FPSLREB Decisions
Decision Information
Unfair labour practice - Complaint under paragraph 23(1)(a) of the Public Service Staff Relations Act (PSSRA), alleging a violation of subsection 10(2) of the PSSRA - Duty of fair representation - Internal union matters - a harassment complaint had been filed against the complainant by a co-worker - the complainant requested assistance and representation from his bargaining agent and expressed concern about the fact that his bargaining agent was assisting his co-worker in her complaint against him - the bargaining agent responded to the complainant that it would not provide representation to either parties to the harassment complaint during the employer's investigation, as the employer does not allow representation during investigations on this type of complaint - the bargaining agent informed the complainant that, were he to hire a lawyer, it would be at his own expense - the complainant then retained the services of a lawyer to represent him during the employer's investigation of the harassment complaint - the day before the employer's interviews on the harassment complaint, a business agent of the bargaining agent contacted the complainant to inform him that she would be attending the interviews on the following day and that her role was to ensure that the interviews were conducted properly and that the employer did not infringe his rights - the complainant declined the business agent's offer of assistance because she was also assisting the co-worker who had filed the harassment complaint against him and because he felt the business agent was not familiar enough with the case - the employer eventually concluded that the harassment complaint was unfounded - the complainant then requested that his bargaining agent reimburse the legal fees he had incurred - the bargaining agent replied that assistance had been offered by its business agent and that legal assistance had to be approved before incurring any expenses - the complainant replied that he would have incurred legal expenses even if he had accepted the assistance of the bargaining agent's business agent, as this assistance had not been offered to him prior to the day preceding the employer's interviews - the complainant submitted that his bargaining agent was biased in favour of the co-worker who filed the harassment complaint against him - the complainant also argued that he needed legal advice to deal with the harassment complaint - the bargaining agent responded that, although it helped the complainant's co-worker in filing her harassment complaint, it did not represent her during the employer's interviews on the complaint - the bargaining agent added that the employer does not allow representation during this type of interview - the bargaining agent argued that it offered the same assistance to the complainant and to the co-worker who filed the harassment complaint against him - the Board found that bargaining agents have a wide degree of latitude in determining how to assist their members - the Board further found that there was no evidence that the bargaining agent had acted in an arbitrary or discriminatory fashion or in bad faith - the Board concluded that the complainant had been treated fairly and equally and that the bargaining agent had not breached its duty of fair representation in relation to the complainant. Complaint dismissed. Cases cited: Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509; Vaca v. Sipes, (1967) 55 L.C. 11,733; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Shore (166-2-732); Ruda (161-2-821).
Decision Content
Public Service Staff Relations Act BETWEEN Dino Sophocleous Complainant
and Cres Pascucci and Brian Richey Respondents
RE: Complaint under section 23 of the Public Service Staff Relations Act
Before: Donald MacLean, Board Member For the Complainant: Allan MacKinnon For the Respondents: Michael Tynes, Public Service Alliance of Canada Heard at Sydney, Nova Scotia, May 4 and 5, 1998
File: 1612861 Before the Public Service Staff Relations Board
1 DECISION This case concerns the duty of fair representation that an employee organization owes to one of its members.
Dino Sophocleous is the complainant in this case. He alleges that the Canada Employment and Immigration Union (CEIU) and its officers Cres Pascucci, the national president, and Brian Richey, a national vicepresident, failed in their duty to represent him.
CEIU says that it did all that was required of it in providing Mr. Sophocleous with information that he needed. It owed no greater duty to him
Mr. Sophocleous has been an employee of the Department of Human Resources Development Canada (HRDC), and its predecessors, for over 25 years. During that period he has been a member of the CEIU, a component of the Public Service Alliance of Canada. He was a member in good standing at all times relevant to this complaint.
On June the 12, 1997, Wayne Talbot, the director of the Sydney office of HRDC, advised Mr. Sophocleous that a harassment complaint had been lodged against him by a co worker, Ms. Ann Dunn. Mr. Talbot explained to Mr. Sophocleous that the employer was going to conduct an investigation in the matter.
