FPSLREB Decisions

I. Complaint before the Board

1 Rick Mangat (“the complainant”) made a complaint under paragraph 190(1)(g) of the Public Service Labour Relations Act (PSLRA) against the Canada Employment and Immigration Union (CEIU), Local 20949 (“CEIU Local”) on June 8, 2006. The CEIU is part of the Public Service Alliance of Canada (PSAC). On July 14, 2006, the PSAC raised a number of objections to the complaint in a letter. Initially, those objections were to be determined at the hearing of this complaint. After efforts to schedule a hearing were unsuccessful, I determined that the complaint could be addressed through written submissions.

2  Mr. Mangat made an unfair labour practice complaint against the CEIU Local, alleging that it “… failed to properly and fairly represent …” him. Section 187 of the PSLRA reads as follows:

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.    

3 The CEIU is not the certified bargaining agent for the complainant’s bargaining unit. The certified bargaining agent is the PSAC. Accordingly, the appropriate respondent to this complaint is the PSAC, not the CEIU. Therefore, the complaint has been amended to make the PSAC the only respondent.

4 The PSAC raised the following objections in its July 14, 2006 letter:

1) the complainant failed to identify any corrective action sought under subsection 192(1) of the PSLRA;

2) the complainant could have filed a harassment grievance with Service Canada (“the employer”), which does not require the approval of the bargaining agent; and

3) the complainant could have used the PSAC’s (“the bargaining agent”) internal complaint process, but did not.

5 Mr. Mangat made allegations in his complaint against a named individual but did not name that person as a respondent. Mr. Mangat also referred to a number of other named individuals in his written submissions. Because these allegations remain unproven, I have not included the names of the individuals in this decision.

6 Mr. Mangat was represented by legal counsel when he made his complaint. The complaint was prepared by his legal counsel. Mr. Mangat has represented himself in all other correspondence with the Public Service Labour Relations Board (PSLRB).

II. Background

7 The complainant raised the following factual allegations in his complaint:

1) The Vice-President of the CEIU Local stated at an executive committee meeting of the CEIU Local that Mr. Mangat had made obscene phone calls to her and that he had left obscene messages on her home answering machine.

2) Those “defamatory statements” were repeated to other CEIU Local members as well as to Mr. Mangat’s employer.

3) The Vice-President’s statements led to a police investigation as well as to an investigation by his employer.

4) Mr. Mangat’s reputation has been damaged by the actions of the Vice-President and of the employer.

8 The complainant also stated in his complaint that he had brought this matter to the attention of the CEIU Local “… with a view to bringing a grievance against the employer relating to the employer’s investigation and the employer’s failure to reprimand…” the Vice-President of the CEIU Local. He raised this with the CEIU Local on or about November 23, 2005. He was informed on March 8, 2006 that it would not act on “the complaint.”

9 The complainant did not fill out the part of the complaint form (Form 16) that requests information on the “steps taken” for the resolution of the matter (box 8). He also did not fill out the part of the form that asks what corrective action is being sought (box 9).

10 The PSAC stated in its July 14, 2006 letter to the PSLRB that the complainant was advised by the employer in December 2005 that there would be no further investigation of his complaint against the Vice-President of the CEIU Local because there was insufficient information and because the employer considered it an internal union matter.

11 In its July 14, 2006 letter, the PSAC stated that “… it was still unclear as to whether the complainant actually filed an internal Union complaint.” The PSAC also included a copy of its internal anti-harassment policy and guidelines with its correspondence (Policy 23B, PSAC Anti-Harassment Policy: The Union, Guidelines for Implementation (“The PSAC Anti-harassment policy”).

A. Questions for written submissions

12 On November 4, 2009, I asked the complainant and respondent to provide submissions on the following questions:

 1. What steps were taken by the complainant for the resolution of the matter giving rise to the complaint before the complaint was filed in June of 2006? (box 8 of the complaint form). 

2. What is the corrective action sought under s. 192(1) of the Act? (box 9 of the complaint form).

3. What is the reply of the complainant to the submissions on the Board's jurisdiction set out in the respondent’s letter of July 14th, 2006? In particular … :

a) did the complainant file an internal union complaint?

b) the respondent alleges that the complainant had the opportunity to file a grievance against the employer and that such a grievance did not require the approval of the bargaining agent.

c) the respondent submits that the complainant did not exhaust available internal recourse mechanisms and should have done so.

