FPSLREB Decisions

Heard at Winnipeg, Manitoba,
February 18 to 20, 2015.

I. Complaint before the Board

1 The complainant, Valrie Bailey, alleged that the respondent, the Public Service Alliance of Canada, violated section 185 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). She alleged that it did not provide representation at a third-level grievance hearing of a harassment grievance, that she was led to believe that it would represent her for that grievance, that it discriminated against her on the basis that she was no longer a dues-paying member of its organization, and that it behaved in an arbitrary and discriminatory fashion toward her. She alleged that in all its dealings with her, it failed to act in good faith.

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 (“the 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 testified that she is a 64-year-old Jamaican woman of colour. She started working with her employer, Indian and Northern Affairs Canada, in 1982. At some point after 2009, it became Aboriginal Affairs and Northern Development Canada, but it will be referred to as “INAC” for the purposes of this decision. At the time material to this complaint, she was employed by the INAC in a CR-04 position dealing with transfer payments to First Nations.

4 In 2009, the complainant filed a grievance in which she grieved harassment, discrimination and abuse of power (“the harassment grievance”; Exhibit 28).

5 In 2011, the complainant was subjected to an alleged forced retirement and a demotion, which was also to be grieved (“the retirement grievance”), although she did not in fact file a grievance concerning these matters. She assumed that they would be included in her first grievance.

6 A mediation convened for the harassment grievance failed, and the grievance was denied at the second level of the grievance process. It then went to the third level of the grievance process, which required the approval of the respondent’s national headquarters and its representation.

7 Raymond Brossard, a labour relations officer employed by the respondent, was assigned to represent the complainant for the processing of her grievance at the final level in 2011. She never met him in person. She never spoke to him about the third-level hearing of her grievance or about filing the retirement grievance. Her only communication with him was by email.

8 On January 20, 2011, Mr. Brossard emailed the complainant, advising her that no file would be opened in her name until the respondent received all the required documentation from her local bargaining agent representatives. Mr. Brossard requested that this be sent to him by close of business on January 28, 2011 (Exhibit 4).

9 The email was sent to the complainant’s work email address. She was in Jamaica at that time and did not see the email until her return to work in March 2011. She immediately contacted Mr. Brossard and provided the information by mail as requested in March 2011. He confirmed the receipt of the materials on March 23, 2011 (Exhibit 5).

10 According to the complainant, in March 2011, she was still being harassed. She was offered an indeterminate deployment to a CR-03 position effective April 1, 2011, which she accepted on March 28, 2011 (Exhibit 6). According to her, had she not chosen to accept the deployment, she would have been placed in a hallway, without a computer or a phone. The demotion resulted in a substantial reduction to her pay. When she complained about the deployment to the INAC’s director of Human Resources in the Manitoba Region, the complainant was advised that there was nowhere else to place her. She either had to accept a position located in a shared workspace or retire. There were no other options. Rather than accept the demotion and be placed in the hallway, she decided to retire, despite having signed the letter of offer of the CR-03 position.

11 On April 4, 2011, the complainant advised Mr. Brossard by email that she would no longer be employed by the INAC as she had been forced to retire (Exhibit 7). She informed him that she wanted to continue with her harassment grievance at the third level as she felt that her human rights had been and continued to be violated. She wanted his help pursuing the harassment grievance. She received no communication from Mr. Brossard or anyone from the respondent’s Union of National Employees (“the component”) at the respondent’s national headquarters between March 23, 2011, and the end of April 2011. She testified that they ignored her.

12 On May 1, 2011, the complainant again emailed Mr. Brossard (Exhibit 8), inquiring as to the status of her grievance. Between May 1, 2011, and December 30, 2011, she received no communication from him or his office. She was convinced that she was being ignored. When her email to Doug Marshall, the president of the component (Exhibit 9) went unanswered, she concluded that in her words, “even the big boss” was ignoring her.

13 On January 24, 2012, the complainant received an email from Mr. Brossard (Exhibit 10). He advised her that a review of her grievance was required in order to determine where it fit in the list of grievance priorities. The component had received a high volume of grievances in 2011. Priority was to be given to terminations, suspensions and duty-to-accommodate cases. He went on to advise her that until tentative dates were established for hearing her grievance at the third level, it would be held in abeyance. He stressed that it did not mean that her grievance was being ignored or that it had been misplaced. The complainant was upset with Mr. Brossard’s comments; she did not understand why her grievance was not a priority for him.

