FPSLREB Decisions

I. Complaint before the Board

1 On December 5, 2013, Desirée Coulter (“the complainant”) filed a complaint against the Public Service Alliance of Canada (“the PSAC”) under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”).

2 The complainant filed additional information with the Public Service Labour Relations Board (“the Board”) on December 24, 2013. The PSAC filed a response to the complaint on February 12, 2014, and the complainant replied to the PSAC’s response on February 14, 2014.

II. Summary of the evidence

3 In 2005, the complainant began working as a Border Services Officer (“BSO”) with the Canada Border Services Agency (“the CBSA” or “the employer”). As a BSO, the complainant was a member of the Customs and Immigration Union (“CIU”), which is a component of the PSAC.

4 In 2011, the complainant, who resided and worked in Edmonton, Alberta, met her future husband, who lived in or about Hamilton, Ontario.

5 In December 2011, the complainant requested that her employer transfer her from Edmonton to the Hamilton region. This transfer did not occur. In April 2012, the complainant again made the same request, which again was not granted.

6 The complainant stated that in or about September 2012, she requested leave without pay for personal reasons, which was granted, and on or about September 15, 2012, she moved to the Hamilton area. While in Hamilton, the complainant approached various CBSA management personnel in that region about deployment there from Edmonton. According to the complainant, she was unsuccessful in her attempts to secure a deployment.

A. Marriage Certificate

7 The complainant stated that on October 31, 2012, she sent a request to the CBSA’s human resources (“HR”) division to have her leave status changed from leave without pay to a spousal transfer. The complainant stated that she was required to have the request sent through her supervisor in Edmonton, which she did on November 1, 2012. The complainant stated that she was advised by her supervisor that her leave status could not be changed from leave without pay to spousal transfer until the complainant provided a copy of her marriage certificate. At this time, the complainant was not married.

8 The complainant stated that on November 6, 2012, she approached her employer looking for term or part-time work until such time as she could be permanently relocated to Hamilton by spousal transfer. This request and a subsequent request on December 16, 2012, were unsuccessful in securing the complainant any sort of position with her employer in Hamilton.

9 The complainant’s own material indicates that at the time she was seeking a transfer or deployment from Edmonton to Hamilton, the public service was implementing the Deficit Reduction Action Plan (“DRAP”), and as such the public service ranks were getting smaller, not larger, and options for movement were limited.

10 Sometime before January 12, 2013, the complainant contacted either the CIU or the PSAC in Ontario and requested assistance and was referred to the union offices in Alberta. Pursuant to that instruction, the complainant stated that she contacted the Alberta offices of the union (it is not clear if it was the CIU or the PSAC). The complainant stated that she also contacted Dave Degenstein, the first vice-president of Local 30036 of the Alberta Branch of the CIU. According to the complainant, she stated that she “asked him what my options were,” and he stated that “there was nothing I could do.”

11 The PSAC, in its response to the complaint, stated that Mr. Degenstein had only a limited recollection of contact with the complainant and, that contact involved a discussion around the provision of a marriage certificate.

12 In her reply to the PSAC’s response to her complaint, with respect to the complainant’s contact with Mr. Degenstein, the complainant stated that Mr. Degenstein advised her that she would have to speak to someone at the CIU in Ontario about grieving the request for a marriage certificate.

13 On December 18, 2013, the complainant sent an email to Mr. Degenstein, which stated as follows:

…

I need to confirm our conversation of last January that I spoke to you in regards to my chief forcing me to show her a marriage certificate, and that I asked your advice as a union representative on what I could do. Can you please send this to me as soon as possible? I need this in order to prove that I asked for the unions [sic] help with this matter.

14 On December 20, 2013, Mr. Degenstein replied to the complainant as follows:

I recall our conversation, if I remember correctly, you said you were asked to provide a marriage certificate in order to have leave approved?

15 The complainant emailed Mr. Degenstein back on December 20, 2013, stating: “Your response was the union was not able to do anything right?”

