FPSLREB Decisions

Files: 161-2-846 161-2-847 161-2-848

Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN HEATHER DOWNER Complainant and PUBLIC SERVICE ALLIANCE OF CANADA, UNION OF TAXATION EMPLOYEES AND DAVID FLINN

Respondents

RE: Complaints under Section 23 of the Public Service Staff Relations Act

Before: Donald MacLean, Board Member For the Complainant: David Buffett, Counsel For the Respondents: Michael Tynes, Public Service Alliance of Canada Heard at St. John’s, Newfoundland, March 23 and 24, 1998.

Decision Page 1 DECISION This case concerns the duty of fair representation that a union owes to its members. The complainant, Heather Downer, alleges that the union and its officers failed in its duty to represent her.

The evidence is that Ms. Downer began her employment with Revenue Canada, Taxation, in St. John's on a casual basis in February 1981. She has been an indeterminate employee with the Department since November 1982. During her tenure, Ms. Downer has occupied of number of positions with the Department. From 1982 until 1989, she was in the bargaining unit and she was a member of the union and alliance.

In October 1989, Ms. Downer became an acting supervisor. It was a management position which rose to the PM-04 level by 1993. During the period, she was excluded from the bargaining unit and the union because of her managerial duties and her responsibilities as the first level of the grievance procedure.

On July 12, 1996, while she was still in her acting supervisory position, Ms. Downer initiated a complaint of personal harassment against Jack Guiney, her immediate supervisor. Five days later, on July 17, 1996, three of the employees whom she supervised laid charges of personal harassment against her. In response, the employer set up an internal investigation into all four of the charges. The results of those investigations were that the charges by Ms. Downer deemed to be unfounded. At the same time, the claims of harassment against her were (well) founded. Because of the harassment report and a discipline report, the employer decided to act on the findings. The employer decided to impose a two-day suspension against Ms. Downer.

The employer gave her the notice of the two-day suspension on April 18, 1996. The dates of her suspension were for April 21 and 22, 1997. A second letter on the same date of April 18, 1996, informed her of her reassignment to the (district) tax services office in St. John's, at the PM-03 level. As of April 23, 1997, she was to no longer perform duties or fill the (acting) position at the PM-04 level. She returned to the bargaining unit under the same terms and conditions as other employees in the unit. She became a member of the union and the PSAC.

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Decision Page 2 At that time, she wanted to grieve both the two-day suspension and her re- assignment of job duties. She believed that both actions were disciplinary. While the suspension was outright discipline, the re-assignment was a disguised demotion to the PM-03 level. Later, the employer told her she would be assigned to a position at the PM-02 level in Clarenville. At the same time, she would retain her salary at the PM-03 level. She did not want to move to Clarenville (about 120 kilometres north of St. John's). She had concerns that such a move would be disruptive to herself and her family.

Ms. Downer sought the assistance from the union. She was leery of her local officers and membership. They had supported the complainants against her. The regional executive of the union was avoiding her. She and Mr. Jackman tried contacting Mr. Flinn the union president in Ottawa. Mr. Flinn turned the matter over to Pierre Mulvihill, a labour relations officer with the union.

Mr. Mulvihill was in St. John's on other business at the time. On May 30, 1997, Ms. Downer, together with her husband and Mr. Jackman, met with Mr. Mulvihill. His instructions from Mr. Flinn were to meet with Ms. Downer to see what help the union could provide to her. Mr. Mulvihill gave Ms. Downer some advice. He told her to write to her employer, and indicate that her deployment to Clarenville was not acceptable. Ms. Downer followed this advice, assuming that representation would be provided during subsequent proceedings. She, her husband and Mr. Jackman all came away from the meeting with a commitment from Mr. Mulvihill that finally he and the union would represent her to oppose the discipline and in the employer's action to move her to Clarenville. He personally would do the representations at the fourth level of the grievance process. He was her "saviour." Management was not going to kick her around anymore.

Shortly after May 30, 1997, the union and Mr. Mulvihill informed Ms. Downer that representation would not be provided to her regarding the two-day suspension and the demotion. The reason why they would not do so was because she was not in the union at the time the discipline was imposed. According to Mr. Mulvihill, no management employee would receive assistance from the union. They were part of the management team. She was an excluded person at the time of the discipline.

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Decision Page 3 They would, however, represent her on the attempts by the employer to transfer (deploy) her to another locality.

The refusal of the union to represent her confirmed her belief that the local membership and the regional officers had influenced the national president to refuse representation to her. The local and the regional office had previously been involved in the original complaints against her. She was on their hit list. They wanted her to be fired.

