FPSLREB Decisions

I. Complaint before the Board

1 The complainant, Guy Veillette, has been a federal public service employee at the Canada Revenue Agency since 1991 and a steward with the Professional Institute of the Public Service of Canada (“the Institute”) since 1999.

2 As a result of a disciplinary process, the Institute suspended Mr. Veillette from his bargaining agent duties for two years. On March 23, 2007, Mr. Veillette filed a complaint with the Public Service Labour Relations Board (“the Board”) alleging that the Institute, its board of directors and two of its senior officers failed to comply with paragraph 188(c) of the Public Service Labour Relations Act (“the Act”), because they applied the Institute’s standards of discipline in a discriminatory manner. Mr. Veillette alleges that the investigation report that led to his bargaining agent duties being suspended was flawed, that he was not given an opportunity to be heard and to challenge the findings, and that the Institute’s decision was biased.

3 Mr. Veillette seeks the following remedies:

1. immediate rescission of the disciplinary action; reinstatement of his steward status and the bargaining agent positions that he held when he was suspended, namely, president of the AFS Montreal subgroup, member of the Montreal-Centre branch executive, treasurer of the Quebec regional executive, member of the Quebec regional council and member of the finance committee;
2. reimbursement of expenses incurred;
3. payment of financial compensation; and
4. creation by the Institute of an independent, non-partisan complaint system that follows the principles of procedural fairness.

II. Summary of the evidence

4 On September 8, 2006, the Institute’s Quebec Regional Stewards Council held a meeting at the Château Bromont Hotel. That evening, after the banquet, the attendees headed for the hotel bar. On the way, a shoving match broke out between Réal Lamarche and Mr. Veillette (“the incident”). Mr. Lamarche’s shirt collar was torn. After the incident and in the days that followed, Mr. Lamarche felt pain in his ribs. On September 13, 2006, Mr. Lamarche sneezed and felt intense pain in his ribs. On September 14, 2006, he was diagnosed with a fractured rib. The attending physician told Mr. Lamarche that it was not unusual for a rib to crack as a result of an impact and then to fracture a few days later from a sneeze.

5 On September 26, 2006, Mr. Lamarche filed a complaint with the President of the Institute, the late Michèle Demers, about the incident. The complaint reads as follows:

[Translation]

Michèle,

Please find attached the details of an event involving Guy Veillette and me that occurred in Bromont on September 8, 2006, during the Quebec Stewards Council.

I do not think that there were personal reasons for the actions but rather that they were directed toward me as a union representative; I find that unacceptable and request that you please treat this as a formal complaint against Guy Veillette.

Please take all the necessary steps to ensure that the action does not go unpunished.

The conflict behind the incident should be considered background to this case.

6 In 2005, Hélène Rogers was the Quebec representative on the Institute’s national executive. She represented 11 employee subgroups in Quebec. Mr. Lamarche was the outgoing national president of the AFS subgroup (approximately 11 000 employees) of employees classified AU, CS and MG at the Canada Revenue Agency. Mr. Veillette was the president of the AFS Montreal subgroup, and Ms. Rogers had also been on that executive for two years. A conflict between Ms. Rogers and Mr. Veillette had been ongoing for 15 months. Mr. Veillette was bypassing Ms. Rogers to handle matters with national impact.

7 The last straw was Ms. Rogers’ support, in her role as regional representative, of candidates for national positions at the Institute with which the AFS Montreal subgroup executive did not agree. At a meeting on December 5, 2005, from which Ms. Rogers was absent, the Montreal subgroup executive approved a censure motion against her and asked her to resign. On January 27, 2006, Ms. Rogers, with Mr. Lamarche’s support, filed a complaint with the president of the Institute criticizing that action and requesting that Mr. Veillette’s status as an AFS subgroup steward be revoked. On August 8, 2006, Ms. Rogers resigned from the AFS Montreal subgroup executive. In a letter dated August 10, 2006, the President of the Institute informed Ms. Rogers that no further action would be taken on her complaint.

8 The incident is the result of an altercation between Messrs. Lamarche and Veillette about the filing of Ms. Rogers’ complaint. After Mr. Lamarche’s complaint was filed, the battle continued between Mr. Veillette, Ms. Rogers and Mr. Lamarche following an unsolicited email that Mr. Lamarche sent to roughly sixty AFS subgroup stewards during the bargaining agent’s election period. In it, he described his version of the facts surrounding the incident and blamed Mr. Veillette. Despite a request from the Institute’s board of directors, Mr. Lamarche refused to recant.