14 Between January 25, 2012, and May 29, 2012, the complainant received no further correspondence from Mr. Brossard or his office. Again, she felt that she was being ignored.

15 On May 30, 2012, the complainant again emailed Mr. Brossard (Exhibit 11). She wanted to know the status of her grievance files and where she stood in the grievance queue. This time, in the hope of in her words “lighting a fire” under Mr. Brossard, she copied his boss, Franco Picciano. When she received no response, she sent an email directly to Mr. Picciano on July 15, 2012 (Exhibit 12), seeking an update by July 20, 2012. If he failed to comply, she stated that she would direct her inquiry to the INAC.

16 Mr. Picciano replied to the complainant on July 15, 2012, indicating that the respondent’s priority were the 16 000 members of the respondent who had received workforce adjustment notices, 4000 of whom were component members. Mr. Picciano had asked Mr. Brossard if he would provide the complainant with an update when he had a moment (Exhibit 13). Clearly, according to her, she was not a priority for the respondent even though she had been harassed, demoted and forced to retire.

17 Mr. Brossard responded by email to the complainant on July 16, 2012 (Exhibit 14), and pointed out that she had used an incorrect email address for him and that he had not received her inquiry emails. That was the reason she had received no updates in six weeks. He confirmed that her file was not currently on the list of grievances to be heard at the final level in the Manitoba Region. He concluded that it was because she was no longer employed by the INAC. Just to ensure that he had a copy of her grievance, she resent her documents to him on July 30, 2012 (Exhibit 15).

18 Between July 30, 2012, and September 8, 2012, the complainant heard nothing from Mr. Brossard or the component. She followed up again on September 9, 2012 (Exhibit 16). Mr. Brossard again advised her that there was no change to her case (Exhibit 17).

19 Mr. Brossard continued to ignore her, and on November 15, 2012, the complainant demanded to know in detail his plan for proceeding with her third-level grievance hearing by no later than November 23, 2012. She stated that if he failed to proceed immediately on her behalf, she would have no choice but to pursue other avenues, including a complaint to the Public Service Labour Relations Board (“the former Board”) for non-representation (Exhibit 18).

20 The complainant waited until January 6, 2013, for a response. When she heard nothing, she advised Mr. Brossard and Mr. Picciano that as a result of their lack of response to her inquiries, she concluded that the respondent refused to represent her in pursuing her grievance (Exhibit 19). The problem was that she could not pursue it at the third level without the respondent’s support.

21 The next day, January 7, 2013, Mr. Brossard replied to the complainant and advised her that her assumption was incorrect. Her file was still in abeyance pending a full review and analysis and would remain so until the other more pressing files had been addressed. He explained that his focus was on saving as many public service positions as possible and that the workforce adjustment, combined with his grievance hearing schedule, was overwhelming (Exhibit 20).

22 This was the first that the complainant heard of her grievance file being held in abeyance. She had never consented to having it put in that state. As for the analysis, she wondered how long the respondent needed to review and assess a file that was only 60 pages long.

23 Not satisfied with Mr. Brossard’s response, the complainant contacted the INAC and scheduled the third-level grievance hearing herself. She advised Mr. Brossard of the date on February 8, 2013 (Exhibit 21). She expected him to attend and represent her.

24 On February 11, 2013, Mr. Brossard acknowledged his receipt of her February 8 email. He advised her that he was unavailable on the scheduled date and that by scheduling the third-level hearing herself, he presumed that she intended to be self-represented. He asked her to confirm her intentions (Exhibit 22). If she intended to be self-represented at the hearing, Mr. Brossard so authorized her.

25 The complainant did contact Mr. Brossard on February 26, 2013, indicating that he should provide his coordinates to the INAC representative so that he could participate and represent the complainant at the grievance hearing (Exhibit 23).

26 On February 27, 2012, Mr. Brossard advised the complainant that given that she had approval to pursue her grievance without the respondent’s representation, there was no reason for him to participate on March 4, 2013. Her action of scheduling the third-level hearing outside the normal grievance process was interpreted as confirmation of her intention to self-represent and to pursue her grievance (Exhibit 24).

