Reasons for Decision

Francine Fortin,

complainant,

and

Syndicat des employées et employés professionnels(les) et de bureau, section locale 434, SEPB-CTC-FTQ,

respondent,

and

Laurentian Bank of Canada,

employer.

The Canada Industrial Relations Board (the Board) was composed of Ms. Louise Fecteau, Vice-Chairperson, and Messrs. André Lecavalier and Norman Rivard, Members. A hearing was held in Ottawa, Ontario, on August 17 and 18, 2015.

Appearances

Ms. Francine Fortin, on her own behalf, accompanied by her brother, Mr. Pierre Fortin;

Ms. Elizabeth Perreault, for the Syndicat des employées et employés professionnels(les) et de bureau, section locale 434, SEPB-CTC-FTQ; and

Mr. Guillaume Pelletier, for the Laurentian Bank of Canada.

These reasons for decision were written by Ms. Louise Fecteau, Vice-Chairperson.

I. Nature of the Complaint

[1] On December 17, 2014, Ms. Francine Fortin (the complainant), an employee of the Laurentian Bank of Canada (Laurentian Bank or the employer), filed an unfair labour practice complaint with the Board pursuant to section 97(1) of the Canada Labour Code (Part I–Industrial Relations) (the Code), in which she alleged that her union, the Syndicat des employées et employés professionnels(les) et de bureau, section locale 434, SEPB-CTC-FTQ (the union), had breached its duty of fair representation pursuant to section 37 of the Code. In her written submissions filed in support of her complaint, the complainant alleged that her union was refusing to deal with some 30 of her grievances dating back to 2007 through 2014.

[2] The last grievances filed by the union on behalf of the complainant date back to October and November 2014. However, the union did not ask the complainant to sign them until January 2015, after the complainant had filed the complaint in this matter with the Board.

[3] The complainant submits that her union has acted in an arbitrary and discriminatory manner and in bad faith toward her.

[4] The complainant submits that no union representative has contacted her despite the fact that she has filed some 30 grievances. She indicates that she has worked at a Laurentian Bank counter, which has never been ergonomic, and has suffered from chronic pain and from harassment for many years. The complainant filed a grievance in which she alleged psychological harassment in the workplace on February 25, 2011. She had previously filed a complaint with the union, on January 27, 2011, demanding that an investigation into the situation be conducted, to ensure a healthy work environment. Ms. Fortin was complaining about the conduct of a co-worker, whose attitude she considered to be offensive and irritating.

[5] In 2011, the complainant filed a short-term disability claim in connection with some time off work between May 2 and 18, 2011. She filed another disability claim in respect of the period from July 21, 2014, to August 17, 2014. The claims were denied and the complainant filed two grievances to challenge the employer’s decision. The complainant returned to work in August 2014 and worked into December 2014. At the time of the hearing in August 2015, the complainant had not returned to work and was not receiving any wages.

[6] In its written submissions, the union asks that the complaint be dismissed on the basis that the complaint is incomprehensible and that it is impossible to ascertain exactly what is being alleged against it. It adds that the facts alleged by the complainant occurred outside the 90-day time limit provided for under section 97(2) of the Code and are consequently untimely and inadmissible.

[7] The employer, for its part, submits that the complaint was filed late, and echoes the arguments made by the union to the effect that the inadequacy and trivial nature of the grounds stated are themselves ample justification for dismissing the complaint.

[8] The Board notes that it was informed during the proceedings that the complainant’s short-term disability claim had finally been approved and that she would be receiving wages for the period from December 4, 2014, to June 3, 2015.

II. Evidence

A. The Complainant

[9] The complainant’s testimony was short. She has worked at the Maniwaki branch of the Laurentian Bank for 23 years. She submitted that, upon retiring, Mr. Daniel Larose, the former president of the local union, had taken her file with him and the union advisor, Ms. Sophie Drouin, was unwilling to take any action to retrieve it. She submitted that none of her grievances had been dealt with by the union. The complainant has been on leave of absence from work since December 2014. Grievances were filed to challenge the decisions of the employer’s insurance carrier denying her short-term disability claims. The complainant has not returned to work since July 2014 even though her attending physician did not declare her unable to work until December 2014. The complainant is asking that her grievances be sent to arbitration and that the Board allow her to retain counsel of her choice, at the union’s expense.

[10] The union did not cross-examine the complainant. When cross-examined by counsel for the employer, the complainant admitted that she had contacted a union representative in Montréal whom she trusted, but indicated that the latter had been told to stop handling her files.

