Date: 20210315

Files: 561-02-570 to 574

 

Citation: 2021 FPSLREB 27

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

GAELEN JOE, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN), AND MATSQUI LOCAL, UCCO-sacc-csn

Complainants

 

and

 

Janelle Marshall, Shelley Boyer, Corinne Justason, Vince Leblanc, Mark Bussey, and Treasury Board (Correctional service of canada)

 

Respondents

Indexed as

Joe v. Marshall

In the matter of complaints made under section 190 of the Federal Public Sector Labour Relations Act

Before: Chantal Homier-Nehmé, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainants: Corinne Blanchette, UCCO-SACC-CSN

For the Respondents: Marc Séguin, counsel

Heard at Abbotsford, British Columbia,

November 22 to 24, 2016, and January 9, 2017.

(Written submissions filed July 12, August 20, and September 6, 2012,

October 16 and 29 and December 11, 2014, and

March 3, 25 and 31, 2015.)

REASONS FOR DECISION

I. Introduction

[1] On June 21, 2012, Gaelen Joe (“the local union president” or “the complainant”) made five separate complaints under s. 190(1)(g) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the PSLRA”), as it was then named. When he made them, he was a correctional officer, level 2, and was the elected local union president of the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN or “the union”) at the Matsqui Institution (“the institution”) of the Correctional Service of Canada (CSC) in Abbotsford, British Columbia. He allegedly did not know of the events that gave rise to the complaints until March 26 and April 21, 2012, which the respondents did not challenge.

[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 to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 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 s. 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 continued under and in conformity with the PSLRA as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

[3] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

[4] The complaints stem from a disciplinary investigation into allegations that the local union president instigated a concerted effort to target and discredit Acting Correctional Manager Shelley Boyer. He claims the investigation was instigated following the provision of false information by Ms. Boyer and another Acting Correctional Manager, Janelle Marshall. He alleges Deputy Warden Corinne Justason and Assistant Warden of Operations Mark Bussey then advocated to Warden Vince LeBlanc in favor of an investigation and the removal and transfer of the complainant to another institution knowing the allegations had no substance. Finally, he asserts Warden LeBlanc approved the removal and investigation of the complainant. During that investigation, the complainant claims he was prohibited from accessing areas of the institution where correctional officers are assigned and no longer had access to the union office and bulletin board. This prevented him from sharing information with members of the union and representing them.

[5] The investigation determined that the local union president did not actively target Ms. Boyer and no disciplinary action was taken against him. However, the local union president alleges that the respondents’ actions were abusive, that they interfered with the representation of employees by the union and that they were a scheme to discourage union members from exercising their rights. He asserts these actions violated s. 186(2)(a)(i) of the Act by interfering with the representation of union members, s. 186(2)(a)(iv) and 186(2)(b) by restricting the complainant’s access to Matsqui Institution, and s. 186(2)(c) by discouraging him to find a resolution to harassment issues reported by his members against Ms. Boyer.

[6] The Treasury Board, as the employer and representing the respondents with respect to the present complaints, submits that employees have the right to raise concerns and if the employer finds merit in those concerns, then as a matter of due diligence and fairness, it must investigate those concerns. Raising concerns and initiating an investigation does not constitute an unfair labour practice. Nor were the actions carried out before or during the investigation motivated by anti-union animus or to prevent the complainant from carrying out his union activities.

[7] For the reasons that follow, I find that the respondents committed unfair labour practices and that they breached s. 186(2) of the Act. The evidence established that the allegations that prompted the investigation into the local union president were fabricated for the purposes of instigating an investigation and of removing him from the institution, thus preventing him from exercising his lawful rights under the Act and, most importantly, from representing employees.

II. Summary of the evidence

[8] The local union president testified that he is the employees’ main conduit to management. He meets with unionized employees and with management at Regional Headquarters on all ongoing labour relations matters. Before his removal and the investigation into him, he had full access to the institution and its facilities and could meet with employees in person or by phone. Before the investigation, he never had to ask permission to enter the institution and never had to state why he was going to a specific area. He never had to provide management with the names of the employees he was to meet with.

[9] He recalled that on December 26, 2011, an employee contacted him to discuss a complaint against Ms. Boyer. The employee alleged that Ms. Boyer refused to follow the long-standing practice of letting employees go home early on statutory holidays. The employee alleged that he was held at work until 19:45. But Ms. Boyer let Ms. Marshall go home earlier. The employee felt targeted as a visible minority and felt that Ms. Boyer showed preferential treatment to her friend. He also alleged that Ms. Boyer gave special treatment to Ms. Marshall in her allocation of overtime. The employee wanted the local union president to bring it up with management. Other employees complained that they felt targeted due to their ethnicity and that Ms. Boyer’s conduct was racist. Some complained that she harassed them, shouted at them, and belittled them.

[10] Ms. Justason was the deputy warden on an acting basis on assignment at the institution from January to March 2012. On January 5, 2012, the local union president and the local grievance coordinator met with her and Mr. Bussey to discuss these matters. The local union president recalled that Ms. Justason stated that she needed the dates and times that supported the allegations. She testified that she understood the local union president’s main concerns to be that Ms. Boyer played favourites with her friends and that she made racist decisions. Ms. Justason stated that if there was any truth to it, then it had to stop. She asked the local union president to provide her with information as to who, what, when, and where. He brought the allegations to her attention as conclusions. She testified that they were inflammatory and that they deserved all her attention. In cross-examination, she agreed that the local union president attempted to resolve the matter informally.

[11] The local union president also recalled informing Ms. Justason and Mr. Bussey about his personal complaint against Ms. Boyer. He had heard that Ms. Boyer had said that she wanted to get rid of him as the local union president. In cross-examination, he specified that he had wanted to make sure that the allegation was substantiated before he made a formal complaint against her.

[12] At the meeting, Ms. Justason warned him about soliciting information against Ms. Boyer as it could be perceived as harassment. She testified that in her view, there was a difference between receiving and soliciting information. Ms. Justason stated, “A person has the right to face their accuser.” She was concerned that the local union president was soliciting complaints against Ms. Boyer. He stated, “If you need more, tell me, and I will give you more.” She recalled telling him that if anyone behaved in that manner, she would deal with that person accordingly. His statement gave her the impression that he was fishing for more than what was happening in the workplace.

[13] Ms. Justason felt strongly that the local union president was asking employees if they had heard Ms. Boyer making racist decisions or remarks. She was concerned that this conduct could potentially create rumours, which would create a perception that Ms. Boyer was in fact racist. That would be completely impossible to undo. When she warned him, the local union president responded, “Sign me up, or add me to the list,” or something to that effect. He handed her documents signed by the complaining officers. She informed him that she would investigate it, that she would talk to Ms. Boyer to obtain a balanced perspective of the employees’ concerns, and that if further review were required, she would go from there.

[14] The local union president responded that he understood her warning. He testified that he was simply attempting to gather the information to provide Ms. Justason with the particulars, as she had requested. As for his personal complaint against Ms. Boyer, he wanted Ms. Justason to investigate and address it. Moreover, the bargaining unit members were putting pressure on him to resolve their complaints against Ms. Boyer. He followed up with Ms. Justason on January 9, 2012, but she had not yet had the chance to investigate it.

[15] In cross-examination, the local union president agreed that it was inappropriate to solicit complaints against a colleague. But after his meeting with Ms. Justason and Mr. Bussey on January 5, 2012, he did not solicit any complaints. He simply went up to employees to see how things were going. But he never specifically targeted anyone. Employees would come to him with their complaints.

