Members for Democracy Archive

Fear and Loathing in the Backroom? How Sweet it Is!
It's possible that UFCW Local 1000a President Kevin Corporon saw it coming all along: That the secret deal he cut with officials of the highly profitable Loblaw Companies earlier this year would be challenged by some knowledgeable and tenacious member, that he would be dragged before the Labour Relations Board, compelled to explain his actions, forced to cough up documents he'd rather keep to himself and risk seeing his backroom creation unravel like an old blanket that's been slept in for too long. Or it's possible that the events of the past couple of months are a biz unionist's worst nightmare. We're betting it's the latter.

On October 23rd, the Ontario Labour Relations Board will commence a consultation hearing into a duty to fair representation complaint filed by Ben Blasdell, a worker at a Loblaws supermarket in Collingwood Ontario, against his union, UFCW Local 1000a. Blasdell filed the complaint after he and thousands of other members learned that their Local President negotiated concessions to their collective agreement, which expires in 2006, without consulting them or allowing them to ratify the deal.

Blasdell's DFR has the potential to shake the foundations of backroom dealing between businesses and their "union partners". It's an unusual case both in terms of what it's about and how far Blasdell has already taken it. Most DFR cases are about unions refusing to file grievances or take grievances to arbitration. Few DFR complainants actually get to a hearing. Many complaints are dismissed without a hearing and many more are withdrawn or settled at a preliminary mediation stage. To win, complainants must prove that their union acted in a manner that is arbitrary, discriminatory or in bad faith and that's tough to prove in cases that are about grievances. Unions have become very proficient at beating the rap when it comes to these kinds of DFR complaints.

Blasdell's complaint is not about grievances. It's about the most fundamental breach of a union's responsibility: It's duty to represent its members. It's about betrayal of members' interests. It's about
Secret Deals Done Dirt Cheap.

Arbitrary? Discriminatory? In bad faith? In his submissions, Blasdell alleges the UFCW's actions are "all of the above". Those submissions were enough to satisfy the OLRB that a hearing was warranted.

On October 8th, OLRB Vice Chair Brian McLean identified three main issues that will be dealt with at the hearing:

1. Is the collective agreement, as amended, valid in view of the fact that it was not ratified by the membership following the agreed to amendments?

2. Did the union violate section 74 of the Act by not seeking ratification of the agreement, by not consulting directly with the membership and, as it is alleged, by concealing the fact that negotiations were underway and that an agreement had been reached?

3. Did the union violate section 74 of the Act when it provided for a different consultation process for each of the three locals affected by the agreement?

The identification of these issues is a promising sign. The case law supports Blasdell's position on each point.

Earlier this week, Blasdell scored a significant victory. In preparation for the hearing he requested production of documents related to the company's and the union's justifications for their secret deal. The justifications were quite extensive and so was the list of documents that Blasdell demanded.

Both Loblaws and the UFCW objected to his request. The company alleged that his request was a form of harassment. The union stated that it could not produce the documents since there were just too many of them. According to Local 1000a's lawyer:

"The documents are extremely voluminous, located in multiple locations and would take considerable time to find and duplicate. Local 1000a is very concerned about the significant time and resources that would have to be put into attempting to assemble material and the inevitable loss of the consultation." (Our emphasis.).

Despite their protests, on October 16th, Vice Chair McLean ordered production of:

1. All documents and records pertaining to the negotiations between Loblaw Companies Limited and UFCW Canada and its Local 1000a with respect to the modification of the collective agreement between the union and the company that become effective July 28, 2000 and will expire on July 1, 2006, including correspondence and bargaining proposals.

2. All documents and records pertaining to discussions between representatives of Loblaw Companies, UFCW Canada, UFCW Locals 1000a, 175 and 1977 with respect to the issue of ratification (or other form of approval) of the tentative agreement to amend the Local 1000a collective agreement.

3. Any documents and records pertaining to the discussions between Michael Fraser and Loblaw Companies representatives.

4. All documents and records pertaining to the union's decision to not consult with the membership about the mid-term negotiations, including any instructions that were given to members of the Local's executive board, divisional committee and Shop Stewards in connection with communication with members.

In addition the union was directed to bring to the hearing the written legal opinions it talks about in its submissions.

We doubt that Loblaws and UFCW representatives will be talking about that at their forthcoming appearance at this union-management relations conference.

The hearing hasn't begun and the outcome is far from certain. These early victories, however, are significant and provide valuable pointers for other workers who, like Blasdell, are not prepared to sit quietly by as their union leaders do the backroom boogie with the corporate brass.

