FPSLREB Decisions
Decision Information
The complainant alleged that her bargaining agent failed to discharge its duty of fair representation during the period in which she negotiated with her employer for a position transfer – the respondent objected to the complaint on the basis that it was out of time, disclosed no arguable case, and was insufficiently particularized – the Board held that the complainant did not call on the bargaining agent to help her negotiate with her employer – the Board determined that the bargaining agent could not be said to have failed its duty of fair representation when it was not asked to act for the complainant.
Complaint dismissed.
Decision Content
Date: 20220311
File: 561-02-42434
Citation: 2022 FPSLREB 16
| Federal Public Sector
Labour Relations Act
|
|
Between
Danielle Desjardins
Complainant
and
Canadian Union of Public Employees, Local 104
Indexed as
Desjardins v. Canadian Union of Public Employees, Local 104
Before: Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Ryan Letnes
For the Respondent: Miriam Martin, counsel
Decided on the basis of written submissions,
filed February 2 and 26, 2021.
REASONS FOR DECISION
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I.
Complaint before the Board
187 No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.
[2] In response to the complaint, the respondent wrote to the Board, asking that it be dismissed without a hearing on the following three grounds: 1) the complaint is out of time and therefore beyond the Board’s jurisdiction; 2) the complaint discloses no arguable case; and 3) the complaint is insufficiently particularized.
[3] The parties were requested to make submissions regarding the respondent’s request to dismiss the complaint.
[4] Pursuant to s. 22 of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, the Board may decide any matter before it without holding an oral hearing.
[5] For the reasons that follow, the complaint is dismissed.
II.
Background and arguments
[6] The complaint was worded as follows:
...
The complainant engaged in an accommodation process with her employer, the RCMP [Royal Canadian Mounted Police]. On March 12, 2018, CUPE became the certified bargaining agent for the RCMP CM TO & IM groups. The complainant’s accommodation transfer was finalized on May 11, 2018. As part of the transfer, the complainant was compelled to agree to a “voluntary demotion” which resulted in the loss of considerable benefits and terms & conditions of employment. The complainant was led to believe by the RCMP that completion of the forms was pro forma. The complainant received no representation from CUPE and was given no reason to believe that the actions of the RCMP was [sic] anything but standard administrative procedure. Subsequently, the complainant learned that these tactics of the RCMP was [sic] contrary to RCMP policy and the policy relied upon by the RCMP to justify the demotion only applied to regular RCMP members. CUPE was required to provide the complainant with fair and competent representation during this process which would have safeguarded the complainant’s employment rights; however, CUPE offered no representation and as such, the complainant has lost considerable benefits and wages by way of her status as an RCMP civilian member.
...
[7] According to the respondent, the allegations were untimely since under s. 190(2) of the Act, which covers complaints made with the Board about unfair labour practices, such as a breach of s. 187, the complaint must be made “... not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.” Since the events giving rise to the complaint dated from early 2018, the complaint was made well beyond the 90-day deadline.
[8] The complainant answered that argument by stating that only in November 2020 did she learn that the demotion that she had been forced to consent to was allegedly contrary to the RCMP’s policy.
[9] The respondent’s second argument was that the complainant’s allegations revealed no prima facie case. She never requested its help negotiating her transfer to an accommodated position. Consequently, not being informed of the situation or asked to intervene, the respondent could not have acted in a manner that was arbitrary, discriminatory, or in bad faith.
[10] The complainant answered that the respondent ought to have known that she was seeking accommodation, since the president of CUPE Local 104 sometimes acted as her direct or intermediate manager. Moreover, the CUPE should have been aware that the RCMP was applying policies contrary to the interests of its members.
[11] The third argument was that the allegations were vague and insufficiently particularized. There were no allegations about any action or omission by the respondent, only a general declaration that it did not act when it should have acted.
[12] The complainant’s response to this argument was that it was up to the respondent to justify its action or inaction, as s. 191(3) of the Act reverses the onus, so the respondent had the burden of proof.
III.
Analysis
[13] In order for this matter to proceed to a hearing, there has to be an arguable case that the respondent failed its duty of fair representation as defined by s. 187 of the Act. I believe that this issue is sufficient to decide this complaint.
[14] I will not deal with the respondent’s timeliness objection as I need not decide it. The respondent’s action or inaction dates to May 2018, but the complainant stated that she learned of the employer’s alleged mistake only in November 2020. I wish to emphasize that I am not pronouncing on the RCMP’s compliance with its policies, for a complete lack of evidence.
[15] The burden of proof is not reversed in a complaint made under s. 187 of the Act but only in those made under s. 186(2).
[16] I do not need further particulars to decide this matter. The parties were offered the opportunity to make further submissions before the Board would decide the matter in writing; no further submissions were received.
[17] The important point is that the complainant did not allege that she requested help from her bargaining agent and was denied it. She alleged that her bargaining agent should have told her that her rights were being infringed when, for accommodation purposes, she negotiated a position transfer with her employer.
[18] I cannot condemn the bargaining agent for not acting on the complainant’s behalf when she made no effort to request its help. CUPE Local 104’s president might have known that an accommodation was underway, but she had no reason to believe that the complainant needed the bargaining agent’s help, since the complainant did not request it.
[19] It is telling that only a year-and-a-half after her transfer, in November 2020, did the complainant discover that perhaps the transfer might have been done differently so as not to deprive her of salary and benefits. Her reaction was that her bargaining agent should have told her. However, since the respondent was not called upon in early 2018 to help her negotiate with the employer, it cannot be said that it failed its duty. It cannot be faulted for not attending to something that was never brought to its attention.
[20] The test for the duty of fair representation is clearly stated in s. 187 of the Act. The bargaining agent shall not “... act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.”
[21] In such cases, the Board will consider whether a request for help was taken seriously and duly considered. However, in this case, there is no action to consider, as no action was requested. The Board cannot pronounce on an inaction that occurred through no fault of the respondent.
[22] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
IV.
Order
[23] The complaint is dismissed.
March 11, 2022.
Marie-Claire Perrault,
a panel of the Federal Public Sector
Labour Relations and Employment Board