27 The complainant testified that she at no time intended to self-represent. She contacted Mr. Brossard by email on February 28, 2013, with the following inquiry: “Are you saying that you are not going to represent me?”(Exhibit 25). She received no response but still expected him to participate on March 4, 2013.

28 The third-level grievance hearing was held at the complainant’s home. No bargaining agent representative was present. The hearing dealt with her harassment allegations and issues related to demotion, forced retirement and termination. The INAC dismissed all the allegations.

29 In the context of dealing with her grievances, the complainant testified that she could not deal with her local bargaining agent representatives. Mr. Brossard was the only person with whom she could deal. She waited for him to get in touch with her so that she could file a grievance about the termination of her employment, and he never did. Nor did he deal with the harassment grievance in a timely fashion. Even though she was no longer in the workplace, it was important that her harassment grievance be dealt with. It was not just a matter of principle; she also wanted her termination to be included as part of the harassment allegations. The termination was a continuation of the harassment, in her opinion.

B. For the respondent

30 Mr. Brossard has been a labour relations officer with the respondent since 2005. He was assigned to the INAC and other portfolios. In 2011, he was responsible for approximately 5000 members and had approximately 40 active grievance files. At the time of this hearing, he had approximately 133 active grievance files.

31 The complainant’s grievance (Exhibit 28) was brought to Mr. Brossard’s attention in January 2011. After he received it, he emailed the local representative, asking for details and noting discrepancies in the transmittal form. The request for more information (Exhibit 4) sent to the complainant on January 20, 2011, was in response to a fax of the grievance forms on January 14, 2011. In this email, Mr. Brossard summarized what he knew of the situation. He listed the documents that he required to proceed. In order to open a third-level file, he required the grievance form, any transmittal forms, a referral to the final level, any documents supporting the grievance, the steward’s fact sheet and the employer’s responses at all levels. He had not received any of these, although he had received the steward’s report and a copy of the harassment investigation report.

32 Upon her return from Jamaica, the complainant provided Mr. Brossard with approximately 60 pages of material. However, he still needed something to support her allegations, for example, emails between her and the people who she alleged had harassed her.

33 Mr. Brossard did not conduct a review of the documents provided at the time since he was busy dealing with other files. It would have taken him a couple of days to review the file properly and to follow up with the complainant. He asked the INAC to put the file in abeyance to allow him the time to get that done. If the alleged harassment and the alleged forced retirement were connected, it would have been determined as part of his review of the file. When the complainant sent follow up emails, Mr. Brossard did not always respond immediately since, as the file was in abeyance, there was no urgency to respond. However, he did respond eventually.

34 The federal government’s “Deficit Reduction Action Plan” (DRAP) had a great impact on Mr. Brossard’s workload. He was required to sit down with all government departments in his portfolio and identify the number of employees impacted by workforce adjustment. The goal of this project was to save approximately 16 000 bargaining unit jobs.

35 In 2012, the names of those affected by the workforce adjustment were identified. Mr. Brossard’s role then became more involved and demanding. It was to ensure that if a position were declared affected that the department proved that the position was eliminated or that there was a shortage of work.

36 Despite being occupied with workforce adjustment, Mr. Brossard was in contact with the INAC concerning the complainant’s grievance. On March 22, 2011, he confirmed with an INAC labour relations representative that the complainant’s grievance should be held in abeyance. He was to advise INAC Corporate Labour Relations when he was ready to proceed with scheduling the third-level grievance hearing. He had initially advised the INAC on January 14, 2011, that the respondent was not ready to proceed with hearing the complainant’s grievance as he had not received all the information from the region.

37 There are no specified timelines within which a grievance held in abeyance is to be heard. Putting her grievance in abeyance had no impact on the complainant’s rights. She was not asked if she agreed to have it put in abeyance. There was no need to; it was Mr. Brossard’s decision to make.

38 The complainant advised Mr. Brossard on March 23, 2011 (Exhibit 7) that she was no longer employed and that she had been forced to retire. Despite this, she wished to pursue her harassment grievance. Her only grievance was the harassment grievance, which was unrelated to the issue of her retirement. At no time did she indicate that she wanted to pursue the retirement grievance. Being retired had no effect on how her grievance was handled. Mr. Brossard received no documents from her or the respondent’s local representatives indicating that she contested her retirement.

