Our Brother's Rights
[Warning: This article contains coarse language].
Guarantee of Rights and Freedoms
RIGHTS AND FREEDOMS IN CANADA.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
This is from a recent decision from the Supreme Court of Canada:
"Freedom of expression is fundamental to freedom. It is the foundation of any democratic society. It is the cornerstone of our democratic institutions and is essential to their functioning.
It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be overemphasized. No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.
The importance of work for individuals has been consistently recognized and stressed...."A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect.".... As well, the vulnerability of individual employees, particularly retail workers, and their inherent inequality in their relationship with management has been recognized. ...It follows that workers, particularly those who are vulnerable, must be able to speak freely on matters that relate to their working conditions. For employees, freedom of expression becomes not only an important but also an essential component of labour relations. It is through free expression that vulnerable workers are able to enlist the support of the public in their quest for better conditions of work. Thus their expression can often function as a means of achieving their goals."
U.F.C.W., Local 1518 v. KMart Canada Ltd., February 15, 16; 1999: September 9.p. 1356.
This decision upheld the right of unions and their members to engage in secondary leafleting (leafleting of premises not directly affected by a strike) and was hailed as a victory by the Canadian labour movement. In its pleadings the UFCW argued aggressively in favour of the fundamental freedom of expression. Whatever inconvenience, whatever hardship it may cause to other parties, the UFCW's lawyers argued, was worth it. We wonder what the UFCW and its crack legal team will be saying about this decision when it heads off to court to seek a restriction of those fundamental rights for one of its own members.
Brother Gammert...told them to go pound salt...
Bill Gammert is a part time receiver at a Great Canadian Superstore in Vancouver and is a member - at all times in good standing - of UFCW Local 777. That local has been the subject of considerable discussion on our web site. If the sworn affidavit of a senior officer of Westfair Foods is to be believed, the local was created to accommodate the wishes of an employer - Westfair Foods - which was looking to expand into BC in the late 1980's but wanted a collective agreement that would give it a "competitive advantage" over other grocery retailers. Westfair did not want to do business with existing BC UFCW locals 1518 and 2000 for fear of getting stuck with contracts that were too rich. In the end, Cliff Evans, great UFCW Canadian Pooh-Bah, said "yes, hell yes" and "triple 7" was born.
Gib Whitlock is the President of UFCW Local 777. About him much has also been written in our pages. It was Whitlock who signed a secret contract with Westfair Foods agreeing to significant terms and provisions of a second collective agreement - 4 years before the first agreement expired. He was a trustee of the local's Training and Education Fund during a period when over a million dollars were disbursed to destinations that appear to have little to do with training and education. He dragged his heals on calling an executive election for two years after his term of office expired. He appointed his wife (who was not a member of the local) to a Vice President's position. He doubled the number of vice presidents on the Local's executive board. His list of his achievements seems endless. That's our Gib in the parody pic in our legendary Trough article.
In 1999 Brother Gammert ran against Whitlock for the Presidency of Local 777. The Brother ran on a platform of union reform. This excerpt from a DFR complaint he would subsequently file with the BCLRB tells much of his story.
"I am a member of Local 777 of the United Food and Commercial Workers Union and as such am entitled to rights and privileges in accordance with local union bylaws, the International Constitution and a collective agreement. I am entitled to exercise my right to run for the office of President of Local 777. In fact, I did so in 1999. In relation to that election, I was arbitrarily and discriminatorily disqualified from that election, as was another presidential candidate. We have appealed our disqualification to the International Union. That appeal is nearly one year old and it has been nearly eight months since I have officially heard anything on my appeal. This is despite the fact that appellants with similar complaints regarding UFCW Local 1518 have had their appeals heard decided, appealed to the General Executive Board and decided a second time by last May.