16 Mr. Degenstein emailed the complainant on December 22, 2013, as follows:

You would be able to grieve (through your CIU local there) that you were asked, but this would not undo what happened in the past, but might prevent similar requests in the future, if your grievance and corrective action was granted.

17 The complainant stated that she was married on January 12, 2013.

18 Upon getting married, the complainant sent her marriage certificate to her supervisor, and she states that on January 28, 2013, she received her priority entitlement with the Public Service Commission.

B. Resignation from the CBSA

19 The complainant stated that in early February 2013, she sent her resume to the employer with respect to opportunities she believed were available for BSOs at the Hamilton International Airport. The complainant stated that in March 2013, she continued to make enquiries about job opportunities in and around the Hamilton area.

20 On March 12, 2013, the complainant wrote to her supervisor in Edmonton and asked her to forward any information with respect to incentives for resigning from the public service due to the DRAP. The complainant’s email was as follows:

…

I have been told to contact my manager for more information for the volunteering to resign because of the DRAP.

Can you please forward me this information at your earliest convenience?

…

21 The complainant stated that she was advised that she was not an affected employee.

22 The complainant stated that in or about March 2013, she contacted the union (she does not identify who or whether it was the CIU or the PSAC or both), but not once was she told she had the right to grieve.

23 On April 23, 2013, the complainant tendered her resignation from the CBSA, which was accepted that same day, effective May 1, 2013.

C. Post-resignation

24 The complainant stated that subsequent to her resignation from the CBSA, sometime in May 2013, she was contacted by Betty Tucker at CBSA HR about a potential BSO position and stated that she was told by Ms. Tucker that the CBSA would require her to pay for her own firearm requalification. However, when she advised Ms. Tucker that she had resigned from the CBSA, Ms. Tucker stated, “Oh you lost your priority status,” and the complainant heard nothing further.

25 The complainant stated that in September 2013, she went back to school and took paralegal courses and that at this juncture she determined that she had rights. As such, in October 2013, she contacted Laurel Randle of the CIU.

26 According to the complainant, she stated that she sent to Ms. Randle some material about the CBSA not transferring her from Edmonton to Hamilton due to the DRAP. She also stated that she informed Ms. Randle about the employer’s HR department telling her that she would have to pay for her own firearms training, which could constitute discrimination.

27 According to the complainant, Ms. Randle advised her that she would have had to file a grievance 25 days after she resigned, and as such, there was nothing that she could do. The complainant stated that she asked Ms. Randle about putting in a grievance for being forced to provide a marriage certificate to receive priority status and stated that Ms. Randle told her there was nothing that she could do to help.

28 The complainant has requested as corrective action that she be compensated for all lost wages from September 2012 to the present, that her resignation be voided, that she be granted indeterminate status as an employee; and that she be transferred to client services at the FB-04 group and level.

29 Article 18 of the Agreement Between the Treasury Board and the Public Service Alliance of Canada for all employees in the Border Services Group, signed January 29, 2009, expiry date June 20, 2011 (“the collective agreement”), sets out the grievance procedure. Clause 18.10 of the collective agreement states as follows:

Subject to and as provided for in the Public Service Labour Relations Act, a grievor who feels treated unjustly or aggrieved by an action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause 18.08 ….

30 Clause 18.08 of the collective agreement states as follows:

A grievor wishing to present a grievance at any prescribed level in the grievance procedure, shall transmit this grievance to the employee’s immediate supervisor or local officer-in-charge who shall forthwith:

(a) forward the grievance to the representative of the Employer authorized to deal with grievances at the appropriate level,

and

(b) provide the grievor with a receipt stating the date on which the grievance was received.

31 Clause 18.15 of the collective agreement states as follows:

A grievor may present a grievance to the first level of the procedure in the manner prescribed in Clause 18.08, not later than the twenty-fifth (25^th) day after the date on which the grievor is notified or on which the grievor first becomes aware of the action or circumstances giving rise to the grievance… .

