FPSLREB Decisions

Heard at Toronto, Ontario,
May 31 and June 1 and 2, 2016.

REASONS FOR DECISION

I. Complaints before the Board

1        The complainant, Nichelle Jackson, filed two complaints against the respondents, the Public Service Alliance of Canada and its component, the Customs and Immigration Union (jointly referred to as “the bargaining agent”), alleging that it failed in its duty of fair representation, contrary to section 187 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA), by not pursuing a job description grievance (“grievance G12-3971-108705”) she had filed at the final level of the individual grievance process in a timely fashion (complaint in PSLREB File No. 561-02-609 filed in March 2013) and by refusing to pursue three job description grievances she had filed, because of the unlikely possibility that changes to her job description would result in an upward reclassification (complaint in PSLREB File No. 561-02-766 filed in September 2015).

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 PSLRA before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

3        The complainant’s presentation of her evidence was very confusing. She had to be asked to repeat her evidence many times, and intervention was required on numerous occasions for clarification. She often used contradictory words and phrases in the same sentence. Initially, she intended to present no viva voce evidence, but instead to submit some 553 pages of material as her evidence. After she decided to present her evidence orally, she was given an adjournment to organize it and to cull from the 553 pages anything that did not directly relate to the case before the Board.

4        The complainant was at all material times employed at the Canada Border Services Agency (CBSA) at its Billy Bishop Toronto City Centre Airport in Toronto, Ontario, as a program delivery clerk under job description “CR3787” (Exhibit 1, tab 18A), which was subsequently reviewed and replaced with the generic job description entitled “Program Delivery Support Clerk CRC456” (“CRC456”; Exhibit 1, tab 18D).

5        The complainant disagreed with the content of both job descriptions and filed a series of job description grievances. The first, bearing file number G11-3971-106461, was the subject of a complaint she had filed earlier against the bargaining agent, which the former Board dismissed in Jackson v. Customs and Immigration Union and Public Service Alliance of Canada, 2013 PSLRB 31. For this reason, no evidence was allowed related to file G11-3971-106461 other than that it was one of the individual grievances impacted by the respondents’ decision that is the subject of complaint 561-02-766.

6        The complainant filed another job-content grievance when she received her new job description, CRC456, in 2012. As there was no union steward at her work location, she sent her individual grievance forms to the component’s national office and requested that it authorize her grievance (Exhibit 2, tab 14, page 57). Some months later, the component forwarded the documents to Local 024, the local branch of the Customs and Immigration Union in Toronto.

7        Upon her return from vacation in late August 2012, the complainant was met with a request from her employer, the CBSA, to consult at the first level of the individual grievance process (Exhibit 2, tab 15). As she was unaware then that her grievance had been filed in her absence, she requested it be placed in abeyance for two days so that she could verify the paperwork.

8        She then requested an extension to the deadline for consultation until December 28, 2012, pursuant to article 22 of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services Group (all employees), with an expiry date of June 20, 2014 (“the collective agreement”), which the bargaining agent and the Treasury Board, agreed to. After that, she requested that it proceed directly to the third level of the individual grievance process, pursuant to clause 18.23 of the collective agreement. The employer insisted on consulting at the first level before the grievance moved on to the third level. When the complainant did not reply to the employer’s request to meet at the first level after December 28, 2012, it advised her that she had abandoned her grievance by refusing to agree to hold it in abeyance after December 28, 2012.

9        This puzzled the complainant, as she had not asked for it to be held in abeyance; rather, she had asked for an extension of the time limits pursuant to clause 18.22 of the collective agreement (Exhibit 2, tab 15, page 63). She explained her version of the situation in an email dated January 7, 2013 (Exhibit 2, tab 16, page 66), and asked the bargaining agent that her individual grievance be forwarded to the third if not the final level of the grievance process.

10        On January 8, 2013, the complainant received an email from Richard Sutcliffe, first vice-president of Local 024, clarifying the situation and asking about her intentions with respect to pursuing her individual grievance (Exhibit 2, tab 16, page 72). She responded that same day, asking him to action the transmittal forms she had attached, which were signed by a representative of the component’s national office and returned to Local 024 for processing on January 8, 2013 (Exhibit 2, tab 18, page 83). The complainant’s intention was to move grievance G12-3971-108705 to the final level of the grievance process, but the national office indicated it should proceed to third level. The employer continued to insist on consultation at the first level, which made no sense to the complainant.

