FPSLREB Decisions

I. Complaint before the Board

1 On March 10, 2010, Gandhi Jean-Pierre (“the complainant”) filed a complaint against Pierre Arcand (“the respondent”), a regional representative of the Public Service Alliance of Canada, Quebec Region (“the Alliance” or “the bargaining agent”). The complainant alleged that the respondent breached his duty of fair representation by refusing to represent him in a grievance challenging his employer’s refusal to retain his application about a notice of interest for an acting assignment.

2 The complaint was filed under paragraph 190(1)(g) of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the PSLRA”), which reads as follows:

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.

3 Section 185 of the PSLRA defines an “unfair labour practice” as “… anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).” The provision of the PSLRA referenced under section 185 that applies to this complaint is section 187, which provides 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.

4 That provision was enacted to hold employee organizations and their representatives to a duty of fair representation, a duty that, according to the complainant, the respondent did not fulfill.

II. Summary of the evidence

5 I heard testimony from the following individuals at the hearing: the complainant, François Leblanc, the respondent, Guy Boulanger and Éric Thériault.

6 The complainant is an immigration officer with Citizenship and Immigration Canada (CIC or “the employer”). He works in a PM-03 position in Montreal, Quebec.

7 On November 10, 2009, the Director of Operations at the CIC’s Montreal office issued a notice seeking potential candidates to temporarily staff PM-04 acting supervisor positions in the Quebec region. Interested candidates had to submit their résumés by November 18, 2009, along with a cover letter explaining how they met the qualifications. According to the complainant, it was not an official staffing process.

8 At the time in question, the complainant was on an acting assignment at the Canadian embassy in Mexico and did not receive the notice of interest. He heard about it in a telephone conversation with a co-worker from the Montreal office on November 17, 2009. That same day, he emailed the Director of Operations, indicating his interest and asking for a closing date extension due to his assignment in Mexico. The complainant proposed that he could submit his cover letter and résumé once he returned to Montreal in the week of November 23, 2009.

9 The complainant said that he submitted his documentation on November 25, 2009. The following day, he was informed that the employer would not consider his application because the required documentation was submitted after the deadline. Dissatisfied, the complainant filed a grievance on December 9, 2009 against the refusal to consider his application. The grievance was submitted at the first level of the grievance process. The complainant was represented by Eric Thériault, President of the bargaining agent local. In his testimony, Mr. Thériault said that he clearly explained to the complainant that his grievance had no chance of success. He agreed to represent the complainant at the first level of the process to attempt to reach a settlement with the employer, knowing full well that one was not likely. The grievance was dismissed at the first level on January 7, 2010. According to the employer, it was up to interested employees, including those on assignment abroad, to take the necessary steps to inform themselves about potential job opportunities that might interest them.

10 On January 8, 2010, the complainant instructed Mr. Thériault to transmit his grievance to the second level of the process. Mr. Thériault told him that he could not represent him at the second level of the process because that level was the regional office’s responsibility. He then transferred the case to the respondent. The complainant expressed concerns about the respondent, specifically his refusal to represent the complainant in another grievance, but he resigned himself to the fact that Mr. Thériault did not have the authority to represent him at that level of the process.

11 Although the respondent initially agreed to transmit the grievance to the second level of the process on January 11, 2010, he advised the complainant on February 8, 2010 that he was withdrawing the grievance because it did not address a violation of either the applicable collective agreement or the PSLRA. Later in the meeting, the respondent changed his position and clarified that he was withdrawing not the grievance but his representation. He encouraged the complainant to file a complaint with the appropriate deputy head and possibly with the Public Service Staffing Tribunal (PSST), which the complainant never did. He said that the notice of interest was for assignments of less than four months’ duration; hence he had no right to recourse under the Public Service Employment Act, S.C. 2003, c. 22 (PSEA). According to the complainant, it was the second time the respondent refused to represent him, for no valid reason. However, the complainant adduced no independent evidence, documentary or otherwise, about that alleged earlier lack of representation.

