FPSLREB Decisions

I. Complaints before the Board

1 On October 18, 2004, Carole Laplante ("the complainant"), Manager, Library, Communications Research Centre, Industry Canada, filed a letter with the Public Service Staff Relations Board ("the Board") setting out complaints against Charles Murray, Norman Brookings and Sue Osborn. One of the allegations set out in that letter is that those three persons, in their capacity as union representatives, violated subsection10(2) of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("the former Act"). On May 27, 2005, the Board acknowledged reception of the letter containing the complaints against the union representatives and notified the parties that in accordance with the Public Service Modernization Act, S.C. 2003, c.22, ("the PSMA"), the complaints would be dealt with under the Public Service Labour Relations Act, S.C. 2003, c.22 ("the new Act").

2 According to the respondents' reply, written by Jacquie deAguayo and received by the Board on July 20, an analysis of the matter did not show that the bargaining agent or its representatives acted in a manner that was arbitrary, discriminatory or in bad faith in representing the complainant.

3At the beginning of the hearing, counsel for the respondents raised a preliminary objection that a number of Ms. Laplante's allegations had to do with internal union governance and that the Board did not have jurisdiction to hear those aspects of the complaints. Ms.Laplante essentially asserted that her complaints have nothing to do with internal union governance but rather with representation problems.

4 I informed the parties that I would deal with the preliminary objection after hearing the evidence and the parties' arguments on the matter as a whole.

5 On April 1, 2005, the new Act, enacted by section2 of the PSMA, was proclaimed in force. Under section 39 of the PSMA, the Board remains seized with these complaints, which must be dealt with under the new Act.

II. Summary of the evidence

6 Ms.Laplante testified about the incidents giving rise to her complaints. She has worked in the public service for 27 years and occupies a position a manager position at the Communications Research Centre library. At the time of the incidents giving rise to the complaints, four female employees reported to her, and she reported to Rob Millar, Director, Informatics and Information Services Directorate. She was also responsible for developing the virtual library and electronic information services.

7 On May 26, 2003, Mr.Millar informed Ms.Laplante that the employees reporting to her were making informal complaints about her management. She met with Mr.Millar, and they agreed that she should discuss the matter with the employees reporting to her. As well, Richard Lachapelle, Acting Director, Human Resources, warned her not to discuss the situation with the employees reporting to her without the presence of the union and not to meet with the union without the presence of a representative of the employer. She called the employees reporting to her to a meeting the following day at 13:30. On the morning of May 27, 2003, she learned that the union had also called a meeting between her and the same employees. When she arrived at the meeting room the employees were already there, accompanied by twounion representatives, Sue Osborn and Charles Murray. Ms.Laplante then told the employees that the meeting was with them and was neither a performance appraisal nor a disciplinary meeting and asked the union representatives to leave the room. They retorted that they were present at the employees' request and did not want to leave. Mr.Murray added that he would remain in the room because the issue was probably harassment.

8 Ms.Laplante testified that at that point she was somewhat taken by surprise, since she was not expecting such a remark. She then stated that she had a responsibility to resolve the conflict and that she and the employees should discuss it among themselves. Mr.Murray stated that he did not recommend that the employees have contact with her without passing it by the union. Ms.Laplante testified that she then left the room.

9 The union representatives then met with Mr.Millar, who subsequently met with Ms.Laplante. Mr.Millar told Ms.Laplante that Mr.Murray had informed him that there had been allegations of harassment. Ms.Laplante testified that on May 28, 2003 she met with Lise Bossy, who was in charge of labour relations for Human Resources. She told Ms.Bossy that she was the subject of harassment allegations but that she was unaware of the incidents giving rise to them. She obtained information about the procedure in such matters.

10 The following day, May 29, 2003, Ms.Laplante met with Mr.Lachapelle, telling him that she cancelled the meeting with the employees because harassment allegations were made. Mr.Lachapelle then told Ms.Laplante that he would meet with Ms.Brooks, Director, Labour Relations, and attempt to resolve the situation that same day. At the same time, he told Ms.Laplante that it was "downtown" that dealt with harassment cases. Although they discussed the possibility of mediation, I gathered from Ms.Laplante's testimony that at the time, she was not comfortable with such an approach.

11 During the day on May 29, 2003, the complainant also met with Ms.Bossy, Mr.Millar and Mr.Lachapelle to discuss the situation. According to Ms.Laplante's testimony, Mr.Lachapelle told her that in accordance with the policy on harassment, employees had the right to request a meeting with their supervisor. It was agreed that with the help of one of the employees concerned, an attempt would be made to coordinate a meeting between the three employees, Mr.Millar, the union representatives and Ms.Laplante. The meeting was scheduled for June 10, 2003.

12 Ms.Laplante testified that at that time there was an atmosphere of tension at the library, particularly with one employee who did not produce reports on her work. As well, it was the time for completing performance evaluations, and Ms.Laplante had told the employees that she was initiating this procedure.

13 Ms.Laplante testified that before the meeting, on the advice of FrançoisNadeau of the Federal Centre for Workplace Conflict Management, whom she met on June5, 2003, she contacted Mr.Brookings, President of the union local, to formally request representation. She told Mr.Brookings that she was an active union member who had walked picket lines. Mr.Brookings suggested that she contact Joseph Zebrowski of the National Component, Public Service Alliance of Canada (PSAC).

14 That same day, June 9, 2003, the complainant sent an email to Mr.Brookings (Exhibit P-4) informing him that Mr.Millar had called a meeting with the employees for the following day and stating that she wanted her union representative, with whom she had not yet spoken, to be present at the meeting.

15 Ms.Laplante testified that when she contacted Mr.Zebrowski, he told her that in harassment cases the union's policy is not to represent the employees and that this policy applied not only to the union local but also to the PSAC as a whole. Ms.Laplante then sent an email to Mr.Brookings (Exhibit P-5), telling him that she found it unfair that the other employees concerned could have the benefit of representation while she could not.

16 Ms.Laplante wrote to Mr.Zebrowski, asking him for a copy of the policy and informing him that Mr.Brookings appeared to think that since no formal complaints had yet been filed, the policy did not apply (Exhibit P-6). Ms.Laplante adduced the document she received from her union (Exhibit P-7). She then asked Mr.Brookings to identify the union local officer responsible for dealing with harassment cases; she was told that this responsibility was not assigned to anyone in particular.

17 The June 10, 2003 meeting took place without the complainant. The following day, Ms.Laplante met with Mr.Millar, who outlined to her the main points of the concerns of the employees reporting to her.

18 On June 17, 2003, Mr.Brookings asked Ms.Claude Bélanger to represent Ms.Laplante, which did not please the complainant. Ms.Laplante testified that she wanted to be represented by a "competent representative" from the National Component. She also told Mr.Brookings that she had concerns about Ms.Bélanger's objectivity, stemming from the fact that twoyears previously, Ms.Bélanger had failed to qualify in a competition organized by Ms.Laplante. Mr.Brookings responded that it was a local matter and that it would not be referred to the National Component. Ms.Laplante stated that on June 17, 2003 she received a telephone call from Ms.Bélanger, apparently telling her that the National Component would not become involved in the matter because no complaints or grievances had yet been filed.

19 Ms.Laplante continued to testify, stating that on August 5, 2003 a meeting took place between herself, the employees reporting to her, Ms.Osborn and Mr.Millar. At that meeting, Mr.Millar stated that in his opinion, the situation involved conflict but not harassment and suggested mediation to resolve it. Ms.Laplante stated that Ms.Osborn asked her whether she agreed with that suggestion and that sheanswered in the affirmative. Mr.Millar then stated that the mediation meeting would take place as soon as possible.

20 Ms.Laplante testified that three days after the meeting at which the parties agreed to mediation, the employees filed grievances alleging harassment. The grievances really upset her, since she thought that the conflict was well on the way to being resolved. She testified that she found the situation very difficult. She experienced stress, insomnia and many other symptoms. She then consulted her physician, who recommended that she take threeweeks of sick leave. She extended that leave using annual leave, returning to work on October 6, 2003. At that time, she read the complaints against her, which had been filed on September 19, 2003.

21 Ms.Laplante testified that under the Access to Information Act she obtained a copy of an email that Ms.Osborn sent to Mr.Murray and to two of the three employees and copied to Ms.Bélanger and Mr.Brookings (Exhibit P-10). In Ms.Laplante's opinion, this email established that Ms.Bélanger was informed of the situation from the outset and that it was untrue to allege, as did the union representatives, that Ms.Bélanger was not informed of the situation to maintain her objectivity.

22 Ms.Laplante adduced an October 15, 2003 email exchange between her and Ms.Bélanger (Exhibit P-11). In that exchange, Ms.Laplante asked Ms.Bélanger to identify the union local officer responsible for preventing and resolving harassment. Ms.Bélanger told her that this responsibility was not assigned to anyone in particular at the union local and offered to act as an impartial observer if Ms.Laplante so wished. Ms.Bélanger stated that the other union members who worked with the employees reporting to Ms.Laplante made sure not to disclose any aspects of the matter to her. Ms.Laplante retorted that she did not believe that Ms.Bélanger could act as an impartial observer, since she had been designated as the chief shop steward. Ms.Bélangeranswered that Ms.Laplante might be right, and suggested exploring whether this possibility was feasible; otherwise another approach would be used.

23 On October27, 2003, Ms.Laplante asked Ms.Bélanger that a bilingual person from the National Component be appointed to oversee the progress of the inquiry (Exhibit P-12). As well, in accordance with Policy 23A -PSAC Anti-Harassment Policy: The Workplace(Exhibit P-7), Ms.Laplante asked to receive a copy of the complaint evaluation forms that she thought Mr.Murray was supposed to complete. Ms.Laplante testified that on October 29, 2003, Mr.Brookings told her that the union did not use the forms referred to in the policy and that the National Component would not become involved since it was a local matter. Ms.Laplante informed him that she was going to file a complaint and asked whom she should contact. Mr.Brookings referred her to Mr.Zebrowski of the National Component. Since Mr.Zebrowski was absent for sixmonths, Ms.Laplante was referred to Linda Vaillancourt, to AndréeLemire and eventually to FredBissagar, all of the National Component. Finally, on November 4, 2003, she sent an email (Exhibit P-15) to André Albert of the National Component, asking him to intervene to identify a person at the National Component who could act as an impartial observer at the harassment inquiry. Allegedly no follow-up was ever made to this request.

