discipline could eventually be used against him in a system of progressive discipline.

ARGUMENT For the Complainant: Mr. Lamarre argued that the mere fact that his sure-winner grievance had been lost by Mr. Gingras, was proof that he had been poorly represented. The respondents had obviously failed to convince the employer that his arguments were sound.

Public Service Staff Relations Board

Decision Page 4 The complainant then tendered the novel though somewhat illogical argument that the bargaining agent should not have accepted to represent him in this matter, since in the end, its inability to refer the matter to adjudication practically eliminated the possibility of success.

For the Respondents: Subsection 10(2) of the Public Service Staff Relations Act sets out clearly the responsibilities of a bargaining agent in matters of fair representation. Furthermore, it was the complainant's responsibility to show that the bargaining agent or its representative acted in contravention of the statute.

Mr. Gingras' testimony clearly proves the opposite. Mr. Lamarre was properly represented. The arguments he wanted made, were in fact raised at all levels of the grievance process.

The fact that a grievance relating to a letter of reprimand cannot be referred to adjudication is not the fault of the bargaining agent and cannot be used to justify a complaint under subsection 10(2).

The Lamarre decision (Board files 161-2-741, 756, 764, 765, 770, 771, 772, 774 and 776) as well as the decisions in Canadian Merchant Service Guild v. Guy Gagnon and Laurentian Pilotage Authority, [1984] 1 S.C.R. 509, and Gendron v. Supply and Services Union of the Public Service Alliance of Canada, local 50057, [1990] 1 S.C.R. 1298 all support the respondents' position in this matter.

REASONS FOR DECISION Subsection 10(2) of the Public Service Staff Relations Act prohibits an "employee organization, or officer or representative of an employee organization, that is the bargaining agent, for a bargaining unit [to] act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit".

Public Service Staff Relations Board

Decision Page 5 Mr. Lamarre has not produced any evidence to show even remotely that the respondents violated the rights owed to him under subsection 10(2) of the Act. Quite the contrary, the evidence has shown that Mr. Lamarre was provided with fair and proper representation in his dealings with the employer while contesting his letter of reprimand. The fact that Mr. Lamarre's grievance was not successful speaks more to the fact that his grievance was by no means a "sure-winner" than to the quality of the respondents' representation.

Having had the benefit of observing Mr. Lamarre during his testimony and argument, I must conclude that the problem lies not with the representation he received, but rather with the fact that the complainant does not listen well to what others say nor does he accept the lines of authority which must exist in any workplace. Mr. Lamarre epitomizes the old saying: "he may have his faults, but being wrong isn't one of them".

For all of these reasons, the complaint of Mr. Lamarre is rejected.

Yvon Tarte, Deputy Chairperson

OTTAWA, March 13, 1996.

Public Service Staff Relations Board