12 On January 27, 2010, since the respondent was not in his office, the complainant stated that he gave Mr. Thériault a document containing additional information about his grievance. On his return from a temporary assignment in Haiti, from March 15, 2010 to April 12, 2010, the complainant met with Mr. Thériault to retrieve his grievance file. He noted that the document in question was not in the file. He questioned the respondent, who indicated that he read the document and that he shredded it shortly afterward. The complainant did not send a copy of the document to his employer and did not ask the respondent whether he had done so.

13 On March 10, 2010, the complainant filed his complaint against the respondent.

14 François Leblanc testified for the complainant. He is Manager of Human Resources, Customer Services, Quebec Regional Office, CIC. His testimony was relatively brief.

15 Mr. Leblanc confirmed that he met with the respondent briefly on January 12, 2010 to informally discuss the grievance, to exchange their respective positions and to discuss the coming procedures. The respondent then indicated to the complainant that he would state the basis of his arguments once he reviewed the case. No basis was discussed at the meeting.

16 A few hours later, a major earthquake hit Haiti. Since several members of the complainant’s family lived there, the respondent requested that the grievance be placed on hold. Mr. Leblanc agreed.

17 In February 2010, Mr. Leblanc was informed that the respondent had ceased to represent the complainant and had so advised him. He added that the complainant’s grievance had been put on hold and had never been reactivated. According to Mr. Leblanc, the complainant never contacted him to discuss or reactivate the grievance. It should be noted that, in an email dated March 10, 2010, Mr. Thériault reminded the complainant that he had to provide his own representation and that he had to contact the employer directly if he wished to proceed with his case. Mr. Leblanc also indicated that, in his opinion, the grievance did not raise any issues relevant to a violation of the PSLRA or the collective agreement in force. He did not believe that a suitable corrective action existed in the circumstances. Mr. Leblanc also confirmed that he never received a copy of the complainant’s additional arguments dated January 27, 2010.

18 Although the complainant mentioned several times that he intended to call a key witness who would be able to confirm some of his allegations about the respondent’s true motivation, he chose not to call that witness and did not mention any problems about summoning the witness.

19 In his testimony, the respondent indicated that he has worked for the CIC for 25 years and that, at the time in question, he was a representative in the regional office of the Canada Employment and Immigration Union (CEIU), a component of the Public Service Alliance of Canada. He was a union representative for eight years. He has not performed that duty since April 19, 2010.

20 Mr. Thériault approached the respondent in December 2009 about the complainant’s grievance. They briefly discussed representing the complainant at the first level of the process. The grievance was turned over to the respondent after it was dismissed at the first level, since he was qualified to provide second-level representation. Although he had had no opportunity to review the complainant’s case, the respondent agreed to sign his grievance and to forward it to the employer on January 11, 2010. He said that he did that to protect the complainant’s interests, given the deadlines in question.

21 The next day, the respondent met with Mr. Leblanc to discuss the complainant’s case. In his opinion, it was not an official meeting; he was simply touching base to determine the employer’s position and to assess the possibility of a settlement. At the meeting, he told Mr. Leblanc that he had not had an opportunity to review the case and that he would advise of his position shortly.

22 Given the Haiti earthquake, which occurred shortly afterward, the respondent contacted Mr. Leblanc once again and asked for a suspension of the process deadlines. Mr. Leblanc agreed.

23 Toward the end of January 2010, the respondent thoroughly analyzed the complainant’s case. According to the respondent, the analysis included studying the facts, as stated by the complainant, the available documentation, the complainant’s additional reasons, the applicable collective agreement, the relevant laws, including the PSLRA and the PSEA, and the jurisprudence. As a result, the respondent concluded that the complainant’s grievance, and specifically the employer’s decision to not consider the complainant’s late application for an acting position of less than four months’ duration, was in no way a violation of the collective agreement or the PSLRA and that the grievance had no chance of success at adjudication. Furthermore, according to the respondent, the complainant’s allegations that the employer’s actions were unfair and that they prejudiced his working conditions were not supported by the facts, the collective agreement or the PSLRA. According to the respondent, the complainant was not the only candidate whose application was turned down because it was late.

