FPSLREB Decisions

I. Complaint before the Board

1 The complainant, Raymond Strike, is employed by the Department of Health. He joined the public service in 1985 and became a union representative. He quickly progressed through the ranks and was elected president of the National Health and Welfare Union (NHWU), now called the National Health Union (NHU), a component of the Public Service Alliance of Canada (PSAC) in 1999, and was its president at the time of the events that led to this complaint.

2 By way of background, the PSAC is the bargaining agent for 160 000 public employees, most of whom are employed by the federal public service. It includes 17 components, 2 of which are the NHU and the Canada Employment and Immigration Union (CEIU). The PSAC is governed by a constitution that provides that the supreme governing body is the National Triennial Convention but that the National Board of Directors is the governing body between conventions. In his role as president of the NHWU, Mr. Strike was a member of the National Board of Directors.

3 This complaint arises from discipline imposed by the PSAC in which Mr. Strike was suspended from PSAC membership and removed from office for a period of two years. He contends that the discipline constitutes an unfair labour practice within the meaning of section 185 of the Public Service Labour Relations Act (PSLRA).

4 Section 185 provides as follows:

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).

5 Specifically, the complainant alleges breaches of paragraphs 188(b) and (c) of the PSLRA, which state the following:

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

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(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;

II. Summary of the evidence

6 Service Canada was created in 2005 to coordinate the delivery of government services to Canadians. The creation of this new department called for existing employees serving the public across a number of departments and agencies to become commonly accessible through a web portal and by telephone. For the most part, the employees concerned continued to provide the same services and in the same offices as before the reorganization. While the employees at the departments and agencies belonged to several PSAC components, the majority belonged to 2 large PSAC components, the NHWU (3500 employees) and the CEIU (12 000 employees).

7 A tug of war erupted between the NHWU and the CEIU when the CEIU attempted to persuade the PSAC’s leadership that it should represent Service Canada employees. Mr. Strike, on behalf of the NHWU, opposed the transfer of the better part of his members to the CEIU because, in his opinion, the transfer of his members to the CEIU contravened the PSAC constitution.

8 As the differences between the NHWU and the CEIU could not be resolved, Nycole Turmel, the national president of the PSAC, exercised her prerogative of putting the matter of component membership to a vote between the two unions. Before that vote could be carried out, the executive of the NHWU voted to start injunctive proceedings to stop the vote, which Mr. Strike initiated through private counsel. On July 6, 2006, the Ontario Superior Court of Justice dismissed the application for an injunction on the basis that the NHWU had not met the conditions for the granting of an injunction. The motion for leave to appeal that decision was dismissed.

9 As a result of information disseminated to their members and Service Canada employees, as well as the court action, the CEIU filed a complaint against the NHWU with the National Board of Directors, and the NHWU did likewise. The National Board of Directors appointed an external impartial review committee to examine the complaints and make recommendations. The committee consisted of Bob White (Former President of the Canadian Auto Workers and the Canadian Labour Congress), Kathleen Connors (Former President of the Canadian Federation of Nurses Unions) and Michael MacNeil (Associate Dean, Faculty of Public Affairs, Carleton University). The external impartial review committee met with the parties and reviewed written documentation submitted to it. On January 4, 2007, it issued its report concluding that the NHWU’s complaint against the CEIU was unfounded, that the NHWU had committed multiple violations of the PSAC constitution and that the NHWU was responsible for the actions of its members and officers. On the issue of appropriate discipline, the external impartial review committee concluded against a recommendation to suspend, expel or remove from office any component, officer or member, as none of those actions would be appropriate or helpful given the circumstances of the dispute. The external impartial review committee was of the view that, if the National Board of Directors took disciplinary action, it would delay the process of finding a solution in the best interests of the PSAC’s membership.

10 On January 4, 2007, the external impartial review committee presented its report to a special meeting of the National Board of Directors. The report was adopted, but without Mr. Strike, the president of the NHWU, or Jeannette Meunier-Mackay, the president of the CEIU, having a vote or a voice in its adoption. At the end of the special meeting, two issues still remained outstanding: (1) whether a membership vote for one or the other component should be held, given that the process had been tainted by the dispute between the NHWU and the CEIU; and (2) whether, in the alternative, it was appropriate that the national president of the PSAC assign the affected members to one component or the other. In the end, the PSAC decided to hold the vote.