On the following day, June 13, 1997, Mr. Sophocleous contacted his union. His first contact was to Al Provoe, the president of his CEIU local. On the same date, Mr. Sophocleous also contacted Brian Richey in Halifax. Mr. Richey is the national vicepresident of CEIU for Nova Scotia. Mr. Sophocleous asked both Mr. Provoe and Mr. Richey about the assistance or representation that the CEIU could give him. He also expressed concerns about CEIU’s lack of impartiality on the matter, because he had seen members of the local executive assisting Ms. Dunn in drafting her complaint.
In July 1997, Mr. Sophocleous and Mr. Richey exchanged correspondence. In these messages Mr. Sophocleous reiterated his concerns regarding representation of himself and the impartiality of CEIU. An investigation committee would be interviewing witnesses in August.
2 CEIU stewards in the local had assisted Ms. Dunn in bringing her complaint to management. Later, they also raised procedural issues as to the composition of the committee and how it would be conducting its interviews. Local officers were soliciting other members to provide information to the employer about him. He wanted to know what CEIU was going to do to represent him at the interview.
On July 21, Mr. Richey replied to Mr. Sophocleous’ inquiries. He advised Mr. Sophocleous that once a “complaint is filed, it then becomes the employer’s responsibility to ensure that a complete investigation is conducted and that all parties involved are treated fairly.” In the same reply, Mr. Richey explained that CEIU’s role in such an investigation is to “‘react’ to management’s actions in handling the complaint.”
In response to Mr. Richey, Mr. Sophocleous once again expressed his belief that he was entitled to representation. He was aware that Ellen MacDonald, a national vicepresident of CEIU was assisting Ms. Dunn, together with two shop stewards of the CEIU local.
On July 22 Mr. Richey advised Mr. Sophocleous (in exhibit 1.7) that “there would be no ‘representation’ provided by the Union for either party.” Once again Mr. Richey explained that CEIU’s role in such a situation is to react to management’s handling of the complaint. In this same message Mr. Richey advised Mr. Sophocleous that, while CEIU does not provide representation in this type of investigation, it does get “involved during the stages where assistance is required quite often that’s assisting a member with the process in filling a complaint, as well as during the hearing or ‘interview’ itself.” He could have a witness with him during the committee interview to ensure that it proceeded fairly. Mr. Richey outlined CEIU's role in the investigation (exhibit 1.7): The union generally gets involved during the stages where assistance is required quite often that’s assisting a member with the process in filing a complaint as well as during the hearing or ′′interview′′ itself. My understanding is that the union provided assistance to the complainant on the process at the time of filing the complaint. There is generally no further action to be taken by the union after that unless requested by any member affected by the ′′hearing process′′ by that I mean, anyone requested to appear before the committee. At that time, any member (including yourself) can request anyone to sit in with them as a witness during the hearing.
3 Mr. Richey also forwarded a copy of CEIU's policy and role in such investigations. The policy suggests that the member get advice from his union, or from a lawyer. It adds that, if an employee were to go to a lawyer, it would be at his own expense.
Mr. Sophocleous continued his efforts to get assistance or representation from CEIU. On July 25, 1997, he contacted Harry O’Brien, the regional business agent for CEIU (and PSAC) in Moncton. Mr. O’Brien confirmed Mr. Richey’s assessment that the administrative investigation was a management issue and that CEIU only gets involved if the employer acts on the complaint.
Mr. Sophocleous decided to contact a local lawyer, Brian Ripley. He felt that had no choice. He was forced to go this route to protect his interests. He was unable to get advice, support, or representation from CEIU, his own union, so he had to resort to using a lawyer. He had serious charges against him.
On August 19, 1997, the day prior to Mr. Sophocleous’ appearance before the investigative committee, he received a call from Kathryn Leger, another business agent for CEIU (and PSAC) in Moncton. She advised Mr. Sophocleous that she would be attending the interviews on the following day. She was in Sydney in response to a request for her presence by Donna Boutilier, the local shop steward. Ms. Leger explained to Mr. Sophocleous that her role was to ensure that the interview by the employer was performed properly. She would also ensure that the employer not infringe on his rights. She also offered to meet him that evening. Mr. Sophocleous declined the offer since he had a personal engagement that evening. Because of the time of the interviews in the next morning, Ms. Leger was not certain she could meet Mr. Sophocleous before his interview time.
