FPSLREB Decisions

I. Complaint before the Board

1 Lionel Castonguay ("the complainant") sent a letter to the Public Service Labour Relations Board ("the Board") on November 4, 2005, complaining of unfair representation by the Public Service Alliance of Canada ("the PSAC" or "the bargaining agent"). He stated that the matter had been ongoing since August 16, 2001, and that he had "grieved the unfair representation to PSAC" on June 10, 2005. On November 17, 2005, the Board advised him, in a letter, that his letter of November 4, 2005, contained insufficient information to open a file. On December 5, 2005, the complainant again wrote to the Board specifying the sections of the Public Service Labour Relations Act (PSLRA) on which he relied and provided some details regarding his allegations against the PSAC. On December 28, 2005, he signed a Form 16 (Complaint Under Section 190 of the Act) with the Board, which was received by the Board on December 30, 2005. In his letter of December 5, 2005, he stated that the complaint to the Board was made under section 187 and paragraph 192(1)(d) of the PSLRA. The complainant stated his complaint as follows:

…

Specifically I allege that PSAC has been arbitrary and unfair in representation of my rights to fair process by the Employer to show just cause for removing me from the indeterminate excluded position 30114636, PM5 Manager, Customs Verification and Services. My complaint is based on a letter dated November 7, 2005 from PSAC (copy enclosed), the only response I have ever received in regards to my attempts at redress. No bargaining agent should permit an Employer to remove an individual from its union membership without concurrence of either the bargaining agent and/or the employee. I further maintain that as I was appointed to the position through a competitive process PSAC had the responsibility to demand the Employer show cause for demotion rather than claim my removal was for administrative reasons.

[Sic throughout]

…

2 According to the Form 16 filed with the Board on December 30, 2005, paragraph 190(1)(g) of the PSLRA is the basis for the complaint. The complainant is seeking "fair process", specifically a hearing before the Board, where the employer and the PSAC would have to show cause for removing him from his PM-05 position as Manager, Customs Verification and Services. If they fail to show cause for his removal, he requests that he be reinstated to the position from the date of the unjust removal or be compensated for all financial losses, including future pension benefits.

3 The complainant contested the preliminary objection on the complaint's timeliness, which the PSAC raised in a letter sent to the Board dated August 21, 2006. The parties were advised that this question would be brought to the attention of the Board member selected to hear the matter and should be raised at the outset of that hearing.

4 At the start of this hearing, the PSAC's representative submitted that the complaint was filed more than 90 days after the circumstances that gave rise to the complaint. The complainant's demotion from his excluded position took place in August 2001. In February 2002, the complainant became aware that his position had been improperly excluded and it was at this point that the prescribed 90 days to file his complaint to the Board began to run.

5 The complainant argued that this had been an ongoing situation since August 2001. He never abandoned his cause to obtain fair process. Ultimately, he is seeking proper redress for the harm done to him (Exhibit P-1).

6 The PSAC's objection was taken under reserve and the parties were ordered to proceed on the complaint's merits.

II. Summary of the evidence

7 During the events in issue, the complainant was an employee of what was then called the Canada Customs and Revenue Agency (CCRA) and held the position of Chief of Ruling, Customs Verifications and Services since a reorganization that took place in April 2000. He was notified by the CCRA in a letter dated February 27, 2001, that he would be performing the duties of Chief, Tariff, Values and Remissions on an acting basis at the PM-05 group and level from March 30 to June 30, 2001 (Exhibit C-1). The complainant was also notified that this position was excluded from collective bargaining and that he would not be required to pay union dues. The complainant signed the letter of offer on March 22, 2001, and did not contact the PSAC on the issue of the position being an excluded one. The complainant testified that the CCRA made a mistake in that letter, using a position title and a position number that were in use before the April 2000 reorganization. The proper position title was Manager, Compliance Verification, with the position number 30114636 as shown in the organization chart (Exhibit C-7).