39 The respondent’s national headquarters prioritizes all grievances. Those about terminations, disciplinary action and accommodations issues are top priority. Those about collective agreement violations are put into the queue. Since the complainant’s grievance did not involve disciplinary action or accommodation issues, an analysis of the file was required to assess what needed to be done. Another issue in determining the priority of her grievance was that she was retired and was no longer in the workplace.

40 The complainant alleged that long periods passed during which she heard nothing from Mr. Brossard. She claimed to have sent him emails to which he had not responded. The emails that were not responded to had been sent by the complainant to an incorrect email address. Mr. Brossard did not receive them. Other demands for updates were answered. At one point, she waited for six weeks for a response from Mr. Brossard to one of her inquiries, which according to him was not unusual because of his schedule.

41 January 7, 2013, was the first time that the complainant was advised that her grievance was being held in abeyance. Since she did not agree with this, once she was advised that it was possible to pursue her grievance self-represented, she took it upon herself to communicate directly with the INAC’s labour relations branch in an attempt to have the third-level grievance hearing scheduled. She tried to obtain a hearing date and was successful, and so she advised Mr. Brossard of it. In dealing with Pascal Arcand of the INAC to schedule the hearing, she indicated to him that she was self-represented and that the respondent was no longer taking care of the file. In an email to him, she clearly states that she had no choice but to proceed with representing herself. (See the emails in Exhibits 31 and 32).

42 Despite the fact that the complainant undertook to represent herself, Mr. Brossard confirmed that the matters were in abeyance pending a full review and analysis and the respondent had never indicated that it was refusing to represent her (see his email of January 7, 2013, sent at 06:50; Exhibit 31).

43 Despite being advised that her decision to be self-represented meant that the respondent would not participate, the complainant chose to schedule her third-level grievance hearing. She did notify Mr. Brossard of its date and time (see the email in Exhibit 21). At no time did she indicate to him that she expected him to attend and represent her. In fact, he indicated that the respondent did not see any requirement to be present or to participate given that she had indicated her intention to be self-represented. He did not indicate that he was unavailable on the date she had scheduled for the third-level grievance hearing because of a scheduling conflict. Mr. Brossard also spoke to Mr. Arcand, who advised him that given the fact that the complainant had chosen to be self-represented, there was no need for a respondent representative to attend the meeting she had scheduled with the employer, which is why he did not appear.

III. Summary of the arguments

A. For the complainant

44 The documents speak for themselves. There is no dispute that the respondent did not represent the complainant at her final-level grievance hearing about the alleged harassment and her forced retirement. She is honest and credible and the respondent is not. The respondent claimed that it reviewed her file, but it did not have the full file. Sufficient information was available to enable it to review and assess what was in the file, which is exactly what Mr. Brossard eventually did (Exhibit 24). To conclude that the file was not adjudicable, he must have reviewed it; it consisted of approximately 60 pages of material. This amount of material should not have taken two days to review and analyze. Simply put, Mr. Brossard could not find time in his busy schedule to attend to the complainant’s needs.

45 There were no reasons to support Mr. Brossard’s conclusion that the matters were not adjudicable in his email of February 27, 2013, to the complainant (Exhibit 24). The email was window dressing to create a credible argument that she chose to be self-represented by pursuing her claim against her employer on her own.

46 The complainant has a right as a member of the bargaining unit to file a grievance and to have it heard on a timely basis. Over a two-year period, the respondent did nothing to move her file forward. It tried to justify its inaction by arguing that the workforce adjustment underway at the time was its priority and that it occupied all its manpower.

47 The respondent made no efforts to establish a connection between the complainant’s forced retirement from the INAC and her harassment grievance. Numerous exhibits were submitted in which the complainant asked for an update on the respondent’s efforts on her behalf; none was forthcoming. She was entitled to know the status of her grievances in a timely fashion. The only way she received any response from Mr. Brossard was to contact his boss.

48 Simply put, Mr. Brossard was not doing his job. He was not representing the complainant or acting in her best interests. It is perplexing given that the respondent has the duty to represent its members that he put her file in abeyance without her consent and without telling her. Rather, he provided her with false or misleading responses stating that he was reviewing and assessing her file. He was not aware of her email to the employer advising that she was representing herself (Exhibit 32), so it could not have been part of his decision not to attend the third-level grievance hearing that she scheduled.