[16] In further cross-examination, counsel for the respondents stated that Ms. Justason would testify that based on the information before her, it was clear that the local union president was soliciting information against Ms. Boyer. He disagreed. He stated that he told the members to let time take its course. He did not make phone calls to Officers Jason Palmer and Justin Ott as Ms. Marshall alleged in an observation report that will be discussed later in this decision. He did not solicit any information from them or encourage them to make complaints.

[17] On January 8, 2012, Ms. Justason met with Ms. Boyer and Mr. Bussey for the first time. Ms. Justason was mindful that it was an awkward first meeting for Ms. Boyer, who was a correctional manager on an acting basis. She wanted to hear Ms. Boyer’s side of the story. Ms. Boyer provided a reasonable explanation of her decision, despite the practice of letting employees go home early. She explained that a correctional officer had come to her office who was very emotional. She said that she lost track of time, that she found it unfortunate for the other employees, but that she chose to prioritize the upset correctional officer. The affected officers were not aware of the reasons for Ms. Boyer’s decision.

[18] With respect to scheduling correctional officers. Ms. Boyer denied playing favourites. She denied shouting at the officers who reported to her, and she denied slamming her hand on a desk. She had instructed the officers involved to provide relief to other officers. They did not want to, so Ms. Boyer informed them that doing so was a priority. She denied berating them, even when they initially refused her instruction. Ms. Justason found her explanation credible. She then further inquired with the other officers present that day. They corroborated what Ms. Boyer had said. They stated that she did not shout and that she did not become physically aggressive. However, the correctional officer stated that Ms. Boyer did have a tone. In cross-examination, Ms. Justason stated that she did not recall cautioning Ms. Boyer about anything.

[19] Ms. Justason’s chronology of events referenced the fact that Ms. Boyer informed her that a correctional officer had approached her and had expressed concerns about being in the “middle” of the situation and about feeling uncomfortable. Ms. Boyer advised that that officer had been approached and coached on what to say about what had occurred between her and the officers complaining against her. The officer was not named in her chronology. There was no evidence that she tried to find out who it was.

[20] Ms. Justason referenced her chronology of events, which indicated that she met with the local union president and vice president at their request on January 8, 2012. The local union president wanted an update on the status of the complaints. She reminded them that it had been only a couple of days and that she needed to make an educated decision before she discussed the matter further with them. She committed to getting back to the local union president by the end of that week.

[21] The local union president brought up additional concerns. Ms. Justason did not clarify them in her chronology or at the hearing. Her chronology indicates that she informed him that she would not participate in anything that looked like a witch-hunt and that she would investigate the allegations but not carry out an actual investigation. He encouraged Ms. Justason to speak with the officer who witnessed the alleged incident between Ms. Boyer and the officer who complained.

[22] Ms. Justason testified that on January 11, 2012, Ms. Boyer came to see her because she was concerned about an organized attempt to target her and to remove her from her position. Some officers had expressed anger and offence to Ms. Boyer. They hoped that management would intervene so that the behaviour would stop. Ms. Boyer was upset by the developments and the perception that different camps were forming. Ms. Justason stated that she consulted the regional conflict management coach for assistance.

[23] On January 12, 2012, Ms. Justason recalled that Ms. Boyer requested a meeting with her and Mr. Bussey, as well as the other correctional managers on shift that day. She provided Ms. Justason with an observation report completed by Ms. Marshall. It indicated that the local union president had phoned correctional officers Mr. Ott and Mr. Palmer during their shift to collect additional complaints against Ms. Boyer. The correctional managers considered the local union president’s actions as harassing Ms. Boyer. Ms. Boyer was visibly upset. She stated that she continued to struggle with the situation and that the correctional officers who reported to her were now taking sides. She expressed that she felt that she was being harassed by the local union president.

[24] In cross-examination, Ms. Justason stated that she did not find it unusual that the observation report was not signed. She stated that perhaps it was contrary to policy, but she did not find it unusual. She disagreed that Ms. Marshall should have signed it because no security incident was involved. Ms. Marshall could have written her observations on anything. Ms. Justason had no reason not to believe Ms. Marshall. She did not find it necessary to confirm or discard the observation report by verifying the Genesis phone system call log. She disagreed that she should have informed the investigator about verifying the call log.

[25] The local union president called Mr. Ott as a witness. At the time of the relevant events, Mr. Ott was a shop steward with the local union. He testified that he reviewed the observation report before testifying. His conversation with the local union president pertained to the agenda that he was to bring up with Ms. Justason. He recalled the incident. It was about a complaint against Correctional Manager Boyer that had been made by Indo-Canadians. Mr. Ott explained that he had no interest in having Ms. Boyer removed from the institution. He had no issues with her. Mr. Ott explained that Mr. Leblanc had asked him to collect information pertaining to allegations that had been made against Ms. Boyer because Mr. Leblanc wanted to deal with them. As a shop steward, Mr. Ott was privy to these issues going around.

[26] Mr. Ott explained that on the day in question, Ms. Marshall attempted to glean information from him. She was friendly to him and tried to obtain information for Ms. Boyer, but he never shared any with her. When the local union president was removed from the institution, Mr. Ott felt that it was an attempt by the warden to send a message to the union. He felt that the warden was attempting to break up the union. He was concerned that he could be disciplined for performing union duties. Mr. Ott felt that the local union president was being punished and attacked for doing his job. On January 5, 2012, the “Report: Roll Call” document for the institution, at page 10, indicates that he was assigned to post 110A — number one-unit supervision. He was not with Ms. Marshall or Mr. Palmer. The document indicates that Ms. Marshall was assigned to post 210A, unit three supervision, and that Mr. Palmer was assigned to unit 210B, number three-unit supervision. Mr. Palmer was off that day due to a family related illness. The respondents did not cross-examine Mr. Ott.

[27] Mr. Palmer, a correctional officer, was called as a witness for the local union president. He did not see Ms. Marshall’s observation report. He recalled that at some point, someone asked him if he remembered receiving a phone call from the local union president to obtain information against Ms. Boyer. He stated that he never received one from him in that context. He recalled the investigation into the local union president. He confirmed that his statement was an accurate reflection of his testimony. In cross-examination, Mr. Palmer was firm that no such phone call, as described in Ms. Marshall’s report, ever took place.

[28] In rebuttal evidence, the local union president testified that he did not phone the institution on January 5, 2012. He had no reason to call Mr. Palmer because they had met that afternoon. He obtained his phone records. There was no record and no evidence of him phoning anyone during that time. He was out with a friend that night. He provided his call logs to Mr. Bussey, Mr. Leblanc, and the deputy commissioner. They were not interested in his phone record. He provided them after the investigation. Mr. Leblanc told the local union president that he had been exonerated by the investigation, so there was no need for the phone records. The local union president felt that he had gone through all this for nothing and that the investigation had targeted him.

[29] In cross-examination, it was suggested to the local union president that he could have used his friend’s phone or his home phone to make the call. He was firm in his answer that his cell phone is his primary phone and that he did not make any phone calls to the institution that evening.

[30] Ms. Marshall testified that she wrote the observation report. Her shift was from 07:00 to 16:00. Ms. Boyer asked her to step into her office. She inquired if Ms. Marshall was aware of her meeting with management about complaints that had been made against her. Ms. Marshall informed her about the phone calls she had overheard between the local union president and Officers Palmer and Ott. Ms. Boyer asked her if she could write about what she had observed before her shift rotation.