24 Ms.Laplante testified that she asked Ms.Bélanger in an email (Exhibit P-17) whether the grievances had been withdrawn. Ms.Laplante noted that according to the Treasury Board of Canada's Policy on the Prevention and Resolution of Harassment in the Workplace (Exhibit P-18), employees only have the right to use one recourse procedure. Ms.Bélanger did not respond. Ms.Laplante added that Ms.Bossy from Labour Relations approached her about the possibility of mediation. Ms.Laplante stated that she was prepared to take part in mediation but on a person-to-person basis. No follow-up was made to that suggestion.

25 Ms.Laplante stated that the first harassment inquiry lasted until mid-June 2004. She added that she was on sick leave from January15t o September 7, 2004, returning to work in November2004. She adduced in a bundle a series of medical certificates covering the period from the initial incidents until March2006 (ExhibitP-19). When she returned to work, she was assigned to another building; she only returned to the library in May 2006. She testified that the first inquiry was abandoned and that mediation was then attempted. She testified that during the mediation, Ms.Osborn and the employees who had filed the complaints insisted that she be removed from her position. She received a settlement proposal on that regard. When she returned to the library, the employees who had filed the complaints were no longer there. She had not been replaced during her absence. She testified that the second inquiry began in December 2004 and ended in July 2005. On August 5, 2005, Ms.Laplante read the report of that second inquiry, which found that the allegations of harassment were unfounded.

26 Ms.Laplante further testified that she then filed a grievance contesting the fact that the employer allowed the employees to file harassment complaints even though they had already filed grievances on the same matter. Ms.Laplante emphasized that the employer's policy gave employees the right to use only one recourse procedure. According to the employer's response (Exhibit P-22) adduced by Ms.Laplante, the employer considered it appropriate to proceed by means of a harassment inquiry in an attempt to resolve the situation in the workplace.

27 Ms.Laplante also adduced a document drawn up during the first inquiry that set out the facts and that was countersigned by Ms.Osborn (Exhibit P-23), as well as her collective agreement, the Constitution and Regulations of the Public Service of Canada (Exhibit P-24), the PSAC National Component By-laws, Regulations, Policies and Guidelines (Exhibit P-25) and the union local 70183 Regulations (Exhibit P-26). She testified that she sent an email to Mr.Bissagar in July2004 requesting his opinion on the quality of the threereports that she had just received from the person who conducted the first inquiry (Exhibit P-28). In his response, Mr.Bissagar noted that the employees' grievances had been suspended during the inquiry and that he was unable to comment on the truthfulness of the reports' contents.

28 Ms.Laplante testified that on December 1, 2004, she wrote to HeatherBrooker, National Component President, noting that on October 25, 2004 she had sent Ms.Brooker complaints under Policy 23B -PSAC Anti-Harassment Policy:The Union and asking that a committee of inquiry be established. She also adduced an email exchange between herself, Ms.Lemire and DanielKinsella, National Component Vice-President (Exhibit P-30). In a January 5, 2005 email, Mr.Kinsella stated that there might have been problems with that policy's application and that he wanted to discuss the possibility of mediation as part of the employer's inquiry.

29 Ms.Laplante adduced an email exchange she had with Mr.Brookings (Exhibit P-31) that in her opinion established that the conversations were quite tense and that there was a lack of trust. On April 5, 2005, she sent an email to Ms.Brooker (Exhibit P-33) requesting an update on the committee of inquiry that she felt the union should create, following her complaint under Policy 23B - PSAC Anti-Harassment Policy: The Union against the union representatives with respect to the application of Policy 23A - PSAC Anti-Harassment Policy: The Workplace. She complained that the union did not respond and asked whether union local members could apply for positions on the Executive Committee if they were under investigation.

30 As well, Ms.Laplante adduced an email exchange from early June 2005 in which Ms.Osborn and Mr.Brookings complained about receiving correspondence from Ms.Laplante in French (Exhibits P-34 and P-35).

31 Ms.Laplante adduced a May 23, 2003 email (Exhibit P-36) to Ms.Osborn from one of the employees concerned, stating that the group of employees agreed to meet with Mr.Millar and Ms.Laplante, even if Ms.Laplante might have the impression that the others were in league against her.

32 Ms.Laplante adduced a May 30, 2003 email in which Ms.Osborn asked Mr.Millar to call a meeting with the three employees and their union representative (ExhibitP-37).

33 Ms.Laplante adduced a series of emails that she sent to Ms.Brooker and EdCashman, Executive Vice-President, National Capital Region, the PSAC, with respect to the follow-up to her complaint under Policy 23B - PSAC Anti-Harassment Policy: The Union (ExhibitP-38).

34 Ms.Laplante adduced the statement signed by Mr.Murray at the time of the first inquiry (ExhibitP-39), a letter from Lucie A. Savage, Mediator and Consultant, who conducted the first inquiry (ExhibitP-40), and the settlement proposal and its accompanying email (ExhibitsP-41 and P-42). She adduced the August 3, 2005 letter confirming that the harassment allegations made against her were declared unfounded (ExhibitP-43) as well as the  final reports of the inquiry into the complaints filed by the threeemployees (Exhibits P-44, P-45 and P-46).

35 Ms.Laplante continued to testify, criticizing Mr.Brookings for not providing her with the allegations against her and not appointing a person to assist her from the outset. She was of the opinion that the union local was responsible for defending her, that it should have appointed an officer who should have contacted her and that Mr.Brookings had already formed an opinion before the May 27, 2003 meeting.

36 Ms.Laplante testified that when she asked that a person from the National Component represent her, Mr.Brookings continued to maintain that it was a local matter. She stated that the union local officers included only Mr.Murray, who acted as an advisor; Ms.Bélanger, who was the chief shop steward; and Ms.Osborn, who represented the employees who complained. Ms.Laplante added that she had good reason to believe that she should contact the National Component to be sure to have an impartial representative.

37 Ms.Laplante testified that when she received the harassment complaints, she told Mr.Brookings that in harassment allegations, union representatives should not represent any of the parties. Mr.Brookings answered that as long as no formal complaint was filed, he could proceed as he saw fit. She criticized him for not endeavouring to apply the policy and not first checking whether the allegations had any basis by conducting a preliminary inquiry and completing the questionnaire referred to in the PSAC policy.

38 Ms.Laplante stated that she repeatedly asked Mr.Brookings for copies of the complaints against her.

39 Ms.Laplante continued to testify, criticizing Ms.Osborn for meeting with the library employees on several occasions starting in 2002 without ever informing her of the situation. In fact, there was one incident in which Ms.Laplante became angry and raised her voice somewhat; even though Ms.Laplante apologized the following day, Ms.Osborn mentioned the incident to Ms.Laplante's supervisor. The complainant stated that a meeting with Marilyn Matte took place in January2003 without her being notified and that another meeting took place on May 15, 2003 when Ms.Osborn met with Mr.Murray, Mr.Brookings and the threeemployees who reported to Ms. Laplante. Ms. Laplante criticized Ms.Osborn for doing nothing to ascertain her version of the facts; for encouraging the employees to complain instead of trying to facilitate a resolution of the conflict; for not leaving the room during the May 27, 2003 meeting after she told her that the meeting was neither a performance appraisal nor a disciplinary meeting; for not telling her that the employees felt intimidated and, she suspected, for never finding out why they felt intimidated; and for not objecting to Mr.Murray's remark that harassment might be involved even though she knew that the employees did not want to file complaints.

40 Ms.Laplante criticized Ms.Osborn for holding the June 10, 2003 meeting without her and for the fact that according to the notes of that meeting, allegations were made with no factual basis. Ms.Laplante added that at the August 5, 2003 meeting, Ms.Osborn spoke on behalf of the employees and that even though at that meeting Ms.Laplante clearly agreed to mediation, Ms.Osborn then met with the complainants and encouraged them to file grievances. Ms.Laplante stated that the notes of her testimony during the inquiry seemed to indicate that the person concerned by those actions was Mr.Millar.

41 Ms.Laplante criticized Mr.Murray for meeting with the complainants on May 15, 2003, at a time when he was an advisor for the union local. Ms.Laplante had the opinion that Mr.Murray, who had been the president of the union local, should have been very familiar with the union's policy in harassment cases and should have ensured that it was applied. Ms.Laplante criticized Mr.Murray for attending the May 15, 2003 meetingwith Mr.Brookings, Ms.Osborn and the employees that complained and for not approaching her to ascertain her version of the facts. Although she had not invited him, he attended the May 27, 2003 meeting; when Ms.Osborn refused to leave the room, it was he who brought up the question of harassment. Ms.Laplante criticized Mr.Murray because after she reminded the employees reporting to her that it was their responsibility to resolve the conflict, he recommended that they not contact her in the absence of a union representative. Ms.Laplante noted that Mr.Murray knew that she had no union representative and that he knew that she felt frustrated at not knowing the allegations against her. It was Mr. Murray who signed the grievances that were filed 50days after the employees learned of the incidents and who agreed with Mr.Lachapelle to change the grievances into formal harassment complaints even though the employees did not want to file complaints.

42 In concluding her testimony, Ms.Laplante added that she used her sick leave and annual leave to prepare her "case" and asked me to remain seized with respect to damages.

