FPSLREB Decisions

I. Complaint before the Board

1 On February 11, 2009, Guy Veillette (“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”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, against the Professional Institute of the Public Service of Canada (PIPSC) and Hélène Rogers (“the respondents”). The complainant alleges that the respondents committed an unfair labour practice within the meaning of section 185 of the Act by suspending him from his bargaining agent duties in January 2009.

2 The complainant, an employee within the meaning of the Act, performed various duties within the PIPSC until January 15, 2007. On that date, the PIPSC suspended him from his bargaining agent duties for the first time for a period of two years, ending January 15, 2009. Following the initial suspension, the complainant filed a first complaint with the Board on March 20, 2007 alleging that the PIPSC had violated certain provisions of the Act by suspending him for two years. The PIPSC had imposed the suspension. It considered that the complainant’s conduct had been unacceptable in incidents related to an internal conflict between the complainant and other PIPSC officers.

3 The two-year suspension imposed by the PIPSC ended on January 15, 2009. On January 27, 2009, the PIPSC wrote to the complainant to inform him that he was again suspended, this time for an indefinite period, from all elected or appointed PIPSC positions, as an “[translation] administrative not a disciplinary measure.” The temporary suspension followed from the complainant’s complaint, which was filed with the Board on March 20, 2007. The PIPSC indicated in its January 27, 2009 letter that the temporary suspension would cease when the proceedings in his case before the Board finally terminated. The second suspension is the subject of this complaint.

4 The complainant claims that, by imposing the temporary suspension, the respondents violated paragraph 188(d) of the Act by suspending him from his duties because he exercised a right under Part 1 or Part 2 of the Act. The respondents argue that they did not violate those provisions of the Act because the measure imposed was not disciplinary but administrative. Furthermore, the measure is in keeping with a formal PIPSC policy and is temporary. It will end when the Board decides the first complaint, filed on March 20, 2007.

5 The complainant asks that the policy under which he was suspended be rescinded. He further requests to be reinstated in his bargaining agent duties, to be reimbursed for the costs incurred and to receive financial compensation.

6 The complaint refers to the following provisions of the Act:

…

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

(a) except with the consent of the employer, attempt, at an employee’s place of employment during the employee’s working hours, to persuade the employee to become, to refrain from becoming, to continue to be or to cease to be a member of an employee organization;

(b) expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner;

(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;

(d) expel or suspend an employee from membership in the employee organization, or take disciplinary action against, or impose any form of penalty on, an employee by reason of that employee having exercised any right under this Part or Part 2 or having refused to perform an act that is contrary to this Part; or

(e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has

(i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2,

(ii) made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iii) exercised any right under this Part or Part 2.

…

II. Facts leading to the complaint

7 Before the two-year suspension imposed by the PIPSC as of January 15, 2007, the complainant had held the following positions for the PIPSC and its members: Representative; President of the Montreal VFS Sub-Group; Member of the Executive of the Montreal-Centre chapter; Treasurer of the Executive of the Quebec Region; Member of the Finance Committee; and Member of the Quebec Regional Council.

8 In March 2007, the complainant filed a complaint with the Board alleging that the suspension imposed by the PIPSC constituted an unfair labour practice within the meaning of section 185 of the Act. On January 27, 2009, shortly after the end of the complainant’s suspension, the PIPSC wrote the following to him:

[Translation]

…

Attached is a copy of the Policy relating to Members and Complaints to Outside Bodies. Under article 3(1) of the policy, and as a purely administrative not a disciplinary measure, you are temporarily suspended from all elected or appointed positions that you may hold with the Institute. The suspension will cease when the outside procedures have been finally terminated. You may then submit your request for reinstatement as a bargaining agent representative.

As for the elected positions that you held in January 2007, they have effectively expired, and, on final termination of the procedures related to your file before the Labour Relations Board, you may present your candidacy for those positions in subsequent elections.

…

9 On January 27, 2009, the PIPSC also wrote to some of its officials, informing them of the essence of the letter sent to the complainant. That same day, the PIPSC also wrote to the director general of labour relations at the Canada Revenue Agency, the complainant’s employer, to inform that person that the complainant would no longer be performing duties for the PIPSC until further notice. On February 4, 2009, in an exchange of correspondence with the complainant, the PIPSC added that the suspension imposed on January 27, 2009 would be lifted when the Board rendered its decision on the March 20, 2007 complaint, provided that none of the parties to that complaint appealed the decision.