[31] Ms. Marshall stated that she was working on the third floor of the living unit. She heard conversations that began with two phone calls at the desk at which she sat. She testified that she did not recall all the details of that night but that she remembered the gist. She recalled that Mr. Palmer and Mr. Ott had conversations about persons having complaints about Ms. Boyer and the need to find enough people to complain about her. Both times, she answered the phone. Mr. Palmer discussed the conversation with her and stated that it was from the local union president. She stated that it was possible that, the events took place on January 6 and not on January 5, 2012. She wrote the observation report a week later only because of her conversation with Ms. Boyer, who asked her to write it. The work environment at the time was toxic. There was significant head-butting between the union and management. She was not surprised that the union was collecting information about Ms. Boyer and about her not being an appropriate manager.

[32] Ms. Marshall stated that Ms. Boyer did not want her to sign the observation report because it was about her. Ms. Marshall took the observation report to Ms. Justason and left it with her administrative assistant but forgot to sign it. Ms. Marshall recalled being interviewed. She confirmed that her statement in the investigation report is accurate. She recalled that either Mr. Palmer or Mr. Ott used the word “ammunition”. She did not speak to anyone else about her report.

[33] Ms. Marshall explained that Mr. Leblanc approached her about her observation report sometime after she wrote it but before the investigation. He approached her to discuss it with her because the local union president stated that it had not occurred. Mr. Leblanc wanted to pull the institution’s phone records. She gave him the information he was looking for. He went to her a second time and told her that the phone system log had been broken for several months, without anyone’s knowledge. He told her that the local union president insisted that he had not called the institution from his cell phone. Mr. Leblanc was looking at hiring an expert to restore the call log, to see all incoming calls. It would have cost over $10 000 for someone come in and fix it. He could not justify it because the cost was too high.

[34] In cross-examination, Ms. Marshall confirmed that her immediate supervisor did not want to take the observation report to Mr. Bussey because Ms. Boyer had asked her to give it to Ms. Justason. She did not leave a copy with Ms. Boyer. She could not explain the discrepancy between her testimony and that of Ms. Boyer, but she was the one who gave the observation report to Ms. Justason.

[35] In further cross-examination, Ms. Marshall stated that she was not friends with Mr. Ott or Mr. Palmer and that everyone at the institution discussed the complaints against Ms. Boyer. She confirmed that for all of January 2012, she was in a position on an acting basis of four months less a day.

[36] Ms. Justason explained that it was a strange time for her at the institution. She had been there for only a few days when it all began. She stated that the employees there were a suspicious bunch. She was a complete unknown there. She received unsolicited emails and letters in envelopes. Within the context of serious allegations of racism and favouritism against a correctional manager, the information that was provided to her stated that the institution was a mess. Camps were forming. Employees were taking sides. She took all these things seriously.

[37] Rachel Robinson, a correctional officer at the institution, was called to testify on behalf of the local union president. As of the hearing, she had been working for the CSC for over 14 years. She testified that Ms. Boyer had asked her to write a letter in support of Ms. Boyer. She stated that on January 12, 2012, Ms. Boyer removed her from her post and sent her to the break room to write the letter.

[38] Ms. Robinson testified that Ms. Boyer told her to correct some things in her letter. Given what was going on at the time at the institution between management and staff and with staff against staff, Ms. Robinson felt that a letter was warranted. The last paragraph in the letter is not hers. Ms. Boyer told her to write it and told her to state that she felt that it was “… completely unfair and the allegations being made against [Ms.] Boyer, in [her] opinion, have no grounds except for the simple fact some people resent being asked, or expected, to do their jobs.”

[39] Ms. Robinson testified that Ms. Boyer told her that the local union president was trying to solicit complaints against her. Ms. Robinson disagreed with that statement. The local union president had always been professional and had never solicited any information against anyone. He came to her as her union representative and asked her if everything was OK.

[40] Ms. Robinson testified that she was angry at the fact that her letter was used against the local union president to justify an investigation. She was angered at the fact that her words were used against someone without her knowledge and against her intentions. Once she printed the letter and returned to the computer, it was deleted from her desktop. She handed it to Ms. Boyer, who took it and said, “Thank you. That will do,” or something to that effect.

[41] In cross-examination, Ms. Robinson confirmed that the first paragraph of her letter was accurate. There was conflict at the institution, and she wanted to stay out of it. Paragraph two was also accurate. There was considerable stress from problems between management and staff and from staff being against staff. She did not want to write paragraph three. She wanted to stop at paragraph two. Ms. Robinson stated that Ms. Boyer wanted her to add the third paragraph. Ms. Boyer stated that she wanted to “catch” the staff working in the segregation unit. Ms. Robinson stated that she completely disagreed with the last line of paragraph three. She felt threatened by Ms. Boyer, who stood over her shoulder and told her to write, “I feel this is completely unfair and the allegations being made against CM Boyer, in my opinion, have no grounds except for the simple fact some people resent being asked, or expected, to do their jobs.” She felt uncomfortable with it and felt that she could not go to her superior. It was a hostile environment. She could not bring these matters up with management.

[42] The respondents called Ms. Boyer to testify. She denied that she asked Ms. Robinson to add that line to the letter. She stated that paragraphs one and two are true statements. She did not agree with paragraph three. She was not present when Ms. Robinson wrote the letter and did not tell her what to write. She did not recall receiving a letter from Ms. Robinson, and she did not solicit information from Ms. Robinson or other union members. So much was going on at the time that she does not remember receiving a letter. Until she received the information from the investigation, she had never seen that letter.

[43] In cross-examination, Ms. Boyer stated that she was not present when Ms. Robinson wrote the letter and that she did not tell her to write it. She stated that had Ms. Robinson given her a letter, she would have given it to Ms. Justason.

[44] In further cross-examination, Ms. Robinson stated that she agreed with the findings of the investigation into the local union president. He had done nothing wrong. He only ever asked if she had any issues; he never mentioned names. Ms. Robinson did not speak up about any issues she had with the investigation. She could not because she did not feel secure. She had to be careful with respect to what she said because she did not feel safe. She felt that she always had to watch over her shoulder. She could not raise any issues with her statement in the investigation.

[45] In redirect examination, Ms. Robinson was asked why she could not bring her issues to Mr. Bussey. Ms. Robinson stated that there was a strong environment of intimidation and favouritism at the institution at that time. Had she gone to Mr. Bussey, she would have put herself in the line of fire. She did not trust him. The behaviour she saw from him and his correctional managers made her feel unsafe to bring up her concerns.

[46] Mr. Bussey was called to testify on his behalf and on that of the respondents. In response to Ms. Robinson’s testimony, he testified that he takes every complaint at face value and makes it clear that he will investigate them. He investigates, which is why he thinks that she did not go to him; it’s how he handles things. He never saw the letter that Ms. Robinson wrote in support of Ms. Boyer. Mr. Bussey stated that there was a perception that he went out of his way to protect Ms. Boyer and that he did not know why there was such a perception.

[47] In cross-examination, Mr. Bussey stated that his management style is not to tell employees whether he’s disciplined a correctional manager; he would not share that with them. He understands that the perception is that he would protect Ms. Boyer and not inquire, but that’s not the case. Most employees feel comfortable going to him about any correctional managers reporting to him. If the origin is that they felt that he was protecting her and that that’s the reason for not coming to him, then he cannot do anything about that.

[48] In cross-examination, Ms. Justason stated that she did not know that Ms. Robinson had felt threatened and forced to write the letter in favour of Ms. Boyer. It was news to her. Ms. Robinson should have approached management at the time. It might have changed her recommendation. But she could not be definite because it did not happen.

