FPSLREB Decisions

I. Complaint before the Board

1 On June 8, 2010, Ayesha Mohid (“the complainant”) made a complaint against Raymond Brossard (“the respondent”), a representative of the National Component of her bargaining agent, the Public Service Alliance of Canada (PSAC). The complainant alleged that the respondent breached his duty of fair representation by refusing to provide representation in connection with a dispute involving the interpretation and application of the Relocation Directive (“the Directive”) of the National Joint Council (NJC) by Public Works and Government Services Canada (PWGSC or “the employer”).

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

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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 Act defines an unfair labour practice as anything prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1). The provision of the Act 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.

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.

4 In his written reply to the complaint, and at the hearing, the respondent raised preliminary objections, stating that the complaint was inadmissible and that it should be summarily dismissed because it was not filed within the time limit set out in subsection 190(2) of the Act, which reads as follows:

190. (2) Subject to subsections (3) and (4), 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.

The respondent also objected that the complaint alleged no facts that could arguably be in violation of section 187 of the Act.

5 The parties presented evidence and arguments on both the preliminary objections and on the merits of the complaint.

II. Summary of the evidence

A. For the complainant

6 The complainant was employed at the Canada Border Services Agency in Lacolle, Quebec, and resided in upper New York State. Sometime in fall 2009, the complainant took part in a staffing process with PWGSC and was offered an indeterminate position as a communications officer, a position classified at the IS-03 group and level. The new position was located in Gatineau, Quebec, about 300 kilometers from Lacolle.

7 The letter of offer of employment stated that the complainant’s start date with PWGSC was December 7, 2009 and that any assistance for her relocation would be provided by PWGSC in accordance with the Directive. The complainant admitted that the letter recommended that she contact a PWGSC representative before making any arrangements or incurring any expenses for her relocation, as she could be held personally responsible for such expenses if she failed to. However, she did not. The complainant indicated that she read the Directive and that she thought that all relocation expenses, including those associated with the sale of her home, would be covered.

8 The complainant was able to secure temporary accommodation in Gatineau and reported to work on December 7, 2009, as agreed. Upon reporting for work, she was immediately informed by her supervisor that any expenses associated with the sale of her residential property in upstate New York would likely not be covered by the Directive because the property was located in the United States, and such properties are specifically excluded from the Directive.

9 The complainant felt aggrieved and wrote to the PWGSC’s finance department for clarification. On January 8, 2010, PWGSC confirmed that, although she was covered by the Directive in some ways, expenses associated with the sale of her home in New York State were not covered. All other expenses of her relocation covered by the Directive were approved.

10 According to the complainant, PWGSC was aware of the fact that her home was located in the United States before it made its employment offer and that it never told her that the expenses associated with the sale of her home would not be covered by the Directive. She felt that she had been treated inequitably and that the spirit of the Directive was not applied in her case. Shortly after being informed that the expenses associated with the sale of her home would not be covered, the complainant contacted the local representative of the PSAC, Pierre Perron-Desormeaux, to seek his assistance and guidance in grieving the employer’s decision not to cover the expenses associated with the sale of her home for relocation purposes. Mr. Perron‑Desormeaux in turn contacted the respondent, a labour relations officer with the PSAC’s National Component.

11 On February 4 and 11, 2010, the respondent emailed Mr. Perron-Desormeaux, who in turn forwarded the emails to the complainant. In his emails, the respondent conveyed his position that, based on his review of the available information and documentation, there were no grounds to grieve the employer’s decision to not cover expenses associated with the sale of the complainant’s home, as he saw no violation or misinterpretation of section 1.4.5 of the Directive. In cross-examination, the complainant indicated that the information and documentation that was provided to the respondent in January and February 2010 were complete and detailed, including the fact that she wanted the respondent to consider the Directive’s intent and its discriminatory effect on her.

12 On May 25, 2010, a colleague informed the respondent that, in a telephone conversation that same day, the complainant had expressed her dissatisfaction with the services that he had provided her for the relocation matter. He emailed the complainant to clear the air and to reiterate his previous position. According to the complainant, that is when she became aware that the respondent was unwilling to provide representation in connection with the relocation. A week later, the complainant filed her complaint. In cross‑examination, she admitted that, at that time, she hoped that the respondent would change his mind and eventually provide representation.

