FPSLREB Decisions

REASONS FOR DECISION

Complaints before the Board

1        On October 22, 2014, Joseph Bate (“the complainant”) made a complaint against the Public Service Alliance of Canada (“the respondent”). He alleged that it breached its duty of fair representation by refusing to represent him in connection with accommodation issues he had raised with his employer. In that complaint, the complainant sought unspecified damages in the amount of $250 000 and an apology from the respondent as remedies.

2        On April 7, 2015, the complainant made another complaint against the respondent, alleging that it had once more breached its duty of fair representation by refusing to represent him in connection with two grievances. In that complaint, the complainant sought unspecified damages in the amount of $100 000 and an apology from the respondent as remedies.

3        Both complaints were filed under paragraph 190(1)(g) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). That provision reads as follows:

190 (1) The Board must examine and inquire into any complaint made to it that

…

(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

4        Section 185 of the Act defines an unfair labour practice as anything prohibited by subsection 186(1) or (2), section 187 or 188, or subsection 189(1). The provision of the Act referenced under section 185 that applies to these complaints is section 187, which reads 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.

5        In essence, section 187 was enacted to hold employee organizations and their representatives to a duty of fair representation, a duty that, according to the complainant, the respondent did not fulfill when it refused to provide him with representation in connection with his grievances.

6        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 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 Act before November 1, 2014, is to be taken up and continue under and in conformity with the Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2. Further, pursuant to section 395 of the Economic Action Plan 2013 Act, No. 2, a member of the former Board seized of this matter before November 1, 2014, exercises the same powers, and performs the same duties and functions, as a panel of the Board.

The hearing

7        On December 4, 2015, the parties were notified that the hearing of these matters would be held in Toronto, Ontario, from March 21 to 23, 2016. A notice of hearing confirming those dates was also sent to the parties on February 5, 2016.

8        On February 24, 2016, the complainant wrote to the Board and indicated the following: “Unfortunately due to my illness, I will not be able to attend the hearing. I hope the cases can still be heard with the evidence presented to date.” The complainant did not submit any documents or particulars in support of that statement; nor did he seek a postponement of the proceedings.

9        On March 21, 2016, the respondent attended the hearing and was ready to proceed. The complainant did not attend. In light of his previous statement and of the fact that no documents or particulars had been submitted to justify his absence, I decided to proceed with the hearing in his absence.

10        The respondent brought a motion seeking the dismissal of both complaints on the basis that the complainant had failed to establish a prima facie case.

Summary of the arguments

11        The respondent submitted that there is simply no factual foundation to support these section 190 complaints and that the complainant had failed to meet his onus of establishing grounds for an unfair labour practice in each one.

12        The respondent added that the complainant’s materials failed to establish a prima facie case that it had acted in bad faith or in a manner that was arbitrary or discriminatory in its representation of him or in any of its dealings with him.

13        The respondent argued that there is no absolute right to union representation and that bargaining agents benefit from significant latitude in determining which matters they will support. The respondent recognized that while they are required to act fairly, genuinely, and with integrity and competence when making such determinations, in his materials, the complainant demonstrated no failure by the respondent to meet those requirements in these matters. His failure to attend the hearing made it impossible for him to meet his burden of establishing such a failure. It further made it impossible for the respondent to fully defend itself, given its inability to cross-examine the complainant or to challenge his documentation.

Reasons

14        As I mentioned, the complainant was notified of the dates and times of the hearing and chose not to attend. He did not seek a postponement. The respondent’s representative and witness both travelled to Toronto, at the respondent’s cost, and were ready to proceed.

15        As the former Board stated in Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107, at para. 31, the burden of proof in a complaint under section 187 of the Act rests with the complainant. That burden requires the complainant to present evidence establishing that, on a balance of probabilities, the respondent failed to meet its duty of fair representation.

16        The Board and its predecessors have often commented on unionized employees’ right to representation. In Halfacree v. Public Service Alliance of Canada,2009 PSLRB 28 at para. 17, the former Board rejected the idea that it was an absolute right, as follows:

[17] The respondent, as a 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….

17        The Board’s role is to determine whether the respondent acted in bad faith or in a manner that was arbitrary or discriminatory in its representation of or dealings with the complainant.

18        As the former Board stated in Manella v. Treasury Board of Canada Secretariat and Public Service Alliance of Canada, 2010 PSLRB 128at para. 38, “[t]he bar for establishing arbitrary conduct — or discriminatory or bad faith conduct — is purposely set quite high.” That bar required the complainant in this case to establish a violation of section 187 of the Act, which in turn required him to put forward the factual foundation supporting the allegation that the respondent acted in a manner that was arbitrary, discriminatory, or in bad faith. I find that the complainant offered no such foundation.

19        Based solely on the facts alleged in the complaints, I am unable to find a foundation of arbitrary conduct, discriminatory treatment, or bad faith on the part of the respondent sufficient to establish a violation of section 187 of the Act. To meet his burden, the complainant was required to adduce sufficient evidence to show that the respondent had somehow failed to meet its duty of fair representation. He certainly did not help his case by not appearing at the hearing and by allowing the matter to be heard in absentia (in his absence). I simply cannot rely on the documents attached to the complaints, as those are not properly before me and have not been subjected to any form of challenge by the respondent. In any event, those documents in my view do not establish a prima facie case in either complaint.

20        I find that the complainant failed to present evidence outlining the details of his complaints to the extent necessary to establish how the respondent’s acts or omissions violated section 187 of the Act. I can conclude only that he does not intend to pursue his complaints and that, for all intents and purposes, he has abandoned them.

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

Order

22        The complaints are dismissed.

April 4, 2016.