[49] In further cross-examination, Ms. Justason stated that she did not believe Ms. Robinson’s testimony. When it happened, Ms. Robinson did not approach the union or management. She did not mention it in the investigation. Ms. Justason stated that she was skeptical of Ms. Robinson’s testimony and that four years after the fact, she recanted. She agreed that it could be that she had trust issues. She could not speculate whether she felt afraid or threatened.

[50] The local union president called Beverley Scorey to testify. She is a correctional officer at the institution. On January 12, 2012, Ms. Scorey emailed Ms. Justason to inform her that she had recently heard from some officers that they had been approached to participate in a harassment charge against Ms. Boyer. She indicated that no one who spoke to her about it would participate but that one officer, who is a visible minority, claimed that he would love to come to Ms. Boyer’s defence but that he could not, for fear of reprisal. She explained that she did not know that the basis of her email would be used to justify an investigation into and the removal of the local union president from the institution.

[51] Ms. Scorey testified that when she participated in the investigation, she left the meeting with the investigator very confused because the investigator asked her about the local union president. In her mind, he was never involved. She never made that connection. She felt angry that her email was used for this purpose. In her opinion, the local union president is friendly, hardworking, and a natural politician. She always felt that she could go to him for anything, even on his days off. She stated that he was a good guy. He never approached her to make a complaint against Ms. Boyer.

[52] In cross-examination, Ms. Scorey stated that she stands by that letter and that she wrote it because it says she did. Ms. Boyer was a strong and strict correctional manager. Ms. Scorey said that some correctional officers had no issues with working in that environment. And some correctional officers said things about Ms. Boyer that Ms. Scorey did not agree with.

[53] Ms. Susan Koch-Chey, a correctional officer at the institution, testified on behalf of the local union president. On January 14, 2012, at Ms. Boyer’s request, she emailed Ms. Justason. She did not know that it would be used to justify the investigation into and the removal of the local union president. She simply shared her experience and her interaction with Ms. Boyer. She did not intend to make a complaint against the local union president. She was horrified that her email had been used for that purpose. In response, Ms. Justason thanked her for sharing her positive interaction with Ms. Boyer. She had no recollection of participating in an investigation. She never met with anyone.

[54] In cross-examination, Ms. Koch-Chey stated that she was never interviewed by the investigator. She never met him. She emailed Ms. Justason because she did not think that the negative comments, she was hearing about Ms. Boyer were true.

[55] Ms. Boyer explained that her relationship with the local union president was strained. In 2009, she ran against him for the local union president position. She guessed that he did not like that and that he never forgave her for it. Ms. Boyer stated that there were many rumours against her. There were also many complaints, and she did not understand why so many had been made. She recalled an incident in which she directed two correctional managers to relieve two other officers. She went to their VNC to see what they were doing, and she put her hand on the Dutch door and asked them why they did not follow her direction. One of the officers was on the Internet. Later that day, she made sure that he lost his Internet access. She explained that her style is firm but fair. She expects correctional officers to do their job, and if they do not, she calls them on it. She testified about other types of complaints against her that staff had made and that ultimately were determined unfounded. One was the complaint about not letting officers leave early on Boxing Day.

[56] Ms. Boyer recognized the email sent by Correctional Officer Doris Cloutier to Ms. Justason on January 14, 2012. It was in support of her and her management style. She denied that she asked Ms. Scorey and Ms. Koch-Chey to send emails on her behalf to Ms. Justason. In cross-examination, Ms. Boyer testified that she did not recall the first time she saw that email.

[57] In cross-examination, Ms. Boyer admitted that she asked Ms. Marshall to prepare the observation report but stated that she did not ask her to give it to Ms. Justason. She did not recall taking the report. When she looked at the chronology of events prepared by Ms. Justason, Ms. Boyer agreed that if she received the observation report, then she must have given it to Ms. Justason.

[58] In further cross-examination, Ms. Boyer was asked if it would be accurate to say that she had nothing to do with the observation report, the letter from Ms. Robinson, the letter from Ms. Scorey, the email from Ms. Cloutier, and the email from Ms. Koch-Chey. Ms. Boyer responded that there were no secrets and that everyone was talking about the meetings occurring with Ms. Justason. All documents were sent to Ms. Justason. The only discussion she had with Ms. Justason was about the observation report. There was a previous discussion about prior complaints from officers with respect to Boxing Day.

[59] Ms. Justason stated that at the local union president’s request, she spoke with the officers who initially complained about Ms. Boyer and to the officer who witnessed the events. She asked them why they did not follow Ms. Boyer’s direction. The officers could not explain it. One had been on the Internet. Ms. Justason concluded that Ms. Boyer’s direction was lawful and reasonable. She found that the allegations stating that in her behaviour, Ms. Boyer had been belligerent and aggressive, were not borne out by the independent officer who was present.

[60] On January 13, 2012, the local union president received a call from Ms. Justason. She informed him that the allegations were not borne out by the evidence. She explained that she had followed up with the officers who had complained against Ms. Boyer. She indicated that she had no issues with respect to how Ms. Boyer handled herself. She did not see any reason to pursue the matter further. The local union president felt that this resolution was not fair and forthcoming, and that management had swept the matter under the rug. During this time, Ms. Justason stated that she received emails and letters in support of Ms. Boyer. On January 14, 2012, she received an email from Ms. Cloutier in support of Ms. Boyer.

[61] On January 23, 2012, the local union president met with Ms. Justason and Mr. Bussey to discuss the use of cameras at the institution and their angles. He was accompanied by the chief shop steward. He did not know that it was a disciplinary fact-finding meeting. When it ended, Ms. Justason gave the local union president a letter indicating that a disciplinary investigation had been convened to establish the facts surrounding his involvement in an alleged contravention of the CSC’s Standards of Professional Conduct. The letter stated that it was alleged that he had instigated a concerted effort to target and discredit Ms. Boyer, a correctional manager on an acting basis, by soliciting negative information against her. He also received another letter informing him of his reassignment pending the investigation’s completion. Both letters were dated January 23, 2012 and signed by Warden Vince Leblanc. Later that day, the local union president sent an email detailing a timeline of events that led to his removal on January 23, 2012. He was shocked.

[62] In cross-examination, Ms. Justason confirmed that the local union president was not informed that the purpose of the January 23, 2012, meeting was to inform him of the disciplinary fact-finding investigation.

[63] The local union president stated that he tried to resolve the complaints against Ms. Boyer informally while keeping the employees informed. They were unhappy and wanted to pursue other recourses. He let them know about their recourses if they wished to pursue the matter further. His involvement stopped there.

[64] Mr. Bussey denied advocating for the investigation into the local union president and for his removal from the institution. His involvement was as a manager witnessing the meeting between the local union president and Ms. Justason. The meeting was convened because of information that Ms. Justason obtained that the local union president was soliciting information against Ms. Boyer even though Ms. Justason had directed him to stop. Mr. Bussey was predominantly silent during the entire meeting.

[65] Mr. Bussey testified that he had not been the decision maker but that he had supported the decision to separate the local union president and Ms. Boyer. He had not been aware of the allegations against the local union president. His involvement at the meeting was brief and lasted approximately 10 minutes. He recalled that Ms. Justason convened the meeting after receiving Ms. Marshall’s observation report. Ms. Marshall indicated that the local union president had phoned the institution to gather information against Ms. Boyer and that he continued doing so even though he had been told to stop. Mr. Bussey was part of the discussion with Ms. Justason and Mr. Leblanc to determine the steps to take, if any had to be taken.

