FPSLREB Decisions

Heard at Vancouver, British Columbia,
March 31 and April 1, 2015.

I. Complaints before the Board

1 Vitaliy Rudakov (“the complainant”) filed three complaints against the Union of Agriculture Employees, a component (“the component”) of the Public Service Alliance of Canada (“the respondent”), alleging that it failed in its duty to bargain in good faith, contrary to subsection 110(3) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”), failed to comply with section 117 of the Act, and committed an unfair labour practice within the meaning of sections 185 and 187 of the Act, all of which violated paragraphs 190(1)(d), (e) and (g) of the Act.

2 On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the new Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

A. For the complainant

3 The complainant worked for the Canadian Food Inspection Agency (CFIA; “the employer”) as a meat hygiene inspector in Abbotsford, British Columbia. On September 6, 2012, he became ill and was unable to work.

4 On September 7, 2012, the complainant informed his employer that he required accommodation due to the nature of his illness (Exhibit 10, page 1), following which the employer directed him to remain off work until he provided it with the required information concerning his workplace restrictions and limitations (Exhibit 10, pages 2 and 3).

5 On September 10, 2012, the employer again contacted the complainant and informed him that until it received clear communication from his physician regarding his limitations and restrictions, he could not return to work in any slaughter establishment and was advised to take appropriate leave during that period (Exhibit 10, page 4).

6 On September 17, 2012, the complainant’s physician certified that the complainant was fit to work; however, he could not work in a slaughter environment, which was likely permanent (Exhibit 10, page 9). This certificate was provided to the employer, which, on September 18, 2012, granted the complainant disability priority status within the CFIA for a period of two years (Exhibit 10, page 12). However, the employer refused the complainant’s request for an advance of sick leave credits (Exhibit 10, page 11) pursuant to clause 38.04 of his collective agreement (Exhibit 3). When his sick leave and vacation leave ran out, he received employment insurance benefits for a period of 15 weeks commencing on October 10, 2012.

7 On December 5, 2014, the complainant’s employment was terminated.

1. Complaint #1

8 On September 21, 2012, the complainant notified the respondent that he had been on sick leave since September 6, 2012, and that he was not satisfied with how the employer was dealing with his request for accommodation (Exhibit 10, page 17). The respondent replied to the complainant’s email the next day, advising him that he could file a grievance under the “No Discrimination” article of the collective agreement.

9 The complainant directed the respondent to file a grievance on his behalf, which was done, and it proceeded through the various levels. The final-level response was not received within the 40-day timeline specified in the collective agreement. He was not advised of any extension to that deadline, so he contacted both the local and national levels of the component, asking for a confirmation of the extension and what the new due date was. He was advised that his grievance was part of a backlog the respondent had with the CFIA and that it could be stalled at the final level for a long time. Not knowing when he would receive a response to his grievance, he filed the first of his three unfair labour practice complaints in order to meet the 90-day time limitation under section 190 of the Act.

10 The complainant was not interested in being off work. His physician said he was able to work, just not in the slaughterhouse environment. He needed accommodation and proposed the possibility of retraining to the CFIA. This request was denied, as retraining at the employer’s expense was not an option open to employees on the CFIA disability priority list, which the respondent should have informed him of but did not. It also did not advise him that he could file a grievance concerning the employer’s refusal to advance sick leave.

11 The respondent did not provide the complainant with any advice on the accommodation process. Nor did it inform him that the employer was not following the appropriate steps for dealing with an employee seeking accommodation. He tried to resolve the problems he faced by himself by doing research on the Internet.

12 In November 2012, the complainant contacted his local component representative, asking for a copy of the CFIA accommodation policy, of which he was previously unaware. The respondent’s representative provided him with no advice or guidance on the policy.

