LRA Request for Review Reconsideration Sept 11, 2009

GOVERNMENT OF MANITOBA, MANITOBA CIVIL SERVICE COMMISSION “CSC”,
ORGANIZATION & STAFF DEVELOPMENT “OSD”, JACKIE DESROCHERS “Desrochers”,
ANNA SCHMIDT BEAUCHAMP “Beauchamp” and CHARLOTTE ELSON “ELSON”
935-155 CARLTON STREET, WINNIPEG, MB R3C 3H8
Employer/Respondents

The Applicant hereby makes application seeking a review and reconsideration pursuant to subsection 17(1) of Manitoba Regulation 184/87R passed under The Labour Relations Act under subsection 143(3) to review, rescind, amend, alter or vary its decision, order, or ruling as set out herein, or alternatively for the Board to exercise its power in accordance with its general principles, and proceed to a full hearing of reconsideration based on the following submissions:

a) As there was no hearing in the first instance, the Applicant subsequently finds that the decision turns on a finding of fact based on information provided which is in controversy, and on which she wishes to adduce evidence following the numbering of the Substantive Order.

1. The Applicant first met with the Registrar on September 30, 2008, self-declaring as a person with a mental health disability, also referenced throughout the Application(s). Three days later, the Applicant returned and filed additional information titled “Attached to and forming part of the ... September 30, 2008 complaint dated October 3, 2008. The eclectic array of information is characteristic of someone having difficulty processing all thoughts. It is under these unique circumstances that one year later a request is made to the Board to exercise its power of reconsideration based on the facts and circumstances of this particular case, and weigh the significance if any, the (impending) changes now being effected to the CSC employment model as a direct, or indirect result of the ‘fruits of my labour’.

2. It should be noted that the Applicant’s work history with the Government of Manitoba began January 2005 resulting from successful concurrent terms, leading up to the OSD term.

a) The work environment as provided in this application is consistent with the facts provided in the RWP complaint, and currently under re-investigation with the Manitoba Ombudsman (July 2009); and further clarified herein;

b) The reference to HRC was included as one, of many examples of violations under various statutes and Acts. The quote here, out of context and censored is misleading and given its online presence would reflect unfairly and adversely on the Applicant and therefore it is requested to be removed altogether;

c) The Board is requested to consider the evidence in its totality and in particular, the numerous complaints of the Applicant as a whole in determining whether the Respondent had carried out an unfair labour practice due to an animus towards her as an employee over her general inquiries regarding employee rights that in all probability would have been seen (and shortly thereafter did) lead to the disclosure of an employer’s interference with the union. What set the Applicant off on her mission of discovery (characteristic of mania that it was her purpose in life to ‘fix’ the department’s problems) stemmed from the fact that there were real problems as a result of the department not following the standards set for classification. Factual documentation on record would attest to the fact that there was unfair work distribution, and excess stress due to unclear and ever-increasing duties and responsibilities. Expectations that were unrealistic given the logical constraints of a 7.25-hour day. According to the Government’s Principles and Policies for Human Resource Management and Staffing [2.1.5, PG 9} terms of employment of the term are to be clearly defined: stating the duration and the duties associated with the term’s contract of employment. CSC is the authority that sets classification standards (Section 7 and 8 of the Civil Service Act.)

Farnya v. Chorney, [1952] 2 DLR 353 (B.C.C.A.), (O'Halloran, J.), particularly the principle noted at page 357d at P. 357:

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would reasonably recognize as reasonable in that place and in those conditions
i) Staffing Request Analysis April 2007 attached as Schedule “A” indicates the Clerk-3 salary at $34,195-$39,207/annum. The impact of not staffing: workload will not be manageable. Position is responsible for the coordination of all in-house/custom training and consulting projects including registration, preparation of materials and customer service consistent with the position description attached to the March 17, 2007 letter of offer. Employment equity is a factor. While this new evidence was in existence at the time of filing the Application in September 2008, it was not discovered by the Applicant until June 2009 as the Respondents made it necessary (characteristic of disorder) for the Applicant to review her personnel file as a result of inconsistencies reported by OSD to various authorities after employment ended. The file reflected only an exemplary work history. Tony Ferriello, HR was present and witnessed the Applicant numbering and initialling the documentation to verify and confirm the contents.

