FPSLREB Decisions

I. Complaint and application before the Board

1      Irene J. Bremsak (“the complainant”) has requested that the Public Service Labour Relations Board (“the Board”) issue orders against North Shore Investigations (“NSI”) and Randy Mattern (“the respondents”). The complainant alleged in her complaint that the respondents committed unfair labour practices under section 188 of the Public Service Labour Relations Act (“the Act”). In addition, the complainant filed an application seeking the Board’s consent, under section 205 of the Act, to prosecute the respondents under section 200 and subsection 202(1) of the Act. In particular, the complainant stated that the respondents violated the Act when they found her guilty of harassment. The respondents submitted that the application should be dismissed.

2 Ms. Bremsak’s unfair labour practice allegations read in part as follows:

…

The Complainant’s reason for filing with the PSLRB is that Mr. Mattern and the North Shore Investigation Services violated section 188 of the Public Service Labour Relations Act (PSLRA) when he found the Complainant guilty of harassment for informing the Respondents of the orders from PSLRB file No. 561-34-405 and 561-02-408.

…

3 Ms. Bremsak’s representative, John Lee, elaborated on the complaint as follows in a November 13, 2009 email to the Board:

…

According to Section 188 (e), no other person acting on behalf of an employee organization intimidate or coerce a person or impose a financial or other penalty on a person, because that person has made an application or filed a complaint with the PSLRB.

Mr. Mattern and North Shore Investigation had intimidated the Complainant in their investigation process and had participated in part in imposing penalty on the Complainant. The Respondents were paid by PIPSC to conduct a bias investigation. The Respondents had indicated that the PSLRA and the finding of the 2009 PSLRB 103 was not part of their mandate from PIPSC and therefore will be ignored. Furthermore, the Respondents had ignored the fact that was submitted to them that his employer (PIPSC) had at all time was directed these individuals that filed the complaint against the Complainant that he was investigating (see Paragraph 13 of the Respondents submission for PSLRB File No. 561-34-405 dated July 24, 2009). The Respondents were fully aware that the bias finding will result in their employer (PIPSC) imposing penalty on the Complainant.

[Sic throughout]

…

4 The respondents filed in a written submission dated December 15, 2009 that the complaint and application should be dismissed.

5 By email dated December 1, 2009, Isabelle Roy, Counsel, Professional Institute of the Public Service of Canada (PIPSC), asked as follows for an opportunity to make submissions, since the PIPSC believed that it would be affected by the outcome of the proceedings: “Ms. Bremsak is taking issue with the findings of the Respondents. The Institute relied on those findings to take disciplinary action. Therefore, it appears to us that it is possible that a decision by the PSLRB will have an impact on the Institute.”

6 In an email to Lisa Woodstock of the Board dated December 21, 2009, Ms. Bremsak objected to the PIPSC making any submission. She submitted that, were the PIPSC allowed to participate, she “. . . would like to reserve her right …” to add 24 individuals from the PIPSC as parties to her complaint and application, including two lawyers acting for it.

7 I was appointed by the Chairperson of the Board to hear and decide this matter as a panel of the Board.

8 The complaint and application were determined on the basis of written submissions. It was not necessary to hear from the PIPSC given my findings, as it is unaffected by this decision. I make no findings concerning the harassment allegations contained in the reports prepared by the respondents.

II. Background

9 The complainant was an elected official with the PIPSC. She initially filed two complaints with the Board, which were adjudicated in 2009 PSLRB 103. The background to those complaints is set out as follows at paragraph 3 of that decision:

[3] The first complaint started with an email sent by the complainant involving a controversy over a local election within the bargaining agent. The complaint was concerned that another member, who was selected as a successful candidate based on regional representation, did not step aside because of “ethical” issues and “a lack of morals.” The person who had not stepped aside made a complaint to the president of the bargaining agent alleging that the complainant’s comments were harassing and defaming. The bargaining agent’s Executive Committee agreed with the complaint and wrote to the complainant on September 12, 2007, requesting that she apologize. The complainant declined to apologize, and the bargaining agent’s Board of Directors apologized on the complainant’s behalf…

10 The complainant filed a complaint with the Board (PSLRB File No. 561-34-202), dated November 16, 2007, alleging that the request that she apologize and the apology of the PIPSC’s Board of Directors made on her behalf were a form of penalty and discipline and were discriminatory, contrary to paragraph 188(c) of the Act.