13 By December 2012, the complainant had been off work for three months, and his grievance was at the final level of the grievance process. He filed a second grievance because of the employer’s failure to follow its accommodation policy. He explained that he should have filed a grievance concerning the employer’s letter of direction, dated September 25, 2012, (Exhibit 10, page 14) requiring him to stay away from the workplace, but the respondent did not advise him to do so. In compliance with the letter of direction, he returned his identification badge and card but refused to submit a leave request.

14 The employer issued a second letter of direction, also dated September 25, 2012, (Exhibit 10, page 19), reiterating that the complainant was not to visit any CFIA office or workplace unless he was meeting to discuss his accommodation with his manager, human resources and his bargaining agent representative. If he were to visit one, he would be escorted from the workplace. If he continued to refuse to fill in his leave request forms, the employer would do so on his behalf.

15 The respondent was aware of the letters of direction but took no action and provided no advice on how the complainant should proceed. It never mentioned filing a grievance concerning the letters of direction.

16 Eventually, Nancy Milosevic, a service officer with the component at the respondent’s national headquarters, contacted the complainant in response to his demands for assistance. She confirmed that the local representatives were working on his behalf. She advised him to return his badge and identification card and to stay off CFIA property. She recommended that he do so on a without-prejudice basis to avoid disciplinary action. She also advised him that he should provide the employer with all the information it required, including a medical note from his physician indicating his limitations. Finally, she confirmed the advice that he had received from the local component representative that no additional grievances were required as the grievance at the final level was sufficient to address these and all his accommodation request grievances (Exhibit 10, page 20).

17 Time went on, and the complainant was anticipating a return to work, which did not happen. The local component representatives advised him that the employer was doing everything right.

18 In October 2012, after his first grievance was filed, the complainant began to notice that he was not receiving any help from the respondent. When he inquired as to why he had not received a response to his grievance within the timelines in the collective agreement, the respondent’s local representatives advised him that the timelines would begin to run only once the grievance had been heard at the first level. The collective agreement said otherwise, and the complainant expected to receive his response on October 16, 2012. He had not agreed to any delay. When he consulted the component’s national office about the delay, the difference between calendar and working days was explained to him.

19 The grievance made its way to the second level of the grievance process. The complainant expected to receive a response within two weeks of the date of filing. Again, the response was delayed. The employer did not follow the collective agreement. If the timelines for the response had been extended, the employer should have met the new dates but did not.

20 The complainant wanted the grievance advanced to the third level of the grievance process and was advised to do it himself by the local component representatives. He could not because the grievance and transmittal forms would not have been valid without the signature of the component representative.

21 The complainant sent several emails to the respondent asking for proof that the employer had agreed to extend the time limits. He also wanted an explanation as to why an extension was required and wanted to know the new deadline. He was told that there was a considerable backlog of grievances at the CFIA and that his was considered a priority. He was not provided with any confirmed deadline for the response to his grievance. He wanted to know whether he could file a second grievance about not being provided with a written explanation for the employer’s refusal to accommodate him as set out in the CFIA accommodation policy.

22 On November 30, 2012, the complainant advised the respondent that he did not agree with his grievance being held in abeyance (Exhibit 9, entry 102). By then, he had been off work for almost three months. No one from the respondent would respond to him. His file was being passed from one respondent representative to another.

23 Throughout the correspondence with the respondent, the complainant expressed his concerns with the employer ignoring deadlines. He also could not understand why the respondent did not support a second grievance as a duty-to-accommodate grievance is not the same as a grievance concerning the employer’s failure to follow its own policy. He tried unsuccessfully to convince the respondent to file a second grievance. He eventually attempted to file the second grievance on his own; the employer refused to accept it. Eventually, the employer did accept it because it did not require the respondent’s approval as it did not deal with the collective agreement. Despite every diligent attempt to secure the respondent’s support for his second grievance, the complainant was unsuccessful. On a conference call, Ms. Milosevic advised him that the nature of the second grievance was part of the first grievance.