[66] In cross-examination, Mr. Bussey was asked about Ms. Marshall’s observation report. He stated that it was unusual in that it was unsigned. The dates of the observation and the report were also unusual. The report was completed seven days after the observation. Policy requires that the report be signed before or immediately at the end of a shift. He stated that he did not question the report because it had been shared with him verbally at the meeting with Ms. Justason. He was supportive of the decision to remove the local union president based on the report and because the president failed to follow Ms. Justason’s instructions and due process with respect to Ms. Boyer. On that basis, he agreed with the interim measure of temporarily removing the local union president from the institution, pending the investigation. The purpose was to determine who had done things and whether misconduct had occurred. In that context, he supported the decision to remove the president from the institution.

[67] In redirect examination, Mr. Bussey stated that he was made aware of the observation report the following day. The report was dated January 12, 2012, so he would have been made aware of it on January 13, 2012. There are timing exceptions to writing observation reports, such as in the case of incidents that are not critical, which can be prepared at the end of a shift.

[68] In further cross-examination, Mr. Bussey stated that he did not recognize Ms. Justason’s chronology of events. He did not recall meeting with Ms. Boyer, Ms. Justason, and other correctional managers on January 12, 2012. He had no notes of any meeting on that day. He recalled only his initial meeting with the local union president, his representative, and Ms. Justason. There was no discussion about the appropriateness of Ms. Boyer’s actions. First, the approach was to investigate the situation and determine whether action was necessary. He recalled discussing the practice of letting staff off early. In his view, it should not happen without the correctional manager’s permission. If it was based on a prohibited ground, then it was not appropriate.

[69] In cross-examination, Mr. Bussey stated that he recognized the summary of his testimony in the investigation report as an accurate reflection of his testimony. He stated that the local union president constantly made the same complaints repeatedly about favouritism in the allocation of overtime by Ms. Boyer and other correctional managers. He would investigate it every time, but never found anything; there was no malfeasance. This made him question whether the local union president was targeting her.

[70] Ms. Justason referred to Ms. Robinson’s letter dated January 12, 2012, the email from Ms. Cloutier on January 14, 2012, the email from Ms. Scorey on January 12, 2012, the email from Ms. Koch-Chey on January 14, 2012, and, finally, Ms. Marshall’s observation report dated January 12, 2012, as her justification to recommend launching an investigation into the local union president. Ms. Justason did not recall how she received the observation report, but she recalled receiving it.

[71] Ms. Justason testified that the decision to conduct a disciplinary investigation into the local union president rested with the warden of the institution, Mr. Leblanc. She explained that the deputy warden’s role is to work with the warden on analyzing information and to consult. At the end of the day, the deputy warden synthesizes the information and makes a recommendation to the warden. The warden is accountable for the final decision. A recommendation to the warden is signed by the deputy warden. Ms. Justason referred to her chronology of events that was introduced into evidence, which includes her written recommendations to the warden.

[72] She consulted the Labour Relations section at the regional level and the anti-harassment coordinator. She and the warden met with that coordinator and reviewed the Treasury Board’s harassment policy. Labour Relations recommended that management intervene because it was possible that the local union president’s behaviour was contravening the policy. The employer had an obligation to investigate and to intervene upon the completion of the investigation. Based on everything that was happening, she recommended launching an investigation.

[73] Ms. Justason felt that an investigation into the local union president was warranted because of his statement to her that he could get more if she wanted more, her caution to him to not solicit complaints against Ms. Boyer, and his flippant reaction to “sign [him] up” or something to that effect. Moreover, all the documents and emails sent to her made it clear that camps were forming. Employees were writing to her randomly about their personal feelings in the workplace. She concluded that an investigation was warranted. She had directed the local union president not to solicit complaints as doing so could violate Treasury Board policy. She suspected that he was soliciting complaints against Ms. Boyer, which could have amounted to harassment and a violation of Treasury Board policy.

[74] In cross-examination, Ms. Justason stated that the totality of the information was of concern, including the observation report. Camps were forming, and a consolidated group of officers made complaints against Ms. Boyer, of which the local union president was part.

[75] In further cross-examination, Ms. Justason recognized that there was no mention of the local union president in the letters and emails she received from correctional officers who wrote to her in support of Ms. Boyer. She reviewed the issues before her, and she would not cross the line and investigate. Speech does not always equal a fact. She agreed that she looked into the allegations against Ms. Boyer by consulting the individuals involved but stated that she did not review the information in the emails and the documents in the same way she reviewed the members’ allegations against Ms. Boyer.

[76] In further cross-examination, the local union president’s representative told Ms. Justason that it suited her to associate the local union president with everything taking place in the workplace without verifying that he was associated with it. She responded that frankly, she would have preferred that it did not happen but that she did not want to cross the line into investigating it herself. She agreed that all the documents arrived between January 12 and 14 and that they were sent after the observation report was completed.

[77] The warden made the decision to launch an investigation into and to reassign the local union president to another institution pending the outcome of the investigation. The decision resulted from Ms. Justason’s collaboration with the warden. Her chronology of events provided the context and the background upon which her recommendation to investigate was made.

[78] In cross-examination, Ms. Justason confirmed that initially, the recommendation from CSC National Headquarters was to completely ban the local union president from the institution so that he could not access it without prior approval. It was then decided that he could access it for his Emergency Response Team (ERT) equipment.

[79] In cross-examination, Ms. Justason stated that she recommended that the investigation be conducted by someone external to the institution. She was completely hands-off with respect to the investigator’s role. She provided only the list of witnesses to be interviewed based on her chronology and her documents. A file was provided to the investigator with the letters, emails, and chronology.

[80] The local union president testified that when he received the letters signed by the warden, he was concerned about his access to the institution and the representation of the members. He was concerned about the possibility of attending the Labour-Management Committee Meeting (LMCM) meeting and the ERT training day and about being able to access the equipment. He felt completely blindsided and did not understand what he had done to justify his removal. At all times, he attempted to resolve matters at the lowest level, without escalation. This was an extremely stressful time for him, and he lost significant sleep. He cared about his work and his functions as a local union president. After 10.5 years of service, this changed his perspective about management. As the local union president, he felt that he was not the same. He had consistently fought tooth and nail for his members’ rights, but he felt that this had a negative impact on him and that he was no longer as effective afterward.

[81] In her recommendation to investigate the matter, Ms. Justason made sure to include a plan to ensure that the local union president would be able to fulfil his role and that his ability to fulfil his duties as local union president would not be obstructed. She never received a request to access the institution to conduct union business while he was reassigned.

[82] In cross-examination, Mr. Bussey testified that conditions were associated with removing the local union president from the institution pending the investigation. It was ensured that a process was put in place to allow him to continue to perform union business at the institution. He had to have access for that. His reassignment to the other institution ended shortly after everything, and he returned to the institution.

[83] The local union president described the impact on the union as not extreme fear but extreme caution. Officers who had issues with the workplace were scared to bring matters up. If the employer could remove the local union president, then what else could it do to them? Employees who experienced inequities were fearful of bringing them up because of what could happen to them. The local union president’s approach was always to resolve matters at the local level, but that could no longer happen.

[84] The impact of the investigation on him as the local union president was different in that he did not know what he had done wrong. When he met with the investigator, he felt that his relationship with management had been negatively impacted. He took pride in his work as a correctional officer, in being on the ERT, and in his union duties, but after the investigation, he felt differently. He took income-averaging leave because of his relationship with the warden. He felt that he was in over his head.