43 Under cross-examination, Ms.Laplante confirmed that on May 26, 2003 she learned from Mr.Millar that the employees reporting to her were complaining about her. Mr.Millar suggested that she meet with the employees to discuss the situation. Because she knew that the employees wanted to meet with her, she called them by email to a meeting on the following day. She also learned from Mr.Millar that the employees wanted to have a union meeting on the following day. She confirmed that Mr.Lachapelle advised her not to meet with the employees unless someone from Human Resources was present; that was why she asked the union representatives to leave the room. She also confirmed that the following morning she met with Ms.Bossy from Labour Relations, since Mr.Lachapelle was absent for a few days. As well, she met with Mr.Millar to discuss how to resolve the conflict.

44 Ms.Laplante confirmed that on June 11, 2003 Mr.Millar outlined the employees' concerns to her. In a general way, Mr.Millar noted concerns regarding communication, leave management, memory lapses and her "shouting at" the employees. When Ms.Laplante requested facts, Mr.Millar did not have any; he provided only a few minor examples.

45 Ms.Laplante considered those concerns to be minor given the length of time that the employees had spent with her. According to Ms.Laplante, one of the employees, Ms.Matte, apparently stated that she was not prepared to elaborate. On June 11, 2003, Mr.Millar apparently gave her a sheet of paper outlining those concerns; she had the impression that they were his notes.

46 Ms.Laplante acknowledged that according to the employer's policy, employees had the right to speak with their superiors. Although initially she was to attend the meeting, she was informed that Mr.Millar wanted to proceed without her. She understood that he wanted to gather the facts and that he was to inform the employees that she would subsequently be informed. She criticized the union representatives for not conducting an inquiry and not providing her with a union representative. She had informed the union representatives that the meeting might be rescheduled "[translation] because of representation difficulties." When asked whether she asked that the meeting be rescheduled, Ms.Laplante stated that she had already mentioned that possibility to the union and that she expected the meeting to be rescheduled. In her opinion, it is the union's responsibility to ensure that everyone is treated equally. Ms.Laplante confirmed that she first requested union representation (ExhibitP-3) on June 9, 2003. She stated that previously she did not realize she had this right because she believed that Human Resources had to assist her. She explained that in her opinion, the union had been aware of the meeting called for June 10, 2003 for almost twoweeks and that she expected the union to contact her, explain her rights and ascertain her version of the facts.

47 Ms.Laplante added that Mr.Zebrowski of the National Component told her that in harassment cases the union does not represent any of the parties. As for Mr.Brookings, he stated that unless and until there was a formal complaint or grievance, he could proceed as he saw fit and that the union's policy on harassment did not apply.

48 Under cross-examination Ms.Laplante further stated that when Ms.Bélanger was appointed the union representative in the matter, she expressed some reservations because she doubted Ms.Bélanger's impartiality. She testified that she explained to Mr.Brookings that one-and-a-half years previously, Ms.Bélanger had entered a competition to staff a position at the library and had failed to qualify, adding that she herself had been the one to make that decision.

49 Ms.Laplante testified that she asked Ms.Bélanger to attend a meeting with the employees reporting to her that she wanted to hold in preparation for the mediation. However, the employees filed grievances, and she sent an email cancelling the meeting. Ms.Laplante stated that shortly after that she consulted her physician and went on sick leave.

50 In response to questions from the counsel for the respondents, Ms.Laplante confirmed that Mr.Brookings told her that Ms.Bélanger was her representative. She testified that she told Mr.Brookings that this was not what she had wanted. Mr.Nadeau told her that because threeof the fouremployees reporting to her were complaining, the matter was serious and that she should be accompanied by an experienced representative. She acknowledged that Mr.Nadeau was a mediator, not a union representative and that she relied on his expertise. Ms.Laplante acknowledged that she asked Ms.Bélanger to attend a meeting with her and that she asked her to identify the officer in charge of harassment cases. She acknowledged that Ms.Bélanger never refused to assist her but added that she wanted a representative from the National Component. She was of the opinion that since the matter was serious, she could request representation from the National Component.

51 Ms.Laplante considered that despite what Ms.Bélanger said, Ms.Bélanger was aware of the conflict since Ms.Osborn sent her a copy of a May 26, 2003 email referring to the conflict (Exhibit P-10). In Ms.Laplante's opinion, Ms.Bélanger, in her capacity as chief shop steward, was responsible for coordinating representation, and the union was responsible for acting in an equitable manner. Ms.Laplante acknowledged that Ms.Lemire of the National Component offered to accompany her during the harassment inquiry but stated that initially Ms.Lemire did not want to become involved.

52 Under cross-examination, with respect to the August 5, 2003 meeting, Ms.Laplante testified that at the start of the meeting Mr.Millar explained the situation by referring to Ms.Laplante's management style. The possibility of changing the reporting relationships among the employees concerned was also discussed. However, Ms.Osborn dismissed the solutions that were discussed. Ms.Laplante emphasized that in her opinion, the employees were responsible for communication and that they should accept her authority. No progress was being made, and Mr.Millar stated that they should wait for mediation. Although Ms.Laplante attempted to contact Ms.Bélanger to ask that she accompany her to that meeting, Ms.Bélanger was unavailable, since the request arrived too late. Ms.Laplante nevertheless considered that Ms.Bélanger was responsible for contacting Ms.Osborn to reschedule the meeting, since Ms.Bélanger was the person appointed to represent her.

53 In response to questions by counsel for the respondents, Ms.Laplante further stated that when she returned from annual leave on or about October5, 2003, she received copies of the September 19, 2003 complaints (Exhibits P-44, P-45 and P-46). She acknowledged that she also filed complaints against the employees. She stated that she filed those complaints because she had the impression that her version of the facts would not be considered by Ms.Savage, the person initially responsible for conducting the inquiry, unless she also filed complaints. The complaints that she filed were declared unfounded. Ms.Laplante stated that following the report by Carole Piette, the person who was responsible for completing the inquiry and who dismissed the employees' harassment complaints, she wrote to Ms.Piette, stating that she accepted the findings but not the reprimand for communications with the employees since she had attempted to communicate with them. She considered that this finding by Ms.Piette was poorly concluded.

54 Also in response to questions, Ms.Laplante acknowledged that during the mediation in Augustand September2004 and at Mr.Nadeau's request, she identified possible solutions, suggesting that she might be appointed to another position. She was surprised when the employer opted for this possibility, which she suggested hoping that the employer would reject it. She understood that she was to identify possibilities but not her preferences. She suggested threepossibilities: that the status quo be maintained, that she be transferred or that the employees reporting to her be transferred. She also stated that the possibility of her being appointed to an information-management position was discussed but that she refused this offer because she was not at a higher level. She stated that in 2004 she was on sick leave untilNovemberand that when she returned to work she had not yet fully recovered.

55 Following cross-examination, Ms.Laplante stated that throughout the conflict, what caused her the most stress was the action by the threerespondents. In her opinion, they caused that stress by taking the initiative to convince the employees that harassment was involved when they did not want to file complaints. If those persons had adopted an impartial attitude, the situation would not have deteriorated.

56 Mr.Murray was the first respondent to testify. He has worked for the Communications Research Centre since 1979. He occupied a CR-04 position in the Operations and Maintenance Section at Industry Canada. He was active as the president of his union local from1995 to2002. He was next elected Vice-President, National Capital Region, National Component, a position he occupied for sixmonths. He was then a union local representative for twoyears. In2004, he became vice-president of the union local, a position he occupied until May 2006. He is now a union representative. Mr.Murray explained that the union local is responsible for dealing with grievances up to the third level of the grievance procedure and that the National Component is responsible for dealing with them after that. It was in this context that Ms.Laplante was told from the start that National Component officers could not represent her. Mr.Murray stated that National Component officers are labour relations experts but do not provide advice. He added that in matters involving union members in conflict with other members, a union representative's role is to guide the members through the procedure.

57 Mr.Murray testified that in the fall of 2002 one of the employees told him that she would probably need help with respect to her manager. The situation resurfaced in May 2003, when a meeting with library employees took place in Ms.Osborn's office. These employees complained that they felt intimidated by Ms.Laplante. After they described some incidents, Mr.Murray told them he believed the situation involved abuse of authority, which in his opinion is a form of harassment. The employees were visibly upset. They were nervous and indicated that they did not want to file formal complaints. Nor were they inclined to discuss the matter with Ms.Laplante since, in their opinion, the situation had deteriorated too much. They wanted to present the matter to Mr.Millar. It was then agreed that the union representatives would approach Mr.Millar to call a meeting to resolve the situation. Initially Mr.Millar did not want to meet with the employees, preferring that they meet directly with Ms.Laplante.

58 Mr.Murray testified that a meeting between the employees and the union representatives was called for May 27, 2003. Although the representatives wanted Mr.Murray to attend the meeting, he told them that he preferred that Ms.Laplante attend to find a way to resolve the situation. Ms.Laplante had also called a meeting with the employees reporting to her on that same day. Mr.Murray stated that on the day of the meeting, everyone was present: Ms.Osborn, the threeemployees and himself. When Ms.Laplante arrived and saw the union representatives, she asked them to leave. Mr.Murray stated that he then said that the meeting had nothing to do with day-to-day operations but was about a possible harassment situation. Ms.Laplante did not appear to be prepared to proceed with the meeting in the presence of the union representatives and left the room.

59 Mr.Murray continued to testify, stating that the next meeting took place on June 10, 2003. In his opinion, management was beginning to take the situation more seriously. In addition to the threeemployees concerned and the union representatives, Mr.Millar and Ms.Bossy were also present. Mr. Murray understood that management was to meet with Ms.Laplante following that meeting to inform her of the concerns that the employees were going to submit. The meeting lasted onehour; the employees did most of the talking. At its conclusion, Mr.Millar stated that there was a problem and that he would discuss it with Ms.Laplante. During the meeting, Ms.Bossy and Mr.Millar asked questions to obtain details of the concerns that the employees mentioned.