24 By April 2013, the complainant still did not have a response to his first grievance and had been off work for seven months. He continued to wait, and nothing changed. The last contact he received from the respondent was on April 2, 2013, when he was advised that his first grievance was on the priority list and that the respondent was working to establish hearing dates with the employer.

25 The final level grievance hearing for the first grievance was held on October 3, 2013. The response, due on November 11, 2013, did not arrive. A final extension was granted to November 22, 2013. The final level response was sent to the respondent’s representation section for review. The deadline for referring the complainant’s grievance to adjudication was 40 days from the date on which the final level response was received. On January 6, 2014, the complainant contacted Ms. Milosevic, demanding to know if his grievance would be referred to adjudication and if not, why not (Exhibit 9, entry 171). He was advised that the timelines for referring his grievance to adjudication had been extended until January 31, 2014 (Exhibit 9, entry 173). No reason was given for the extension.

26 On January 18, 2014, Employment Insurance advised the complainant that he did not qualify for sick leave benefits as he was fit to work and that he would have to repay all sums paid to him (Exhibit 10, page 46). On March 20, 2014, he was advised that he was approved for long-term disability benefits retroactive to December 6, 2012. Between then and March 20, 2014, the complainant had been without income. The respondent and the employer had been aware of this, and nothing had been done.

27 The complainant relied on the bargaining agent to ensure that his grievance rights were protected and pursued. He paid union dues, but the respondent did not provide the guidance or support required to ensure that he was properly accommodated.

2. Complaint #2

28 This complaint is based on the same fact situation as Complaint #1 and is incorporated into the complaint in Board file 561-32-612, although in it, the complainant alleges a violation of paragraphs 190(1)(d) and (e) of the Act. For ease of reference the parties agreed to refer to this as complaint #2. The respondent failed to comply with the timelines set out in the collective agreement. There was no written agreement that the complainant was aware of granting the extension. The respondent did not follow the collective agreement and did not provide essential information on the right to be accommodated or on grievance rights. The respondent did not implement the collective agreement within 90 days because he had not received his final-level response within the time limits in the agreement. No one talked to him or sought his approval for the extensions.

3. Complaint #3

29 This complaint is based on the same fact situation as the first complaint. When the employer refused to accept a grievance from the complainant about its failure to follow its own accommodation policy, it gave rise to a third grievance related to the refusal to accept the second grievance. The complainant recognized the similarity between his second grievance and his third but felt that they were different and that both stood on their own merits.

30 The third grievance was sent to the respondent in January 2013 (Exhibit 10, page 44), which refused to approve it, without providing any satisfactory reason. The complainant was of the view that he is entitled to submit a grievance on any matter, but in this case, he was not allowed to by the respondent.

B. For the respondent

31 Bob Kingston is National President of the component and has been since 2008.

32 In 2013, the component was facing a backlog of several thousand grievances at the final level of the grievance process as a result of a classification review by the CFIA. Such grievances are handled on a first-in, first-out basis. Regardless of any backlog, dismissal, severe discipline and accommodation cases go to the top and are handled on a priority basis. The employer agrees with this process.

33 When scheduling final-level grievance hearings, the receipt of the final-level grievance transmittal is acknowledged, and then the grievance is held in abeyance until it can be heard. The collective agreement time limits run from the date of the hearing at the final level. This approach is consistent across government departments where component members are located and has been in effect since 1967, although it is not written anywhere.

34 The complainant’s first grievance, concerning the duty to accommodate, affected his employment, so it was given priority status. No specific extension was sought as it would have meant generating new requests every 30 days for no reason. The grievance took 10 months from the date of its transmittal to the final level to the date of the final-level grievance hearing. On average, grievances take 2 to 3 years for this to happen, and some have taken as long as 15 years.

35 The component is recognized as a leader in representing employees seeking accommodation. Most of the component’s officers were full-time occupational health and safety officers in their departments before they joined the component’s staff. They are champions in this area and take claims that the employer is not accommodating members seriously.