B. The Union

[11] The witness for the union was Mr. François Leduc. He entered the list of the complainant’s grievances into evidence. According to the union, 22 grievances have been filed on behalf of the complainant since 2007. Two have been settled, that is, a group grievance and a grievance dating back to 2007 concerning a disciplinary warning for multiple errors due to inattentiveness.

[12] The 20 active grievances date back to 2010 through 2014. The 2014 grievances pertain primarily to the complainant’s disability claims, which were denied by the employer, and time off work related to a claim filed with the Commission de la santé et de la sécurité du travail (the CSST, now known as the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the CNESST)). The 2013 grievances pertain to claims for overtime that the complainant believed she had lost because the employer had preferred to give it to another employee. The 2012 grievances also pertain to a claim for overtime that the employer failed to give her and an appraisal by the employer, which the complainant contested. The 2011 grievances pertain to a disability claim that was denied and unpaid vacation time and one grievance pertains to abuse of a right, psychological harassment and discrimination. In the latter grievance, dated February 25, 2011, the complainant claims the right to fair and reasonable working conditions in a harassment-free environment. Another grievance, dated June 1, 2011, pertains to the denial of a short-term disability claim. The 2010 grievances involve a challenge of an appraisal issued by the employer and a disciplinary warning in connection with an unauthorized early departure.

[13] Mr. Leduc explained that he had replaced Mr. Larose when the latter had retired. He has worked in the mortgage department of the Laurentian Bank since 2009 or 2010. He explained that his union has 2,000 members, all governed by a single collective agreement. In total, 180 workplaces are covered by the collective agreement, including 165 branches and 15 managers. The union’s executive board comprises 23 members, from the different Laurentian Bank branches, and directors. Mr. Leduc also explained that there are shop stewards in all the branches but that, as a result of the retirement of several shop stewards in recent years, some branches, including the Maniwaki branch where the complainant works, no longer have a shop steward. He estimated that 85% of branches have shop stewards.

[14] Mr. Leduc explained that union members are provided with front-line services, with Ms. Sophie Drouin and Ms. Josée Cioffi taking calls. Ms. Cioffi is a union advisor, who has been released from her duties by the employer. She holds a non-elected position that is not part of the union’s executive board. He explained that Ms. Cioffi and Ms. Drouin are the ones who file grievances but that they are not responsible for taking any further action. He indicated that he and Ms. Mélanie Charest, the vice-president of the union’s executive board, are responsible for dealing with the grievances.

[15] Mr. Leduc explained that, when he had accepted the position of president of his union in 2012, there had been 4,000 active grievances. Since then, the executive board had introduced a new approach, to reduce the number of grievances. Mr. Leduc indicated that 3,000 cases had been classified using a “silo” approach and that, since 2012, the number of grievances had dropped from 4,000 to 1,000. Mr. Leduc explained that a “silo” approach means that grievances are classified by subject, such as schedules, suspensions and unpaid overtime. He indicated that the union’s legal counsel are the ones who decide how to classify grievances.

[16] In regard to Ms. Fortin’s grievances, Mr. Leduc indicated that they were “all over the board” [translation], that all of the cases had been put on hold, and that none had yet been dealt with or referred to arbitration. He indicated that there had been no contact with Ms. Fortin, either orally or in writing, in regard to the status of her grievances. As to the grievances involving Ms. Fortin’s disability claims, Mr. Leduc maintained that such cases are now handled by an outside firm, Morneau Shepell.

[17] On cross-examination, Mr. Leduc indicated that there was no shop steward in Maniwaki as no one had volunteered. He could not say whether there had ever been a shop steward at that branch.

III. Arguments

A. The Complainant

[18] Ms. Fortin submits that her union has not contacted her about any of her grievances and that she is unaware of their status. She adds that she learned that the former union president had left Laurentian Bank with her file. She also indicates that she has never seen a shop steward at the branch at which she works in the entire time she has worked there.

[19] Ms. Fortin submits that Mr. Leduc’s testimony shows that, in 2012, the former union administration had been grappling with 4,000 grievances, which in her view is evidence of the union’s lack of effectiveness in her regard. According to the complainant, this was an unacceptable situation and indicative of gross negligence toward her. Ms. Fortin also indicates that she suffered work-related injuries and has since been suffering from serious problems related to the work environment.

[20] Ms. Fortin submits that the new approach recently introduced by her union to deal with grievances and establish better communication with the members is actually “too little, too late” [translation], not to mention the fact that her grievances have still not been dealt with. The complainant asks the Board to find that her union has acted negligently toward her, contrary to section 37 of the Code.

