FPSLREB Decisions

I. Complaint before the Board

1 On September 6, 2011, Deborah Cousineau ("the complainant") made a complaint against Leah Walker ("the respondent"), who was at the relevant time a regional representative with the London, Ontario, regional office of the Public Service Alliance of Canada (PSAC) and against the PSAC. The complainant alleged that the respondents breached her duty of fair representation by refusing to support a grievance that the complainant wished to file against her employer, the Canada Border Services Agency (CBSA). Her 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.

2 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 best applies to the facts of 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.

3 At the hearing, the complainant clarified that she was not alleging that the respondents had acted in a discriminatory manner or in bad faith but rather that they had acted in an arbitrary manner.

II. Summary of the evidence

4 The complainant testified on her behalf and called no other witnesses. The respondents' representative called three witnesses, the individual respondent, Michael Coene, a border services officer (BSO) with the CBSA and president of Local 19 ("the local") of the Customs and Immigration Union (CIU), as well as Jason McMichael, First National Vice-President of the CIU.

5 The complainant testified that she has been employed at the CBSA's Sarnia Blue Water Bridge office for the past 12 years as an administrative assistant, a position classified CR-04. She indicated that, in August 2010, the CBSA temporarily assigned a BSO, classified FB-03, to a vacant CR-04 position because the BSO in question required workplace accommodation. Shortly after that, another FB-03 BSO was similarly accommodated into another vacant CR-04 position. No evidence was led as to the nature of the accommodations or their lengths. In fact, the complainant admitted in cross-examination that she was unaware of the exact nature of the accommodation being provided to BSOs in her office.

6 Although she did not dispute the legitimacy of the accommodation of the FB-03 BSOs, the complainant stated that she felt disrespected by the CBSA's decision to accommodate the BSOs into CR-04 positions, mainly because the BSOs were not qualified to perform CR-04 duties and needed to be trained by CR-04 employees, such as her. She added that she was particularly concerned with the fact that she and other CR-04 employees were missing out on potential overtime work, as a result of the accommodated BSOs also being available for the overtime, and with the fact that she was being asked to train employees who were earning on average $20 000 more than she was per year. She was also concerned with the fact that the BSOs were receiving their higher FB-03 rate of pay while performing the duties of a lower-level CR-04 position. However, no corroborating evidence was presented at the hearing to support any of those concerns.

7 Although a meeting had been held between CBSA management and its administrative assistants in February 2011, according to the complainant, there was no reason to believe that the ongoing accommodation practice would cease.

8 On August 9, 2011, the complainant met with Mr. Coene and raised her concerns. Mr. Coene testified that, although he initially felt that the complainant was raising valid concerns, he preferred not to formulate an opinion before consulting with others and looking further into the issue. He proceeded to consult with three individuals: Jake Baizana, a former representative of Local 19 with years of experience in labour relations; Mr. McMichael, who was at the time the fourth national vice-president of the CIU; and Karen Church, a CIU national representative specializing in equal-opportunity issues. Mr. Coene indicated that he also conducted his own research by reviewing the Canadian Human Rights Act, R.S.C. 1985, c.H-6 (CHRA), the Canadian Human Rights Commission website and materials on the duty of accommodation available through the PSAC website. In support, Mr. Coene referred to email exchanges and conversations he had with those individuals and to the materials he had consulted.

9 Ultimately, Mr. Coene concluded that the CBSA was within its rights to proceed as it was and that there was no basis to grieve the accommodation that was being provided to BSOs. Mr. Coene stated that his conclusions were supported by Mr. Baizana, Mr. McMichael and Ms. Church. When he testified, Mr. McMichael confirmed that he had been consulted by Mr. Coene and that he had recommended not supporting the complainant's grievance for a number of reasons, including the fact that such a grievance would ultimately lead to a conflict among the CIU's members, that the local had fought hard to secure sound duty-to-accommodate practices in the workplace, and that he did not believe that the CBSA's actions violated the applicable collective agreement or infringed any of the complainant's rights or entitlements. In the end, Mr. McMichael strongly supported the position taken by Mr. Coene.

