Vice Chair Strangelove: How he learned to stop worrying and love the bomb.
- Criminal court judge says rising murder rate is a problem. Proposes decriminalization of homicide.
- Human rights commissioner blasts complainants: Discrimination complaints are a drain on resources of lawbreaking companies. Complainants should realize it's not a perfect world.
- Vice Chair complains that certification applications are clogging up the LRB. New rules needed to make it more difficult for workers to join unions.
This perverse logic would not be tolerated for a moment from an adjudicator in any other branch of our legal system. Our rights are our rights. Once they are granted to us, it is wrong for anyone - least of all members of the judiciary or of quasi-judiciary agencies - to interfere with our exercise of those rights or apply them in a way that makes them as good as meaningless. But this perverse logic is exactly what applies to workers with respect to their right to fair representation by their unions.
We've had a lot to say about the Duty of Fair Representation here at MFD and none of it's been positive. The provisions of provincial labour legislation across Canada give workers the right to be represented fairly by their union. This is a right - not something you get if you're lucky or if the union feels like representing you fairly. A right is a right. It's something we expect to have the full benefit of, all the time. It's something that we expect to be administered fairly and judiciously. Something that is upheld in meaningful ways. If we believe that our rights have been infringed, our claims should be taken seriously.
DFR legislation is a joke. Everything about it - from the way it's interpreted and administered to the way complainants are treated by labour board officials - runs contrary to the notion of justice and due process. LRB's across the country have made it clear that the rights of employers and unions come first. Union members are union appendages. There's no room for them in the holy troika that props us our labour relations system: employers, unions and government.
As union members become more aware of their rights and more intent on exercising their rights, LRB guys are working hard to keep them in their place. The harder they try the more spurious their logic and the more transparent their motives. Case in point:
The BC LRB released a really strange decision last week in a case called Judd v. Communications, Energy and Paperworkers Union, Local 2000. It's an odd decision because it didn't decide anything. Instead, it presented a lengthy (25 page) defense of the LRB's handling of Duty to Fair Representation complaints. It's also a disturbing decision. By setting out at great length the LRB's practices in relation to the handling of DFR complaints, Vice Chair Brent Mullin and his two sidekicks are making those practices the law. LRB decisions, just like decisions of the courts, become part of the body of jurisprudence that can be relied upon by other Vice Chairs in deciding DFR complaints. Mullin has just handed LRB's across the country a swell piece of case law to help them support decisions to deep-six working people's complaints about their unions.
Mullin's decision involves a DFR complaint filed by a guy named James Judd. Judd was formerly an editor at the Kelowna Daily Courier. He was fired from his job and subsequently reinstated by an arbitrator a while ago. Not long after he returned to work, he was fired again. This time his union, CEP Local 2000, refused to arbitrate his grievance. He filed a DFR complaint and that's what Mullin's decision deals with. Only it doesn't deal with it at all.
On page 3 of the decision there are a few paragraphs that tell us what led up to Judd filing his complaint. On page 24 there is a one-paragraph reference to what will happen next: The LRB's staff will contact Judd to ask him for more information. That's it! Well guess what? That's not a fucking decision! A decision is something that either decides the complaint (who wins and who loses) or determines some procedural or technical issue that's been raised by one of the parties. "We'll call the guy and ask him for more information" is not a decision.
In between page 3 and page 24, there is a lengthy treatise on how the LRB has been handling DFR complaints and DFR complainants, what DFR complainants can expect when they file their complaints and what unions should do to avoid getting nailed at the LRB. Mullin bemoans the growing number of complaints and laments about the pressure these "unwarranted" complaints place on union resources and shakes his head about members' unrealistic expectations. It's a virtual "DFR for Union Reps who are Dummies". Why did Mullin write this and why did he present it as an LRB decision? We'll tell you what we think:
Nowhere else is callous disregard for the rights of a large group of citizens as institutionalized and as obvious as in the various LRB's adjudication of DFR complaints. Fair representation is defined in broad terms. It means a union can't act in a manner that is arbitrary, discriminatory or in bad faith. In practice, however, the process is so slanted in favour of unions and employers, that the concept ought be called DLR - Duty of Lame ass Representation. You'll get a bigger does of natural justice and due process fighting a traffic ticket than you will about fair representation from your union despite the fact that you pay big bucks for it and, except in very limited circumstances, have no choice in who your bargaining representative is.
