FPSLREB Decisions

Complaint before the Board

1  The complainant, Claude Éthier, made a complaint with the Public Service Labour Relations Board (“the Board”) on February 14, 2007, under section 190 of the Public Service Labour Relations Act (PSLRA) claiming that his bargaining agent, the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the union”), committed an unfair labour practice by refusing to exercise the representation rights and recourses to which he was entitled. The Correctional Service of Canada (“the employer”) was later added as a respondent.

2 The respondents raised the following two objections to the complaint:

(a) it is untimely; and

(b) the Board does not have jurisdiction because there is no complaint within the meaning of section 185 of the PSLRA.

3 The parties were heard by teleconference before holding a hearing about the objections to the Board’s jurisdiction.

II. Facts of the complaint

4 The complainant is a correctional officer. He was first hired under another classification, then became an indeterminate employee on April 1, 1993 and later was reclassified CX-01 on December 8, 2001. He bought back years of service and, as a result, the date for calculating his continuous service is March 8, 1991. That date had previously been used to calculate seniority for scheduling vacation leave.

5 On June 26, 2006, the union and the employer reached a global agreement clarifying certain provisions of the collective agreement. The preamble of the global agreement states that the provisions are not subject to grievances but rather to a separate dispute resolution process. The preamble also states that at any time the parties may discuss its content and modify it if they both agree. Article 3 of the global agreement (Section I-B - Vacation Leave With Pay) changed the past practice for scheduling vacation leave as follows:

3. Vacation dates shall be chosen by any system agreed to at the local level prior to March 1st of each year or if agreement cannot be reached, the default process will be based on the years of service from the time an employee initially became a Correctional Officer.

6 The complainant was very dissatisfied with the situation because that provision no longer considered his seniority based his date of continuous service in the public service and the time that he bought back.

7 On more than one occasion, the complainant expressed his dissatisfaction to his union representatives and to the employer, as stated as follows in paragraph 8 of his complaint:

[Translation]

…

June 2006 - Meeting with La Macaza correctional officers and regional union representatives. I asked Mr. Pierre Dumont (Regional President for Quebec), “How come you no longer recognize years of service other than CX (correctional officer) when approving vacation time?” He answered that the union followed the request of its members.

July 2006 - Meeting with grievance officer (Mr. Denis Bélanger) from La Macaza penitentiary’s union local to determine the position of the union local and the national executive about beginning a dispute resolution process. Mr. Denis Bélanger confirmed that he could not proceed because the union did not want to attempt to resolve the dispute.

July 26, 2006 - Grievance filed at the first level (without the union’s support).

August 29, 2006 - First-level reply: We invite you to discuss your dispute with your union local, which represents you.

August 29, 2006 - Grievance sent to the second level (without the union’s support).

September 21, 2006 - Grievance sent to the third level (without the union’s support).

December 13, 2006 - Third-level reply: We recommend that you present your claims to your union, which will proceed as it sees fit.

December 20, 2006 - Second-level reply (forwarded by union local): The global agreement states that any disagreement about its content is not subject to the grievance process but rather to a mediation process. The provisions about that process are found in part VI of the global agreement.

…

8 The complainant filed a complaint with the Board on February 14, 2007. He states that he first knew of the action giving rise to his complaint when he received the employer’s reply of December 13, 2006. The reply dismissed his grievance at the final level of the grievance process. The complainant requests as corrective action that the Board instruct the union to exercise, on his behalf, the rights and recourses that it should have exercised or that it help him exercise them. The Board informed the complainant that he also had to name the employer a respondent.

III. Summary of the arguments

A. For the complainant

9 The complainant points out that he took all the internal steps to resolve his dispute before going to the Board. He submits that the change to the provision about scheduling vacation leave amounted to discrimination against him because that provision does not recognize all his years of service. He submits that the union refused to reconsider its position on the issue and to participate in a dispute resolution process to resolve his situation and that, consequently, it acted in a discriminatory manner and in bad faith by refusing to exercise the representation rights and recourses to which he was entitled.

10 The complainant maintains that, to determine the period for filing a complaint, I must consider the employer’s last response to the grievance, dated December 13, 2006, because that was when the complainant realized that his grievance would not be resolved with the union’s help. He notes that he should not be prejudiced because of the employer’s delay in replying to his grievance at the final level of the grievance process.