[85] The local union president recalled that Ms. Boyer was promoted to a substantive correctional manager position during the investigation. Because of the investigation and the strenuous relationship with the warden, no problems could be resolved. All matters had to be resolved with Headquarters. When a correctional officer is reassigned to a different site, there is always an assumption that the officer did something wrong. Members were upset at the fact that he had been reassigned. Some members even put up a picket line against his removal. This was a very stressful time for him, and he had to take sick leave.

[86] The local union president testified that the union’s national executive president had to intervene so that he could return to the institution. Ms. Justason was aware that CSC National Headquarters and the national union representative had agreed that the local union president would be reassigned to the institution, that he would be given the specific direction to stand down with respect to Ms. Boyer, and that he should distance himself from her and let the investigation proceed organically.

[87] The local union president called Gord Robertson, Pacific Regional President, UCCO-SACC-CSN, in 2012. Mr. Robertson testified that it was important for the union to have a good working relationship at the lowest possible level to resolve workplace issues, which had always been its first approach. He contacted National Headquarters to intervene in the matter. He felt that the removal of the local union president was unfair and excessive. He was concerned that only the local union president was removed and nobody else.

[88] It took several calls to Labour Relations at National Headquarters to sort it out. Eventually, the local union president was reinstated at the institution on certain conditions, which were that he stop discussing the matters involving Ms. Boyer with the members and that he does not interfere in the investigation. He wanted to return to the institution, and he thought it was a reasonable request. Mr. Robertson recalled that the local union president was very stressed about performing the functions of his president role after that. It was a very difficult time for him. He tried to represent the members but was afraid that management would take action against him. Once a month, Mr. Robertson had to meet with the local union president to help him escalate matters as necessary. These events had an impact on all local union presidents across the bargaining agent. It made everyone pause. It had an impact at the national level.

[89] Mr. Robertson testified that Mr. Leblanc’s labour relations style was erratic. Sometimes, it was easy to resolve matters; other times, it was not. He was used to different styles, but Mr. Leblanc was especially difficult to deal with. He knew Mr. Leblanc as he had previously worked with him. Mr. Robertson had to intervene 9 or 10 times with Mr. Leblanc with respect to labour relations at the institution in 2012. In an email dated January 27, 2012, to Alain Toussignant, Director General, Labour Relations, and Fraser Macaulay, Assistant Commissioner, Human Resources Management at CSC’s National Headquarters, Mr. Robertson confirmed the local union president’s agreement that he would not discuss the case with members but that he would continue to represent them on other issues, such as returns to work.

[90] In cross-examination, Mr. Robertson specified that his discussion with Mr. Toussignant and Mr. Macaulay was about returning the local union president to the institution so that he could continue representing the members. Not only was it about attending the LMCMs or the ERT but also, the local union president had to be on site to talk to his members and keep them informed.

[91] In cross-examination, Mr. Robertson agreed that the local union president had been reassigned for a very short time. He disagreed that the period for which the president was reassigned was shorter than the time it took to reinstate him because the period involved sick leave. Mr. Robertson confirmed that at first, the local union president was told that he could not represent members, but it changed quickly, because of Mr. Robertson’s interventions. This was a very stressful time for the local union president.

[92] In further cross-examination, Mr. Robertson clarified that when the local union president was removed, he was specifically told that he could not access the institution while he was reassigned and that he could not represent members. Ms. Justason’s emails dated January 23 and 26, 2012, and stating that he would have access to the institution upon request, were sent to him after he was removed.

[93] On January 30, 2012, the local union president could return to the institution. On that day, he met with the warden, along with two other union representatives. At this point, his relationship with the warden was very strained. The warden wanted some information removed from the union website and asked him, “If [he was] running the show, then why was that information still on the website?” The warden was never polite to him in his communications. Their interactions were always tense. It was the worst relationship he had ever had with any warden.

[94] In cross-examination, Mr. Bussey recalled an angry outburst between the local union president and Mr. Leblanc following an LMCM that was only between those two. In redirect examination, Mr. Bussey stated that it occurred during the change-of-command ceremony and Mr. Leblanc’s appointment as the institution’s warden. Mr. Leblanc believed that the local union president was trying to subvert the ceremony and that he encouraged correctional officers not to attend it.

[95] In cross-examination, Ms. Justason stated that she and the warden had no input in the decision to return the local union president to the institution. CSC Headquarters made the decision. She did not ask for a rationale. She was frustrated by the fact that those who had supported removing the local union president were no longer supportive. She felt the entire removal and return were unfair to him. She stated that her role was simply to make recommendations but that it was up to the decision maker to take it or leave it. She stated that had she been the local union president, she would have felt that someone was yanking her chain, which bothered her.

[96] In further cross-examination, Ms. Justason stated that she did not know who the local union president reported to. She did not know which correctional manager it was. She did not seek his input.

[97] In cross-examination, the local union president stated that from January 23 to 30, 2012, he could not meet with members and represent them. He confirmed that he worked at the CSC’s Pacific Institution on January 26, 2012, per his reassignment. Because of the stress related to the investigation, he then went on sick leave from January 27 to 29. He stated that he could not perform his union duties from a different institution because he had to acclimatize to it.

[98] In further cross-examination, he acknowledged that he could attend the LMCM, but it was subsequently cancelled. He recognized receiving, on January 23, 2012, an email from Ms. Justason stating that he could enter the institution for the LMCM. In it, she asked him to inform her if he required further access to the institution to fulfil his role as the local union president. She further stated that he was permitted to enter the institution on January 27, 2012, for the purpose of retrieving the key to access his ERT equipment for the scheduled training.

[99] The local union president conceded that parties involved in a harassment complaint are normally separated. When he returned on January 30, 2012, his schedule was structured in a way that it did not overlap with that of Ms. Boyer. Management ensured that those two had different schedules.

[100] On March 23, 2012, the local union president was called to the warden’s office. The investigation was complete. It had been determined that there was no direct information that would indicate that he actively sought that complaints be made against Ms. Boyer. He testified that he knew that he had not done anything outside his role as the local union president, but he was still concerned. He was blown away by the fact that things that he knew were not true were the basis of his reassignment and the investigation.

[101] The local union president testified that after the investigation was completed, the correctional officers working under Ms. Boyer were monitored. Some felt specifically targeted. Because of the investigation into him, he removed himself from the situation. He was fearful that he would be blamed again for targeting her. He could not represent those members. Eventually, management decided to investigate the matter into Ms. Boyer. She was found to have harassed the employees at issue. The local union president felt that it was not prudent for him to represent members in the investigation into Ms. Boyer. The allegations that prompted the investigation into her were the same ones that he had previously been raised with Ms. Justason. The report, issued on November 2, 2013, upheld the complaints against Ms. Boyer.

III. Analysis

[102] The local union president made the complaints pursuant to s. 190(1)(g) of the Act. That section provides that the Board must examine and inquire into any complaint made to it that the employer, an employee organization, or any person has committed an unfair labour practice within the meaning of s. 185, including those mentioned in ss. 186(1) or (2).

[103] He maintained that the disciplinary investigation and his removal were done as a direct result of his role as the local union president and that management targeted him. In his complaints, he alleged that the respondents violated the following provisions of the Act, when they removed him from the institution and launched a disciplinary investigation into him on the basis of fabricated allegations that he was targeting an acting correctional manager:

…

5 Every employee is free to join the employee organization of his or her choice and to participate in its lawful activities.

…

186 (1) Neither the employer nor a person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall

(a) participate in or interfere with the formation or administration of an employee organization or the representation of employees by an employee organization; or

(b) discriminate against an employee organization.