Union members are getting smarter and more sophisticated than they were back in the days when the Duty of Lame Ass Representation was first conceived. Some are refusing to accept the LRB's perfunctory dismissals of their complaints and are telling the LRB's "see ya in court". They're taking their issues to the real courts where they are discovering that they have real rights.
The BC LRB and the Canadian Union of Public Employees recently had its butt kicked in a dumped DFR case that ended up before the BC Supreme Court. Chris Budgell, a former City of Vancouver worker, who was brushed off by his union and forced to scramble around a day before his arbitration hearing with an unprepared external lawyer. Budgell challenged the LRB's decision to heave out his DFR complaint. He alleged that the LRB had been patently unreasonable when it dismissed his complaint against his union. The judge agreed.
As pointed out earlier, previous decisions of the Board place a higher onus on a union in cases of termination. It is difficult to think of any matter more important to a union member than the loss of his job. Under the collective agreement, the individual union member rights are left at the mercy of the union. A union has an obligation under s. 12 not to act in a matter that is arbitrary, discriminatory or shows bad faith. The appointment of counsel on the eve of the hearing was in the circumstances of this matter, at a minimum arbitrary, and might, given the apparent hostility between the petitioner, Ms. Kilfoil and Mr. Merrick also constitute bad faith. In my opinion, the Board's conclusion that the petitioner had failed to meet the evidentiary burden was patently unreasonable. On the record before the Board, the Board's determination that the petitioner had not established that a contravention of s. 12 had apparently occurred must be quashed.
The shock waves from that decision are waking union reps up from their siestas all across the province. You can't tell a guy his case stinks and leave him high and dry the day before his hearing? Gawdalmighty! What's the world coming to?! Oh say it ain't so. Tell us it's one of those anal-omalies. The word on the street is that the CUPE honchos are blaming it all on the judge who they say - now get this - just doesn't understand labour law! Well, maybe it's a good thing.
But no matter where you're taking up space, union office or LRB headquarters, the whole damn thing is really dangerous - anomaly or not. What if others take it into their heads to do the same? If Budgell was able to drag the LRB all the way to the Supreme Court, on his own, without spending millions of dollars in legal fees, others might do likewise. The word might get out that it's not all that complicated. Hell, what if Budgell or some other smart ass writes a "Judicial Review for Dummies"? Legions of business reps, in house lawyers, grievance committee members might have to alter their work performance standards, in ways that will make their jobs a lot less enjoyable.
For the LRB guys, the Budgell case is a big black eye. LRB guys don't like to be challenged and they really hate getting judicially reviewed. It's damned embarrassing and it's made that much worse when the guy taking you on is some working stiff. It's one thing to be bested by your own kind; you can sort of laugh that off at the country club, but getting your clock cleaned by some non-golfing peon? Oh the shame of it.
Whatever Mullin's motivation (we're just speculating), the content of his DFR for Dummies is illuminating. It sheds a harsh light on the citizen-funded LRB's perspective on citizens' rights and on where the citizens belong in the holy troika of labour relations - nowhere.
Join us now as we take a look at some of Vice Chair Mullin's statements. In our view they are alarming. They belie a patronizing view of union members and a highhanded "brush off" of their legal rights. We will take-no-prisoners in our assessment of his decision and what we think is behind it.
Warning: Even those of you who enjoy our take-no-prisoners approach to commentary on subjects that are especially near and dear to our hearts may find our criticism of DFR for Dummies a bit over the top. So be it. We're pissed and we're not holding anything back. It's time to cross yet another boundary set for us by the power elite: We're going to diss the LRB.
Dissing the LRB is the ultimate sin in the labour relations community. LRB guys are like gods among men. Bringing the lords down to eye level can't be done deferentially. Think of our commentary as the union reformers' equivalent of the Sex Pistols' God Save the Queen - If you've got a copy in your CD rack, you might want to spin it as you read the rest. If the relentless dissing of the high and mighty offends you, you might want to exit now. For those who are staying around, we're going to quote some choice bits of Mullin's DFR for Dummies and then give you the reformer's translation.
