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  • authored by amp; MFD
  • published Sat, Aug 20, 2005

And Justice For Us

Six years ago Chris Budgell, former City of Vancouver employee and member of CUPE Local 15, began an odyssey through the labour relations system - that mysterious quasi-legal (and possibly illlegal) labyrinthe where the rights of unions and employers matter and workers' rights exist only as a concept.

One of many thousands of workers whose duty of fair representation complaints are dismissed each year by provincial Labour Relations Boards, Budgell is one of a very small number of workers to challenge a provincial LRB in court and win. Dismissed from his information technology job in 1999 for reasons that never added up to a hill of real beans, Budgell's union dropped the ball on his dismissal grievance in ways that really broke new ground.

Pressured by a union staff lawyer to accept an offer to resign in exchange for $7500, Budgell refused. One day before his arbitration hearing, his union tossed his case to an outside lawyer. With little time to prepare for the hearing and an arbitrator who was unabashedly hostile towards him, Budgell lost the arbitration. He would learn later on that the lawyer CUPE retained for him was terminally ill at the time of the hearing.

With a kean sense that injustice had been done, Budgell filed two DFR complaints with the BC LRB. Both were dismissed without a hearing. He headed off to court.

Early in 2003, the BC Supreme Court overturned the BC Labour Relations Board's decision to dismiss his DFR complaints. The last minute appointment of the outside lawyer and insufficient preparation time were factors that weighed in his favour. But the victory was snatched away when the CUPE and its management partners were able to get the decision quashed by the Court of Appeal.

Disappointed by the outcome, Budgell isn't finished with "the system". Along the way he's gained a lot of insight into the way that it operates and its twisted logic. He's discovered its fundamental flaw and is encouraging people to assert their rights.

The Labour Relations System's Fundamental Flaw:

I have had what is evidently a unique experience with the Canadian labour relations regime and with the justice system and I believe it reveals a major conundrum for both of them.

My lengthy dealings (now in their sixth year) with the regime have been entirely adversarial; consisting of a series of actions at the BC Labour Relations Board (which began as a Duty of Fair Representation complaint against my union), in the courts and so far have resulted in five formal Board decisions and three court judgements all posted online (plus an arbitration award that is not accessible online - as far as I know).

The union and employer that I have been facing throughout this adventure are CUPE and the City of Vancouver, who of course have unlimited budgets for legal representation. CUPE has been represented by a firm that very recently changed its name from Granville and Pender Labour Law Office to Hastings Labour Law Office. The information about the lawyers at that firm (the web site is www.labourlawoffice.com) reveals that it has very strong ties to both the Labour Board and CUPE. In addition to those connections, one of the eleven Vice Chairs currently at the Board is a former lawyer with this firm.

The Labour Board sent its own legal counsel to court, using lawyers that it has on staff. The City of Vancouver retained a firm called Farris Vaughan Wills and Murphy (www.farris.com). I recently received documentation from that firm showing that since January of this year it has billed the City over $33,000 for its dealings with me. I have no idea what it billed prior to this year or what CUPE has been billed, but by my standards I would expect the total to be a princely sum. Those expenditures of course have been borne by the taxpayers and CUPE's members, though CUPE was able to get the BC Supreme Court to force me to pay a $2000 "costs security" before the last court hearing could proceed, and both the City and CUPE are seeking further costs from me.

As my pursuit of justice was in response to the destruction of my career I think it unlikely I will ever pay those costs.

There is of course a great deal more to this story and it is not over. I have been in touch with more than a few other individuals who have had similar experiences but only one or two so far that are quite as bizarre as my own. I still wonder if the behaviour of the other parties in this protracted affair is what union members and activists would have anticipated.

The conundrum as I see it is that the labour relations regime has demonstrated and continues to demonstrate that the Duty of Fair Representation is a sham. The evidence is so substantial and copious that it is undeniable. In order to maintain this fraud the regime has placed strains on the legal system that it simply will not sustain. Our legal system was not built to tolerate such injustice indefinitely, and I believe the determination of the regime to continue operating in this fashion will soon have severe consequences.

My tentative theory on the underlying problem with the regime is that there is that it operates on the perverse assumption that in order for collective rights to be asserted, individual rights must be eliminated. Thus the kind of experience that I had with the labour "movement" becomes typical, if not inevitable.

Few people actually "join" unions. They are conscripted into them without any say whatsoever. Few understand what unions are about or that there are differing conceptions of unionism. Once in the union, no effort is made to engage members in decisions that effect their working lives. At best, members are spectators in events staged by union leaders whose decisions they are expected to support without question. Beyond that, the member is property, to be managed in a cost-effective way.

