After giving this a great deal of thought, I have decided to file charges against my union under the Labour Code, specifically article 47.2: "A certified association shall not act in bad faith or in an arbitrary or discrimanatory manner or show serious negligence in respect of employees comprised in a bargaining unit represented by it, whether or not they are members."
This recourse to members who feel that their union has not acted in their best interests has only just been put into effect as of January 1, 2004. Prior to this, only article 47.3 (essentially DFR in the event of dismissal) was available as a recourse to members. This case will, for all intents and purposes, be a guinea pig case for the Labour Board. I have already been in contact with a councilor at the Board and she has admitted that they have no idea how this will end because no-one has ever filed under article 47.2 yet. I will be one of the first.
Here is where I'm at. My dossier is prepared - all the documentation is compiled, including memos from my union, email exchanges, references to applicable laws and codes, etc. I have filled out the appropriate forms from the CRT (Labour Relations Commission). I have not yet filed the charges.
Why?
I'm terrified. I strongly believe that the members have been screwed by the union. I strongly believe that I can prove it, with the evidence I have collected. But, for one thing, I am acting alone. That is, many members are aware of the offensive actions of our union, but no-one else is prepared to put their name on a legal piece of paper to fight them on it. Secondly, my name will be indicated on the complaint (ie. it cannot be made anoymously, which I totally understand). A copy of the CRT complaint form and all the accompanying documentation must be submitted to my union when I officially file the charges.
I know this is a big step. I also know that I will be maligned and denigrated by a union president who is known to be vindictive, petty and "rules with an iron fist" (this last quote from a member of the Executive told to me in confidence).
Am I doing the right thing? Can I win this, on behalf of all of us, or am I setting myself up for a professional and public beating? Once these papers are filed, my life will change. My husband (not employed at the same place and not part of this union) supports me. But, I'm still terrified.
But if I don't do this, I'm as good as admitting that it's OK for my union to dick us around in blatant violation of our Bylaws and for whatever purposes suit their needs (whatever they are) and not necessarily for ours.
Any advice? Has anyone been down a similar road and can point out some of the potholes? This is really, really hard. 
quote:
After giving this a great deal of thought, I have decided to file charges against my union under the Labour Code, specifically article 47.2: "A certified association shall not act in bad faith or in an arbitrary or discrimanatory manner or show serious negligence in respect of employees comprised in a bargaining unit represented by it, whether or not they are members."
Sophie do you have an update on this, I may need your help later.
Just in case people aren't aware - each province in Canada has its own Labour Code, and while there are broad similarities there are also important differences. The section Sophie is mentioning sounds to me like it might be Quebec-specific, so it might not be as helpful for your situation in B.C., Siggy. I could be wrong, though.
If my read on the situation is right, though; it looks like Sophie is in quite an interesting situation. Since this is a new section of your Labour Code, this also sounds like it might be a potentially useful way to expand the scope of DFR law beyond the relatively limited and narrow protections that it has provided in other provinces. Do you have a lawyer to help you with this?
I wish you the best of luck with this, Sophie.
I am sorry I can't offer more advise about the legal or personal issues, having never been where you are myself. But I know we have a few posters on this board who have been, at least in other provinces, so I am hoping some of them will stop by and offer their thoughts.
Stay strong. 
quote:
The section Sophie is mentioning sounds to me like it might be Quebec-specific, so it might not be as helpful for your situation in B.C., Siggy. I could be wrong, though.
Yeah I know R_D, I just wanted to bring Sophies topic to the surface and didn't want to use the cold and thoughtless *bump* feature. 'Sides I live in campbell's b.c and am ufcw, I doubt anyone can help me. 
This is very interesting and without question a terrifying road for one member to go down alone. I would hope, if you do go ahead Sophie, that more members will have a change of heart and lend support. Although legal things can have a tendancy to make even friends run off.
I do know that the legal process does not move at the speed of light, what you are expecting will not hit like a ton of bricks once you file.
I can only tell you to follow your heart and whatever you decide is what is to be, everything for a reason Sophie, no one person can change it all. IS
Having been there, I suggest you get a lawyer.