By the way LRB guys: Chris Budgell had nothing to do with this commentary OK? He didn't help us write it and didn't even know we were writing it. We say this because we know that sooner or later you'll be revisiting his DFR complaint and we hope that you don't piss on Chris 'cuz of this diss. Of course, if any of you disagree with anything we're about to say, you're more than welcome to join us in MFD forum and set us straight. That's how we do things around here. No boring submissions in this new era. Just log on and - instant dialogue. Moving right along...
Mullin begins DFR for Dummies with an explanation of just what DFR is all about. He cites the lead case in the BC jurisprudence to enlighten us how narrowly the broad concepts of arbitrariness, discrimination and bad faith have been narrowly defined.
... a union is prohibited from engaging in any one of three distinct forms of misconduct in the representation of the employees. The union must not be actuated by bad faith in the sense of personal hostility, political revenge, or dishonesty. There can be no discrimination, treatment of particular employees unequally whether on account of such factors as race and sex (which are illegal under the Human Rights Code) or simple, personal favoritism. Finally, a union cannot act arbitrarily, disregarding the interests of one of the employees in a perfunctory manner. Instead, it must take a reasonable view of the problem before it and arrive at a thoughtful judgment about what to do after considering the various relevant and conflicting considerations. Rayonier Canada (B.C.) Ltd., BCLRB No. 40/75, [1975] 2 Can LRBR 196
What's it mean?
OK, working stiffs, you've still got some rights but we've gone and narrowed them down a bit. Do you know what that means - when your rights are narrowed? Well, you know that old saying, "It's easier for a camel to pass through the eye of a needle, yadda, yadda... ?" Well, that's what the Rayonier decision did for us. Winning your case is sort of like driving a camel and its next of kin through the eye of a needle. When we narrowed your rights, we took big words like "arbitrary", "discriminatory", and "capricious" and turned them into little words like "it's gotta be personal 'tween you and yer rep". Try proving that you little shmucks. To win you've gotta be able to see what's in your business rep's head and, as we know, it's awfully dark in there.
We believe that the difficulty in understanding the legal tests in Rayonier may be contributing in part to the consistently large number of applications filed every year. The Board continues to receive about 200 Section 12 complaints per year, despite their low success rate (less than five percent are successful). Complainants appear not to be deterred by the strict legal tests or low success rates.
Your tiresome demands about your rights are really pissing us off. We keep booting your complaints out the door as quickly as you file them. We thought you might get the message and leave us in peace but nooooooooo. Maybe you just to stupid to understand that you're going to lose so we're going to try to make it easier for you to understand: You're not going to win, OK? D'you get it now?.
Every year the Board receives a far greater number of Section 12 complaints than are justified on the facts. This has resulted in excessive demands being placed on the resources of unions and the labour relations system as a whole, including the resources of the Board. While in part this may be due to an increased level of sophistication amongst employees in the workforce in general, in our view it may also flow from a fundamental misconception regarding the nature of the rights and obligations arising under Section 12.
There are way too many of you little pukes demanding your rights these days. This is costing your unions a pile of your own money and it's taking us pompous asses away from stuff we like doing more. Now look, we've got a real cherry gig going here and on your dime so do us all a favour and piss off! We've got far better things to do and to spend your money on that hearing your trifling complaints. The fact that some of you are getting smarter is no excuse to be prancing around our fancy offices like you own the damned place.
Once the employees have chosen unionization, subsection 2(d) addresses the Code's preference as to how the employer and the union are to meet the challenges they face. Those challenges range from "adapting to changes in the economy" to how the parties are to resolve their workplace issues and generate a productive workforce. That direction, first put into the Code in 1993, requires unions and employers to work together to jointly address these issues through "cooperative participation".
Once you join a union, it's what your union and your boss want that matters. Don 't you know, it's all about the money? That's why gave your union leader's a bone back in the 1940's. So they could help the economy by controlling you, you persnickety shits.
As noted earlier, the restrictions that Section 12 imposes on a union's representation are "arbitrary, discriminatory and bad faith". All three of these concepts are abstract in nature. However, considered in the context of the exclusive bargaining agency of the union, they can be better understood.
Now I know you think we said you had rights but we thought we screwed them up enough to confuse us... we mean you. We sure as hell didn't intend for them to be understood and taken seriously you dumb shits. Your rights are, like, really abstract, man. They're like a Salvador Dali painting, y'know. Hey, there's your rights sticking out of some guy's butt... wow man. So abstract it's scary.
