FPSLREB Decisions

Complaints before the Board

1 On November 23, 2009, Mark Halfacree (“the complainant”) filed four complaints against his bargaining agent, the Public Service Alliance of Canada (“the respondent”), alleging that it violated paragraphs 190(1)(e) and (g) of the Public Service Labour Relations Act (“the Act”). The complaints refer to the following provisions of the Act:

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

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(e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award);

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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.

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117. Subject to the appropriation by or under the authority of Parliament of money that may be required by the employer, the parties must implement the provisions of a collective agreement

(a) within the period specified in the collective agreement for that purpose; or

(b) if no such period is specified in the collective agreement, within 90 days after the date it is signed or any longer period that the parties may agree to or that the Board, on application by either party, may set.

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157. Subject to the appropriation by or under the authority of Parliament of any money that may be required by the employer, the parties must implement the provisions of the arbitral award within 90 days after the day on which the award becomes binding on them or within any longer period that the parties may agree to or that the Board, on application by either party, may set.

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Submissions from the complainant

2 Complaint 561-02-436 is related to a grievance filed by the complainant in February 2007 against his employer because it denied his request to work from home or from a location close to his home during a snowstorm. The complainant asked the respondent to attend the hearing of his grievance at all levels of the grievance process. The respondent did not comply. Also, the respondent refused to refer his grievance to adjudication.

3 Complaint 561-02-437 is related to a grievance filed by the complainant in May 2007 against his employer claiming that, among other things, it abused its authority and that it failed to accommodate the grievor’s medical condition. The complainant alleged that the respondent failed to uphold his rights and to respond to his concerns. In addition, the respondent refused to refer his grievance to adjudication.

4 Complaint 561-02-438 is related to a grievance filed by the complainant in March 2007 against his employer claiming that it violated the sick leave with pay and the no-discrimination clauses of the relevant collective agreement. The respondent refused to refer the complainant’s grievance to adjudication.

5 With no reference to specific dates, in complaint 561-02-439 the complainant claims that the employer failed to compensate him under the National Joint Council Travel Directive. He claims that, in July 2009, a response was sent to the respondent, which ignored it. He filed a grievance against the employer, and the respondent refused to refer it to adjudication.

6 The complainant argued that his complaints are timely since he was advised on August 26, 2009, that the respondent would not refer his grievances to adjudication. He also argued that the Board had jurisdiction over his complaints because they refer to subject matters related to the relevant collective agreement and because the respondent and the employer failed to respect that collective agreement.

7 In his May 12, 2010 submissions, the complainant argued that the respondent failed to provide fair and reasonable representation to its members; to act in good faith, objectively and honestly; to consider the consequences that his grievances had on him; to conduct a thorough investigation of his grievances; and to make decisions that were not discriminatory or unjustified. The complainant did not submit or refer to any specific facts to support his very serious allegations.

Submissions from the respondent

8 In its submission of February 19, 2010, the respondent argued that no details were provided about the actions or omissions on which the complaints are based. The complainant has tendered no evidence to establish a prima facie violation of the Act. Furthermore, the complaints are untimely since the issues that base the complaints date back to 2002, 2005 or 2007.

9 The respondent admits that, as stated in complaint 561-02-436, it refused to refer the grievance in question to adjudication. The respondent made several requests for supporting documentation from the complainant, who never provided it. Further to a thorough analysis of the grievance, the facts and the jurisprudence, the respondent advised the complainant in August 2009 that it could not support referring his grievance to adjudication. The respondent provided the complainant with an opportunity to provide additional information by September 11, 2009. The complainant did not contact the respondent and did not provide additional information. The respondent offered to attend all grievance hearings but at his expense.

10 The respondent admits that, as stated in complaint 561-02-437, it refused to refer the grievance in question to adjudication. Further to an analysis of the grievance, the respondent explained to the complainant in a detailed letter that there was no basis on which to pursue the grievance. The respondent had asked the complainant to provide additional information on the allegations that he was making against his employer, but the complainant did not provide any.

11 The respondent admits that, as stated in complaint 561-02-438, it refused to refer the grievance in question to adjudication. Further to a thorough analysis of the grievance, the facts and the jurisprudence, the respondent advised the complainant in August 2009 that it could not support referring his grievance to adjudication. The respondent provided the complainant with an opportunity to provide additional information by September 11, 2009. The complainant did not contact the respondent and did not provide the additional information.

12 The respondent admits that, as stated in complaint 561-02-439, it refused to refer the grievance in question to adjudication. For many months, the respondent made numerous unsuccessful attempts to obtain documentation to support the grievance. The respondent provided a detailed analysis to the complainant explaining why it could not refer the grievance to adjudication. The respondent provided the complainant with an opportunity to provide additional information by September 11, 2009. The complainant did not contact the respondent and did not provide the additional information.

13 The respondent referred me to the following decisions: Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509, Kowallsky v. Public Service Alliance of Canada et al.,2007 PSLRB 30, and Panula v. Canada Revenue Agency and Bannon, 2008 PSLRB 4.

Reasons

14 The complainant based his four complaints on the respondent’s failure to comply with sections 157 and 117 of the Act (paragraph 190(1)(e)) and on the respondent committing unfair labour practices (paragraph 190(1)(g)).

15 Sections 157 and 117 of the Act do not apply since they deal with implementing collective agreements or arbitral awards. As I wrote at paragraph 19 of Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28, “[t]he complainant’s employer is responsible for implementing collective agreements or arbitral awards, not the bargaining agent.” The complainant does not seem to understand that he cannot blame his bargaining agent for problems that he has experienced with his employer.

16 In none of the four complaints nor in the written submissions filed with the Board did the complainant present any facts that could lead me to believe that the respondent committed an unfair labour practice. It is not enough for the complainant to state that the respondent did not refer his grievances to adjudication. The complainant should have at least submitted some facts to support the assertion that the respondent’s decisions not to refer his grievances to adjudication were arbitrary, discriminatory or made in bad faith.

17 The complainant did not submit any such facts. Consequently, as I concluded in 2009 PSLRB 28 for the same complainant on comparable complaints, the complainant did not establish a prima facie violation of section 187 of the Act.

18 In Canadian Merchant Service Guild, the Supreme Court of Canadaestablished that it is sufficient for a bargaining agent to demonstrate that it has examined the circumstances of a grievance, considered its merits and made a reasoned decision of whether to pursue the case. The complainant did not submit anything that could convince me that the bargaining agent did not meet that legal obligation in refusing to refer his grievances to adjudication.

19 On March 9, 2010, Mark Sullivan from Treasury Board of Canada Secretariat asked that the grievor’s employer be given intervenor status because the complainant sought corrective action that directly involved his employer. The complainant and the respondent did not object to the employer’s request, and the Chairperson of the Public Service Labour Relations Board gave intervenor status to the grievor’s employer. No submissions were asked from the grievor’s employer because this decision does not affect it.

20 Because I already concluded that the complaints should be dismissed, I see no need to deal with the respondent’s argument about timeliness.

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

Order

22 The complaints are dismissed.

May 18, 2010.

Renaud Paquet,
Board Member