FPSLREB Decisions

REASONS FOR DECISION

Complaint before the Board

1        Jim Charinos (“the complainant”) filed a complaint against his bargaining agent, the Public Service Alliance of Canada (PSAC), for not representing him adequately in several grievances against his employer, Statistics Canada (“the employer”). The PSAC asked that the Public Service Labour Relations and Employment Board (“the Board”) dismiss the complaint summarily, as the allegations do not disclose a prima facie breach of the bargaining agent’s duty of fair representation under the Public Service Labour Relations Act, (S.C. 2003, c. 22, s. 2; PSLRA). For the reasons that follow, I dismiss the complaint.

Summary of the evidence

2        In January 2016, the Board heard three grievances that the PSAC had referred to it, on the complainant’s behalf, related to two suspensions and his termination. At the hearing, he was represented by PSAC Grievance and Adjudication Officer Goretti Fukamusenge.

3        Because disciplinary matters were at issue, the employer proceeded first with its evidence. It appears from both the complainant’s allegations and the PSAC’s response that the complainant and Ms. Fukamusenge did not agree on the strategy to be adopted in cross-examining the employer’s witnesses. This is his main contention, which he detailed with a number of examples of questions that he believes should have been asked to undermine the credibility of the employer’s witnesses but that she did not ask. The complainant also alleged that she failed to produce important documentation that the PSAC possessed and that she did not ask him the questions in examination that would have shone a favourable light on his case.

4        After three days of hearing, the PSAC indicated to the Board and to the complainant that it was ceasing its representation with respect to the grievances. The Board adjourned the hearing, which has since resumed and completed without representation from the PSAC for the complainant. The grievances were dismissed in a decision issued on August 15, 2016 (Charinos v. Deputy Head (Statistics Canada), 2016 PSLREB 74).

5        In his complaint, the complainant also mentions the fact that the PSAC never filed another grievance, related to harassment and discrimination, contrary to his expectations.

6        In its response, the PSAC mentions the complainant’s rude behaviour as one factor that hindered the representation relationship. As this decision is a summary dismissal of the complaint, I will not consider the facts the PSAC alleged as evidence. In a summary dismissal, the decision maker takes the applicant’s allegations as true and must determine on that basis whether the allegations disclose a case that should be heard.

7        In a letter dated February 3, 2016, the PSAC communicated to the complainant the reasons it was withdrawing its representation, as follows:

…

The decision has been made based on several factors: the extremely low chances of success of your grievance files, the testimony at the hearing, the evidence led by the employer and your own testimony. This decision also takes into account your inappropriate behaviour throughout the hearing which was held before the PSLREB from January 25-27, 2016 in Ottawa.

…

8        The letter went on to advise the complainant of his right to represent himself or to hire outside counsel at his cost for the continuation of the hearing.

Reasons

9        For a complaint to be summarily dismissed without a hearing, the Board must conclude that even were the complainant’s allegations taken as true, the complaint would have no chance of success. Therefore, the issue can be stated as follows: Do the allegations disclose a prima facie breach by the PSAC of the duty of fair representation?

10        Unions, and in the context of the federal public service, bargaining agents, owe their members a duty of fair representation as they have sole responsibility for representing employee interests to the employer. The content of this duty has been developed by the courts, the fundamental case being Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509, which defined the duty as follows:

…

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.

…

11        The PSLRA provides as follows in this regard:

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.

12        It is important to note that under the federal public service regime, contrary to labour relations in other Canadian jurisdictions, employees can proceed to adjudication on disciplinary matters without union support. Therefore, in the federal public service regime, if a bargaining agent denies or withdraws representation at a hearing, it does not deprive the employee of his or her right to be heard by an independent adjudicator (in this case, the Board). Nevertheless, there is always a duty of fair representation, that is, the bargaining agent must not act in an arbitrary or discriminatory manner or in bad faith when representing the interests of the bargaining unit members.

13        The jurisprudence has recognized that in representing their members, unions must be fair, but that the right to representation has legitimate limits. As stated as follows in Ouellet v. Luce St-Georges, 2009 PSLRB 107 at paras. 38 and 39:

[38] It is legitimate for the bargaining agent to consider the employee’s credibility, the presence or absence of witnesses that could support the employee’s version of events, the possibility of whether the discipline is reasonable and the decisions of adjudicators in similar circumstances.

[39] In short, the bargaining agent’s obligation is to carry out its duty of representation in a reasonable manner, taking into account all the related facts, investigating the situation, weighing the conflicting interests of the employee, drawing considered conclusions as to the potential outcomes of the grievance and then informing the employee of its decision on whether to pursue the grievance.

14        The bargaining agent must consider each case with care. Ultimately, however, it may decide not to represent or to cease to represent one of its members. Its decision is not at issue, but its motives are. There can be many reasons to not represent a member: lack of resources, poor chances of success, strategic decisions in the ongoing labour relationship with the employer, etc. What is important is that the decision to not represent not be made, in the words of the PSLRA, “… in a manner that is arbitrary or discriminatory or that is in bad faith …”.

15        I note that the bargaining agent alleges that the complainant’s rude behaviour at the hearing was a factor in its decision. I have heard no evidence on the matter, and I am not pronouncing on it. The test is whether the bargaining agent, in its representation and in its decision to cease representation, acted without bad faith, discrimination, or arbitrariness.

