FPSLREB Decisions

Complaint before the Board

1  On July 29, 2010, Lisa Markey (“the complainant”) filed a complaint with the Public Service Labour Relations Board (“the Board”) against the Professional Institute of the Public Service of Canada (“the respondent” or PIPSC) under paragraph 190(1)(g) of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the Act”). The complainant alleged that the respondent had committed an unfair labour practice within the meaning of section 185 and that it had violated section 187.

2 The complainant alleged that the respondent refused to pursue a grievance on her behalf and that it attempted to force on her an unsatisfactory and discriminatory resolution of her issues in favour of her employer. She also alleged that the respondent further discriminated against her by failing to accept her disability and the employer’s duty to accommodate. She did not provide more information to support her allegations when she filed her complaint.

3 In its initial reply to the complaint, the respondent stated that it carried out its duty of fair representation with respect to the complainant’s workplace issues. In support of its position, the respondent submitted a four-page letter from Karyn Ladurantaye, one of its regional representatives, dated May 28, 2010 that it had sent to the complainant. That letter outlined the respondent’s understanding of the complainant’s workplace problems and the recourse available to her. The respondent advised the complainant that she was entitled to appeal the analysis and the proposed course of action included in the May 28, 2010 letter. On that point, Ms. Ladurantaye, wrote the following:

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Should you disagree with my assessment and recommendation, you are entitled to appeal my decision to the Manager of Regional Representational Services pursuant to section 2 the Institute’s Policy on Conflict Resolution, which I have attached for your review. In order to provide you with the opportunity to avail yourself of the appeal process, I have requested and received the written agreement of the employer to place time-limits within which to file a grievance in abeyance until Wednesday June 30, 2010.

Should you wish to appeal my decision, I would request that you advise Ms. Joanne Harvey, in writing, by end of business day Friday June 4, 2010.

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4 The complainant did not agree with the analysis and course of action proposed by Ms. Ladurantaye in her May 28, 2010 letter. However, the complainant decided not to use the respondent’s internal appeal process. On that point, she wrote the following:

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I do not wish at time to appeal your decision because I believe it is within my rights to pursue a grievance not as it relates to leave but as it relates to Duty to accommodate which collectively encompasses all these issues. I will proceed with the advice of counsel and the DND Ombudsman who is closely tracking my case.

[Sic throughout]

5 The respondent submitted a copy of a document entitled “Policy on Conflict Resolution Procedures for Internal Labour Relations Matters.” That document was included with the May 28, 2010 letter sent to the complainant. It outlines the internal procedure to be followed by PIPSC members when disagreements arise on the handling of labour relations matters. According to that procedure, the PIPSC representative is to provide the member with a rationale for the strategy proposed to handle the labour relations matter. If an impasse is reached between the member and the PIPSC representative, the matter is to be referred to the Manager, Representational Services. If the matter is not resolved at that level, the member can make a submission to the General Counsel, who would then analyze the situation and make a recommendation to the President, who would make the final decision. The General Counsel analyzes the situation and makes a recommendation on the basis of the bargaining agent’s duty of fair representation.

6 In her October 21, 2010 submissions, the complainant provided more details of her dissatisfaction with the services she received from the respondent. She explained some of the problems that she experienced with her employer. She criticized the actions and the positions taken by the respondent’s representatives in their efforts, or lack of efforts, from June 2009 to May 2010, to help her. She reiterated her dissatisfaction with the respondent’s services in her submissions of January 7 and February 23, 2011. She also elaborated on her health, which had deteriorated.

7 In its December 10, 2010 submissions, the respondent stated that it had fulfilled its duty of fair representation towards the grievor. At no time did it act in a manner that was arbitrary, discriminatory or in bad faith in its representation of the complainant. The respondent also stated that it had offered the complainant an internal right to appeal, and the complainant chose not to avail herself of that option. She could have explained her interpretation of events and given the respondent an opportunity to review its decision, but she decided not to.    

Reasons

8 This complaint involves 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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(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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9 The Act obliges the bargaining agent to act in good faith and in a manner that is not arbitrary or discriminatory in the representation of its members. The Act does not, however, oblige the bargaining agent to file grievances on behalf of its members or to represent their concerns in the exact manner that they desire. In Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509, the Supreme Court of Canada established that it is sufficient for a bargaining agent to demonstrate that it has examined the circumstances of a case, considered its merits and made a reasoned decision as to whether to pursue it.

10 The complainant accuses the respondent of refusing to pursue a human rights grievance on her behalf and of forcing on her an unsatisfactory and discriminatory resolution of her issues in favour of her employer. She also accuses the respondent of discriminating against her by failing to accept her disability and the employer’s duty to accommodate. Although the complainant’s allegations characterize her representative’s actions as arbitrary, discriminatory and in bad faith, the facts as alleged by her disclose that her true allegation is to the effect that Ms. Ladurantaye’s actions were arbitrary in nature and it is this allegation which I must examine.

11 The complainant is alleging that her bargaining agent, in sending her the letter dated May 28, 2010, acted in a manner that was arbitrary.  She alleges that its actions were based on an assessment of her file that failed to take into account all of the circumstances of her case.  However, the bargaining agent’s assessment of her file, as disclosed in its letter of May 28, 2010, was not a final decision in her case and was not communicated to her as such. The letter clearly indicates that she could appeal her representative’s decision, includes a copy of the policy on appeals and informs her that her time limits for filing a grievance will be protected by the bargaining agent during the appeal process. It is for this reason that I have concluded that her complaint is premature as no final decision had been made by the respondent.

