FPSLREB Decisions

I. Complaint before the Board

1  On July 13, 2012, Nichelle Jackson (“the complainant”) filed a complaint against the Customs and Immigration Union (CIU) and the Public Service Alliance of Canada (PSAC; collectively, “the respondents”) under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”). The details of her complaint are as follows:

Failure to action representation for Grievance No G11-3971-106461 beyond the 3^rd level as at January 24, 2012, subsequent to timely 4^th- level submission to the employer confirmed as received on December 19, 2011, or, to confirm any action taken (i.e. review and subsequent support nor removal of support) after this and up to the current date despite repeated status-update requests made by the complainant in writing to both PSAC and CIU.

2 The complainant sought as corrective action an order of the Public Service Labour Relations Board (“the Board”) requiring the respondents to take all action and proceedings resulting from a grievance that she filed that the Board considers that they ought to have taken and carried out on her behalf or ought to have assisted her with. She also requested that she be made whole and that she receive any other measures the Board deems appropriate and within its authority.

3 The respondents filed a response to the complaint on August 17, 2012, stating that, at all times, they have represented the complainant with respect to her grievance and that they would continue to.

4 The complainant submitted a response to the respondents’ submissions on September 20, 2012, acknowledging that while the “grievance action is still in progress”, the “impact of the bargaining agent’s action and / or inactions” had yet to be determined.

5 The respondents replied on October 16, 2012, giving details of their communications with the respondent that indicated to her that the respondent was in fact continuing to represent her.

6 On November 22, 2012, the Board’s registry wrote to the parties, advising them that the Board member had decided to proceed by way of written submissions and specifically advised them as follows: “In corresponding with the Board, the parties have referred to other documents in support of their respective positions. These documents should be produced as part of the written submissions process.”

II. Summary of the evidence

7 In November 2011, the complainant filed her grievance with her employer, the Canada Border Services Agency (“the employer”), with respect to her job description.

8 A first-level grievance response was provided on November 25, 2011. The complainant waived the second level-hearing. On or about November 28, 2011, the grievance was transmitted to the third level. No third-level response was received in the prescribed time. On December 19, 2011, the complainant transmitted the grievance to the fourth level. Via email, the employer representative acknowledged the complainant’s email, attaching the grievance transmittal documents. On January 3, 2012, the employer representative emailed both the complainant and the CIU’s local representative, Cathy Poulis, and confirmed that it had acknowledged receipt of the fourth-level transmittal in the December 19, 2011 email and that a signed copy of the transmittal form was being sent to the complainant via inter‑office mail.

9 On January 4, 2012, the complainant emailed the employer representative, advising that she had not received (nor had her bargaining agent representative) any documentation about the fourth-level transmittal despite the January 3, 2012 email.

10 On January 17, 2012, the complainant and Ms. Poulis exchanged a series of emails over a short period of time with respect to the status of her grievance. At 08:25, the complainant enquired of Ms. Poulis:

I still haven’t received a dated reply from the 3^rd level re; this outstanding grievance. Please advise if LR has forwarded a date-signed copy to your attention, and if yes- what the date of the RDG’s reply is.

At 08:31, Ms. Poulis replied:

I have received nothing.

At 08:36, the complainant replied back to Ms. Poulis, stating:

O.k., please advise if CIU is assisting or representing the grievor for this grievance.

At 08:57, Ms. Poulis replied back to the complainant, stating:

Once I have all the documentation I will refer all of it to CIU in Ottawa. That office handles all grievances at the 4^th level.

At 09:05, the complainant replied to Ms. Poulis, stating:

That’s not exactly what I was asking; but I’m assuming by your answer that it’s ‘assisting’, so no 3^rd-level copy would have been required to have been provided to you directly by the employer.

I’m not going to bother including the undated 3^rd-level undated reply in my documentation then, since I firmly opposed to doing any follow-up work that should be completed by CIU and/or the Employer’s representatives.

Also, please advise as to exactly where my documentation is going when you say “Ottawa” (i.e. contact, address and phone number). If National CIU and not Regional is actioning this issue, I expect to know who and where that is so I can follow up with them.