The Board has their own agenda and it is not what you think it is.
quote:
Having been there, I suggest you get a lawyer.
I can't afford a lawyer. I believe that, since part of my salary is going towards the union's legal council, that I SHOULD be able to have access to them. But, obviously, that's not going to happen. I will protest the union's use of our legal council on the grounds of conflict of interest - as a member who is paying part of their salary, they cannot act against me. *sigh* I was so hoping to file my papers and let the Labour Board sort it out.
quote:
The Board has their own agenda and it is not what you think it is.
What "Board" are you talking about? The Labour Board (Québec, btw)? The Executive? Members of this board/forum?
Realistically, getting a lawyer is not something I can afford. But it's tragically unfair to think that only the rich can get justice.
Yet another reason I'm hesitating to take the final step. But can I sleep at night if I don't?
The Labour Board is not there for you and I. They exist to keep us in line.
Labour Boards biggest and best customers are Unions and Businesses.
posted by Sophie
quote:
After giving this a great deal of thought, I have decided to file charges against my union under the Labour Code, specifically article 47.2: "A certified association shall not act in bad faith or in an arbitrary or discrimanatory manner or show serious negligence in respect of employees comprised in a bargaining unit represented by it, whether or not they are members."
Here is where I'm at. My dossier is prepared - all the documentation is compiled, including memos from my union, email exchanges, references to applicable laws and codes, etc. I have filled out the appropriate forms from the CRT (Labour Relations Commission). I have not yet filed the charges.
Am I doing the right thing? Can I win this, on behalf of all of us, or am I setting myself up for a professional and public beating? Once these papers are filed, my life will change. My husband (not employed at the same place and not part of this union) supports me. But, I'm still terrified.
Any advice? Has anyone been down a similar road and can point out some of the potholes? This is really, really hard.
Sophie:
What do you want the CRT (Labour Relations Commission) to do?
Do you want the CRT to decertify the syndicate patronale (literally employers' union)?
I read in another MfD OpenForum thread that the CSN (a Quebec labour central) and the CAW (union) did not want to help you.
The Confederation of Canadian Unions may help you. The CCU is building a democratic labour movement, where rank and file members really control their unions. Founded in 1969, the CCU represents workers from Nova Scotia, Quebec, Ontario and British Columbia.
http://www.sources.com/listings/subscribers/L456.htm
Sophie,
at this stage of the game, IMHO you don't need a lawyer to draw up your application.
make sure to keep it short and to the point. (you don't want to get bogged down defending insignificant details later)
take a look at this link, , I think it would be worth your while to purchase a copy of this book from Lancaster House, Winning cases @ Grievance Arbitration.
i have some experience @ the board (OLRB) and would be willing to help any way I can, drop me an email.
hang in there, you are not alone. I promise 
ps. what is the difference between standard DFR language and the new section you have made your application under, in your opinion?
My inclination would be to ask the councilor at the Labour Relations Commission for some guidance as to how much information should be provides about each charge. Here in Ont., DFR complaints are tossed out without hearings in cases where the complainant doesn't provide a lot of information in support of their allegations. Find out from the LRC whether that's the case in Quebec and whether the tribunal or person who will be deciding the complaint has the power to dismiss it on the basis that your written submissions do not make out a "prima facie" case of a breach of the Labour Code.
If the answer to this question is "yes", then provide more rather than less information (who, what, when, where). Be sure to include, with the information that you provide about each one of your charges or allegations as statement that goes something like this: "The union's conduct as described is arbitrary (or discriminatory) and contrary to the Code."
You can search for case law on DFR complaints across Canada and in Quebec specifically, this site might be of use to you. http://www.canlii.org
Hello Sophie, I am under the assumption that Quebec has a "Labour Court" is that correct?
Your case will be decided on its merits, without solid guidance it will be difficult road even with a good case. Even though you feel you have a good case, these people look for small holes and regularily win on those small holes.
Here's something everyone may find valuable.
My own DFR case is now before the BC Labour Relations Board for the 4th time and I am continuing my research in preparation for taking it back to the provincial Supreme Court for a 2nd time, which will be the next step when the Board throws it out again.
