I have had what is evidently a unique experience with the Canadian labour relations regime and with the justice system and I believe it reveals a major conundrum for both of them.

After nearly six years contending with the regime I would consider myself an expert in certain areas, but as I was a union member for only about eighteen months (and paying dues for only nine) I have little direct experience on which to base an understanding of how unions function internally.

My lengthy dealings with the regime have been entirely adversarial; consisting of a series of actions at the BC Labour Relations Board and in the courts and resulting in five formal Board decisions and three court judgements all posted online (plus an arbitration award that is not accessible online – as far as I know). The union and employer that I have been facing throughout this adventure are CUPE and the City of Vancouver, who of course have unlimited budgets for legal representation. CUPE has been represented by a firm that very recently changed its name from Granville and Pender Labour Law Office to Hastings Labour Law Office. For those not familiar with Vancouver’s geography, Granville, Pender, and Hastings are streets, not persons. Hopefully the firm will not move its office too often in the coming years. The information about the lawyers at that firm (the web site is www.labourlawoffice.com) reveals that it has very strong ties to both the Labour Board and CUPE. In addition to those connections, one of the eleven Vice Chairs currently at the Board is a former lawyer with this firm.

The Labour Board of course was required to provide its own legal counsel in court and did so using lawyers that are on staff. The City of Vancouver retained a firm called Farris Vaughan Wills and Murphy (www.farris.com). I recently received documentation from that firm showing that since January of this year it has billed the City over $33,000 for its dealings with me. I have no idea what it had billed prior to this year or what CUPE has been billed, but by my standards I would expect the total to be a princely sum. Those expenditures of course have been borne by the taxpayers and CUPE’s members, though CUPE was able to get the BC Supreme Court to force me to pay a $2000 “costs security” before the last court hearing could proceed, and both the City and CUPE are seeking further costs from me.

As my pursuit of justice was in response to the destruction of my career I think it unlikely I will ever pay those costs.

As a result of this process I have been compelled to produce a veritable library of documents, the most significant of which was probably a 50 page affidavit submitted to the BC Supreme Court in September 2002. CUPE has been determined to avoid responding to any of my submissions or arguments and the Labour Board was determined to provide both the union and the City with that immunity. As a result of the first court judgement the Board was compelled to “invite” the other parties to respond to my original Duty of Fair Representation “complaint”. The City declined to do so. Had CUPE taken the same position the Board would have been in an entirely untenable position, so CUPE was compelled to respond and it did so with a submission that I would characterize as outrageous. Eventually, the Board scheduled a full “oral” hearing for which I proposed to call a substantial number of witnesses including the UBC law professor who had heard the original arbitration. That hearing of course never took place. The Board had never intended to let it take place.

There is of course a great deal more to this story and it is not over. I have been in touch with more than a few other individuals who have had similar experiences but only one or two so far that are quite as bizarre as my own. I still wonder if the behaviour of the other parties in this protracted affair is what experienced union members and activists would have anticipated.

The conundrum as I see it is that the labour relations regime has demonstrated and continues to demonstrate that the Duty of Fair Representation is a sham. The evidence is so substantial and copious that it is undeniable. In order to maintain this fraud the regime has placed strains on the legal system that it simply will not sustain. Our legal system was not built to tolerate such injustice indefinitely, and I believe the determination of the regime to continue operating in this fashion will soon have severe consequences.

I would be interested in hearing from anyone who has heard of similar cases or who has any thoughts about this topic.

[ 02 August 2005: Message edited by: gbuddy ]

[ 02 August 2005: Message edited by: gbuddy ]

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i have no idea what your beef with CUPE, the lbr bord, the city of Vancouver, is.