(2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall

(a) refuse to employ or continue to employ, or suspend, or lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

(i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of an employee organization, or participates in the promotion, formation or administration of an employee organization,

…

(iv) has exercised any right under this Part or
Part 2 ….

…

[Emphasis added]

[104] The respondents maintained that the allegations that gave rise to these complaints all relate to harassment allegations that were investigated and determined unfounded. The investigation found there was no direct evidence to conclude that the local union president sought to have complaints made against Ms. Boyer. No discipline was imposed, and no further action was taken against him. Not all activities performed by a local union president amount to protected activity. Employees have the right to raise concerns. If after a preliminary review, the respondents find merit in the concerns, then, as a matter of due diligence and fairness, they must investigate these complaints, regardless of the employee’s position in the union. There is no requirement to perform fact-finding before launching an investigation. It is not an unfair labour practice under the Act for an employer to remove a local union executive and to launch an investigation. The employer can do as it pleases.

[105] The respondents argued that raising concerns and initiating an investigation into those concerns or simply participating in the investigation process does not constitute an unfair labour practice as defined in s. 185 of the Act. There is no evidence that the complainant or the union was prevented from doing anything protected by ss. 186(1) or (2) of the Act. The local union president was not barred from exercising union activity. There was no evidence that employees could not be represented by their union while the local union president was reassigned. A plan was in place to allow him to perform his duties by contacting the employer. Nor is there any evidence that the respondents’ actions before or during the investigation were motivated by anti-union animus or in any way prevented the complainant or the union from carrying out its activities. The complainant did not establish an arguable case of a violation of the Act. In support of their submissions, the respondents relied on the reasoning in the following case law: Laplante v. Treasury Board (Department of Industry and the Communications Research Centre), 2007 PSLRB 95; Quadrini v. Canada Revenue Agency, 2008 PSLRB 37; Therrien v. Canadian Association of Professional Employees, 2011 PSLRB 118; and Gignac v. Fradette, 2009 PSLRB 18.

[106] The local union president argued this case is not one in which management was faced with allegations and undertook steps to investigate, to validate them. In this case, management made up the allegations; twisted union members’ words; investigated union activities, strategies, and communications; and made false or unsubstantiated comments to justify the local union president’s removal from the workplace, contrary to ss. 185 and 186 of the Act. There is no evidence or even information that would ever lead a reasonable person to think that he instigated a concerted effort to target and discredit an acting correctional manager by soliciting negative information against her. The sole reason for the investigation was his union officer role. There was no business reason for conducting the disciplinary investigation. His removal and investigation impacted the union as a whole. The local union president relied on the following case law: Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 46; Federal Government Dockyard Chargehands Association v. Treasury Board (Department of National Defence), 2013 PSLRB 139; Perka v. Department of Transport, 2007 PSLRB 92; and Shaw v. Deputy Head (Department of Human Resources and Skills Development), 2006 PSLRB 125.

[107] As determined by a predecessor to this Board, the Public Service Labour Relations Board (PSLRB), in Laplante; Quadrini; and Manella v. Treasury Board of Canada Secretariat, 2010 PSLRB 128, an unfair labour practice complaint can be dismissed if, on its face, it does not show a reasonable link to the prohibitions in the Act. An arguable case is a precondition to the Board having jurisdiction to hear the complaint and, with respect to complaints under s. 186(2) of the Act, before the reverse burden of proof requirement under s. 191(3) of the Act can come into play. That is, s. 191(3) of the Act provides that a written complaint of an alleged failure to comply with s. 186(2) is itself evidence that the failure actually occurred and the burden of proving that it did not is on the party alleging that the failure did not occur.

[108] I must assess whether, taking all the facts as alleged by the complainant as true, there is an arguable case that the respondents contravened the provisions at issue in s. 186(2) of the Act.

[109] Taking the alleged facts as true, I find that the local union president presented an arguable case. There is no question that the local union president was removed from the institution and that an investigation was launched into him. He claims those actions were taken to intimidate and threaten him for taking up complaints from union members to management, to interfere with the representation of union members and to discourage him from finding a resolution to the harassment issues reported by his members against Ms. Boyer. Taking the facts alleged as true, I accept that they are arguable under ss. 186(2)(a)(i), 186(2)(a)(iv), 186(2)(b) and 186(2)(c) of the Act. What remains to be determined is whether a failure to comply with those provisions occurred and, as indicated above, s. 191(3) provides that the burden of proving that that failure did not occur is on the respondents.

[110] The evidence established that Ms. Marshall provided false information on January 12, 2012, when she filed the observation report to the effect that the local union president had phoned the institution and had spoken with Officers Palmer and Ott to solicit complaints against Ms. Boyer. Both Ms. Marshall and Ms. Boyer were correctional managers on an acting basis at that time. They inferred that the local union president was instigating a process to have Ms. Boyer removed as a correctional manager. Mr. Ott and Mr. Palmer both testified convincingly that they had no such interaction with the local union president, which is also consistent with his own testimony.

[111] Ms. Boyer falsely reported to Ms. Justason that the local union president was encouraging employees to make complaints against her. Ms. Justason did not investigate it. She did not contact Officers Palmer and Ott for clarification as to the alleged contact with the local union president. She did not verify the telephone system or the call logs.

[112] Moreover, Ms. Boyer solicited information from employees who reported to her and asked that they send it to Ms. Justason. Ms. Robinson, Ms. Koch-Chey, and Ms. Scorey testified that they did not know that their letters and emails would be used as justification to remove and to launch an investigation into the local union president. Ms. Justason did not follow up with them to determine why they had sent her the letters and emails. Nothing in them mentions any inappropriate conduct on the part of the local union president. Ms. Justason inferred that he was instigating a witch-hunt against Ms. Boyer, without verifying why the officers sent her the information.

[113] However, when the local union president presented Ms. Justason with employee complaints against Ms. Boyer, she performed her “due diligence” and spoke with the employees directly to confirm the allegations against Ms. Boyer. She did not perform any due diligence with respect to Ms. Marshall’s allegations against the local union president. Ms. Justason recommended that the warden launch an investigation into the local union president’s conduct without verifying the allegations first. Although I do not believe that Ms. Justason’s motives had mal-intent, I do believe that they were arbitrary and meant to intimidate the local union president. She did not provide any valid explanation as to why she chose not to perform any due diligence (fact-finding) into those allegations before recommending an investigation. I conclude that it was on account of the local union president’s representation of employees in their complaints against Ms. Boyer.

[114] Ms. Robinson testified clearly and convincingly that the atmosphere at the institution was one of fear, in which employees could not bring up matters directly with management. She stated that Ms. Boyer forced her to write a letter supporting Ms. Boyer. Ms. Robinson had nothing to gain by testifying at the hearing. I found her testimony credible and consistent with the evidence.

[115] The evidence established that the warden reassigned the local union president to another institution on January 23, 2012. In follow-up discussions, he stated that the local union president could not enter the living units or other posts where correctional officers were assigned during the period of the disciplinary investigation. The warden did not testify, and the respondents did not contradict this evidence. Ms. Justason and Mr. Robertson corroborated it.

[116] Furthermore, the local union president was prevented from accessing the union’s bulletin board at the institution. I agree with him that that prevented him from sharing union information with members. He no longer had access to the union office and could not discuss and engage in the representation of members or use the employer’s facilities. The warden allowed him to enter the institution only for LMCMs and to access his ERT equipment. Ms. Justason confirmed this in cross-examination. She stated that initially, the local union president was prevented from accessing the institution. Later, he was given the right to access it for the LMCM and his ERT equipment. In her email to him, she informed him that he should contact her if he needed access to the institution to perform his union activities. Mr. Robertson corroborated this in his evidence. Only by intervening with CSC National Headquarters was the local union president allowed to return to the institution.