32 Article 19 of the collective agreement is entitled “No Discrimination.” Clause 19.01 states as follows:

There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.

III. Summary of the arguments

A. For the complainant

33 Much of the complainant’s argument is found in her response dated February 14, 2014, which states as follows:

3. In summary, the respondent, PSAC and the Customs and Immigration Union, which is a component of the PSAC, did not investigate my claim in January 2013 and October 2013 against my employer Canada Border Services Agency, who contravened my rights under article 19 of the collective agreement between CBSA and the Public Service Alliance of Canada (PSAC). Furthermore, I allege that they did not investigate my claim that I was a subject of disguised discharge, disguised discipline, and a financial penalty.

4. The respondent entered a preliminary objection that there must be factual foundation for a Section 190 complaint. That the onus is on the complainant to establish the grounds for a labour practice complaint. To this end, it is essential that the complainant provide the details necessary to allow the respondent to provide an adequate response.

5. In terms of establishing how the alleged act or omission breaches a specific prohibition under the Act on a prima facie basis is the fact I was being asked to provide my employer (CBSA) a marriage certificate in order to receive priority status for a transfer. This is when I contacted the union here in Ontario and I was told to contact someone in Alberta. It was a voicemail that I was directed to. I then took it upon myself to contact the Vice President of the union Dave Degenstein, in which I was told I would have to contact someone in Ontario and that my options would be “You would be able to grieve (through your CIU local there) that you were asked, but this would not undo what happened in the past, but might prevent similar requests in the future, if your grievance was successful and your corrective action was granted.” This to me was being referred back to the Ontario number I just called, in which they told me to call Alberta. With this information and the fact that I was under financial duress I asked my boyfriend if we could elope so I could get on the priority list for a transfer. This was extremely embarrassing for me. The union failed me by arbitrarily and possibly discriminating against me by imposing a decision that was clearly wrong. What should have happened was Mr. Degenstein gather all my evidence and create a grievance against the employer for violations of article 19 of the collective agreement. In April 2014 I sent my resignation to my Chief stating, “I am being forced to resign because they won’t transfer me and I found another job in the private sector”. … At this point, I was behind in my car payment and my credit was about to be ruined for life and my car taken away. In October I contacted the Customs and Immigration Union and they directed me to the Alberta Labour Relation Advisor Laurel Randle. I explained to her what happened to me and I finally thought I was going to get the help I needed. I forwarded her some evidence I had in regards to the employer CBSA, stating they could not transfer me because of the Debt Reduction and Action Plan and an email from the employer stating that they require people because of the expansion due to the Debt Reduction and Action Plan. Also an email from the employer’s HR department stating I would have to pay for my own firearms training, which could constitute discrimination. I let her know that CBSA planned to hire me back as a casual and asked her if she had been investigating my case. I received a phone call from Laurel and she stated that I would have had to submit a grievance 25 days after I resigned so with that there was nothing she could do. I asked her about being able to put in a grievance for being forced to show a marriage certificate in order to receive priority status. She became very defensive and said that I couldn’t do that. …

…

6. Taking all of the facts alleged in the complaint as true, is there an arguable case that the respondent arbitrarily and discriminated against me with respect to being forced to show a marriage certificate in order to receive a spousal transfer leave request signed so that I could be included in a priority list for a transfer? Or not receiving a transfer after I put in a compassionate request back in April 2012, being subject of a disguised discharge, disguised discipline and given a financial penalty….

…

7. I believe Mr. Degenstein made an error in making his decision to not investigate my case and refer me back to Ontario. With his submission he clearly states he did not investigate this matter and arbitrarily made this decision and possibly discriminated against me.

[Sic throughout]

34 The complainant argues that Ms. Randle erred by not investigating her case, arbitrarily made a decision and possibly discriminated against her.

35 The complainant argues that she wants to ensure that the correct decision-making process is followed by the CIU/PSAC and not one that is arbitrary or discriminatory.