ii) The Respondents had not disclosed that the Clerk-3 position had been historically classified as an excluded position until after the letter of offer was signed. Desrochers verbally advised that “as part of the CSC we are not part of the union but we do follow the collective agreement as far as salary, classification and its policies—the nice thing is, you don’t have to pay union dues.” This in itself is a violation under Section 47(4) of The Civil Service Act and Section 5(3) and 6(1) under LRA. It has been implied that as the Applicant had still stayed in the position once she discovered she was in fact, excluded that this would indicate acceptance, which is unfounded. Once it became apparent (as indicated in RWP) that she was at risk in an unregulated work environment, she did start applying for new positions starting with the MB Justice Ad #17782 on June 15, 2007 and subsequently, actively competed in various selection processes beginning the long process of testing with the Federal Government.

iii) Background re IL2 position: Because of the sheer volume of work, plans were underway to split the IL2 into two positions (web design and project work), but as this did not happen in a timely fashion, the incumbent, feeling way too over-extended, terminated her employment. Given it was recognized that there was enough work for two positions, the impact of not staffing, leaving this position vacant for 10 months should have alerted the Respondents to the realistic fact that this workload (previously determined that it was not manageable for one incumbent and were in the government process of effecting that change) identified in the OSD Minutes November 2007 as an issue of concern, “we have no one to give the work to” would contradict para. 11(b) “temporarily assigned” “subject to small changes in workload” –to name a few;

iv) Given the Board has not given any weight to unfair workload distribution (further details provided in para. 12 (b)(i)—(vi) page 7 of the ‘reply’) attached as Schedule “B” and “C” are letters dated January 2008 from Linda Rubell, OSD wherein it is confirmed that Colleen Chaput (IL2) had previously managed the Office Professional Certificate Program “OPCP” and that the Applicant “…in her new role…will be the backbone of the OPCP”. Also attached, as Schedule “D” is copy of online web page of OSD titled “Certificate Programs & Partnerships” with attached email to COO on May 16, 2008. When asked for clarification, the Applicant had been criticized for “not being able to meet the requirements of the (Cl-3) position”. The Applicant had never been trained or have an HR background and therefore not consistent with the classification standards. While this new evidence was in existence at the time of filing the Application, the lack of weight given the expected duties is contrary to historical practices with its set standards. Although the Board has noted its jurisdiction regarding WSHA, HRC, RWP and ESC, it does speak to motive why it would not want to continue to employ the Applicant. It also demonstrates the Respondent is more adept at acting more swiftly on removing an incumbent who could prove to be an embarrassment to the employer, than it is at filling a vacant position which poses the further question as to whether the Respondents have ‘clean hands’.

d) RWP process currently under investigation with Manitoba Ombudsman.

e) HRC Intake Officer was contacted on June 24, 2008 and accepted as a valid complaint.

f) Director, Human Resource Programs failed to appropriately respond to appeal dated June 25, 2008 and subsequently failed to respond to follow up email sent September 2008.

g) EAP as staff of the CSC is present at all CSC social and learning functions as part of the staff and in this conflict acted in the capacity as Employer Assistance Program assisting management rather than the employee (confirmed by the EAP counsellor on June 27, 2008).

h) Investigation is still ongoing regarding MHRC Complaint No. 08 EN 238 filed October 20, 2008.

3) The Applicant asserts that the actions complained of in addition to the original complaint are:

a) Section 7 and 8 of The Civil Service Act in not adhering to classification standards;

b) Section 47(4) of The Civil Service Act in not observing the standard of criterion for exclusion;

c) Section 5(3) and 6(1) under Labour Relations Act. (para. 2 (c) iii) wherein Desrochers used an enticement of not having to pay union dues to interfere with the union’s rights, and then made a verbal agreement that OSD will still follow the collective agreement. Reference to the collective agreement was routinely made albeit when in the employer’s favour, but in its referencing did create the illusion of being employed within the scope of the collective agreement.


b) The Order made by the Board has operated in an unanticipated way, i.e. having an unintended effect on this particular application and against Rules and Procedures as follows:

4) The Reply was not a concise statement in direct response to the Application contrary to Section 5(9), 22(2) and 22(3) of MLB Rules of Procedures.

5) The Registrar had advised that it was not required to reply to the Reply. The Applicant confirmed this in her November 17, 2008 letter to the Board wherein,

It would seem that the Respondents have countered my Application with a number of new allegations. It is for this purpose that I would like to provide a Reply to clarify, confirm and correct information that is false or misleading and may unfairly prejudice me.