9 On October 10, 2006, the Institute’s executive committee appointed Pierre Delage, a former legal advisor for the Institute, to investigate Mr. Lamarche’s complaint under the Institute’s internal policy, “Section 11 — Dispute Resolution, Part B — Complaints By Institute Members Against Members Holding Office Or Appointed Positions” (“the policy”). Mr. Delage interviewed witnesses on October 25 and 26, 2006. On November 23, 2006, Mr. Delage sent Messrs. Lamarche and Veillette his report on the testimonies, without his findings, and asked them to submit their comments within seven days. Mr. Lamarche sent his comments on January 3, 2007, and requested to be heard. His comments were not included in the report because, at that point, the report was “final,” and it had already been studied by the executive committee. Mr. Veillette sent his comments by the stated deadline. Mr. Delage considered them in his report but gave detailed reasons for rejecting each one. In short, Mr. Delage found that Mr. Lamarche’s version of the incident, supported by witness Luc Carrière, was more believable than Mr. Veillette’s version, supported by witness Patrick Sioui. Mr. Delage concluded that Mr. Veillette’s action should be subject to discipline “[translation] that sends a message to other stewards that that type of behaviour is unacceptable…” Mr. Delage signed and sent his investigation report to the executive committee on December 6, 2006.

10 The minutiae of the investigation report is not relevant to my decision, except for the following findings in the report, which had disciplinary consequences for Mr. Veillette:

[Translation]

…

Findings

The versions of the two parties differ significantly, to say the least.

The incident was definitely not as serious according to Mr. Veillette as it was according to Mr. Lamarche. Moreover, Mr. Veillette was right in wanting to discuss Ms. Rogers’ complaint against him, a complaint in which Mr. Lamarche had made himself a party. In so doing, Mr. Veillette claims that Mr. Lamarche put himself in a conflict of interest, which was completely unacceptable. Therefore, Mr. Veillette’s action toward Mr. Lamarche was legitimate.

Mr. Lamarche states in his version that he did not want to speak with Mr. Veillette and, from his testimony, it is evident that he clearly indicated that to Mr. Veillette.

When one person addresses another and the second person either refuses to speak or immediately dismisses the first, the natural reaction of first person is usually negative. Mr. Veillette was turned away, and he was not happy about it.

…

In summary, the versions of Mr. Lamarche and Mr. Carrière are consistent with the outcome of the crack and the fracture that followed a few days later. The reports of the attending physicians, supported by a specialist that the undersigned consulted, lead to the inescapable conclusion that Mr. Lamarche suffered an injury around his ribs that was severe enough to lead to a fracture. That injury was caused by Mr. Veillette’s actions during a relatively physical and violent incident in the hallway leading to the bar at Château Bromont Hotel, after dinner (supper) on the evening of September 8, 2006, during a meeting of the Institute’s Quebec Regional Council.

Mr. Veillette lost control of his emotions when Mr. Lamarche refused to speak with him. He lost his temper and, while he was not a giant, he clearly had a physical advantage over Mr. Lamarche and would have had no difficulty in manoeuvring Mr. Lamarche toward the wall.

The undersigned cannot help but find that Mr. Veillette was experiencing moments of frustration since he assumed the position of President of the Montreal subgroup. He saw himself filling the shoes of his predecessor, Mr. Bouthillette, who had held the position for many years and, in the words of Mr. Veillette, “was everywhere.” Mr. Veillette took over the position and, according to him, not only did he experience frustration with Ms. Rogers, but it also appeared that the lineage that he believed he had inherited as president of the largest subgroup in Quebec was not being recognized.

However, frustration is not a reason to act as he did. Mr. Lamarche was entitled to decide not to discuss Ms. Rogers’ complaint on the evening of September 8, 2006, if he did not wish. That said, indifference is insulting, while diplomacy keeps things calm.

Nevertheless, given Mr. Lamarche’s refusal to speak, Mr. Veillette should have simply let it go. He chose to do otherwise. He acted incorrectly. He reacted with physical force. In a debate, physical force is the weapon of the weak and is highly inappropriate.

