FPSLREB Decisions

I. Complaint before the Board

1 On March 9, 2010, Chuck R. U. Ennis (“the complainant”) made a complaint against the National President of the Canada Employment and Immigration Union (CEIU or “the Component”), Jeannette Meunier-McKay and the CEIU itself (“the respondents”). The CEIU is a Component of the Public Service Alliance of Canada (PSAC or “the bargaining agent”). The complainant alleged that the respondents breached their duty of fair representation by withdrawing the CEIU’s representation for two grievances that he had filed in March 2008.

2 This complaint was filed under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”), which reads as follows:

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

…

(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 Act defines an unfair labour practice as anything prohibited by subsections 186(1) or (2), sections 187 or 188, or subsection 189(1). The provision of the Act referenced under section 185 that best applies to the facts of this complaint (and which was the only provision argued by the complainant) 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.

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 respondents did not fulfill.

4 The respondents raised a preliminary objection on the basis that the complaint is untimely. Alternatively, the respondents submitted that, even if the complaint were timely, no violation of section 187 of the Act ever took place.

II. Summary of the evidence

5 The evidence that was put before me consisted of the testimonies of the complainant and of Leta Ruth Karen Abercrombie, CEIU Local 20917 President, as well as 28 exhibits, some of which contained several documents. Although I found the testimony of the complainant of limited value and assistance, I was nevertheless able to acquire an appreciation of the relevant facts through the testimony of Ms. Abercrombie and a review of the exhibits. Rather than portraying a factual chronology of the relevant events that founded his complaint and referring to the documents that supported his contention, the complainant offered various opinions, analogies and anecdotes that were completely unrelated to his complaint.

6 On July 16, 2007, the complainant was hired for a specified term of employment as a program officer with Human Resources and Social Development Canada/Service Canada (“the employer”), a position classified PM-02. His term employment was subject to a 12‑month probationary period designed to assess his suitability for the position for which he had been hired.

7 On February 25, 2008, the complainant was advised that his term employment was being terminated in accordance with subsection 62(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (“the PSEA”), and that his effective date of termination was March 21, 2008. The employer cited the complainant’s alleged inability to achieve the level of performance required and expected for his position as the reason for terminating his employment while on probation.

8 On March 17, 2008, the complainant presented two grievances. In the first, he alleged that the employer’s rejection on probation was arbitrary, capricious, unfair and a sham for what he qualified as a disguised disciplinary action. In the second, he alleged that the employer’s adverse treatment of him was discriminatory and was based on grounds of race and religion. The complainant later requested that the Component enlarge the grounds to include national or ethnic origin, colour and sex, which it did. Both grievances were presented with the initial support of both the Component and the bargaining agent.

9 Between June 2008 and August 2009, several emails were exchanged between the complainant, Ms. Abercrombie and Julie Paul, a CEIU national representative, in which the CEIU representatives provided information and explanations about their roles, the grievance process, the bargaining agent’s procedure for requests for referrals to adjudication, the adjudication process, the remedial powers provided by the Act, the importance of providing evidence to support the allegations contained in his grievances, and the Canadian Human Rights Commission’s process for complaints based on a prohibited ground of discrimination.

10 As evidenced by the contents of those emails, the complainant was asked on numerous occasions to prepare a factual chronology and to assemble any material that could support his grievances, but according to Ms. Abercrombie, very little was provided, and what was provided, was of limited value. As a result, the complainant’s grievances were held in abeyance pending the production of the requested information, as evidenced by a letter from Ms. Paul dated December 9, 2008, which states as follows:

Further to my letter of July 9, 2008 we have had no contact from you and, as a result, no confirmation that you have the documents you were seeking through a privacy request. As well, you still have not provided the requested supporting documentation for your grievances.

Please advise our office whether or not you intend to proceed with your grievances.

We have arranged to keep your grievances on hold with the employer but they have asked as to the status of these cases. If we do not hear back from you by January 4, 2009 we will close our files and so advise the employer.

