FPSLREB Decisions

Complaint before the Board

1 On March 21, 2012, Carla Callegaro (“the complainant”) filed a complaint against her bargaining agent, the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada – CSN (“the respondent” or UCCO-SACC-CSN). She alleged that the respondent committed an unfair labour practice by being negligent in its late transmission of her two grievances to the final level of the grievance procedure and to adjudication.

2 The complainant filed two grievances in 2010. On March 28, she filed her first grievance, against a one-day suspension imposed on her by the Correctional Service of Canada (“the employer”). The respondent agreed to represent her. The employer rejected the grievance at the final level of the grievance procedure on the basis that the complainant was late in transmitting the grievance to that level. Furthermore, the employer objected to the grievance being heard at adjudication since it was referred to adjudication 14 months after the normal deadline. On April 22, the complainant filed another grievance against a 10-day suspension imposed on her. The employer also rejected that grievance on the basis of timeliness and raised a timeliness objection after the grievance had been referred to adjudication.

3 In its submissions, the respondent stated that it reviewed the complaint and that it agreed with the facts expressed by the complainant. It recognized that an error was made in not transmitting her grievances to the final level of the grievance procedure within the time limits set in the relevant collective agreement. The error was due to issues arising from the recall of the elected local union executive by the local union members. The respondent wrote: “… the grievance fell into a crack by this whole turmoil. This period was emotionally very difficult and upsetting for the local president at the time.” Later on, the newly elected grievance coordinator did not provide the respondent’s regional office with a copy of the form filed and signed to refer the grievances to adjudication within the required deadline. The respondent stated that those omissions were very unfortunate, and not based on “bad faith or any discrimination reason.”

4 In January 2012, the respondent contacted a labour relations officer of the employer, explained the situation and requested an extension of time. The employer refused to grant the extension of time and maintained its position. In February 2012, the respondent applied to the Chairperson of the Public Service Labour Relations Board (“the Board”) for extensions of time for both grievances. In support to those applications, the respondent provided the same facts to explain the timeliness issues.

5 For corrective action, the complainant asked that the respondent be ordered to proceed with her two grievances and that it represent her at adjudication. She also asked for “… an order dispensing or extending any time requirements that would preclude UCCO-SACC-CSN from proceeding with my grievances to adjudication.” I read in that request that the complainant is seeking an order extending the time requirements to refer her grievances to adjudication.

6 The respondent stated that it agreed with the complainant’s suggested corrective actions and that it would be happy to represent her if the Board were to grant an order extending any time limits that would preclude allowing the grievances to proceed to adjudication.

7 The Board asked the complainant to submit her rebuttal to the respondent’s submissions. She wrote the following: “… I agree with the submissions submitted by CSN author Ms. Corinne Blanchette. I have no rebuttal towards the respondent’s reply dated April 27, 2012.” On July 10, 2012, the Board advised the parties that the complaint would be decided on the basis of the submissions already on file. It asked the parties to provide any final submissions by July 17, 2012. The parties did not make any new submissions in reply to the Board’s July 10, 2012 request.

Reasons

8 The facts of this case are not contested. Furthermore, the respondent agreed with the complaint, with the exception that it did not admit that it violated the Public Service Labour Relations Act (“the Act”). The complainant agreed with the respondent’s submissions. She filed two grievances contesting two suspensions imposed on her by the employer. She blamed the respondent for being late to refer those two grievances to the final level of the grievance procedure and for being late to refer them to adjudication. The respondent admitted that it was late referring the grievances to the final level and to adjudication, and it provided some explanations as to why it was late.

9 The question in front of me is to determine if those omissions by the respondent constituted an unfair labour practice. The following provisions of the Act should be examined to decide that question:

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

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(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

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185. In this Division, “unfair labour practice” means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

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187. No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

10 The complainant made no allegation that the respondent acted in bad faith or in a discriminatory manner towards her. In fact, the respondent argued in its submissions that it did not act in such a manner, and the complainant stated that she agreed with the respondent’s submissions. Based on that, I conclude that the respondent did not act in a manner that was discriminatory or in bad faith in representing the complainant. The remaining question is to determine if it acted arbitrarily.