10 On August 11, 2011, Mr. Coene advised the complainant that the CIU would not support a grievance challenging the accommodation of FB-03 BSOs into vacant CR-04 positions. According to him, he had no further contact or conversation with the complainant about this matter after that day. However, he agreed to represent her in a subsequent unrelated grievance in the months that followed.

11 Immediately after learning of Mr. Coene's refusal to support her grievance, the complainant contacted her PSAC regional representative, Ms. Walker, and had a lengthy telephone discussion with her. Ms. Walker testified that, in an effort to mend the relationship between the complainant and her local, she offered to facilitate a discussion with the local's president or vice-president, which the complainant flatly and categorically refused on the ground that she was done talking to her local. Ms. Walker also testified that she made it clear to the complainant that she had no authority to force her local to support her grievance but nonetheless invited the complainant to send her a detailed statement of her concerns in writing.

12 On August 15, 2011, the complainant sent Ms. Walker an email in which she attached a two-page summary of her concerns and essentially threatened to file an unfair labour practice complaint against her local unless the PSAC agreed to support her grievance against the CBSA by August 26, 2011. During her testimony, the complainant admitted that the tone of the email was somewhat aggressive and that she was acting out of frustration at that time.

13 The complainant's written statement basically reiterated the same concerns that had been raised with Mr. Coene. Ms. Walker stated that she reviewed the complainant's two-page summary, as well as the materials that had been made available to her, including the email exchange between Mr. Coene and the complainant. She also testified that she conducted her own research on the duty to accommodate by consulting the Canadian Human Rights Commission website and the PSAC website. While Ms. Walker admitted that she was not an expert in the field, having attended only a one-day training seminar on the duty to accommodate, she indicated that she felt reassured that Ms. Church had been consulted by Mr. Coene and supported his conclusions.

14 Ms. Walker indicated that she responded by email to the complainant on August 24, 2011 and that she did her best to address each of her concerns. Although she had not been able to speak to Mr. Coene, who was on annual leave, Ms. Walker informed the complainant that, based on her review of the documentation and on her research, she agreed with Mr. Coene's conclusions and felt that the CBSA was not violating the applicable collective agreement.

15 The complainant testified that, after receiving Ms. Walker's email, she conducted her own research on accommodation and concluded that the information at her disposal did not support the respondents' position. However, she admitted during her testimony that she did not convey to the respondents the results of her research or why she felt that the respondents' position was flawed. In fact, she admitted in cross-examination that she had made no attempt to discuss her concerns further with Ms. Walker after August 24, 2011, with the exception of a short email she sent on August 25, 2011, and that she filed a complaint against Ms. Walker and the PSAC on September 6, 2011.

16 With respect to the complainant's email of August 25, 2011, which appeared to request a response by email, Ms. Walker described it as confusing, since she had already responded to the complainant and had clearly outlined her position.

17 Ms. Walker added that she spoke to Mr. Coene on September 14, 2011. However, the complaint had already been filed against her by then, and she did not feel that further direct communications with the complainant would be appropriate. She indicated that she had diligently tried to investigate and address the complainant's concerns and that she was shocked when she learned that a complaint had been filed against her.

18 The complainant also testified that she felt that she was not being provided with a healthy environment by her employer, referring to the impact that the accommodation of BSOs had on the CR-04 employees. However, she admitted that she had never asked the respondents or her local to file a grievance on that ground.

III. Summary of the arguments

A. For the complainant

19 The complainant argued that both Mr. Coene and Ms. Walker failed to fully investigate the specifics surrounding the accommodation of the two BSOs into vacant CR-04 positions, particularly whether the CBSA had exhausted all at-level options, to the point of undue hardship, before placing them in lower-level CR-04 positions.

20  The complainant also alleged that they had failed to satisfy themselves that the CBSA was not improperly accommodating BSOs into lower-level CR-04 positions simply to fill vacant positions at that level, rather than properly staffing those positions permanently with qualified employees.