10 The PIPSC developed the Policy relating to Members and Complaints to Outside Bodies (“the Policy”), under which it temporarily suspended the complainant from his duties on January 27, 2009. The PIPSC’s board of directors approved it on May 1, 2008. The Policy begins by stating that the PIPSC offers its members internal dispute resolution processes but that some PIPSC members may decide to seek recourse in outside processes to resolve their issues. The Policy’s purpose is to address the issues that arise under such circumstances.

11 The Policy applies if a PIPSC member refers a matter to an outside process that has been or that should have been referred to its internal procedures. The Board is among the external organizations mentioned in the Policy. The complainant’s temporary suspension on January 27, 2009 arises from article 3 of the Policy:

3. POLICY

(1) Where a member, or members, refers a matter which has been or ought to have been referred to the Institute’s internal procedure to an outside process or proceeding for consideration, that member or those members shall automatically be temporarily suspended from exercising the functions and duties of any elected or appointed office or position that they may hold with the Institute. The temporary suspension shall cease once the outside procedures have been finally terminated, for any reason.

(2) It is understood that it is inconsistent with the duty of loyalty to the Institute for any member of the Board of Directors or of any other decision-making body of the Institute, whether national, regional, local, of a group, of a sub-group, of a branch or occupying an appointed position, to represent, or participate in any way in support of, a member or members in any outside process or proceedings against the Institute. If any member of the described decision-making bodies or occupying an appointed position does in fact represent or participate in support of a member or members in an outside process or proceeding, he or she shall automatically be temporarily suspended from exercising the functions and duties of any elected or appointed position he or she may hold with the Institute. The temporary suspension shall cease once the outside procedures have been finally terminated, for any reason.

12 The complainant submitted several documents to the Board about the complaint that he filed on March 20, 2007. I will not refer to those documents because they are not relevant to this complaint. The complainant’s complaint also names Ms. Rogers. The only direct rationale that he gave to justify naming Ms. Rogers as a party to this complaint is that Ms. Rogers is a member of the PIPSC’s executive committee and its board of directors.

III. Summary of the arguments

A. For the complainant

13 The respondents suspended the complainant from his bargaining agent duties because, on March 20, 2007, he filed an unfair labour practice complaint with the Board. The suspension is for an indefinite period. It could last months, or even years, if one of the parties decides to request a judicial review of the Board’s decision on the 2007 complaint.

14 The Policy violates paragraph 188(d) of the Act. The sole reason for the PIPSC’s suspension, imposed on January 27, 2009 against the complainant, is that the complainant filed a complaint on March 20, 2007. In other words, the complainant was disciplined for exercising a right under the Act, namely, for filing an unfair labour practice complaint.

15 The Policy has been applied retroactively. The PIPSC adopted it in May 2008, while the complaint that gave rise to the suspension was filed in March 2007. The Policy had to have been in place at the time of the alleged facts to be used to suspend the complainant. Accordingly, the Policy was applied unreasonably because it was not applicable.

16 The provisions of the Act invoked in this matter did not exist before the Act came into force in 2005. The Board’s decisions on unfair labour practices before 2005 have little relevance because they refer to a different legal context. Furthermore, this complaint does not refer to a bargaining agent’s duty of representation but rather to the complainant’s suspension from his bargaining agent duties. The case law deals mainly with the bargaining agent’s duty of representation and, accordingly, is not necessarily relevant.

17 According to the complainant, the PIPSC’s suspension is disciplinary. The PIPSC’s board of directors considers that the complainant acted incorrectly in filing a complaint with the Board. Therefore, the PIPSC punished him by suspension, imposing a penalty for his action. The misconduct is that he filed a complaint with the Board, and the disciplinary measure or punishment is the complainant’s suspension from his duties with the bargaining agent.

18 The complainant also made arguments alleging that he had been discriminated against. I do not consider it useful to reiterate those arguments since they are not necessary to decide the complaint. No facts were adduced to support the allegation. The complainant also alleged that he had lost his member status. However, he has not lost his member status. For that reason, I will not summarize that argument.

