FPSLREB Decisions

Files: 161-2-808 150-2-44

Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN DIANE KILBY ET AL. Complainant and Applicant and PUBLIC SERVICE ALLIANCE OF CANADA AND DARYL BEAN

Respondents RE: Complaint under section 23 alleging a violation of subsection 10(2); Application under subsection 43(2) alleging a violation of the prohibitions set out in subsection 40(3) of the Public Service Staff Relations Act

Before: P. Chodos, Vice-Chairperson For the Complainant: Timothy Wilson, Student-at-law For the Respondents: Derek Dagger, Counsel, Public Service Alliance of Canada Heard at Ottawa, Ontario, February 2 and 3, 1998.

Decision Page 1 DECISION The complaint under section 23 of the Act (Board file: 161-2-808) was filed on August 9, 1996. Immediately prior to the scheduled hearing of this matter, the complainants' representative advised that he also intended to seek an order decertifying the Public Service Alliance of Canada (PSAC) pursuant to subsection 43(2) of the Act. (It should be noted that the Board has directed that a file (no. 150-2-44) be opened in respect of the application under subsection 43(2)). From the outset the PSAC has taken the position that the Board was without jurisdiction to deal with the complaint (see for example a letter dated September 9, 1996 signed by Mr. Georges Nadeau, and subsequently a letter from Mr. Derek Dagger dated April 25, 1997). At the hearing, Mr. Dagger, representing the respondents, reiterated his objection to the Board’s jurisdiction in respect of the complaint under section 23, and as well, in respect of the application under subsection 43(2) of the Act. Mr. Dagger contended that even if the allegations made by the complainants were accepted as being true, they disclose no basis for the Board accepting jurisdiction under these provisions.

The undersigned decided to hear evidence and argument in respect of the jurisdictional objections and to issue a decision addressing that issue, prior to, if necessary, hearing the case on the merits. In these jurisdictional proceedings the evidence consisted of the testimony of two of the complainants, Diane Kilby and Lynn Jones; the respondents chose not to call any evidence.

Diane Kilby had been employed by Human Resources and Development Canada (HRDC) and its predecessor, the Canada Employment and Immigration Commission since November 1972. She retired from the Public Service effective November 26, 1997. Prior to her retirement Ms. Kilby was in the PM bargaining unit and had been very active in the Public Service Alliance of Canada; she held several offices including National Vice-President, Canada Employment and Immigration Union (C.E.I.U.) in 1990; she was elected as alternate National Vice-President for women’s issues for central Canada and, from 1993 was the National Vice-President for the headquarters region of C.E.I.U. until her retirement. Ms. Kilby has been responsible for representing the component on joint union-management consultation committee meetings at the regional and national levels. She was also Chairperson from 1993 to 1997 of the Human Rights/Race Relations Committee of C.E.I.U. which was charged with promoting equality rights within the union and in the workplace. In addition,

Public Service Staff Relations Board

Decision Page 2 Ms. Kilby was the PSAC representative to the Canadian Labour Congress Committee on lesbian and gay issues.

Ms. Kilby testified that as a result of the series of complaints alleging harassment, discrimination and abuse of authority on the part of Mr. Cres Pascucci, the National President of the C.E.I.U., as well as other officers of this component of the PSAC, the Alliance Executive Committee established a three-person Independent/Impartial Review Committee which was mandated to do the following (Exhibit C-3): • Review all aspects of the November 1994 National Executive meeting, including the non-confidence motion and the reasons for its adoption.

• Review the five resolutions that contain allegations concerning violations of both the CEIU By-Laws and the PSAC Constitution.

• Review the events which transpired at the May 15, 1995 National Executive Meeting.

• Review any other matters which are brought to the attention of the Committee related to the inability of the CEIU National Executive to function in an effective and efficient manner.

Following its review the Committee came to a number of conclusions, among them:

(page 4, Exhibit C-3) • Some women (and men) on the National Executive have indicated that they are physically as well as emotionally afraid of the President.