B. For the union

11 The union argues that article 3 of the global agreement was the subject of a local agreement. The dispute resolution process is for resolving misunderstandings between the employer and the union about the application of the global agreement and not for settling the disagreements of individual members of the bargaining unit. Individual members are not covered by the remedy provided in the global agreement. As with all negotiated agreements, some clauses may not please all members of the bargaining unit. However, that does not invalidate the global agreement. As a result, the union maintains that the complaint does not relate to an unfair labour practice within the meaning of section 185 of the PSLRA.

12 The union also argues that the complaint must be dismissed because it clearly was made outside the 90-day period set out in subsection 190(2) of the PSLRA. As the complainant indicated in the first two paragraphs of his complaint, he knew of the union’s position as of June and July 2006.

13 The union notes that, when he filed his grievance at the first level of the grievance process on July 26, 2006, the complainant stated in his complaint that he did not have the support of his union. Therefore, it is clear that the union made its position known as soon as the complainant expressed his disagreement with the provisions of the global agreement. The fact that the grievance process continued does not change the date on which the complainant became fully aware of the events that led to the filing of the complaint. The union raises the mandatory nature of the time limit imposed by the PSLRA and the impossibility for the Board to extend it. In support of its arguments, the union cites Shutiak v. Public Service Alliance of Canada, 2009 PSLRB 29.

C. For the employer

14 The employer notes that the complainant’s grievance concretely states that he was aware of the union’s refusal to support him as early as July 2006; thus, the complaint was clearly made outside the time limit.

15 The employer adds that the Board cannot extend the period set out in subsection 190(2) of the PSLRA. It cites Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78, and Cunningham v. Correctional Service of Canada and Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, 2009 PSLRB 96, in support of its arguments.

16 The employer further argues that, for discrimination within the meaning of paragraph 186(1)(b) of the PSLRA to exist, the complaint must originate with the employee organization affected by that provision. In this case, the union denied the allegation. The employer also points out that the complainant did not mention corrective action for the employer.

IV. Reasons

A. Period for filing the complaint

17 Subsection 190(2) of the PSLRA reads as follows:

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.

18 Parliament chose to impose the 90-day period on any party that wishes to make a complaint under section 190 of the PSLRA. The Board cannot change that provision, but it may review the circumstances used to determine the date on which the 90-day period began. Subsection 190(2) states that the period began when the complainant knew or ought to have known of the action or circumstances giving rise to the complaint. That is a factual issue.

19 In paragraph 8 of his complaint (reproduced at paragraph 7 of this decision), the complainant acknowledged that he knew of the agreement when it was signed or at the very least at the end of June 2006. The complainant also admitted that he met with two union representatives, Pierre Dumont in June 2006 and Denis Bélanger in July 2006, to inform them of his disagreement. The representatives told the complainant that they did not intend to send his dispute to the dispute resolution process. In addition, the complainant acknowledged that he filed his grievance on July 26, 2006 without the union’s support.

20 The fact that the complainant pursued his grievance at all levels does not in any way change the fact that the union refused to support the dispute, which is the subject of this complaint, and that the complainant was so advised by the end of June 2006.

21 In general, the circumstances that give rise to a complaint cannot be extended by invoking other circumstances that go beyond the first refusal to proceed with the grievance or dispute at issue. In this case, the 90-day period to make a complaint with the Board began on the date of that refusal, at the end of June 2006, and not on the date on which the complainant deemed that he had sufficient evidence to make the complaint, which was December 13, 2006. The period for filing a complaint cannot be extended by a complainant’s attempts to convince a union to change its decision. To the extent that there is a violation of the PSLRA, there is no minimum or maximum standard for the degree of knowledge that a complainant must have before filing his or her complaint.

22 The essence of the complaint was the union’s refusal to exercise the representation rights and recourses to which the complainant claims he was entitled. Accordingly, the complainant’s knowledge of the union’s refusal to support his dispute is the triggering event of a violation of section 190 of the PSLRA and the 90-day period for filing the complaint. Therefore, the period began when the complainant realized that the union would not help him settle his disagreement. The PSLRA does not contain any provision that a complainant must exhaust all alternate recourse before filing a complaint.

23 Accordingly, I find that the complaint is untimely.

B. The Board’s jurisdiction under section 185 of the PSLRA

24 Since I have determined that the complaint is untimely, the second objection is moot.

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

V. Order

26  The complaint is dismissed.

January 14, 2010.

PSLRB Translation

Michele A. Pineau,
Vice-Chairperson