Reasons for decision

Jenny Sutcliffe Heinrichs,

complainant,

and

Canadian Union of Postal Workers,

respondent,

and

Canada Post Corporation,

employer.

The Canada Industrial Relations Board (the Board) was composed of Mr. Patric F. Whyte, Vice-Chairperson, and Messrs. André Lecavalier and Norman Rivard, Members.

Parties’ Representatives of Record

Mr. Allen Welman, for Ms. Jenny Sutcliffe Heinrichs;

Ms. Joanne Leader, for the Canadian Union of Postal Workers;

Ms. Debra Kyle, for Canada Post Corporation.

These reasons for decision were written by Mr. Patric F. Whyte, Vice-Chairperson.

Section 16.1 of the Canada Labour Code (Part I–Industrial Relations) (the Code) provides that the Board may decide any matter before it without holding an oral hearing. In this matter, the Board is satisfied that it can determine the complaint without an oral hearing.

I. Nature of the Complaint

[1] On November 19, 2015, the Board received, pursuant to section 97 of the Code, a duty of fair representation (DFR) complaint from Ms. Jenny Sutcliffe Heinrichs (Ms. Sutcliffe or the complainant) alleging that her bargaining agent, the Canadian Union of Postal Workers (CUPW or the union), violated section 37 of the Code by failing to assist her in her return to work after her maternity leave and sick leave associated with complications arising therefrom and by not communicating with her.

II.  Background

[2] Ms. Sutcliffe began her employment relationship with the Canada Post Corporation (CPC or the employer) on November 23, 2007, as a term employee. At some point, Ms. Sutcliffe went on maternity leave and, by letter dated January 13, 2015, from her doctor, she was “cleared to attempt to return to work after a period of disability”.

[3] On June 26, 2015, the complainant called her local union office to advise that she was ready to return to work and was seeking the union’s assistance. On June 30, 2015, the complainant advised the CPC that she was ready to resume her employment in accordance with the collective agreement. The complainant wrote to the CPC again on August 5, 2015, reiterating her request to resume her employment.

[4] On August 21, 2015, the complainant sent a letter to CUPW to confirm her request that the union arrange for her return to work after a leave of absence. The complainant indicated in the letter that she had sought the union’s assistance with her return to work on two previous occasions in the two preceding months but had not received a response. The complainant asked the union to begin the grievance process. The letter reads as follows:

Dear Mr. Slaterly,

This letter is to confirm, once again, my request that the union arrange for my return to work with Canada Post after a leave of absence that was due to illness.

I have been patiently awaiting a reply to my request for employment, which, as you know, I requested the union to act on twice in the past two months. I have not, as yet, received a reply, either from the union or from management. I am, therefore, filing a grievance. Please proceed with the required process as soon as possible, and, please, as well, keep me informed along the way.

I am also faxing two copies of letters to management (June 30^th and August 5^th of this year) indicating my readiness to return to work. This effort has also been without success.

[5] Having not received a response from the union, the complainant filed this DFR complaint with the Board on November 19, 2015.

[6] Following a review of the complaint and supporting documents, the Board invited the union and the employer to respond to the complaint.

III. Positions of the Parties

A. The Complainant

[7] The complainant claims that the union acted in an arbitrary, discriminatory and bad faith manner with respect to her request to return to work following a period of disability.

[8] On the allegation of arbitrary conduct, the complainant submits that she made numerous attempts to contact both the union and the employer, which remained unanswered. She advised the union on August 21, 2015, that she was filing a grievance because she had had no response from either the employer or the union regarding her request to return to work.

[9] It is the complainant’s position that, because of her long absence from work due to her pregnancy and after-birth complications, the union has discriminated against her because it has not tried to discuss her return to work with the employer.

[10] Lastly, with respect to the allegation of bad faith conduct, the complainant states that the union’s inaction has left her with the impression of ill-will towards her. She is suspicious that the union and the employer are in collusion because it appears that the CPC does not want her to return to work due to her previous maternity leave and subsequent after-birth complications.

[11] As a remedy, the complainant asks the Board to return her to employment with full compensation for loss of income/earning benefits and any other compensation she would have been entitled to had she continued to work in her “seniority class”.

B. The Union

[12] No response was filed by the union.

C. The Employer

[13] The CPC takes no position on the merits of the complaint against the union. The employer submits that if the Board finds that a breach of the Code has occurred, the CPC should not be liable for any direct or indirect consequences (monetary or otherwise) arising from the breach and should be entitled to the benefit of any and all time limits negotiated with the union for the filing and referral of grievances to arbitration.

IV. Analysis and Decision

A. Section 37 Process

[14] 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.