21 The complainant contended that the respondents failed to investigate the overtime allocation in her department so as to ensure that CR-04s, such as her, did not lose out on overtime opportunities resulting from the accommodation of BSOs and that BSOs were not offered excessive overtime hours at both their substantive level and the lower, accommodated level.

22 In essence, the complainant accused the respondents and her local of not doing enough to protect CR-04 positions that are, in her view, constantly being threatened by the government's deficit reduction action plan and by technological change. According to the complainant, the respondents' refusal to support her grievance and to provide full representation was arbitrary. She seeks an order from the Public Service Labour Relations Board ("the Board") directing her bargaining agent to support her grievance and to provide her with full and fair representation throughout the grievance process.

B. For the respondent

23 The respondents argued that the complainant had failed to meet her onus of establishing that it or its representatives had acted in a manner that was in any way arbitrary and that the complaint was unfounded.

24 The respondents also argued that bargaining agents and their representatives enjoy substantial latitude in deciding whether to provide representation and that the decision not to support the complainant's grievance in these circumstances was legitimate and reasonable.

25 The respondents further contended that the evidence presented by the parties had clearly established the following: (i) that frequent communications were held with the complainant, (ii) that a thorough review of the materials she had provided was done, (iii) that peers and subject-matter experts were consulted, (iv) that the applicable statutes and policies were researched, and (v) that a response was provided that was timely, logical and reasoned.

26 According to the respondents, a bargaining agent must not only consider the interests of a complainant but also is required to consider the interests of its entire membership as a whole.

27 Finally, the respondents contended that the complainant had failed to present the factual foundation necessary to substantiate a breach under section 190 of the Act, and it sought a dismissal of the complaint.

IV. Reasons

28 As established by the Board in Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107, the burden of proof in a complaint made under section 187 of the Act rests with the complainant. That burden required her to present evidence sufficient to establish that the respondents failed to meet their duty of fair representation.

29 As alluded to in Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28, the Board's role is not to determine whether the respondents' decision not to represent the complainant was appropriate or correct, good or bad, or even with or without merit. Rather, it is to determine whether the respondents acted in bad faith or in a manner that was arbitrary or discriminatory in the decision-making process behind their response to the representation issue.

30 What is required to sustain an allegation of bad faith or of arbitrary or discriminatory action has been the subject of a considerable number of Board decisions. In Ménard v. Public Service Alliance of Canada, 2010 PSLRB 95, the Board refers to some of the leading cases in the following manner:

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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."

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31 A bargaining agent's determination as to whether it should provide representation was also examined by the Board in Mangat v. Public Service Alliance of Canada, 2010 PSLRB 52, which offered the following guidance and useful concepts:

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44 … It is the role of a bargaining agent to determine what grievances to proceed with and what grievances not to proceed with. This determination can be made on the basis of the resources and requirements of the employee organization as a whole (Bahniuk v. Public Service Alliance of Canada, 2007 PSLRB 13). This determination by a bargaining agent has been described as follows, in Judd v. Communications, Energy and Paperworkers Union of Canada, Local 2000, 2003 CanLII 62912 (BC L.R.B.):

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42. When a union decides not to proceed with a grievance because of relevant workplace considerations -- for instance, its interpretation of the collective agreement, the effect on other employees, or because in its assessment the grievance does not have sufficient merit -- it is doing its job of representing the employees. The particular employee whose grievance was dropped may feel the union is not "representing" him or her. But deciding not to proceed with a grievance based on these kinds of factors is an essential part of the union's job of representing the employees as a whole. When a union acts based on considerations that are relevant to the workplace, or to its job of representing employees, it is free to decide what is the best course of action and such a decision will not amount to a violation of [the duty of fair representation].

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32 The evidence in this case has satisfied me that the respondents demonstrated that the circumstances of the complainant's case were investigated, that its merits were properly considered and that a reasoned decision was made as to whether to pursue it on her behalf. The respondents did not demonstrate an uncaring or cavalier attitude toward the complainant's interests; nor was it established that the respondents acted out of improper motives or out of personal hostility or that it or its representatives distinguished between members of the bargaining unit based on illegal, arbitrary or unreasonable grounds.