11 After Ms. Bremsak filed her first complaint with the Board, the PIPSC applied its Policy Relating to Members and Complaints to Outside Bodies (“the Policy”) to her and, on April 9, 2008, temporarily suspended her from four positions with the PIPSC to which she had been appointed or elected. The PIPSC advised Ms. Bremsak that her temporary suspensions would end once the outside procedures had been terminated for any reason.

12 The complainant filed a second complaint with the Board (PSLRB File No. 561-34-339), dated April 11, 2008, and filed on July 8, 2008, alleging that the Policy and the PIPSC’s application of it to her were discriminatory.

13 In both complaints, the complainant alleged violations of paragraph 188(c) and subparagraph 188(e)(ii) of the Act by the PIPSC. An employee organization is prohibited from taking disciplinary action or imposing any form of penalty by applying disciplinary standards in a discriminatory manner, as outlined in paragraph 188(c). Paragraph 188(e) prohibits intimidation or coercion or the imposition of financial or other penalties on a person because that person made an application under the Act.

14 The Board rendered a decision in Veillette v. Professional Institute of the Public Service, 2009 PSLRB 64, on May 29, 2009. The PIPSC had temporarily suspended an executive member who had filed an unfair labour practice complaint against the PIPSC with the Board. The Board dealt with a version of the Policy in that decision that the PIPSC applied to Ms. Bremsak. The Board Member allowed the complaint about the policy in that case but did not allow the requested relief, which was reinstatement to the executive member’s position.

15 Ms. Bremsak’s original complaints were adjudicated in a hearing held October 27 to 31, 2008, and May 5 to 7, 2009. The parties filed further written submissions on May 22 and June 1, 17 and 25, 2009. The Board Member rendered a decision on August 26, 2009, in Bremsak v. Professional Institute of the Public Service of Canada, 2009 PSLRB 103. The complainant was successful in part for PSLRB File No. 561-34-339, and the PIPSC was directed to

(1) rescind the application of its Policy to the applicant;

(2) amend its Policy to ensure that it complied with the Act; and

(3) restore the applicant’s status as an elected official and to advise its members and officials in the form described in paragraph 131 of that decision that the applicant was reinstated to all her elected and appointed positions, subject to the normal operation of the PIPSC’s constitution and by-laws.

16 The Board Member dismissed the complaint in PSLRB File No. 561-34-202. The complainant sought a reconsideration of that decision. I issued a decision in Bremsak v. Professional Institute of the Public Service of Canada, 2010 PSLRB 126, dismissing the reconsideration application.

17 Both parties to this case filed written submissions. I exercise my discretion under section 41 of the Act to decide this matter without an oral hearing based on those submissions. I have not allowed the PIPSC to make representations, as this decision deals with the narrow point of whether the complainant may file a complaint against the respondents. I have not made any findings about the investigation process that was employed, the purpose of the investigation or the findings made by the investigator. The PIPSC appears to have used or relied on the investigator’s report to suspend the complainant from her rights. That is the subject of another complaint (PSLRB File No. 561-02-430), which will be decided at a hearing.

18 I note that the complaint and application in this case are 2 of 17 filed by the complainant since the hearing that resulted in 2009 PSLRB 103. The complainant alleged the PIPSC’s ongoing failure to comply with that decision. A Board Member made an order in Bremsak v. Professional Institute of the Public Service of Canada, 2009 PSLRB 159, finding that the PIPSC had not complied with paragraphs 143 and 145 of 2009 PSLRB 103 and deciding that it would file the order in 2009 PSLRB 103 for enforcement in the Federal Court. The Board Member found that the PIPSC had complied with paragraph 144 of 2009 PSLRB 103. There are currently Federal Court proceedings initiated by the complainant about the enforcement of the order made in 2009 PSLRB 103.