[15] The Board has developed a process that allows it to streamline the handling of section 37 complaints. When a complaint is filed in accordance with section 37 of the Code, the Board sends out an acknowledgement of receipt of the complaint to the complainant and a copy of the complaint and any particulars contained therein to the respondent union accused of a violation of the Code. A copy of the complaint and any particulars are sent to the employer as well.

[16] The Board then enters into a prima facie case analysis of the complaint. If the Board finds that the complainant has made out a prima facie case, the Board will then send out a letter to the respondent union and to the employer, stating that “the Board has reviewed the complaint and wishes to invite the respondent trade union and the employer to respond to the complaint”.

[17] The letter goes on to say that “if either party wishes to file a response with the Board, they must do so within fifteen (15) days of receipt of this letter. The complainant will then have ten (10) days to file a reply”.

[18] The letter directs the parties to sections 9 and 12 of the Canada Industrial Relations Board Regulations, 2012 (the Regulations), which outline the criteria that must be met in order to file a response or reply to the complaint. Section 12 of the Regulations reads as follows:

12 (1) Any person who makes a response or reply must include the following information in the response or reply:

(a) the name, postal and email addresses and telephone and fax numbers of the respondent and of their legal counsel or representative, if applicable;

(b) the Board’s file number for the relevant application;

(c) full particulars of the facts, relevant dates and grounds for the response or reply;

(d) a copy of supporting documents for the response or reply;

(e) the person’s position relating to the order or decision sought by the applicant or respondent, as the case may be;

...

(2) A response must be filed

...

(b) in the case of any other application, within 15 days of the receipt of the notice of application.

...

(4) A request for an extension of time to file a response or reply must be made in writing to the Board and set out the grounds for the request.

(emphasis added)

[19] The letter further states that:

… pursuant to section 16.1 of the Canada Labour Code (Part I–Industrial Relations) (the Code), the Board may decide any matter before it without holding an oral hearing, even if a hearing has been requested. In such cases the Board determines the complaint on the basis of the written representations of the parties and supporting documentation. It is, therefore, in the best interests of the parties to file full, accurate and detailed representations in support of their respective positions and to cooperate fully with the Board’s officer.

(emphasis added)

[20] The Board’s jurisprudence has highlighted the importance of the union’s response to a DFR complaint once the Board has determined that the complaint meets the prima facie test (see Heintzmann, 2014 CIRB 737; and Mallet, 2014 CIRB 730). In Heintzmann, supra, the Board stated the following:

[88] While a trade union initially does not need to respond to a DFR complaint before the Board completes its prima facie case analysis, it has a significant role to fulfill if the Board requests a response. That response may be its only opportunity to provide the Board with its observations on how it did not violate its Code duty. ...

[21] If the union does not respond to a complaint after being invited to do so, the Board may proceed to determine the matter without a response. Section 47(1) of the Regulations provides as follows:

47 (1) If a party fails to comply with a rule of procedure under these Regulations, after being allowed an opportunity for compliance by the Board, it may

(a) summarily refuse to hear or dismiss the application, if the non-complying party is the applicant; or

(b) decide the application without further notice, if the non-complying party is the respondent.

[22] In the case at bar, the Board received a complaint from Ms. Sutcliffe alleging that CUPW failed to file and pursue a grievance on her behalf related to the employer’s failure to return her to work after her pregnancy leave and medical leave for after-birth complications.

[23] The Board, upon receipt of the complaint, entered into its normal practice for processing a section 37 complaint. It acknowledged receipt, did its prima facie case analysis and determined that the complainant had met the requirements to establish a prima facie case. Accordingly, on December 7, 2015, the Board invited the union and the employer to respond to the complaint.

[24] On December 21, 2015, the CPC made submissions on the issue of remedy only.

[25] The union’s response was due on or before December 23, 2015. When no response was received by that date, the Board’s Industrial Relations Officer (IRO) contacted Mr. Walter Woloschuk of the union and advised him that if the union wished to request an extension of time to file its response, it must fax the request to the Board as soon as possible.

[26] The union did not file a response to the complaint within the time requirements, nor did it fax in a request for an extension of the time limits.

[27] On January 20, 2016, the Board’s IRO sent a letter to the parties indicating that “the Board has not received either a response from the union or a request for extension of time to file such a response. Accordingly, the pleadings in the above-noted matter are now closed and the matter is being referred to the Board for its determination.”

[28] The Board has found that the complainant established a prima facie case. In light of the fact that the union has not made any submissions in response to the complaint, the Board is left with no alternative but to decide the matter based solely on the submissions filed by the complainant and the employer’s submissions on the issue of remedy.