In July 1997, Ms. Downer filed three complaints under the Act against the Public Service Alliance of Canada, the Union of Taxation Employees and its President, David Flinn. She alleged that they had not fulfilled their duty of fair representation towards her. They had acted in a manner that was arbitrary, discriminatory and in bad faith.

The issue for this Board is whether the respondents have an obligation to represent Ms. Downer in her grievance against the employer for the discipline she received in April 1997 while she was employed at the PM-04 level.

SUMMARY OF THE REPRESENTATIONS ON BEHALF OF THE PARTIES Argument for the Complainant, Heather Downer Counsel for Ms. Downer submitted that the union violated the Public Service Staff Relations Act, by not providing representation for her and by acting in bad faith and in a manner that was arbitrary and discriminatory.

When Ms. Downer went to the union for help, she was a member of the union in good standing. On the recommendation of Mr. Mulvihill, Ms. Downer took action and sent letters to her employer that could jeopardize her future employment opportunities. She understood that the union would provide her with representation at the various levels (of the grievance and arbitration process).

Counsel suggested that, when Ms. Downer met with Mr. Mulvihill, the union was aware that at the time the discipline occurred, she had not been a member of the union. Despite this knowledge, he gave her advice, and she took steps to comply with

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Decision Page 4 his direction. She sent him a file of all her personal information. She was prejudiced in doing so.

There is no section in the Act that restricts union representation to an employee only when she is a member of the bargaining unit. She altered her position because of their actions. The union cannot resort to the fact that she was outside the union when the employer disciplined her.

Representation by the union was denied only after the national office reviewed the matter. It was argued that this fact is evidence of the “higher forces” within the union. Members of the union were attempting to limit Ms. Downer’s availability to representation.

Counsel submits that the union is now estopped from denying representation to Ms. Downer. She acted on their representations to her detriment. The words and actions of the union have altered the legal relationship between her and the union. The union cannot now rely on the fact that Ms. Downer was outside the union at the time that the discipline on the allegations of harassment arose.

They decided to not represent her for reasons other than her exclusion from the union.

Counsel relied on the following cases: Re Eurocan Pulp & Paper Co. and Canadian Paper Workers Union, Local 298 (1990), 14 L.A.C. (4th) 103; Engineered Homes Ltd. v. Juniper Lands Ltd. (Trustee of), [1983] 1 S.C.R. 641; National Union Fire Insurance Co. of Pittsburgh v. Martin, [1924] S.C.R. 348; Carol A. Beaver and B.C.G.E.U., [1985] B.C.L.R.B. 244; and Wainwright School Division No. 32 and Canadian Union of Public Employees, Local 1606, (1986), 23 L.A.C. (3d) 172.

Counsel distinguished the decision in Lopez v. Canadian Union of Public Employees, ([1989] O.L.R.B. Rep. May 464). He suggested that the case involved representation of a worker in a compensation application. The instant case involves representations to the employer directly.

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Decision Page 5 Argument for the Respondents - Union The representative for the union stated that the actions of the union towards Ms. Downer were not arbitrary, discriminatory or in bad faith.

He suggested that while the union was sympathetic to Ms. Downer personally and was sympathetic to getting her problems resolved, there was no duty to provide representation for her because the subject of the grievance arose during Ms. Downer’s tenure in a managerial position. She was the first level of the grievance process. She was excluded from the bargaining unit at the time that the employer imposed the discipline. The fact that Ms. Downer later became a member of the union does not give rise to a duty or obligation of representation for incidents that occurred when she was not in the union.

Mr. Tynes indicated that although union assistance was provided to Ms. Downer, the assistance was voluntary. They made no promises that she would receive further representation. The union fulfilled its obligations to her by meeting with her to assess the situation and to determine if representation was appropriate. When the union decides to withhold representing her, one cannot infer that the union is acting in an arbitrary or discriminatory fashion.

The union decided to not represent her on the grievances because she was not in the union when the grievances arose. They did not refuse to represent her because they did not like her or because they were out to get her.

The union referred to the union policy that deals with cases of harassment. It must be carefully considered. The union must review situations of alleged harassment and consider the general welfare of the union members in their collective. The union does not always grant representation in cases of this nature.

Lastly, Mr. Tynes noted that disciplinary grievances do not need the permission of the union to be pursued. Whether or not Ms. Downer was a member of the union would have no bearing on whether she could file, or process a disciplinary grievance on her own.

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Decision Page 6 The representative referred to the following cases: Clements (Board file 161-2-707); Jacques (Board file 161-2-731); and Lopez v. Canadian Union of Public Employees, [1989] O.L.R.B. Rep. May 464.

CONCLUSION AND REASONS FOR THE DECISION I intend to review the authorities cited by the parties and the principles noted in those cases. Then, I will review the evidence and how the arbitral principles impact on the evidence. Finally, I will determine the relevant issues that lead to my decision.