Moreover, in acting as he did, Mr. Veillette has cast serious doubt on his abilities as a leader and a representative of members of his union. A responsible steward does not act in such a manner. I do not mean to say that Mr. Veillette will never make a good union leader. If he learns to contain and master his emotions, it is highly likely that he will be perfectly qualified to return to that type of work. However, for now, his action requires a penalty that sends a message to other stewards that that type of behaviour is unacceptable.

…

11 On December 20, 2006, the executive committee, composed of five elected members (the president of the Institute, two full-time vice-presidents and two part-time vice-presidents), reviewed Mr. Delage’s report. The report’s content and findings were adopted by a majority (3 to 2). The executive committee recommended disciplinary action, namely, suspending Messrs. Veillette and Lamarche from their positions as stewards and from their bargaining agent duties for two years and one year respectively. On December 21, 2006, Ms. Demers held a teleconference with Messrs. Veillette and Lamarche and offered them an opportunity to resolve their differences through an informal conflict resolution process. Mr. Veillette agreed to the process, but Mr. Lamarche refused. Therefore, the executive committee’s disciplinary recommendation was forwarded to the board of directors.

12 On January 11, 2007, the board of directors (composed of 15 members, including those of the executive committee), after holding a debate and secret-ballot vote, imposed two years’ discipline on Mr. Veillette but rejected any penalty for Mr. Lamarche. As a result of the discipline, Mr. Veillette was suspended from his bargaining agent duties and was no longer qualified for a position that he had been seeking on the finance committee.

13 On January 11, 2007, Ms. Rogers was a member of the board of directors that determined the discipline that was imposed on Mr. Veillette. According to Ms. Demers’ testimony, Ms. Rogers did not participate in the discussion but took part in the secret-ballot vote that approved discipline for Mr. Veillette and rejected punishment for Mr. Lamarche.

14 In addition, the Institute’s election campaign at that time played a role. In fall 2006, Ms. Demers was re-elected as president of the Institute. Ms. Rogers was a newly elected full-time vice-president and began sitting on the board of directors on January 1, 2007. Ms. Rogers and Ms. Demers had a close relationship. Ms. Rogers’ election campaign was backed by Mr. Lamarche and a bargaining agent colleague, Anne Hébert. Ms. Rogers and Ms. Hébert helped Mr. Lamarche write his complaint against Mr. Veillette. According to emails tendered in evidence, Ms. Rogers allegedly encouraged Suzanne Pelletier to file a complaint against Mr. Veillette and helped Mr. Carrière to “better remember” the incident to support Mr. Lamarche’s version. Additionally, the AFS Montreal subgroup executive supported Yvon Brodeur for vice-president, rather than Ms. Rogers, and Gaston Lampron for president, rather than Ms. Demers.

15 Of all the testimonies, Ms. Demers’ highlights certain elements key to the conclusion of this matter. The Institute is an elected body. Stewards necessarily form alliances with each other, which is neither against the Institute’s regulations nor contrary to the spirit of the union movement. It is perfectly normal for stewards to help each other with election campaigns or with handling files and complaints. Elected representatives work on committees and are asked for their opinions. By not participating in the discussion on the penalty for Mr. Veillette, Ms. Demers thought that Ms. Rogers was exercising restraint; however, because of her new duties, Ms. Rogers did not have to abstain from the secret-ballot vote.

16 Ms. Demers had no recollection of the email that Mr. Veillette allegedly sent her on January 7, 2007, in which he requested to be heard by the board of directors on his version of the incident. Ms. Demers stated that she receives a large number of emails each day and that she cannot read every one completely or reply to every one immediately. Therefore, she did not mention the email to the board of directors during the discussion and secret-ballot vote on January 11, 2007. However, in her opinion, Mr. Veillette had the opportunity to be heard by Mr. Delage, as did all the other witnesses to the incident. Ms. Demers believed that the investigation report, although not perfect, contained all the information needed to make an informed decision. She said that she criticized Mr. Lamarche for the email that he sent to all Quebec stewards about the incident but that she did not feel the need to follow up with him.

17 Ms. Demers testified that the investigation process for Mr. Lamarche’s complaint and the decision of the board of directors to discipline Mr. Veillette were in accordance with the spirit and the letter of the policy. If a neutral person conducts an investigation, then the process does not require that a member be heard. Ms. Demers said that she evaluated the overall quality of Mr. Delage’s report, given his experience, without focusing on individual testimony.