• A large majority of the National Executive say that the President fosters an environment where sexist and racist comments can be made. Examples were provided where racist and sexist remarks were not called to order during meetings and conference calls of NVPs.

• The President undermines the role of the NVPs for women’s issues - i.e. by limiting their role, by supporting the removal of those positions and by voting against providing adequate resources to the NVPs for women.

Public Service Staff Relations Board

Decision Page 3 . . . (page 6) . . . 2. Our findings indicate that the person mainly responsible for the dysfunctionality is the National President. We believe that he has misused his authority, that his process is undemocratic, that he has used the power of his position to gain support, that he has poisoned the relationships within the Component, and that, as a result, the Component cannot function. We believe that if he stays on the National Executive, his presence will cause further destabilization. We do not believe that he can bring about a positive working relationship among and with members of the National Executive for the following reasons . . .

. . . The Committee recommended, among other things, that “the AEC (Alliance Executive Committee) asks its National Board of Directors to suspend the membership of the National President of C.E.I.U. for at least five years.”

Following receipt of the Review Committee’s report, the Alliance Executive Committee submitted a resolution to the National Board of Directors proposing that “Cres Pascucci’s membership be suspended for a period of five (5) years for violations of the C.E.I.U. By-Laws and PSAC Constitution as well as harassment, intimidation, misuse of authority and abuse of power; ...” (Exhibit C-5).

The National Board of Directors’ authority to discipline an Alliance officer is founded in Section 25, Sub-Section (1) of the Public Service Alliance’s Constitution; this provision reads as follows:

(Exhibit C-2) The National Board of Directors shall have the authority, by resolution passed by a majority consisting of two-thirds (2/3) of those eligible to vote, to suspend or expel from membership any Alliance National Officer; any Component, Local, Area Council, or any of their officers or members, for contravening any provision of the Constitution of the Alliance or the By-Laws of any Component or the By-Laws of any Local or for causes as listed in Sub-Section (5)

Public Service Staff Relations Board

Decision Page 4 of this Section. An Officer or member suspended or expelled from membership shall be removed from an office held for a period not exceeding five years. Any person or persons suspended or expelled shall turn over to the Alliance all records, documents, funds or property that are held in trust for the Alliance, a Component, a Local or an Area Council.

Apparently, the resolution was not passed by the Board of Directors. Accordingly, Mr. Pascucci continues to hold the office of National President of the Component. Ms. Kilby noted that the National Board of Directors is composed of eighteen (18) Component Presidents plus eight (8) Regional Vice-Presidents. Pursuant to the Alliance’s constitution, the Triennial Convention is the supreme governing body; however, between conventions it is the National Board of Directors which effectively assumes that role; the Board of Directors delegates responsibility for the day-to-day operations of the PSAC to the National Executive Committee which, in 1995, consisted of the National President, Mr. Daryl Bean; the First Vice-President, Nycole Turmel; the Second Vice-President, Susan Giampietri; John Baglow as the Third Vice-President and Joane Hurens as the Regional Executive Vice-President for Quebec.

It was Ms. Kilby’s contention that the process under which the proposed suspension of Mr. Pascucci was defeated is inherently discriminatory because the colleagues of the harasser, that is Mr. Pascucci, were sitting in judgment of him.

Ms. Kilby noted that subsequently the members of the Human Rights/Race Relations Committee submitted a harassment and discrimination complaint dated January 28, 1996, along with supporting documents, to Daryl Bean (Exhibit C-6). The complaint noted that the Race Relations Committee was responsible for organizing a human rights conference; it was alleged that during the course of their organizing efforts, Mr. Pascucci had sent a notice to 434 CEIC workplaces advising the membership to disregard information sent out by the Committee.

In response to the complaint Ms. Kilby received a letter under the signature of Mr. Bean dated February 19, 1996 which stated the following:

(Exhibit C-7) I have reviewed the documentation submitted by the CEIU Human Rights/Race Relations Committee as well as other correspondence received from other CEIU members. In

Public Service Staff Relations Board

Decision Page 5 carrying out the review, I considered the definition of harassment as outlined in the PSAC Harassment Policy and Complaint Procedure adopted at the January 1993 NBoD Meeting. In addition, I requested another person (who will not be named) to review the complaint and provide me with an independent opinion simultaneously and without consultations with me.

