UNFAIR LABOUR PRACTICE COMPLAINTS UNDE NATIONAL PRESIDENT’S CONFERENCE OTTAWA FEBRUARY 22-23, 2019 UNFAIR LABOUR PRACTICE COMPLAINTS

FEDERAL PUBLIC SECTOR LABOUR RELATIONS ACT DIVISION 12 – UNFAIR LABOUR PRACTICES Unfair labour practices — EMPLOYER Section 186 (1) No employer, and, whether or not they are acting on the employer’s behalf, no person who occupies a managerial or confidential position and no person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer, 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) No employer, no person acting on the employer’s behalf, and, whether or not they are acting on the employer’s behalf, no person who occupies a managerial or confidential position and no person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer, shall (a) refuse to employ or to continue to employ, or suspend, lay off, discharge for the promotion of economy and efficiency in the Royal Canadian Mounted Police 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, (ii) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Part or Part 2 or 2.1, (iii) has made an application or filed a complaint under this Part or Division 1 of Part 2.1 or presented a grievance under Part 2 or Division 2 of Part 2.1, or (iv) has exercised any right under this Part or Part 2 or 2.1;

(b) impose, or propose the imposition of, any condition on an appointment, or in an employee’s terms and conditions of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Part or Part 2 or 2.1; or (c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from (i) testifying or otherwise participating in a proceeding under this Part or Part 2 or 2.1, (ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2 or 2.1, or (iii) making an application or filing a complaint under this Part or Division 1 of Part 2.1 or presenting a grievance under Part 2 or Division 2 of Part 2.1.

FPSLRA - STATUTORY FREEZE DIVISION 7 – COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENTS SECTION 107 Duty to observe terms and conditions 107 Unless the parties otherwise agree, and subject to section 132, after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or (a) if the process for the resolution of a dispute is arbitration, an arbitral award is rendered; or (b) if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).

FEDERAL PUBLIC SECTOR LABOUR RELATIONS ACT DIVISION 13 - Complaints Section 190 (1) The Board must examine and inquire into any complaint made to it that (a) the employer has failed to comply with section 56 (duty to observe terms and conditions); (b) the employer or a bargaining agent has failed to comply with section 106 (duty to bargain in good faith); (c) the employer, a bargaining agent or an employee has failed to comply with section 107 (duty to observe terms and conditions); (d) the employer, a bargaining agent or a deputy head has failed to comply with subsection 110(3) (duty to bargain in good faith); Division 13 of the Act at Section 190 identifies the various types of unfair labour practice complaints: 1. violation of section 56 – duty to observe terms and conditions 2. violation of section 106 – duty to bargain in good faith 3. violation of section 107 – duty to observe terms and conditions 4. violation of subsection 110(3) – duty to bargain in good faith

(e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award); (f) the employer, a bargaining agent or an employee has failed to comply with section 132 (duty to observe terms and conditions); or (g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

DIVISION 13 - TIMELINES FOR FILING AN UNFAIR LABOUR PRACTICE COMPLAINT SECTION 190(2) Time for making complaint (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board 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.

UNFAIR LABOUR PRACTICE COMPLAINTS – BARGAINING AGENT Section 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.

Section 188 No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall (a) except with the consent of the employer, attempt, at an employee’s place of employment during the employee’s working hours, to persuade the employee to become, to refrain from becoming, to continue to be or to cease to be a member of an employee organization; (b) expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner; (c) take disciplinary action against or impose any form of penalty on an employee by applying the employee organization’s standards of discipline to that employee in a discriminatory manner;

(d) expel or suspend an employee from membership in the employee organization, or take disciplinary action against, or impose any form of penalty on, an employee by reason of that employee having exercised any right under this Part or Part 2 or 2.1 or having refused to perform an act that is contrary to this Part or Division 1 of Part 2.1; or (e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has (i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2 or 2.1, (ii) made an application or filed a complaint under this Part or Division 1 of Part 2.1 or presented a grievance under Part 2 or Division 2 of Part 2.1, or (iii) exercised any right under this Part or Part 2 or 2.1.

DUTY OF FAIR REPRESENTATION ARBITRARY DISCRMINATORY BAD FAITH -inconsiderate -departing from past -intentional deception treatment practice in the treatment of different grievors -desire for political revenge -indifferent treatment -flagrant dishonesty -failure to investigate a -lack of consistency in how grievance grievors are treated -malicious frame of mind -superficial investigation -treating individuals or groups in -hostile frame of mind a bargaining unit differently -lack of fairness or (with no valid labour relations reason) -prior history of personal Impartiality hostility -no reasonable distinction between -abrupt treatment those favoured and those not favoured -ill will -reckless disregard for -dishonest purpose grievor’s interests -to mislead or deceive -failure to notify of appeal procedures within union