36 With respect to complaint #3, the complainant’s desire to file a third grievance was brought to Mr. Kingston’s attention. The respondent explained to him that there was no need for a third grievance concerning the refusal to file the second grievance because under clause 17.12 of the collective agreement, the second grievance could proceed to the third level once the timelines for responding at the second level had expired. In addition, the violation alleged in the second grievance was able to be captured under the first grievance concerning the employer’s failure to accommodate the complainant. According to the respondent, the advice provided was proper and standard and would have been given to any member of the bargaining unit. The complainant was not treated adversely or differently from any other bargaining unit member.

37 Every bargaining unit member is entitled to file a grievance if the employer has not met its obligations under the collective agreement. However, every bargaining agent has the duty to evaluate each grievance for merit, out of due diligence. If a grievance was filed every time the employer did not sign a transmittal form, it would be a never-ending cycle, because grievances would never get past the first level. The transmittal process is in the collective agreement, and refusing to comply with it is a violation of the collective agreement, which is why grievances may be transmitted through the various levels without the employer’s acknowledgement.

38 The decision to place a grievance in abeyance is the bargaining agent’s to make, although usually the grievor is advised. The decision is made automatically when the grievance is transmitted to the final level.

39 Allegations that the collective agreement has been violated are between the employer and the bargaining agent, and for that reason, a grievor’s consent is not required when placing a grievance in abeyance.

40 There is no reason for a written extension agreement if no hearing has been scheduled to hear a grievance at the final level. If a grievor disagrees with his or her grievance being held in abeyance and wants to move on, he or she is advised to be patient and to ensure that his or her contact information is up to date.

41 The only thing the respondent can do is to prioritize grievances and to ensure those that have a significant financial impact move on quicker than others. The time a grievance is on the priority list may vary from 10 months to 2 years to several years, as it is in a state of constant flux as new priority grievances are added. Each employer has a different success rate in dealing with grievances on the priority list. The CFIA has a poor record of scheduling grievances, which required the respondent to seek ministerial intervention to address it.

III. Summary of the arguments

A. For the complainant

42 The complainant provided no case law to support his arguments.

43  The relevant facts concerning complaint #1 are that the complainant was a member of the component. He paid dues to the respondent to ensure that his employer respected the terms of his collective agreement. Under clause 1.01 of the collective agreement, the parties committed to a harmonious relationship, which did not happen in this case because the respondent was guilty of unfair representation.

44 The timelines for the third-level response to his accommodation grievance did not comply with clause 17.13 of his collective agreement. The collective agreement does not mention holding a grievance in abeyance or creating a priority list for processing grievances. Clause 17.01 states that timelines may be extended by mutual agreement. The complainant did not agree to any extensions, and as a result, the respondent failed its duty of fair representation.

45 The respondent must ensure that the employer respects the collective agreement. The employer’s failure to respect the collective agreement in this case gave rise to a second grievance. Clause 17.02 of the collective agreement states that if an employee is aggrieved by any action or inaction on the part of the employer, the employee may file a grievance. Clause 17.05 states that an employee shall transmit to the employer representative his or her grievance in the appropriate format and on the appropriate form. The employer is to acknowledge receiving the grievance and provide the date on which it was received. The employer refused to accept the complainant’s second grievance and in so doing violated clauses 17.05 and 1.01.

46 The complainant further argues that the respondent’s failure to pursue the second grievance, which was related to a violation of the employer’s accommodation policy, was a breach of the duty of fair representation (Complaint #3).

B. For the respondent

47 The respondent did not act in a discriminatory manner. It was not arbitrary in its treatment of the complainant; nor did it act in bad faith in dealing with his grievances. The respondent and its agents acted professionally and were diligent in trying to help the complainant understand the grievance process. His principal concern was that failing to comply with the timelines would jeopardize his first grievance. He wanted to know when it would be heard. He did not ask for a confirmation that his grievances were being held in abeyance.