11        No consultation occurred with respect to grievance G12-3971-108705 at either the third or the fourth level of the grievance process. The complainant filed complaint 561-02-609. The bargaining agent’s response to it was that grievance G12-3971-108705 was still in abeyance and could still be heard as Local 024 had an abeyance protocol in place with the employer that protected the complainant’s rights (Exhibit 1, tab 3).

12        In December 2014, the employer contacted the bargaining agent to determine the status of the complainant’s individual grievance (Exhibit 2, tab 20). The bargaining agent indicated that it wanted to consult at the final level of the grievance process but that it needed copies of the files. This was the last communication about grievance G12-3971-108705 until the complainant received a letter from Bruno Loranger, a labour relations officer employed by the component, indicating that her grievances were being withdrawn (Exhibit 1, tab 5, page 5). After receiving it, she filed complaint 561-02-766.

13        Mr. Loranger’s letter was the first communication the complainant had received from the bargaining agent since November 2014. She never received any request from anyone associated with the bargaining agent for information to assist Mr. Loranger in his task of assessing job description grievances related to job description CRC456. In fact, she had never even heard of Mr. Loranger before receiving his letter. In it, he advised a group of employees in the bargaining unit, including the complainant, that the bargaining agent would not pursue their job description grievances further as any job description changes, if implemented, would not result in upward reclassifications.

14        The complainant had no idea why this was happening. She responded to Mr. Loranger that she was going to file a complaint against the bargaining agent because her job description grievances were being assessed against others with the same job description who did not perform the same tasks as she did. Only once she filed complaint 561-02-766 did she request particulars of why her grievances had been withdrawn. She made no attempt to resolve the matter before filing her complaint. In September 2015, after she filed complaint 561-02-766, an audit report issued by the employer indicated that clerks at her level were doing tasks for which they were not authorized (Exhibit 2, tab 28, page 108).

15        In cross-examination, the complainant’s attention was brought to a series of emails she exchanged with her manager concerning scheduling the first-level consultation for grievance G12-3971-108705 (Exhibit 1, tab 11). In it, she requests that the matter be put into abeyance immediately (Exhibit 1, tab 11, page 5), following which she requested an extension of time limits until December 28, 2012 (Exhibit 1, tab 11, page 2). Management agreed to extend the time limits to meet at the first level of the individual grievance process, as did the bargaining agent.

16        The file was to resume on December 28, 2012. On February 8, 2013, Richard Sutcliffe, in response to an email from the complainant, followed up with her concerning the status of grievance G12-3971-108705. He advised her that it was in abeyance because she had not indicated whether she would agree to meet with the employer at the first level of the individual grievance process. On January 8, 2013, Mr. Sutcliffe had asked the complainant to confirm whether his summary of the status of her grievance was accurate (Exhibit 1, tab 14, page 6). She responded at length to his email, and on January 9, 2013, he replied with a proposed plan (Exhibit 3), which included meeting at the first level by January 11, 2013, following which that grievance could be moved along in the manner she desired.

17        The complainant never advised the employer of her willingness to meet at the first level of the individual grievance process as Mr. Sutcliffe suggested in his January 9, 2013, email. She did not want to meet at the first level at that time. Mark Weber, then-president of Local 024, emailed her on February 8, 2013, in an attempt to get grievance G12-3971-108705 moving (Exhibit 4). She did not follow up with his suggestion that she advise the employer that she wanted to have her grievance taken out of abeyance because she had never requested that it be put in abeyance in the first place.

18        As part of his role, Mr. Sutcliffe helps grievors present their individual grievances at the third level of the grievance process. He is also responsible for ensuring grievances are transmitted through the different levels, and he schedules grievance consultations. When employees want to file individual grievances, they should first consult their local stewards. In the event that a workplace has no local steward or he or she is unavailable, a list of the local executive’s members is posted on the bargaining agent’s bulletin board in that workplace so that any employee can obtain assistance with the grievance process.

19        The third level of the individual grievance process for the CBSA in the Toronto Region is clogged with outstanding grievances. If the employer is unavailable to meet at the third level, the grievance is transmitted to the fourth level. From that point, the component’s national office is responsible for it. It is exceptionally rare that a grievor would send grievance forms and transmittal slips to the national office as the complainant did, bypassing Local 024, as the national office would be unaware of what was going on in the region; it is Local 024’s role to provide grievance related services at this level.