11 On May 1, 2007, John Gordon, National President of the PSAC, wrote to Mr. Strike, advising him that the National Board of Directors would be convening a meeting to consider taking appropriate discipline as a result of the report of the external impartial review committee, as follows:

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Dear Ray:

At its February 2007 meeting, the NBoD addressed the White Committee Report in part.

At that time, I advised the Board that I would not accept a motion of discipline against you or any other member of the NHWU. I took this position because I believed and continue to believe, that doing so would have been prejudicial to NHWU during what can only be described as a critical membership vote.

Notwithstanding this, I have consistently articulated the view that a motion recommending discipline would be accepted, and disciplinary action initiated, at the appropriate time.

I consider this to be the appropriate time to accept a motion and initiate disciplinary action given that the voting process has been completed, and the count has not taken place.

I should point out that the investigation process, both contemplated and outlined in Regulation 19, has been completed, and all that remains is for your peers on the NBoD to pronounce on the issue.

Therefore, disciplinary action as a result of your violation of the PSAC Constitution as outlined in Justice Hackland’s decision and White Committee report will be addressed at the National Board of Directors’ meeting, and appropriate discipline will be considered. Given the seriousness of the situation, this discussion will take place at a special meeting of the NBoD to be convened as soon as possible.

In addition, at its meeting on April 23, 2007, the AEC agreed to appoint an Internal Impartial Review Committee to investigate any actions undertaken by members of the NHWU National Executive relating to the court action initiated by the NHWU against the PSAC.

The Committee will be chaired by Patty Ducharme, and will include Yvan Thauvette and John MacLennan as members.

John Gordon
National President

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12 Mr. Strike replied to Mr. Gordon in a lengthy letter dated May 16, 2007, challenging Mr. Gordan’s authority under the PSAC constitution to discipline him in light of the conclusions of the external impartial review committee. Mr. Strike took the view that the National Board of Directors could not, once the report was adopted in its entirety, revisit its recommendations. Mr. Strike stated his argument as follows:

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In the absence of such a recommendation of disciplinary action from the Impartial Review Committee, the NBoD has no authority to impose any discipline on PSAC members. It cannot, as you propose in your letter, receive a no-discipline recommendation, choose to disregard it, and then go on to receive a free-standing motion to discipline me – even from the National President. There must first be a recommendation to impose discipline, from an Impartial Review Committee.

I also remind you that the NBoD has already, at its January 4, 2007 meeting, adopted the Report of the Impartial Review Committee in its entirety. Having done so, it is not now empowered, at a later date, to revisit that decision. Once the NBoD adopted the Report and the discipline recommendation therein, the disciplinary process came to a close. It cannot now reopen the matter of discipline against me on motion from you. That is akin to double jeopardy, as the NBoD would be imposing discipline after already having adopted a report recommending no discipline.

13 Mr. Strike continued his letter by asking Mr. Gordon to let sleeping dogs lie. He questioned why a second internal impartial review committee should be appointed when there had been no new complaints. He asked that the National Board of Directors take a step back and consider all the issues before going forward with a motion to discipline him. He added the following:

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I want to take an opportunity to ask what you, and the members of the NBoD who are copied with this letter, think will be achieved by following through on these two proposals. The NHWU has waged a political battle against the campaign to shift a significant portion of its membership into the CEIU. With the release of the report of the Impartial Review Committee, the measures implemented for the vote at the January meeting of NBoD, and the vote, the battle has run its course. As an experienced union campaigner, I would expect that you could appreciate that there are times when it is important to take a stand to protect the interests of the union and its members. I would also expect that, as president of a federated union, you would look for opportunities after a battle has run its course to build bridges between the parties and move forward with union business. Instead, you appear determined to drag up the past, and to persist with a course of action which the Impartial Review Committee has already declared “would neither be appropriate nor helpful in these circumstances.”

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[Emphasis in the original]

14 On May 22, 2007, at 08:46, Mr. Strike was advised that two motions would be dealt with at a special meeting to be held that morning. The first motion was to put the NHWU into PSAC trusteeship, and the second was to suspend the membership of Mr. Strike for two years. Before the vote of the National Board of Directors, Mr. Strike was afforded the opportunity to speak. Mr. Strike was advised later in the day that the motions had been adopted and that his membership in the PSAC was suspended for two years, terminating on May 21, 2009. The consequence of this decision was that Mr. Strike was removed from office. According to subsection 18(1) of the PSAC constitution, Mr. Strike was no longer eligible to seek or hold elected office within the PSAC and not being a member in good standing, could not attend any union meetings. He was also not entitled to many other benefits of membership.