36 In her complaint, the complainant asks as corrective action, that which is set out at paragraph 192 (1)(d) of the Act. In the additional material filed on December 24, 2013, the complainant requested that the Board order the following relief that:

(a) she be compensated for lost wages from September 2012;

(b) her resignation be voided;

(c) her indeterminate contract be restored; and

(d) she receive a transfer to client services in an FB-04 position.

B. For the respondent

37 The respondent submitted that there must be a factual foundation for a complaint under paragraph 190(1)(g) of the Act, and the onus to establish the factual foundation is on the complainant. In this regard, the respondent relies on Exeter v. Canadian Association of Professional Employees,2009 PSLRB 14, and Ouellet v. Luce St-Georges and Public Service Alliance of Canada,2009 PSLRB 107.

38 The respondent also relies on Jackson v. Customs and Immigration Union and Public Service Alliance of Canada, 2013 PSLRB 31, for the proposition that there must be evidence that the action or inaction by the respondent was arbitrary, discriminatory or in bad faith.

39 The respondent also takes the position that there is no absolute right to representation. According to Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28, and Tsai v. Canada Employment and Immigration Union and Sand, 2011 PSLRB 78, members of a bargaining unit do not have an absolute right to representation. It is not up to the Board to determine whether the bargaining agent’s decision to cease representation was appropriate, good or bad, or even with or without merit; it is to determine whether the respondent acted in bad faith or in an arbitrary or discriminatory manner in the decision-making process of representation. According to Sayeed v. Professional Institute of the Public Service of Canada, 2010 PSLRB 44, the Board does not sit in appeal of decisions made by the bargaining agent, and the Board’s mandate is not to determine whether the bargaining agent’s decisions were correct. The Board’s mandate is to determine whether the bargaining agent acted within the parameters of section 187 of the Act.

40 The respondent is allowed a fair amount of discretion when deciding whether to take action on behalf of a member as long as it does not use this discretion in a manner that amounts to bad faith or in an arbitrary or discriminatory manner. The respondent argues that the behaviour alleged cannot be characterized as contravening the respondent’s duty under the Act.

41 The respondent submitted that since there is no demonstration of a failure in the duty of fair representation with respect to the complainant, there is no basis to grant any of the corrective action requested.

IV. Reasons

42 The material facts in this matter are not in dispute, and I have for the most part distilled those facts from the three submissions made by the complainant and copies of documents submitted.

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 subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

44 The portion of section 185 of the Act to which the complainant referred 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 Subsection 190(2) of the Act states 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.

46 The 90-day period stipulated in subsection 190(2) is statutory, and cannot be extended as there is no authority under the Act or the Board’s regulations to do so. The complaint is dated December 5, 2013, and as such, 90 days preceding that date would be Saturday, September 7, 2013. The first working day before that would be Friday, September 6, 2013. For the complainant’s complaint to be timely, the events and/or actions that give rise to her complaint must have occurred sometime after Friday September 6, 2013 and before the date of her complaint.

47 Quite simply, in September 2012, the complainant, who lived and worked in Edmonton, Alberta, chose to take unpaid leave to move to be with her future husband, who lived in or about Hamilton, Ontario. The complainant sought both a transfer and deployment from her employer, but neither was forthcoming. The complainant bases her complaint on the failure of the respondent to act on her behalf with respect to three fact situations, which I have identified as follows:

1. The employer required the complainant to produce a copy of her marriage certificate before changing her leave status (“Marriage Certificate Request”).
2. The complainant was forced to resign because the employer didn’t transfer her from Edmonton to Hamilton (“Resignation”).
3. The employer, when it was contemplating making the complainant a priority offer, was going to require the complainant to pay for her own firearm requalification, which the complainant states is discriminatory (“Paying for Firearm Requalification”).

A. Marriage Certificate Request

48 In late October 2012, in an attempt to facilitate a transfer or deployment to Hamilton, the complainant sought from her employer to change her leave without pay status to spousal transfer status. The employer in turn requested a copy of her marriage certificate. The complainant, however, was not married at this time, as her marriage did not take place until January 2013.