20        The President of Local 024 received an email from the national office advising him of these peculiar circumstances, which he forwarded to Mr. Sutcliffe, who consulted with the employer after the December 28 expiry of the abeyance period (which the complainant referred to as an extension of the time limits and not an abeyance period) and requested that grievance G12-3971-108705 be transmitted to the final level of the individual grievance process (Exhibit 1, tab 14, page 3). Article 18 of the collective agreement allows a grievor to bypass either the second or third levels, but in this case, the employer insisted that consultation occur at the first level (Exhibit 1, tab 14, page 4).

21        Mr. Sutcliffe forwarded this response to the complainant and asked her if she would agree to meet with the employer at the first level of the individual grievance process. She responded (Exhibit 1, tab 14, page 5) by providing a history of grievance G12-3971-108705 but did not indicate if she agreed to meet with the employer at the first level as requested. As her intentions were unclear from her email, Mr. Sutcliffe put together a proposed plan of action to get the grievance to the fourth level as she requested while still meeting the employer’s demand for consultation at the first level (Exhibit 3). Since the grievance came out of abeyance on December 28, 2012, if no consultation at the third level took place within 10 days, the grievance could then have been sent to the final level, as was her intent.

22        The complainant’s response to this suggestion did not indicate whether she agreed (Exhibit 3). From the employer’s and the bargaining agent’s perspectives, the individual grievance remained in abeyance pending a clear indication as to whether she would meet at the first level of the grievance process. She emailed Mr. Sutcliffe on February 8, 2013, demanding to know where her grievance stood.

23        Mr. Sutcliffe replied to the complainant the same day and advised her that her grievance was still in abeyance because she had not confirmed whether she had ever responded to the employer’s request to meet at the first level of the individual grievance process. He was not convinced that she was interested in consulting at any level below the final level. Her response to his email had been angry. It appeared to him that she misunderstood the concept of abeyance and how grievances held in abeyance were handled. She clearly indicated to Mr. Sutcliffe that Local 024 was to take no further action on grievance G12-3971-108705, and as a result, it remains in abeyance.

24        Mr. Sutcliffe had concerns over ongoing discussions with the complainant. He was not sure what level of the individual grievance process was to be actioned. He did not know her intent, so he erred on the side of caution, and the matter remains in abeyance to this date. As she was advised in the bargaining agent’s response, the matter can still proceed once she indicates her intent (Exhibit 1, tab 3).

25        In 2015, Mr. Loranger was asked to assess 12 individual grievances, including the complainant’s, to determine whether the bargaining agent should withdraw its support for them. They were all job description grievances, which the introduction of job description CRC456 might have resolved.

26        Job-content grievances are not treated the same as other individual grievances. When the component’s national office receives a job-content grievance, a letter is sent to the grievor, asking for all relevant information to be submitted to the bargaining agent for review (Exhibit 1, tab 15). Based on that information, the grievance is assessed. In addition, the employer is asked to provide the bargaining agent with the current job description and classification rationale (Exhibit 1, tab 18A to D), both of which are assessed in light of a grievor’s information.

27        The complainant did not submit any information in response to either the August 2, 2012, letter or the March 7, 2013, follow-up email requests (Exhibit 1, tab 15). Based on the information from other grievors, he concluded that the grievors were of the opinion that they should be classified at the CR-05 level rather than the CR-04 level. Mr. Loranger reviewed the employer’s classification rationale and the benchmark positions and the job descriptions, which indicated that the grievors’ work lacked the complexity required to warrant an upward classification. In addition, the grievors’ materials lacked mention of any supervisory responsibilities. Consequently, he advised the grievors including the complainant that the bargaining agent was withdrawing its support for their grievances and that they were being withdrawn (Exhibit 1, tab 5, page 5). In his letter, he advised the grievors that if they felt that he had missed something, they should contact him by August 21, 2015.

28        The complainant responded (Exhibit 1, tab 5, page 14). Her tone was angry, and she was clearly upset by Mr. Loranger, stating in two places in the letter that she wanted no further contact from the bargaining agent on this matter. Consequently, Mr. Loranger had no further contact with her.

29        As Mr. Loranger explained, under article 54 of the collective agreement, on written request, an employee must be provided with a complete and current statement of the duties and responsibilities of his or her position. It does not guarantee them a job description that includes a laundry list of duties. According to Mr. Loranger, to be successful at adjudication, the job description must differ substantially from the grievor’s current duties. Mr. Loranger determined that for job descriptions CR3787 and CRC456, such a discrepancy did not exist. Mr. Loranger would have explained this to the complainant, but based on the tone of her email and her directions that she not be contacted further, he did not.