15 On May 29, 2007, Mr. Strike appealed the decision to remove him from office and to suspend his membership privileges. Mr. Strike invoked the following grounds: (1) the process by which the suspension vote was ordered was flawed; (2) the penalty was disproportionate; and (3) such further and other grounds as appropriate.

16 An appeal tribunal was constituted to hear Mr. Strike’s appeal. It was composed of Nancy Riche, Chairperson, M.J. (Mike) McTaggart, as the PSAC’s nominee, and Paul Lordon, Mr. Strike’s nominee. At the hearing, Mr. Strike was represented by counsel, and the PSAC was represented by the executive assistant to the PSAC Executive Committee, Steve Jelly, as well as France Bélanger, Administrative Assistant to the PSAC president. As noted in the appeal tribunal’s decision, both parties to the appeal were given “[e]very opportunity to question, respond and reply and the Appeal Tribunal also took every opportunity to ask questions and engage in discussion with both sides to obtain meaningful information.” The appeal tribunal unanimously upheld the discipline imposed on Mr. Strike but modified it so as to allow Mr. Strike to hold union and component offices beginning the day before the next NHWU convention. The appeal tribunal’s conclusions are the following:

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CONCLUSION

It was strongly contended by Counsel for Mr. Strike that Regulation 19, contrary to the position taken by President Gordon as set out in the Minutes of the Special National Board of Directors’ meeting of May 22, 2007, required full compliance with the steps it sets out and not merely a process consistent with it. Hence, it is argued, as set out in Regulation 19(9), the NBoD could act only after and in response to the report of the External Impartial Review Committee.

However, the Tribunal notes that Section 25 of the PSAC Constitution, specifically Sub-Section (1), expressly confers authority to suspend or expel upon the NBoD for the reasons set out in Sub-Section (5) Section 25. Regulation 19, Section (1), itself, as a first principle in respect of the operation of that section, sets out that the NBoD, in accordance with Section 25 of the Constitution, retains the authority to suspend or expel. The requirements of Sub Section 9, and the other elements of Regulation 19, must be interpreted consistent with this retention of authority.

Because of this, it would appear that the authority of the NBoD set out in Section 25(1) of the Constitution must be viewed as continuing notwithstanding the direction of Regulation 19(9) that ordinarily the exercise by the NBoD of that authority will follow an Impartial Review Committee Report. Whether or not the NBoD’s authority to suspend or expel upon the basis which are set out in Section 25 of the Constitution continues in respect of all matters, is not an issue at present. What is an issue is the continuation of such authority where, as in the present case, a process consistent with Regulation 19 has, in fact, occurred. In such circumstances, this Appeal Tribunal finds that Regulation 19 has been complied with in its essentials. There was, in fact, an External Impartial Review Committee which considered and reported on the main factual issue in question. Based on that report, discipline was identified as a possibility in respect of Mr. Strike, he was notified, made submissions in that respect to the NBoD, and the decision to act was only made after consideration of both the White Committee Report and the submissions of Mr. Strike to the NB0D.

While the process set out in Regulation 19 was not precisely followed, it was followed in its essentials, and as appears from Section 25(1) and the first section of Regulation 19 itself, the NBoD was not in these circumstances disabled from taking action substantially in accordance with the Constitutional provision and the Regulation.

In the Justice Hackland decision, it was stated that the decisions taken by and held by both parties, was “in good faith” and while Mr. Strike continues to insist that he thought he had exhausted all avenues within the Constitution, Hackland’s decision should have laid this to rest. However, Mr. Strike proceeded to attempt to appeal this decision. It is apparent that, for some reason, Mr. Strike did not accept this decision and still believed that he was within his right to pursue the matter through the courts. It is the view of the Tribunal that Mr. Strike should have known, following the Hackland decision that further court action would be in violation of the values embodied in the Constitution. We believe that Mr. Strike in good faith, still believed, but mistakenly to an objective observer, that his position was correct.

For these reasons, the Tribunal finds:

1.  Ray Strike’s membership suspension remains in effect until the day before his Local elects delegates to the next NHWU convention, and

2.  As a consequence of the suspension of his membership, Ray Strike is prevented from holding office for two years. In respect of this impediment, the Tribunal restores his right to hold office on the day before the next NHWU convention.