49 In spite of her email indicating that she was self-represented, the complainant fully expected that Mr. Brossard would attend the meeting and represent her. That is why she advised him of the date. When he was made aware that she had scheduled the hearing on her own, it was not too late for him to intervene, get things under control and schedule a hearing date for when he was available. His evidence did not pass the “smell test.” He tried to justify his inactivity by putting the blame on the complainant for having taken matters out of his hands.

50 The test for a breach of the duty of fair representation is set out in Jutras Otto v. Brossard and Kozubal, 2011 PSLRB 107, at para 54 (Jutras Otto #1). To breach the duty of fair representation, the bargaining agent’s conduct must be arbitrary, discriminatory or in bad faith.

51 In this case, the respondent acted arbitrarily by failing to review the complainant’s file, by failing to respond to her emails, by failing to analyze the materials she provided and by putting the file in abeyance. It should have investigated her allegations of her forced retirement and its link to her harassment grievance yet did nothing. Mr. Brossard’s arbitrary treatment of her file amounted to gross negligence.

52 The fact that the respondent prioritizes termination, discipline and accommodation grievances in its grievance triage is evidence of the discriminatory treatment the complainant received. For 22 months, nothing was done on her file, not even an assessment. Favouring one group of grievances over another is discrimination.

53 By agreeing with the INAC to put the complainant’s file in abeyance and by not informing her of it until 2013, Mr. Brossard acted in bad faith. He made representations that he was reviewing the file and that he would schedule the hearing while all the time he knew that the file was in abeyance. He did not conduct himself honestly with the complainant.

54 The complainant seeks an order from the Public Service Labour Relations and Employment Board (PSLREB) that the time limit for filing her retirement grievance be extended and that her harassment grievance be reheard, following which that the matters be referred to adjudication. The respondent should be ordered to secure the employer’s consent, and if no consent is forthcoming, the respondent should be ordered to apply to the PSLREB for an extension of the time limits for the harassment grievance. She asked that her request for an extension of time to file her termination grievance be granted as it is not within the parameters of section 190 of the Act. These remedies are consistent with those the former Board granted in Jutras Otto v. Brossard and Kozubal, 2012 PSLRB 15 (Jutras Otto #2).

B. For the respondent

55 The true test for a failure to meet the duty of fair representation was set out by the Supreme Court of Canadain Noël v. Société d’énergie de la Baie James, 2001 SCC 39. The former Board adopted it in Jutras Otto #1 and Ménard v. Public Service Alliance of Canada, 2010 PSLRB 95. In neither Jutras Otto #1 nor Ménard was the respondent found to have committed discriminatory or bad faith actions. The respondent submits that the issue in both was whether the time taken to process a grievance was arbitrary. The respondent further submits that on its application of the test in Noël,the former Board determined it was not.

56 The onus is on a complainant to establish that a bargaining agent failed to meet its duty of fair representation (see Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107, at para 31). The PSLREB’s role is to rule on the bargaining agent’s decision-making process and not on the merits of its decision (see Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28, at para 17).

57 The complainant did not discharge that onus. The employer attempted to resolve the harassment grievance. When it was unsuccessful, her harassment allegations were investigated. She did not ask the respondent to assist her during the investigation process, although it did assist her at mediation. When her grievance made its way to the third level of the grievance process, Mr. Brossard was assigned to deal with it from the respondent’s national headquarters.

58 As of January 23, 2011, he was the only person authorized to schedule a third-level hearing involving the respondent as the INAC was within the portfolio of employers with whom he dealt. Shortly after he received the file from the local representatives, he wrote to the complainant and asked for more information (Exhibit 4). Specifically, he requested all information supporting the allegations, not just a list of allegations. She testified that she never provided these documents. Her case was complex, requiring analysis in order to prepare and effectively present it.

59 Discrimination and harassment are inherently difficult to prove and require a great deal of time from the respondent’s employees, like Mr. Brossard. At the relevant time, he had a very heavy caseload, occasioned by the imminent layoff of thousands of members of the respondent as a result of the DRAP.

60 It is impossible in hindsight to know what would have happened had the complainant not retired in 2011. The critical incident is that she left her employment, and in the priority of grievance files, had she still been in the workplace, her file would have been further up in the queue. Since she was no longer in the workplace, she was no longer being harassed which is exactly what she sought in her grievance (Exhibit 28). The respondent submits that even had the grievance been allowed, the employer would have had no relief to offer since she was no longer in the workplace.