8 An employee under the complainant's supervision filed a grievance claiming harassment on his part. A meeting was held with the complainant on the harassment grievance by the Acting Director of Compliance Verification, Single Program, on August 10, 2001. On August 16, 2001, the complainant was advised at a meeting by the acting director that his acting assignment would end on August 17, 2001, and that he would be reinstated in his substantive position as a Client Services Officer at the PM-03 group and level (Exhibit C-2).

9 The complainant was not represented at the August 10 and 16, 2001, meetings. He did not request representation from the PSAC or from his Component, the Custom and Excise Union (CEUDA), for those meetings. Following the meetings, he met with Emerson Waugh, a Component representative, who informed him that neither the PSAC nor the CEUDA would assist a bargaining unit exclusion.

10 The complainant filed a grievance alleging demotion on August 20, 2001, (Exhibit C-3). He was represented by a private lawyer. The grievance was referred to adjudication. Prior to the beginning of the hearing, a Memorandum of Understanding (MOU) was signed by both parties on March 19, 2002. In a letter dated July 18, 2002, the CCRA confirmed to the complainant that he had acted in his acting position as Manager, Compliance Verification from August 20 until October 31, 2001 (Exhibit C-8). The letter was an application of the MOU.

11 The complainant was not happy that the MOU referred to the position as acting and requested a hearing before an adjudicator on the merits of his August 20, 2001, grievance. Through a hearing on his grievance, the complainant sought to clear his name; he had been labelled as a workplace harasser and management incompetent (Exhibit C-11). A PSAC Grievance and Adjudication Officer notified the complainant, in a letter dated May 25, 2005, of the reasons why the PSAC would not make representations on his behalf at the hearing (Exhibit C-12). The complainant did not agree with the PSAC's analysis. An adjudicator rendered a decision, (2005 PSLRB 73), concluding that the MOU was a full and final settlement of the grievance, and that he did not have jurisdiction to proceed on the merits of the August 20, 2001, grievance.

12 In January 2002, the complainant contacted the PSAC, requesting information for his counsel with respect to his exclusion from the bargaining agent (Exhibit R-1). On February 14, 2002, Serge Charette advised the complainant that no reference to his exclusion from the CEUDA could be found for the positions numbered 30058511 and 300580501 (Exhibit R-1). During the summer of 2002, the complainant alleges (Exhibit C-5) that Mr. Charette made further inquiries of the PSAC and the CCRA regarding the exclusion and was advised by the employer that the position number against the complainant's name was not on the exclusion list and acknowledged that an error had been made in advising him that he was excluded. The complainant also alleges (Exhibit C-5) that Mr. Charette advised him, in September 2002, to file a grievance alleging that he had been improperly excluded, which action he took only in November 2002 (Exhibit C-4). The employer denied the grievance at the final level on October 16, 2003, on the basis that it was untimely (Exhibit C-6). The PSAC refused to refer the grievance to adjudication, under section 92 of the PSLRA (Exhibit C-9).

13 The employer came to the conclusion that the complainant was unqualified for a PM-05 position based on a reference check. In the MOU signed on March 19, 2002, a provision had been included which provided for an independent third-party review (ITPR) if the decision was made not to appoint the complainant to the PM-05 position by August 12, 2002 (Exhibit P-2). An independent third party reviewer heard the appeal on the arbitrariness of the reference check. The PSAC provided representation to the complainant at the ITPR. In September 2003, the PSAC representative appointed to the complainant left the ITPR hearing prior to its conclusion. Despite this, the complainant did not request the reviewer to postpone the hearing. The decision of the reviewer, rendered on November 16, 2003, directed the employer to do the reference check again.

14 The PSAC refused to file a judicial review application of that decision (Exhibit C-10). The complainant consulted a private lawyer who came to the conclusion that the ITPR's decision was not reviewable by the Federal Court because it was in the complainant's favour. After the employer repeated the reference check, the complainant was informed in May 2004 that he was still rated as unqualified. The complainant requested that the employer proceed with another ITPR on the same issue; the employer refused.