[Sic throughout]

11 Ms. Poulis replied, on January 24, 2012, stating the following:

Once a grievance is submitted to the 4^th level the union steward sends all material up to the Customs & Immigration Union in Ottawa at the following address:

1741 Woodward Drive,
Ottawa Ontario,
K2C 0P9

Tel: 613-723-8008
Fax: 613-723-7895

The Unions Labour Relations Officers represent grievers at the 4^th level. Please be advised, however, that it is my understanding there are hundreds of outstanding grievances to be heard at the 4^th level so I cannot give you any kind of time line when yours will be heard.

If you have no other material to provide to me then I will send whatever I have to our union office in Ottawa.

[Sic throughout]

12 The complainant did not reply.

13 On Friday, March 30, 2012, more than two months after that last exchange, the complainant emailed a general mailbox for the CIU, “grievance@ciu-sdi.ca,” stating as follows:

To whom it may concern,

Please advise if a 2^nd job description grievance could be accepted by CIU regarding the same issue, but for a different job description- as Grievance G11-3971-106461 is already pending at the final level regarding my previous job description, however I am at issue with the new one and would like it to also be grieved at the final level.

14 Attached to the March 30, 2012 email was an email chain including emails sent between the employer representative, the complainant and Ms. Poulis. It starts on November 25, 2011 with an email from the employer to the complainant attaching to it the employer’s first level response to her grievance of November 2011, and is about the progress of the grievance through the grievance process. It includes the emails exchanged between the complainant and Ms. Poulis up to and including January 24, 2012 and outlined above in paras 9-13.

15 There is no evidence that the respondents replied to the complainant’s March 30, 2012 email. On April 30, 2012, she resent it with the following comment: “As no response has been received to my repeated inquiries, despite their time-sensitivity: attached is submission of a grievance to CIU regarding this issue.”

16 On May 1, 2012, a CIU representative forwarded the complainant’s March 30, 2012 and April 30, 2012 emails to another CIU representative, Diane Meagher. She replied to the complainant, via email, sometime between the afternoon of May 1, 2012 and the morning of May 3, 2012.

17 Ms. Meagher’s response confirmed receipt of the complainant’s emails and the form for her new grievance and advised her that, since her new grievance form was not signed by either a CIU representative in Toronto or an employer representative, it had to be executed by the local CIU representative and then submitted to the complainant’s supervisor. Via email on May 3, 2012, the complainant responded and copied Mark Weber (of the CIU), indicating that she had not sent the grievance to the CIU to forward it to the employer but to forward it to the appropriate local (Toronto) representative for signoff.

18 The complainant’s email of May 3, 2012 did not make any inquiries about her original grievance.

19 On May 30, 2012, the complainant wrote a letter to Sharon DeSousa, PSAC Ontario Regional Executive Vice President. It appears that the parties did not communicate between the complainant’s May 3, 2012 email and her letter.

20  In her letter, the complainant raises concerns about the lack of action on communications she had sent to the respondents. In the second and third paragraphs of the letter, the complainant sets out the steps taken with respect to her original grievance, up to and including its transmittal to the fourth-level and the communications she had with Ms. Poulis up to and including the email she received on January 24, 2012. In the fourth paragraph, she notes that she made enquiries about the status of her original grievance, stating that she emailed the CIU’s general email account as well as the Toronto Branch President, Mr. Weber. She states that all those emails went unanswered.

21 There was no response to the letter.

22 No email enquiries about the status of the original grievance were sent either to the CIU’s general email account or to Mr. Weber

23 The complainant provided an email exchange from August 2012. The initial email in it is from a CIU labour relations officer in Ottawa, Laurel Randle, to Ms. Poulis, dated August 2, 2012, and was about the complainant’s request to file a new grievance. Ms. Randle asks Ms. Poulis to assist the complainant with respect to the new grievance by having the complainant sign it and submit it to her employer. Ms. Randle attached to the email a CIU form used to assist its members in providing input to statement‑of‑duties grievances. The email was copied to Mr. Weber.