Knowledge is power and there's a lot that the backroom boys don't what union members to know. Local 1000a is objecting to the addition of the names of dozens of members who have asked to be added to the complaint. Loblaws workers report that management is denying requests for time off on October 23rd. At the request of Loblaw Companies, Blasdell has been directed by the OLRB to refrain from sharing any information at all about the documents that will be produced to him as part of the order for production.

The backroom boys can try all they like to keep members in the dark, but there's only so much they can do to keep their activities a secret. You'd think they'd know that by now. What's up boys? In the course of a few weeks you've gone from Warriors Against Wal-Mart to fear and loathing. Sweet.

Whether the fine fellas from backroom central ike it or not, the hearing is open to the public. We'd like to encourage all interested workers, members of the public and media to attend. It's a great opportunity to show your support for some very knowledgeable and tenacious union members and become more knowledgeable about what's happened to them and what they're doing about it.

The consultation hearing will take place on Thursday, October 23, 2003 at 9:30 a.m., at the Ontario Labour Relations Board, 505 University Ave., 2nd Floor, Toronto (University Ave. at Dundas St. W., St. Patrick Subway Station).

I could be all wrong on this but I suspect that Corporon never in all his wildest imaginings ever expected to be where he is right now. The logistics around the secret deal all point towards one likely strategy: Bargain in secret and once the deal is done, announce it in a low key way so that you can get it in place before the members can say "What the f**k?"

While Corporon might have expected that somebody might file a DFR, I doubt that he ever expected a DFR like this one. My guess is that a lot of that whining and moaning and scary propaganda about Wal-Mart was to distract the members from what was really going on here or, maybe, to compel the OLRB to look compassionately on the secret scheming that took place. It would be outrageous for anybody with a fully functioning brain to think that the Board would or even could find that competition among two businesses was reason enough for an employer and union to break the law but then again...

I bet that the boys from Loblaws are some pissed with Kevin for letting things get this far out of control. I mean, they like the guy I'm sure but at the end of the day he's just a tool they use to keep the workers in line. If the tool isn't working properly, it's time to fix it or get a new tool or maybe kick it a few times to see if it might start working better.

Oh, I think there's trouble in paradise!

"Back Room" deals alway turn into "Back Door Policy"
The corrupt vampires of labor make the back room deal and the workers get bent over!

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Lets all remember secret negotiations for 6 months,company demands no ratification for members,deal falls apart because of vote,Michael Fraser steps in,alternative approval mechanism found,divisional board ratify for members,members told about done deal.

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If it was, as you argue, a breach of the union's duty of fair representation to impose this deal with no vote, would that imply that it was an unfair labour practice for the company to demand it?

Is it appropriate to raise that issue at this stage? Would an individual member be able to do it, or must the union?

Michael: this is a Canadian local union, I understand that they have followed the necessary steps in the process, and currently have a hearing date scheduled before the Ontario Labor Relations Board on October 23rd. You should check out some of the articles about it on the site, this is going to be a pretty big deal.

My question, though was because I was unsure about the connection between DFRs and ULPs, and I was wondering if Ben or anyone helping him was aware. It would be great if they could charge Loblaws with some kind of violation out of this, too.

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I think the union has to file under an unfair labour practice and mebers are not allowed.

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ULP's... LQ has a point, is there a reason to dismiss the possibility of a member(s) filing unfair labour practise against a company?

I don't see any reason why a union member couldn't file an unfair labour practice complaint, particularly in the circumstances of the Loblaws-UFCW secret deal.

I think the Board officer should be asking a fourth question at the hearing on Thursday:

4. Did Loblaws commit an ULP by demanding that the union adopt the amendments without a vote

However, even if the officer does not revise his questions, the point may also be relevant to #1 - whether the agreement is valid. Loblaws may wish to argue that it has detrimentally relied on the union's agreement and should not be denied the benefit of its bargain, even if the union committed a DFR in the process. But that surely can't hold up if the employer was committing an ULP in negotiating the amendment without ratification. Loblaws would have unclean hands.

Form a UNION with in the UNION and file.

