Duty of Fair Representation
Part 4: LRB Guys are Jerks
If your LRB decides to process your complaint, it will assign your file to an LRB employee whose job it is to try to settle the complaint. In some provinces these employees are called "Officers" in others they may be called "Mediators" or "Specialists" or similar titles. (They are not the same as LRB Chairs or Vice Chairs and should not be confused with them.) For the purposes of our toolkit piece, we're going to call these Officers/Mediators/Specialists "LRB guys".
The LRB guys have a very important role in the labour relations system: They keep complaints under the Labour Relations Act from getting to formal hearings by encouraging complainants to either drop them or, if that can't be achieved, to settle them. In many provinces, these LRB guys are quite successful. (The Ontario Labour Relations Board boasts that its Officers settle about 85% of all complaints received by the OLRB year over year.)
This stunning success rate is not because the LRB guys are skilled mediators who have a knack for coming up with solutions that address the interests of all parties concerned (that would include workers as well as unions and employers). It's because they operate in a way that makes it very likely that you'll give up on your complaint or settle for something far short of what you're looking for. Here's the lowdown:
LRB guys have no enforcement powers. This means that they have no authority to make anyone do anything. They don't decide complaints and don't get involved in the hearing (if there ever is one). Their role is strictly to try to find a settlement that all parties can live with. They convene meetings with the parties to a complaint and try to find a resolution. If they can, that's great. If they can't, they simply hand the file back to some LRB administrator who schedules it for hearing or whatever the next step after the mediation meeting might be in a particular province.
Although these guys don't have any real power and present themselves as problem solvers and dispute resolvers, the reality is that they can be more lethal to workers than the LRB Vice Chairs who conduct the formal hearings and issue decisions. That's because they can operate in complete secrecy, have no real accountability to anyone and can employ whatever methods they want to try to get workers to drop their complaints. They operate in an environment where workers are especially vulnerable to being cajoled or coerced (depending on the LRB guy's problem-solving style) into deals they never dreamed they'd accept.
The reality is that a lot of LRB guys are jerks. There, we've gone and said it! Understanding them and how they operate is critically important to you if you want a half a chance of getting your complaint to a hearing or getting a resolution that is fair - from your perspective.
There may be some exceptions, but for the most part LRB guys don't care about your interests. The labour relations system recognizes two workplace parties - the employer and the union. For this reason, LRB guys don't perceive workers as anything more than props that sometimes get out of hand and file complaints against their unions. It's important to understand this because a common tactic employed by these guys is to get DFR complainants to see them as fair and impartial. This is so that when they tell you that you haven't got a leg to stand on or imply that you're being an ungrateful little shmuck for expecting so much from your union, you're more likely to be receptive to them. Some will tell you that they too were once union members in an effort to build rapport with you and get you to warm up to them. In the alternative, they will try to impress you with their vast knowledge of LRB jurisprudence and their certainty that the LRB will dismiss your complaint if you pursue it any further. Don't fall any of this crap. You don't have to.
A lot of LRB guys have big egos and economy size brains. They consider themselves very knowledgeable in labour law and highly skilled at mediation. They lve in the shadow of the LBR Vice Chairs who, with their law degrees and decision-making authority are the top of the pecking order. Many LRB guys are ex-union reps or labour relations management types. They're attracted to LRB jobs because it's a cushy gig with a lot of covert power. While every LRB has a formal hiring process, cronyism has been known to play a part in decisions about who gets in. Some LRB's have, at various times, been dumping grounds for dead wood from union and management offices.
How much formal training in labour law or mediation LRB guys actually have varies from province to province and can vary widely within an LRB itself. some LRB's provide little formal training in either area, it being assumed that LRB guys have already acquired this knowledge and skill in their past lives as union or management reps. Their understanding of labour law varies based on their interest in the subject. Some keep themselves up to date while others are functioning on dated, incomplete or confused information. Chances are, your LRB guy will be someone who thinks very highly of him or herself and has little time for working people. They won't admit that, but it's real and it influences their behavior.