24 The second email in the August 2012 exchange is dated August 20, 2012 and is a response from Ms. Poulis to Ms. Randle. It was copied to both Mr. Weber and the complainant. As it is part of a chain, Ms. Randle’s email of August 2, 2012 was attached. Ms. Poulis states that she copied the complainant so that she would be able to complete the statement-of-duties form. She also references the original grievance and states that she had sent a bundle of documents to the CIU’s Ottawa office in February 2012, which included a grievance presentation form and advised that, if the Ottawa office did not have it, she would resend it.

25 The respondents state that the CIU National Office received the original grievance, that it continues to be in process, that it has not been withdrawn and that the complainant is represented by the CIU.

III. Summary of the arguments

A. For the complainant

26 The complainant submits that the continuing absence of details of her representation by the CIU, and therefore by the PSAC, was done arbitrarily and that it demonstrates bad faith with respect to their duty of fair representation.

27 In support of her argument, the complainant sets out a summary of the facts relating to the filing and processing of her grievance. She states that she is unable to satisfactorily resolve actions by the employer believed to be “aggrievances [sic]” against her as a direct result of the inaction of the CIU and the PSAC up to and beyond the date of the complaint.

28  The complainant submits that the duty of fair representation demands that a grievor be kept aware of his or her bargaining agent’s actions. She also submits that the respondents should not “flount [sic] their responsibilities.” If they do, it amounts to discrimination against both individual employees and groups of employees.

29 The complainant’s position is that, once she transmits a grievance, the bargaining agent, if it does not respond, is guilty of arbitrariness and bad faith by virtue of the delay in responding, regardless of the reason.

30 The complainant relies on the Board’s decision in Russell v. Canada Employment and Immigration Union, 2011 PSLRB 7, in support of her argument with respect to a member’s inability to obtain timely information from a bargaining agent.

31 The complainant states that:

Given the CIU’s direction in its email of March 30, 2012 (refer to Appendix A) makes specific reference to the submission of grievance documents to be made to steward representatives in order to action, and that email contacts and not mailing address contact information is provided for said stewards on the both the website and contact lists provided by CIU/PSAC at the employer’s offices, the complainant submits that the bargaining agent has committed arbitrary action(s) that are tantamount to a failure to provide fair representation in that said direction(s) and action(s) limit an employee from confirming even the receipt of grievances and related documentation for review, let alone action(s) taken as a result of, as email communications are not secure and are not subject to independent confirmation of receipt absent reply from the recipient (e.g. by registered mail).

B. For the respondents

32 The respondents submit that the complainant acknowledges that she was informed by Ms. Poulis that hundreds of grievances were outstanding at the fourth level and that she could not provide any time line for when the complainant’s grievance would be heard, given the backlog. The response to the complainant was not a question of whether her grievance would be heard but of when it would be heard. The respondents submit that the complainant acknowledges as much in her March 30, 2012 email, which is part of her submissions. She states the following in that email:

…

Please advise if a 2^nd job description grievance could be accepted by CIU regarding the same issue, but for a different job description – as Grievance G11-3971-106461 is already pending at the final level regarding my previous job description, however I am at issue with the new one and would like it to also be grieved at the final level [emphasis added].

33 The respondents state that the complainant acknowledges that her grievance is at the final level and waiting to be heard, despite stating in this complaint that she is unaware of the status of her grievance after the third level.

34 The respondents argue that, in her March 30, 2012 email, the complainant is referring to a different grievance, which is not part of this complaint. The respondents submit that the emails of March 30, 2012 and April 30, 2012 relate to the new grievance.

35 The respondents submit that while the complainant alleges that she was discriminated against and that she was under-represented, she failed to provide any evidence of such action. It also claimed that it was not in a position to respond to such allegations without further details from the complainant.

36 With respect to Russell, the respondents submit that it is distinguishable on its facts. The complainant in Russell alleged that her bargaining agent told her that it could do nothing for her and that her grievance would be dismissed. In this case, the respondents have always maintained that they are representing her and have never told her that she would not be represented or that her grievance has been withdrawn. The complainant has a live grievance and is being represented at the fourth level of the grievance process.