B. The Union

[21] According to the union, Ms. Fortin’s complaint is premature given that no final decision has as yet been made regarding her grievances. The union submits that it has not in any way breached its duty of fair representation under section 37 of the Code. It further submits that any lack of communication between it and the complainant cannot not in itself constitute a breach of section 37 of the Code as the complainant has not suffered any prejudice as a result.

[22] The union also submits that, since the new president, Mr. Leduc, took over, 3,000 grievances have been dealt with in order of priority of the subject matter—for example, termination grievances. He also points out that the union has the prerogative to refer a grievance to arbitration or not.

[23] The union further submits that the complainant has not produced any evidence of arbitrary or discriminatory conduct toward her on its part. With respect to the issue of the lack of a shop steward at the branch where the complainant works, the union submits that shop stewards volunteer to assume such functions.

[24] The union adds that no final decision has as yet been made in regard to the complainant’s grievances and submits that it had problems reaching her in 2015. It moreover points to a lack of cooperation of the part of the complainant. In support of its arguments, the union submits some Board decisions relating in particular to the issue of lack of communication to show that this alone is insufficient to constitute a breach of the duty of fair representation.

C. The Employer

[25] The employer raises the same arguments as the union. In its view, there is no evidence that could lead to a conclusion that the union breached section 37 of the Code. It, like the union, adds that the complainant has not suffered any prejudice as a result of the lack of communication between her and the union and that, based on the medical reports from her attending physician, the complainant’s health issues are in no way related to the fact that her grievances have not been dealt with.

[26] The employer adds that the complainant’s allegation that the failure to deal with her grievances has affected her morale does not stand up and that the Board must assess the credibility of the testimony it heard and dismiss the complainant’s complaint if appropriate.

IV. Analysis and Decision

A. Preliminary Issues

[27] The union alleges that the complaint is untimely as it relates to a large number of grievances filed between 2007 and 2014. Similarly, the union submits that the complaint is premature, as some 20 grievances remain active.

[28] To begin with, it should be noted that the Board rejects the arguments of the union and the employer to the effect that the complaint is premature. While the union has pointed out that the complainant’s grievances remain active, the union’s continued silence in relation to the complainant’s requests and its lack of action in dealing with her grievances justify the Board’s consideration of the conduct of the union and its representatives to determine whether they have fulfilled their duty of fair representation. Nevertheless, the Board must begin by considering whether Ms. Fortin’s complaint was filed within the time limits set out in the Code, given that it relates in part to events dating back as far as 2007.

[29] Section 97(2) of the Code provides that a complaint relating to a union’s duty of fair representation must be filed within 90 days:

97(2) Subject to subsections (4) and (5), a complaint pursuant to subsection (1) must be made to the Board not later than ninety days after the date on which the complainant knew, or in the opinion of the Board ought to have known, of the action or circumstances giving rise to the complaint.

[30] To determine whether the complaint was filed within the appropriate time limit, the Board must consider the date on which Ms. Fortin knew or ought to have known of the action or circumstances giving rise to the complaint. Ms. Fortin did not indicate when she first knew of the circumstances giving rise to the complaint.

[31] However, the evidence on file shows that the complainant has repeatedly asked her union for status reports on her many grievances, in particular since Mr. Larose retired in 2012. On May 5, 2013, the complainant asked Ms. Cioffi to send her a copy of her grievances and also asked her for a report on said grievances. When she did not receive a written reply from the union, the complainant started writing to Ms. Drouin. On August 25, 2014, the complainant sent Ms. Drouin a letter in which she stated the following:

Why don’t I ever get any news? On Wednesday, August 20, 2014, I sent you a fax in which I explained that my manager, Madeleine Pelletier, had yelled at me in front of the customers and employees. Did you file a grievance? I ask that you deal with it because if the other grievances had been dealt with, I would not have been subjected to such humiliation and hurt, which destroyed, demeaned and disparaged me and made me feel small; it is a poisoned work environment. If the opposite had happened and I had yelled at her in front of others, do you think she would have done nothing?

And it’s not the first time either! Why are my grievances never dealt with?

Monique Morin, who’s going on vacation again for two weeks in October, she gets seven weeks a year!

Sylvie Saumure is also going on vacation in November for seven weeks, and the other girls get days off whenever they want.

(translation)

[32] As that letter shows, the complainant definitely knew as of August 25, 2014, that the union was failing to take any action with regard to the many grievances filed to that point. The Board accordingly considers that the portion of the complaint relating to the union’s conduct in relation to grievances filed prior to August 25, 2014, is untimely, as it was filed outside the 90-day time limit.