15 The complainant purported to grieve "all actions of unfair representation" from August 16, 2001, to May 25, 2005, to Mr. Charette, the President of CEUDA in a letter dated June 10, 2005 (Exhibit C-13). The PSAC answered that letter on July 12, 2005 (Exhibit C-14). In his written response to the PSAC's letter, the complainant asked if the employer's reports related to dues deductions were sent to the PSAC (Exhibit C-15). On October 3, 2005, the complainant sent a letter to the PSAC to explain his conclusion that the employer and his bargaining agent had denied him representation because of his purported exclusion from the bargaining unit. In the conclusion of his letter, he informed the PSAC that he would register an unfair representation complaint against it under section 187 of the PSLRA (Exhibit C-16).

16 In his complaint, the complainant alleged that the PSAC had been arbitrary and unfair in its representation of him after he was removed from his position as manager in August 2001. At that time, he was aware that the PSAC would not make representations regarding his demotion file because his position was excluded.

17 In a letter dated November 8, 2005, the PSAC stated that because the complainant had not paid union dues to the PSAC from January to September 2001, the CEUDA believed that he had been in a management-excluded position (Exhibit R-2).

III. Summary of the arguments

A.For the complainant

18 The complainant submitted written arguments filed as Exhibit P-2.

19 The complainant asked the CEUDA president to assist him with his August 16, 2001, demotion grievance. The CEUDA did not assist the complainant because his position was excluded.

20 In February 2002, the complainant was informed that the employer had mistakenly excluded his position, and he requested that the CEUDA explain the circumstances of that error. On November 12, 2002, the complainant grieved the wrongful exclusion and requested reimbursement of expenses. The PSAC declined to refer the grievance to adjudication when the employer denied the grievance at the final level of the grievance process, in October 2003.

21 In his July 25, 2005, letter to the PSAC (Exhibit C-15) the complainant sought clarifications about the PSAC's role in the exclusion of his position. According to him, the PSAC clarified nothing in its November 8, 2005, letter (Exhibit R-2) and in its reply to the complaint dated April 12, 2006.

22 Bad faith occurs when the bargaining agent enters into an agreement or arrangement with the employer to exclude the complainant's position that results in a denial of a right or a loss of fair process, including independent adjudication for recourse against dismissal, demotion or financial penalty.

23 In November 2003, the complainant asked for the reimbursement of representational expenses in a grievance against the employer, and he asked the PSAC for an officer to represent him in an ITPR. The PSAC provided him with representation at the ITPR. A decision was rendered on November 16, 2003, by the ITPR reviewer. The bargaining agent was correct in not proceeding before the Federal Court to review the ITPR decision, but it made no effort to ensure that the employer implemented the ITPR's decision. In September 2003, the PSAC assigned a volunteer steward with no experience to the ITPR hearing. In March 2005, the PSAC refused to challenge the subjectivity of the percentage rating applied by Mike Walters in the reference check that he performed following the ITPR's decision.

24 The PSAC is charged with the legal and ethical responsibility of monitoring the organization of the public service. The PSAC was grossly negligent by omission and did not exercise due diligence in August 2001 when the complainant's lawyer inquired about his exclusion status. In September 2002, the PSAC was grossly negligent in accepting the employer's explanation that it had made an "honest mistake" in excluding the position.

25 In January 2005, the complainant was assured that a PSAC legal officer would represent him at the June 14, 2005, hearing. Three weeks before the hearing, the PSAC's representative informed the complainant that he would not represent him. The PSAC's actions demonstrated hostility and arbitrariness towards the complainant, who was isolated and forced to represent himself at the hearing.

26 The delays in resolving the exclusion matter and the complainant's acting status were caused by the PSAC, the employer and the complainant who adjourned both the Board and the ITPR hearings. The complainant never abandoned seeking resolution and redress.

27 The complainant stated that the Board should direct the PSAC to obtain the documentation showing that the complainant was the incumbent of an indeterminate position as of April 1, 2001. When that confirmation is received, the PSAC should demand that the employer show just cause at a Board hearing why it demoted the complainant from his manager position at the PM-05 group and level.

