FPSLREB Decisions

Complaint before the Board

1 On April 30, 2009, Jo-Ann Dumont (“the complainant”) made a complaint with the Public Service Labour Relations Board (“the Board”) against the Canada Employment and Immigration Union (CEIU or “the respondent”). The CEIU is an administrative division of the Public Service Alliance of Canada (PSAC), the bargaining agent. The complainant based her compliant on paragraph 190(1)(g) of the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22 (“the Act”).

2 The complainant had several complaints about the respondent and its role in an employee’s filing of a harassment complaint against her. That employee was a CEIU member, as was the complainant. At the time of the events in question, she held a unionized manager position. Initially, this complaint also named her employer, but she has since clearly informed the Board that she was withdrawing the complaint against her employer.

3 In February 2007, an employee filed a harassment grievance with the complainant’s employer against the complainant. Then, in June 2007, the complainant received a letter at her home informing her that that same employee, a CEIU member, had made a complaint against her with the CEIU. The CEIU’s national president, Jeannette Meunier-McKay, then informed her that the CEIU had formed an investigation committee to examine the complaint and to make a report.

4 The CEIU appointed Roch Laramée to the investigation committee. Mr. Laramée was the representative for the employee who had filed a grievance against the complainant. The complainant asked the PSAC’s national president to intervene and to remove Mr. Laramée from the investigation committee. The request was granted, and Mr. Laramée was removed from the committee. However, the investigation went ahead. In the meantime, the CEIU offered the complainant representation services, an offer that was subsequently changed and then withdrawn.

5 The investigation committee submitted its report in November 2007. The report recommended revoking the complainant’s CEIU membership. The complainant accepted the respondent’s offer to provide her comments within the suggested time. She then heard nothing more about the investigation or about Ms. Meunier-McKay’s final decision, based on the investigation report. The complainant claims that she twice asked for the final decision following the investigation report’s completion. On July 24, 2009, she against asked for the final decision. The CEIU’s national vice-president then informed her that no suspension would be imposed and that he considered the matter closed.

Summary of the arguments

6 In the complainant’s opinion, the respondent’s actions in this case constitute an unfair labour practice within the meaning of section 185 of the Act and a failure of the duty of fair representation within the meaning of section 187.

7 The complainant further claimed that, throughout the harassment complaint process, the respondent acted in a cavalier manner and in bad faith, motivated by hostility toward her because of her status as a manager. The respondent acted in bad faith by refusing to provide her with the explanations that she requested and by acting contrary to its own policies, which she provided to me in support of her argument. The complainant further claimed that Ms. Meunier-McKay acted in an arbitrary, capricious, illegal and hostile manner and in bad faith by forming an investigation committee, by appointing Mr. Laramée to it and by failing to provide the complainant with a final decision after the investigation.

8 The complainant further alleged that Ms. Meunier-McKay should not have accepted the harassment complaint because a grievance had already been filed on the same facts. In her opinion, the employee in question had to choose between the two avenues for recourse. She could not exercise both. The complainant also argued that the respondent never explained to her why it had written to her at her home and how it had obtained her address.

9 Since the complaint relates to events that occurred in 2007, the respondent argued that it should be dismissed because it was made after the period set out in subsection 190(2) of the Act. On that point, the respondent referred me to the following decisions: Walters v. Public Service Alliance of Canada, 2008 PSLRB 106; Panula v. Canada Revenue Agency and Bannon, 2008 PSLRB 4; and Hérold v. Public Service Alliance of Canada and Gritti, 2009 PSLRB 132.

10 The respondent also argued that the complaint essentially relates to internal union business and that it did not take any disciplinary action. For that reason, the Board does not have jurisdiction to hear the complaint. On that point, the respondent referred me to Shutiak v. Union of Taxation Employees - Bannon, 2008 PSLRB 103.

11 In response, the complainant argued that her complaint is not about internal union business but that it is about a part of a series of concerted actions taken by the respondent in an effort to apply pressure in connection with the harassment grievance filed against her. As for the issue of the time in which to make the complaint, she claimed that the time must be calculated from when she obtained the respondent’s decision based on the recommendations of the investigation committee.

Reasons

12 The complainant based her complaint on paragraph 190(1)(g) of the Act, which refers to section 185. That section sets out several unfair labour practices, including failure of the duty of fair representation and the prohibitions described in sections 187 and 188. The provisions relevant to this case are the following:

190. (1) The Board must examine and inquire into any complaint made to it that

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(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

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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).

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187. No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

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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(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;

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13 The respondent argued that it did not contravene those provisions of the Act. It further argued that the complaint was untimely. Subsection 190(2) prescribes as follows that a complaint under subsection 190(1) must be made within 90 days:

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

14 It is clear from reading the complaint and the documents submitted later that the complainant was dissatisfied with the respondent’s actions in a harassment grievance filed against her by another employee and, later, in a complaint by that same employee made to the respondent. The provisions of the Act cited earlier in this decision set out the scope of the Board’s intervention in this type of matter. That scope is limited to the duty of representation (section 187) and disciplinary action taken by the union against one of its members (paragraph 188(c)).

15 On the duty of representation, the complaint contains nothing except the following sentence: “[Translation] In the meantime, the union offered me representation, an offer that was changed and then withdrawn.” To what is the complainant referring? When did it happen? In what context did the union change or withdraw its offer of representation? The representation at issue is the representation that an employee organization offers to its members to exercise their rights with the employer. It does not apply in any way to internal union business. The complainant did not submit anything to me that, even if proven, would have convinced me that the respondent failed in its duty of representation under section 187 of the Act.

16 After receiving a complaint of harassment against the complainant from another employee in 2007, the respondent established an investigation committee. The complainant was informed only in July 2009 of the respondent’s decision not to take any disciplinary action against her. Paragraph 188(c) of the Act gives me jurisdiction to intervene only in situations where the employee organization has allegedly acted in a discriminatory manner by imposing disciplinary action. In this instance, no disciplinary action was imposed. Therefore, I do not have jurisdiction to examine the complainant’s claims.

17 The respondent argued that the complaint is untimely. I will not address that question since I have dismissed the complaint on its merits.

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

Order

19 The complaint is dismissed.

March 5, 2010.

PSLRB Translation

Renaud Paquet,
Board Member