B. For the respondents

19 The respondents began by pointing out that, under the Public Service Staff Relations Act, R.S.C. (1985), c. P-35 (“the former Act”), the Board was not able to intervene in a bargaining agent’s internal affairs except in complaints about the duty of representation. Internal affairs include, among other things, matters related to the internal management of the disciplinary action that the bargaining agent may impose on its members. On that point, the respondents referred me to the following decisions: Hibbard v. Public Service Alliance of Canada, PSSRB File No. 161-02-136 (19760521); St-James v. Canada Employment and Immigration Union Component (Public Service Alliance of Canada), PSSRB File No. 100-1 (19920331); Martel v. Veley et al., 2000 PSSRB 89; Kilby v. Public Service Alliance of Canada, PSSRB File Nos. 161-02-808 and 150-02-44 (19980427); and Feldsted v. Public Service Alliance of Canada, PSSRB File Nos. 161-02-945, 946 and 955 (19990429).

20 Section 188 of the Act is compatible with the Board’s general principle of non-interference in bargaining agent matters, which the case law clarified and applied over the years. In contrast, that provision merely describes the specific situations in which the Board may set aside that general principle. The situations are described in paragraphs 188(a) to (e). When a complaint does not correspond specifically to one of the situations described in section 188, the Board does not have the authority to become involved in the internal affairs of the bargaining agent. Furthermore, that interpretation was confirmed in Shutiak et al. v. Union of Taxation Employees - Bannon, 2008 PSLRB 103.

21 Given that there is very little Board case law on the application of section 188 of the Act, it is useful to refer to the case law of other jurisdictions that have provisions comparable to section 188 of the Act. To that end, the respondents referred me in particular to the labour laws of Alberta, Nova Scotia and Manitoba and to the Canada Labour Code.

22 The Canada Labour Relations Board (CLRB), which became the Canada Industrial Relations Board, indicated on many occasions that it did not have a mandate to judge, on appeal, unions’ decisions on internal disciplinary matters or to deprive unions of the right to set rules. Rather, the CLRB must ensure that a bargaining agent’s disciplinary standards and its application of those standards are not discriminatory. On those points, the respondents referred me to the follow decisions: Horsley et al. v. Canadian Union of Postal Workers, [1991] CLRB no. 861; Beaven et al. v. Telecommunications Workers Union, [1996] CLRB no. 1163; Beaudet-Fortin v. Canadian Union of Postal Workers, [1997] CLRB no. 1216; and Dickinson v. International Longshoremen’s and Warehousemen’s Union, Local 500, [1993] CLRB no. 1029.

23 Based on comparable legislative provisions, the administrative tribunals of several provinces have also rendered numerous decisions along the same lines as the decisions rendered under federal jurisdiction. On that point, the respondents referred me to the following decisions: Dickinson, Bitz et al. v. International Union of Operating Engineers, Local 963 and International Union of Operating Engineers, [2005] B.C.L.R.B.D. No. 71 (QL); and Zantolas v. Teamsters Local Union No. 213, [1986] B.C.L.R.B.D. No. 115 (QL).

24 The complainant cites paragraphs 188(c) and (d) of the Act in support of his complaint. Paragraph 188(c) applies to situations in which disciplinary action has been taken against the complainant. However, the complainant’s suspension from his bargaining agent duties is not disciplinary action. The respondents argue that a review of the Board’s past decisions supports that claim. Those decisions establish that, to determine whether a decision is disciplinary, it is necessary to examine whether the actions in question were motivated by discipline or whether they contained elements of bad faith. The respondents’ motivation in applying the Policy was not disciplinary and was not in bad faith. Indeed, the respondents acted to avoid a conflict-of-interest situation. In that respect, the action taken was administrative. On that point, the respondents referred me to the following decisions: Nablow v. Canadian Security Intelligence Service, PSSRB File Nos. 166-20-24982 and 25306 (19940211); Toulouse v. Treasury Board (Employment and Immigration Commission), PSSRB File Nos. 166-02-13138 and 13140 (19821223); Green-Davies v. Treasury Board (Immigration and Refugee Board), 2002 PSSRB 110; Cahill v. Treasury Board (Secretary of State), PSSRB File No. 166-02-20060 (19910311); and Peet v. Treasury Board (Forestry Canada), PSSRB File No. 166-02-24105 (19930723).

25 Paragraphs 188(c) and (d) of the Act mention the concept of a “penalty.” Examining the meaning of that term reveals that the complainant was not subject to any penalty. According to the case law, a penalty differs from a consequence and is normally associated with disciplinary action. In addition to the decisions cited in the previous paragraph of this decision, the respondents referred me to the following decisions: Massip v. Treasury Board (External Affairs Canada), PSSRB File No. 166-02-14313 (19840113), and Andrews v. Brent, [1981] 1 F.C. 181.