[33] While it is true that a union cannot avoid its obligations under the Code merely because a complainant has been patient in the face of its lack of action over a long period of time (see Browne, 2012 CIRB 648), in the circumstances in this matter, the Board is satisfied that the complainant definitely knew about the union’s lack of action for years and knew of the circumstances giving rise to a significant portion of her complaint by August 25, 2014, at the latest.

[34] That said, given the fact that most of the grievances filed prior to August 25, 2014, are still active, the Board wishes to make it clear that the union has an ongoing duty of fair representation toward the complainant in the handling of those active grievances. Thus, those grievances should be dealt with within a reasonable period of time and in a manner that complies with the Code. In fact, there is nothing to prevent the complainant from filing a new complaint with the Board in the event that new circumstances show that the union is acting in an arbitrary or discriminatory manner or in bad faith.

[35] Under section 16(m.1), the Board has the discretion to extend the 90-day time limit for filing a complaint. However, the Board will consider exercising such discretion only in compelling circumstances, such as if a complainant’s health prevented the complainant from filing a timely complaint (see Galarneau, 2003 CIRB 239). In the circumstances here, the Board is not satisfied that it would be appropriate to extend the time limit for filing the complaint. The complainant did not explain why she had not filed her complaint within the prescribed time limit.

[36] For the foregoing reasons, the Board finds that the portion of the complaint relating to the union’s inaction in relation to the grievances filed prior to August 25, 2014, is untimely and must be dismissed.

[37] However, the Board has decided to consider the union’s conduct with regard to the requests made and grievances filed by the complainant after August 25, 2014, but prior to the filing of the complaint in this matter. Indeed, there is nothing in the file to indicate that the complainant knew of the circumstances giving rise to that portion of the complaint any earlier than the 90-day time limit provided for under Code.

B. The Duty of Fair Representation

[38] Section 37 of the Code reads as follows:

37 A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.

[39] In McRaeJackson, 2004 CIRB 290, the Board clearly explained a union’s responsibilities when the Board certifies it to represent employees:

[6] The duty of fair representation exists as a counterpart to the union’s exclusive authority to deal with grievances under the collective agreement.

[7] When the Board certifies a trade union, the union becomes the exclusive representative of a unit of employees in its relationship with the employer. Section 36(1)(a) states as follows:

36.(1) Where a trade union is certified as the bargaining agent for a bargaining unit,

(a) the trade union so certified has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit; ...

[8] This relationship involves the negotiation and signing of a collective agreement. All collective agreements negotiated under the Code must contain a provision for final settlement of disputes, also known as the grievance procedure (section 57 of the Code). Unions enforce the collective agreement by filing grievances that allege that the employer has violated the terms of the collective agreement. Unions have a great deal of discretion when they deal with grievances. They may settle or drop grievances or decide not to refer them to arbitration, even if the affected employee disagrees (see Blacklock et al., [2001] CIRB no. 139).

[9] The union’s authority to deal with grievances is counterbalanced by the duty provided under the Code to treat all members of a bargaining unit fairly…

[40] The principles that govern the union’s duty of fair representation have been enshrined in the following excerpt from the decision of the Supreme Court of Canada in Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509:

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.

4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

(page 527)

[41] The union submits that the Board should dismiss the complainant’s complaint on the basis that any lack of communication with her did not cause her any prejudice. In McRaeJackson, supra, the Board indicated that lack of communication per se does not constitute a violation of the Code unless it prejudices the complainant. The Board stated the following:

[40] The union has carriage of the grievance and does not need to consult with the employee at every stage of the grievance procedure, although it may be advisable to communicate with the employee if a grievance or arbitration hearing is delayed, in order to avoid a complaint under section 37 (see Gagné, supra). Lack of communication per se does not constitute a violation of the Code, except where it prejudices the complainant (see Crewdson (1992), 93 CLLC 16,014 (CLRB decision no. 977) (decision subsequently rescinded following parties’ agreement); Campbell, supra; and Adams, supra).

[42] In Pepper, 2009 CIRB 453, the Board indicated the following:

[40] Ineffective communications between a union and a member often precipitate duty of fair representation complaints before the Board. However, poor communication is not in itself a basis for a successful duty of fair representation complaint (see Campbell, 1999 CIRB 8). As the Board noted in Brideau (1986), 63 di 215; 12 CLRBR (NS) 245; and 86 CLLC 16,012 (CLRB no. 550), it is when the lack of communication results in a situation that prejudices the position of the grievor that the omission can result in a violation of section 37.