61 Nowhere did the complainant refer to forced retirement in her grievance; nor did she file a second grievance alleging she had been forced to retire. The complaint that was filed (Exhibit 1) makes no reference to the allegation that the respondent refused to deal with the retirement grievance. The only grievance it refers to is the harassment grievance. It makes no sense that the complainant did not know to approach her local representative to file a termination grievance. She clearly knew the process when she approached the local representatives to file a harassment grievance. When she alleged that she had been forced to retire, she was simply advising Mr. Brossard that she was no longer in the workplace but still wanted her harassment grievance pursued. She did not give a direction to file the retirement grievance. Employees initiate individual grievances. A bargaining agent does not force an employee to file a grievance.

62 There is no evidence before the PSLREB that the complainant was forced to retire. The payroll document submitted as Exhibit 27 indicated that she retired due to a workforce adjustment. Her allegation that she accepted a CR-03 position against her will under threat of termination is not credible. Nowhere in the payroll document does she note duress, coercion or disagreement. Her testimony was vague, inconsistent and all over the place. It is not possible to conclude that her retirement was a live issue.

63 Even if the PSLREB concludes that the complainant requested the retirement grievance be filed and that the respondent did fail to file it, that would change the complaint’s basis, and the rule in Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.), would apply. The complainant could not change the grounds of her complaint at the hearing.

64 The complainant’s argument that the retirement grievance was a continuation of the harassment grievance is also without merit. When dealing with continuing grievances, the question relates to timelines, not to adding issues to an existing grievance.

65 When undertaking to represent an employee, a bargaining agent must do so in good faith, without serious negligence and without hostility towards the employee. The bargaining agent’s discretion must be exercised in good faith, after a thorough study of the case and after pondering all relevant considerations, taking into account the significance of the grievance and its consequence to the employee and the bargaining agent’s legitimate interests, and with regard to proper motives only (see Savoury v. Canadian Merchant Service Guild, 2001 PSSRB 79, at para 126). In this case, there is no doubt the complainant wanted her grievance heard, but her desire had to be considered in conjunction with Mr. Brossard’s workload, the documents submitted or not submitted, as the case might have been, and the status of the complainant’s grievance, which was in abeyance.

66 Mr. Picciano told the complainant that Mr. Brossard’s workload was overwhelming (Exhibit 13) due to the workforce adjustment facing government departments at the time. During 2011 and 2012, the DRAP was being implemented, and workforce adjustment consumed most of the respondent’s resources. Mr. Brossard’s handling of the file was not discriminatory, arbitrary or in bad faith.

67 The respondent did not refuse to represent the complainant but did advise her that if she intended to be represented, she would have to wait. Merely asking her if she intended to proceed and be self-represented did not constitute a refusal to represent her.

68 There could have been more communication, but even this does not constitute a breach of the duty to represent. The communications between Mr. Brossard and the complainant did not end up in a complete vacuum (see the emails in Exhibits 4, 5, 10, 14, and 22). The process used to triage grievances is consistent across the component. The respondent’s employees who use this triage process do not act arbitrarily, discriminatorily or in bad faith.

69 It might well have taken longer than the complainant would have liked for her grievance to work its way through the queue. Ideally, it would have moved quicker; however, other priorities arose, which were not arbitrary or within the respondent’s ability to control. The respondent took the appropriate action to protect the complainant’s grievance by putting it in abeyance, which suspended the timelines and preserved her right to have her grievance heard. It is an option available to the parties by mutual consent, pursuant to the collective agreement (Exhibit 30).

70 It is evident from the fact that the complainant was able to schedule a third-level grievance hearing on her own that her grievance was not affected by being held in abeyance. Even had she not decided to self-represent, eventually, her grievance would have been heard at the third level. The failure to advise her that the respondent had agreed with the employer to put her file in abeyance did not amount to a breach of the duty of fair representation.

C. Complainant’s rebuttal

71 According to Savoury, when assessing whether a bargaining agent has failed its duty of fair representation, an adjudicator must examine the severity of the grievance along with how much time was taken to address it.

72 In this case, Mr. Brossard took no action on the complainant’s file from January 2011 to January 2013. If he needed additional information concerning her grievance, he had other means available to secure it than waiting for her to provide it. Since he was representing her, he had a duty to investigate, including when she alleged that she was forced to retire. Plainly put, Mr. Brossard did not take her file seriously. He should have followed up with her concerning her allegation that she had been forced to retire. He should have anticipated she would want that allegation addressed as well.