11 In July 2009, the employer emailed Ms. Paul and informed her that it had forwarded what it considered were the requested records from the complainant’s privacy request as far back as February 2009 and that it was no longer willing to keep his grievances in abeyance. This prompted Ms. Paul to again request the complainant’s supporting material. On July 22, 2009, the complainant provided her with some documents, including letters from his team leader, dated November 9, 2007 and January 18, 2008, in which several concerns were raised about his competencies and suitability. In the letters, the team leader went as far as warning the complainant that a failure to demonstrate an ability to meet the competencies as required by the position within a reasonable time could lead to a rejection on probation. After reviewing the documents, Ms. Paul sought clarification and additional information from the complainant.

12 On August 7, 2009, the complainant responded to Ms. Paul with an 11‑page statement, which she described as a “long rambling document that illustrated his anger, various opinions, convoluted analogies and jumbled accounts of various events,” a description that I would qualify as representative of the testimony that I heard from him. According to Ms. Paul, the complainant, who had been provided with documents by the employer as a result of his privacy request, had still not produced any evidence to support the premise that the termination of his employment was based on something other than a bona fide dissatisfaction as to his suitability or that it was based on a prohibited ground of discrimination. At that point, Ms. Paul proceeded to assess the information and evidence available to her. Ms. Paul’s analysis led her to conclude that the employer’s rejection on probation was based on nothing other than employment-related reasons.

13 On October 30, 2009, Ms. Paul emailed the complainant and advised him that the CEIU would no longer represent him in his two grievances. In that email, Ms. Paul also advised him that the employer would be informed of her decision to withdraw the CEIU’s representation and that additional time would be requested from the employer to allow him to prepare his cases. She provided him with proposed dates for a second‑level grievance process hearing as well as contact information for the employer representative. Finally, and more importantly, Ms. Paul provided the complainant with a 13-page case analysis of his grievances, which summarized in great detail (i) the facts of his performance between July 2007 and February 2008, as outlined in the documents she had been provided with; (ii) the lack of cogent evidence to support the discrimination grievance; (iii) the conclusions she reached about the chances of success of each grievance; and (iv) the rationale that led to her conclusions.

14 The complainant admitted that he received Ms. Paul’s email of October 30, 2009, which is also confirmed by the fact that he forwarded it to a lawyer practicing in Vancouver only two days later, but he indicated that he “could not recall” receiving the attached analysis. In cross-examination, he admitted that he never requested a copy of the analysis after receiving Ms. Paul’s email, despite the fact that the email referred to the attachment in the header and stated the following in its opening paragraph: “[P]lease see attached my analysis of your grievances.” The complainant again admitted receiving the hard copy of this email in early November 2009 and not requesting the attachment at that time either. The complainant indicated that he had never spoken to Ms. Paul and that all communications with her were through emails and letters.

15 On November 12, 2009, the complainant wrote to the President of CEIU about Ms. Paul’s decision to no longer represent him in his grievances. His letter was not introduced in evidence and, according to the respondents, was not submitted as part of an internal appeal process, since there is none. Nevertheless, the complainant acknowledged that, when he wrote to Ms. Meunier-McKay on November 12, 2009, he did not request a copy of Ms. Paul’s analysis.

16 On November 23, 2009, Ms. Meunier-McKay replied to the complainant and confirmed Ms. Paul’s decision to withdraw the bargaining agent’s representation, the same decision that had already been communicated to him on October 30, 2009. When he testified, the complainant indicated that he received this letter only in early December 2009 but that he could not confirm the exact date. When it was suggested to him that the Act required that he have knowledge of the act, omission or other matter that gave rise to the complaint within 90 days of its filing, which corresponded to December 9, 2009 in his case, he remembered receiving the reply on that very date. However, in cross-examination, he admitted being aware as early as October 30, 2009 that there was a problem, that the CEIU was no longer representing him and he indicated that he had been shocked by its withdrawal of representation.