13 To this day, the complainant has not sold her home. She continues to rent a room in Gatineau and to travel back to her home in New York State on weekends. She stated that her ultimate goal is to keep her American residence, to receive the equivalent of the 6% realty fee that she would have incurred had she sold her home and to apply that reimbursement toward the purchase of a condominium in Gatineau.

14 The complainant indicated that she felt that she could not grieve the employer’s relocation decision until she received its final response. According to her, she did not receive it until shortly before a meeting with the employer on June 7, 2010. I note that the employer’s response, which the complainant filed in support of her statement, is dated April 16, 2010. After the meeting, she filed a grievance, with the support of Mr. Perron-Desormeaux. Her grievance was denied at the first and second levels of the grievance process and was not referred to the third level because the PSAC’s National Component would not support it. The complainant could not recall if she raised the Directive’s intent and its discriminatory effect at the first and second levels of the grievance process. The complainant confirmed in cross-examination that no separate complaint was filed in connection with the refusal of the PSAC’s National Component to represent her at the third level of the grievance process with respect to the grievance dated June 7, 2010.

B. For the respondent

15 Two witnesses testified on behalf of the respondent, Mr. Perron‑Desormeaux and the respondent himself.

16 Mr. Perron-Desormeaux is Vice-President of Local 71200 of the PSAC. In January, 2010, the complainant consulted about the relocation issue, specifically the employer’s decision not to cover the costs associated with the sale of her residence in New York State.

17 Since he was not familiar with the Directive, Mr. Perron-Desormeaux contacted the respondent on January 28, 2010 for advice. He received the respondent’s reply on February 4, 2010, which he forwarded to the complainant. That prompted an inquiry from the complainant as to whether she had legitimate grounds to support a grievance, keeping in mind the Directive’s intent and its discriminatory impact, which Mr. Perron‑Desormeaux forwarded to the respondent.

18 On February 11, 2010, the respondent replied that, based on the information he had reviewed, unfortunately, no grounds existed to support a grievance. Mr. Perron‑Desormeaux forwarded the response to the complainant that same day.

19 Mr. Perron-Desormeaux indicated that he also had discussions with the respondent during the email exchange and that the respondent made it clear that the PSAC’s National Component would not support the complainant’s grievance because no violation of the Directive had occurred. Mr. Perron-Desormeaux in turn communicated that information to the complainant at that time, on or around February 11, 2010.

20 Mr. Perron-Desormeaux was not involved in the email exchange between the complainant and the respondent in May 2010. However, in June 2010, he agreed to assist the complainant with filing a grievance against the PWGSC’s interpretation and application of the Directive. However, he stated that he made it clear to the complainant that, without the support of the National Component of the PSAC, the grievance would likely not go anywhere. When asked why he supported the complainant’s grievance, he indicated that he had hoped that the employer might be willing to do something for the complainant at the first level of the grievance process, out of compassion. Mr. Perron-Desormeaux added that he was not aware that the complainant had also filed a complaint against the respondent when he agreed to assist her with her grievance. According to him, the respondent did not act arbitrarily when he handled the complainant’s relocation issue in the past.

21 The complainant did not cross-examine Mr. Perron-Desormeaux.

22 The respondent has been a labour relations officer with the PSAC’s National Component for six years. One of his responsibilities is to provide local representatives, such as Mr. Perron-Desormeaux, with guidance and advice. According to him, as soon as he was consulted by Mr. Perron-Desormeaux, he reviewed the relevant information and documentation, considered the complainant’s comments, including her reference to the intent and discriminatory effect of the Directive, and provided the response that he felt was appropriate in the circumstances. He added that, although he was aware of and had considered the potential financial consequences of the employer’s decision, there were simply no legitimate grounds to grieve that decision.

23 The respondent clarified that the reference to a recent relocation of the complainant’s spouse in his email of February 4, 2010 was a guess, which is why he inserted a question mark in brackets. He added that that information, whether correct or not, had no impact on his assessment of the merits of a potential grievance by the complainant or on his interpretation of the Directive.

24 Until May 2010, all the respondent’s communications with the complainant were through Mr. Perron-Desormeaux. However, on May 25, 2010, he initiated a direct communication with her. He indicated that he did so after being told by a colleague that the complainant had expressed her dissatisfaction with the services he provided the previous February. His objective was to reach out to the complainant and to reassure her that nothing else could have been done, given the circumstances. He indicated to her that it would be unethical for him to guide her in a direction that would contradict the terms of the Directive and apologized if she found his opinion upsetting.