60 Mr.Murray stated that he did not speak to Ms.Laplante about the employees' concerns because he believed that Mr.Millar would do so. As well, since he was acting as a union representative, he was also of the opinion that what he and the employees had discussed was confidential.

61 Mr.Murray testified that following the August 5, 2003 meeting, which he did not attend, the employees had the impression that management considered them responsible for the problem. Management appeared to believe that it was not to blame in any way. The employees therefore decided to file grievances; Mr.Murray signed the grievances on the union's behalf. Mr.Murray continued to testify, stating that a few weeks later Ms.Bossy from Labour Relations contacted him, asking whether the employees concerned were prepared to suspend the grievances and to resolve the situation by filing harassment complaints. Doing so would make it possible to use alternative conflict resolution methods, such as mediation. He considered this approach less confrontational, and he and Ms.Osborn suggested that the employees adopt it. The employees agreed to do so. Mr.Murray stated that at that point, an employee who was unhappy with the results of the inquiry could file a grievance. He did not help the employees write their complaints, but suggested that they write in their own words why they felt intimidated, harassed and abused.

62 Mr.Murray added that Ms.Bélanger was not present at those discussions. He stated that he discussed the situation at the library only in very general terms and that at union local management meetings, the practice was to avoid discussing specific details and identifying names.

63 Under cross-examination about his experience, Mr.Murray stated that he was a union representative for a number of years and that he had dealt with two complaints of harassment in addition to the present matter. He stated that the union local had no officer responsible for coordinating harassment cases and that union structures varied a great deal between union locals. His union local was very small and very often had difficulty obtaining enough volunteers to form an Executive Committee. In those circumstances, everyone does a bit of everything.

64 When asked about the role he played, Mr.Murray answered that he attempted to resolve the situation informally by contacting Mr.Millar, since the employees did not want to speak to Ms.Laplante directly. This approach was attempted before the formal complaints were filed. Mr.Murray also confirmed that Ms.Laplante was herself a union member, like the employees complaining about her conduct. He added that Ms.Laplante was a union member in good standing and confirmed that she had taken part in strikes and had worked with him to settle a classification grievance involving a library employee.

65 When asked about the application of Policy 23B - PSAC Anti-Harassment Policy: The Union (Exhibit P-7), Mr.Murray stated that this policy applies only to union activities and events such as meetings and conferences. The policy that applies to the workplace is Policy 23A - PSAC Anti-Harassment Policy: The Workplace (Exhibit P-7). Mr.Murray stated that in accordance with that policy, the union representatives attempted to resolve the situation informally and also took part in mediation. When asked whether he contacted Ms.Laplante to ascertain her version of the situation, Mr.Murray stated that the union members whom he represented wanted to approach Mr.Millar directly and were not comfortable approaching Ms.Laplante directly.

66 When asked about the use of the form to report on harassment complaints (Exhibit P-13), Mr.Murray stated that no formal harassment complaint was made and that using that form was not required. He added that it was the employer's responsibility to communicate the complaint to the respondent. He also emphasized that he was not appointed to represent Ms.Laplante; it was another union representative, Ms.Bélanger.

67 When asked about the May 27, 2003 meeting, Mr.Murray testified that he had known the employees for a number of years and believed what they told him. He saw no need to conduct an inquiry. At that point the employees did not want to file formal complaints; they wanted the situation to be resolved. The situation described involved abuse of authority, which is a form of harassment. Mr.Murray added that his purpose in approaching Mr.Millar was to protect the interests of the union members who had approached him. He noted that the union local identified a union representative for Ms.Laplante when she requested one.

68 With respect to the June 10, 2003 meeting, Mr.Murray confirmed that at that meeting, the employees told him that they had observed that Ms.Laplante was quite sensitive, appeared to have memory lapses and was isolating herself. He added that those comments were made to him in an effort to identify the problem. He saw no reason to intervene to cut short those comments, since the meeting was an opportunity for the employees to speak to Mr.Millar and toanswer his questions.

69 With respect to his statement at the time of the harassment inquiry (Exhibit P-39), Mr.Murray confirmed that he blamed Mr.Millar in part for worsening the situation described by the employees by not taking it seriously until the grievances were filed.

70 Mr.Murray confirmed that the grievances were filed even though Ms.Laplante agreed to mediation. He stated that although the possibility of mediation was discussed, it was feared that it would fail. He also added that he accepted the suggestion to proceed by means of harassment complaints because at Industry Canada it was possible to make use of a problem resolution procedure before initiating an inquiry. He also confirmed that Ms.Laplante was becoming increasingly stressed by the incidents but added that the employees were also devastated. Overall, the situation was a mess.

71 Ms.Bélanger was called to testify. She has been employed in the public service for 15 years and works as an administrative assistant at the Communications Research Centre, Industry Canada. For four years, until recently, she was active in her union as chief shop steward.

72 Ms.Bélanger stated that she did not exactly recall the date when she first learned of the problem at the library but stated that in AugustMr.Brookings sent her an email asking her to represent Ms.Laplante. She was the only bilingual union representative and even though she was the chief shop steward, she was not involved in the matter before speaking with Ms.Laplante.

73 Ms.Bélanger testified that following Mr.Brookings's request, some emails were exchanged with Ms.Laplante before her August13, 2003 email (ExhibitP-47) stating that she was not pleased with one representative who had been appointed. When asked about what follow-up was taken to Ms.Laplante's October27,2003 letter (Exhibit P-12) and her December 8, 2003 email (Exhibit P-17), Ms.Bélanger answered that she did not recall the follow-up that was taken in either instance. She stated that she never refused to represent Ms.Laplante; in this regard, she adduced the August13, 2003 email informing Ms.Laplante as to when she was available (Exhibit D-2).

74 Under cross-examination, Ms.Bélanger stated that the union representatives of the library employees directly approached Mr.Brookings, and not her, even though she was the chief shop steward. When asked whether she could have been appointed to represent Ms. Laplante on May 27, 2003, Ms.Bélanger stated that she did not recall the exact dates but that Mr.Brookings asked her to represent Ms.Laplante.

75 When asked about the right to fair and equitable representation, Ms.Bélanger emphasized that she offered her services to Ms.Laplante but that Ms.Laplante never accepted her assistance. Regarding Ms. Osborn's May 26, 2003 email (Exhibit P-10) referring to the employees' complaints and the approach to Mr.Millar, Ms.Bélanger did not at all recall receiving a copy of it.

76 Mr.Brookings testified. He has occupied a position as a storekeeper at the GS-STS-6level at Industry Canada for seven-and-a-half years. His involvement in union governance began in 2002 when he accepted a vice-president position at the union local. At the union local's 2002annual meeting, he was elected president of the union local, a position he occupied for fouryears. At the time he testified, he had not been active in union governance for approximately twomonths, although in his capacity as outgoing president he continued to act as an advisor.

77 Mr.Brookings stated that in 2002 he received an email from Ms.Osborn indicating that there was a problem at the library but he only intervened in May 2003. On May 15, 2003 a meeting took place at which he, Mr.Murray and Ms.Osborn met with threelibrary employees who had concerns about Ms.Laplante and who had complaints to make. He appointed Mr.Murray and Ms.Osborn to represent the employees, who were visibly affected by the situation. At that point they did not want to file formal complaints. It was agreed that the union representatives would explore the situation. Mr.Brookings stated that he let the union representatives look after the matter.

78 Mr.Brookings testified that he received Ms. Laplante's June 3, 2003 email (Exhibit P-2) requesting the wording of the employees' allegations. He answered that there were no complaints and that there was nothing on paper that he could send her.

79 Mr.Brookings testified that he contacted Mr.Bissagar to obtain the details of his June 9, 2003 email to Ms.Laplante (Exhibit P-3) responding to her request for a representative from the National Component. Ms.Laplante obtained Mr.Zebrowski's telephone number in that email. He believed that Mr.Zebrowski would tell her what to do.

80 With respect to Ms.Laplante's June 9, 2003 email to Mr.Brookings (Exhibit P-4), he stated that he did not respond to it because he understood that she was trying to reach Mr.Zebrowski. He added that Ms.Laplante never asked him to reschedule the June 10, 2003 meeting.

81 Mr.Brookings acknowledged receiving the June10, 2003 email (Exhibit P-5) in which Ms.Laplante stated that, since she could not be represented by Mr.Zebrowski, she objected to the employees reporting to her having union representation. Mr.Brookings testified that his response was that she could contact Ms.Bélanger. He understood that Ms.Laplante wanted to be represented by someone who could speak French. Ms.Bélanger was the only person able to represent Ms.Laplante; at union local Executive Committee meetings, Ms.Bélanger was asked to leave the room when the problem at the library was being discussed. Ms.Laplante did not at first object to dealing with Ms.Bélanger; it was only after some emails that she told Mr.Brookings that in her opinion Ms.Bélanger lacked the experience required to represent her. Mr.Brookings stated that when Ms.Laplante returned from sick leave, he referred her to Ms.Lemire.

82 Mr.Brookings testified that he also contacted management representatives with respect to Ms.Laplante. In June 2003, Mr.Millar told him that he would keep Ms.Laplante informed since he was a member of management. Mr. Brookings also understood from Mr.Lachapelle that someone from Human Resources would accompany Ms. Laplante to meetings. He also asked Mr.Lachapelle to ensure that Ms.Laplante did not directly contact one of the employees concerned.

83 With respect to the October 9, 2003 email (Exhibit P-11), Mr.Brookings testified that he suggested that Ms.Laplante speak with Ms.Bélanger. He added that in telephone conversations prior to that email, Ms.Laplante had requested further information, which Mr.Millar had to give to her.

84 When asked about the December 2004 and January 2005 email exchange (Exhibit P-31) concerning a request for information by Ms.Laplante, Mr.Brookings stated that shemade her request to one of the employees who complained about her conduct. He reminded her that she was to contact him, not that employee. The employee concerned reported the incident to Mr.Brookings.