III. Summary of the arguments

A. For the complainant

1. Complaint 561-02-609

30        The respondent acted arbitrarily and in bad faith as steps that are normally taken in the individual grievance process were foregone or superseded by additional protocols and agreements with the employer. The respondent tried to make the complainant responsible for processing grievances, which is arbitrary, according to Noël v. Société d’énergie de la Baie James, 2001 SCC 39, and Ménard v. Public Service Alliance of Canada, 2010 PSLRB 95. Making the complainant responsible for enforcing an agreement made with the employer outside the collective agreement, which was unwritten and known only to the respondent, meets the definition of “arbitrary” in Ménard,at para. 22, citing Noël,at para. 50, as follows:

The concepts of arbitrary conduct and serious negligence ... refer to the quality of ... representation. The inclusion of arbitrary conduct means that even where there is no intent to harm, the union may not process an employee’s complaint in a superficial or careless manner. It must investigate the complaint, review the relevant facts or seek whatever advice may be necessary; however, the employee is not entitled to the most thorough investigation possible....

31        When the complainant indicated her intention to move forward with her individual grievance, Mr. Weber and Mr. Sutcliffe told her to speak to Labour Relations to get things moving. The information that the respondent provided to her was accurate in terms of the timeliness for transmitting grievances, but it was needlessly careless in how it assigned tasks to her.

2. Complaint 561-02-766

32        Mr. Loranger’s examination of the grievances about job descriptions CR3787 and CRC456 was pursued only from the perspective of whether a classification grievance would be successful. He did not consider the impact of his decision on the complainant. His examination was thorough, but his focus on reclassification precluded adding tasks, which would not have impacted her classification but were important to her, even when she provided evidence to support her grievance.

33        The Supreme Court of Canada, in Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509, stated that when deciding whether to support a grievance, a bargaining agent must take into account the significance and importance of the grievance to the grievor. Tasks may be added to a job description even when doing so does not result in a reclassification (see Aphantitis v. Treasury Board (Department of Justice), 2014 PSLRB 85).

34        A bargaining agent is entitled to make a wrong decision so long as it is not arbitrary (see McFarlane v. Professional Institute of the Public Service of Canada, 2015 PSLREB 27). Using the potential for reclassification was arbitrary. The complainant had not filed a classification grievance; the respondent completely missed the point of her grievance.

35        The bargaining agent must turn its mind to all relevant facts and information, not just to the volume of grievances (see Judd v. Communications, Energy and Paperworkers Union of Canada, Local 2000, 2003 CanLII 62912). The potential for reclassification is not relevant to adding tasks to a job description through a job description grievance.

36        The respondent did not consider the complainant’s case but rather arbitrarily applied a general practice. The decision was made without considering the consequences at hand, which was not reasonable (see Jakutavicius v. Public Service Alliance of Canada, 2005 PSLRB 70).

B. For the respondent

37        The burden of proof was on the complainant to establish a breach of the duty of fair representation. She has not done so. Section 187 of the PSLRA codifies that duty. A bargaining agent cannot act towards an employee in the bargaining unit in a manner that is arbitrary, discriminatory, or in bad faith. When deciding whether to proceed with an individual grievance, the decision must be made on relevant workplace considerations (see Judd), but a bargaining agent is not required to proceed with every grievance (see Bahniuk v. Public Service Alliance of Canada, 2007 PSLRB 13).

38        The bargaining agent has carriage of grievances (see Canadian Merchant Services Guild). A grievor has no absolute right to arbitration. The bargaining agent must always consider the best interests of the bargaining unit. The Board’s role in complaints such as these is not to hear an appeal of the respondent’s decision-making process (see Centre Hospitalier Régina Ltée v. Labour Court, [1990] 1 S.C.R. 1330).

1. Complaint 561-02-609

39        The issue in this complaint is whether the respondent breached its duty of fair representation in its processing and handling of grievance G12-3971-108705. The complainant asked for it to be put in abeyance until December 28, 2012; the respondent agreed.

40        When nothing happened after that date, on January 8, 2013, Mr. Sutcliffe proposed a course of action, which the complainant did not follow. He followed up with her again on February 8, 2013; again, she did not follow his recommendation.

41        On February 8, 2013, Mr. Weber advised the complainant that her grievance remained in abeyance and that she should contact Labour Relations to remove it from there. The bargaining agent would not do it, if she was not ready to cooperate, because once the grievance was removed from abeyance, time limits would have been triggered. The respondent knew what the employer wanted but was unsure as to the complainant’s intentions. Even after this complaint was filed, the respondent indicated that it was willing to proceed with the grievance if she would contact the bargaining agent and provide the information requested. Rather than do that, she filed this complaint.