III. Summary of the complaint

19 In this decision, I have set out an abbreviated statement of the complaint and application, along with the arguments necessary to support my decision. Some of the complainant’s material was not relevant or helpful and is lengthy.

20 I have found the respondents’ submission of December 15, 2009 helpful in setting out the facts about the investigation at issue. The submission attaches information about NSI (Appendix “A”), the terms of reference for the investigation (Appendix “B” and “C”), and the investigation and analysis report dated October 14, 2009 (Appendix “E” or “the Mattern report”).

21 Four PIPSC representatives — Siddiq Ansair, Geoff Kendell, Kathleen Kerr and Stephen Lee — made harassment complaints with the PIPSC about an email sent by Ms. Bremsak on March 22, 2009 and about the conduct of the complainant and her representative, John Lee, on or about June 3, 2009, at a union meeting of the Vancouver Branch and the Canada Revenue Agency Branch of the PIPSC. The PIPSC retained Mr. Mattern (“the investigator”) on or about May 4, 2009, and again on June 11, 2009, as the investigator for the harassment complaints.

22 The alleged harassment took place when the complainant was under a suspension from executive duties with the PIPSC, pursuant to the Policy. The Board issued a decision on the Policy in 2009 PSLRB 64 on May 29, 2009 in the Veillette matter. At that time, the Board had not yet issued a decision about the grievor’s complaints, which was rendered in 2009 PSLRB 103, on August 26, 2009. One of the grievor’s issues with PIPSC is that the grievor should have been reinstated to her executive duties with PIPSC immediately following the Veillete decision.

23 The PIPSC has a policy to investigate harassment complaints. That policy was not provided in these proceedings. It is unnecessary for me to canvass its details. I accept for the purposes of this decision that the PIPSC had a duty to investigate one member’s harassment complaints against another member.

24 On or about May 4 and June 11, 2009, the PIPSC retained NSI and Mr. Mattern to conduct an investigation by issuing the terms of reference. It is clear that “NSI” is a trade name used by Mr. Mattern and that it is not a company or a person with a separate legal identity from him. His mandate, as set out in the two terms of reference, was to conduct an investigation into alleged breaches of the PIPSC’s harassment policy and to report his findings to the PIPSC’s executive secretary and general counsel. The terms of reference provided that the investigator had discretion to investigate in a manner appropriate to the circumstances but not in a manner that was arbitrary, discriminatory or in bad faith. In particular, the investigator was instructed as follows (Appendix B to the submission of December 15, 2009): “In addition, the investigator is expected to investigate the facts of the complaints and is not expected to make any recommendations.” The terms of reference set out a mandate limited to investigation of the facts and did not empower the investigator to take any action against the complainant.

25 The Mattern report confirmed that some of the harassing events involving the complainant and her representative were substantiated and that some were not. The report does not contain recommendations.

26 The complainant took issue with the report’s findings. She also took issue with the investigator’s definition of harassment. She did not participate fully in the investigation; her representative participated in certain stages.

27 The information before me, as outlined in the respondents’ submission of December 15, 2009, shows that Mr. Mattern has at no time been an employee or an officer of the PIPSC, which retained him to conduct an investigation. Ms. Bremsak’s complaint and submissions do not contradict that assertion.

28 After receiving the Mattern report, the PIPSC suspended the complainant for five years from participating in its affairs. The suspension was challenged in another complaint (PSLRB File No. 561-02-430). Ms. Bremsak also sought the Board’s consent to prosecute individuals for alleged unfair labour practices (PSLRB File No. 597-02-09), which will proceed to a hearing. I make no findings concerning the decision-making process that the PIPSC used to suspend Ms. Bremsak, as it will be considered at a hearing for another application.