Ms. Leger did meet with Mr. Sophocleous and his lawyer, Ralph Ripley, before Mr. Sophocleous’ interview with the employer’s investigators. She again explained that her role was to provide assistance to ensure that his rights were not infringed upon and that they not intimidate him. However, Mr. Sophocleous felt that Ms. Leger’s assistance would be of no use since she was also assisting the complainant against him. He also felt that she was not familiar enough with his case. Mr. Sophocleous, accordingly, went before the committee with his
4 lawyer’s assistance only. While Mr. Ripley did provide assistance to Mr. Sophocleous in the interview, he did not make representations to the committee on his client's behalf.
Ms. Leger again contacted Mr. Sophocleous on August the 20. She inquired about the interview. Mr. Sophocleous said that the interview went fine.
The complaint against Mr. Sophocleous was not substantiated. The investigative committee exonerated him.
The matter before this Board pertains to the representation received by Mr. Sophocleous during the investigation. Because he felt that he was not properly represented or assisted by CEIU, Mr. Sophocleous hired a lawyer. As a result, he incurred considerable expenses.
Following the committee interview, Mr. Sophocleous advised Mr. Pascucci, the national president of CEIU, that he felt that CEIU had not properly represented him. He requested that it offer him assistance with the legal fees that he had incurred. Mr. Pascucci replied that the CEIU had offered assistance to him through Ms. Leger. He added that any “legal assistance must be approved prior to incurring any expenses.”
In his response to Mr. Pascucci’s letter, Mr. Sophocleous summarized why he felt that Ms. Leger’s offer did not constitute sufficient representation or assistance. Among other things, Mr. Sophocleous felt that Ms. Leger could not offer impartial assistance to both opposing parties. Mr. Sophocleous also questioned the usefulness of Ms. Leger’s assistance because of her inadequate knowledge of his case.
In the same letter, Mr. Sophocleous added that, even if Ms. Leger’s assistance would have been useful, he still would have incurred some legal fees since he only heard from her on the day prior to the interview.
In an attempt to get CEIU to reimburse the legal fees he incurred, Mr. Sophocleous brought an action before small claims’ court. This action was adjourned sine die in order to bring the matter before this Board.
Summary of the Representation on behalf of the Parties Argument for the complainant
The complainant submits that CEIU failed to give him the assistance or representation that he was entitled to as a member of CEIU. In doing so, it violated section 23 of the Act.
In its violation under section 23, CEIU failed to do everything to get involved for Mr. Sophocleous as a member of the CEIU. He was completely turned down when he asked the CEIU for help.
In support of his allegation Mr. Sophocleous’ representative asserts that the CEIU offered more assistance or representation to Ms. Dunn. Mr. Sophocleous perceives the actions and positions taken by CEIU were biased in favour of Ms. Dunn.
The technical assistance provided to the complainant by the shop stewards of the local, by Ellen MacDonald, and by Ms. Leger shows that CEIU was acting unfairly towards him.
He had to get legal advice. His request in this instance is that the Board order CEIU to reimburse the legal fees that he incurred to protect himself.
Argument for the CEIU CEIU’s position rests on the distinction between the terms ′′assistance′′ and ′′representation′′.
CEIU acknowledges that it did offer assistance to Ms. Dunn. They assisted her in filing the complaint. However, they did not give her any representation at the hearing.
6 At all stages of the process no discipline had been brought to bear on Mr. Sophocleous. He did not require representation to present or defend charges against him. When he appeared for his interview before the investigation committee, he was not entitled to have someone make representations on his behalf. The committee had a factfinding role. He could have had a person there to assist him. Mr. Richey told him that in July. He could have had advice or assistance from CEIU had he asked for it. That was never denied to him by CEIU. Ms. Leger was in Sydney to provide that assistance at the interview. However, he declined her assistance, because he already had his lawyer.