33 The complainant disagreed with Mr. Coene's and Ms. Walker's interpretation of certain CHRA provisions and with that of the respondents, but that is not enough to establish arbitrariness. The fact that they do not share the same view as to what qualifies as a legitimate human rights accommodation under that statute does not amount to an unfair labour practice or a failure to represent.

34 Similarly, even had the respondents incorrectly interpreted a provision of the collective agreement, of the CHRA or of a workplace policy, it would not, absent bad faith (which has not been alleged, let alone established), necessarily amount to an unfair labour practice or a failure to represent.

35 The complainant faulted the respondents for not determining whether the CBSA had exhausted all options at the FB-03 level, to the point of undue hardship, before placing them into CR-04 positions. The evidence demonstrates that the respondents turned their minds to her complaint on this issue and addressed it in their communications to her. In her email of August 24, 2011, Ms. Walker addressed the issue by advising the complainant that the employer had in fact, from the bargaining agent's perspective, done what it was supposed to do in terms of accommodation in such cases and that while accommodations within similar groups and levels should be looked at first, such accommodations were not always possible and that accommodations such as the ones that she was complaining of were possible and even a fulfillment of the employer's obligation towards disabled employees. Further, Mr. Coene, in an email exchange with representatives of the bargaining agent, dated August 11, 2011, addressed the issue and supported the employer's response to employees requiring accommodation, advising Ms. Church and Messrs. Baizana and McMichael that the employer can and should accommodate employees even where the accommodation means placing an employee in a much lower rated position.

36  The complainant also faulted the respondents and her local for not exposing the CBSA's practice of using the duty to accommodate to fill vacant positions instead of staffing them with qualified employees. She was, additionally, displeased at having to train those who had been accommodated, and resented the fact that employees who had been accommodated were also given overtime opportunities (allegedly both as a BSO and a CR). Finally, her biggest source of complaint appears to have been the fact that the BSOs who were accommodated in CR positions were paid at their former level, which meant that she found herself performing the same work as them but being paid far less. Even if the complainant's concerns had been factually substantiated at the hearing, which was not the case, I would nevertheless not make a finding that section 187 of the Act was violated in light of the evidence I heard and considered. What that evidence disclosed was that, as with the issue outlined earlier at paragraph 35, the bargaining agent and its officers who were involved in this case gave careful consideration to each of her concerns, and addressed them carefully in their responses to her. While she may not have agreed with the answers given, nothing in the evidence discloses to me any indication of arbitrary behaviour on the part of any of the respondents.

37 While the reasons given to the complainant for not representing her might not have been as detailed as she might have expected, she must share some of the responsibility. There is no doubt in my mind that the complainant acted hastily and afforded the respondents with little opportunity to respond in a lengthy and detailed manner. The complainant wrote to Ms. Walker on August 15, 2011 and requested a response by August 26, 2011, failing which she would file a complaint under section 190 of the Act. Although the respondent responded within the imposed deadline and specified that she had not yet been able to speak to Mr. Coene, the complainant filed her complaint on September 6, 2011, approximately 10 days after the deadline, without further discussing her concerns with the respondent or with Mr. Coene.

38 I am satisfied that the respondents' decision not to support the complainant's grievance was motivated by genuine workplace considerations, including their interpretation of the applicable collective agreement and of the CHRA, the effect on other members of the bargaining unit, and their assessment of the merits of the proposed grievance. In so doing, the respondents were performing their duty of representing the employees of the bargaining unit, including the complainant. A bargaining agent's duty of representation is not defined by a blind acceptance of representing all employees, irrespective of the circumstances. When a bargaining agent decides not to proceed with a grievance based on legitimate considerations, such as those referred to earlier, it is meeting an essential part of its duty of fair representation, and it is entirely free to decide the best course of action for its membership as a whole.

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

V. Order

40 The complaint is dismissed.

June 11, 2013.

Stephan J. Bertrand,
a panel of the Public Service
Labour Relations Board