85 Under cross-examination, Mr.Brookings confirmed that the duties of union officers set out in the 1997 union local regulations (Exhibit P-26) are still valid. He stated that he was present at the May 15, 2003 meeting with the employees concerned but did not supervise the work of the union representatives appointed to represent them. Although Ms.Osborn had never dealt with a harassment case, he was confident that Mr.Murray's expertise would be a valuable source of support. He had full confidence in Mr.Murray, whom he would not have hesitated to appoint as his union representative at any time.

86 When asked why Mr.Murray's name did not appear on the list of union local officers (Exhibit P-8), Mr.Brookings stated that in his capacity as outgoing president, Mr.Murray acted as an advisor to the union local. He was appointed union representative at the time of the incidents giving rise to the complaints.

87 Mr.Brookings testified that he was not fully familiar with Policy 23 of the PSAC (Exhibit P-7) but that he could contact a service agent for advice. He confirmed that union local officers were responsible for applying that policy and that the union representatives' knowledge of it was not verified. He confirmed that he only learned in August2004 that the union representatives were responsible for sending Ms.Laplante a copy of that policy.

88 When asked whether part B of Policy 23 applied, Mr.Brookings responded that he could not be certain. He confirmed that no committee, as described on page 8 of Policy 23A - PSAC Anti-Harassment Policy: The Workplace(ExhibitP-7), was formed. He also confirmed that the role of such a committee was one of inquiry. When asked whether he agreed that the responsible officer identified in that part of the policy was the union local president, Mr.Brookings answered that he did not see things that way. He ensured that a person was available to assist Ms.Laplante.

89 In response to Ms.Laplante's questions, Mr.Brookings further stated that he did not know whether someone at the union's national headquarters assessed the situation, adding that at the outset merely allegations were involved. He added that Ms.Laplante was referred to Mr.Zebrowski. He acknowledged that he was not informed about the matter of respect of risk set out in the policy. Mr.Brookings added that he was in contact with Ms.Laplante and that at that point, he explained to her that no complaints had been filed. Initially he did not know whether the situation would result in grievances or complaints. It was not appropriate to conduct an inquiry unless complaints were filed. Mr.Brookings acknowledged that a person subject to a complaint is entitled to receive a copy of the complaint, adding that Mr.Millar gave a copy of the allegations to Ms.Laplante after they were filed in September 2003.

90 In response to Ms.Laplante's questions, Mr.Brookings stated that in his opinion, the union's actions were an attempt to resolve the situation proactively by approaching Mr.Millar informally to establish a dialog on the situation. At the first meeting, the employees were visibly upset, not because the union representatives were present but because of Ms.Laplante's conduct. As Mr. Brookings recalled, the employees did not emphasize specific recent incidents justifying the extent of their feelings. Mr.Brookings added that he tried to assist Ms.Laplante and that when it was not possible for her to be represented by Mr.Zebrowski, he appointed Ms.Bélanger. With respect to union questions, Mr.Brookings noted that Ms.Laplante was to contact him directly rather than one of the employees concerned, who also occupied a union position. He confirmed that the union local represented other professionals, including engineers.

91 Mr.Murray testified that after the May 15, 2003 meeting with the employees he appointed Ms.Osborn and Mr.Murray to represent them, who then made the decisions with respect to the representation of those employees.

92 Ms.Osborn testified that she has worked as a telecommunications officer at the Communications Research Centre fo r21 years. She was engaged in the union from2002 to2006. At the time of the incidents, she was a union representative. She stated that she began writing down the facts set out in Exhibit P-23 in October 2003.

93 Ms.Osborn testified that she was first approached by one of the employees concerned in the fall of 2002. That employee came to Ms.Osborn in tears, indicating that Ms.Laplante was responsible and that communicating with her was difficult. Apparently Ms.Laplante had raised her voice. Ms.Osborn stated that she then asked the employee if she had tried to speak with Ms.Laplante. The employee answered that she had tried to do so but that Ms.Laplante did not listen. Ms.Osborn suggested that the employee prepare an email to Ms.Laplante explaining her view of the situation but that she not send it until the following day so that she would have an opportunity to think more calmly about the situation. If the employee was still determined to send the email the following day, it would not be too late.

94 Ms.Osborn testified that she also asked the employee whether Ms.Laplante held regular meetings with the employees reporting to her and that they discussed communications at the library. Following this conversation, with the employee's agreement, Ms.Osborn met with Mr.Millar, informing him of the communication difficulties. Mr.Millar reacted to the fact that the employee did not contact him directly. Ms.Osborn stated that she then explained the employees are not necessarily very comfortable meeting with the Director. Ms.Osborn suggested to Mr.Millar that perhaps regular meetings between Ms.Laplante and the employees reporting to her might improve the situation. Mr.Millar stated that he would discuss the situation with Ms.Laplante. Ms.Osborn believed that Mr.Millar did so but added that Ms.Laplante's testimony made it clear that Mr.Millar did not follow up on this suggestion.

95 Ms.Osborn stated that some time later, in May 2003, another employee came to her office following an incident with Ms.Laplante. The employee was visibly upset and shaking. Ms.Osborn testified that since that was not the first such incident, she contacted Mr.Brookings and Mr.Murray, asking them to meet with the library employees to advise them on how to deal with the situation. When she discussed the situation with Mr.Brookings, the first suggestion was to advise the employees to contact Ms.Laplante directly and that Ms.Osborn could accompany them. However, the employees' reaction was to state that they had tried unsuccessfully to do so in the past and were now too afraid.

96 Ms.Osborn testified that the meeting took place on May 15, 2003. The employees described the situation. By the end of the meeting, one of the employees was crying, another was shaking and the third remained silent. Ms.Osborn and her twocolleagues, Mr.Murray and Mr.Brookings, concluded that there was indeed a problem at the library. It appeared to them that the work atmosphere was poisoned and that there was harassment. However, the employees were reluctant to file formal complaints. In Ms.Osborn's opinion, what they wanted was an opportunity to discuss the situation in a non-confrontational setting. After declining the suggestion of meeting with Ms.Laplante, the employees and the union representatives agreed to approach Mr.Millar to discuss the situation, hoping that with his assistance, a solution could be found. Mr.Brookings appointed Mr.Murray and Ms.Osborn to represent the employees, and Ms.Osborn was given the responsibility of contacting Mr.Millar.

97 Ms.Osborn testified that she met with Mr.Millar to inform him that threelibrary employees wanted to meet with him with respect to difficulties that they were experiencing. Mr.Murray appeared receptive. Ms.Osborn told him that no grievances would be filed for the moment. The meeting between Mr.Millar and the employees, after being postponed to allow Mr.Millar to meet with Ms.Laplante, was called for May 27, 2003.

98 Ms.Osborn stated that with the employees, Mr.Millar insisted that Ms.Laplante should attend the meeting. That discussion was reflected in a May 23, 2003 email Ms.Osborn received from one of the employees (Exhibit P-36). The employees were reluctant because they were apprehensive that Ms.Laplante might feel that they were in league against her. However, after a discussion with Mr.Murray, the employees agreed to proceed with the meeting.

99 Ms.Osborn testified that she and Mr.Murray called a meeting with the employees for May 27, 2003 at 13:00; one topic of discussion was to be Ms.Laplante's attendance. On the morning of May 27, 2003, Ms.Osborn learned about Ms.Laplante's email calling the employees reporting to her to a meeting at 13:30. She also learned from the employees that Mr.Millar would no longer attend the meeting with them and that Ms.Laplante had been instructed to hold a meeting with them. The employees felt betrayed by Mr.Millar. Ms.Osborn contacted Mr.Brookings, who suggested that she speak with Mr.Lachapelle from Labour Relations. Ms.Osborn testified that when she spoke with Mr.Lachapelle, he repeated that the employees were required to speak to their supervisor. She retorted that that was exactly what they had attempted to do but that they felt intimidated by Ms.Laplante. Ms.Osborn testified that she requested that someone from Labour Relations attend the meeting and that she informed Mr.Lachapelle that union representatives would attend.

100 Ms.Osborn continued to testify, stating that her meeting with the three employees and Mr.Murray took place at 13:00, and that they waited for Mr.Millar since he had never informed the union directly that he would not attend. Ms.Laplante attended unaccompanied and asked the union representatives to leave the room. Ms.Osborn stated that Mr.Murray then said that the union had called the meeting and that harassment might be involved. Ms.Laplante answered that harassment had not been an issue and left the room. After sheleft, the employees and the union representatives also left.

101 Ms.Osborn stated that following Mr.Murray's remark at the first meeting with the employees, to familiarize herself with the subject she consulted the documentation on workplace harassment and Industry Canada's guide to the prevention and resolution of harassment (Exhibits D-4 and D-5), as well as Policy 23A - PSAC Anti-Harassment Policy: The Workplace(Exhibit P-7).

102 Ms.Osborn testified that another meeting was called with Mr.Millar to give the employees an opportunity to express the difficulties that they were experiencing. Mr.Murray, Ms.Osborn and Ms.Bossy attended the meeting; Ms.Laplante did not. The library employees described how they felt and how the work atmosphere was affecting them. In response to questions raised by Mr.Millar, the employees stated that Ms.Laplante had changed over the years. Ms.Osborn reported that at the end of the meeting, Ms.Bossy stated that it appeared that the work atmosphere at the library was indeed poisoned. Mr.Millar stated that as far as he was concerned there appeared to be a problem that justified his examining the situation closely. Ms.Osborn believed that the employer recognized that there was a serious problem and that it would work to resolve it.

103Ms.Osborn testified that she sent Ms.Bélanger a copy of her May 26, 2003 email to Mr.Murray (Exhibit P-10) because Ms.Bélanger was the chief shop steward. She never discussed the matter involving Ms.Laplante with Ms.Bélanger after that.