The same assistance that Ms. Dunn had from CEIU was also available to Mr. Sophocleous. He declined to take advantage of it.
Mr. Tynes requested that the complaint be denied. He referred to the following cases : (1) Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298.
(2) Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509. (3) Azim Ruda and Public Service Alliance of Canada PSSRB File 1612821 (1997). Conclusion and Reasons for Decision Mr. Sophocleous alleges that the CEIU did not respect its statutory duty to represent him. His complaint is based on paragraph 23(1)(a) of the Act. 23. (1) The Board shall examine and inquire into any complaint made to it that the employer or an employee organization, or any person acting on behalf of the employee organisation, has failed
(a) to observe any prohibition contained in section 8, 9 or 10 ; (b) ... The complaint alleges that the CEIU failed to observe the prohibitions in subsection 10(2) of the Act:
7 10.(2) No employee organization, or officer or representative of an employee organization, that is the bargaining agent for a bargaining unit shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit.
The onus in this instance is on the complainant to establish that respondents' actions towards him in this instance were arbitrary, discriminatory or in bad faith.
This matter concerns the representation or assistance provided to Mr. Sophocleous by CEIU. I must decide whether CEIU’s actions were sufficient to meet its duty under the Act. If CEIU's actions were not sufficient, I must consider if CEIU must reimburse Mr. Sophocleous’ legal fees.
To support his claim, Mr. Sophocleous referred to several elements. He says that the CEIU local executive and stewards supported the complainant. They were getting others to provide information about him. A national vicepresident of CEIU, Ellen MacDonald, had also assisted her.
Although the letters by the stewards may illustrate a significant involvement on their part in Ms. Dunn’s complaint, they does not prove that CEIU took any action that would constitute representation or bias. They helped her prepare the complaint. The content of their letters treated procedural and technical issues. For example, they questioned the makeup of the committee and they wanted to know the questions that would be asked. This assistance does not establish that the CEIU was helping Ms. Dunn to mount a convincing case before the committee.
Mr. M ac Kinnon also alleges that the assistance offered by the CEIU to Mr. Sophocleous was not sufficient in the circumstances and unequal to the assistance provided to Ms. Dunn. However, the evidence presented before this Board suggests that CEIU never refused assistance to Mr. Sophocleous. On one occasion he was even advised that the CEIU would assist him, as well as to Ms. Dunn, as long as he wanted to have them. Mr. Richey advised Mr. Sophocleous early on (on July 22, 1997, in exhibit 1.7) that CEIU did not represent employees
8 at the committee interview. It would provide assistance and attend the interview. It was the same type of assistance afforded to Ms. Dunn. The evidence suggests that Ms. Dunn requested the CEIU’s assistance and took advantage of what assistance was available. Mr. Sophocleous, on the other hand, never specifically asked for assistance with the interview. He refused what assistance that Ms. Leger offered to him.
Mr. Sophocleous’ justification for refusing the assistance of Ms. Leger does not convince this Board. His reasons for rejecting Ms. Leger’s assistance were related to his belief that she was in conflict of interest since she also assisted Ms. Dunn in her interview.
However, this sort of reasoning does not take into account the type of assistance offered. Ms. Leger did not present Ms. Dunn’s case before the committee. It was not her function to do so. Rather, Ms. Leger was present to insure that the committee respected the employee's rights. The fact that Ms. Leger would assist both parties did not present a conflict since she did not have to take a position on the merits of the complaint. Ms. Leger was in Sydney to protect both employees from abuse of process by the employer.
Another reason offered by Mr. Sophocleous for refusing Ms. Leger’s assistance is the fact that Ms. Leger was very late to contact Mr. Sophocleous. She was not familiar with the case that he wanted to present.