After thoroughly reviewing the complaint, we both independently reached the conclusion that there is no “prima facie” evidence of harassment. While we both agree that the matter should have been handled in a more professional manner, we cannot agree that harassment was involved.

In my opinion, this is a continuation of an ongoing improper communications approach and a style of leadership which does not build unity amongst members. A professional approach designed to resolve the difficulties involved could have avoided these conflicts.

Therefore, I must deny the harassment complaint, however, I sincerely hope that these difficulties will be handled in a professional and constructive way in the future.

Ms. Kilby testified that in her view the failure of Mr. Bean to establish an independent investigation committee before denying the complaint was contrary to the PSAC Policy on Harassment, as well as Regulation 19, paragraph 9 of the Constitution, which provides for the establishment of a committee of three members of the National Board of Directors to investigate any charges.

Ms. Kilby maintained that there were other instances where complaints of harassment and discrimination were not properly addressed in accordance with the Constitution and Regulations of the Alliance. She referred to a complaint filed by a Ms. Zelda Lucas who had filed a harassment and discrimination complaint against a Mr. Alan MacKinnon who was at the time National Vice-President for the Nova Scotia region; this complaint was filed with Mr. Pascucci however he did not pursue this matter as required by Regulation 19. Ms. Kilby also referred to certain incidents involving a fellow complainant, Ms. Lynn Jones; these incidents were the subject of testimony from Ms. Jones and are described in greater detail below.

Ms. Kilby also referred to other incidents involving Mr. Pascucci as well as other members of the C.E.I.U. National Executive, which are set out in Exhibit C-4, Ms. Kilby’s submission to the Independent Review Committee. In addition, Ms. Kilby

Public Service Staff Relations Board

Decision Page 6 outlined how Mr. Pascucci had interfered with her work as Chair of the Human Rights Committee and in particular had hampered her ability to represent a grievor in respect of an issue concerning racism and discrimination in the workplace. In the course of representing this grievor, she was advised by the Department that she was no longer considered the union representative; when she replied that the question of representation is an internal union business, she was advised that Mr. Pascucci had told the Department that she was no longer on the committee in question. As a result, the Department stopped sending her correspondence; this resulted in delays in dealing with the grievance, which was ultimately upheld.

Ms. Kilby identified Exhibit C-8, a letter from Mr. Scott Serson dated May 28, 1995 which acceded to a request from Mr. Pascucci to provide for partially paid leave for Union officers, including the complainants. Ms. Kilby maintained that this demonstrates that there is employer involvement in the matters in dispute.

In cross-examination Ms. Kilby identified Exhibit R-1, a document entitled “PSAC POLICY 27” concerning human rights. Ms. Kilby acknowledged that these policies are created either by a vote of the membership at the Triennial Convention or by a vote of the National Board of Directors. She also identified Exhibit R-2 entitled “CANADA EMPLOYMENT AND IMMIGRATION UNION, GOALS, PRINCIPLES AND VALUES”; this document was adopted at a C.E.I.U. convention. Ms. Kilby agreed that these two documents speak of PSAC’s commitment to human rights and to actively fighting discrimination. She observed that while the policies are important, the practices are equally important; she agreed that the policies are being respected in part. In re-examination Ms. Kilby stated that while the Public Service Alliance has taken positive steps with respect to minority issues, there is discrimination within the PSAC itself.

Ms. Lynn Jones also testified on behalf of the complainants. Ms. Jones lives in Halifax and has been employed with the Public Service since 1979. She is currently an Employment Equity Consultant, and is pursuing a project known as the Black and Aboriginal Development Initiative. Ms. Jones has been an active union member for a number of years and has held several positions both at the local, regional and national levels of the PSAC; she had been on the Regional Women’s Committee; she has also

Public Service Staff Relations Board

Decision Page 7 held positions on the Anti-racism Committee and at the national level was part of the National Equal Opportunites Committee.