B. For the respondent

28 The complainant is contesting that the PSAC did not challenge his exclusion from the bargaining agent when the employer assigned him to the position of manager in February 2001. He was informed, in a letter of offer on February 27, 2001, that the position was excluded.

29 The complainant did not request the PSAC to contest the excluded status of his position when he asked the president of the CEUDA for assistance after his alleged demotion on August 16, 2001. The PSAC informed the complainant in February 2002, that no reference to the exclusion of the positions he occupied had been found in their files.

30 The complainant's complaint was filed with the Board on September 4, 2005, outside the 90 days provided for in the PSLRA and not within a reasonable period as is provided for in the Public Service Staff Relations Act (PSSRA) decisions. Subsection 190(2) of the PSLRA states the following:

190.(2)  Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board's opinion ought to have known, of the action or circumstances giving rise to the complaint.

31 The language in the PSLRA is mandatory and no provision in it provides for the possibility of extension. In those circumstances, the complaint should be denied.

32 In the PSSRA, no time limits were provided but the decisions made under that legislation held that a complaint should be filed within a reasonable period from the date on which the complainant knew or ought to have known of the action or circumstances giving rise to the complaint. In this case, the delay was unreasonable.

33 Even if the Board comes to the conclusion that the complaint was timely, the complainant submitted no evidence relating to an agreement between the PSAC and the employer to exclude his position.

34 The PSAC met the duty of fair representation at all times. The PSAC have no duty of fair representation towards an employee who occupies an excluded position. The PSAC honestly believed, at the time of the demotion, that the complainant's position was excluded and it did not act in a discriminatory, or arbitrary manner, or in bad faith.

35 With respect to the MOU's implementation, the PSAC could not be accused of failing to represent the complainant. Assistance was provided to the complainant in that file. The PSAC did not advance it to adjudication following a serious evaluation of the file.

36 In the ITPR process, the PSAC provided representation to the complainant. Consequently, no conclusion can be rendered against the PSAC in that circumstance. The complainant suffered no damages as the ITPR decision was in his favour.

37 The PSAC filed a grievance requesting reimbursement of the complainant's expenses. The PSAC provided representation during the grievance process. The PSAC correctly decided that this grievance could not be referred to adjudication. It was within its obligations as a bargaining agent to evaluate the grievance and decide whether to refer it to adjudication.

38 The allegation related to the adjudicator's decision rendered on July 20, 2005 (2005 PSLRB 73), was not relevant to the complaint. The PSAC conducted a serious evaluation of the file that supported its decision not to represent the complainant at that hearing. That decision was not discriminatory or arbitrary or rendered in bad faith.

39 To support his arguments, the complainant referred to the following decisions:

• Rhéaume v. Public Service Alliance of Canada, 2005 PSLRB 53;
• Harrison v. Public Service Alliance of Canada, PSSRB File No. 161-02-725 (19951023);
• McConnell v. Professional Institute of the Public Service of Canada, 2005 PSLRB 140.

40  In his written arguments (Exhibit P-2), the complainant stated that the PSAC conspired with the employer to exclude his position. No such arrangement was possible, since the PSAC had no knowledge of the employer's decision to exclude the complainant's position. No evidence has been adduced that shows that the PSAC did not monitor the organization charts or that it had a duty to monitor those charts. The PSAC had no responsibility to monitor the organization of the public service. On August 10 and 16, 2001, the complainant understood that he was in an excluded manager's position and did not seek the PSAC's representation at the meetings with the employer.

41 At page 6 of his arguments (Exhibit P-2), the complainant admitted that the CEUDA informed him, in February 2002, of the employer's explanation that it had made a mistake in excluding his position. The complainant should have filed his complaint within 90 days of that date. Before that explanation from the employer everybody, including the complainant, believed that the position was properly classified as excluded. The complainant only requested that the PSAC explain his employee's status in July 2005, outside the 90-day limit. A grievance was filed on November 12, 2002, regarding that excluded position, and the PSAC gave its approval (Exhibit C-4).