17 On March 9, 2010, the complainant filed his complaint with the Board. The date that appears above his signature on the last page is February 4, 2010. The complainant indicated that he completed the complaint form on that date and that he sent it a few days later by priority mail to a labour board in Vancouver. He could not specify the date on which he sent the complaint or the name and address of the labour board in question. No delivery slip or receipt was introduced in evidence. The complainant indicated that he subsequently received a call from that labour board and that he was advised that he had sent his complaint to the wrong board. He then asked the person who had contacted him to forward the complaint to the appropriate entity (this Board). The complainant could not specify the name of the individual he spoke with or the date of the conversation. I also noted that the record did not contain a covering letter from any other Board or tribunal advising this Board that it was redirecting this complaint.

III. Summary of the arguments

A. For the complainant

18 The complainant’s arguments were succinct. For the timeliness objection, he argued that, since he learned of the CEIU’s decision to withdraw its representation only on December 9, 2009, the complaint that he filed shortly after February 4, 2010 in Vancouver fell well within the applicable delay and was therefore timely. The complainant appeared to be dismissive of the withdrawal notification dated October 30, 2009 because Ms. Paul’s analysis was, he claimed, not attached.

19 With respect to the respondents’ conduct, the complainant argued that the evidence clearly established a conduct akin to arbitrariness, bad faith and discrimination. According to the complainant, it was visibly apparent from the tone and language used in the different correspondence from Ms. Paul and the respondents, which displayed a profound dislike, hostility and animosity towards him.

20 According to the complainant, the respondents and Ms. Paul never demonstrated any interest or effort in considering his numerous statements or material, and both failed to fight for his rights. Therefore, they must be held accountable for their failures. I note that Ms. Paul was not named as a respondent in this proceeding.

B. For the respondents

21 The respondents argued that the complaint is clearly untimely and that I do not have the statutory power to extend the applicable time limit. On the latter point, they referred me to Cuming v. Butcher et al., 2008 PSLRB 76, at para 35, Panula v. Canada Revenue Agency and Bannon, 2008 PSLRB 4.

22 According to the respondents, the complainant was aware of the representation withdrawal through Ms. Paul’s email of October 30, 2009. He did not require a second confirmation from Ms. Meunier-McKay since the email clearly indicated that the decision to withdraw had been made “in consultation with CEIU National office” and was copied to the vice‑president of the CEIU’s National Executive Committee. In addition, the complainant’s letter of November 12, 2009, in which he challenged Ms. Paul’s decision, was not submitted as part of an internal appeal process, as no such appeal mechanism exists, which suggests that Ms. Meunier-McKay’s response of November 23, 2009 could not extend the applicable time limits.

23 The respondents argued that the complainant’s contentions that he learned of the events that gave rise to his complaint only through her letter of November 23, 2009, that he received that letter only on December 9, 2009, and that he filed his complaint on or about February 4, 2010 with some unidentified labour board, all seriously lack in credibility.

24 As for the merits of the complaint, the respondents argued that the evidence does not establish that Ms. Meunier-McKay or any CEIU representative acted in bad faith or in an arbitrary or discriminatory fashion. According to the respondents, the opposite was demonstrated. The evidence established diligent, competent and compassionate conduct on the part of every CEIU representative involved with the complainant’s file.

25 The respondents contended further that the evidence also established that the complainant’s tone was hostile and disrespectful to the CEIU’s representatives, rather than the other way around. They added that the complainant simply failed to produce the information and materials requested of him to substantiate his allegations and that Ms. Paul’s repeated efforts to obtain it were consistently met with hostility.

26 In support of its contentions, the respondents referred me to the following Board decisions: Baun v. National Component, Public Service Alliance of Canada, 2010 PSLRB 127, Halfacree v. Public Service Alliance of Canada, 2010 PSLRB 64, and Tsai v. Canada Employment and Immigration Union and Sand, 2011 PSLRB 78.

IV. Reasons

A. Timeliness

27 This decision deals in part with the respondents’ objection that the complaint is out of time. Timeliness is a fundamental factor, and its key element is prescribed in subsection 190(2) of the Act as follows:

190. (2) … 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.