B. The Duty of Fair Representation Complaint

[29] The complainant alleges that the union breached its DFR on all three grounds: arbitrary, discriminatory and bad faith conduct. Since the complainant bears the burden of proof in a complaint under section 37 of the Code, she must convince the Board that the union acted in an arbitrary, discriminatory or bad faith manner, when it failed to file and pursue, on her behalf, a grievance related to her request to return to work.

[30] In order to be successful in defending against a section 37 complaint, a union must show that it has put its mind to the grievance, looking to its chances of success at arbitration, ensured that it has performed the appropriate investigation and made a decision in a manner that is not arbitrary, discriminatory or in bad faith.

[31] Based on the uncontested submissions of the complainant, the Board is of the view that the union breached its DFR when it failed to respond to the complainant’s numerous requests for assistance in her attempts to return to work following a period of disability. It is of particular note that the complainant’s grievance dealt with matters which required an extra measure of care on the part of the union. The complainant was attempting to return to work after a period of maternity leave and medical leave for after-birth complications.

[32] In Bingley, 2004 CIRB 291, the Board explained the extra measure of care unions must show when they are called upon to represent members in matters dealing with accommodation requests:

[83] The case law leaves little doubt that to discharge their duty of fair representation, unions are required to take an extra measure of care and show an extra measure of assertiveness when representing a member who is alleging a violation of statutory anti-discrimination rights. Thus to the extent that the union demonstrates that it was reasonably careful and reasonably assertive, labour relations boards will not likely worry about whether the union’s decision not to pursue a grievance is correct on the language of the collective agreement, or even on the language of the applicable human rights statute.

[84] By way of summary, the Board adopts the following non-exclusive criteria as guidelines in evaluating whether the union has satisfied its duty of fair representation in matters relating to the duty to accommodate:

- whether the union’s intervention was reasonable where the employer failed to implement appropriate accommodation measures;

- whether quality of the process that allowed the union to come to its conclusion was reasonable;

- whether the union went beyond its “usual” procedures and applied an extra measure of care in representing the employee;

- whether the union applied an extra measure of assertiveness in dealing with the employer.

[33] In this case, the union did not take any action to represent the complainant in her attempts to return to work and did not respond to any of her requests for assistance. While the Board has repeatedly held that a lack of communication per se does not constitute a violation of the Code, there is an exception when the lack of communication prejudices the complainant. As stated in Brideau (1986), 63 di 215; 12 CLRBR (NS) 245; and 86 CLLC 16,012 (CLRB no. 550):

Although the lack of communication between the union and Brideau in the instant case did not result in a violation of section 136.1 [now section 37], this does not mean that the Board does not consider communication to be an element that can never give rise to a section 136.1 [now section 37] violation.

In handling a grievance and dealing with the employer, it is incumbent on the union to ascertain, from all necessary sources, the facts giving rise to the grievance. These facts can be elicited from either the grievor, other persons knowledgeable about the incident ... or documentary evidence.

...

Thus, there is no obligation to communicate with the grievor, but if the lack of communication results in a situation which prejudices the position of the grievor, then that omission can result in a violation of section 136.1 [now section 37].

(pages 239-240; 269-270; and 14,109)

[34] For example, in Campbell, 1999 CIRB 8, the Board found that the union acted in an arbitrary manner by not carrying out any investigation of the complaint and prejudicing the complainant by failing to communicate with him. In that particular case, the Board found that the failure to communicate with the complainant constituted a failure to fully investigate the matter and thus resulted in a situation that prejudiced the complainant’s position.

[35] In the case at bar, the complainant contacted the union on numerous occasions, both at the local and regional levels between June 26, 2015, and August 14, 2015. Having not received any response from the union, the complainant sent a letter to the union on August 21, 2015, indicating that she was filing a grievance regarding her request to return to work. She asked the union to proceed with the grievance process and to keep her informed along the way. The union did not respond to the complainant.

[36] The complainant has indicated that she is now in a situation where she is no longer receiving medical insurance for her absence from work, yet her employer will not let her return to work. Consequently, the Board finds that the union’s lack of communication was prejudicial to the complainant’s position. In addition, there is no indication that the union investigated the complainant’s grievance, nor is there any indication that the union turned its mind to the merits of the complainant’s grievance. This complaint does not only raise a lack of communication concerning the outcome of the grievance process, but also  the union’s apparent failure to take any action to represent the complainant’s interests.