Certainly, Ms. Leger was late in contacting Mr. Sophocleous. However, Mr. Sophocleous had the same opportunities to ask for assistance as Ms. Dunn had. He never did ask for assistance. The fact that Ms. Leger was not familiar with the case Mr. Sophocleous wanted to present before the committee is of little bearing on her ability to perform her functions at the interview, namely, to protect Mr. Sophocleous from procedural or other infringements upon his rights. The appearance before the investigative committee did not call for any further representation. In fact, the role of Mr. Sophocleous’ lawyer during the interview was exactly what Ms. Leger outlined. He provided assistance to Mr. Sophocleous, without making representations to the committee on his behalf.
9 Mr. M ac Kinnon suggested that CEIU did not offer enough representation to Mr. Sophocleous. In his view, the serious nature of the complaint lodged against him warranted the full support of CEIU.
However, prior case law has recognized that employee organizations have a wide degree of latitude concerning the manner in which they choose to assist employees. As long as an employee organization acts fairly, impartially, and in good faith, this Board will respect its decision.
The matter before the Court in Gagnon, supra, was the union’s refusal to take a grievance to arbitration. Admittedly, that was a different matter than the instant case. However, the court’s ruling touches on a union’s duty of fair representation.
In Gagnon the Court recognizes that a union has wide latitude in choosing what type of assistance or representation, that it will extend to an employee. The Court accepts the rationale in the U.S. Supreme Court’s decision in Vaca v. Sipes that (at page 520) : A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith
The same principle can be found from Gendron, supra. In that case the Supreme Court of Canada determined that (at page 1298) : when a union finds itself in a position of conflict regarding the interests of certain of its employees, it satisfies its duty of fair representation so long as it acts honestly, treats all members equally, does not act in a perfunctory or hostile manner and does not engage in favouritism.
In my view there is no evidence in this case that CEIU acted in a fashion that was arbitrary, discriminatory, or in bad faith. Rather, the evidence suggests that the CEIU treated both Mr. Sophocleous and Ms. Dunn fairly and equally. The CEIU had clear, cogent reasons for not offering to represent Mr. Sophocleous in a more engaged manner. In spite of the opinion to the contrary by Mr. Sophocleous, and his representative before this Board, not every interview with an investigating committee warrants intervention to the degree that Mr. Sophocleous wanted.
10 The administrative committee is established in accordance with the employer’s policy and is the responsibility of the employer. The normal process is that the CEIU offers’ ′′representation′′ to an employee once the employer has taken action against the employee. In this instance, no actions had been taken against the employee; rather the employer was conducting an internal investigation to verify a coworker’s complaint.
Mr. Sophocleous’ case was handled by the CEIU in a way that conforms to the normal process. He received advice from Mr. Richey and Mr. O'Brien. Ms. Leger offered him assistance at the interview. While Mr. Sophocleous might feel that the CEIU should have done more, it is not for this Board to decide what amount of assistance must be offered by CEIU. The Board in Shore (file 1612732) noted that subsection 10(2) is not meant to control the internal governance of the employee organization.
The matter that came before this Board in Azim Ruda, supra, bears some similarity with the present case. It concerns a complaint of unfair representation in the adjudication process against disciplinary action following a sexual harassment complaint. In that case, Mr. Ruda was not satisfied with the course of action suggested by the PSAC representative. Consequently, Mr. Ruda hired a lawyer and engaged considerable legal fees. He demanded repayment of the legal fees by PSAC. This Board turned down his request. The Board underlined that the employee organization can decide which way to best represent its members, as long as it undertakes its actions in good faith, and it ponders all relevant considerations.
In the instant case, CEIU had to decide what type of assistance or representation would be afforded to both parties. In this situation the CEIU chose to limit its contribution to assisting them in procedural matters. CEIU’s principal obligation was to act in a manner that was not arbitrary, discriminatory or in bad faith. This it did.
Consequently, on a review of the evidence and the case law, the only conclusion I can arrive at is that CEIU did not breach its duty of fair representation to Mr. Sophocleous.
In the result, these complaints must be and are hereby dismissed. Dated at Moncton, New Brunswick this 21st day of October 1998.
Donald MacLean, Board Member