28 The Board has repeatedly affirmed the mandatory nature of subsection 190(2) of the Act. The time limit prescribed for filing a complaint must always be respected. As for how subsection 190(2) ought to be interpreted, the Board wrote the following at paragraph 55 of Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78:

[55] That wording is clearly mandatory by its use of the words “must be made no later than 90 days after the events in issue”. No other provision of the PSLRA gives jurisdiction to the Board to extend the time limit prescribed in subsection 190(2). Consequently, subsection 190(2) of the PSLRA sets a boundary, limiting the Board's power to examine and inquire into any complaint that an employee organization has committed an unfair labour practice within the meaning of section 185 (under paragraph 190(1)(g)) of the PSLRA) and that is related to actions or circumstances that the complainant knew, or in the Board's opinion ought to have known, in the 90 days previous to the date of the complaint.

29 The extent of my jurisdiction is to determine, based on the evidence before me, the date on which the complaint was filed and the date on which the 90-day period started, or in other words, the date on which the complainant knew, or ought to have known, of the action or circumstances that gave rise to his complaint, which are purely questions of fact.

30 Although the complainant signed the complaint on February 4, 2010, I find that it was filed with the Board on March 9, 2010, as evidenced by the receipt stamp that appears on each page. The complainant’s explanation about the complaint’s filing is less than compelling and still does not change the fact that the complaint was not filed with this Board until March 9, 2010, irrespective of his intention. While the complainant’s allegation that he sent his complaint to the wrong board might have been considered in a case extending the time limits, this is no such case, and I have no power to extend the applicable time limit. This means that it must have been based on actions or circumstances that he knew of, or ought to have known of, by December 9, 2009, at the latest. Any actions or circumstances attributable to the respondents that occurred before that date and of which the complainant knew could not have given rise to this complaint, since they would definitely have been outside the 90-day period.

31 Based on my review of the testimonial and documentary evidence submitted by the parties, I am satisfied that the complainant knew or ought to have known of the actions or circumstances that gave rise to the portion of his complaint against the CEIU on October 30, 2009, when Ms. Paul advised him that the CEIU would no longer represent him in his two grievances and that the decision to withdraw representation was made in consultation with the CEIU’s national office. Ms. Paul’s email not only informed the complainant of the CEIU’s withdrawal but also provided him with valuable information about the upcoming procedures and applicable timelines. It also provided the complainant with an analysis of his grievances which explained why representation was being withdrawn. Since no internal appeal process was available to the complainant to challenge this decision, the only way that he could challenge it was through a complaint to this Board under section 190 of the Act, which he filed on March 9, 2010.

32 For the complaint against CEIU to be timely I would have to accept that the complainant knew of the events that gave rise to his complaint only on December 9, 2009, but I am simply unable to do so. Even if I was prepared to accept that the complainant received Ms. Meunier-McKay’s letter of November 23, 2009 only on December 9, 2009, as suggested, nothing in that letter could be extend the time limits in a complaint of this type, since its content only repeated, albeit in a much condensed fashion, what Ms. Paul had already communicated to him on October 30, 2009 on behalf of the CEIU National office. I am singularly unconvinced that the complainant needed Ms. Meunier-McKay’s letter of November 23, 2009 to learn of the actions or circumstances that gave rise to his complaint against the CEIU, since he already possessed that knowledge as of October 30, 2009. And since I am of the view that the complainant knew, or at the very least ought to have known, of those actions or circumstances on October 30, 2009, it matters not whether he filed his complaint on February 4, 2010, as he contends, or on March 9, 2010, as evidenced by the Board’s receipt stamp, as the complaint against CEIU would be untimely in either case.

33 I do not accept the complainant’s suggestion that Ms. Paul’s email of October 30, 2009 could not be the triggering event that led to his knowledge of the act or omission that gave rise to his complaint against his component because her analysis was allegedly not attached to the email. Not only is this suggestion improbable in light of the available evidence on the record, including the fact that the analysis was referred to in both the header and contents of the email, but it also fails to recognize that even if this were the case, the complainant never requested a copy of the analysis or indicated in any way prior to the filing of the complaint that he had not received it. His version also requires that I believe that his lawyer provided advice to him based solely on Ms. Paul’s covering letter, also ignoring the fact that an analysis of his case was attached.