6) Reply from the Board dated November 21, 2008 only addresses the issue that the ‘reply’ may be challenged by the Respondents, but does not indicate the challenges re Respondent’s Reply.

Information Bulletin No. 1 Review and Reconsideration page 2

The Board points out that these principles are to be considered as general statements of Board practice and procedure and are not to be considered as inflexible such as to prevent the Board from acting in accordance with the circumstances of the particular case before it and in the exercise of the discretion which it possesses pursuant to its broad powers of review under the Act.

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7) The Reply to the Reply was filed on November 24, 2008 together with a covering letter with an offer of mediation that was never acknowledged, and wherein it is stated,

"The information is provided in good faith and with respect to the Government of Manitoba, as it is my genuine desire to resolve the conflict peacefully. Mediation cannot begin until a meaningful exchange of perceptions is conducted. I believe the Respondents are in agreement with me that there can only be a win/win resolution and that can only be done in a climate of mutual support and respect.”
As provided on the Labour Board’s website:

You can initiate mediation discussions yourself by contacting the Labour Board Officer. However, you should only take this step if you are serious about settling the dispute or, at the very least, wanting to narrow the issues in dispute.
December 3, 2008 letter from Applicant to Registrar

“Would it be possible to receive an update on this matter, or indication as to what next steps, if any, are planned? Thank you in advance for your consideration and I await your reply.”
Numerous attempts were made by telephone and in writing to receive confirmation as to the Board’s position regarding the status of the ‘reply’. It would not be until March 5, 2009 that written response would be given.

Request to submit new evidence that would support the fact that the COO had lied under oath was returned by the Registrar on December 11, 2008 as told the matter was currently before the Board.

January 9, 2009 the Board advised the Applicant that a copy of all the pleadings in this matter would be forwarded to MGEU’s legal counsel, as an Interested Party. It is believed that its interest was not in this matter as much as information that would be used in its deliberations with Labour Relations that were parallel meetings that were underway December 2008 as told to the Applicant by Keely Richmond, MGEU on December 11, 208 MGEU that (the Union’s ) Lead Negotiator was with Labour Relations discussing the matter of inclusion/exclusion of OSD employees. The investigation was as a result of the Applicant’s inquiry as to the exclusion, and as a result communications continued on with Ms Richmond as she kept the Applicant informed of the progress.

8) On January 30, 2009, the Respondents, through counsel contested the Applicant’s “reply” is not permitted under the Board’s Rules of Procedures 50 days after the document had been filed. Even more surprising, given the fact that my documentation submitted December 6th had been returned as indicated in para. 7 above.

February 9, 2009 letter to Registrar

… As there were no cover letters in your recent mailings to me, I am unclear as to what information, if any, is being weighed and considered by the Board. As you are aware, I am representing myself in this matter…The fact that I do not have paid legal counsel should not preclude me from being apprised of the status of the situation, and as a result I would respectfully request that the Board extend the same courtesies to me, as my own counsel, as that afforded to the Respondents’ counsel, Labour Relations, and to the Respondents themselves.
As provided on the Labour Board’s website:

Neither it nor its staff can provide legal advice. However, the Labour Board’s staff can answer procedural questions about the process and will be happy to answer your questions in that regard.
Reply from Registrar dated February 11 indicated all parties have been copied with all documentation.

The protracted amount of time from when the complaint was first received September 30, 2008 to the dismissal on June 17, 2009 is well in excess of the median time for a complaint especially since there were no attempts at mediation nor was there a hearing. It is therefore believed that in addition to the parallel meetings as stated in para. 7 it is likely that the Board was also meeting with the Respondents, and Labour Relations and respective counsel without any notice to the Applicant as to evidence being weighed by the Board (nor provided in written decisions as requested). The Applicant has been informed by counsel (identified as one of legal counsel for MGEU) wherein he confirmed that OSD employees will be included in the collective bargaining unit. The perception of the dismissal is then of the end justifies the means.