73 By scheduling the third-level grievance hearing on her own, the complainant was merely queue jumping. Despite the representation to the employer that she was self-represented, she still expected the respondent to represent her at the hearing. She was misled when she was advised that she could pursue the grievance on her own since it was not adjudicable. If Mr. Brossard truly intended to represent her, he could have delayed the scheduled third-level hearing when he was advised of it and concluded that he was not available to attend. Giving the complainant the option to be self-represented was the same as not representing her. He misled her.

74 Mr. Brossard argued that there was no downside to the complainant’s file being held in abeyance, but it impacted her; she was waiting for her third-level grievance hearing.

IV. Reasons

75 Simply put, this is a case in which the complainant was dissatisfied with the amount of time it took the respondent to address her grievance at the final level of the grievance process. She was dissatisfied with her place in the respondent’s queue of outstanding grievances, and she took matters into her own hands and scheduled the desired hearing herself. The results of taking matters into her own hands were not as she had hoped, so she sought another kick at the can by attacking the respondent’s handling of her grievance in this forum. The respondent, on the other hand, would have her hoisted by her own petard; she must bear the consequences of undertaking to be self-represented rather than waiting her required time in the grievance queue.

76 The complainant argued that she merely represented herself in the scheduling process, yet in her email to the employer (Exhibit 32), she clearly indicates her intention to be self-represented and to proceed with the third-level hearing, as follows:

Please find attached copies of a grievance presented to management, AANDC (INAC) Manitoba Region of or about October 28, 2009.

Also attached are the allegations and transmittal(s).

Considerable time has elapsed since this grievance was transmitted to third level. Several attempts to get the union rep to advise on a date for taking this grievance forward for a third level hearing have to date proved unproductive. Notwithstanding, the nature of the grievances does not require the support of the union, therefore, I am hereby advising I am left with no choice but to proceed at this time representing myself, and hereby request that a third level hearing be slated at the earliest convenience.

I can be reached at the phone number below or by return email.

Thank you

Respectfully Submitted

Valrie Bailey

[Phone number redacted]

77 At that point, despite the fact that the complainant had advised Mr. Brossard of the dates, she had clearly assumed responsibility for carrying her own grievance file. Merely communicating the dates to Mr. Brossard and expecting that he would attend, particularly when he had already advised her that her grievance would be addressed according to the respondent’s established list of priorities, does not equate to her asking him to represent her and him refusing.

78 While Mr. Brossard’s lackadaisical approach to communicating with the complainant leaves much to be desired and has caused her much angst, it does not amount to a failure of the duty of fair representation. The respondent had a clearly established list of priorities against which grievances were evaluated and placed in the queue. As the Board noted in Perron v. Customs and Immigration Union, 2013 PSLRB 13, at para 25, “nothing prevents a union from prioritizing the order in which it provides grievance representation, as long as the order is based on neither arbitrary nor discriminatory criteria.” Furthermore, grievance administration is only one of the many obligations of a bargaining agent that are prioritized. Between 2011 and 2013, the respondent’s priority was workforce adjustments affecting approximately 16 000 of its members. Mr. Brossard’s manager confirmed as much as follows in his email correspondence to the complainant, who sought his intervention (Exhibit 13):

Good afternoon Val,

As you can appreciate, the priority has been WFA. Over 16,000 members of PSAC have received affected notices - approximately 4,000 UNE members.

I will ask Ray to provide an update, via this email, when he has a moment. However, I can tell you he’s working weekends to keep on top of his workload.

I appreciate your continued patience.

79 It is not the PSLREB’s role to evaluate the validity of the respondent’s priorities and how it chose to address them. Its “role is to determine whether the respondent acted in bad faith or in an arbitrary or discriminatory manner in the decision-making process associated with the representation issue” (see Jutras Otto #1, at para 61). According to Savoury, at para 127:

127 In the final analysis, the union’s decision vis-à-vis the representation of its members will not be disturbed absent the elements of bad faith, or actions which are arbitrary, capricious, discriminatory or wrongful, providing the union has met the criteria above.

80 The criteria to which the adjudicator referred are those identified as the test for the existence of a breach of the duty of fair representation set out in Noël and adopted by the former Board in Jutras Otto #1 and Ménard.