[117] The warden did not testify. Ms. Justason could not provide any valid reasons for her recommendations that the local union president be removed from the institution and that his conduct in the representation of his members be investigated. Ms. Boyer and Ms. Marshall could not provide a reasonable explanation for their conduct and for fabricating the allegations that led to the local union president’s removal and the investigation. As for Mr. Bussey, although his role was that of a witness during the meeting between Ms. Justason and the local union president, he did nothing to ensure that the protections offered by the Act remained intact. He was involved in the discussion with Ms. Justason and Mr. Leblanc to determine the steps to take with respect to the local union president, and this despite being provided a copy of the observation report and his acknowledgement of the abnormalities with it. I find that the respondents did not prove, pursuant to s. 191(3) of the Act, that the alleged failures to comply with s. 186(2) did not occur.

[118] Based on the evidence presented at the hearing, I find that Ms. Justason and the warden decided to hold the disciplinary investigation because of the complainant’s role as a union official. Ms. Boyer and Ms. Marshall fabricated evidence to support the allegations that the local union president was instigating a witch-hunt into Ms. Boyer when, he was simply performing his functions as local union president. By his removal from the institution and the investigation into him, the local union president was prevented from representing his members in the same manner he had always done, without permission or interference from management. Although this involved both Ms. Boyer and the local union president, only the local union president was reassigned. She was permitted to continue with her functions as a correctional manager on an acting basis. I also find that it negatively impacted the union as a whole and that the undisputed evidence demonstrated that the respondents’ actions cast a chill on the local union’s officers and the employees.

[119] Overall, I find that the preponderance of the evidence supports the claims that the respondents’ actions were taken to intimidate and threaten the local union president because of his role in the administration of the union and for exercising rights under the Act (ss. 186(2)(a)(i) and (iv)); that restricting the local union president’s access to the institution during the investigation was imposed to restrain him and other union members from exercising their rights under the Act (s. 186(2)(b)); and that the threat of discipline was to discourage the local union president from pursuing the harassment issues against Ms. Boyer reported by his members (s. 186(2)(c)). I disagree with the respondents that their actions were a reasonable exercise of management rights.

[120] Being an elected union official carries with it a set of heightened obligations and responsibilities. This is why there is legislation that protects lawful union activity. Among other things, the Board must ensure that the union freedoms set out in the Act can be exercised with impunity. As the PSLRB determined in Quadrini, it is fundamental to the integrity of the labour relations system that persons who exercise rights accorded to them under those laws do so, and can continue to, without fear of reprisal. Were it otherwise, given the possibility of the misuse of authority in the relationship between individual persons and employers, “…the chilling effect of reprisal action on the exercise of vested statutory rights could undermine the effective force of those rights.” (Quadrini at para. 45) Union officials must be able to exercise their lawful activities without fear of reprimand, interference, or intimidation from the employer.

[121] Because collective bargaining is adversarial in nature, arbitrators and adjudicators have generally accorded union officials latitude in how they carry out their duties and how they challenge management, without fear of being disciplined. Even if a union official performs his or her duties in a dishonest and manipulative way, it cannot provide grounds for discipline unless it is done maliciously, knowingly or recklessly falsely, or in a manner that threatens or intimidates or publicly attacks the employer or a member of management. For this reason, I find that it was negligent for the warden, Ms. Justason, and Mr. Bussey to not perform their due diligence and carry out a fact-finding before removing the local union president and launching an investigation.

[122] However, protection would not extend to conduct that falls outside the normal scope or range of union responsibilities, such as knowingly or maliciously spreading falsehoods about a member of management or other employees. Nor would protection be attracted for instigating a witch-hunt against a member of management based on knowingly or recklessly false complaints or for reasons of a personal vendetta. Ultimately, regardless of their roles as union officials, they remain employees and must be treated with the same fairness and transparency as all other employees, including middle management, in the administration of a disciplinary process. In this case, a fact-finding exercise before launching an investigation would have revealed that he was not instigating a witch-hunt against Ms. Boyer but that he was simply performing his duties as the local union president. In administrating a disciplinary process involving a union official, the employer must bear in mind the fact that it is dealing with a union official who bears heightened responsibilities and must ensure that the official is able to carry on with his or her union activities while the official’s conduct is being investigated. In the circumstances of these complaints, I find that that is not what occurred. For all the above reasons, I find that the respondents committed unfair labour practices prohibited by s. 186(2) of the Act.

IV. Corrective measures

[123] In his written complaints made to the Board, the local union president indicated that he sought any order that the Board considers necessary in the circumstances against the respondents, including but not limited to a declaration that they contravened the Act; the public posting of the Board’s decision at the institution; an order that the individual respondents and the employer cease interfering with union representation; an order to recredit the sick leave he took as a result of the investigation and his removal from the institution; and a written apology from the individual respondents and the employer to him, the UCCO-SACC-CSN’s Matsqui local, and the UCCO-SACC-CSN itself.

[124] At the conclusion of the hearing, the local union president requested to be reimbursed the difference between his salary while on leave with income averaging and his salary had he remained at work and damages of $2500 for the pain and suffering caused to him. He argued that he had to take time off and take leave with income averaging because of the tumultuous relationship with the warden. Because he had to take leave with income averaging, he was not able to earn the shift differential or the weekend premium and lost eligibility for overtime also during statutory holidays. In support of his request for damages, he relied on the following jurisprudence: Public Service Alliance of Canada; Federal Government Dockyard Chargehands Association; and Perka.

[125] With respect to remedy, the respondents argued that the complainant’s request to have the difference between his salary and his leave with income averaging reimbursed did not align with the facts of the case. The respondents made the same argument with respect to his request for $2500 in damages and for the sick leave he used to be reimbursed. The respondents stated that there was no link between his removal, the investigation, and the sick leave. There was no evidence to demonstrate that he was on sick leave due to the investigation and his removal. There was no impact on him directly or on the union.

[126] For the reasons mentioned earlier, I disagree that there was no impact on the local union president and the union. I find that both were impacted. I found particularly convincing both his testimony and that of Mr. Robertson on that point. For that reason, I find that $2500 is an appropriate amount of damages in the circumstances. Moreover, I also find that the reason the local union president went on sick leave was his removal from the institution and the investigation into him due to the exercise of his union functions in representing the members in their complaints against Ms. Boyer. However, I do not find a link between his leave on income averaging and the circumstances of this complaint. For that reason, I will not allow any salary reimbursement. As he requested, I grant the declaratory relief he sought as well as an order that the respondents refrain from interfering in the union’s activities and that the Board’s decision be posted publicly at the institution.

[127] For all the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[128] The complaints are allowed. The respondents contravened the prohibitions in ss. 186(2) of the Act.

[129] I order that the local union president’s three (3) days of sick leave that he took because of the investigation and his removal from the institution be recredited.

[130] I order that the employer pay the complainant damages in the amount of $2500.

[131] I order the employer to immediately post a full copy of this decision at the institution in those conspicuous locations where it is most likely to come to the attention of the employees in the bargaining unit and for a period of no less than 60 days.

[132] I will remain seized for a period of 60 days if difficulties arise in implementing this order.

March 15, 2021.

Chantal Homier-Nehmé,

a panel of the Federal Public Sector

Labour Relations and Employment Board