18 The Institute’s members vote on its By-Laws and Regulations (“the By-Laws”) at its annual general meetings. By-Law 24 was created in 1991 when the Institute, as bargaining agent for one of the groups it was representing, was jeopardized by one of its members. By-Law 24 has not been used since that time. However, the board of directors approved the policy in 1994, and it was never voted on at an annual general meeting. The policy is a departure from the disciplinary hearing provided under By-Law 24. Under the policy, the decision of the board of directors on discipline in response to a complaint that it finds valid is final and without appeal. Ms. Demers stated that Mr. Veillette did not invoke his rights under By-Law 24 before this hearing. Moreover, the policy has been applied twice before in cases involving physical altercations, and those cases were settled informally.

19 Responding to my questions, Ms. Demers testified that the By-Laws are public documents available on the Institute’s website, as required under the Canada Corporations Act. Ms. Demers was not certain whether the Institute’s policy was available on the website when Mr. Lamarche’s complaint was being handled. Both the English and French versions of the By-Laws are official. The By-Laws can be amended only at an annual general meeting, while a policy may be amended by the board of directors. Once approved at an annual general meeting, the By-Laws must then be approved by the minister responsible, as stated in the Canada Corporations Act.

20 According to Edward D. Gillis, Executive Secretary of the Institute, By-Law 24 is used only to punish misconduct that jeopardizes the Institute’s interests as a bargaining agent or its reputation. By-Law 24 is not used to settle disputes between the Institute’s members. Mr. Gillis testified that the By-Laws could only be voted on at an annual general meeting. The board of directors may interpret the By-Laws but cannot amend them. A practices committee ensures that the Institute’s policies do not conflict with its By-Laws. The board of directors did not apply By-Law 24 in Mr. Veillette’s case. Mr. Gillis justified the policy’s existence by invoking current labour relations trends for settling disputes through mediation, thus avoiding disciplinary hearings.

III. Summary of the arguments

A. For the Institute

21 The Institute argued that Mr. Veillette has not demonstrated that disciplinary standards were applied in a discriminatory manner. Paragraph 188(c) of the Act is a new legislative provision, and it must be interpreted in the context of public service labour relations as a whole. Moreover, the Institute argued that the Board must exercise restraint with respect to an action by a bargaining agent toward its members, as it does with respect to interpreting section 187, which isabout a bargaining agent’s duty of fair representation in relation to its members. Those provisions should be interpreted narrowly since the bargaining agent must be able to exert a certain control over its members and to manage its stewards without the need for the Board to scrutinize its every action.

22 When the Institute received Mr. Lamarche’s complaint, it informed the parties that the complaint would be handled in the usual manner. For 12 years, the normal procedure has been to hire an investigator to make recommendations rather than to hold a disciplinary hearing. There was no objection to Mr. Delage’s appointment. He went ahead with the investigation. Messrs. Lamarche and Veillette had the opportunity to submit comments. Neither one complained about a lack of procedural fairness, about natural justice or about the form of the investigation. The investigation report upheld Mr. Lamarche’s version and found Mr. Veillette responsible for the incident. Since Messrs. Lamarche and Veillette were not equally responsible, it was perfectly reasonable for the board of directors to decide to discipline Mr. Veillette and not to discipline Mr. Lamarche. The matter was discussed and then put to a secret-ballot vote. Mr. Veillette has not demonstrated that the discipline imposed on him departed from the Institute’s standards. Ms. Demers notified Mr. Veillette of the decision of the board of directors. The fact that Mr. Delage’s findings for each member were different was not discriminatory.

B. For Mr. Veillette

23 Mr. Veillette argued that the Institute was wrong in believing that its executive committee and board of directors are supreme and that the Board should not examine their decisions even though the new Act changed the situation in 2005. Mr. Veillette was never informed about the procedure that would be applied in investigating Mr. Lamarche’s complaint; therefore, he was not able to object to it. He did not become aware of the procedure until after the board of directors had made its decision about discipline. Since she was a member of the board of directors when the discipline was imposed on Mr. Veillette, Ms. Rogers was in a conflict of interest situation since she was the cause of the incident. Moreover, she helped Mr. Lamarche write his complaint against Mr. Veillette and helped Mr. Carrière to fill in his testimony on his version of the incident. Mr. Veillette would never have learned about it were it not for a subsequent disclosure of emails by the Canada Revenue Agency in response to a request for access to information.