37 The respondents submit that, even if the complainant was unaware that her grievance had been transmitted to the final level of the grievance process, in itself it would not be a violation of the duty of fair representation. The respondents rely on Elizabeth Buchanan, [2006] CIRB no. 348, which states that a failure of communication does not in itself constitute an unfair labour practice.

38 The respondents argue that the corrective action requested by the complainant is in fact the status quo. The relief she requests is that the Board order the respondents to carry out any actions related to her original grievance. The respondents state that it is already doing what the complainant is asking the Board to order.

39 The respondent relies on D’Alessandro v. Ricard et al., 2006 PSLRB 54, and Halfacree v. Public Service Alliance of Canada, 2010 PSLRB 64.

C. Complainant’s reply

40  The complainant submits that the respondents have not adduced any documentary evidence in response to the proceedings to date. She states that:

…

… at issue is not whether a failure to communicate is “in and of itself” a violation of section 37 of the Code, but:

• if said failure to communicate in response to a so-called “backlog of grievances” is an action of arbitrariness and/or bad faith on behalf of the bargaining agent when undesirable consequences potentially befall upon a grievor as a result that would not otherwise be the case;
• if said consequences have or are to have occurred in this case;
• if said consequences would have occurred (as in Russell v. Canada Employment and Immigration Union 2001 PSLRB 7) save for the grievor’s own action(s) in this case;
• and does this effect [sic] a lack of representation and/or discriminatory result for the complainant and similarly positioned members by the respondent as their bargaining agent.

…

41 The complainant submits that, despite the respondents’ arguments, her actions have facilitated the corrective action with respect to the grievance, not the respondents’ actions.

42 The complainant states that the email exchange of August 2012 clearly indicates that the respondents’ representatives were unclear about the state of her grievance.

IV. Reasons

43 A complaint filed under paragraph 190(1)(g) of the Act alleges an unfair labour practice within the meaning of section 185, which states as follows:

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

44 The portion of section 185 of the Act to which the complaint relates is section 187, which holds an employee organization to a duty of fair representation and states 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.

45 For the complaint to be successful, the complainant had to establish that the respondents or their officers or representatives acted, in the course of their representation of her, in a manner that was arbitrary, discriminatory or in bad faith.

46 As set out in Halfacree, the complainant has the burden of establishing a prima facie case that an unfair labour practice occurred. The documents and facts that she submitted do not establish a prima facie violation of section 187 of the Act.

47 In November 2011, the complainant filed her job description grievance. It was processed through the levels of the grievance process and was transmitted to the fourth level on or about December 19, 2011. Shortly after that, the complainant and the CIU’s local representative exchanged emails about the status of her grievance. The last communication between them was the email sent from Ms. Poulis to the complainant on January 24, 2012.

48 In her email of January 24, 2012, Ms. Poulis answers the complainant’s questions posed in earlier emails as to where in the CIU the complainant’s grievance documentation would be sent and the contact information for the CIU’s Ottawa office. The complainant specifically asked for that information so she could contact the Ottawa office directly to follow up on the grievance’s progress. There is no doubt on the face of the email documentation that was produced by the complainant and as set out in the facts, that the CIU was representing her and that the status of her grievance was made known to her.

49 The email of January 24, 2012 also advised the complainant that a significant backlog of grievances existed at the fourth level, such that the CIU could not provide her with any information as to when her grievance would be heard. The email ended with Ms. Poulis asking the complainant if she had any further documentation to provide before she forwarded her file to the CIU’s Ottawa office.

50 It is clear that, as of January 24, 2012, the complainant had been advised that the CIU was continuing to represent her and that it would represent her at the fourth level of the grievance process. It had also advised her as to the process involving her grievance such that she was aware of where it was in the CIU’s system and that it was unknown when it would be heard. The CIU also provided her with the information necessary to contact the appropriate representatives in its Ottawa office with respect to the fourth level of the grievance process.