104 Ms.Osborn stated that following the meeting, she sent an email to the library employees (Exhibit D-6) expressing her satisfaction with the way the meeting had gone. As she put it, no one had crucified Ms.Laplante. On June 20, 2003, she sent an email to Mr.Millar, asking to be informed of any follow-up to the meeting (Exhibit D-7).

105 Ms.Osborn stated that because she received no update, on August 5, 2003 she went to Mr.Millar's office to ask him if he knew what was happening at the library. Ms.Osborn testified that Mr.Millar answered that he could not change Ms.Laplante and that he was going to transfer one of the employees. Since Ms.Osborn said nothing, Mr.Millar added that he would inform the employees; she agreed.

106 Ms.Osborn testified that a meeting was set for 13:00 that same day. At that meeting, Mr.Millar informed the employees in a firm voice that there was nothing wrong with the way Ms.Laplante was managing the library. According to Ms.Osborn, he added that the problem lay with the employees and that he would help them leave if they could not get along with Ms.Laplante. He offered the employees present various transfers. The employees reacted negatively; Ms.Osborn suggested mediation. One of the employees stated that what she wanted was better communication and a real team meeting. Ms.Laplante then stated that that was not her style. Voices were raised; Ms.Osborn told Mr.Millar that was exactly why mediation by an independent person was needed. Mr.Millar finally agreed to assume the costs of mediation, and Ms.Laplante appeared to agree to this possibility.

107 Ms.Osborn testified that the following day, she and Mr.Murray met with the employees to discuss what had happened at the meeting. They then decided that if mediation failed, grievances would be filed.

108 Ms.Osborn stated that she took part in the decision to change the grievances into harassment complaints. She met with each of the employees individually to ensure that they agreed with that approach. Once the inquiry was initiated, she accompanied one of the employees to the inquiry meetings and acted as a resource person in distributing information from the Federal Centre for Workplace Conflict Management.

109 With respect to the settlement proposal attempted in 2004, Ms.Osborn stated that Mr.Nadeau contacted her and asked whether the employees would agree to withdraw their complaints if Ms.Laplante accepted a position elsewhere. The response was that they would agree to this proposal if the employer agreed to fill the position that would be left vacant by Ms.Laplante.

110 Under cross-examination, Ms.Osborn confirmed that she read page 3 of Policy 23A - PSAC Anti-Harassment Policy: The Workplace(Exhibit P-7). She also confirmed that the employee to whom Ms.Laplante raised her voice told her that Ms.Laplante apologized. Ms.Osborn stated that she nevertheless contacted Mr.Millar because the problem had to do not just with one incident but rather with the work atmosphere. She acknowledged that in2001 the library employees received an award for their work. She stated that the employees came to see her between September 2002 and May 2003 about various difficulties related to the work atmosphere and that she suggested that they discuss these difficulties with Ms.Laplante. The employees were not very receptive to that suggestion, saying that Ms.Laplante was not very approachable and that she tended to respond negatively when they presented her with a problem to resolve.

111 In response to Ms.Laplante's questions, Ms.Osborn stated that if only one person had been involved she would not have intervened, but since three persons complained of similar difficulties she asked Mr.Brookings and Mr.Murray for assistance.

112 In response to Ms.Laplante's questions, Ms.Osborn explained that following comments by library employees who did not know what the other employees were doing, she suggested meetings for the section. She stated that this suggestion was made to Mr.Millar.

113 Ms.Osborn testified that the document dated December30, 2003 (Exhibit P-23) was prepared based on notes and emails. She stated that the employees convinced her that Ms.Laplante was not approachable. Initially, the employees did not want to file grievances; they wanted to discuss their difficulties with Mr.Millar.

114 In response to questions about the June 10, 2003 email to the employees (Exhibit D-6), Ms.Osborn stated that in her opinion it calmed them since it indicated that they had conducted themselves well at the meeting.

115 Ms.Osborn testified that she intervened based on the incidents and impressions reported to her by the employees and the emotional state that they displayed. Not just one but three persons were affected. Ms.Osborn acted with the assistance of Mr.Murray who, among other things, signed the grievances. Ms.Osborn stated that filing grievances was necessary even though it was agreed that mediation would be attempted, adding that she mentioned the intention of filing grievances just before the conclusion of the meeting at which the possibility of mediation was discussed.

III. Summary of the arguments

A. For the complainant

116 Ms.Laplante presented written arguments to support her complaints. The document she presented comprises three separate parts: one on representation, one on the consequences of the complaints and grievances, and one on case law. The following paragraphs reproduce the arguments on representation and the case law identified. I have read the arguments on the consequences that the alleged lack of representation had on Ms.Laplante's personal and professional life, in violation of the Act. That said, in light of my conclusion with respect to lack of representation, I did not reproduce Ms. Laplante's arguments on the consequences of the alleged lack of representation, which could serve to support only a claim for damages incurred and not the complaint itself.

117 The arguments presented are as follows:

[Translation]

…

I have alleged that Mr.Norm Brookings, Mr.Charles Murray and Ms.Sue Osborn, officers of Local 70183, National Component, the PSAC, failed in their duty of fair representation, acted in an arbitrary manner and showed favouritism and bad faith in processing the complaints filed by three of my employees: Ms.… , Ms.… and Ms.… , in May 2003.

The union representatives involved in the conflict had been in their positions long enough to become informed about what the duty of fair representation represents. This document cites the Supreme Court of Canada decision in Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509, at page 2. This case is authoritative, and abundant case law refers to it.

The Supreme Court established that in exchange for the power to represent its members, a union must

• provide fair and reasonable representation of all its members,
• act in good faith, objectively, and honestly,
• conduct a thorough investigation,
• consider the consequences of the grievance on the employee,
• not make decisions that are arbitrary, capricious, discriminatory or unjustified, and
• provide representation that is fair, genuine and not merely apparent, without serious negligence, and without hostility toward the employee.

The duty of fair representation leaves no room for the partiality, dithering, resentment, meanness or laxity demonstrated in the testimony of the union local officers. No one likes discussing unacceptable conduct. As president of the union local, Mr.… should have been objective and not tolerated demonstrations of hostility such as those by Ms.… .

Manipulating my employees by stating that harassment might be involved when those employees did not want to file complaints and escalating the conflict between them and myself instead of endeavouring to resolve it can be considered collusion to highlight the union local's determination to denounce abuse of authority and make officers look good to union members. Soliciting and compiling a series of reprimands and sending incendiary emails such as P-9 and P-10 could have influenced my employees and contributed to their feeling of being victimized.

If union representatives cannot conduct themselves objectively when a union member who is a supervisor is the subject of complaints, it would be dishonest of them to accept that member's union dues.

Allowing my employees to discuss my health in the presence of my supervisor and Ms.Bossyon June 10, 2003 is a violation of my right to the protection of my personal information, regardless of whether the allegations are founded.

The fact that the union local is too small to assign responsibility for dealing with harassment cases to anyone in particular and the fact that its officers are overworked do not justify neglecting a member's right to an inquiry by the union into allegations. If union officers' workload or lack of interest make them act in an arbitrary manner and fail to take the time to read the bylaws and regulations they are responsible for applying, and if the result is representation problems, then those problems are serious. A union member in such a situation is not interested in petty squabbles about who from the union local or the National Component is responsible for dealing with his or her case. That member wants, and is entitled to, assistance from his or her union, in the official language of his or her choice.

If a union member points out a failure to comply with a policy and an officer does not check the information but maintains a position of non-compliance with the policy, then the officer is acting in bad faith. The same is true if an officer pays no attention to apologies offered but complains to the supervisor. Fabricating allegations of abuse of authority based on issues already addressed one year previously (such as leave management) and not having the courage to confront the alleged harasser also constitute bad faith and arbitrary conduct.

The union should inform its members about management's rights and employees' responsibilities to contribute to a healthy workplace. Employees should understand that although their comments and suggestions are usually welcome, their managers may decide to act differently and need not always justify their decisions.

Leave management was one issue cited in support of the allegations of abuse of authority. The reports of the inquiries into the allegations of harassment against me, as well as Ms.Osborn's testimony, establish that neither the employees nor Ms.Osbornhad concrete facts to support their allegations. Raising the issue of leave management again, when the employees had the opportunity to file grievances on this issue one year previously, suggests that there was insufficient justification for the grievances and the complaints.

…

CASE LAW

• Collusion

  R. v. Handy, Supreme Court 2002 SCC 56

  R. v. Shearing, 2002 SCC 58 (CanLII)

• Conflict of interest

  Fortin v. Canada, 2003 FCT 51

• Duty of fair representation

  Gendron v. PSAC, 1990 CanLII 110

  Teeluck v. PSAC, 2001 PSSRB 45

• Right to security (section 7 of the Charter)

  Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44 (CanLII)

• Procedural fairness

  Lessard v. Québec, 2004 CanLII 11529

• Burden of proof

  Lamarche v. Marceau, 2005 PSLRB 153

• Damages for mental distress

  Zorn-Smith v. Bank of Montreal , Ontario Superior Court of Justice, 2003 CanLII 28775.

  The complainant obtained damages for her costs and additional compensation for intentional infliction of mental distress (#166-170)

  Grace Bingley, 2004, Canada Industrial Relations Board, vol.6-04, decisions 291 and 297.

  Jacqueline Brown v. Royal Canadian Mounted Police, 2004 CHRT 24.

  Boothman v. Canada, 1993 CanLII 2949.

…

B. For the respondents

118 In response, counsel for the respondents argued that the onus is on the complainant to prove a violation of subsection 10(2) of the former Act. The complainant must establish that the persons who are the subject of her complaints acted in a manner that was arbitrary, discriminatory or in bad faith in representing her. She has not discharged the onus resting on her.