There is also misunderstanding concerning the Section 12/13 process. The Board's materials clearly state that a complaint must include details of the conduct that's alleged to have violated Section 12. However, the Board continues to receive a large number of complaints that do not contain sufficient information to allow the Board to conclude whether Section 12 has been violated
What is it the fuck you little pukefaces aren't getting about what we said? We've been very very clear on this. Stop bothering us about your rights. If you don't have pictures of you bent over, then we don't see the problem. Our desks are piled high with papers that we can't figure out and you little bastards just keep filing more.
If the union does decide to proceed with the grievance it must do so in a non-arbitrary manner. A union that demonstrates blatant or reckless disregard for the interests of an employee in carrying out an employee's representation, will be guilty of arbitrary conduct within the meaning of Section 12. However, that does not mean it is a violation of Section 12 for a union to make a mistake or to handle a matter poorly. Typically, unions must handle a large volume of employee issues with the limited resources provided by members' dues.
Fair representation can be lame ass representation. It doesn't matter if your representatives decided your important issues with their heads up their asses; it's the thought that counts. Besides, representing you costs money! Who cares if it's your money. Your reps have a lot of uses for your money and representing you isn't always high on their list. Look, there's racing cars to buy, conferences to attend, mountains of high cal food to be purchased, SUV's to lease. After all that's done, there's very little left.
As well, unions are not law firms. Unions are not expected to meet the standards required of a lawyer in respect to either procedural or substantive matters. It is only when the alleged carelessness of a union reaches the level of blatant or reckless disregard for the employee's interests that the union can be said to be misusing its exclusive bargaining agency and acting arbitrarily within the meaning of Section 12.
Your representatives are not lawyers so don't be expecting them to represent you. Live and let live, y'know. Lower your expectations and you won't be disappointed nearly as often. And don't forget that if your union reps let you down, it's probably your own damn fault anyway. Look, if you call a plumber and say, "My toilet won't flush, could you come and fix it" and the plumber fixes it so it only flushes on Mondays, that's your gawdamned fault y'know. You should have been more specific and said, "Fix my toilet so it flushes every day of the week." How the hell is the guy supposed to know what you mean if you don't tell him? You should have stayed in school. If you pay some guy to pave your driveway and he paves your lawn instead because he though it would look better, you can't hold that against him, can you? He's just trying to make the house look better. Can't blame him for that now can we?
We note, however, that the Board's interpretation of Section 12 is consistent with the amended purposes of the Code. An enlarged interpretation of the Section 12 concepts would undermine the union's ability to control its resources and actions and, ultimately, would be detrimental to the rights of employees: Section 2(a).
The union has to control you because if it doesn't you ungrateful bastards are going to run wild in the streets. That's why we have these laws. It's to keep you in your place - squarely under the two thumbs of your boss and your union leader. The Board's "duty" under Section 2 is met as long as we take care of the union. We avoid the term "member" and treat the "union" as some entity that makes decisions rather than individuals who make decisions. Got that? It's like shape shifting. You are the union, so if your union is happy, you're happy to.
In order to advance past Section 13, a Section 12 complaint must disclose sufficient evidence to establish that a contravention of Section 12 has apparently occurred. If it does not, the complaint will be dismissed. The Board will endeavor to give effect to the legislative direction in Section 13 and render quicker, shorter decisions that allow the parties to get on with their affairs with certainty.
The less we say, the less likely you'll hang us. From now on, we ain't saying much.
Once employees have chosen a union as their exclusive bargaining agent, any decisions regarding the negotiation and administration of the collective agreement are the union's to make. Thus, for example, if an employee feels he was denied a promotion in violation of the collective agreement, or disciplined or dismissed without just and reasonable cause, it is up to the union to decide what to do about that.
Can we make it any clearer for you? The union owns you... and your toilet only flushes on Mondays.
Furthermore, an interpretation of Section 12 that caused unwarranted litigation in the workplace, i.e., litigation inconsistent with the majority rule, democratic principle at the heart of the Code, in our view would fail to foster the employment of workers in economically viable businesses: Section 2(b). It would improperly focus critical, limited resources of the parties on a non-productive, even counter productive, exercise. It may also thereby discourage the practice and procedure of collective bargaining between employers and trade unions as the system itself could be seen as inefficient and thereby brought into disrepute: Section 2(c). It would also not encourage cooperative participation between employers and trade unions in resolving workplace issues: Section 2(d). Nor would it promote conditions favourable to the orderly, constructive and expeditious settlement of disputes: Section 2(e).