I've been at this now since July, 2000 and it has been one long learning process. Just today I made another potentially very valuable discovery. I was reading through some old decisions (in the UBC law library) and found two cases from 1995 and 1997 that had been adjudicated by the current Chair of the Board.
As an experienced DFR applicant, I have always accepted the Board's position that we are severely constrained, particularly when making our initial applications. Given the manner in which the BC board subjects all DFR applications to an initial "prima facie" assessment and then frequently dismisses them, it is natural to assume that one's hands are effectively tied. At that point the union enjoys complete immunity as it will not be "invited" to even respond to the complaint until the Board makes a finding that the complaint has "made out a prima facie case" (this is formally established in BC's Labour Code, Section 13). I'm not sure to what extent other boards use the same tactic.
My own complaint has now been thrown out three times on that basis (even after a Supreme Court order had finally compelled the Board to "invite" and receive the union's response). I do not recall in the notorious "Judd" decision written by the Board's Chair last February (ostensibly as guidance for DFR applicants), any hint of what I found today in two decisions he authored in 1995 and 1997:
B7/97, paragraph 6
" .... The Board must be sensitive that applicants may not have within their possession or ability to acquire all of the information necessary at the time of the filing of their application. In such circumstances, the ordering of pre-hearing particulars and production of documents can be of assistance in enabling the parties and the Board to determine whether there is a prima facie case which needs to be considered."
This decision also cites an earlier one which contains the following:
B358/95, paragraphs 25 & 26
".... As a result, the Board must be and is willing to accept proof on the basis of inference [from / or] circumstantial evidence."
... paragraph 27
"However, in all of these circumstances, requesting and obtaining pre-hearing particulars and production of documents may be helpful. It may compel the production of information and hard evidence which otherwise could not be obtained. That may be of assistance to both that party and the Board. The information and documents obtained may firstly assist the applicant in establishing the prima facie merits of its case. It may also be of assistance to the Board, however, in evaluating whether the party truly has a case to pursue."
Had I known about this when I made any of my earlier submissions to the Board, I would certainly have taken advantage of it. I came across this after just ten minutes of browsing through some old decisions. The library I was in has every one of the decisions (generally over 450 per year) issued since 1992. My research continues.
This is precisely the sort of thing the labour boards do not want us to understand. It appears that we have a legal right to request through the Board the production of relevant documents even before we have established a "prima facie" case. And we have some entitlement to make reasonable inferences and rely on circumstantial evidence. How about that!
I would suggest discussing this with the appropriate Board staff and perhaps citing the cases I have found. They should be relevant in other jurisdictions.
Valuable information Gbuddy.
With all the knowledge here we should draft a generic DFR application that could be downloaded and printed.
Complete with MFD information pamplets?
Suggested arguments, precedent cases, etc
The other valuable dfr thread.
Update and Explanations:
First of all, thank you for your support! I know this will be a rough road, but you guys are helping to smooth out a few pot-holes. 'Preciate it! 
For clarification, in the Quebec Labour Code there are, as of January 1, 2004, 2 articles under which an employee can file a claim against his/her union:
47.3 is the counterpart to other provinces' DFR clause. It states,
"If an employee believes, after being dismissed or the subject of a disciplinary sanction, that, in that respect, the certified association has contravened section 47.2, the employee must, if he wishes to rely on that section, file, within six months, a complaint with and apply in writing to the Commission (CRT = Quebec Labour Board) for an order directing that the employee's claim be referred to arbitration"
So, if I'm fired or have disciplinary action taken against me by my employer and I believe my union screwed up as per article 47.3, this was the one and only recourse I had to try to get some justice from my union regarding what I believe was shoddy work on their part.
As I understand it, this is the classic DFR situation.
47.2 states
"A certified association shall not act in bad faith or in an arbitrary or discriminatory manner or show serious negligence in respect of employees comprised in a bargaining unit represented by it, whether or not they are members."
It allows me to confront my union, not AFTER the disciplinary action takes place, but before or during actions which I feel are not in the members' best interest. Basically, if I feel that they are screwing around, I can take a proactive position and try to stop them before more damage is done. It explicitly calls the union to task, without any involvement from the employer.