29 The complainant also filed an unfair labour practice complaint (PSLRB File No. 561-02-408) and sought consent to prosecute Mr. Ansair, Mr. Kendell, Ms. Kerr and Stephen Lee for alleged unfair labour practices (PSLRB File No. 597-02-01), arising from their filing of harassment complaints against her. Those allegations will be dealt with separately at another hearing.

IV. Summary of the arguments

A. For the complainant

30 In her complaint, Ms. Bremsak sets out a history of her issues with the PIPSC. At all times material to this complaint, Ms. Bremsak was suspended from her position with the PIPSC executive under the Policy, which, in 2009 PSLRB 103, was determined invalid and to have been inappropriately applied to her.

31 The complainant states that she met with the investigator on June 16 and 19, 2009 about the complaints and that she provided the respondents with sections 188 to 202 of the Act, the decision in Veillette and “… legal definitions of harassment and warning.”

32 There was no further meeting between the investigator and the complainant, which she alleges was because the PIPSC refused to pay for her travel time and expenses to participate in the investigation.

33 On June 29, 2009, the complainant filed a complaint against the Vancouver Branch of the PIPSC, alleging an unfair labour practice in the filing of harassment complaints on April 8, 2009 (PSLRB File No. 561-02-405) and seeking the Board’s consent to prosecute those who filed the complaints for having committed an unfair labour practice (PSLRB File No. 597-02-04).

34 On September 15, 2009, the respondents issued a draft investigation report.

35 Ms. Bremsak states that, by investigating and issuing the report, by knowing that the Board had determined that the Policy was invalid and that it had been wrongfully applied to her, by making a finding of harassment, and by being aware that consequences would flow from that finding, the respondents violated section 188 of the Act.

36 The complainant disputes the respondents’ investigation process and findings. The complainant states that her conduct did not constitute harassment. She simply informed those who complained that she had harassed them of the Board’s orders involving Veillette, in decisions 2009 PSLRB 58 and 2009 PSLRB 64 and that they were in violation of the Act. The complainant states that, at the relevant time, she was illegally suspended, based on the Policy and that she should have been reinstated following the Veillete decision, which dealt with a policy similar in substance to the Policy that PIPSC used to suspend her

B. For Mr. Mattern

37 Mr. Mattern submits that he is not an officer, representative or other person acting on behalf of an employee organization and that he was simply retained by the PIPSC to investigate harassment complaints.

38 Mr. Mattern does not have the power to impose financial or other penalties against a PIPSC member; nor did he have the power to intimidate or coerce a member.

39 Mr. Mattern had no control over the use of his report. The PIPSC was free to accept or to disregard it.

40 When Mr. Mattern had exchanges with Ms. Bremsak, he was acting in an official and limited extent as an external investigator retained by the PIPSC.

41 The complaint should be dismissed as frivolous and vexatious. It would be patently unreasonable for the Board to consent to a prosecution under section 205 of the Act. The respondents wrote the following:

…

It is now obvious that the applicant is a highly litigious individual and that, even though her essential dispute is with PSIPSC itself, she is eager to name parties other than PIPSC in her various legal actions. She named the late Ms. Demers in a previous matter, and she has now named Mr. Mattern and NSIS in this latest matter. By summarily dismissing this complaint and application as frivolous and vexatious, and also an abuse of process, the Board may send a message to the applicant that her pattern of behaviour is not acceptable.

…

42 The respondents state that the complaint and application should be dismissed without further testimony from the parties at a hearing.

43 The respondents submit that, even if the complainant has established a prima facie case, the remedies sought are inappropriate. I have not set out the full argument on this point, as it is unnecessary for the purposes of this decision.

C. Reply of the complainant

44 The complainant filed a 54-paragraph reply on January 7, 2010. The reply details the history of her dispute with the PIPSC.