12 The Act permits the filing of complaints in cases where a bargaining agent has “acted” in a manner that is arbitrary, discriminatory or in bad faith.  In this case, the complainant points to the bargaining agent’s refusal to file her grievance on accommodation and its insistence at pursuing her existing grievances in the manner outlined is the action that demonstrates arbitrariness. However, what the bargaining agent did in the letter of May 28, 2010 was to propose future actions and indicate that it would follow its proposal, unless the complainant was successful in her appeal. The course of action proposed by the bargaining agent was not final and it clearly stated so and invited her to provide it with information that would cause it to change its evaluation of her file.

13 While the existence of an internal appeal process does not automatically bar the complainant from filing a complaint, as it would in cases where her complaint was founded on either sub-section 188 (b) or (c) of the Act, the fact that the decision that was communicated to her constituted an interim decision is nonetheless of importance.  The Act imposes a duty of fair representation on bargaining agents and PIPSC has instituted an internal review procedure as a means of ensuring that its representatives fulfill this duty.  I therefore am unable to find, without more, that the bargaining agent’s initial evaluation of the file constitutes a breach of their obligation to not act in an arbitrary manner.  The existence of an internal review procedure is a factor in determining whether or not the bargaining agent has acted in an arbitrary manner.  In refusing to follow the process and filing a complaint with the Board instead, the complainant has prevented the respondent from fully exploring her case and fulfilling its duty. 

14 My concern in this case stems not only from a concern for fairness between the parties, but also from a concern over resources. The courts have repeatedly eschewed judicial interference with interlocutory administrative decisions and have expressed the view that unless there are special circumstances, there should not be any immediate judicial review of an interlocutory decision.  For example, in Canada Post Corporation v. Canadian Union of Postal Workers, 2010 FC 154, at paragraph 39, the Court held:

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It is trite law that judicial review of interlocutory decisions should only be undertaken in exceptional circumstances. Several reasons militate in favour of not intervening until a tribunal has issued a final decision. These reasons include the risk of the fragmentation of the process and the likelihood that such intervention will lead to additional costs and delays. As well, judicial review of interlocutory decisions risks wasting judicial resources, as judicial review applications may become unnecessary following a tribunal's decision on the merits: see, for ex., Greater Moncton International Airport Authorityv.Public Service Alliance of Canada, 2008 FCA 68, [2008] F.C.J. No. 312; Canada (Attorney General)v.Brar, 2007 FC 1268, [2007] F.C.J. No. 1629.

The same concerns arise here. Had the complainant appealed the initial decision, her concerns may well have been resolved and this complaint avoided. 

15 The respondent proposed a course of action that was different from the complainant’s preferred course of action. The respondent’s decision was not final in the sense that the respondent offered to review its decision through the use of an internal appeal process. The complainant refused to use that process. Overall, the respondent did not act in a manner that was arbitrary or discriminatory or in bad faith.

16 In order to be clear, employees who do avail themselves of the internal appeal process will not find themselves penalized for it by having their complaints found to be untimely. The 90-day period for the filing of complaints does not begin to flow until employees are advised by their bargaining agent of the final outcome of the appeal process. On this point, Vice-Chairperson Bédard wrote the following in Renaud v. Canadian Association of Professional Employees, 2009 PSLRB 177:

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[75] In providing an internal complaint procedure for members who consider that they have received unfair or arbitrary representation, the respondent encourages its members to use that procedure before filing a complaint with the Board. When a member uses that procedure, the respondent may not then argue that the procedure cannot have the effect of extending the period for filing a complaint. Were that the case, in many cases the procedure would be prejudicial to CAPE members, since those who used the procedure might then be faced with a limitation period preventing them from filing a complaint with the Board. Such a situation would be completely illogical.

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[77] Therefore, I am of the opinion that the complainant’s use of the respondent’s internal complaint procedure postponed the start of the 90-day period available to her for filing her complaint. Therefore, the 90-day period began on August 13, 2007, when the respondent refused to agree to the complainant’s requests at the final level of the CAPE’s internal complaint procedure. Therefore, the September 24, 2007 complaint was filed within the 90-day period set out in subsection 190(2) of the Act.

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17 The facts of this case differ substantially from those in Boshra v. Canadian Association of Professional Employees, 2011 FCA 98 and Boshra v. Canadian Association of Professional Employees, 2009 PSLRB 100. Mr. Boshra filed a complaint against his bargaining agent, alleging that it had failed in its duty of fair representation by insisting on filing a grievance on grounds other than those on which he insisted that it argue the grievance. The Board concluded that his complaint was untimely as his amicable efforts to induce his bargaining agent to change its mind regarding its perception of his case did not work to place the time limits for filing a complaint on hold. The Board concluded that the 90-day period for filing a complaint began to run on the day that he learned that he and his bargaining agent were at odds on their characterization of his case. No mention at all of any formal, internal appeal process within the bargaining agent is referred to in 2009 PSLRB 100. The Federal Court in 2011 FCA 98 agreed with the Board and, in paragraph 50 of its decision, referred to the fact that it was significant that Mr. Boshra had not submitted evidence of the bargaining agent’s internal process for resolving allegations of breaches to the duty of fair representation. The present case does involve a review process. In cases like this one, the 90-day period should start after the appeal process is completed.    

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

Order

19 The complaint is dismissed.

March 22, 2011.

Renaud Paquet,
Vice-Chairperson