4. Provide further submissions on how the actions of the respondent are arbitrary, discriminatory or in bad faith, within the meaning of section 190 of the PSLRA.

B. Information subsequently filed

13 The complainant provided in his written submissions additional information about the events leading up to his complaint. He also filed a number of documents. I have summarized the relevant information as follows.

14  The complainant made an internal complaint against the PSAC on November 23, 2005. In his complaint, he alleged that the CEIU Local Vice-President had “abused her power … through the injurious exercise of authority for the purpose of compromising my employment and my integrity.” He also alleged that she had engaged in unethical behaviour and that her comments had created a “… hostile and poisoned work environment.” He further alleged that the CEIU Local President had acted in a biased and an unprofessional manner. In his complaint to the PSAC, Mr. Mangat stated that he was asking the bargaining agent and the employer to take disciplinary action against the CEIU Local Vice-President. 

15 The internal complaint was referred to the CEIU National Vice-President for review. In accordance with the complaint policy, the matter was sent to an individual who was a former CEIU and PSAC representative for investigation. The investigator recommended that no further action be taken by the CEIU. The complainant was advised on March 8, 2006, by the National Vice-President that there was no basis to establish a review committee to hear the complaint.

16 The complainant also made a harassment complaint under the employer’s policy on the prevention of harassment in the workplace. He received a reply to his complaint from the regional executive director, W.R. Ross, on February 10, 2006. Mr. Ross dismissed the complaint because it related to an internal union matter. He stated that the employer could not investigate internal union matters or the conduct of individuals acting in their union capacities. He suggested that Mr. Mangat might want to pursue recourse through his bargaining agent.     

III. Summary of the arguments

17 The written submissions of the respondent and complainant are on file with the PSLRB. I have summarized the submissions.

A. For the complainant

1. Steps taken by the complainant for resolution (box 8)

18 The complainant submitted that he took “all reasonable steps” to resolve the matter that gave rise to the complaint. He stated that he first advised his team leader and manager of his concerns and that on more than one occasion he advised them that the issue was urgent and needed to be “dealt with promptly.” He then raised it with a number of CEIU Local officials, starting with a bargaining agent official at the department level and ending with the national president of the CEIU. He also talked to the CEIU Local president. Mr. Mangat submits that all of these officials dismissed his concerns.

19 The complainant submitted that he asked both management and the CEIU Local president for mediation and that he was rebuffed by both. Mr. Mangat maintains that the harassment against him continued after he notified both management and bargaining agent officials.

2. Corrective action sought under subsection 192(1) of the Act (box 9)

20 The complainant is seeking an order that the union officials involved in this matter no longer be allowed to be representatives. He stated that those individuals did not try to end the harassment and that they “should be held accountable.”

21 The complainant is also seeking a “deployment” to another department. He stated that he has made several unsuccessful efforts to be deployed. He alleged that he has been “blacklisted” and that he had been told by team leaders that he would not be considered for career advancement opportunities because he had made a complaint.

3. Internal CEIU recourse and grievance

22 The complainant submitted that he made “an internal union complaint” to his department, Service Canada. He stated that union officials had advised him that it would not support him in his complaint and had also advised that he was not able to file a grievance against another bargaining unit member.

23 The complainant stated that he filed a grievance against the employer. The documentation provided indicates that he made a harassment complaint with the employer, as opposed to a grievance.

24 The complainant submitted that he exhausted all internal recourse mechanisms to resolve the matter and bargaining agent officials “… simply sided with the other party and were prejudicial against me and my concerns as the complaint involved a union official.”

4. Allegations of arbitrary, discriminatory and bad faith actions

25 The complainant submitted that the actions of the PSAC were “… arbitrary, discriminatory and in bad faith” (section 187) because

I did not have the right to any fair and due process or any assistance from any union official in settling the matter. All union officials sided with the other party and allowed the harassment to continue. The union and management had been notified of the poisoned work environment and allowed the situation to escalate and the offensive behavior to continue. The employer and union have failed to recognize the emotional, psychological and physical damage the harassment has caused me. My concerns were not heard by either the employer or union officials even though I had made it very clear the seriousness and how the incident was affecting me and continues to affect me to this day.