24 On February 8, 2010, the respondent met with the complainant, to communicate his conclusions and the basis for his analysis. The meeting lasted 30 minutes and was described as difficult because of the complainant’s angry countenance. The respondent admitted to mistakenly telling the complainant at the meeting that he planned to withdraw the grievance. However, he said that he corrected himself later in the meeting, clarifying that he was withdrawing the bargaining agent’s representation, not the grievance. Guy Boulanger, the senior national union representative, took part in the meeting by telephone. In his testimony, Mr. Boulanger confirmed that he fully supported the respondent’s reasoning and conclusions and said that he had postulated a similar position to Mr. Thériault in November 2009, when Mr. Thériault approached him about the complainant’s grievance. Mr. Boulanger added that he would not have allowed the respondent to withdraw the bargaining agent’s representation had he thought that some basis existed for the complainant’s grievance. There was none, in his opinion. In his testimony, Mr. Thériault confirmed passing on Mr. Boulanger’s comments to the complainant in November 2009. The complainant had no further contact with Mr. Boulanger after the February 8, 2010 meeting.

25 The respondent said that he told the complainant that he could pursue his grievance without the bargaining agent’s representation and that he could file a complaint with the CIC deputy head under the PSEA. He also mentioned that he could file a formal complaint with the PSST, although he later realized that that was not possible, since the notice of interest was for positions of four months less a day, which rendered it outside the PSST’s jurisdiction. The respondent added that he clearly explained to the complainant that his grievance had no chance of success and that the corrective measures that he sought were unrealistic, since the positions in question had already been staffed and released, given their temporary natures. That same day, the respondent advised the employer of the bargaining agent’s withdrawal.

26 Shortly after the February 8, 2010 meeting, the respondent received an email from the complainant, dated February 17, 2010, asking him to state in writing the basis for his conclusions, which he refused because, in his opinion, he had already clearly explained the contents of his analysis at the February 8, 2010 meeting. Furthermore, he did not wish to debate the legal basis of the case, given his recent heated exchange with the complainant. It should be noted that, in an email dated February 10, 2010, Mr. Thériault provided the complainant with certain legislative provisions that supported the limited options and recourse available to him.

27 With respect to the document in which the complainant stated certain additional reasons, the respondent said that he received a copy near the end of January 2010. He reviewed it and annotated it in several places. In his view, it was his own copy that he could use as he saw fit when analyzing the case. After stating his decision to withdraw the bargaining agent’s representation, he shredded the document. He was about to change offices and wanted to get rid of any unnecessary paperwork to make the move easier. In his opinion, the document would not have been useful since it contained several rather negative comments. The respondent added that no one had informed him that the employer did not yet have a copy of the document. In addition, no one had asked him to send a copy of it to the employer, and nothing had prevented the complainant from sending a copy to the employer once he learned that it had been shredded. According to the respondent, the complainant’s grievance was still active at that time, even though the applicable deadlines had been suspended.

28 In cross-examination, the respondent confirmed that he never refused to represent the complainant in the past; that fact was never contradicted through independent testimony or documentary evidence. Furthermore, in response to the complainant’s suggestion that he had colluded with the employer in handling the grievance, the respondent said that he never entered into a pact or any other form of agreement with the employer for withdrawing the bargaining agent’s representation. That fact also was not contradicted through independent testimony or documentary evidence.

III. Summary of the arguments

A. For the complainant

29 The complainant’s arguments were brief.

30 The complainant argued that the employer’s conduct in the events that followed the notice of interest of November 10, 2010 was a flagrant injustice, which resulted in denying him fair access to an employment opportunity. In his opinion, the respondent had a duty to represent him in the circumstances.