CONCLUDING REMARKS

We sincerely hope that this decision ends, once and for all this dispute. Money spent on legal counsel, on committees and on tribunals is money not spent on members issues. It is time to move on. The vote has been held and members have moved to another Component. Needs of members remaining in NHWU must now take priority.

…

17 On November 28, 2007, Mr. Strike filed this complaint pursuant to section 190 of the PSLRA, alleging that he was suspended from PSAC membership and removed from office as NHWU component president contrary to paragraphs 188(b) and (c) of the PSLRSA, in that the PSAC disciplined him in the absence of a written complaint made against him and that the PSAC departed from its disciplinary code in imposing discipline contrary to the recommendation of the external impartial review committee.

III. Summary of the arguments

A. For the complainant

18 Mr. Strike alleges that the PSAC acted in a discriminatory manner and that its decision to remove him from office and suspend his membership was illegal and arbitrary and that it was implemented in an unreasonable manner. This allegation is based on the fact that the complaint made by the CEIU was against the NHWU component and not against Mr. Strike. The National Board of Directors extended the complaint to include Mr. Strike. Therefore, the process under which he was removed from office was illegal and contrary to the PSAC’s constitution. The removal process was arbitrary because Mr. Strike was only provided with 15 minutes’ notice of the special meeting that was to hold a vote on his discipline. Mr. Strike argues that this is a breach of natural justice because he was not given the opportunity to adequately prepare himself for the meeting and respond to any charges. The PSAC’s authority to discipline was also exercised in an unreasonable manner since the external impartial review committee had recommended no discipline.

19 Mr. Strike argues that he availed himself of all the internal appeal procedures in the PSAC constitution. Mr. Strike is not challenging the findings of the external impartial review committee that by going to court, he was breaching the PSAC constitution. He is challenging the subsequent decision to apply discipline after the National Board of Directors adopted all the conclusions of the external impartial review committee, including the conclusion not to apply any discipline given the circumstances of the case.

B. For the PSAC

20 The PSAC argues that, from the moment the actions began, Mr. Strike was named as a complainant and that he cannot now hide behind his component. Mr. Strike was also a defendant with respect to the dispute referred to the external impartial review committee. That committee recommended that Mr. Strike not be subject to discipline without reference to disciplinary action against the component.

21 The appeal tribunal unanimously upheld the discipline even though it reduced the period of suspension to allow Mr. Strike to participate in the next NHWU convention.

22 This is an internal union matter that does not engage the standards set out in the PSLRA. Mr. Strike has never accepted the authority of the National Board of Directors. Mr. Strike had an opportunity to raise the issue of the organization of components at the PSAC’s last triennial convention in 2006, but he did not. The PSAC contends that the hearing before the Public Service Labour Relations Board (“the Board”) is not a de novo appeal of the PSAC’s appeal process but is limited to determining whether the PSAC was in breach of its constitution when it suspended Mr. Strike’s membership and removed him from office.

IV. Reasons

23 Section 185 and paragraph 188(c) of the PSLRA provide that the Board may review the discipline imposed on a union member in order to decide whether the decision-making process was discriminatory. By enacting those provisions, Parliament imposed a duty of transparency on public sector bargaining agents. Unions in the federal private sector are covered by an identical provision at paragraph 95(g) of the Canada Labour Code, R.S.C. 1985, c. L-2. The broad wording of paragraph 188(c) of the PSLRA implies that Parliament left the interpretation of what constitutes a discriminatory imposition of discipline to the Board, which must evaluate each case on its own merits.

24 In Veillette v. Professional Institute of the Public Service of Canada, 2009 PSLRB 58 (“Veillette I”), it was held that the expression “in a discriminatory manner” within the meaning of paragraph 188(c) of the PSLRA refers to a decision-making process that is free of discrimination. This interpretation was followed in Veillette v. Professional Institute of the Public Service of Canada and Rogers, 2009 PSLRB 64 (“Veillette II”), and Bremsak v. Professional Institute of the Public Service of Canada, 2009 PSLRB 103.

25 In Veillette I, the Board held thatthe union had imposed discipline on one of its members in a discriminatory fashion because the principles of fairness stated in its constitution had not been observed. Its Board of Directors had not only failed to inform the member about the procedure that would be followed to deal with the complaint, it also had not given him an opportunity to be heard before disciplining him. Furthermore, the suspension was more severe than what was provided for in the union’s constitution.