LRB guys can get away with pretty much anything in their efforts to try to get a deal so they are more likely to try pretty much anything. Unlike a Vice Chair who has to write a decision that will be published and available to whoever wants to read it, the LRB guys don't write anything (except settlements) and don't have to justify their actions to anyone. LRB mediation meetings are held "in confidence" or "off the record", meaning that anything goes and nobody keeps a record. This confidentiality is supposed to encourage open and candid discussion, which is helpful in arriving at settlements. Open and candid discussion is a good thing, however, the off-the-record nature of the meetings can - and sometimes is - used as a cover for the for bullying and misinforming working people in order to persuade them to drop or settle their complaints.
Some of the following bad behaviors can be expected during LRB mediation sessions depending on where you are located and who you pull as an LRB guy:
- Overstating the strength of the union's case or the weakness of the complainant's case.
- Speculating on the outcome - what the LRB will do with the complaint if it goes to a hearing - and suggesting that the complainant is certain or almost certain to lose.
- Not allowing complainants to make phone calls or consult with people outside the meeting room.
- Pressuring the complainant to make quick decisions. Insisting that you must act now, sign on the dotted line, or risk "losing the deal".
- Ignoring the complainant, treating the complainant disrespectfully, keeping the complainant sitting around for long periods of time without any sense of what's going on.
- Suggesting that there may be dire consequences to the complainant if the complaint goes to a hearing (legal action by the employer or union, bad publicity, damage to your reputation, diminished prospects of finding another job and things of that nature).
So what do you do when it's time for the mediation meeting? Is it worth even going?
Of course it's worth going. Depending on where you live, you might not have the option of giving the whole thing a miss anyway. While the downside is that you probably won't get the settlement that you want, the upside is that you don't have to drop your complaint or settle for anything you don't want either. In addition, while you can't use anything that is said during the course of the meeting against your union or your employer at the hearing, you can certainly use the mediation meeting to get a good sense of where they'll be coming from and what they'll be arguing when you do get to the hearing. This can be quite useful in helping you to prepare for your day in court.
Some pointers on getting the most out of your mediation session - and not getting bamboozled.
- Be confident in yourself. This is more important than most people think. LRB guys have certain stereotype images of DFR complainants and they go for the jugular whenever they see their favorite stereotypes: There's Type A: Meek, confused and vulnerable or Type B: Crazy, loose cannon. Confronted with something that doesnt fit into either of these two categories, they get uncomfortable. That's to your advantage. So, be confident, be on time, don't slouch (it makes you look like you're cowering), speak clearly, introduce yourself and anyone who is joining you for the day, look people in the eyes when speaking to them and above all: stay cool. If you're a shitdisturber, you've probably already got a lot of self confidence.
- Who you bring with you is up to you. Lawyers and paralegals will get in without any hassles. Depending on where you're located though, bringing a friend, family member or some other non-lawyerly person might get your LRB guy miffed. If your LRB guys objects to the presence of your friends, co-workers or family members, tell him or her that this person (or these people) are your advisors and so should be permitted to attend.
At the beginning of the mediation session, The LRO will often convene a meeting with all three sides in the same room. He or she will provide a brief explanation of the LRB guy's role, the purpose of the meeting, the ground rules and how s/he intends to proceed with the meeting. The quality of this explanation can vary widely. If your LRB guy has not explained clearly, his or her role (that they are a mediator or facilitator), that they are not involved in deciding the matter should it go forward to a hearing, that they do not provide any information to the Board about what took place at this meeting, ask about these things.
- I understand that your role is to facilitate a settlement. Is that right?
- Is it appropriate for you to make statements about the outcome of this complaint should it get to the Board? How far can and should you go in speculating on the outcome?
- What happens if we do not reach a settlement?
- Do you communicate your views about the merits of the complaint to anyone? If so, who and for what purpose?
Asking your LRB guy these questions in the presence of the union and employer representatives will send a strong signal to all of them that you're not interested in being jerked around.
Your LRB guy will ask you to give a brief explanation of your complaint (what it's all about, why you think the union has breached its duty of fair representation and what you want the LRB to do about it).
- Calmly and coolly walk through your explanation. "The union failed to do the following... this is conduct that is arbitrary, discriminatory and/or in bad faith. You are asking the Board for relief which is....". Do not read your complaint verbatim, just hit on the key points.