Most of your complaints are unwarranted. Why? Because we goddamned say so. Now, when your employers or your unions file complaints those are warranted. It doesn't matter what kind of feeble bullshit the big players put in front of us. We'd never be so bold as to say it was unwarranted. But yours is, because your rights don't concern us. Furthermore, it will piss off business and unions if we start taking your beefs seriously.
Here's the nub of the whole decision:
Section 12 contains a narrow right and protection. It has long been interpreted that way in this as well as other jurisdictions and the Courts have upheld that interpretation. Despite that, Section 12 complainants often have expectations far beyond what is provided for by the Legislature. This has resulted in a consistently large number of unmeritorious complaints, which is contrary to the goals of the labour relations system identified earlier, and diverts critical resources both from unions and from the system as a whole.
We gave you fuck all. Every jurisdiction in Canada gave you fuck all. The Supreme Court upheld our right to give you fuck all. You union members expect way too much of your poor union leaders. We have much more important things to do than to deal with your unmet expectations.
The decision goes on to 'splain once and for all how little you can expect from your union leaders.
The reason why this is bein' 'splained now is twofold:
- You are going to have to pay to file a Section 12 when the Code is changed, so don't bother wasting your money 'cause you're entitled to fuck all anyway.
- That damned Chris Budgell, even though he was entitled to fuck all, hooped us on a technicality, and we don't want that happenin' again.
Section 2 thus provides a comprehensive roadmap for fostering labour relations in British Columbia, proceeding from the rights and obligations of the parties, to an identification of the goals to be obtained. This comprehensive direction is to be followed by the Board and other persons who exercise powers or perform duties under the Code.
It is a view of labour relations in which the three immediate parties (the employees, employers, and trade unions) will benefit by working together. As well, their efforts are to contribute to larger, societal goals in the form of generating and maintaining work in economically viable businesses. At the same time, as well as contributing to that public good, the system will also protect the public interest in respect to disputes.
The roadmap leads to a place called disempowered servility. Our societal goals are to stay on top and keep you working stiffs on the bottom. Your labour helps the boss and your dues keep your union leaders in expensive suits and SUV's. The public interest? Oh that doesn't mean you. That means keeping the frigging lot of you from striking during election years.
Mullin's words for the wise: Act like you give a shit. Pretend that you care. Fake good listening skills. Remember to say that you gave it a lot of thought, but it's just too danged expensive to fight.
We could go on but we won't. We invite you to scrutinize Vice Chair Mullin's DFR for Dummies and share your own perceptions with us.
We must say, however, that we are perplexed by the Vice Chair's sudden about face about the rights of working people. Back in 1998, shortly after being booted off the Board by the incoming NDP administration, he authored a somewhat different analysis of the LRB. Entitled "Towards a Progressive Labour Relations Board", Mullin made a scathing attack on the LRB. He attacked the way that its Vice Chairs were appointed, suggesting they are second string lawyers looking for a comfortable place to build arbitration businesses. He said the LRB's processes lacked integrity. He made no bones about what he perceived was a failure on the LRB's part to live up to its mandate to employers and employees.
Since his reappointment to the LRB, Mullin seems to have learned to stop-worrying-and-love-the-bomb that is the labour relations judiciary.
"Gee, I wish we had one of them doomsday machines", says General Buck Turdgidson in Dr. Strangelove.
We've got the doomsday machine for you Brent Mullin. It's called the knowledgeable worker. Here's one more for the road:
The Code gives unions this exclusive control because it is necessary in order for a union to be effective in representing the employees as a whole. The power of a union comes from the fact that it represents all the employees as a single entity. A union must speak with one voice in order to negotiate effectively with the employer. A union must be able to make commitments that the employer can rely upon if the union expects to receive anything in return. It would be unable to make such commitments if, in the future, it was required to act in whatever manner it was directed to by various, individual employees. Employees choose whether or not to unionize, and typically choose the leadership of their union local. Thus, unions are an exercise in workplace democracy.
This is subjective editorializing at best. The fact that somebody's tried to codify it as case law is positively frightening. Ride the bomb Mullin, ride the bomb.