48 It is not apparent that the complainant was any more distressed concerning the status of his first grievance than others who were also waiting in the queue. Nothing could be done to satisfy him until he got a date for his final-level hearing. The employer posed a specific problem to the respondent in getting grievance hearings scheduled. The respondent intervened at the senior levels of CFIA management, and with changes to CFIA staff, things seemed to be moving much quicker. There is no indication in the complainant’s emails about what was troubling him in particular. No overt concern was expressed, other than that things were not moving as quickly as he might have liked.

49 The respondent’s advice and the information it provided were accurate. It could not tell the complainant what it did not know. The evidence demonstrated that dealings with him were not motivated by discrimination but rather by his position in the grievance queue. The nature of his grievance made him a priority. No one, including the respondent, was happy with the delay processing grievances at CFIA. However, the respondent took steps to address it and was successful in breaking the logjam of grievances waiting to be heard at the final level. Other priority cases take up to 2 years to be dealt with; the complainant had waited only 10 months from the time his grievance was referred to the third level and his third-level grievance hearing.

50 It was apparent that the complainant wanted to file a third grievance when the employer refused to accept or respond to his second grievance, concerning its failure to follow its own policy. In his mind, he could not go any further because of the employer’s refusal to accept the grievance at the second level. The respondent explained to him that there was no need for a third grievance concerning this refusal because under clause 17.12 of the collective agreement, the second grievance could proceed to the third level once the timelines for responding at the second level had expired. The employer’s approach to dealing with the grievor’s second grievance was reasoned and was based on the collective agreement. The violation alleged in the second grievance was able to be captured under the first grievance concerning the employer’s failure to accommodate the complainant. It was not based on a prohibited ground.

51 In Jackson v. Customs and Immigration Union and Public Service Alliance of Canada, 2013 PSLRB 31, the former Board dealt with another unfair labour practice complaint related to a backlog of grievances at the final level and the respondent’s prioritization of them. The complaint was dismissed because the complainant in that case did not establish that the respondent treated her in a manner that was arbitrary, discriminatory or in bad faith. The respondent used the same process in this case as in that case. There is no evidence that it acted in a discriminatory way.

52 The respondent meets its duty to the members of the bargaining unit by prioritizing grievances by subject matter (see Ouellet v. Luce St.-Georges and Public Service Alliance of Canada, 2009 PSLRB 107; Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28; and Shouldice v. Ouellett, 2011 PSLRB 41). In Shouldice,the respondent in that case admitted that in retrospect he could have acted differently, but the former Board determined that the bargaining agent has the right to be wrong. The question is whether it based its decision on a prohibited ground or for an improper purpose. The bar to assess the respondent’s conduct is purposefully set high, and bargaining agents and their representatives should be afforded substantial latitude in their representational decisions.

53 As to the question of the grievor being stymied by the employer’s refusal to accept his second grievance at the second level, the respondent has the sole authority to authorize collective agreement grievances. A bargaining agent has the right to decide which grievances will proceed to the third level (Lemire v. Statistics Canada et al., 2009 PSLRB 125). Nothing was to be gained in this case by filing yet another grievance on the same subject.

54 There was no prejudice to the complainant when the respondent refused to file a third grievance, the purpose of which was to move the second grievance to the next level of the grievance process. He could have moved it to the third level without the second-level response. The purpose of this option is to avoid the employer’s failure to respond within the timelines set out in the collective agreement, which would frustrate the grievance process.

55 The respondent acted in accordance with its understanding with the employer to hold third-level grievances automatically in abeyance pending hearings at the appropriate levels. No specific extension of timelines was required since all grievances follow the same process automatically. Under this long-standing agreement, the timelines for a third-level response in the collective agreement do not start to run until after the final-level grievance hearing is held. This was clearly communicated to the complainant.