42 No evidence was adduced showing that the PSAC agreed to the employer violating the collective agreement as the complainant submitted (Exhibit P-2, page 8). The decision rendered in the ITPR was favourable to the complainant, and the PSAC could not be held responsible for the employer's actions after that decision.

43 The PSAC conducted a serious evaluation of the file before making the decision not to represent the complainant at the June 14, 2005, hearing. That decision was not discriminatory or taken in bad faith.

44 The complainant adduced no evidence regarding the damages he claimed in his submissions, (Exhibit P-2, pg. 11). The complainant requested, as a remedy, to have access to the documentation in the employer's possession. The PSAC cannot be ordered to obtain documentation that is not in its possession.

45 The complainant requested that the employer show "just cause for demotion" (Exhibit P-2, pg. 12). The complainant filed a grievance on that issue, and the case was resolved by an MOU between the parties (2005 PSLRB 73). That issue cannot be revisited.

C. Reply by the complainant

46 Regarding the complaint's timeliness, the PSAC never answered the complainant's correspondence requesting advice on what process should have been used to address the exclusion issue. The PSAC never requested clarification from the employer on the changing of the position numbers.

47 The PSAC provided representation for the grievor at the ITPR. The complainant submitted that the PSAC's failure to implement the ITPR's decision was unfair.

48 The complainant did not file his complaint for unfair representation against the PSAC until after the ITPR's decision had been rendered, because he did not want to lose the PSAC's assistance and representation.

49 The complainant did not complain of unfair representation regarding the PSAC's decision to not represent him at the June 14, 2005, hearing.

50 The complainant requested a hearing before the Board to obtain access to a fair process on his demotion.

IV. Reasons

51 The complainant filed his complaint on December 5, 2005. He alleged that the PSAC had been arbitrary and unfair on the issues of his removal from his manager's position (or what he characterized as his demotion from that position) and on his position's exclusion. He also complained that the bargaining agent should have contested the employer's decision to exclude his manager position.

52 Following a request for more information by the Board, the complainant stated that he sought a fair process before the Board and requested to be reinstated to his manager's position. The PSAC submitted a preliminary objection on the complaint's timeliness.

53 The evidence showed that the complainant accepted, by his signature on March 22, 2001, the offer of the position of Chief, Tariff, Value and Remissions (position number 30059120). The offer stated that it was an excluded management-level position (Exhibit C-1). The complainant stated that the employer erred by using a title and position number that were used before its reorganization in April 2000. The employer's error was not a ground of complaint. In his testimony, the complainant admitted that he had agreed, on that date, that the position offered was at the excluded management level.

54 The date to start the calculation should be February 2002, when the complainant found out that the employer excluded his position by mistake. From February 2002, to the date of his complaint (December 5, 2005), three years and 10 months had passed, considerably more than the 90 days prescribed in subsection 190(2) of the PSLRA. The wording of that subsection is as follows:

Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board no later than 90 days after the date on which the complainant knew, or in the Board's opinion ought to have known, of the action or circumstances giving rise to the complaint.

55  That wording is clearly mandatory by its use of the words "must be made no later than 90 days after the events in issue". No other provision of the PSLRA gives jurisdiction to the Board to extend the time limit prescribed in subsection 190(2). Consequently, subsection 190(2) of the PSLRA sets a boundary, limiting the Board's power to examine and inquire into any complaint that an employee organization has committed an unfair labour practice within the meaning of section 185 (under paragraph 190(1)(g)) of the PSLRA) and that is related to actions or circumstances that the complainant knew, or in the Board's opinion ought to have known, in the 90 days previous to the date of the complaint.