51 The complainant did not reply to Ms. Poulis’ email of January 24, 2012. The next communication between the parties was the email of March 30, 2012, which the complainant sent to the CIU’s general email account. In it she inquired about filing a second, albeit similar, job description grievance with respect to her new job. That email is quite telling, as the complainant confirms in it that she is aware that her original grievance is already pending at the final (fourth) level. She attached, as part of the email chain, the earlier email correspondence between her and Ms. Poulis, as well as her email correspondence with the employer. Despite that attachment, she does not make any inquiries about her original grievance. It is clear from the wording of the March 30, 2012 email that the complainant wanted to file a new grievance, similar to her original grievance, but with respect to her new job, and that she wanted the new grievance sent straight to the final level, where her original grievance was already pending.

52 The complainant states that, on April 30, 2012, she sent a further email to the CIU’s labour relations branch in Ottawa. However, the document attached at Appendix “A” to her written submissions and dated April 30, 2012 is an email addressed to “Grievance‑Grief: Toronto.” The April 30, 2012 email, wherever it was sent, merely attaches a copy of the March 30, 2012 email and the new grievance and refers to the complainant not hearing back from the CIU despite repeated inquiries. In her written submissions, she confirms that the new grievance was submitted to the employer in August 2012 and identifies it by number.

53 In her April 30, 2012 email, the complainant states that she has received no response to her “repeated inquiries.” She states in her submissions dated December 13, 2012 that, on May 30, 2012, absent replies to the emails of March 30, 2012 and April 30, 2012 and subsequent telephone and online submissions, she wrote her letter of complaint to Ms. DeSousa. Those statements are incorrect. First, there was no evidence submitted by the complainant to prove that there were “repeated inquiries,” only the initial inquiry of March 30, 2012 that was not replied to. Second, although the original email of March 30, 2012 was not immediately replied to by the CIU, when the complainant resent it as part of her April 30, 2012 email, the CIU replied. While the reply was undated, it is clear from its placement in the email chain submitted by the complainant that it was sent sometime after May 1, 2012 and before May 3, 2012 at 10:57. The complainant’s emails of March 30 and April 30, 2012 are about a new job description grievance for her new job. The CIU’s reply to the complainant about her March 30 and April 30, 2012 emails answered her inquiry about the new grievance by instructing her on the steps she should take. Her reply to the CIU’s representative, Ms. Meagher, on May 3, 2012 at 10:57, clearly indicates that she received the CIU’s reply.

54 In the letter dated May 30, 2012, the complainant sets out, in summary fashion, parts of the process involving her original grievance, stating that, since the January 2012 communications, she made several attempts to obtain information as to the status of the handling of her grievance at the fourth level. She references in the letter emails to the CIU general website, as well as the grievance@ciu-sdi.ca email address and emails to Mr. Weber. None of those emails were produced despite the registry’s clear instructions to the parties, as outlined in paragraph 6. If she is referring to the emails attached at Appendix “A” of her submissions, she has conflated the correspondence about the second grievance that she wished to pursue with that of her original grievance.

55 There is no evidence that the complainant made any inquiries about the status of her original grievance until she sent her letter of May 30, 2012. The emails that she refers to that are found at Appendix “A” of her submissions are clearly about the new grievance she wished to pursue, which had yet to be submitted to the employer. They were not inquiries about the first grievance, which is the subject of this complaint. They were about the new grievance, which was eventually filed in August 2012.

56 It is also clear from the documents submitted as Appendix “A” that, as of August 2012, the CIU was involved in the filing of the new grievance and that it was still involved with the original grievance.

57 In her last email to Ms. Poulis on January 17, 2012, the complainant specifically requested contact information for the CIU Ottawa office, which would be handling her original grievance, so that she could contact them directly. There is no evidence that she either contacted or attempted to contact the CIU representatives at the Ottawa location or at the phone or fax numbers provided to her by Ms. Poulis.

58 There is no evidence that the complainant made any enquiry of the respondents about her original grievance after it was referred to the final level until she wrote her letter of May 30, 2012 (the date of its receipt by the PSAC is unknown). Although she states in that letter that she sent numerous email enquiries, none were produced. She also states that she emailed Mr. Weber directly; however, there is no email to Mr. Weber about her original grievance in evidence before me.