49 On January 12, 2013, the complainant got married, and in turn, she produced her marriage certificate to her employer. On January 28, 2013, according to her complaint, her status was changed from unpaid leave to spousal transfer. That said, she still could not secure a position with the CBSA in Hamilton.

50 In her own material, the complainant stated that she felt the employer’s request was out of line, and as such, she contacted Mr. Degenstein of the CIU. This was before she was married, which marriage took place on January 12, 2013. Clause 18.15 of the collective agreement sets a 25-day limitation for the complainant to file a grievance, once she is aware of the event that gives rise to her dispute. The 25-day time limitation clearly would have started to run when the employer asked her for the marriage certificate, which, by her own admission, was before January 12, 2013. She also contacted Mr. Degenstein of the CIU about this request before January 12, 2013. If the complainant was unhappy with the action of the CIU, Mr. Degenstein or the PSAC about this issue, clearly she was aware of this before January 12, 2013, as that was the date she was married, and the events she is complaining of predated that event.

51 Assuming the complainant actually asked the CIU to file a grievance about this matter, it would have had to have taken place within 25 days of the request by her manager for the marriage certificate. According to the evidence filed by the complainant, Mr. Degenstein stated he advised her that she could file a grievance. However, there is no evidence that the complainant requested the CIU to file a grievance, and there is no evidence that a grievance was ever filed. If you count 25 days from January 12, 2013, you are at February 6, 2013; 90 days from February 6, 2013, would be May 7, 2013, some seven months before she filed her complaint.

52 The complainant cannot hide behind her own lack of knowledge and inaction to extend time limits. The collective agreement uses the terms “… the date on which the grievor is notified or on which the grievor first becomes aware of the action or circumstances … .” to set the time limit for filing a grievance.The Act uses the terms, “… 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” to set the time limit for filing a complaint under paragraph 190(1)(g) of the Act. If the complainant wanted to file a grievance, the time within which to file it would start to run from the date the complainant knew (or ought to have known) of the event that would give rise to the grievance. The same is true for filing a complaint; the time limit runs from the date the complainant knew (or in the Board’s opinion ought to have known) of the event(s) giving rise to the complaint. The complainant was cognizant of all of the situations she is complaining of at the time they occurred, whether they are events or actions that could have been grieved or events or actions that could have been the subject of a complaint under paragraph 190(1)(g) of the Act. Her excuse that she did not realize she had rights until she returned to school and took some courses does not somehow qualify as meeting the requirement of first becoming aware of the circumstances.

53 This portion of the complaint is clearly outside of the 90-day time frame within which she should have filed her complaint and as such is dismissed as it is untimely.

B. Resignation

54 On April 23, 2013, the complainant tendered her resignation from the CBSA, which was accepted that same day, effective May 1, 2013. Almost two months earlier, on March 8, 2013, she had written to her supervisor in Edmonton and asked for information with respect to incentives for resigning from the public service due to the DRAP.

55 While the complainant uses the term “duress” to describe her situation, there is absolutely no indication that the complainant was under any duress from the CBSA to resign. There is absolutely no evidence that the complainant sought assistance from the respondent after she resigned because she was under duress to resign. In her submission dated February 14, 2014, the complainant sets out at paragraphs 3 through 5 the facts that she is relying on for her complaint, and while she states that she was forced to resign, all of the evidence indicates that she chose voluntarily to move to Hamilton of her own volition to be with her then boyfriend. It is also clear that the complainant initiated the process of resigning and this step was being contemplated as early as March 2013, as is stated in her submission of December 24, 2013, as follows:

March 8, 2013 I emailed my manager Judy Matthew-Rusnak asking to forward me any information regarding incentives for resigning from the public service because of the DRAP. I was told I was not an affected employee.

March 12, 2013 I wrote a letter to the President of the CBSA Luc Portelance expressing my duress due to financial hardships and how I was being coerced to resign. I contacted my union but not once was I told I had the right to grieve anything that was happening to me.