During my candidacy, I campaigned on a platform of union reform. I distributed UFCW reform literature and authored a WEB pages supporting union reform. My WEB pages are also critical of incumbent Local 777 officers including President Gilbert Whitlock. In April 2000, I was confronted by Roger Bockstael, Senior Industrial Relations Manager for Westfair Foods Ltd. He threatened my employment if I did not cease my union-reform activities, "both on or off shift." He then accompanied me to a locker in which I stored my personal belongings in and forced me to submit to a search of my personal effects by a Westfair security officer.
On April 30, 2000, I sent a letter to Mr. Whitlock grieving the employer's actions. Eventually, I was met by a Local 777 Business Agent who took the particulars of my grievance and has heard nothing of my grievance until last week. In fact, I have never seen a copy of the formal grievance. Therefore, I am not even sure that my grievance, civil liberties or Labour Code complaints were even discussed or investigated by the union.
Prior to my being told that my grievances and complaints were not going to be processed by the union, I was approached by the Secretary Treasurer of the local union who asked me to drop my election appeal. In return, he indicated that he might be able to persuade the union President to appoint me to the Executive Board or possibly hire me as a business agent. I was not interested in that proposal.
Subsequently, I was told that my grievance was dropped. The Business agent gave me no explanation or rationale for the withdrawal of my grievance. However, he did say I had violated the International Constitution and Local Union Bylaws by "bad-mouthing" the Local Union. That is not true and if it were, there are internal disciplinary procedures to deal with such infractions."
The Brother claims that during the election, he was virtually prohibited from any campaigning by Local 777 and by his employer. He claims that the company prohibited him from discussing "union issues" at any time while on their premises, including during lunch and break times and was particularly concerned about his reform platform. He was instructed that he was not to bring "union reform" literature onto the premises. His locker was searched for union reform material and when some was found, he was issued with this:
"You must be clear that these activities must cease within the work place and that further evidence of them continuing while you are at your place of employment, both on or off shift, will result in further disciplinary action being taken that could result in the termination of your employment.... Consider this a strong warning that should not be disregarded."
Knowing a disciplinary notice when he saw one, the Brother tried to file a grievance but Local 777 refused, claiming the strongly worded notice that was placed in his personnel record was simply a "note to file". The Brother filed a DFR complaint under the BC Labour Relations Act. By then he had quite a story to tell but notwithstanding his story, the LRB dismissed his compliant for the standard reason: "Mr. Gammert's submissions do not establish that the Union failed to fulfill its statutory duty to fair representation".
While campaigning for election, the Brother set up a small web page. Given the restrictions imposed on him by both the union and the company, it was about the only avenue he had to communicate with other members. On the web page, he included some very basic information about himself, his views on union democracy, a guest book and some cartoon graphics. He posted a copy of the UFCW International Constitution. He'd had a great deal of trouble obtaining a copy and wanted to make it available to other members. Having a bit of a dry sense of humour, the Brother posted a play on words using the UFCW acronym: United Fraud and Corruption Workers Union. The United Food and Commercial Workers objected and he subsequently removed the word "Fraud", substituting "Fuck Up" in its place.
Almost two years after Brother Gammert launched his web site, the UFCW - in August 2001 - commenced legal action against him. In its Statement of Claim, the Voice of Working America alleged that the colourful play on words was defamatory, that comments on the site about Local 777's President Whitlock and Business Agent, Dean Patriquin were defamatory. As a result of the information on Brother Gammert's web site, the UFCW whined, Whitlock and Patriquin had been "seriously injured in their character, credit and reputation" and had "suffered distress and embarrassment". His posting of the UFCW International Constitution was a violation of copyright. They demanded that Gammert be ordered to pay them damages in an unspecified amount and that he be subject to a gag order prohibiting him from publishing anything else that they consider defamatory. The Brother filed a Statement of Defense and that was the last that he heard about it for another 6 months - until last weekend when MFD's weekend edition made mention of him and the UFCW's lawsuit. All of a sudden, the UFCW and its legal advisors appeared from out of the bushes looking for an injunction that would require Gammert to censor his web site until the trial - something that is many months, maybe even years away if it happens at all.
Who are you trying to kid?