56 The PSAC's inaction regarding the employer's decision to consider the Manager, Compliance Verification position excluded was known, or ought to have been known, by the complainant by the time he received the information, in February 2002, that the employer excluded his position by mistake. Consequently, the allegation related to the absence of contestation of the exclusion by PSAC is outside the 90 days time limit prescribed in subsection 190(2) of the PSLRA. Furthermore, the complainant did not lead evidence to demonstrate that the PSAC conspired with the employer in his transfer out of the bargaining unit. This allegation, added to his complaint in his argumentation files as Exhibit P-1, is rejected.

57 There was another incident related to the exclusion. In February 2002, the complainant was informed that his position had been excluded by mistake by the employer, and he requested that the CEUDA explain the circumstances. On November 12, 2002, the complainant grieved the wrongful exclusion and requested reimbursement of his expenses. The PSAC represented the complainant and then refused to refer the grievance to adjudication when the employer denied the grievance at the final level of the grievance process for timeliness reasons. The complaint filed by the complainant on December 5, 2005, on the PSAC's alleged unfair labour practice following that refusal is also outside the 90-day time limit prescribed in subsection 190(2) of the PSLRA.

58 Despite the complaint on that basis being untimely, I note that the PSAC approved the presentation of this grievance (Exhibit C-4) and made representations on behalf of the complainant to the employer in the grievance process. Furthermore, the PSAC made a serious evaluation of the file before refusing to refer it to adjudication. In those circumstances, the complainant did not persuade me that the PSAC had acted in a discriminatory, or arbitrary manner, or in bad faith.

59 The complainant failed to demonstrate that the PSAC had an obligation to monitor the organization of the public service. The complainant alleges that the PSAC failed in its duty to monitor the organization of the public service and that had it done so, it would have realized earlier on that his exclusion from the bargaining agent unit had been improper. The complainant did not quote any clause of a pertinent legislation, regulation or collective agreement that obligates the bargaining agent to assume that monitoring role. No evidence was introduced to prove that the PSAC knew that the complainant had been offered and accepted an excluded position in February 2001. While bargaining agents have a role to play when the employer proposes positions for exclusion, and should intervene when the positions proposed for exclusion are inappropriate, nothing was advanced to show that it has a role once the position is excluded from the bargaining unit or to show that the bargaining agent failed in its duty to represent the complainant when the employer failed to advise the bargaining agent that it had excluded the complainant's position. The complainant has failed to prove that the PSAC was even aware that he had been appointed to the position that management claimed was excluded. The letter of appointment (Exhibit C-1) is addressed to him with no carbon copy to the PSAC.

60 Regarding the complainant's demotion or his removal from his position as Manager, Compliance Verification on August 17, 2001, the complainant filed his grievance on that issue on August 20, 2001. This grievance was the subject of a binding MOU signed on March 19, 2002, and the complainant was advised by the PSAC on May 25, 2005, that they would not represent him at adjudication in his attempt to proceed on his grievance despite the MOU. The complainant was filed in December 2005. He missed the 90-day time limit prescribed in subsection 190(2) of the PSLRA to file a complaint about the refusal of his bargaining agent to approve the presentation of that grievance and to make representations on his behalf to the employer.

61 The bargaining agent made representations on the complainant's behalf in that process. Despite the fact that the PSAC's representative, who had represented the grievor before, left before the end of the inquiry, the ITPR decision was in the complainant's favour. Under those circumstances, I have no reason to conclude that the PSAC acted in a discriminatory manner, in an arbitrary manner, or in bad faith. The PSAC made a serious evaluation of the file before refusing to bring it to judicial review or to request a new ITPR. Further, no allegation of unfair representation in relation to the ITPR hearing was made on the face of the complaint or at the hearing.

62 The PSAC conducted a serious evaluation of the file before refusing to represent the complainant at the Board's hearing on June 14, 2005. In light of the fact that this issue was not included in the complaint and because I did not receive evidence to support the complainant's allegation to the effect that the PSAC violated the duty of fair representation on that occasion, I am dismissing this allegation.

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

V.Order

64 The complaint is dismissed.

July 23, 2007

Léo-Paul Guindon,
Board Member