IV. Reasons

56 The former Board and the PSLREB have shown a reluctance to interfere with the internal workings of a bargaining agent. Decisions related to which grievances will be supported and how the grievance process occurs, including the time it takes for a grievance to proceed through the process, are not usually matters in which the PSLREB intervenes, unless a complainant can establish, on a balance of probabilities, that the respondent or its officers acted, in the course of representing him or her, in a manner that was arbitrary, discriminatory or in bad faith.

57 The Supreme Court of Canada in Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509, at page 527, established the following principles concerning the bargaining agent’s duty of representation:

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.

58 The complainant alleged that the respondent did not actively pursue his grievances on his behalf and that it allowed the employer to violate the collective agreement, to his detriment. The respondent argued that the complainant has suffered no detriment and that his first grievance was treated according to the process established between the employer and the respondent in accordance with the list of priorities established by the respondent for processing grievances. The process described gives priority to terminations, accommodation cases and severe disciplinary action cases.

59 It is not my role to evaluate the merits of any of the grievances that the complainant filed or wished to file; it is to examine how they were filed. (See Ouellet, at para 30.) The complainant did not establish that the respondent arbitrarily decided not to file grievances on his behalf. To the contrary, the respondent explained that the grievances that he wished to pursue subsequent to his initial accommodation grievance were either redundant or served no purpose.

60 The evidence clearly established that considerable time was spent trying to communicate with the complainant to inform him that he had a live issue, which the respondent was pursuing on his behalf. His first grievance was placed in the priority queue, and when the queue stopped moving because of a lack of attention by the employer, the respondent intervened with higher levels of management to get things back on track. Others on the priority list were caught in this same logjam of grievances. The respondent’s actions in dealing with them must be looked at in terms of the employee group as a whole as well as the needs of the individual employee (see Ouellet,at para 33.) The best use of the respondent’s resources was to ensure that the grievances in the logjam, including the complainant’s, were freed up and addressed. It was in his best interest, as well as in the best interest of all members of the bargaining unit, for this matter to be resolved.

61 The respondent’s discretion in representing the complainant required that it exercise its discretion in good faith, objectively and honestly, after a thorough evaluation of the case. Its decision could not be arbitrary, capricious, discriminatory or wrongful. Its representation had to be fair and genuine (see Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509). The complainant has not provided sufficient evidence to show that the respondent breached these principles.

62 Furthermore, the complainant has not presented any evidence that would support a conclusion that he was discriminated against on the basis of any of the grounds prohibited under the Canadian Human Rights Act, R.S.C. 1985, c. H-6, or that he was treated in an arbitrary or capricious manner.

63 The respondent has explained that an evaluation process is in place that prioritizes those cases that have the greatest financial impact on its members and that it has ensured that a means is in place, placing grievances in abeyance, to protect the interests of its members. The complainant is of the view that this violates the strict meaning of the collective agreement; however it is not my role to evaluate whether the respondent is correct in its decisions. My role is to evaluate the process used by the respondent when it exercised its discretionary authority and whether its discretion was exercised consistent with the principles expressed in Canadian Merchant Service Guild.

64 The complainant has not demonstrated that the manner in which the respondent dealt with the grievances is contrary to their obligation to maintain harmonious labour relations.

65 The complainant focused throughout the hearing on the respondent’s failure to enforce the collective agreement when the employer refused to or neglected to comply with it. However, there was no evidence to establish a failure by the employer and by the respondent to bargain in good faith and enter into a collective agreement. Nor was there any evidence to support the allegation that the manner in which the employer and the respondent deal with grievances is contrary to their obligation to maintain harmonious labour relations. As previously stated, the complainant’s burden was to show sufficient evidence, that on the balance of probabilities, the respondent failed to meet its duty of fair representation for one of the reasons described in Canadian Merchant Service Guild. He did not.

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

V. Order

67 Complaint 561-32-612 is dismissed.

68 Complaint 561-32-613 is dismissed.

July 30, 2015.

Margaret T.A. Shannon,
a panel of the Public Service Labour Relations and Employment Board