9) The Board’s past practice regarding acceptance of a rebuttal has generally been in favour of the Applicant (Case Nos. 77/08/LRA, 548/07/LRA and 265/08/LRA). In advising by copy to counsel of the ‘loop hole’ of the ‘no provision being made for a rebuttal’ is a bias against the Applicant. The Board remained evasive when in fact the Respondents did object, but this time when sending the counsel’s letter of objection there was no cover from the Board as to its significance to the Applicant in terms of the Rules and Procedures. Given the difficulties in respect to communications with the Board, the Applicant is even more adversely affected by the stress from the inadequate or no response to her inquiries. Even in the dismissal it is only noted the Respondents’ position and not the Board.

a) Given the complexities of this matter, a hearing with both sides present was needed to show a fair and impartial investigation had been conducted. As Beauchamp is a named Respondent in this and other complaints, under The Evidence Act she was hostile and opportunity to cross-examine was required. The Board should be mindful that termination of an employee within the hour of the next business day after attending the RWP investigative meeting is not a coincidence. The decision to remove or not continue to employ was because a threat (or perceived in the mind of the Respondent) that the Applicant was going to, or may have already been in the process of, filing a complaint under this Act or any other act of the legislature. In any event, the more looming threat was that any inquiries would lead to disclose anti-union animus activities of an employer. The action by the Applicant in taking a complaint ‘outside the department’ with the RWP complaint threatened the employment model that the commission had set up for itself once it was clear that the Applicant was ‘unstoppable’ in her pursuit for answers. And those questions were all intrinsically linked with the collective agreement; and the collective agreement is connected to the union. The confusion as to how the term ended and given the CSC should have known better, it all speaks to the ‘unclean hands’ of the Respondents. The Applicant believes a prima facie case can be established on the balance of the probabilities.

b) The Respondents have no corroborated evidence of any kind as to inappropriate behaviour, rather the polar opposite, with taking on initiatives and projects far beyond the scope. In the COO’s notes attached to the Reply noting “The notes on the file stated that you exceeded all expectations for the in-house work. Marie's work was exceptional.” There is an abundance of documentation on file that further supports exemplary work. What other possible explanation could there be to not employ beyond the term of June 30, 2008 and further to advise to an employment agency that CSC would never re-employ? Further evidence that a prima facie case exists. And given now that the CSC has been ‘outed’ for unfair labour practices, if not found in this matter, the Applicant is most assured that the Union would have a claim for union interference from lost union dues.

c) As to remedial relief, the Applicant wishes to amend the original remedies to now include the following:

(1) Order the Respondent, Government of Manitoba to pay to the Applicant an amount in compensation for the diminution of income, including employment benefits and other loss suffered by the Applicant;

(2) Order the Respondents to cease and desist any activity or operation which constitutes the unfair labour practice, namely providing unfair and uncorroborated work references;

(3) Order that a senior manager be designated as a contact person with regard to any and all work references (as per 2 above)

(4) Given the Applicant has passed all probationary periods and surpassed expectations in various performance appraisals, order the Respondents to include the Applicant on an employee/re-employment list section 13(6) of the Civil Service Act;

(5) Order the Respondent to pay the Applicant the sum of two thousand dollars ($2,000.00) for the interference with the rights of the Applicant under The Act.

d) The original decision turned on a conclusion of law or general policy, which law or policy was not properly interpreted by the original panel; the decision is inadvertently contrary to earlier Board practice; and where the original decision sets a precedent that amounts to a significant policy adjudication.

i. The Board is asked to reconsider on the balance of probabilities, whether the reason not to continue to employ the Applicant is related to her actions in her persistence to make sense of what she perceived as not making any sense. There was constant referencing to the collective agreement (eventually revealed that the reference tended to favour the employer) OSD, a special operating agency (not a Crown corporation, but CSC was) historically since it branched away in 1993. The issue of exclusion seemingly had never been questioned. In a hyper state, believing that you are the ‘chosen one’ to make things right, the Applicant genuinely believed that the ‘mistakes’ brought forward would be welcomed and form part of her legacy at OSD. Glorified (Christian) beliefs and government politics mixed like oil and water. The Respondents did not want ‘things fixed’ nor did it want to attract any attention to its best-kept secret and this would then lead to whether the Respondents had carried out an unfair labour practice due to an animus towards an employee (the Applicant) meddling in their business, as a result. An improper motive is likely to exist. It does not have to be the dominant motive for the reverse onus provisions of the Act to be applied in a given case. See the principles referred to in the Board's decision in Juniper Centre Inc. -and- United Steelworkers of America - and - T. Sollis et al (1992), M.L.B.D. No. 2, particularly the principles summarized at pages 6, 7 and 8.