25 Although the complainant responded that same day, the respondent indicated that he did not reply to her email since it was reiterating the same arguments that had been raised in February, i.e., the Directive’s intent and its discriminatory effect on her, which he had already considered months before.

III. Summary of the arguments

A. For the complainant

26 The complainant submitted that she became aware of the respondent’s refusal to represent her only as a result of the May 25, 2010 email exchange, which means that her complaint, filed a week later, is timely. However, most of her arguments dealt with the events that took place in February 2010, and with the respondent’s refusal to represent her at that time. According to the complainant, the respondent failed to meet his duty of fair representation.

27 The complainant did not deny that the Directive excludes the sale or acquisition of property outside Canada but believes that the Directive is discriminatory, as it prohibits government employees who own such properties from being reimbursed the costs associated with selling them. She further added that the PWGSC’s application of the Directive ran contrary to the Directive’s intent.

28 According to the complainant, she should not have had the onus of determining what the Directive covered before accepting the PWGSC’s offer of employment. She does not dispute that the Directive excludes properties outside Canada. However, she is of the view that the employer should have disclosed that fact to her and that the respondent should represent her in her challenge to the Directive’s discriminatory effect on her and on other public servants who reside in the United States and that he should pursue the Directive’s true intent.

29 In support of her arguments, the complainant referred me to Webb v. Treasury Board (Foreign Affairs and International Trade), PSSRB File No. 166-02-28379 (19981221).

B. For the respondent

30 The respondent argued that, although PWGSC agreed to provide the complainant with assistance for her relocation, it specifically stated that it was doing so in accordance with the Directive. According to the respondent, the Directive is the sole relocation authority for all public service employees, and it was established by representatives from the federal public service bargaining agents and employers. According to the respondent, the Directive is deemed part of the collective agreements between the parties represented on the NJC and, as such, must be followed by all departments. Since the Directive does not cover sales or acquisitions outside Canada, the complainant’s property in New York State could not be processed under it.

31 In the email exchange of February 2010, the complainant made it clear that she wanted the respondent to consider the Directive’s intent and its discriminatory effect on her. The respondent considered it before he confirmed his position on February 11, 2010. The complainant advanced nothing new in May 2010. The respondent simply reiterated his original position after he was told that the complainant had expressed her dissatisfaction to a colleague.

32 The respondent’s decision to not represent the complainant was clearly communicated on February 11, 2010, at the latest. A complaint against that decision had to be filed within 90 days of that date. Therefore, the complaint, which was signed on June 2, 2010, well over the expiry of that time limit, is untimely.

33 In addition, even if the complaint were found timely, the respondent contented that the complainant failed to establish conduct that could be labeled arbitrary or in bad faith. According to the respondent, the evidence clearly shows that he assessed the information and documentation that he was provided with, that he considered the complainant’s comments and concerns and that he reached a conclusion that was appropriate in the applicable circumstances.

IV. Reasons

A. Timeliness

34 The respondent raised a preliminary 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.

35 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 stated at paragraph 55 of Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78, as follows:

[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.

36 The extent of my jurisdiction is to determine, based on the evidence before me, 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 giving rise to her complaint, which is purely a question of fact.

37 The complainant filed her complaint on June 8, 2010, which means that it must have been based on actions or circumstances that she knew of, or ought to have known of, by March 9, 2010, at the earliest. 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 giving rise to her complaint on February 11, 2010, when she received the respondent’s email of that date, which was to be read in conjunction with his earlier email of February 4, 2010. Therefore, the complaint was filed outside the 90-day period.

38 I cannot accept the complainant’s argument that the email exchange of May 25, 2010, which she did not initiate, was the trigger for her complaint. In fact, the complaint itself, at Box 8, refers to the purpose of the May 25, 2010 email as “providing PSAC with a second chance to represent …” her. That clearly suggests that she was already aware of the respondent’s refusal to represent her and that she was hoping to change his earlier decision. The complainant did not learn anything new from the respondent’s email of May 25, 2010, as she had already known the relevant facts since February 11, 2010.

39 The Board commented on that particular issue in Éthier v. Correctional Service of Canada and Union of Correctional Officers – Syndicat des agents correctionnels du Canada – CSN, 2010 PLSRB 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.

40 Nothing in the respondent’s email of May 25, 2010 could be considered a trigger that gave rise to this complaint. And no one could misconstrue the context under which the email in question was sent. It was initiated by the respondent for the purpose of reaching out to the complainant and of apologizing for the potentially upsetting nature of his February decision.