34 I find that the complainant received Ms. Paul’s analysis and summary of his grievance. He claims that, although he received the October 30, 2009 email, no attachment was included and that the document in question must have been prepared after the fact and in preparation for this hearing. However, I note that Ms. Paul’s email of October 30, 2009 refers to an attachment entitled, “Ennis Grievances Analysis & Summary.pdf” in the header, that the first paragraph states, “[P]lease see attached my analysis of your grievances,” and that the complainant never asked to be provided with a copy of the attachment, which suggests that he had it. In addition, on November 2, 2009, the complainant forwarded Ms. Paul’s email for advice to a solicitor who practices in a reputable Vancouver private firm, which he received the next day. I doubt that such advice would have been forthcoming without a review of the analysis referred to in both the header and body of the email. The solicitor’s responding email does not state that his advice was provided without the benefit of a review of that analysis. I also note that, after receiving Ms. Paul’s email, the complainant wrote to the respondents on November 12, 2009 and that he did not complain about not being provided with a copy of the attachment. I further note that, after receiving the response dated November 23, 2009, the complainant once again did not see the need to request the analysis. Finally, I note that, in his complaint, the complainant makes no mention of the missing attachment. I conclude that the complainant must have received the analysis on the date on which it clearly appears to have been sent, that is, on October 30, 2009. If he did not receive it at the opportune time, it was solely as a result of his own negligence.

35 Even had the complainant tried to convince me that his letter of November 12, 2009 represented an attempt on his part to get Ms. Meunier-McKay to reverse the decision previously communicated by Ms. Paul, which he did not try to do, such an attempt would still not impact my findings. The Board commented on this issue in Éthier v. Correctional Service of Canada and Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, 2010 PSLRB 7, at para 21, which reads as follows:

[21] … 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.

36 In Lampron v. Professional Institute of the Public Service of Canada, 2011 PSLRB 29, I wrote the following:

…

[46] … even were I to accept that the complainant had discussions with representatives of the Institute to reverse its decision to expel him, as he testified, or that he tried during the meeting on September 5, 2009 to persuade the respondents to revisit its decision, which was not established by the evidence, it would not change the date on which he knew or ought to have known of the circumstances giving rise to his complaint. Despite the complainant’s efforts to resolve the conflict, the PSLRA requires that the complaint be filed within the prescribed time limit (see Boshra, at paragraph 47). Had the September 5, 2009 meeting been successful, the complainant could simply have withdrawn his complaint.

…

37 Therefore, I conclude that the deadline for filing this complaint was not extended by Ms. Meunier-McKay’s letter of November 23, 2009.

38 In this matter, the complainant’s knowledge on October 30, 2009 of the CEIU’s decision to withdraw its representation was the trigger for the violation that he alleged and the start of the 90-day period. Therefore, I am satisfied that he did not file his complaint against the CEIU within the time limit prescribed in subsection 190(2) of the Act, irrespective of whether the complaint was filed on February 4, 2010, as alleged, or on March 9, 2010, as evidenced by the Board’s receipt stamp.

39 For those reasons, I agree with the respondents’ objection that the complaint against the CEIU is inadmissible because it is out of time.

40 I now turn my attention to that portion of the complaint against Ms. Meunier‑McKay. The complainant states that he received her reply to his letter of November 23, 2009 on December 9, 2009. Although I have some reservations about the complainant’s evidence on that issue, I am still not prepared to find that the complaint was timely for that reason alone. The evidence demonstrated that Ms. Meunier-McKay wrote to the complainant in her capacity of National President of CEIU with the sole objective of confirming a decision that had already been taken by the component. Neither her letter nor that of the complainant contained any facts or arguments that differed from those already expressed up to October 30, 2009. The complainant’s letter to Ms. Meunier-McKay was nothing more than an attempt on his part to re-start the applicable deadline. Nothing in the exchange between the complainant and Ms. Meunier-McKay should have the effect of extending the applicable deadline beyond October 30, 2009. For those reasons I agree with the respondents’ objection that the complaint against Ms. Meunier-McKay is also inadmissible because it is out of time.