26 In Carbin v. International Association of Machinists and Aerospace Workers, [1984] CLRB no. 492, the CLRB ruled on the ability of a union to apply its internal disciplinary standards to a member who exercised a right protected by legislation. That case is similar to the complainant’s case. He exercised a right under the Act by filing a complaint with the Board against the respondents. In Carbin, the union took disciplinary action against a member because he had supported a rival union in certification proceedings. The CLRB found that the act did not constitute the discriminatory application of a membership rule, and it dismissed the complaint.

27 The respondents argue that a bargaining agent is an organization that must look after the best interests of its members. Under the bargaining agent’s structure, the board of directors and executive committee are democratically elected by the members to ensure the organization’s effective operation. Directors and members of the executive exercise the powers conferred on them by the organization’s statutes and by-laws. The Policy, under which the complainant was suspended, was adopted by the PIPSC’s board of directors. The Policy’s purpose is to ensure the duty of loyalty of the persons holding positions of responsibility within the organization. On that matter, the respondents referred me to Latrémouille v. Union des Artistes, [1983] CLRB no. 407. In that case, the CLRB dismissed a union officer’s complaint arising from his participation in another union’s certification process. The CLRB suggested that it was necessary to examine the reasons and context of decisions. Based on that examination, it found that the complainant had been expelled not because he had exercised his rights under the law but because his actions had been incompatible with his union officer duties.

28 The respondents also adduced arguments on discrimination, claiming that they had not acted in a discriminatory manner. They pointed out that discrimination is often the central test used by administrative labour tribunals in Canada to justify interventions. I will not discuss those arguments further since the facts adduced in no way support the complainant’s claim of discrimination.

IV. Reasons

29 The facts of this complaint are relatively simple; the respondents temporarily suspended the complainant from his duties because he had filed a complaint with the Board, contravening the Policy. It is clear that, and here I agree with the respondents, the complainant was not deprived of his member status or expelled from the bargaining agent. Rather, he was suspended from his duties. It is also clear from the facts adduced before me that the respondents did not treat the complainant in a discriminatory manner. Therefore, that is not the central issue to be decided as it was in many of the decisions adduced by the respondents.

30 The first question that I must decide is whether the respondents imposed disciplinary action or a penalty on the complainant. If I find that disciplinary action or a penalty was imposed, I will examine whether the imposition of the disciplinary action or penalty constitutes a violation of the Act.

31 The respondents argue that the suspension imposed on the complainant was an administrative action, that it was not disciplinary and that it was not a penalty. The respondents base their argument on decisions by Board adjudicators who have, on numerous occasions, distinguished between the concepts of administrative and disciplinary action. However, those distinctions were made within a different legal framework. The Act and the former Act stipulate that an employee may refer a grievance to adjudication that is related to disciplinary action resulting in such things as a suspension or a financial penalty. However, paragraph 188(d) of the Act prohibits the bargaining agent from suspending or taking disciplinary action against or imposing any form of penalty on an employee because that employee exercised any right under Part 1 or Part 2 of the Act. Accordingly, paragraph 188(d) has a broader scope and meaning than the provisions of the Act relating to grievances because it includes the words, “any form of penalty.” Therefore, the prohibition imposed on the bargaining agent by paragraph 188(d) exceeds the simple concept of disciplinary action. In effect, disciplinary action can be deemed a penalty, but a penalty is not necessarily a disciplinary action.

32 The Dictionnaire canadien des relations du travail, 2nd. Ed. (1986) defines sanction (“penalty”) as “[translation] a sanction established or imposed by a statute or authority to suppress a prohibited act.” The respondents temporarily suspended the complainant from his duties because he had acted contrary to his duty of loyalty to the PIPSC by filing a complaint with the Board. Thus, by preventing him from performing his duties, the respondents imposed a penalty on the complainant. The penalty is the suspension, and the prohibited act is the filing of a complaint.

33 Certainly, the suspension imposed is temporary, but that is of little importance. A suspension is normally temporary; otherwise, it would be referred to as an exclusion or dismissal. In this case, the suspension is of indefinite length. It will cease when the procedures related to the filing of the March 20, 2007 complaint terminate. Even though the end date of the suspension is not determined, it is still a penalty within the meaning of paragraph 188(d) of the Act.