41 Therefore, I conclude that the circumstances in this matter were not extended by the complainant’s apparent willingness to provide the respondent with a second chance to represent her. Further, any alleged failure to respond to this email could not extend the applicable deadline or amount to a violation of the duty of fair representation.

42 In this matter, the complainant’s knowledge on February 11, 2010 of the respondent’s decision to not provide representation was the trigger for the violation that she alleged and the start of the 90-day period. Therefore, I am satisfied that she did not file her complaint within the time limit prescribed in subsection 190(2) of the Act.

43 For those reasons, I agree with the respondent’s objection that the complaint is inadmissible because it is out of time.

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

B. Merits of the complaint

45 For the reasons that follow, I do not share the complainant’s view that the respondent failed to meet his duty of fair representation when he refused to represent her in February 2010 and when he subsequently did not respond to her email of May 2010.

46 As the Board stated in Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107, the burden of proof in a complaint under section 187 of the Act rests with the complainant. That burden requires the complainant to present evidence establishing, on a balance of probabilities, that the respondent failed to meet his duty of fair representation.

47 The Board has often commented on 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…

48 The Board’s role is not to determine whether the respondent’s decision not to represent the complainant was correct; instead, it is to determine whether the respondent acted in bad faith or in a manner that was arbitrary or discriminatory in his decision-making process. However, as broad as that discretion may appear, it is not absolute.

49 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:

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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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50 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…

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[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.”

51 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].

…

52 Undoubtedly, bargaining agents and their representatives should be afforded substantial latitude in their representation decisions. As the Board stated recently 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… .”

53 The letter of offer of employment stated the following:

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Public Works and Government Services Canada agrees to provide you with assistance for your relocation, in accordance with the National Joint Council (NJC) Relocation Directive, which you can find at the following address: http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=14662. Before making arrangements or incurring any expenses in relation to your relocation, please contact Michel Matte at (819) 953‑3790 or by e-mail at michel.t.matte@tpsgc-pwgsc.gc.ca.

Employees who conclude relocation related transactions prior to authorization or who incur expenses beyond those allowable or beyond the time limit under the NJC Relocation Directive will be personally financially responsible for such expenses and could be disqualified from participating in the NJC Relocation Directive.

…

54 Section 1.4.5 of the Directive states that an eligible relocation means a relocation of a taxpayer, in which:

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2. both the residence at which the taxpayer ordinarily resided before the relocation (in section 62 and this subsection referred to as “the old residence”) and the residence at which the taxpayer ordinarily resided after the relocation (in section 62 and this subsection referred to as “the new work location”) are in Canada … .

…

55 The complainant was required to establish a violation of section 187 of the Act, which in turn required her to present evidence demonstrating, on a balance of probabilities, that the respondent’s refusal to represent her in connection with her dispute with PWGSC over the interpretation and application of section 1.4.5 of the Directive was either 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 the respondent. Nothing that the complainant presented in the course of the hearing established, on a balance of probabilities, a violation of section 187.

56 For example, nothing in the evidence led me to conclude that the respondent displayed an uncaring or cavalier attitude toward the complainant’s interests or that he acted fraudulently, with improper motives or out of personal hostility. I have no reason to believe that the respondent acted negligently or that he treated the complainant differently than other employees and that such distinction was based on illegal, arbitrary or unreasonable grounds. While I am not suggesting that such conduct would necessarily establish a failure to meet the duty of fair representation, it certainly would be considered when making this determination.

57 On the other hand, I am satisfied that the respondent legitimately examined the complainant’s case, that he considered relevant and genuine factors and that a reasoned decision was made as to whether to provide her with representation. I am also satisfied that he was not required to respond to the complainant’s email of May 25, 2010, which was clearly aimed at giving him a second chance to reconsider his previous decision.

58 In addition, the evidence shows that the complainant benefited from the support and representation of her bargaining agent after the alleged violation, namely, during the filing of her grievance against the employer on June 7, 2010, and at the first two levels of the grievance process. Although the respondent again refused representation after the second level of the grievance process, no complaint was filed in connection with that refusal. Therefore, I am not seized of such a complaint.

59 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.

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

V. Order

61 The respondent’s timeliness objection is allowed.

62 The complaint is dismissed.

March 23, 2012.

Stephan J. Bertrand,
Board Member