Pardon our skepticism UFCW honchos, but we're not exactly drowning in a pool of tears for you. If the Brother's site is indeed as hurtful, as embarrassing, as injurrrrrious to your officials' character, credit and reputation, why did it take you two years to file your f*****g lawsuit? Why have you sat on your butts for the last six months and done nothing to advance your f*****g lawsuit? "Corrupt" is a word that's used in relation to your union and many others on numerous web sites, none of which you're suing. Does the shoe fit? Why don't we ask this f****r. "Fuck up" is a pretty common term used in labour and labour relations circles. Anyone in the labour relations community who hasn't heard it or used it - welcome to the planet earth.
Is it possible to embarrass Gib Whitlock? Given your tolerance of his antics, is it possible to embarrass your union? What, we ask, could be more embarrassing and distressing to a union than this? And as for your Constitution being "copyrighted", we're just ROTFLOAO. Why don't you want anyone to see it? Most unions make their constitutions readily available to members and prospective members. You know damn well that your Constitution is a public document and you as much as acknowledged that when you promised for months that you would post it on your own damned web site. Embarrassed and distressed? You should be.
We know the game you're playing and we're going to make it our mission to ensure that the whole world understands it as well. In our humble opinion, you are out to accomplish two things:
1. To effectively shut down your critics and;
2. To punish those who dare criticize you.
You aren't going to f****g get away with it.
The name of the game
It's important to understand what the UFCW's lawsuit against Brother Gammert and, specifically, it's most recent demand for an injunction, is all about. It's about restricting freedom of expression, a right we all have under the Charter of Rights and Freedoms. It's also about a way to silence opposition without ever having to satisfy the Judge that you have sufficient grounds to infringe those rights. And it's about discouraging others from speaking out. This is not just an "internal" matter. This is a new use for a tool in the oppression racket. This isn't about the UFCW and some member who doesn't see things their way. It's about big organizations and how they deal with their critics. The question is not whether Gammert has a good web site or whether you agree with what's on his site. The question is: Should Gammert's constitutional rights be extinguished because the UFCW doesn't like what he's saying?
The name of the game is: don't like what somebody is saying about you? File a lawsuit. Then get an injunction censoring the stuff that's bothering you, pending the trial. You don't ever need to actually get to a trial (and you control if and when you do) - the stuff you don't want anyone to see is gone, instantly.
A pivotal moment
Let's not kid ourselves. Biz union leaders across North America are sitting back salivating over the possible outcome of this case. Facing increasing criticism and pressure from their members, these guys would like nothing more than a legal ruling that would enable them to shut up everybody who dares to stand up to them - especially on the Internet.
Remember Martin Maddaloni - head of the UA? We quoted him last week:
"I guess the advancement of new technology creates a new era for all of us. Sometimes it's good and sometimes it's bad. I think the use of a public web is bad for organized labor, I really do. I think it should be censored in some way shape or form."
Think Maddaloni wouldn't mind shutting up the growing reform movement within his union? What about the wonderful wide-ranging debate that is currently raging in MFD forum between supporters of the UFCW and the CAW at the National Grocers Maplegrove warehouse in Cambridge Ontario? Would the UFCW like to shut that debate down? What about the mountains of unflattering facts, documents, articles and stories about the realities of biz-union life that are finally being hung out for all to see on this and other Internet sites? The Internet has the potential to upset the big boys' hold on power. An informed member is an empowered member. Knowledge is power. We know it and it isn't lost on them either.
"Joe Blow" from the UA summed it up really well the week:
"Very few members attend the [membership] meetings. Just enough for a quorum, sometimes not even that and the members get a curt, "not enough of you so you may as well leave." A lot of members are very interested now that there is some fur a flyin' but they just don't want to come to a meeting. If they do condescend to come, when they leave they are shaking their heads. Here's a great example of why they feel there is no point in coming. A few years ago, the pension statements came out with some curious comments on them, mainly, "not yet eligible" Many members were really confused, as they knew that they were vested. When asked what that particular terminology meant, the BM hedged around with double talk until he was forced to admit that the plan had lost money and they didn't want the members to get upset with the plan. On inspection, it was found that except for the members' contributions, the plan had not made a penny nor had it lost a penny. "How could that possibly be', asked another member, "if I had had my money in my Credit Union I would have made xx percent"
"Sit down and shut up, you're a liar" screamed the BM [Business Manager], "you're trying to ruin the pension plan" The member meekly sat down. Most of the guys just don't stand up to this verbal abuse, especially when they are told that they are out to wreck things for everybody. Yes, plans for the election are underway. Members will be able to read for themselves what is going on via our web site and they won't have to suffer the verbal abuse."