31 According to the complainant, the respondent could not have withdrawn his representation on the basis that the grievance had no grounds, since he had already supported transmitting the grievance to the second level. He added that the respondent’s position change showed his bad faith.

32 The complainant also argued that the evidence showed that the respondent conducted only a cursory analysis of his case and that he did not consider any objective criteria when reviewing the relevant documentation. Furthermore, the fact that it was not the first time that the respondent had denied the complainant representation and the fact that the respondent colluded with the employer proved that he did not show good faith, in the complainant’s view.

33 According to the complainant, the respondent acted not only arbitrarily but also in bad faith.

34 The complainant requested $12 500 for the moral damages that he said that he suffered, including anxiety and a loss of the enjoyment of life. Alternatively, he requested an order instructing the respondent or another bargaining agent representative to represent him at the second level of the grievance process.

B. For the respondent

35 The respondent argued that the complainant knew from the time his grievance was filed that he had no chance of success and that he wanted the bargaining agent’s representation only so that the employer would act, leading to his goal of obtaining a resolution favourable to him.

36 The respondent added that he acted in good faith and that he seriously and thoroughly analyzed the complainant’s case, including reviewing the information obtained from Mr. Thériault, the complainant’s additional reasons, the collective agreement in force and the provisions of the applicable laws.

37 The respondent argued that he clearly communicated to the complainant the basis for the conclusions of his analysis during the February 8, 2010 meeting and that he even offered options, including the possibility of filing an official complaint with the appropriate deputy head. He added that, although he refused to repeat that exercise in writing on February 17, 2010, the nature of the dispute between the complainant and his employer was relatively simple and did not require anything more than a verbal explanation. Furthermore, certain relevant legislative provisions had already been provided to the complainant on February 10, 2010.

38 The respondent pointed out that, including him, three different union representatives were involved in the complainant’s case. All agreed that the grievance had no chance of success. In their testimonies, the other two representatives, Mr. Thériault and Mr. Boulanger, supported the conclusions in the respondent’s analysis.

39 According to the respondent, the complainant never adduced any evidence of his alleged moral damages or financial loss. In addition, he knew as of March 10, 2010 at the latest that he had to represent himself and that he had to contact the employer directly, which he never did.

40 In support of his arguments, the respondent referred me to Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28; Noël v. Société d’énergie de la Baie James, 2001 SCC 39; Baun v. National Component, Public Service Alliance of Canada, 2010 PSLRB 127; and Tsai v. Canada Employment and Immigration Union and Sand, 2011 PSLRB 78.

41 According to the respondent, the complainant did not establish a violation of the PSLRA. The respondent added that he acted diligently and that he seriously and thoroughly reviewed the complainant’s case.

IV. Reasons

42 The burden of proof in a complaint under section 187 of the PSLRA rests with the complainant. That burden required the complainant to present evidence sufficient to establish that the respondent failed to meet his duty of fair representation.

43 As indicated above, section 187 was enacted to hold employee organizations and their representatives to a duty of fair representation. Although every employee is entitled to an appropriate analysis of his or her case, he or she is not entitled to the most thorough investigation possible.

44 In Halfacree v. Public Service Alliance of Canada, the Board rejected the idea that the representation of union employees is an absolute right. The following was stated at paragraph 17:

[17] The respondent, as a bargaining agent, has the right to refuse to represent a member, and a complaint to the Board is not an appeal mechanism against such a refusal. The Board will not second-guess the bargaining agent’s decision. The Board’s role is to rule on the bargaining agent’s decision-making process and not on the merits of its decision…

45 As suggested in Halfacree, the Board’s role is to determine whether the respondent acted in bad faith or in a manner that was arbitrary or discriminatory in the process that led to the decision to not represent the complainant. Its role is not to determine whether the respondent’s decision was correct.

46 As broad as that discretion might appear, it is not absolute. The scope of the duty of fair representation was set by the Supreme Court of Canada (SCC) in Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509, at 527. In that decision, the Supreme Court describes the principles underlying the duty of fair representation as follows:

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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.