24 Mr. Lamarche was treated differently. He emailed his version of the facts to all Quebec region stewards, and he was not disciplined for that wrongdoing. However, the discipline for Mr. Veillette suited Ms. Demers. Therefore, she did not follow up on Mr. Veillette’s request to explain himself before the board of directors, Mr. Veillette’s comment that the investigation report contained inaccuracies, Mr. Sioui’s written testimony or Ms. Rogers’ involvement in writing Mr. Lamarche’s complaint. Since Mr. Veillette was not heard, the board of directors did not know that people who were not witnesses to the incident had been interviewed, while certain direct witnesses had not been interviewed.

25 Mr. Veillette asked me to draw a negative conclusion about the investigation procedure and the decision to discipline him, given that Mr. Delage did not appear at the hearing, even though Mr. Veillette had twice called him as a witness. Therefore, it was not possible to question Mr. Delage about the circumstances of the investigation.

26 The discipline imposed on Mr. Veillette is not trivial; it has tarnished his reputation and affected his family. A number of people involved in the discipline decision had a personal interest. If the board of directors had been informed and the decision-making process had been transparent, Mr. Veillette’s arguments would likely have led to further investigation or to a disciplinary hearing. Mr. Veillette was denied that fundamental right.

IV. Reasons

27 The following provisions of the Act apply to this case:

…

          185. In this Division, “unfair labour practice” means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

…

          188. No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall

…

(c) take disciplinary action against or impose any form of penalty on an employee by applying the employee organization’s standards of discipline to that employee in a discriminatory manner;

…

Those provisions were new law as of April 1, 2005, resulting from reforms to the Public Service Staff Relations Act. They are precise. The Board may review the discipline imposed on a member of a bargaining agent to decide whether it was discriminatory, which clearly includes the decision-making process that led to it. In fact, Parliament imposes a duty of transparency on both public-sector bargaining agents and private-sector unions since a provision identical to paragraph 188(c) of the Act appears as paragraph 95(g) of the Canada Labour Code. The wording of paragraph 188(c) suggests that Parliament has left its interpretation to the Board, which must evaluate each case on its own merits.

28 For reasons explained below, the expression “in a discriminatory manner” within the meaning of paragraph 188(c) of the Act refers, in my opinion, to a decision-making process free of discrimination, a concept of administrative justice. Therefore, with great respect, I must differentiate between my analysis and the analysis in Shutiak et al. v. Union of Taxation Employees — Bannon, 2008 PSLRB 103, which found that the word “discriminatory” in paragraph 188(c) referred to prohibited grounds of discrimination under the Canadian Human Rights Act.

29 The discipline alleged by Mr. Veillette is the result of applying an internal policy of the Institute that Ms. Demers and Mr. Gillis admit departs from the procedure set out in By-Law 24. In short, By-Law 24 provides for a disciplinary hearing, while the policy applied in this case does not. As explained in the following analysis, the provision for a disciplinary hearing in By-Law 24 was designed according to so-called “natural justice” principles of administrative justice, which specifically aim to prevent discriminatory decisions.

30 Briefly put, the principles of natural justice include two concepts. First is jurisdiction, which requires that the decision-making authority act within the framework of its enabling legislation, in this case the Institute’s By-Laws. Second is procedural fairness. That concept refers to proceedings respecting the fundamental requirement of the “right to be heard.” Any person whose interests are threatened has the right to participate in the proceedings before a decision is made that affects that person, whether by means of a hearing or otherwise. Procedural fairness is not a rigid concept. It depends on the kind of power exercised and the implications of the measure contemplated as well as the practical conditions that result from a longer proceeding. The greater the consequences, the more the proceedings should be akin to a judicial procedure.

31 I will now explain the relevance of those concepts to this case.

32 In Mr. Veillette’s case, the board of directors acted as the decision-making authority with respect to the discipline imposed on him. That decision-making authority is delegated by the members of the Institute, who, at the annual meeting, expressed their wishes to the elected representatives responsible for carrying out their wishes. In fact, the preamble to the By-Laws reads as follows:

PREAMBLE

The Institute is a duly incorporated organization which acts as the bargaining agent for professional employees. Members, as a whole, are the supreme power in the Institute. Elected representatives implement the wishes of the members, as expressed at General Meetings of the Institute.