For managing the member, the union gets to extract dues from the employer (in the name of the member) and to use those dues in any fashion it wishes. There is copious evidence that that money is rarely used to benefit the membership. In fact my experience shows that unions are free to use it against their own members.

One place much of it routinely goes is to political contributions that buy favours, such as appointments to labour relations boards which were supposed to be faster, more efficient, more knowledgable judicial venues for "rights" issues arising in the unionized workplace.

To ensure that unions (and employers) enjoy absolute immunity recourse, by union members, to the courts was long ago shut off by the inclusion of a so-called Duty of Fair Representation provision into provincial labour relations legislation. The administration of this Duty was placed in the hands of the labour relations boards whose adjudicators wouldn't know how to adjudicate a real case even if they wanted to. The boards and their tribunals are glorified horse-trading palaces that extend the collective bargaining process into a forum in which working people are treated as chattels (which have no rights) rather than as people (who have certain fundamental rights).

Although in theory decisions of all "administrative tribunals" can be challenged in the courts via judicial review, the courts themselves have in practice cut off that avenue by inventing what they call the "patently unreasonable" standard (in order for a decision of the Board to be overturned, it must be established that it is patently unreasonable). The courts routinely explain that patently unreasonable means "clearly irrational". Since almost every employer or union decision can be rationalized in one way or another, the standard can never be met. Why not use "manifestly absurd"? That describes the whole house of cards I think.

One of the reasons we've ended up with this outrage is that all the appointments to our judicial/quasi judicial community are filled through a secretive appointment process that encourages and relies upon cronyism. We then give the appointees lucrative compensation, virtually complete immunity and, in many cases, life-time tenure. Not exactly a formula for competent, unbiased decision-making.

Can this mess be challenged? I've been working on it for several years and I still believe the answer is yes. I've had to contend with about 16 adjudicators so far and it turns out a key to the injustice that they served up was substituting the definition of the legal Latin term "res ipsa loquitur" for the legitimate definition of "prima facie". They presumed (correctly at the time) that I wouldn't understand what they were doing. However, when the political/legal establishment is reduced to using cheap tricks like that, I think they are in serious trouble.

The conundrum that I spoke about at the beginning of this thread is that the labour relations regime believes individual rights for employees are incompatible with collective rights. I would argue that in the real world you cannot have one without the other, because the result is either anarchy or tyranny.

It may be understandable that in its formative years the labour movement felt compelled to quash anything that looked like dissent. The nascent movement had to present a solid common front to contend with employers who held all the cards. However, it appears that in later years, successive generations of labour leaders lost their commitment to the cause and the result today seems to be trade unions that are run as private businesses with no interest in serving or representing their members.

The regime that has evolved to sustain this deception is a hierarchy of corruption, at the top of which sit the various labour boards. These agencies exist to "maintain the labour peace". Their structure and mandate is incompatible with any legitimate concept of justice. They do not adjudicate anything. They are just glorified horse-trading palaces where the labour relations community meets to divide up the spoils.

Union members, the vast majority of whom did not make a conscious choice to become members, have no legal rights whatsoever. While employers have absolute control over their lives, employees are entirely dependent on the unions to represent their interests, both collectively and individually. It is a matter of public record that collective interests are not being served, and that the "movement" is in decline in every respect.

I would therefore argue that it is essential that individuals now do everything they possibly can to assert themselves. As the law has limited us as individuals to challenging the regime before the labour boards, I believe that is where the toughest and most consequential battles are going to be fought. Thus far, the legal profession has shown no interest in assisting us. In fact only "labour" lawyers deal with matters that go before the labour boards, and they are all work for unions and employers.

However, self-represented litigants are making progress. On the day I stood before three justices of the BC Court of Appeal, facing lawyers for three powerful bureaucracies, another Court of Appeal justice was making a presentation to the annual conference of the BC Coalition of Administrative Tribunals (liberally attended by labour board Vice Chairs and staff) entitled "Surviving the Unrepresented Litigant". I subsequently wrote to that justice and requested a copy of his paper. He wrote back and refused to provide one, saying such materials were not intended for public consumption.

I believe that is a strong indication of the profound concern the judicial and quasi-judicial communities have that ordinary citizens are making progress in seeking justice. The legal community is busy trying to shore up the walls around their domain while the foundations are collapsing. Time and determination are on our side.

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