26 Veillette II involved the same complainant but dealt with a somewhat different issue. In that case, the complainant had been suspended because he had exercised a right under subsection 190(1) of the PSLRA. The complainant had first filed a complaint with the Board (Veillette I). After that complaint was filed, the union adopted a policy that provided for the administrative suspension from official responsibilities of a member who resorted to outside bodies to resolve issues that were or could have been resolved through its internal processes. The issue to be decided was not the union’s treatment of its member but whether its policy that forbade the filing of complaints with the Board violated the PSLRA. The adjudicator held that the union’s policy indeed violated the PSLRA and ordered that the policy be modified accordingly.

27 In his evidence, Mr. Strike set out a great deal of information about the incidents that led to the union’s decision to suspend his membership privileges and to remove him from office. Mr. Strike described at some length his engagement in representing the members of his component to the best of his ability and how all the actions he took were with the best interests of the membership in mind. The PSAC provided me with extensive evidence about the authority of the Triennial Convention, the role of the Board of Directors and the authority of the president to interpret the constitution. This was helpful to my understanding of the political nature of the PSAC’s organization and the democratic nature of its decision making. That being said, while Mr. Strike may not agree with the PSAC’s interpretation of the constitution, there is no great dispute about the facts that led to this complaint.

28 In the end, the sole question at issue is whether the PSAC applied the principles embodied in its constitution in a discriminatory manner with respect to Mr. Strike when it decided to suspend his membership privileges and remove him from office. Mr. Strike admits that the union’s constitution prohibits a component or member from engaging in legal action against the PSAC, which is what he did. Notably, after the Ontario Court of Justice refused to grant an injunction to prevent a vote between the NHWU and the CEIU, the PSAC tendered an olive branch to Mr. Strike by deciding to absorb the costs of the legal action, in an attempt to end the dispute between the NHWU and the CEIU. On July 11, 2006, Mr. Gordon, President of the PSAC’s wrote to the Board of Directors, conveying the message that continuing legal action by way of an appeal of the court’s decision was not in the best interests of the PSAC’s membership. Mr. Gordon wished to put the matter of the competing union membership to a vote and proceeded to do so. But Mr. Strike was unstoppable. He filed a motion to appeal the court’s decision to dismiss the application for an injunction; the motion was also dismissed.

29 After that, the PSAC mandated an external impartial review committee to conduct a review process. Mr. Strike was able to express his views to the committee. The committee did not agree with him but recommended leniency by not disciplining him. Despite that outcome, Mr. Strike pursued his campaign with letters and motions to the National Board of Directors. The Board of Directors of the PSAC adopted a motion to institute an appeal process. Before carrying out that vote, Mr. Strike was afforded the opportunity to speak.

30 Mr. Strike was represented on the appeal tribunal by his nominee, a distinguished member of the labour bar. The appeal tribunal noted that it had given both parties every opportunity to present their cases and that the tribunal had engaged in discussions to obtain meaningful information. The appeal tribunal based its decision to dismiss Mr. Strike’s appeal on the fact that Regulation 19 of the PSAC constitution, while it had not been precisely followed, had been followed in a manner consistent with the authority accorded to the National Board of Directors under subsection 25(1). Accordingly, there had been no breach of the constitution.

31 The appeal tribunal decision was unanimous; Mr. Strike’s nominee, Mr. Lordon, concurred with the tribunal’s findings. I must agree with the appeal tribunal that, once Mr. Strike decided to appeal the court decision, he knew that he had embarked on a course of action that violated the values of the PSAC constitution. Throughout the PSAC review and appeal procedures, Mr. Strike was given every opportunity to make his views known. There is no evidence that the review and appeal procedures were discriminatory. Mr. Strike’s only solid argument is that the Board of Directors acted illegally by not following the recommendation of the external impartial review committee that there be no discipline.

32 The external impartial review committee made a recommendation that the National Board of Directors decided not to follow. An internal decision of the union is not within the purview of the Board to review. The Board’s review is limited to whether the union’s decision or policy was applied in a discriminatory manner as prohibited by paragraph 188(c) of the PSLRA. In light of the many opportunities afforded to Mr. Strike to express his views throughout the union’s internal process, there is no basis for finding that the PSAC applied its policy in a discriminatory fashion. Mr. Strike may disagree with the decision of the National Board of Directors to suspend his membership and to remove him from office, but that does not make the decision illegal or discriminatory in the circumstances of this case.

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

V. Order

34 The complaint is dismissed.

February 10, 2010.

Michele A. Pineau,
Vice-Chairperson