An employee's access to the application of 47.2 only came into effect as of January 1, 2004. Prior the Jan.1, as explained to me by the CRT, the ONLY legal recourse a member who had a beef with his union had, was to take it to the Quebec Supreme Court, at his/her own expense.
And this is where it's unusual, and not at all like the classic DFR scenario. I am going head-to-head with my union. The employer is not in the picture at all. Given this case, I'm not at all sure how the DFR articles I've read here are useful to me.
Based purely on the law (Quebec Civil Code, Labour Code, Professional Syndicates Act, our own union By-laws), I believe I can prove that my union Executive has been acting in bad faith and shown serious negligence in respect of it members. Ironically, the vast majority of my evidence is conflicting documentation sent to the membership at large or various individuals by the union itself!
I have read the first 2 parts of the DFR series on MFD, and am looking forward to reading the recently-posted parts III and IV. But, all of the DFR literature I've read involves a disciplinary action against an employee which the employee feels his union did not adequately or correctly grieve. (Correct me if I'm missing the point here).
In my case, my union has (in countless well-documented instances) blatantly violated our own By-laws, our Constitution, and provincial laws. They get away with it because nobody has ever challenged them on it.
CUPE_Reformer asked some good questions upthread:
quote:
What do you want the CRT (Labour Relations Commission) to do?
Do you want the CRT to decertify the syndicate patronale (literally employers' union)?
When I initially contacted the CRT way back in October of last year, they asked me the very same questions. I admit, I was taken aback and I told them so: "You're the experts. That's why I'm coming to you for guidance. What are your recommendations?"
This is when I was told about the new law coming into effect in January. And that they had no recommendations because no-one had ever filed a complaint under article 47.2 before. Yup, it's real uncharted territory (hopefully not up shit's creek without a paddle! ). My suggestion when I talked to a councilor last fall was that, should my union be found guilty of charges under 47.2, that I would like to see the CRT make recommendations and set out guidelines to correct the situation, and to put our union into some kind of trusteeship for X amount of time before considering decertification. Under the Labour Code, trusteeship is, apparently, not an option.
So, what do I want to get out of this? Ultimately, a real frickin' union! Is that too much to ask?
In the meantime, I'm going to continue reading, reading, reading (articles, case histories, the treasure-trove of material on MFD, etc.). I will also take rv's advice and set up an appointment with a councilor at the CRT to guide me through the process.
Please continue to throw crumbs my way! And I'll keep y'all in the loop from this end.
I have a couple of comments / questions about your case and the Quebec Labour Code provisions cited.
Section 47.3 specifically refers to section 47.2, the wording of which is essentially the standard DFR language. All DFR provisions use the terms "arbitrary", "discriminatory" and "bad faith". This one also refers to "serious negligence" which is notably lacking in other jurisdictions.
Given the reference to 47.2 in 47.3, how can 47.2 be the newer provision? Without it 47.3 would be meaningless. I'm wondering why this provision would have been added as its purpose seems to me to be implicit in the standard DFR language.
Another point to bear in mind I believe is that the term "representation" specifically refers to the union's obligation to represent its member(s) in dealing with the employer – as defined by the collective agreement currently in force. I think this means that the employer always has an implied interest in a DFR. If your issue relates to internal union matters that have nothing to do with the employer I would say that may not be covered under a DFR provision. That certainly seems to be the case in BC.
In the BC Labour Code, DFR is dealt with in sections 12 and 13. There is another section also in Part 2 – Rights, Duties and Unfair Labour Practices, section 10, "Internal union affairs" that may be what would cover your issue if you were in BC. It is not unusual for applicants in this province to file a single complaint citing both sections 10 and 12. Remedies regarding all matters defined as unfair labour practices are then dealt with in section 14, "Inquiry into unfair labour practices.
You can read through the language in the BC Code at http://www.lrb.bc.ca/code/part2.htm. It may be important to get clarification on these points. I have seen both a union and the Board argue that an applicant has proceeded under a section not appropriate to their case after they've already invested a good deal of effort on it (which is perhaps one reason some applicants will cite more than one section).
Other jusisdictions have "gross negligence" it just falls under arbitrary conduct.
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