[37] As a result, the Board finds that the union’s complete lack of action in representing the complainant in this case demonstrates a non-caring attitude toward the complainant’s interests and is therefore arbitrary. This inaction together with the particular circumstance around the complainant’s request to return to work may also be interpreted as discriminatory conduct based on the complainant’s previous maternity leave and medical status.

[38] That being said, the Board finds that the complainant has not substantiated her allegation of bad faith conduct. Bad faith conduct has been defined in Blakely, 2003 CIRB 241, as follows:

[33] Bad faith conduct has been described as arising in circumstances where a union acts fraudulently, for improper motives, or out of personal hostility or revenge. In Rousseau (1995), 98 di 80; and 95 CLLC 220-064 (CLRB no. 1127), the Board stated:

“Bad faith” refers to a subjective state of mind or conduct which has been motivated by ill-will, hostility, dishonesty, malice, personal animosity, political revenge, lack of fairness or impartiality, lack of total honesty such as withholding information, flagrant dishonesty such as lying, or sinister purposes. ...

... The primary focus in a section 37 complaint is on the conduct of the union and of its officers and agents. ...

(pages 105-106; and 143,559)

[34] It was further defined in Eamor (1996), 101 di 76; 39 CLRBR (2d) 14; and 96 CLLC 220-039 (CLRB no. 1162), as:

Bad faith refers to a subjective state of mind or conduct. It arises in circumstances where a union representative acts fraudulently, or for improper motives, or out of personal hostility or revenge. Bad faith occurs, as well, where the union, in its representative capacity, acts dishonestly or deceitfully. Likewise it is present where the failure to represent is for sinister purposes (see Haley, supra, at page 324; and Elejel, [1985] OLRB Rep. June 841, at page 852).

(pages 96; 36; and 143,377)

[39] In this particular case, the complainant’s allegations of bad faith conduct were based on mere suspicions. The complainant has not submitted any evidence that the union representatives acted with improper motives or out of personal hostility or revenge. As a result, the Board cannot imply that the union’s lack of response was motivated by such subjective elements.

[40] For the above reasons, based on the uncontested submissions put forward by the complainant, the Board finds that the union has breached its DFR.

C. Remedy

[41] Section 99(1)(b) of the Code states:

99 (1) Where, under section 98, the Board determines that a party to a complaint has contravened or failed to comply with subsection 24(4) or 34(6), section 37, 47.3, 50 or 69, subsection 87.5(1) or (2), section 87.6, subsection 87.7(2) or section 94, 95 or 96, the Board may, by order, require the party to comply with or cease contravening that subsection or section and may

....

(b) in respect of a contravention of section 37, require a trade union to take and carry on on behalf of any employee affected by the contravention or to assist any such employee to take and carry on such action or proceeding as the Board considers that the union ought to have taken and carried on on the employee’s behalf or ought to have assisted the employee to take and carry on.

[42] It is important to note that the Board does not look at whether there has been a violation of the collective agreement but only at the conduct of the union in its representation of the employee regarding the alleged violation of the collective agreement.

[43] The complainant has requested remedies which are beyond the Board’s remedial powers. The Board is, therefore, unable to grant the remedies sought by the complainant. However, the Board may, in accordance with section 99(1)(b), fashion a remedy that would put the complainant back into the position that she would have been in, save for the violation of the Code.

[44] In this case, the breach is best remedied by ordering that a grievance be filed on the complainant’s behalf regarding the employer’s refusal to initiate her return to work after she indicated that she was ready to resume employment. Such grievance will be filed at the arbitration stage of the grievance procedure and be scheduled for hearing, and any and all time limits preventing it from proceeding are waived.

[45] The employer argued that it should not be held liable for any direct or indirect cost in the event that the Board finds a breach of the Code. The Board accepts this in part and orders that the employer shall not be responsible for any compensation and damages that an arbitrator might award for the period between November 19, 2015, and the date on which this decision is issued, the union will be responsible for any damages awarded to the complainant if any, for that time period.

[46] This apportionment recognizes that the employer should not incur an increased liability due to the union’s breach of its DFR. However, as the employer would normally be wholly responsible for any compensation and damages for a breach of the collective agreement awarded by an arbitrator in cases where no DFR complaint arose, the Board is not prepared to extend the union’s liability beyond the date of this decision.

[47] This decision does not preclude the parties from attempting to resolve any and all matters related to the complainant’s failure to be reinstated in her job short of an arbitration decision. However the resolution of the matter, if any, must be acceptable to the complainant.

[48] The Board remains seized of any issues arising from the implementation of this decision.

[49] This is a unanimous decision of the Board.

 

	____________________ Patric F. Whyte Vice-Chairperson
____________________ André Lecavalier Member		____________________ Norman Rivard Member