The Public Service Pension told me that if I resigned I would receive $120,000. I sent my resignation by email to Chief Shelley Della-Costa April 2013.

56 The complainant stated in her submission of December 24, 2013 that she emailed Ms. Matthew-Rusnak on March 8, 2013. However, in the material filed by the respondent, an email was sent on October 7, 2013 to Ms. Randle by the complainant, to which was attached an email from the complainant to Ms. Matthew-Rusnak, dated March 12, 2013, which stated as follows:

Subject: Volunteering to resign

…

I have been told to contact my manager for more information for the volunteering to resign because of the DRAP.

Can you please forward me this information at your earliest convenience?

…

57 In her submission of February 14, 2014, the complainant attached a copy of her email of resignation dated April 23, 2013, and Ms. Della Costa’s email of that same day accepting her resignation. It is very clear to me that the complainant knew exactly what she was doing and why and that she had contemplated this step. As such, the time to grieve this action, if she felt it was forced or under duress, would have been within 25 days from the date she tendered her resignation, which was April 23, 2013. Indeed, in the material provided to the Board, there is nothing that would suggest that the employer was acting in a manner which involved disciplining the grievor, or for that matter that it considered terminating her employment. Neither in the complaint dated December 5, 2013, nor in the particulars filed December 24, 2013, does the complainant make any mention of her resignation as disguised discipline by her employer.

58 There is no evidence that the respondent was ever asked by the complainant to be involved in the resignation, or was involved in the resignation issue. There is absolutely no indication that the complainant took any step to contact the respondent after April 23, 2013, until she contacted Ms. Randle in October 2013, the earliest written communication being October 7, 2013. As set out in paragraph 52 of this decision, this portion of the complaint is untimely as it is clearly outside of the 90-day time frame within which she should have filed her complaint.

C. Paying for firearm requalification

59 As set out in paragraphs 23 and 54 of this decision, the complainant tendered her resignation from the CBSA on April 23, 2013, which was accepted that same day, effective May 1, 2013. After this occurred, she stated that in May 2013, she received a call from Ms. Tucker at CBSA HR advising her that they may have found a priority posting for her; however, she would be required to cover the cost of the firearm requalification. According to the complainant, this action could be discriminatory.

60 At the time the complainant received the call about a priority position she had already resigned from her position with the CBSA; as such, she was no longer in a priority situation. As she also stated in her own material, when she advised Ms. Tucker she had resigned, Ms. Tucker never called back; there was no offer of a priority position, and hence, no requirement to have a firearm requalification. The CBSA is no longer her employer, and this action took place after the severing of the employment relationship. However, since there was never an offer and never any request to pay for her own firearms requalification, this is entirely hypothetical and speculative and as such cannot possibly give rise to a complaint under paragraph 190(1)(g) of the Act.

61 Even if there had been an offer, which had contained a potential discriminatory act, the time frame to grieve that action would have been 25 days from the date that act had taken place. In her material, the complainant states that this took place in May 2013. If you give her the benefit of the doubt and assume it occurred on the last working day in May, Friday, May 31, 2013, the time frame for her to launch a grievance against this would have been before the end of June 2013. There is no evidence whatsoever that at any point after this occurred and before she spoke to Ms. Randle in early October 2013 that she ever contacted the respondent or the CIU.

62 In short, the complainant is a former member of the respondent, complaining about a hypothetical event that did not actually occur, after she had left the employ of the CBSA. In addition, the hypothetical circumstances of which the complainant is alleging may have been discriminatory were known to her in May 2013, and as such, if I had held that the actions could have been the basis for a complaint, I would have found that this portion of the complaint, for the reasons set out in paragraph 52 of this decision, is also clearly outside of the 90-day time frame within which she should have filed her complaint and as such is untimely.

63 Given the reasons set out, I do not have to address the arguments put forth by the respondent.

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

V. Order

65 The complaint is dismissed.

May 20, 2014.

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