11 The Concise Oxford Dictionary defines “arbitrary” as follows: “based on random choice or personal whim; (of power or ruling body) autocratic.” Black’s Law Dictionary defines “arbitrary” as follows: “… depending on individual discretion; specif., determined by a judge rather than fixed rules, procedures or law… founded on prejudice rather than on reason or fact.” 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:

50 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…

12 In International Longshore and Warehouse Union, Ship and Dock Foremen, Local 514 v. Empire International Stevedores Ltd. et al., [2000] F.C.J. No. 1929 (F.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.”

13 In Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509, the Supreme Court of Canadaestablished that a bargaining agent should examine the circumstances of a grievance, consider its merits and make a reasoned decision as to whether to pursue the case. In Gagnon et al., the Court wrote the following:

The following principles, concerning a union’s duty of representation in respect of a grievance, emerge from the case law and academic opinion consulted.

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

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.

14 As I wrote earlier, there is no allegation that the respondent acted in bad faith or in a discriminatory manner or that it did not take into account the significance of the grievance and its significance for the complainant. The facts and the content of the submission before me show that the lateness in referring the grievances to higher levels was the result of omissions or errors made by the respondent’s representatives and was not the result of random choices or of the personal whims of those representatives. However, can those omissions or errors be considered as major or serious negligence, as intended by the Supreme Court in Gagnon et al. and in Centre Hospitalier Régina Ltée v. Labour Court, [1990] 1 S.C.R. 1330?

15 In Wionzek v. International Brotherhood of Electrical Workers, Local 2067, [2011] S.L.R.B.D. No. 18, the Saskatchewan Labour Relations Board wrote that mistakes, errors in judgment and mere negligence are not sufficient to constitute arbitrariness and that “gross negligence is the benchmark” for such complaints. In Rousseau v. International Brotherhood of Locomotive Engineers(1995), 98 di 80 (C.L.R.B.), a distinction is also made between negligence and gross negligence, the latter being considered a violation to the duty of fair representation. The following abstract of Rousseau is of particular interest:

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Negligence is distinguishable from arbitrary, discriminatory or bad faith behaviour. The concept of negligence can range from simple negligence to gross negligence. The damage to the complainant in itself is not the test. Simple negligence may result in serious damage. Negligence in any of its variations is characterized by conduct or inaction due to inadvertence, thoughtlessness or inattention. Motivation is not a characteristic of negligence. Negligence does not require a particular subjective state of mind as does a finding of bad faith. There comes a point, however, when mere/simple negligence becomes gross/serious negligence, and we must assess when this point, in all circumstances, is reached.

When does negligence become "serious" or "gross"? Gross negligence may be viewed as so arbitrary that it reflects a complete disregard for the consequences. Although negligence is not explicitly defined in section 37 of the Code, this Board has commented on the concept of negligence in its various decisions. Whereas simple/mere negligence is not a violation of the Code, the duty of fair representation under section 37 has been expanded to include grossly/serious negligence …

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16 In reference to the concept of negligence, the Black’s Law Dictionary, Seventh Edition, contain the following:

negligence, n. 1. The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.

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gross negligence. 1. A lack of slight diligence or care. 2. A conscious, voluntary act or omissions in reckless disregard of a legal duty and of the consequences to another party, who may typically recover exemplary damages.

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ordinary negligence. Lack of ordinary diligence; the failure to use ordinary care. The term is commonly used to differentiate between negligence and gross negligence.

17 This case is about omissions or errors made by local union officers in doing what needed to be done to refer two grievances to the final level of the grievance procedure and to adjudication. The parties agreed that the omissions or errors were caused by the recall of the elected local union executive and by the newly elected grievance coordinator who did not provide the respondent with the required paper work. While this factual background does not totally excuse the respondent who, in my opinion, failed to exercise the standard of care that it should have in making sure that deadlines of the grievance procedure were respected. However, those failures do not constitute gross negligence. There was no conscious, voluntary or reckless disregard for the legal duty or for the consequences to the complainant. The respondent did not knowingly miss the deadlines and, when it realized it, tried to fix the situation in asking for an extension of time from the employer and in applying for an extension of time to refer the grievances to adjudication.

18 Considering that there was no gross negligence in this case, I conclude the respondent did not act in an arbitrary manner with the complainant and that it did not therefore commit an unfair labour practice.

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

20 The complaint is dismissed.

August 13, 2012.

Renaud Paquet,
a panel of the Public Service
Labour Relations Board