…

The control of the Institute is in the hands of members through a directly-elected President, Executive Committee and Board of Directors who implement policy and manage operations between General Meetings of the Institute.

[Emphasis added]

33 By-laws can be enacted, repealed or amended only at general meetings, as set out in By-Law 13.7.1, and the changes do not take effect until they have been approved by the federal minister responsible:

13.7.1 By-Laws

13.7.1.1 Only a General Meeting may enact, repeal or amend the By-Laws of the Institute.

…

13.7.1.4 Effective Date By-Laws and any amendments thereto shall take effect only upon approval of the Minister responsible for administering the Canada Corporations Act.

[Emphasis added]

34 The board of directors must act subject to the By-Laws, as prescribed under By-Law 15.2:

…

15.2 Authority

15.2.1 The Board is a continuing entity which shall exercise the authority of, and act on behalf of, the Institute on all matters, subject to these By-Laws and to policy decisions of General Meetings. Decisions of the Board remain in force until rescinded.

15.2.2 The Board shall, between General Meetings, interpret all By-Laws, resolutions and motions of General Meetings.

…

[Emphasis added]

35 The By-Laws define the “jurisdiction” of the decision-making authority of the board of directors, including its jurisdiction to carry out a disciplinary process when a member’s conduct is considered harmful to the interests or reputation of the Institute. By-Law 24.2 states that, where misconduct has been established, the member at fault shall be disciplined based on the severity of the misconduct and on a scale of disciplinary measures.

36 The investigation process is described in By-Law 24.3 and following. The key elements of the process are as follows:

1. the member shall be notified within 24 hours of the intention to impose discipline upon him or her and the reasons for such intent (24.12);
2. the hearing shall be held not less than two weeks or more than four weeks from the date the member is notified (24.12);
3. the member shall be informed of the identity of the persons to conduct the disciplinary hearing, and the time and place of such hearing (24.13);
4. the member is entitled to attend the disciplinary hearing, to be heard, to be represented, to present evidence, to call witnesses and to receive reimbursement of his or her expenses subject to the discretion of the Institute (24.14);
5. the persons conducting the hearing shall give fair opportunity to all interested parties to be heard and shall submit a report of their findings and recommendations within four weeks of the hearing (24.15); and
6. a scale of disciplinary measures shall be used; the board of directors has the authority to impose more severe measures than the group executive (24.16.1 and 24.16.2).

37 It should be noted that the disciplinary process set out in By-Law 24 is consistent in every respect with the principles of natural justice described above. Moreover, in By-Law 24.16.1, a limit has been placed on the discipline that may be imposed on members of the Institute:

1. expulsion from membership in the Institute;
2. suspension from membership in the Institute for more than 180 days;
3. suspension from membership in the Institute for 180 days or less;
4. removal from any or all office(s) held in the Institute or any of its constituent bodies;
5. suspension from any or all office(s) held in the Institute or in one of its constituent bodies for 180 days or less;
6. loss of voting privileges for a period not exceeding 90 days; and
7. loss of voting privileges for a particular vote of the membership of the Institute.

38 The policy does not incorporate the procedural protections in By-Law 24 but leaves sole discretion to the board of directors, as follows:

SECTION 11 — DISPUTE RESOLUTION

…

Part B — Complaints By Institute Members Against Members Holding Office Or Appointed Positions

Last Revised — December 10, 1994

Preamble

This policy shall apply when a member is dissatisfied with the actions of members in the course of fulfilling their office in an elected or appointed Institute position. This policy does not apply to Institute members elected under By-Law 20.1.

Investigation Procedures

A complaint, in writing, must be submitted to the President. The member(s) against whom a complaint has been made shall be notified of the complaint and requested to respond in writing, within a specific time frame.

The President, with the concurrence of the Executive Committee, may appoint an investigator(s) to collect facts on the complaint from all parties concerned.

The investigator(s) shall submit a report to the Executive Committee.

The Executive Committee, based on the report, shall determine the validity of the complaint.

If a complaint is judged invalid, then no further action shall be taken after the parties (complainant(s) and elected or appointed member) have been informed of the decision.