59 In the fifth paragraph of her May 30, 2012 letter, the complainant states that she contacted the PSAC and that it told her to contact the CIU. There is no evidence as to when she contacted the PSAC or with whom she spoke. There is no evidence that she ever contacted the CIU at the numbers or address that she was given by Ms. Poulis. In addition, the complainant had the email addresses of both Ms. Poulis and Ms. Meagher as of May 3, 2012, and there is no evidence that she emailed either of them enquiring as to the status of her original grievance.

60 The respondents stated that they are representing the complainant with respect to her original grievance. There is no evidence to suggest otherwise. The email correspondence filed by the complainant indicates that the respondents have been involved in the process throughout and, as set out in their email to her of January 24, 2012, there are hundreds of grievances at the final level. As such, they cannot put a time on when her grievance will be heard. It is clear that the respondents are both acting on her behalf and have advised her of the status of the grievance.

61 I have not been provided any evidence that would establish that the respondents acted in a manner that could be defined as either arbitrary or in bad faith. They processed the complainant’s grievance and continue to represent her. There is no evidence to suggest that they have not taken the steps normally associated with the representation of members or the transmittal of grievances through the grievance with the employer.

62 As for the allegation that the respondents’ actions have been discriminatory, the complainant has not produced any evidence to support such an allegation. In her arguments, she states that the respondents “flounted [sic] their responsibilities,” which amounts to discrimination. There is no evidence that the respondents flouted any of their responsibilities.

63 In her submissions, the complainant states that the CIU made certain directions in an email of March 30, 2012 with respect to providing grievance documentation to stewards for them to action. There is no email from either respondent dated March 30, 2012 in evidence before me. The only email of that date in evidence is from the complainant to the CIU. The CIU responded to the complainant’s emails of March 30 and April 30, 2012 in early May 2012, at which point it advised her to take certain steps when filing her new grievance. In its response, it referred to its representatives. However, the reference was not with respect to the original grievance but was with respect to the new grievance.

64 In her reply argument, the complainant states that the email chain of August 2012, specifically the email of August 20 from Ms. Poulis to Ms. Randle, reveals that the respondents were confused as to the difference between the two grievances; hence, they did not know the status of her original grievance. The only thing that can be drawn from that email is that, at that particular point, Ms. Poulis might have been confused. However, that is far from evidence that the respondents were confused. Ms. Poulis was last involved with the original grievance at the end of January or early February 2012 when she communicated with the complainant and then forwarded it to the CIU’s Ottawa office. After this point, there is no evidence that Ms. Poulis was aware of the status of the original grievance or that she should have been. There is no evidence that Ms. Poulis was briefed on the emails or issues involving the complainant after she forwarded the original grievance to Ottawa. It is clear that, until she received the email from Ms. Randle in August 2012, the complainant had not kept Ms. Poulis informed as none of her emails after January 24, 2012 were either addressed to or copied Ms. Poulis. While Ms. Poulis could have been confused, it does not equate to the respondents being confused; nor is it evidence of arbitrary or discriminatory action or bad faith.

65 The complainant alleges that the communications issues are positive evidence that the respondents chose not to represent her. Clearly, that is not the case, given the respondents’ statement that, throughout both the grievance and the complaint processes, they continue to represent her with respect to her grievance.

66 While a lack of communication with a member could be evidence of arbitrary or discriminatory action or bad faith, in these circumstances, I find that the evidence adduced is far from that necessary to establish a prima facie case. The complainant suggests in her letter of May 30, 2012 as well as in her submissions to the Board that she made “repeated” inquiries about the status of her original grievance, yet the evidence does not disclose that this is the case. The one and only inquiry she made about that grievance, after it was transmitted to the fourth and final level and after being advised as to its status at the end of January 2012, is at the end of the May 30, 2012 letter. There is no evidence as to when or if the May 30, 2012 letter was sent, when or if it was received by the PSAC, and whether it was ever forwarded to the CIU.

67 To establish a prima facie case of a breach of section 187 of the Act, there must be evidence that the action or inaction by the respondents was arbitrary, discriminatory or in bad faith. The complainant has not adduced such evidence.

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

V. Order

69 The complaint is dismissed.

March 26, 2013.

John G. Jaworski,
a panel of the Public Service
Labour Relations Board