119 Counsel for the respondents stated that in Canadian Merchant Service Guild v.Gagnon, [1984] 1 S.C.R.509, the Supreme Court stated that the duty of fair representation is based on the union's exclusive power to represent the employees who are members of the bargaining unit. She drew my attention to the decision in Bracciale et al. v. Public Service Alliance of Canada (Union of Taxation Employees, Local 00048), 2000 PSSRB 88, in which, after reviewing the case law, the former Board Chairperson states that "… the Act has been consistently interpreted by the Board as applying exclusively to a bargaining agent's representation of its members in matters directly relating to their relationship with the employer."

120 Firstly, counsel for the respondents submitted that the conflict between Ms.Laplante and the employees did not have to do with Ms.Laplante's representation with the employer. She argued that there is no evidence on file that the employer subjected Ms.Laplante to disciplinary measures. In fact, with respect to representation with the employer, according to the evidence on file, the union represented Ms.Laplante in the grievance she filed against the employer for agreeing to inquire into the complaints filed by the employees reporting to her (Exhibit P-22).

121  Next, counsel for the respondents submitted that Ms.Laplante could have taken advantage of Ms.Bélanger's assistance but refused to do so, for unconvincing reasons. Counsel for the respondents stated that on June6, 2003 Ms.Laplante asked Mr.Brookings to appoint a French-speaking representative from the National Component. Mr.Brookings referred her to Mr.Zebrowski, who told her that in harassment cases, the union does not represent either party. Counsel for the respondents stated that this fact does not mean that union members are not entitled to assistance, and as a consequence Mr.Brookings referred Ms.Laplante to Ms.Bélanger on June 17, 2003. However, according to the evidence, Ms.Laplante contacted Ms.Bélanger only the day before the August 5, 2003 meeting. Ms.Laplante admitted that she did so at the last minute. The emails exchanged between Ms.Bélanger and Ms.Laplante (Exhibits P-47 and D-2) clearly established that Ms.Bélanger was available to assist Ms.Laplante. Ms.Bélanger and the other union representatives also testified that they took care not to discuss Ms.Laplante's case, even though Ms.Bélanger was the chief shop steward.

122 Counsel for the respondents emphasized that in her complaint, Ms.Laplante alleged that Ms.Bélanger showed hostility toward her. She submitted that there is no evidence that Ms.Bélanger showed hostility toward Ms.Laplante in2003; the email exchange (Exhibits P-47 and D-2) demonstrated the opposite.

123 Counsel for the respondents added that after the complaints were filed, Ms.Laplante asked Mr.Brookings for the name of the union local officer responsible for dealing with harassment cases (Exhibit P-11). Here again, according to counsel for the respondents, Mr.Brookings referred Ms.Laplante to Ms.Bélanger. Counsel for the respondents emphasized that according to Mr.Brookings' testimony, the union local is small and so there are not enough volunteers to fill all of the possible positions. Ms.Bélanger was the French-speaking union representative, and it was Ms.Laplante who did not want her assistance.

124 Counsel for the respondents added that Ms.Laplante did not want Ms.Bélanger's assistance because she believed that Ms.Bélanger was unable to act as an impartial observer. According to counsel for the respondents, Ms.Laplante cited tworeasons for that belief, the fact that Ms.Bélanger had failed to qualify in a competition to staff a position at the library and the fact that Ms.Bélanger had been the respondents' representative. In the opinion of counsel for the respondents, those reasons were insufficient. The competition was held two years previously and showed no link that could justify the allegation of partiality. With respect to Ms.Bélanger's role as union representative, she had never really had an opportunity to represent Ms.Laplante. In any case, there could be no conflict of interest because Ms.Bélanger made no decisions in the employer's inquiry.

125 Counsel for the respondents emphasized that the facts in the present complaints were similar to those in Sophocleous v. Pascucci, PSSRB File No.161-02-861 (19981021), in which it was determined that the union did not breach its duty of fair representation. Counsel for the respondents also referred to the decision in Tucci v. Hindle, PSSRB File No.161-02-840 (19971229).

126 With respect to Policy 23B - PSAC Anti-Harassment Policy: The Union, counsel for the respondents argued that this policy applied only to union activities, that it was an internal union regulation and that it was the union's responsibility to determine whether this policy was contravened. She referred me to Bracciale and Kilby v. Public Service Alliance of Canada, PSSRB File Nos.166-02-808 and 150-02-44 (19980427).

127 With respect to Policy 23A -PSAC Anti-Harassment Policy: The Workplace, counsel for the respondents argued that this policy, too, had to do with internal union governance. She submitted that the respondents acted in good faith and without discrimination and to the best of their knowledge. She emphasized that it was the library employees who contacted Mr.Murray and Ms.Osborn to discuss the difficulties that they were experiencing. At the first meeting, on May 15, 2003, the employees described the situation that they were experiencing; these allegations (Exhibits P-44 to P-46) appear in the three reports of the inquiry. According to counsel for the respondents, it was unquestionable that when harassment allegations were raised that they could not be taken lightly. From the outset, the respondents took the situation very seriously and considered the consequences for Ms.Laplante and for the employees reporting to her. Counsel for the respondents submitted that while a harassment complaint could certainly be stressful, according to the respondents' testimony they were faced with three persons who were upset. It was not the respondents' role to conduct an inquiry to determine whether harassment actually occurred. Instead, they decided to resolve the situation informally. They suggested that the employees concerned submit their complaints to Ms.Laplante, but the employees preferred to express them informally to Mr.Millar.

128 Counsel for the respondents emphasized that despite the employees' reluctance, Ms.Laplante was to attend the first meeting between Mr.Millar and the employees. However, Mr.Millar failed to attend and when Ms.Laplante attended the meeting unaccompanied, the union representatives refused to leave the room as she requested. The union representatives were present at the employees' request; the subject of the meeting was the conflict at the library.

129 Although the union representatives were well aware that Ms.Laplante was also a union member, she was also a manager and she confirmed that she had received advice from Human Resources.

130 Counsel for the respondents stated that the purpose of the June 10, 2003 meeting was to give the employees an opportunity to discuss the conflict with Mr.Millar and Ms.Bossy in Ms.Laplante's absence. Under the Policy on the Prevention and Resolution of Harassment in the Workplace (Exhibit P-18), the employees were entitled to discuss their problems. At the end of the meeting, Mr.Millar and Ms.Bossy informed Mr.Murray and Ms.Osborn that they would discuss the situation with Ms.Laplante and inform her of the employees' complaints. Unfortunately, in the opinion of counsel for the respondents, according to the evidence, that did not happen. Ms.Laplante testified that Mr.Millar merely outlined the employees' concerns; Ms.Osborn testified that at the August 16, 2003 meeting Ms.Laplante did not appear to be aware of what had been discussed on June 10, 2003.

131 Counsel for the respondents emphasized Ms.Laplante's insistence on the fact that she repeatedly and unsuccessfully requested copies of the complaints. It must be understood that at the time no formal complaints were filed and that once formal complaints were filed Ms.Laplante received copies of them as soon as she returned from leave in October 2003.

132 Counsel for the respondents stated that throughout the procedure and following theAugust16, 2003 meeting, it was the employees who decided to file grievances. There was no evidence that the union representatives, Mr.Brookings, Ms.Osborn or Mr.Murray, solicited allegations or manipulated the situation in any way. The union representatives acted in good faith and in a manner that was neither arbitrary nor discriminatory. The employees were also entitled to assistance from the union. The fact that Ms.Laplante refused the assistance offered by Ms.Bélanger did not require the other employees to deprive themselves of the assistance offered by the union. Counsel for the respondents stated that there was no evidence that during mediation the union demanded that Ms.Laplante leave her position.

133 Counsel for the respondents argued that Mr.Zebrowski rightly stated that in harassment cases, the union does not represent any of the parties. She added, however, that this fact does not in any way prevent the union from offering advice and assistance to union members. According to counsel for the respondents, the PSAC policy clearly states that union local officers have a role to play in attempting to resolve conflicts informally. Following the employer's inquiry, the issue of representation arose again when the union was called on to determine whether the matter formed the subject of a grievance and, if so, who would be responsible for representation.

134 Counsel for the respondents concluded that there was no breach of the duty of fair representation. Ms.Laplante did not seek assistance in resolving a conflict with her employer and the employer did not subject her to disciplinary measures. She refused Ms.Bélanger's assistance as suggested by Mr.Brookings. Counsel for the respondents asked the Board to dismiss Ms.Laplante's complaints.

Rebuttal by the complainant

135 In rebuttal, Ms.Laplante asserted that the complaints not heard under the former Act fall under the provisions of the new Act.

136 Ms.Laplante relied on the decision in Gagnon, particularly the quotation at page 520 that emphasizes that a union "… must not be actuated by bad faith in the sense of personal hostility, political revenge or dishonesty. There can be no discrimination, treatment of a particular employee unequally whether because of such factors as race and sex (that are illegal under the Human Rights Code) or simple, personal favouritism. Finally, a union cannot act arbitrarily, disregarding the interests of one of the employees in a perfunctory matter." Ms.Laplante stated that as a manager, she was both a member of the union and a supervisor of employees, adding that she had the same rights as other union members.

137 Ms.Laplante argued that Mr.Brookings acted in an arbitrary manner by not checking Policy 23 of the union, which provides that in harassment cases, the union does not represent any of the parties. She stressed the excerpt from the summary of Fisher v. Pemberton (1969), 8D.L.R.(3d) 521, quoted in Gagnon, which indicates that where union representatives who appear on the member's behalf are hostile to the member and make no effort to obtain from the member and other witnesses an account of the events, there is a breach of the duty of fair representation. Relying on a passage in Gagnon in which the Superior Court judge criticizes the union for not pursuing the plaintiff's case, Ms.Laplante added that the union has a duty to conduct an in-depth inquiry.