42        Extending grievance timelines or holding grievances in abeyance is part of the normal individual grievance process (see Bahniuk,at para. 57; Jackson; and Rudakov v. Public Service Alliance of Canada, 2015 PSLREB 69 at para. 64).

43        Furthermore, a grievor must cooperate with the bargaining agent in the individual grievance process. A bargaining agent cannot represent a grievor in the absence of his or her cooperation. Failing to cooperate with the bargaining agent, which results in the bargaining agent’s inability to productively work with the grievor, means that the bargaining agent may be entitled to withdraw the grievance (see Mississauga (City), [2006] O.L.R.D. No. 2421 at para. 39). Grievors must take all necessary measures to protect their interests and cooperate with their bargaining agents (see Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107 at para. 32).

44        The respondent’s position is that it fulfilled its duty to the complainant. It requested that her individual grievance, grievance G12-3971-108705, be transmitted to the fourth level of the grievance process as she had requested. When the employer refused to, the respondent sought to clarify the complainant’s position and willingness to meet at the first level of the grievance process. It provided her advice on how to proceed to meet her stated goal within the terms of the collective agreement.

45        The evidence was that she did not follow their advice, and she should accept responsibility for the consequences of her actions. Even in response to this complaint, when the respondent expressed its willingness to proceed with grievance G12-3971-108705, she did nothing. There is no evidence that the respondent acted in an arbitrary or discriminatory fashion or in bad faith towards the complainant. On the contrary, the evidence was that she would not cooperate with it in pursuing her grievance.

2. Complaint 561-02-766

46        The complainant disagreed with the respondent’s decision to withdraw her job description grievances after an experienced labour relations officer carried out a thorough review based on information submitted to the bargaining agent by the affected grievors, including the complainant. She supplied no information to support her grievances when requested to as part of the grievance review. When offered the opportunity to challenge the respondent’s decision and provide evidence as to why her job description was inaccurate, she did nothing. Rather, she advised the respondent to take no further action on her account and not to contact her further. Instead of cooperating with the process, she filed a complaint.

47        The respondent has the right to refuse to pursue a grievance as long as its decision is not arbitrary, discriminatory, or in bad faith (see McFarlane,at paras. 39 to 41). The respondent did not fail to represent the complainant after the complete and thorough review of her job description grievance was done. She was sent a detailed letter explaining the respondent’s decision. The bargaining agent’s business is deciding which individual grievances will proceed and which will not. That is the core of its authority.

48        Even if the respondent was wrong in its conclusion concerning the complainant’s individual grievances, unless the decision was tainted by being arbitrary, discriminatory, or in bad faith, there was no breach of the duty of fair representation (see Jakutavicius,at para. 125). The onus was on the complainant to establish on a balance of probabilities that the respondent failed in its duties. The evidence clearly demonstrated that she received attention and advice about her grievances and that they were reviewed by an experienced labour relations officer. The respondent directed its mind to the relevant information available and based its decision on that. It is not the Board’s role to second-guess the bargaining agent; its role is to review the actions taken and determine if they were arbitrary, discriminatory, or in bad faith.

IV. Decision

49        Both complaints should be dismissed. Nothing in the evidence satisfied me on a balance of probabilities that the respondent acted in a fashion that would be considered arbitrary or discriminatory and that in any way indicates bad faith on its part. Rather, the evidence is that the bargaining agent made every effort to deal with a member who was unclear in her communications and who often made derogatory comments about its representatives. For instance:

With respect, your response below clarifies nothing, as is frequently the case with my communications with CIU and Local 24 specifically ...

And as I have previously explained, ad nauseum [sic], I couldn’t care less about “what is the standard practice within this region,” or your patronizing assumptions about my so-called misunderstanding(s) on misapplication of the term “abeyance” – particularly since I did not request any “abeyance” past 2 business days back in August 2012 ... My reading of any collective agreement is primarily sound, and this has been demonstrated to be the case time and again, whether the folks at CIU recognized it or not.

50        Another example is the following, from the complainant’s emails (Exhibit 1, tab 5, page 15):

... You, and your ignorant colleagues in the executive at CIU National, need to “get that” before your offices attempt to contact me again in regards to this issue ... So, contrary to the assertions made in the closing of your letter, the results of your assessment are not disappointing to me in the least, as they are fully to be expected given the mishandling of the files by your union to date, and further, are already subject of a Section 190 complaint ... As a result, no further action regarding these files is required to be pursued by me at this or any other time.