16        The complainant alleges that the PSAC acted in bad faith, first through incompetent representation at the hearing, and second, by withdrawing its representation. From the allegations, it is clear that the complainant and the PSAC officer representing him at the hearing did not agree on strategy. The complainant would have preferred a more aggressive cross-examination of the employer’s witnesses, to undermine their credibility. He contends he should have been examined differently when he was on the witness stand. He also cites as part of the bad faith the fact that the officer assigned to the case lost her last case.

17        I cannot see a matter of strategy amounting to bad faith on the part of the PSAC. The union representative defends the interests of the employee, but she is not bound by his advice on how to proceed. The complainant gives a number of examples where questions could have been asked to undermine the credibility of the employer’s witnesses. Having heard the evidence, the PSAC representative chose not to proceed in this manner. There is nothing in the allegations of the complainant that shows that adopting a more aggressive stance with the witnesses would have changed the nature of the evidence.

18        Perhaps a few examples given by the complainant on the questions that according to him should have been asked will illustrate how differing strategies do not necessarily amount to bad faith on the part of the PSAC representative:

Guy Joly – testified that I never read his emails, and also that on July 2, 2014 I had left the office an hour early, and he knew because, and I quote, “his jacket was gone from his cubicle”.

I mentioned to her to question the email………..Ask him how it is possible to delete an email without highlighting it from the drop down menu on the left hand side? It HAS to be exposed on the screen before deletion?

As to my jacket, one week prior to the hearing, we had a meeting where counsel showed me evidence from my employer, including the July 2, 2014 reference of the jacket, and showed her a couple of days later that it was 20 degrees celsius in the morning going to 28 celsius in the afternoon that day, so I pointed out that this would be something to question!

…

Rock Lemay – testified that the “tracking sheets” were a method to determine “cost recovery” for the division, but I pointed out and showed to counsel that I had taken a course on the “Path to a Survey”, offered by StatsCan and showed her the Certificate I had obtained from that course, and proved to her that “cost recovery” was not derived from mail pick-up but from the Coding, Census and Imaging sections within the Division, and pointed out to counsel that the Tracking Sheets did not include within their format the data required to support such a claim.

Counsel did not confront him about the issue.

19        In each of those examples, the complainant believes that the credibility of the employer’s witness would have been undermined by better cross-examination. I do not think that would have been the case.

20        An email is exposed before it can be deleted. That does not mean it has been read with any degree of attention. The evidence at the hearing was that the complainant, whether he did read the emails or not, certainly acted as if he had not. Cross-examination on the technicalities of deletion would not have changed that evidence.

21        In the same way, the jacket left on the chair was but an indicator, among many others, that the complainant tended to leave the workplace without permission. The Board panel so found, but did not base its conclusion on the presence of the jacket.

22         Finally, in relation to the tracking sheets, the evidence was that the complainant failed to fill them out as he had been directed to do. This has nothing to do with the definition of “cost recovery”. The employer’s witness simply said that the tracking sheets would be used to determine how to optimize the use of the section’s human resources. The only significance of this evidence to the case was that the complainant had not filled them out. Cross-examination on the proper data that should be used in a census would not have served to contradict that evidence.

23        As for complainant’s raising the fact that the officer lost her last case, this does not in any way establish incompetence on her part and, more significantly, it has no bearing on the issue of bad faith — able representation can go only so far if the case being advanced has no merits. The PSAC agreed to support the grievances and to represent the complainant at the hearing. According to the letter the PSAC sent to the complainant to explain its withdrawal, it appears the PSAC determined that the evidence presented at the hearing by both the employer and the complainant himself was such that it became obvious that the PSAC’s limited resources would be better used elsewhere. This decision is one for the PSAC to make. It was made after reviewing the evidence.

24        The complainant does not make an outright claim of discrimination, but rather, he implies it in the particulars to his complaint, as follows:

Throughout the decision-making process of filing for adjudication the hierarchy was comprised of Patricia Harewood, Margaret Barry, Edith Bramwell, Jessica Theberge and counsel Goretti Fukamusenge. All of them are female, I am a male…Greek…age 57. Did they discriminate?? I don’t know, cannot peek into their minds. Does it seem that way?? I don’t know, let’s find out. The optics suggest as much.

25        In his allegations, the complainant provides no example of discriminatory behaviour during, in his words, the “decision-making process of filing for adjudication”. The PSAC followed up with his three grievances and agreed to represent him at the hearing. The conflict on strategy at the hearing became such that Ms. Fukamusenge felt she could no longer represent him. The PSAC then decided to cease representing him, mainly because the evidence that had been presented that far in the hearing revealed that the complaint had little chance of success. There is no indication of discrimination, no allegation of behaviour showing unfavourable treatment related to one of the prohibited grounds of the Canadian Human Rights Act, R.S.C., 1985, c. H-6.

26        Finally, in light of the complainant’s allegations, I can discern no arbitrariness in the PSAC’s decision to withdraw its representation. Again, a bargaining agent has the duty to represent fairly but in the context of a careful assessment of the chances of success, which were re-evaluated in light of the evidence presented at the hearing. The decision was made on the basis of the evidence as it was assessed by the PSAC.

27        The complainant also alleges that the bargaining agent failed to file a discrimination and harassment grievance in October 2014. He filed his complaint in March 2016. A complaint must be made within 90 days of the events that give rise to it; this timeline cannot be extended (PSLRA, s. 190(2)). Therefore, I am without jurisdiction to consider that aspect of the complaint.

28        In conclusion, the allegations, even if they are taken as true, do not disclose a case that would allow finding a breach of the duty of fair representation.

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

Order

30        The complaint is dismissed.

September 02, 2016.