Ms. Jones testified as to the make-up of the Equal Opportunities Committee; she noted that originally the Committee was composed of representatives from each of the 18 PSAC Components. However, the Committee did not choose representatives who were from minorities; that is, the Committee had originally been composed mainly of white, able bodied women, without representation from persons who are aboriginal, of colour, or with disabilities. The Board of Directors had refused to make changes to the composition of the Committee to reflect a greater diversity. Currently, the Alliance Executive Committee selects the representatives of eight unelected equity seats, reflecting minority groups.

Ms. Jones also indicated that she is a PSAC representative on the Canadian Labour Congress, as a General Vice-President. She noted that the CLC established a task force consisting of members of visible minority groups, including herself. The Task Force issued a report (Exhibit C-9) entitled “Challenging Racism: Going beyond Recommendations”. Both the Public Service Alliance of Canada and the Halifax Regional Women’s Committee of the PSAC submitted briefs to the Task Force: the latter brief spoke of problems of racism within the PSAC and steps which should be taken to alleviate discrimination. According to Ms. Jones, the briefs recognize that there is systemic discrimination within the Alliance.

Ms. Jones also noted that she had attended a C.E.I.U. Women’s Conference in 1993 in Ottawa. There was only one other person of colour at the conference of approximately 100 people: she had raised the issue of having equity seats in the future and met with success in this demand. She then brought a similar resolution to the National PSAC Conference; she noted that currently there is a provision for equity seats for the PSAC Women’s Conference.

Ms. Jones also referred to a teleconference meeting of C.E.I.U. in which Mr. George, the Regional Vice-President, stated: “What am I, a nigger from the Atlantic”. She stated that no one had raised an objection to this comment; when she called a point of privilege noting that the comment was blatantly racist, Mr. George was told only that he should not do it again; although Ms. Jones stated that this was not a

Public Service Staff Relations Board

Decision Page 8 satisfactory response, the meeting continued. At the next C.E.I.U. National Executive Meeting on March 26, 1991, Ms. Jones spoke about this incident and proposed several resolutions addressing the question of racism (Exhibit C-10): none of the recommendations were adopted.

Ms. Jones also described certain events which occurred during a C.E.I.U. Atlantic Conference held in Halifax on May 25 and 26, 1995. Ms. Jones had proposed that a Mr. Carvery, one of the leaders of a protest concerning Africville, a community in the Halifax area, be invited to address the Conference. At the same meeting a no-confidence motion, directed at Mr. Pascucci, was also on the agenda. When Mr. Carvery was asked to speak, there was an objection from a Ms. Pat Phee, an African-Canadian woman, that the question of non-confidence should be dealt with instead. Ms. Jones, who was chairing that part of the program, overruled the objection. Subsequently, a Ms. Rachel Henry, who is also an African-Canadian woman and a member of the Anti-racism Committee of the C.E.I.U., wrote to Mr. Pascucci on June 7, 1995 (Exhibit C-12) accusing Ms. Jones of violating several provisions of the By-Laws of the C.E.I.U. In response to this complaint, Mr. Pascucci took steps to establish a committee to investigate her actions, without proper authority. Ms. Jones observed that Mr. Pascucci’s actions were racially motivated; she noted that this incident was part of the allegations against Mr. Pascucci which were examined by the Review Committee (ref. Exhibit C-3).

Ms. Jones also noted that when Ms. Zelda Lucas had raised with Mr. Pascucci a complaint concerning Mr. Alan MacKinnon, a Vice-President of the C.E.I.U., Mr. MacKinnon was asked for his response concerning Ms. Lucas’ allegations; upon receipt of his response, Mr. Pascucci decided that there was no need for an investigation committee. Ms. Jones contrasted this with her own experience, when an investigation committee was immediately set up by Mr. Pascucci.