41 In the event that I am found to have erred in the conclusion that the complaint is untimely, I will address its merits.

B. Merits

42 Even if I had concluded that the complaint was timely, I would nonetheless have dismissed it for the reasons that follow.

43 The Board has often commented on a unionized employees’ right to representation. In Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28, at para 17, it rejected the idea that it was an absolute right, as follows:

[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.

44 The Board’s role is to determine whether the bargaining agent or its representatives acted in bad faith or in a manner that was arbitrary or discriminatory in its decision-making process, rather than to determine whether its decision not to represent the complainant was sound. The Board has consistently recognized that bargaining agents and their representatives have substantial discretion in that decision-making process. However, as broad as that discretion may appear, it is not absolute.

45 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 page 527. In that decision, the SCC describes the principles underlying the duty of fair representation as follows:

…

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.

…

46 The Board also canvassed 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…

…

[23] In International Longshore and Wharehouse 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.”

47 In Mangat v. Public Service Alliance of Canada, 2010 PSLRB 52, the Board commented as follows:

…

[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.):

…

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].

…

48 There is no doubt that bargaining agents and their representatives should be afforded substantial latitude in their representational decisions. As the Board stated in Manella v. Treasury Board of Canada Secretariat and Public Service Alliance of Canada, 2010 PSLRB 128, at para 38, “[t]he bar for establishing arbitrary conduct — or discriminatory or bad faith conduct — is purposely set quite high.”

49 The extent of Ms. Meunier-McKay’s implication in the complainant’s file was that she provided the complainant with a response to his letter of November 12, 2009. In her response, she outlined her understanding of the relevant issues, referred to the analysis provided by Ms. Paul and to some of its key findings, and confirmed her support of the decision communicated to the complainant on October 30, 2009. Nothing she stated in that letter introduced new elements or positions not previously communicated to the complainant. As I can only conclude that nothing that the CEIU representatives did between February 2009 and November 2009 could potentially be labelled as arbitrary, discriminatory or bad faith conduct, so too I conclude that the action of Ms. Meunier-McKay was not contrary to section 187 of the Act.

50 Ms. Paul’s analysis was detailed and complete. It dealt with the relevant facts, it referred to many employment-related concerns raised on several occasions by the employer, it covered the pertinent tests to be met in adjudication, and it raised genuine concerns about the lack of key factual elements and documentary evidence to support the complainant’s grievances and their resulting dismal chances of success.

51 The complainant was required to establish a violation of section 187 of the Act, which in turn required him to present evidence demonstrating that the respondents’ decision to withdraw representation 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 on the part of any of the respondents. Nothing that the complainant presented in the course of the hearing established, on a balance of probabilities, a violation of section 187.

52 In addition, nothing in the evidence led me to conclude that the respondents displayed an uncaring or cavalier attitude toward the complainant’s interests or that they acted fraudulently, with improper motives or out of personal hostility. I have no reason to believe that the respondents acted negligently or that they treated the complainant differently from other employees based on illegal, arbitrary or unreasonable grounds.

53 The evidence demonstrated that the employer raised many concerns about the complainant’s competency and behaviour, that his representatives genuinely attempted to provide assistance and that the complainant responded in a counterproductive fashion by being hostile and disrespectful to those trying to him.

54 I am satisfied that the CEIU attempted to assist the complainant as best it could in the circumstances, that it persevered in trying to gather the necessary information, that it legitimately examined his case, that it considered relevant and genuine factors, and that a reasoned decision was made, in good faith, as to whether to continue to represent him in his two grievances. I am also satisfied that Ms. Meunier‑McKay’s approval of that decision was reasonable in the circumstances.

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

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

V. Order

57 The complaint is dismissed.

March 7, 2012.

Stephan J. Bertrand,
Board Member