If a complaint is judged valid, then the parties shall be so informed the parties will be given the opportunity to resolve the situation informally to the satisfaction of all. If this course of action is not possible, the elected or appointed member may choose to resign.

If the informal process does not resolve the situation, the Executive Committee may recommend to the Board of Directors further action.

[Emphasis added]

39 I cannot find any provision in the By-Laws that would allow the board of directors to bypass a disciplinary hearing or to suspend a steward from his or her bargaining agent duties for more than 180 days. Indeed, Mr. Veillette was neither suspended from membership in the Institute nor removed from an office within the Institute. He was removed from his bargaining agent duties for two years, a penalty that does not appear in By-Laws 24.16.1(d) and (e).

40 Mr. Veillette argues that the Institute did not inform him of the procedure that would be followed to investigate Mr. Lamarche’s complaint. He refers to a letter that Ms. Demers sent him after receiving Mr. Lamarche’s complaint:

[Translation]

Sir:

I received the attached email from Réal Lamarche, which I consider a written complaint about the incident that occurred in Bromont on September 8, 2006, at the Quebec Stewards Council.

The matter will follow its normal course, and you will be kept informed in a timely manner.

…

The President

[Emphasis added]

The letter does not specify the investigation procedure that was to be used, i.e., either By-Law 24 or the policy, since no copy of either is attached, in contrast to other examples of complaints tendered into evidence. Only a copy of Mr. Lamarche’s complaint is attached to the letter. Given that two procedures exist, the expression “normal course” is ambiguous.

41 The acknowledgment of receipt of Mr. Lamarche’s complaint has not been tendered into evidence since it is not challenged in this case. Therefore, I cannot assume what was said to Mr. Lamarche. However, the Institute did tender into evidence an email from Mr. Lamarche to Ms. Demers, dated January 3, 2007, in which he states that he had reviewed the final investigation report and that he wanted know the “[translation] rationale” behind the executive committee’s desire to impose discipline on him. He ends the email by saying “[translation] … I retain the possibility to request a hearing before the Board of Directors (BOD) to explain my point of view.”

42 In his January 7, 2007 email, Mr. Veillette clearly expresses to Ms. Demers his desire to be heard:

[Translation]

…

On a different topic, I acknowledge receiving the complete report of Investigator Delage. Since I cannot reach an agreement with the complainant, I request the Executive Committee’s permission to present my point of view on the report, for the following reasons:

- when the executive committee met to discuss the matter, I had obtained an incomplete copy of Investigator Delage’s report that did not contain any findings; and

- I believe that I can clearly demonstrate the following:

- the report contains erroneous facts;

- elements critical for decision making are missing;

- testimony is reported inaccurately or incompletely, or is missing; and

- falsehoods and a number of discrepancies are found in the report.

Your decision on this matter has a major impact on my career as a unionist, a position that I hold full-time for the PIPSC.

In our democracy, before finding someone guilty, that person must have the opportunity to express or defend himself or herself. A labour organization like the PIPSC cannot be allowed to mock that fundamental rule.

I would appreciate it if the executive committee (1) would give me an opportunity to submit my comments on the complete report before coming to a final decision and referring it to the Board of Directors.

In conclusion, I am open to dialogue with the complainant, Mr. Lamarche, and I hope that approach will succeed. If it does not, I would like you to give me an opportunity to provide my comments on the investigation report to the Executive Committee.

…

[Emphasis in the original]

43 Given the ambiguity in Ms. Demers’ letter, I must agree with Mr. Veillette and find that he was not fully informed about the process that would be followed to determine the penalties that might be imposed on him. Therefore, he was unable to object. It is clear that the email of Mr. Veillette, as well as that of Mr. Lamarche, suggests that he was expecting the disciplinary procedure and hearing provided in By-Law 24 to be followed.

44 Why was that procedure not followed? According to Ms. Demers and Mr. Gillis, By-Law 24 had not been applied in 12 years and, at that time, it was used to discipline a member for a different kind of misconduct. After a decision by the executive committee, the board of directors found that the appropriate procedure for Mr. Lamarche’s complaint was the one set out in the policy.

45 I am of the view that the decision by the board of directors to bypass By-Law 24 did not reflect the wishes of the membership to ensure a disciplinary process for its members that respects natural justice. Moreover, as the By-Laws are public documents available under the Canada Corporations Act, the board of directors was not at liberty to adopt a contrary procedure since the purpose of making the document public was to inform those involved of their rights.