B. For the respondent

1. Steps taken by the complainant for resolution (box 8)

26 The PSAC submitted that the complainant failed to take steps that could have resolved his complaint. In particular:

• He did not appeal to the PSAC’s Alliance Executive Committee when the complaint he filed with the Union against [the vice-president] was found to be without substance.
• He did not file a grievance against the employer’s handling of the situation, even though he did not need the Union’s support to file such a grievance.
• It is unclear to the Union whether he actually filed a formal harassment complaint under the Employer’s Harassment Policy, which also would have been his right.

27 The PSAC submitted that the PSLRA required the complainant to “take all reasonable steps” to resolve the matter. Those steps were reasonable and the complainant was required to take them before making a complaint.

2. Corrective action sought under subsection 192(1) of the Act (box 9)

28 The PSAC submitted that a Board member does not have jurisdiction to order the removal of individuals from their bargaining agent positions. One of the named officials is an employee of the CEIU and is not within the jurisdiction of the PSLRB. The remaining officials obtained their positions through elections. Elections are internal bargaining agent processes and a Board member does not have the jurisdiction to overturn an election or to order the removal of an officer from his or her office.

29 The PSAC submitted that the deployment sought by the complainant was a matter for the employer, not the union.

3. Internal union recourse and grievance

30 The PSAC noted that the complainant’s statement that he made a complaint with management was not equivalent to making an internal PSAC complaint. The complainant made a complaint with the PSAC. The PSAC followed its internal recourse process, but the complainant did not appeal the finding of the National President to the PSAC Executive Committee, as provided for in the PSAC’s policy.

31 The PSAC submitted that the complainant did not file a grievance against the employer. Instead, he submitted a complaint of harassment virtually identical to the complaint made with the union. The complaint to the employer was not a grievance “… regarding the outcome of the employer’s investigation into his allegation of harassment.”

32 The PSAC submitted that the complainant did not provide a response or proof that he exhausted all avenues of recourse.

4. Allegations of arbitrary, discriminatory and bad faith actions

33 The PSAC submitted that none of its actions were arbitrary, discriminatory or in bad faith. The PSAC stated that internal processes and procedures were followed and that: “[t]his is simply a situation where Mr. Mangat was unhappy with the outcome of his complaint.”

C. Reply of the complainant

34 The complainant submitted that he was harassed within the meaning of the PSAC Anti-harassment policy. He also submitted that the investigation conducted by the bargaining agent was flawed.

35 The complainant submitted that he was not advised of his right to appeal to the PSAC Executive Committee.

36 The complainant submitted that it was clear from the documentation provided that he had raised concerns about harassment and its impact on him and on his career.    

IV. Reasons

37 For the reasons set out below, I have determined that the complaint, as expanded on in the submissions of the complainant, does not demonstrate a breach of the duty of fair representation and is therefore dismissed.     

38 The complainant did not specify any corrective action when he submitted his complaint (box 9 of the complaint form). One can infer from the wording of the complaint that he was seeking representation from the PSAC for a grievance. Subsequently, he added two additional corrective actions: a deployment and the removal from office of a number of officials. In my view, the complaint should not have been accepted as filed, because it did not specify any corrective action. Respondents are entitled to know the corrective action being sought by a complainant. However, the complaint was accepted by the PSLRB, and the complaint will be amended to include the corrective action sought. In light of my conclusion on the merits of the complaint, I do not need to address the submissions of the respondent on the jurisdiction of the Board to order the corrective action sought.  

39 The complainant did not specify in his original complaint the steps taken to resolve the matter (box 8 of the complaint form). This omission is of less concern than the failure to specify corrective action. There is no general requirement that a complainant take specific steps to resolve a matter before filing a complaint under paragraph 190(1)(c). This requirement only exists for complaints relating to the suspension or expelling of an employee from membership in an employee organization or disciplinary action taken by the employee organization against the employee (paragraphs 188(b) and (c)). The form does not make a clear distinction between the various sections of the PSLRA and I understand why the respondent would raise this as a concern. I have addressed the relevance of the information submitted by the complainant on the steps he did take, below.       

40 The complainant raised allegations against the employer in his complaint. The complaint was made against the PSAC. The Board cannot address complaints against an employer in a complaint made against a bargaining agent.