51        Her communication as follows with her employer concerning whether her grievance was held in abeyance is similarly confusing and aggressive (Exhibit 1, tab 14, page 8):

With respect, there was never any debate needed; outside of some telling interpretations of my collective agreement concerning what I should or should not be doing as a grievor, so why imply that I would continue one now? Management was “advised of my intent” by my transmittal form(s), and extension is not a synonym nor akin to “abeyance” in any forum I’ve ever heard of ... If management and its representatives could kindly edit this type of patronizing stuff from its further communications with me, it would be greatly appreciated ....

52        Regardless of the complainant’s communication issues, the respondent must meet its obligations, as established in Canada Merchant Services Guild and as codified in section 187 of the PSLRA, 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 it is in bad faith in the representation of any employee in the bargaining unit.

53        The onus was on the complainant to establish that the respondent acted in a manner that violated section 187 of the PSLRA. It was not sufficient for her to show that she was unhappy with its decisions or that she disagreed with how her individual grievances were being processed according to an established abeyance process or whether she had any respect for the officers at the national and component levels. She had to demonstrate that the respondent’s actions or inactions with which she took exception were arbitrary, discriminatory, or in bad faith.

54        The complainant alleged in her complaint (561-02-766) that the respondent breached its duty of fair representation because Mr. Loranger failed to engage in a substantive, good faith review based on merit of her job description grievance prior to his determination not to support it.

55        What I need to examine is how the decision was made to determine whether the complainant has proven that the respondent acted in an arbitrary or discriminatory manner or in bad faith when it determined that it would not support her grievance. I agree with the following passage from Jakutavicius at para. 126:

Having no obligation to take grievances to adjudication, and in the absence of arbitrariness, discrimination or bad faith, the PSAC should be allowed its full discretion to make these decisions, as it has exclusive rights regarding the collective agreement. What is important is that the respondent gave careful consideration to the possibility of taking this grievance to adjudication and did a thorough and fair analysis before deciding not to.

56        In the present case, I am satisfied that the respondent gave careful consideration to the possibility of referring to adjudication and did a thorough and fair analysis before deciding to withdraw its support for the grievance.

57        Nothing in Mr. Loranger’s handling of the individual grievances (file 561-02-766) was arbitrary or discriminatory; nor was the bargaining agent’s assessment of whether her grievances would succeed done in bad faith. Mr. Loranger followed a very detailed process, which included seeking information from the complainant on two occasions (Exhibit 1, tab 15), and obtaining the job descriptions (Exhibit 1, tab 18). He could not have taken into account the “... significant impact on [the complainant’s] subjugation in the workplace as a racialized female employee” as the complainant wrote because she did not provide any information to support her job description grievances when asked.

58        As part of evaluating a grievance, a bargaining agent must turn its mind to all relevant facts and information and must keep in mind the consequences for a grievor (see Jakutavicius and Judd). However, hand-in-hand with the bargaining agent’s obligations is the grievor’s obligation to cooperate with the bargaining agent (see Mississauga (City)), which in this case would have been to provide Mr. Loranger with the information required to assess her grievance.

59        The bargaining agent has carriage of grievances involving the interpretation or application of a provision of the collective agreement (see Canadian Merchant Service Guild). Part of that role is the authority to extend timelines and hold grievances in abeyance (see Bahniuk, Rudakov, and Jackson). When the respondent was made aware that the complainant wanted her grievance brought out of abeyance and transmitted to the final level of the grievance process, it had legitimate concerns with her communications and unwillingness to cooperate with the bargaining agent to achieve that goal.

60        Rather than take a course of action that might have resulted in time limits being missed, the bargaining agent left grievance G12-3971-108705 in abeyance, with the employer’s agreement, until the complainant indicated if she would meet in a first-level consultation. Contrary to her interpretation of collective agreement clause 18.11 (Exhibit 1, tab 8), she had no right to bypass levels 1 through 3 of the grievance process. The respondent erred on the side of caution and left the grievance in abeyance, where it stayed until the respondent withdrew its support after Mr. Loranger’s review.

61        The complainant might not have agreed with the respondent’s handling of her grievances and was unhappy with its decision, but this does not mean that the respondent violated its duty of fair representation.

62        For all of these reasons, the complainant has not discharged her burden of proof.

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

V. Order

64        Complaints 561-02-609 and 561-02-766 are dismissed.

July 20, 2016.