FPSLREB Decisions

Complaint before the Board

1 On February 14, 2007, Linda Shutiak (“the complainant”) filed a complaint with the Public Service Labour Relations Board (“the Board”) under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”) against the Public Service Alliance of Canada (“the respondent”). In her complaint, she alleged that the respondent contravened its own constitution by not carrying out an investigation and not imposing discipline following a previous complaint that she filed on March 29, 2006, with the respondent, thereby violating the unfair-labour-practice provisions of the Act. The complainant asked that the Board impose measures pursuant to subsections 192(1) and 202(1) of the Act.

2 On March 13, 2007, the respondent objected that the complaint was untimely and that it failed to demonstrate a prima facie violation of the Act. The respondent requested that the complaint be dismissed.

3 The Board initially scheduled a hearing of this complaint. On October 20, 2008, on application by the respondent, the Board directed that the issues of timeliness and jurisdiction be addressed by way of written submissions. The parties filed their written submissions on November 10 and 28 and December 8, 2008.

Uncontested facts

4 On March 29, 2006, the complainant filed a complaint with the respondent’s executive committee alleging that the Union of Taxation Employees (UTE), one of the respondent’s components, contravened clause 25(5)(k) of the respondent’s constitution, which reads as follows:

A PSAC, Regional Council, Component, Local, Area Council officer or member, is guilty of an offence against this Constitution who:

…

(k) furnishes without prior authority a list or any information on the membership of the PSAC, its Regional Councils, Components or Locals, to any person or persons other than those whose official position in the PSAC, its Regional Councils, Components or Locals, would entitle them to have such information;

The complainant requested that an investigation be conducted pursuant to the respondent’s regulations.

5 The complainant followed up repeatedly with the respondent’s executive committee during spring and summer 2006. She received a reply from JohnGordon, the respondent’s national president, on September 1, 2006, explaining that he was satisfied with the actions that had been taken by the UTE’s national president and that no further action was required.

6 The complainant emailed Mr. Gordon on September 7, 2006, asking him to advise her on how to appeal his decision not to proceed with an investigation. The complainant had followed up four times on that request by October 10, 2006. She then filed this complaint with the Board on February 14, 2007.

Summary of the arguments

7 The respondent submitted that the September 1, 2006, response from Mr.Gordon was clear and that the 90-day time limit prescribed in subsection 190(2) of the Act to file a complaint is mandatory and was not respected by the complainant. The series of subsequent emails that she sent do not extend the time limit, and therefore, the complaint filed on February 14, 2007, was well beyond the 90-day time limit prescribed in subsection 190(2).

8 The respondent further submitted that, as the complaint does not reveal a prima facie violation of the unfair-labour-practice provisions of the Act, the Board is without jurisdiction to hear it. Even though it is not exactly clear what section of the Act has allegedly been violated, the respondent submitted that, in this case, the following two provisions need to be examined: allegations under section 187 that the respondent has acted “…in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit…” or, under section 188, specifically in paragraphs (b) and (c), that the respondent expelled or suspended the complainant or engaged in disciplinary action against her in a discriminatory manner.

9 The respondent stated that there is nothing in the complaint that relates to its duty to represent the complainant in her dealings with her employer. Similarly, there is nothing in the complaint that relates to discipline by the respondent towards the complainant. The respondent added that the complaint deals exclusively with its internal matters and referred to Kraniauskas v. Public Service Alliance of Canada et al., 2008 PSLRB 27.

10 The complainant submitted that, following the September 1, 2006, response from Mr. Gordon, she asked him many times how to appeal his decision and never received a response. This, according to her, extended any deadline for filing her complaint with the Board. Her last email to Mr. Gordon was sent on October 10, 2006. She allowed 90 days for a response. When no reply was received, she filed her complaint.

Reasons

11 The time limit set out in subsection 190(2) of the Act is very clear:

          190. (2)…a complaint…must be made to the Board not later then 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.

12 The complaint before the Board deals with Mr. Gordon’s September 1, 2006, decision to take no further action on the complaint that the complainant filed with the respondent’s executive committee on March 29, 2006. His decision reads as follows:

[G]iven the circumstances and undisputed course of action already undertaken, I do not believe further action is required or beneficial to the Local or Union.

13 The complainant received Mr. Gordon’s decision on September 1, 2006. That decision is unambiguous, and the complainant knew on that day that the respondent would take no further action on her initial complaint. She had 90 days from that date to file this complaint with the Board. She did not.

14 The series of emails that the complainant later sent to Mr. Gordon did not have the effect of extending the time limit for filing her complaint against his decision of September 1, 2006.

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

Order

16 The complaint is dismissed.

March 11, 2009.

Michel Paquette,
Board Member