41 The complainant alleges that the respondent failed to “properly and fairly represent” him, within the meaning of section 187 of the PSLRA, which prohibits bargaining agents, officers and representatives from acting in a manner that is “… arbitrary or discriminatory or that is in bad faith in the representation…” of an employee. The complainant’s position is that the PSAC should have represented him in a grievance that would have been filed against the employer for its failure to properly investigate the matters in dispute and for its failure to discipline an employee (who was also a bargaining agent member).

42 The complainant has the burden of proof in a complaint relating to section 187 of the PSLRA. In other words, the onus of presenting evidence sufficient to establish that the bargaining agent failed to meet its duty of fair representation rests with the complainant (Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107).       

43 The role of the Board in a complaint involving the duty of fair representation is to determine whether a bargaining agent acted in bad faith or in a manner that was arbitrary or discriminatory in its representation of the complainant. The Board does not determine whether the bargaining agent’s decisions on whether to represent or how to represent were correct. The bargaining agent has considerable discretion in determining whether to represent an employee on a grievance and on how to handle a grievance. The scope of the discretion of a bargaining agent was set out by the Supreme Court of Canada (“SCC”) in Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509 at 527. The SCC was describing the discretion of the bargaining agent in determining whether or not to refer a grievance to arbitration, but the principles are equally valid for the decision on whether to represent an employee on a grievance:

…

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.

4.  The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

…

44 The Federal Court of Appeal has held that in order to prove a breach of the duty of fair representation, the complainant must satisfy the Board that the bargaining agent’s investigation into the grievance “was no more than cursory or perfunctory” (International Longshore and Warehouse Union v. Empire International Stevedores Ltd., 2000 CanLII 16578 (F.C.A). It is the role of a bargaining agent to determine what grievances to proceed with and what grievances not to proceed with. This determination can be made on the basis of the resources and requirements of the employee organization as a whole (Bahniuk v. Public Service Alliance of Canada, 2007 PSLRB 13). This determination by a bargaining agent has been described as follows, in Judd v. Communications, Energy and Paperworkers Union of Canada, Local 2000, 2003 CanLII 62912 (BC L.R.B.):  

…

42.     When a union decides not to proceed with a grievance because of relevant workplace considerations -- for instance, its interpretation of the collective agreement, the effect on other employees, or because in its assessment the grievance does not have sufficient merit -- it is doing its job of representing the employees. The particular employee whose grievance was dropped may feel the union is not "representing" him or her. But deciding not to proceed with a grievance based on these kinds of factors is an essential part of the union's job of representing the employees as a whole. When a union acts based on considerations that are relevant to the workplace, or to its job of representing employees, it is free to decide what is the best course of action and such a decision will not amount to a violation of[the duty of fair representation].

…

45 Mr. Mangat wanted the bargaining agent to represent him in filing a grievance against the employer for its failure to properly investigate the dispute he had with members of the CEIU Local executive and for the employer’s failure to discipline a member of that executive. The employer had received a harassment complaint from Mr. Mangat and had determined that, in its view, the matter was an internal union matter. There is no reason to doubt that a grievance that would be essentially identical to the harassment complaint would be regarded in an identical way by the employer. A grievance of this nature could not be referred to adjudication because there was no discipline imposed and no breach of the collective agreement alleged.

46 The complaint filed with the PSAC through an internal complaint process is not directly relevant to the complaint before me. That is because the duty of fair representation is not engaged for internal union matters. The fact that the PSAC proceeded to investigate the complaint under its internal union policy on harassment demonstrates that it considered the matter to be an internal union matter.         

47 The complainant provided no submissions to support a conclusion that the bargaining agent acted in bad faith, arbitrarily or in a discriminatory fashion in declining to represent him in a grievance against the actions of the employer. Both the employer and the bargaining agent regarded the events in question as an internal union matter. This was a conclusion reached by the bargaining agent in a manner that was not arbitrary, discriminatory or made in bad faith.               

48 In conclusion, the complainant, both in the complaint and in his submissions, has not shown how the decision of the bargaining agent not to represent him in a grievance relating to an internal union matter could be regarded as a breach of the bargaining agent’s duty of fair representations.  

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

V. Order

50 The complaint is dismissed.

April 6, 2010.

Ian R. Mackenzie,
Vice-Chairperson