It seems to me that the Larkin case is quite different than the situation involving the UFCW's secret deal with Loblaws. Larkin alleged a breach of Section 70 based on his employer's comments about his work performance and his subsequent dismissal. The Board, in its decision, said that this wasn't really the purpose of Section 70:

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The substance of the applicant's complaint under section 70 of the Act is that the employer's complaints about his performance constitute "coercion, intimidation, threats..." which, he argues, is prohibited under this section. The Board notes, however, that section 70 of the Act generally prohibits an employer or a person acting on behalf of an employer from interfering with the formation, selection or administration of a trade union or the representation of employees by a trade union. In the circumstances of this case, there is no suggestion that the employer's complaints concerning the applicant's job performance were in any way designed to, or even had the effect of, interfering with his representation by the union as contemplated under this provision of the Act. In addition, the Board has previously held that only a trade union can bring a complaint alleging a violation of section 70 of the Act. Individual employees do not have the status to bring such a complaint. (See, for example, Board of Governors [1991] OLRB Rep. June 734.)

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This is true. Section 70 really isn't intended to deal with discipline issues. The grievance and arbitration procedure are the venue for those kinds of issues. I don't doubt that in the normal order things, it would be a union that brings forward this kind of charge.

The UFCW-Loblaws issue, however, is quite unusual. Here you have an employer basically saying, "Reopen your contract, give us concessions, don't ratify the changes or we'll close some stores and throw a whole bunch of your members out of work".

In my mind, that's a basis for a Section 70 complaint but the union doesn't want to file one. Instead, it goes along with the employer, agrees to change the collective agreement and goes along with the employer's demand to not hold a ratification vote. What are the members to do? I wonder what the OLRB would do in the event that a member(s) filed a Section 70 complaint in these circumstances.

The purpose of Section 70 is presumably to prevent employers from interfering in the administration of unions. Insisting that there be no ratification of changes to an agreement is, IMHO, interference in the administration of a union. If there is a breach of Section 70, there's a breach of Section 70. That breach has a significant effect on the members. If the union won't file a complaint, why shouldn't the members be allowed to file? What other recourse do they have? Yes, they can file a complaint against the union (which they have in this case) and if they are successful, there will be a remedy ordered to deal with the union's breach of Section 74. It will not, however, directly address the employer's breach of a different statute.

It doesn't seem right that the employer should be able to escape censure for its own actions (actions that directly effect the members) simply because the union, through its own unlawful conduct (as alleged in the Section 74) won't file the complaint.

I wonder what the Board would do in a case like this. It's possible that they would dismiss it on the basis of the 1991 Board of Governors ruling (whatever that was all about), however, there are certainly some compelling reasons to allow it given the circumstances.

These decisions frequently hinge on the specific facts of a given complaint. I'm not sure that the Board has dealt with anything quite like these facts before.

My argument would be something like this: The law is law. The LRA applies to employers, unions and workers. Therefore, why would workers be denied the right to bring forward a complaint that the law has been broken? If a union is "an association of employees" (as the LRA defines "union"), then why shouldn't the employees have a right to complain that their employer has interfered in the administration of their "association of employees"?

Sometimes it's also what you argue that influences the outcome as well.

An individual can file an unfair labour practice claiming a violation of other sections like 72, 73, 76, which deal with discrimination by an employer for participating in the lawful activities of a trade union, getting fired, harassed for being a union activist, intimidation coercion etc. No ind'l claim under section 70 b/c it prohibits employer "interference in a union" and thus the claim is specific to the union.

From what I can tell here the ULP claim vs. the employer seems like a bad fit, but who knows, I guess it can't hurt.

Gen'lly I am doubtful re the ultimate result here and if folks are stirred up sufficiently about this dirty deal done dirt cheap (I love it) they need to start thinking about what happens IF they lose at the Board, Is that the end of the road on this?

There was a lot of rhetoric about tis site at the hearing today,when they tried to talk about the site Harry Kopyto (a working mans hero) shut the down.He stood up and raised his voice THIS IS IRRELLEVANT...they had to stop.The union hates this site..no control here ...the internet will be the death of secrecy......A big thank you to Robbie Dee your case went in when they slipped in a reference about american law,it was very pertinent when the union tried to rely on "past experience".many case were cited,one that comes to mind is from the supreme court about the human rights code being in all collective agreements.

The union has called a general membership meeting for Nov 11 at 7 pm at Howard Johnsons at the 401 and Keele st. Toronto.It seems really odd, one of their defences ,at the consultation, was the union is too big.Have we gotten smaller since Oct 23, 2003?They also went through all the communication steps they took.Funny how, as momentum builds, the need for supression is not so impractible any more.

bb Do you have posts in your store about this membership meeting I have been checking but there still are no posts in our store.