81 The onus was on the complainant to establish that the respondent behaved in a manner that was in bad faith or that Mr. Brossard’s actions as its representative were arbitrary, capricious, discriminatory or wrongful. The former Board clearly stated as much in Ouellet, at para 31, as follows:

In a complaint under section 187, the grievor bears the onus of presenting evidence sufficient to establish that the bargaining agent failed to meet its duty of fair representation.

82 In proceedings before the PSLREB, the standard of proof is the civil standard. The question then becomes has the complainant proven, on the balance of probabilities, that the respondent failed to meet its duty of fair representation to her? The testimony and the documentary evidence submitted established that she was dissatisfied with her place in the grievance queue and that she wished to have her grievance dealt with in a more expeditious fashion. To that end, she took the file out of the respondent’s hands and pursued it on her own, as was her right, given the nature of the grievance.

83 There is insufficient evidence that Mr. Brossard acted in a capricious, discriminatory or wrongful manner. The evidence established that he was very busy and that he did not consider a grievance that was in abeyance a priority. However, his actions were careless. He should have informed the complainant at the first opportunity that her grievance was placed in abeyance. She should not have had to have gone to his supervisor to receive an explanation for the delay in processing her grievance and to be informed of the priorities of the respondent. As well, Mr. Brossard should have been forthright with the complainant that he was not in any position, given his workload and the priorities identified above, to conduct a full review and analysis of her grievance for a considerable length of time. Moreover, he should not have left the impression with the complainant that the reason that tentative dates for hearing had not been obtained rested with the INAC. He could have, and should have, communicated all of this to the complainant in a more sensitive and timely manner. Had he done so, the complainant may have chosen much earlier to proceed to the third level grievance hearing without assistance from the respondent, or have been able to make an informed decision as to whether to wait for this representation. Nevertheless, I am not satisfied that in its representation of the complainant, the respondent acted in a manner that was either arbitrary, discriminatory, seriously negligent, or in bad faith, as those concepts have been described in Noël.

84 Counsel for the complainant argued that Mr. Brossard’s arbitrary handling of her file and his failure to deal with her harassment grievance in a timely manner and to include a grievance related to an alleged forced retirement as evidence of her ongoing harassment amounted to gross negligence in handling her file. While I have found that his actions were careless, there is insufficient evidence to support this argument.

85 The PSLREB’s role is to rule on a bargaining agent’s decision-making process and not on the merits of its decision, as stated as follows in Halfacree, at para 17:

17. The respondent, as bargaining agent, has the right to refuse to represent a member, and a complaint to the Board is not an appeal mechanism against such a refusal. The Board will not second-guess the bargaining agent’s decision. The Board’s role is to rule on the bargaining agent’s decision-making process and not on the merits of its decision. For the Board to intervene, a complainant should first, at a minimum, establish a violation of section 187 of the Act.

86 In this case, the respondent’s decision-making process resulted in the complainant’s harassment grievance being triaged and placed in a queue. It was held in abeyance until such time as the parties could address it by mutual agreement, consistent with the applicable collective agreement. It is not the PSLREB’s role to determine the appropriateness of the respondent’s priorities absent sufficient evidence that they were arbitrary, discriminatory or established in bad faith. Merely because the complainant’s grievance was placed lower in a queue while others were placed higher is a function of the triage process, not evidence of discriminatory, arbitrary or bad faith conduct by the respondent.

87 As to whether the respondent should have pursued a grievance on behalf of the complainant related to an alleged forced retirement, there is insufficient evidence to support that she asked the respondent to pursue such a grievance on her behalf. The only communication she sent about her alleged forced retirement was when she advised Mr. Brossard as follows via email (see Exhibit 7):

Hi Raymond,

As of April 4^th I will no longer be employed by Indian and Northern Affairs reason being I was forced to retire. However I would like to continue my third level grievance as I feel that my human right was and is still violated.

I am on leave on until then so please send all corresponding to this email address or phone me at xxx-xxx-xxxx.

Thanks,

Val

 [Phone number redacted]

[Sic throughout]

88 Nowhere in this correspondence did the complainant ask the respondent to have a grievance pursued on her behalf with respect to her retirement.

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

V. Order

90 The complaint is dismissed.

July 7, 2015.

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