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47 The Board discussed the meaning of “arbitrary conduct” as follows in Ménard v. Public Service Alliance of Canada, 2010 PSLRB 95, at para 22 and 23:

[22] With respect to the term “arbitrary,” the Supreme Court wrote as follows at paragraph 50 of Noël v. Société d’énergie de la Baie James, 2001 SCC 39:

The concepts of arbitrary conduct and serious negligence, which are closely related, refer to the quality of the union representation. The inclusion of arbitrary conduct means that even where there is no intent to harm, the union may not process an employee’s complaint in a superficial or careless manner. It must investigate the complaint, review the relevant facts or seek whatever advice may be necessary; however, the employee is not entitled to the most thorough investigation possible…

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[23] In International Longshore and Wharehouse [sic] Union, Ship and Dock Foremen, Local 514 v. Empire International Stevedores Ltd. et al., [2000] F.C.J. No. 1929 (C.A.) (QL), the Federal Court of Appeal stated that, with respect to the arbitrary nature of a decision, to prove a breach of the duty of fair representation, “… a member must satisfy the Board that the union’s investigation into the grievance was no more than cursory or perfunctory.”

48 Undoubtedly, the bar for establishing arbitrary conduct — or discriminatory or bad faith conduct — is purposely set quite high. Bargaining agents and their representatives are afforded substantial latitude in representational decisions. Many reasons can found a bargaining agent’s decision to not represent an employee. In Mangat v. Public Service Alliance of Canada, 2010 PSLRB 52, the Board commented as follows:

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[44] … 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.):

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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].

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49 The complainant was required to establish a violation of section 187 of the PSLRA, which in turn required him to present evidence demonstrating that the respondent’s failure to represent him at the second level of the process was arbitrary, discriminatory or in bad faith. My examination of the facts and of the evidence submitted by the parties did not reveal any signs of discriminatory, arbitrary or bad faith behaviour by the respondent. Nothing that the complainant presented established, on a balance of probabilities, a violation of section 187 of the PSLRA. The complainant failed to adduce any independent evidence, documentary or otherwise, proving that the respondent had previously refused to represent him or a reason for that refusal. The respondent denied that it had occurred and was not cross-examined on that issue during his testimony. The complainant did not adduce any evidence or context to support that allegation.

50 Similarly, the complainant failed to adduce any independent evidence, documentary or otherwise, in support of his argument that the respondent colluded with the employer when he withdrew the bargaining agent’s representation.

51 In addition, nothing in the evidence presented to me led me to conclude that the respondent displayed an uncaring or cavalier attitude toward the complainant’s interests or that he acted misleadingly or maliciously or with personal hostility. I have no reason to believe that the respondent acted negligently or that he treated the complainant differently from other employees or that any such distinction was based on illegal, arbitrary or unreasonable grounds.

52 Moreover, I find that the respondent was aware of the circumstances of the grievance and that he possessed all the necessary information to make a decision about the complainant’s representation at the second level of the process. I am also satisfied that the respondent examined the circumstances of the grievance, understood its merits and made an informed decision as to whether the bargaining agent should continue to represent the complainant. The respondent’s conclusions did not differ from those of the other two union representatives involved in the complainant’s case, Mr. Thériault and Mr. Boulanger.

53 Clearly, it would have been preferable had the respondent followed up with the complainant by sending a written explanation of the reasons for withdrawing the representation, but I do not find that that omission was fatal in the circumstances. The respondent’s explanation at the February 8, 2010 meeting notified the complainant of the respondent’s decision and the reasoning behind it.

54 For those reasons, I find that the complainant failed to establish that the respondent committed an unfair labour practice or that he violated section 187 of the Act.

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

V. Order

56 The complaint is dismissed.

February 24, 2012.

PSLRB Translation

Stephan J. Bertrand,
Board Member