ii. For the past fifteen years, OSD positions, and more particularly the Applicant’s position in question did not support the criteria for exclusion in that the incumbent was not employed in a confidential capacity or in matters relating to labour relations. It would therefore not be unfair to the employees or the Employer to have included these positions in the support unit. As this relates directly to 396/08/LRA the Applicant requests under Section 4(1) of the Rules and Procedures that the two be included and reviewed and reconsidered as one application. Although the request had originally been made to amend to include the union, December 2008, the Applicant wishes to resubmit the request. Until the Board has had an opportunity to review this request, the Applicant wishes to request a stay with regard to the timeline for entering a request for review and reconsideration under 396/08/LRA. Given the parties have concluded that OSD did not fall under the criterion of exclusion. The Applicant wishes to point out that in 396/08/LRA paragraph 4 of the Reply the Respondents submits as evidence, Appendix “A: of what is purported to be, an excerpt of the Master Agreement. The (Interested Party) Union did likewise surmounting that the Applicant’s complaint was frivolous and vexatious. A mere excerpt is not evidence of certification from the Board. There was no mention of a certificate number being issued. Proper evidence would have been a copy of the ‘mutually agreed’ agreement between the parties, identifying what classifications were asked to be excluded, and why exclusion was deemed necessary. Resolution of the question in 396/08/LRA was for a determination as to compliance under 8(11) of the Manitoba Labour Board Rules of Procedure when she questioned “The Respondents knew or should have known that a Clerk (3) packing training materials, did not fall under the provisions of exclusion with regard to the employees who could not belong to the union.

iii. (Case No. 681/04/LRA, Order No. 1404, page 5

In assessing the three (3) positions, the Board must be satisfied that the incumbents ought to be excluded on the “confidentiality criterion” based on their regular and material involvement in matters relating to labour relations and that such regular and material involvement must be the core of an individual’s job functions and not merely be reflective of an incidental or isolated involvement in some aspects of matters relating to labour relations. Both parties acknowledged the principle that, where appropriate, an employer has a duty to arrange its affairs so as to exclude as few employees as possible under the confidentiality criterion..

iv. It is reasonable to surmise that CSC made a calculated decision to keep all employees associated with it under its direct control, away from the bargaining unit. The benefit being that it would free itself from the burden of complying with all or any provisions of the collective agreement as it saw fit. Exclusion also allowed free reign to intimidate, terminate, free of any encumbrances to set standards and would also help to establish that a prima facie case exists on the balance of probabilities, that the Applicant’s actions was drawing unwanted attention by questioning the actions and its authority it was relying on and would have been seen by her employer as displaying ‘non-loyalty’ to the department. The Board’s approach in U of M Faculty Association and University of Manitoba was succinctly summarized by Vice-Chairperson Robinson in Case Nos. 109/06/LRA and 111/06/LRA as follows:


Admittedly the Board of Governors has broad and exclusive jurisdiction to determine upon whom exclusion is conferred, however the power to confer or refuse the right to belong to a union cannot be wielded to remove individuals from the bargaining unit in an attempt to avoid the provisions of the collective agreement. The Respondents may not exercise its authority respecting exclusion in bad faith or for illegitimate purposes. The scheme to deny non-essential classifications in junior clerk positions and to remove these positions from the bargaining unit constitutes an unfair labour practice in contravention of section 5 and 6 of the Act.
The Board cautioned in obiter against employers attempting to remove classification in Rural Municipality of Strathclair, supra. at page 6 where the following is found:
The Board is of the opinion that this was a deliberate, albeit, ill advised attempt, to remove individual classifications from the scope of the Collective Agreement and we take this opportunity to indicate to the Employer that had an appropriate application been filed by the Bargaining Agent, the Board may well have found that the Employer contravened Section 6(1) of the Labour Relations Act which may have resulted in a remedial order, pursuant to Section 22(6) being issued by the Board.
10. The Applicant, not represented by legal counsel, has made her best attempts to provide the information in a clear concise manner and in accordance with the proper format, and hopes it will be accepted by the Board and proceedings not invalidated by any irregularity (Section 134 LRA).

DATED at Winnipeg, Manitoba this 11th day of September, 2009

___________________________________

Marie