[43] In Lafontaine, 2010 CIRB 552, submitted by the union, the Board dismissed the complaint filed by the complainant, stating the following:

[66] The Board notes that, in both fact and law, the complainant did not suffer any prejudice as a result of the lack of communication other than not being kept abreast of the status of his file.

[67] Lack of communication often gives rise to duty of fair representation complaints before the Board. Unions have many members—dozens, hundreds, even thousands of members—and it can be difficult for them to appropriately respond to all of them. They might benefit from setting up file tracking systems for their members, especially in the age of the Internet, to save themselves time, money and considerable resources.

[44] While lack of communication between the union and the complainant does not in itself constitute a violation of the Code, this does not mean that the Board does not consider communication an element that can give rise to a section 37 violation. In Brideau (1986), 63 di 215; 12 CLRBR (NS) 245; and 86 CLLC 16,012 (CLRB no. 550), the Board did not definitively eliminate the possibility that a lack of communication could lead to a violation of section 37. In Shanks (1996), 100 di 59 (CLRB no. 1157), the Board found that what is principally alleged against the union cannot be merely "poor communication but rather ... sustained neglect and inaction on the part of the Union in the exercise of its exclusive authority" (page 71).

[45] In the matter before us, the complainant asked the union on August 27, 2014, to file a psychological harassment complaint and grievance in relation to an occurrence in the workplace in August 2014. However, such grievance does not appear on the list of grievances provided by the union. The union filed three grievances, on October 31, 2014, November 6, 2014, and November 10, 2014, respecting disability claims and a pay issue. At the time of the hearing held in August 2015, the union had still not taken any investigative steps in relation to those grievances.

[46] The evidence reveals that there was no oral or written communication between the complainant and her union, or at least those responsible for handling grievances, despite the fact that the complainant approached the union’s office staff several times. Mr. Leduc, the local union’s president, moreover stated in his testimony that there had been no written or oral contact with the complainant in regard to the status of her grievances.

[47] In Campbell, 1999 CIRB 8, the Board indicated that the union’s conduct is arbitrary when the union makes no inquiry or only a perfunctory or cursory inquiry into an employee’s grievance or where the union demonstrates a non-caring attitude toward the employee’s interests, and this encompasses gross negligence and includes a reckless disregard for the employee's interests.

[48] In the matter now before the Board, there is nothing in the evidence to show that an investigation was conducted in regard to either the complainant’s recent complaints or the psychological harassment grievance that she had asked the union to file on her behalf on August 27, 2014. There is no evidence that the union considered the merits of the issues raised by the complainant or attempted to obtain information that might warrant approaching the employer, at least in the short term. The Board finds that the union demonstrated an indifferent, even uncaring attitude toward the complainant and that its conduct must be considered arbitrary. In light of the union’s lack of action and the documentary evidence submitted by the complainant, the Board finds that the union breached its duty of fair representation.

[49] As regards the allegations made by the union and the employer that the complainant had not suffered any prejudice as a result of the union’s lack of communication and that there was no connection between the complainant’s health and the fact that the union had not dealt with her grievances, the Board does not share that view and rejects the argument. What is involved here is not a mere lack of communication but a complete failure to act on the part of the union and a failure to carry out the slightest investigation.

[50] Finally, with respect to the complainant’s allegations and letters regarding matters pending before the CNESST and the Commission des lésions professionnelles (the CLP, now known as the Tribunal administratif du travail (the TAT)), the Board finds that they are not relevant, as a union’s duty of fair representation does not include any obligation to represent its members before other forums or administrative tribunals (like the CNESST or CLP) unless such obligation is clearly set out in the collective agreement (see Provencher, 2015 CIRB 787).

[51] For the foregoing reasons, the Board finds that the union breached section 37 of the Code in that it acted arbitrarily by failing to take any action to deal with the complainant’s grievances filed on October 31, 2014, November 6, 2014, and November 10, 2014, or her request that it file a psychological harassment grievance on August 27, 2014.

[52] Accordingly the Board orders the following:

- that the union file the psychological harassment grievance requested by the complainant in regard to the events that occurred in August 2014 and that it conduct a thorough investigation into such grievance within 30 days;

- that the union refer the grievances dated October 31, 2014, November 6, 2014, and November 10, 2014, to arbitration and waive any applicable time limits under the collective agreement; and

- that the union assume the legal fees and reasonable expenses that the complainant will incur with respect to the preparation and hearing of her grievances before the arbitrator should the complainant choose not to be represented by union counsel.

[53] The Board retains jurisdiction regarding any matter arising from the present decision. This is a unanimous decision of the Board.