138 With respect to the fact that she was referred to Ms.Bélanger, Ms.Laplante emphasized that Ms.Bélanger was given responsibility for the matter only on June 17, 2003 but that she needed a representative at the June 10, 2003 meeting. She emphasized that Mr.Brookings referred her to Mr.Zebrowski on June 9, 2003. She added that on August 5, 2003 she wished to have Ms. Belanger accompany her to a meeting set for one hour later and attempted to contact her, but was unsuccessful. She did so at the last minute because she was informed of the meeting at the last minute. She further noted that Ms.Osborn was also informed of the meeting at the last minute and that Ms. Osborn informed the employees reporting to her of the meeting but did not inform Ms. Laplante. She emphasized that if Ms.Osborn had acted fairly, she could have asked Mr.Millar for more time so that Ms.Laplante would have had time to call Ms.Bélanger so that she could have attended.

139 With respect to Ms.Bélanger, Ms.Laplante noted that if she appeared brusque threeyears after refusing Ms.Bélanger's assistance, the probability that Ms.Bélanger was difficult to deal with should be considered.

140 Ms.Laplante emphasized that Mr.Brookings, Mr.Murray and Ms.Osborn were acting in their capacity as union officers and that Policy 23 of the PSAC on harassment (Exhibit P-7) applied. That policy emphasizes prevention; the union representatives did nothing to act in a proactive manner in accordance with the spirit and the letter of that policy.

141 According to Ms.Laplante, section 4 of the procedure set out in Policy 23B - PSAC Anti-Harassment Policy: The Union clearly indicates that the person responsible for dealing with harassment complaints was to discuss the situation with the parties involved in the conflict. Ms.Laplante argued that at issue was procedural fairness, a legal principle that a person affected by a decision has the right to express his or her opinion before the decision is made. In Ms.Laplante's opinion, as early as May 15, 2003 Mr.Murray and Mr.Brookings were convinced that the employees' allegations might point to harassment. Mr.Murray even expressed this possibility at the May 27, 2003 meeting, at a time when the employees reporting to Ms.Laplante did not want to file complaints. As Ms.Osborn testified, it was only because the employees found Mr.Millar's suggestion unsatisfactory that they filed grievances alleging abuse of authority, despite the fact that Ms.Laplante had agreed to mediation. Ms.Laplante asked why the employees reporting to her filed grievances to have access to mediation when she had already agreed to participate. In her opinion, the employees had no reasons to doubt her word.

142 With respect to the May 27, 2003 meeting, Ms.Laplante stated that the meeting was rescheduled for that date because one of the employees was absent the previous day. She emphasized that there was no reason to believe that she would have intimidated the employees reporting to her and that forms of recourse would have been available to them had she abused her authority. In Ms.Laplante's opinion, the employees should at least have attempted to meet with her.

143 With respect to her request that Ms.Bélanger accompany her as an observer during the harassment inquiry, Ms.Laplante stated that once she learned that she could choose who would accompany her, she chose her spouse. She stated that she changed her mind about who was to accompany her once she learned that she did not have to be represented by the union. Until that point, she believed that Ms.Osborn was required to represent her.

144 Ms.Laplante emphasized that the simple establishment of conflict of interest constituted a fatal flaw in a decision, as was the case in Fortin v. Canada (Attorney General), 2003 FCT 51. With respect to the decision in Sophocleous and Pascucci, she stressed that that decision preceded Policy 23 of the PSAC on harassment.

145 Ms.Laplante also emphasized that point 6 of the union document on unfair labour practices (Exhibit P-48.1) suggested that union officers endeavour to avoid situations opposing union members. She added that this document encouraged representatives to maintain good communication. She stated that Policy 23B - PSAC Anti-Harassment Policy: The Union specifies that the person responsible for dealing with harassment cases is to hear both versions of the facts. She added further that in this case, the representatives allowed themselves to be influenced by emotional attitudes and that their comments poured oil on the flames, for example in the emails from Ms.Osborn (Exhibits P-9 and P-10). Those communications contributed to the employees' feelings of persecution.

146 With respect to Ms.Osborn's testimony about her knowledge of Policy 23 of the PSAC, Ms.Laplante stated that Ms.Osborn read only the first threepages of Policy 23A - PSAC Anti-Harassment Policy: The Workplace, while, in Ms.Laplante's opinion, part B of the policy applied.

147  Ms.Laplante emphasized that she was not provided with copies of the allegations for twoweeks, a delay that was not insignificant for someone in a situation as serious as facing harassment accusations. Ms.Laplante stated that under Policy 23B - PSAC Anti-Harassment Policy: The Union, the union is responsible for documenting allegations of harassment from the outset of a conflict, to endeavour to resolve the conflict as quickly as possible. In her opinion, an accused person's right to receive copies of allegations is a matter of procedural fairness based on section 7 of the Canadian Charter of Rights and Freedoms, which protects physical and mental security of the person. In support of this argument, she referred me to Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII).

148 Ms.Laplante maintained that there was collusion among the union representatives in promoting their point of view. She argued that according to the evidence, the allegations were discussed in a group and that possible strategies were also discussed in the presence of the three employees who filed complaints. She referred me to Ms.Osborn's testimony and notes (Exhibit P-23). In Ms.Laplante's opinion, these persons colluded and did not independently present their allegations.

IV. Reasons

149 The evidence has established that threeemployees reporting to Ms.Laplante sought assistance from their union representatives in dealing with a situation of conflict involving their supervisor, Ms.Laplante, who, like themselves, was a member of the bargaining unit. In light of the employees' comments, Mr.Brookings, President of the union local, appointed twounion officers, Ms.Osborn and Mr.Murray, to represent the employees with the employer. After consulting the employees, the representatives attempted to resolve the situation, which in their opinion was based on personal harassment, by approaching Ms.Laplante's supervisor informally. Since that approach proved unsatisfactory, with the agreement of their union representatives, the employees filed grievances alleging harassment. At the employer's suggestion, those grievances were changed into harassment complaints, requiring a formal inquiry. Ms.Laplante, much affected by the informal approaches from the outset, also requested assistance from her union, asking Mr.Brookings for access to a representative from the National Component. Mr.Brookings referred her to Mr.Zebrowski, who told her that in harassment cases, the union's policy (Exhibit P-7) is not to represent any of the parties, and he sent her a copy of that policy. After reading it, Ms.Laplante contacted Mr.Brookings to share the information with him and to ask him to identify the union local officer responsible for dealing with harassment cases in accordance with the policy. Mr.Brookings stated that all local union representatives shared this responsibility and that he was appointing Ms.Bélanger to assist her. Ms.Laplante contacted Ms.Bélanger a few times but preferred to be accompanied by her spouse rather than take advantage of Ms.Bélanger's services during the employer's inquiry. Although the complaints were eventually dismissed, it should be noted that the persons responsible for conducting the inquiries repeatedly noted a lack of communication between the parties.

150 Nothing in the evidence adduced allows me to find that Mr.Murray or Ms.Osborn, the union representatives, acted in a manner that was discriminatory, arbitrary or in bad faith in representing Ms.Laplante with the employer. First, Mr.Murray and Ms.Osborn were never responsible for representing Ms.Laplante. Mr.Murray and Ms.Osborn were appointed by Mr.Brookings to jointly represent the threeemployees who complained about Ms.Laplante's conduct, which they did to the best of their ability.

151 Similarly, nothing in the evidence adduced allows me to find that Mr.Brookings acted in a manner that was arbitrary, discriminatory or in bad faith in representing Ms.Laplante. When Ms.Laplante asked Mr.Brookings to refer her to a union representative from the National Component, he did so. When that person did not agree to represent her, he appointed Ms.Bélanger to act as Ms.Laplante's union representative.

152 Ms.Laplante's complaints are based on an erroneous interpretation of Policy 23 of the PSAC and of the union duty resulting from the prohibition, set out in the new Act, on acting in a manner that is discriminatory, arbitrary or in bad faith in representing union members. Unless a complaint of harassment during union activities has been filed, Policy 23B - PSAC Anti-Harassment Policy: The Union does not apply to this case. Strictly speaking, the setting of the situation at the library was not a union activity but a workplace. Any complaints are to be filed not with the union but with the employer. The employer is responsible for providing a harassment-free workplace and thus for informing persons who are the subject of any complaints filed by complainants.

153 The Treasury Board of Canada's Policy on the Prevention and Resolution of Harassment in the Workplace(Exhibit P-18) sets out no role for the bargaining agent or its representatives. At most, may they accompany complainants and persons subject to complaints to meetings and interviews if these persons so request? Not surprisingly in this context, the union representative from the National Component was unwilling to agree to a request for representation in a harassment case. In any case, this complaint has to do not with the refusal by the National Component or by Mr.Zebrowski to represent Ms.Laplante but with the actions of the three union local officers, who did not act in a manner that was discriminatory, arbitrary or in bad faith in representing Ms.Laplante.

154 Ms.Laplante made many allegations against the union representatives, ranging from collusion to attempted negotiation of her departure from the library. The evidence revealed that there essentially was no more collusion among the union representatives than there was between Ms.Laplante and Labour Relations, an entity that she consulted a number of times. Similarly, the evidence has established that during mediation of the employees' complaints, Ms.Laplante herself suggested her departure from the library as a possible solution.

155 The new Act does contain, under the heading of unfair labour practices, new provisions dealing with the bargaining agent's duty to ensure that its internal governance regulations are applied in a manner that is fair (that is, in a manner that is not arbitrary, discriminatory or in bad faith). That said, at the time of the incidents at the heart of the present complaints, which were in 2003 and 2004, those provisions did not exist. The transitional provisions allowing a complaint to continue and to be dealt with under the new Act do not change the nature of the duty that was in force at the time of those incidents. Furthermore, even though the transitional provisions were in force, I have seen no evidence allowing me to find that the representatives, Mr.Brookings, Mr.Murray and Ms.Osborn, breached this duty.

156 For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V.Order

157 For all of the above reasons, I dismiss the complaints.

July18, 2007.

P.S.L.R.B. Translation

Georges Nadeau,

Vice-Chairperson