Ms. Jones referred to the circumstances surrounding the selection of participants in the Race Relations Committee. Originally the members were chosen by Mr. Pascucci, until the Human Rights Conferences were held; at the first conference the participants voted unanimously to elect their own members to the Human Rights Committee; this was duly passed by the C.E.I.U. National Executive; however, when the C.E.I.U. convention was held, Mr. Pascucci decided that he would continue to select

Public Service Staff Relations Board

Decision Page 9 who would be on the Human Rights Committee. This decision was challenged at the National Executive Committee, which rescinded the selection and provided for elections. Ms. Jones also observed that the work of the Human Rights Committee was hampered because of difficulties in having the National Executive address the minutes of their meetings in a timely fashion. Ms. Jones also testified that she had refused to endorse the collective agreement between the C.E.I.U. and its staff in 1996, as the agreement did not contain an equity plan, notwithstanding that at the prior convention an equity plan had been approved.

In cross-examination Ms. Jones identified Exhibit R-3, the C.E.I.U. By-Laws, Regulations and Policies booklet dated December 10, 1997. She also identified Exhibit R-4, a Public Service Alliance document entitled “POLICY PAPERS AND RESOLUTIONS OF RECORD, 1995”.

Argument The complainants’ representative filed written submissions as well as making oral arguments. The following are extracts from his written argument as well as a summary of his oral submissions. Summary Statement on Jurisdiction The Public Service Staff Relations Board has consistently interpreted its role in administering the Public Service Staff Relations Act as excluding any power to intervene in the internal affairs of an employee organization.

In its interpretation, the duty of fair representation extends only to the relation between the employee and the employer (typically in the context of grievances). It has not been interpreted as extending to the relations of members among themselves. In Hibbard vs. PSAC (PSSRB File No. 161-2-136, May 21, 1976), the Board stated:

This Board has no such authority under Section 8(2)(c)(i). Its concern is restricted to the rights of employees. The rights of members are matters between a member and the employee organization and are governed by the constitution and by-laws of that organization. The complaints of Mr. Hibbard against Officers of the organization are an internal matter of PSAC, for which there may be a remedy in another forum. (at 11 QL)

Public Service Staff Relations Board

Decision Page 10 In St-James vs. CEIU and Cres Pascucci (PSSRB File No. 100-1, March 31, 1992), the Board further affirmed:

It has been widely recognized that at least in the absence of specific provisions to that effect in its enabling statute, a labour relations board does not have supervisory authority to regulate the internal matters of a bargaining agent. (at 11-12 QL)

In this same decision, the Board goes on to cite the text Canadian Labour Law (1985) which lists those matters with which labour relations boards have been unwilling to interfere. It is to be noted that discrimination does not figure in that list.

The test for intervention as stated in St-James is the following: ...unless and until the actions of the bargaining agent affect the employment relationship, the Board clearly has no role to play. (at 13 QL)

It would appear that even discrimination would not be sufficient to warrant the Board’s intervention. As stated in Martel vs. PSAC (PSSRB File Nos. 161-2-669 to 671, October 27, 1993):

It may very well be that Mr. Martel was treated in a discriminatory, biased, wrongful, capricious and arbitrary manner by Mr. Flinn, the UTE and the PSAC, but the Board has no jurisdiction to interfere in the internal affairs of the bargaining agent. Case law recognizes that the Public Service Staff Relations Board has no power to control and govern the internal affairs of the union in the absence of any specific legal provision giving it jurisdiction to decide such matters. (at 73, 74 QL)

There would, however, appear to be limits to the deference of the Board concerning internal union business. In Jacques vs. PSAC (PSSRB File No. 161-2-731, April 20, 1995) the Board stated in the context of the duty of fair representation as set forth in s. 10(2) of the Public Service Staff Relations Act:

Nor may decisions be motivated by inappropriate discrimination based on factors such as race, gender, or political or religious beliefs. Finally, decisions of the employee organization may not seek to harm or assail a member, failing which they will be deemed to have been made in bad faith. (at 49-50 QL)

Public Service Staff Relations Board

Decision Page 11 This of course raises the question as to what is appropriate as opposed to inappropriate discrimination. As we will see in the next decision to be surveyed, this expression will be modified to more correctly read “inappropriate distinctions”.