45 The complainant sets out disputes with the investigation process and submits that the respondents said that the Act and the Board’s decisions would not be taken into account and that they were irrelevant to the investigation. The complainant recites her concerns with the investigation in her reply. During the investigation, another harassment complaint was added on June 30, 2009, about a June 3, 2009 incident. The complainant states that her representative provided proof to the investigator that the harassment complaints were directed and instructed by the PIPSC.

46 The complainant states that the PIPSC hired the respondents, that they were its representatives and that they acted on its behalf.The investigation’s findings were illegitimate, and the respondents had full knowledge of the actions and legal consequences, including the possibility of the complainant being suspended or terminated. She states that the PIPSC trumped up the harassment charges to avoid complying with the Board’s orders.

47 The complainant submits that an oral hearing of this complaint is necessary to meet the requirements of natural justice.

V. Reasons

48 In my view, it is appropriate to decide this case on the basis of written submissions, and it is unnecessary to determine the validity of the harassment complaints — either those alleged and investigated in the Mattern report or those alleged by the complainant. The complainant made a separate allegation that the harassment complaints (PSLRB File No. 561-02-405) and resulting five-year suspension imposed by the PIPSC (PSLRB File No. 561-02-430) were unfair labour practices. She seeks the Board’s consent, under section 205 of the Act, in applications (PSLRB File Nos. 597-02-04 and 597-02-09 respectively) to prosecute individuals for a breach of the Act. The facts appear to be in dispute and these complaints and applications will be dealt with at a hearing.

49 When considering Ms. Bremsak’s complaint, it is important to consider the text of section 188 of the Act as it provides a definition for unfair labour practices involving employee organizations. The section provides the following:

Unfair labour practices – employee organizations

188.   No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall

(a) except with the consent of the employer, attempt, at an employee’s place of employment during the employee’s working hours, to persuade the employee to become, to refrain from becoming, to continue to be or to cease to be a member of an employee organization;

(b) expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner;

(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;

(d) expel or suspend an employee from membership in the employee organization, or take disciplinary action against, or impose any form of penalty on, an employee by reason of that employee having exercised any right under this Part or Part 2 or having refused to perform an act that is contrary to this Part; or

(e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has

(i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2,

(ii) made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iii) exercised any right under this Part or Part 2.

50 Mr. Mattern was an external investigator retained by the PIPSC to investigate a harassment complaint. He made findings after hearing from the parties. When he performed that work, he was not an employee, officer or representative of the bargaining unit within the meaning of paragraph 188(a) of the Act. He was an “other person acting on behalf” of an employee organization. His capacity was limited; he was an external neutral party brought in to investigate a dispute.

51 It is clear that Mr. Mattern had no power under paragraph 188(b) of the Act to expel or suspend Ms. Bremsak. He had no power to deny her membership in the PIPSC.

52 It is clear that he had no power under paragraphs 188(c) or (d) of the Act to take disciplinary action or to impose a penalty on Ms. Bremsak.

53 He had no power to discriminate against Ms. Bremsak under paragraph 188(e) of the Act in connection with her relationship with the PIPSC.

54 For the above reasons, I find that Ms. Bremsak has not shown that the respondents violated section 188 of the Act even on a prima facie basis. I dismiss the complaint against the respondents.

55 Because the complainant has not proven a violation of section 188 of the Act, I also dismiss her application under section 205 for the Board’s consent to prosecute an unfair labour practice alleged under section 188.

56 The respondent alleged that the complaint and application are frivolous and vexatious and that they are an abuse of process. It is unnecessary for me to consider whether the complaint and application are frivolous, vexatious or an abuse of process. The complainant simply has no right to proceed against Mr. Mattern or his unrepresented entity, NSI, as they acted in a limited role, had no power to make decisions about Ms. Bremsak’s status and are not persons against whom a remedy can be sought under section 188 of the Act.

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

VI. Order

58 The complaint in PSLRB File No. 561-02-421 and the application in PSLRB File No. 597-02-08 are dismissed.

April 26, 2011.

Paul Love,
Board Member