46 Furthermore, the board of directors suspended Mr. Veillette from participating in bargaining agent activities for two years. However, By-Law 24.2 provides for disciplinary action that is incremental and in keeping with precedent actions and decisions in similar cases:

24.2 Where misconduct has been established, disciplinary action shall be consistent with the severity of the infraction committed, and shall take into account any prior disciplinary decisions regarding the member concerned. Insofar as deemed practical, notice also shall be taken of precedent actions and decisions in similar cases.

[Emphasis added]

47 In this case, while Mr. Veillette had not received any prior discipline, the board of directors imposed discipline on him that was more severe than that set out in By-Law 24. The Institute has not explained to me the reasons for such a severe penalty (apart from the findings of the investigation report) and has not referred to similar cases in which it has imposed such a severe penalty. The fact that By-Law 24 was last applied in 1991 under different circumstances and the fact that the policy aims to modernize the relationship between members by replacing disciplinary hearings with investigations do not justify the decision to bypass a procedure that fosters procedural fairness.

48 In this case, nothing was stopping the Institute from attempting to settle Mr. Lamarche’s complaint informally. However, once the dispute could not be resolved using an informal approach, the board of directors should have applied By-Law 24, especially since both members in question had requested to be heard. The fact that Mr. Lamarche’s request to be heard was made after the deadline set by Mr. Delage for responses to his preliminary report is immaterial. The deadline was not regulatory. The same situation holds for Mr. Veillette, who requested to be heard. The fact that Ms. Demers ignored or failed to follow up on Mr. Veillette’s request is also reprehensible.

49 The board of directors not only bypassed By-Law 24, it also imposed a penalty that does not reflect the progressive scale of disciplinary measures set out in By-Law 24.16.1. By-Law 24 represents the desire of the membership to apply a disciplinary process that respects the rules of procedural fairness, and the board of directors was obligated to follow those rules. Therefore, the standards of discipline applied to Mr. Veillette were discriminatory. They did not respect the Institute’s rules, and they constitute an unfair labour practice by an employee organization prohibited under paragraph 188(c) of the Act.

50 Mr. Veillette did not testify at the hearing. In the absence of concrete evidence of his losses, other than the arguments of his counsel, I find that Mr. Veillette has not presented evidence to allow me to grant additional financial relief for the impact of the suspension. Indeed, even if the decision of the board of directors not to follow By-Law 24 was misguided, I was not convinced that the entire board of directors acted in bad faith; therefore, there is no need to grant the other remedies sought.

51 The Institute requested that Mr. Veillette reimburse the fees associated with the attendance of the witnesses he called who are members of the Institute. In my presence, Mr. Veillette agreed to cover the fees. The Institute then gave Mr. Veillette a sheet on which some figures were written. Since no supporting documents or receipts were attached, Mr. Veillette objected to paying the amounts claimed. In that respect, the parties asked me to determine whether the payment of those fees is justified.

52 Under section 248 of the Act, Mr. Veillette is obligated to pay the fees and allowances to which the witnesses he called are entitled. However, he is entitled to receive supporting documents and receipts, where applicable, rather than simply some calculations on a piece of paper. The Institute shall provide Mr. Veillette, within 30 days of the date of this decision, supporting documents and receipts for the amounts payable to the witnesses, failing which Mr. Veillette shall not be obligated to pay the fees and allowances of the witnesses he called who are members of the Institute and who appeared at the hearing.

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

V. Order

54 The complaint is allowed in part.

55 The disciplinary action is rescinded.

56 Mr. Veillette shall be reinstated as a steward in the bargaining agent positions that he held when he was suspended.

57 The Institute and its chief officer shall take all measures necessary to fully reinstate Mr. Veillette in his bargaining agent duties as if he had never been suspended, and without financial loss, if applicable.

58 The Institute and its designated representative shall provide Mr. Veillette, within 30 days of the date of this decision, the required supporting documents for the payment of fees to the witnesses he called who are members of the Institute and who appeared at the hearing.

59 I remain seized for a period of 45 days to deal with any issue arising from this decision.

May 7, 2009.

PSLRB Translation

Michele A. Pineau,
Vice-Chairperson