The Board in the Lopez decision states (in paragraph 12, at pages 14 to 15): ... the Board regards the duty of fair representation as restricted so that the extent of the duty is coextensive with the extent of the union’s authority as exclusive bargaining agent. The duty of fair representation was enacted as a counterweight to the restrictions on individual employee rights inherent in the creation of a collective bargaining regime in which the bargaining agent was granted exclusive rights to bargain on behalf of all employees in the bargaining unit, whether or not union members. The duty of fair representation serves to protect the individual from decisions of the bargaining agent which could be characterized as arbitrary, discriminatory or in bad faith.

The authorities cited in Lopez suggest that the duty of fair representation is to fairly represent employees in the bargaining unit. In this case, Ms. Downer was not a member of the bargaining unit at the time that the events, which comprise the grievance, arose. While she became a union member later, the union has no duty or obligation to represent Ms. Downer in the instant grievance proceedings. Neither does her subsequent membership in the union give rise to a duty of fair representation for events that arose prior to her membership in the union.

In the Clements case, the complainant was a managerial exclusion. He was not in the bargaining unit, nor was he covered by the collective agreement. He was not an employee under the Act. The Board decided that there was no duty on the union to represent the complainant, since he was not an employee in the bargaining unit at the time.

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Decision Page 7 Similarly, the complainant has not provided me with any authority that imposes an obligation on a union to represent an employee for incidents that occurred while she was not in the bargaining unit.

Counsel for Ms. Downer relied on the principles of estoppel. He submitted that the union is now estopped from denying representation, because of their actions, words and representations to Ms. Downer.

While the union tried to help Ms. Downer, that assistance does not mean that the doctrine of estoppel becomes applicable in this instance.

The Board accepts the reasons in Lopez (supra) (in paragraph 24, at page 35), where the Ontario Board stated: ... without statutory or inherent jurisdiction to review the contractual relationship between a union and its members, as expressed in the union’s constitution and bylaws, the Board cannot enforce that relationship. Nor can the Board rely on a doctrine akin to estoppel to require the union to continue its representation as a matter of equity because of the union’s conduct in initially representing the complainant, when the Board lacks the jurisdiction to supervise the relationship between the union and its members beyond the confines of the collective agreement, its negotiation and administration ...

In the instant case, the Board concludes that principles of estoppel cannot be used to enforce a relationship between the union and Ms. Downer that, at the time that her grievance arose, was beyond the confines of the collective agreement.

The Board also considered the case law that recognizes the discretion a union enjoys, when dealing with issues of representation. While the union must exercise this discretion in an objective and honest fashion, an employee does not have an absolute right to representation.

The decision in Jacques (supra), (at page 19), is instructive: In Merchant Marine Guild of Canada v. Guy Gagnon et al. [1984] 1 S.C.R. 509, the Supreme Court of Canada discusses the union’s responsibility to represent its members. It becomes clear that although there is a duty of representation toward members, employees do not have an absolute right to arbitration and the union enjoys considerable discretion. The Supreme Court of Canada does, however, establish that the

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Decision Page 8 discretion enjoyed by the union must be exercised in good faith, objectively and honestly, after serious study of the case, while considering the significance of the grievance and the consequences for the employee, as well as the legitimate interests of the union. In all circumstances, the union’s decision must not be arbitrary, capricious, discriminatory or abusive.

In this case, the union had to consider their responsibility to each individual member and to all members of the union collectively. They also had an obligation to consider their internal policies that seek to eliminate harassment in the workplace.

While the union decided that it would not provide representation to Ms. Downer, the evidence does not suggest that the union exercised its discretion in an abusive or arbitrary fashion. It met with Ms. Downer and assessed her situation. It came to a decision that was within its discretion to make. It had objective reasons for making its decision. The discipline arose while she was part of management. She was not an employee in the bargaining unit or under the collective agreement.

The complainant argues that the union decision to not represent her was motivated by arbitrary, capricious, abusive or discriminatory factors. However, she was unable to substantiate her allegations to the degree necessary in such instances. She produced no evidence that confirms her suspicions. Without such evidence from the testimony or the documents, this Board will not manufacture such inferences out of impressions or conjecture. There was no evidence that the union, as represented by Mr. Flinn, Mr. Bean, or Mr. Mulvihill, came to its decision by using improper motives. The evidence is in fact otherwise. They had clear cogent reasons for not representing her. She was not in the union when the employer disciplined her.

After a review of the evidence and the case law, the only conclusion the Board can come to is that the union did not breach its duty of fair representation to Ms. Downer.

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Decision Page 9 In the result, these complaints must be and are hereby dismissed.

Donald MacLean, Board Member

MONCTON, June 4, 1998.

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