34 I agree with the respondents that the case law of other Canadian administrative tribunals is useful in helping to interpret section 188 of the Act given that other jurisdictions include legislative provisions comparable to those of the Act. I also accept the respondents’ argument that administrative labour tribunals hesitate, and even refuse, to intervene in the internal affairs of bargaining agents unless there is evidence that they acted in a discriminatory manner toward their members. However, that is not the issue when it comes to examining whether paragraph 188(d) has been violated. That paragraph has a very narrow scope because it relates only to situations involving disciplinary action or penalties imposed on employees who exercise a right under Part 1 or Part 2 of the Act or who refuse to perform an act that is contrary to Part 1.

35 Among the decisions adduced by the respondents, Beaudet-Fortin, Cardin and Latrémouille are of some value in deciding whether the respondents’ decision to impose a penalty on the complainant constitutes an unfair labour practice within the meaning of the Act.

36 In Beaudet-Fortin, the employee had been expelled from the union for the sole reason that she had exercised her legal right to change bargaining agents, thus exercising a legislated right. The administrative tribunal agreed with the employee, who had filed a complaint, because the union had expelled her solely because she had exercised a right under the legislation.

37 In Carbin, the employee had been expelled from the union for working for a rival union and for acting in a manner that undermined the union’s position as bargaining agent. The administrative tribunal did not rule in favour of the employee, who had filed a complaint. The tribunal reached that conclusion because the expulsion had been imposed not for having exercised a right under the legislation but rather for undermining the union’s position as bargaining agent.

38 In Latrémouille, the union had prevented the complainant from sitting on its board of directors because, during procedures related to the application for certification, he had taken a position unfavourable to the union’s request. The administrative tribunal rejected the complaint because preventing the complainant from sitting on the board of directors had been motivated not by the complainant exercising a right accorded him by the legislation but rather by the incompatibility of the complainant’s positions with those of his role as a union director. The following quotation effectively summarizes the reasons for dismissing the complaint:

…

… In view of the overall situation, it is quite clear to us that the executive board decided to expel Mr. Latrémouille because of the conflict it perceived. This is not a case in which a union member is trying to assert his rights (for example, by filing an application for revocation or a complaint of unfair labour practice, for reasons prohibited by sections 185 or 136.1), and in which his union is taking discriminatory and punitive action against him because he exercised rights accorded him under the Code …

…

39 Despite the analysis of those three decisions, quite a difference exists between working against the position of one’s union on certification matters and filing a complaint of unfair labour practice. In the first case, it is the very existence of the bargaining agent that is threatened. In the complainant’s case, the complaint that he filed on March 20, 2007 certainly created discomfort and could even have undermined the bargaining agent’s internal cohesion, but such a complaint does not put the organization at risk.

40 By filing the March 20, 2007 complaint against the suspension that the PIPSC imposed on him, the complainant exercised a right accorded him by subsection 190(1) of the Act. Whether the complaint had merit is irrelevant. What is relevant is that the complainant had the right to that recourse. In direct reaction to the complaint, the respondents temporarily suspended him from his duties, applying the Policy. By their actions, the respondents imposed a penalty on an employee because he had exercised a right under Part 1 of the Act. Therefore, the respondents violated the Act.

41 It is not the specific treatment that the respondents applied to the complainant that violates the Act but rather the relevant provisions of the Policy and the application of those provisions. A bargaining agent certified under the Act may not have statues, by-laws or policies that violate the Act.

42 I will add in closing that nothing adduced before me leads me to conclude that Ms. Rogers, individually, violated the Act. Therefore, the complaint against Ms. Rogers is dismissed. Although she was a member of the PIPSC’s board of directors at the time of the incidents leading to the complaint, she is no more responsible for the respondents’ actions than the other members of the same board.

43 Although I am allowing the complaint, I do not have the power to order that the complainant be appointed as a bargaining agent representative or that he be reinstated in his duties because I would then clearly be intervening in bargaining agent matters, for which I have no authority. Furthermore, I am not prepared to grant the complainant the other remedies requested because the facts adduced do not justify that action.

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

V. Order

45 The complaint is allowed in part.

46 The Professional Institute of the Public Service of Canada is required to amend its Policy relating to Members and Complaints to Outside Bodies to ensure that it complies with the Act.

May 29, 2009.

PSLRB Translation

Renaud Paquet,
Board Member