- Be brief and to the point. Avoid grandstanding or making wild accusations. Respond to any questions that LRB guy might have in a clear and concise way. If you don't understand what he or she is asking you, say so and ask for clarification.
The union representative will get to speak next. This may be a local official, a staff rep from your union's national or international office or a lawyer. S/he will say stuff to the effect that the union has met its duty to fair representation. The duty of fair representation does not require the union to do whatever a member wants. It only requires that the union give consideration to the member's issue and make a reasoned decision as to what to do. The union did this and has no obligation to do anything more. The union rep may recount some "facts" to support this statement or run through a chronology of events that shows that the union did something for you. The rep will say that this something is sufficient and that the law doesn't expect the union to do anything more. He or she will ask the Board to dismiss the complaint.
While the union rep or the lawyer is talking, keep calm. Don't interrupt or gesticulate. If you disagree with what the union is saying, make notes of what you disagree with and what you are going to say in reply but don't go overboard. This part of the meeting is to give the LRB guy a sense of where everybody stands. It's not a formal hearing. You don't have to come up with a clever rebuttal to everything that's being said. If you disagree with any of the facts or arguments that are being presented, state what you disagree with and why when it's your turn to respond to their statements. At the end of the day though, remember, nothing that gets said at this meeting will mean anything at the hearing, so don't go overboard or try to "out lawyer" the lawyers.
The employer representative will speak next. S/he will basically say the same things that the union rep said only more briefly. The employer is present as an "intervening party" - a party that is not directly involved in the complaint (the complaint is filed by a union member against the union) but who may be affected by a settlement or decision. The employer has a strong interest in seeing the complaint dismissed. If you win, they may end up having to defend themselves against a grievance they never thought they'd have to deal with or go to arbitration over an issue they thought was dead. Despite this, however, they don't want to appear to be too cozy with the union and for this reason will tend to be low key, stating their position and asking that the complaint be dismissed.
Again, if you disagree with anything that you're hearing, make a note of what you disagree with and address this when it's your turn to respond.
Depending on the tack your union and employer want to take, you might find that they make mildly insulting remarks about you and/or your complaint or, in the alternative, try to kill you with kindness. This is part of a strategy designed to, (a) get you to blow your stack so the LRB guy can see what a loose cannon you are, or (b) impress upon the LRB guy what fair-minded magnanimous people they are - and you're not. Don't let yourself be killed with kindness and don't take any bait either. Keep a cool head. What the LRB guy thinks of you really doesn't matter - s/he doesn't like you anyway because you're the complainant - but blowing up just clouds your ability to think clearly. So don't do it.
Direct your comments and questions to the LRB guy and not directly to the employer or union reps. If it's raining insulting remarks, you may want to say to the LRB guy, "I'm having trouble understanding why the union/employer representative finds it necessary to make these belittling remarks. Could you help me undertand why this is so?"
Once the get-acquainted session is over, the LRB guy will usually split the parties up into separate rooms and talk to them individually. During this process his or her objective is to see what kind of deal might be do-able and also to pick up additional information about the complaint that might be useful in persuading you to drop or settle it. These discussions are private so s/he doesn't have to tell anyone what is being said. The discussions in each room can be quite lengthy so be ready to sit around doing nothing in your room for a while.
Who the LRB guy talks to first is entirely up to him or her. Usually it will be you since you are the complainant. S/he will then move on to speak with the union and the employer reps in their private rooms. S/he will come back to see you every now and again to chat with you about what kind of deal you might be able to get. The LRB guy's mission is to get you to back off, so s/he will try a variety of different tactics on you to see how you react. They may start with the likelihood that you're going to lose the case and, if that doesn't work, move on to guilt tripping or even bullying. S/he is trying to land on something that looks like it either interests you or rattles you and can be used to talk you into a deal. Once your LRB guy sees that you're on the run or that your interest has been piqued, she or he will start working you over for a particular deal - usually one that the union and/or employer have already indicated (in the private discussions) they're willing to go for. The deal - often presented as "the framework" of a deal, will be presented to you as something that is really good for you - maybe even far better than anything you'll get at a hearing.