It won't take much and it won't just be union reformers and the plainspoken that will be at risk. If Brother Gammert loses, you won't need to call biz-unionists "corrupt" or "fucked up" to get sued and censored. It will be a short hop to a crackdown on more polite descriptors. Weak, ineffective, lousy, uninspired - all of these could, to some machine head, somewhere, be grounds for a defamation suit. As if that isn't bad enough, common terms in wide use on the street, in the workplace and on the Internet will almost surely land you in a legal nightmare: Think about it. If you call the head of your union a "bonehead" will you be put to "the strict proof thereof"? Will calling your local prez a "jerk", get you a day in court? The door will be open to the biz unionists and their well-paid legal beagles to go charging after members - and other outspoken bastards - for just about anything.
Of course, they won't have to do it very often. The mere fact that they are suing a member is enough to dissuade others from speaking out or from becoming involved in union reform. For the UFCW, this isn't a first. They're suing one of their former staffers for yakking it up on our web site. They've threatened other members with lawsuits. A win for the UFCW against Brother Gammert will turn the chill into a deep freeze. As it is now, few members dare to criticize the their union leaders. A legal battle between a worker and a humungous biz-union is not exactly a fair fight. Working people, especially those who earn little more than minimum wage, can't afford lawyers. They don't have the funds to get through a prolonged legal battle no matter what the strength of their case. The possibility of losing their home, their life's savings, their credit rating, is enough to keep most quiet. The proliferation of reform web sites where members can speak their minds anonymously is beginning to change that but it's very early. That's all the more reason to fight this lawsuit.
Their message and ours
What the UFCW will get out of its persecution (ooops, we mean prosecution) of Brother Gammert is - a message to other members: "Mess with us and we'll sue you. Criticize us and we'll sue you. Ask for a constitution and we'll sue you. We'll wreck your life. You'll lose what little you have. And best of all...nobody will give a shit about you." That's the message. That is the bottom line. Well people, we say "that's bullshit"!
Reformers, activists, people who work for a living, people who give a shit - the time is upon us. We cannot let this go by. We don't want to sound like a bunch of alarmists, but we are all familiar with the concept of "legal precedent". We are all familiar with the term "chilling effect". We are familiar with the term "harassment." We all know how people are kept down, because we have all, in one way or another experienced it first hand. The UFCW are suing Brother Gammert because they want to get a legal precedent which they - and like-minded others - can put to use on other enemies of biz-unionism. They have picked the Brother (in our humble opinion) because they perceive him to be an easy target. If they win, there will be other targets. Count on it.
We call upon you to join with us to support the Brother. His fight is our fight. It doesn't matter if you don't agree with his message or if you find his choice of words distasteful or if you don't care much for his raw little web site. The Brother is not a guy who minces words. He's a worker - getting his message out. This is no time for elitism. Those of you who have the luxury of observing the world of work - those of you who teach, research or report on the world or work - reflect on the freedom, the fundamental freedom that allows you to do what you do. And then consider: you either believe in it for all of us, or you don't believe in it at all. That's the f*****g bottom line.
We urge you to take whatever actions you believe may be meaningful and helpful to the Brother's cause. Over the next few days we'll be telling you more about his case and - if you're fresh out of ideas - way in which we can help.
"Voice of working America" Man they really mean it too. They would have it that they speak for us and we don't speak at all".
Scott McPherson, outspoken MFD'er in this week's Open Forum.