Ask the LRB guy to explain to you clearly what the implications of the proposal are to you. What will you be getting? What will you be giving up? Make note of the answers.
At all times, keep your desired outcome uppermost in your mind. You don't have to settle for anything you don't want. If there's no deal that is acceptable to you, there's no deal. If you want a grievance filed, or taken to arbitration - there isn't a lot of happy middle ground on that. If there's some other kind of resolution that you are prepared to accept, keep that in mind as well and float it by the LRB guy when it becomes apparent that you're not going to get Plan A. If you have as Plan B, don't put it out to the LRB guy all at once. Float it by him or her as "a concept" that you'd like to explore. This can be an advantage for you because LRB guys love to explore concepts. They think that they might be able to take the concept and work it into a deal. You can keep your LRB guy hopping all day long working with your concept. If you don't get the kind of deal you want, you don't have to sign anything or agree to anything.
If you do agree to settle your complaint, ensure that the terms of settlement that you sign reflect exactly what you understand the deal to be. Refuse to sign anything that you are not comfortable with or that you don't understand. Ask your LRB guy to explain carefully what the deal means, what you are giving up and what recourse you have if the union and/or the employer do not live up to their end of the bargain.
During the mediation meeting, watch for examples of the bad behaviors we talked about earlier and call your LRB guy on the carpet when you see any of these.
Here are some samples of what you might to hear and some good rebuttals that will drive your LRB guy nuts.
If your LRB guy says: Your chances of winning are very slim (some will go a bit further and imply that the Board is not going to rule in your favour).
You say: Hey, you said earlier that you couldn't really state definitively what the outcome of this complaint might be. Iisn't it your job to find a settlement that I am willing to agree to? It is. OK, good. Here's what I want, go get it for me (or something that I might like just as much).
If your LRB guy says: The proposal that the union and the employer are making are better than anything the Board is going to give you.
You say: How do you know what the Board is going to give me? If it's better than what the Board will give me, why are they willing to offer it? Explain to me how this proposal gets me a grievance or gets my grievance to arbitration? You're not trying to shit me are you?
If your LRB guys says: Your union is being quite reasonable with you. They don't have to do what you want. What part of that don't you understand?
You say: That part where the law says they can't be arbitrary. So where's that leave us?
If your LRB guy says: Don't you see that the union has many responsibilities and has to make careful decisions about what it does with its money?
You say: I can't help but get the sense that you're here advocating for the union and the employer. That's not happening is it? Or maybe: I don't see how it made a careful decision about my case at all. And that's my money you're talking about.
If your LRB guy says: Your union doesn't have to do anything for you except consider your issue. They've done that. You just don't have the right to anything more.
You say: Well, we'll let the Board decide that won't we? I thought we were here to get a deal. You're an expert dispute resolver, so show me what you can do. I've proposed a reasonable solution. Either get me a deal, or let's stop wasting each other's time.
If you are subject to bullying behavior or behavior that is disrespectful, don't be shy about calling the LRB guy on the carpet for it.
"I find your behavior offensive/aggressive/inappropriate/demeaning/disrespectful and insist that you stop. If you don't, I'm going to decline to participate in this session any further and will ask the LRB to assign another mediator to this case. Let's get on with the hearing."
Although nothing bad is likely to happen to them if you complain to their bosses (or even to the Minister's office), they hate it when people complain about them. They don't want the Minister of Labour and other very important person associating their name with "a problem".
If you have the strong sense that you are going nowhere and that you're just being badgered in an attempt to soften you up, tell your LRB guy that it appears that an impasse has been reached and you dont see the point in continuing with the meeting. Some LRB guys will insist that it's "their meeting" and they will decide when it's over. They have no authority to keep you there against your will and can't penalize you for leaving. Whatever happens remember, your sense of confidence and refusal to be bamboozled will make a lasting impression on your LRB guy and send a strong message to your union and your employer. No matter how disappointing or tedious the day turns out to be, take heart: LRB guys hate to work past 3:00 p.m. Above all, be cool - whatever cool means to you. Most LRB guys are jerks and hate it when working people are cool.