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Budgell v. BCLRB

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[39] Based on the record before the Board, the Union, arbitrarily, and without prior notice or consultation with the petitioner, appointed counsel, unknown to the petitioner, and unfamiliar with his case, some 24 hours prior to the date originally set for the arbitration. To appoint counsel at such late date, in the circumstances of this case, is the equivalent of providing no representation at all. No counsel, on such short notice, could properly and fully represent the petitioner's interest. It was a clear breach of the Union's duty to provide fair representation... The Honourable Mr. Justice R.B.T. Goepel

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BC's Labour Code Changes Assessing the Impact

I sincerely hope that none of the readers of this forum will have to make Duty of Fair Representation complaints against unions. In my opinion the labour relations boards usually only benefit organizations (employers and union cliques) and not individual workers. The human rights commissions are much fairer to union members who have complaints against unions.

An injury to one union member is an injury to all union members.

[ 21 March 2006: Message edited by: CUPE_Reformer ]

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Originally posted by thwap:
i have no idea what your beef with CUPE, the lbr bord, the city of Vancouver, is.

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My tentative theory on the underlying problem with the regime is that there is an ancient assumption that in order for collective rights to be asserted, individual rights must be eliminated. Thus the kind of experience that I had with the labour “movement” becomes typical, if not inevitable. Few people “join” unions. They are conscripted into them without any say whatsoever. The union then gets to extract dues from the employer in the name of the so-called member and to use those dues in any fashion it wishes. There is copious evidence that that money is rarely used to benefit the membership. In fact my experience shows that unions are free to use it against their own members.

One place much of it routinely goes is to political contributions that buy favours, such as appointments to labour relations boards.

To ensure that the unions (and employers) enjoy absolute immunity, recourse to the courts was long ago shut off by creating a so-called Duty of Fair Representation and placing in the hands of those boards. The adjudicators in these so-called tribunals wouldn’t know how to adjudicate a real case even if they wanted to. What they are in fact is glorified horse-trading palaces that just provide a forum for extending the collective bargaining process in which working people are treated as chattels.

Although in theory decisions of all “administrative tribunals” can be challenged in the courts via judicial review, the courts themselves have in practice cut off that avenue by inventing what they call the “patently unreasonable” standard. They routinely explain what it means by citing the synonym, “clearly irrational”. How about “manifestly absurd”? That describes the whole house of cards I think.

One of the reasons we’ve ended up with this outrage is that all the appointments to our judicial / quasi judicial community are filled through a secretive appointment process that encourages and relies upon cronyism. We then give these people lucrative compensation, virtually complete immunity, and in many cases life-time tenure. Not exactly a formula for competent, unbiased decision-making.

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Originally posted by gbuddy:
I’ve had to contend with about 16 adjudicators so far and it turns out a key to the injustice that they served up was substituting the definition of the legal Latin term “res ipsa loquitur” for the legitimate definition of “prima facie”.

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Originally posted by gbuddy:
My tentative theory on the underlying problem with the regime is that there is an ancient assumption that in order for collective rights to be asserted, individual rights must be eliminated. Thus the kind of experience that I had with the labour movement becomes typical, if not inevitable. Few people join unions. They are conscripted into them without any say whatsoever. The union then gets to extract dues from the employer in the name of the so-called member and to use those dues in any fashion it wishes. There is copious evidence that that money is rarely used to benefit the membership.

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If you can give specifics, we might take you seriously.

[ 05 August 2005: Message edited by: Aristotleded24 ]

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Originally posted by Erstwhile:

"The thing speaks for itself" vs. "on its face"? Not sure I get what you mean.

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When lawyers use these terms they are often relying on the definitions found in legal dictionaries that are somewhat more elaborate, but also highly problematic.

For example, when the term “prima facie” was used in Section 13 of the BC Labour Relations Code introduced in 1992, it was debated in the provincial legislature. You can review the Hansard record of that debate. I don’t think they actually discussed the definition of “prima facie” in a manner that would satisfy a competent judge. Politicians evidently use the term all the time and presume they know what it means, but I suspect few of them could adequately define it in legal terms.

I was fortunate in that another DFR applicant in Ontario sent me citations of Ontario Labour Relations Board decisions that make a point of clarifying the legal definition of this term. The OLRB in turn cites a Supreme Court of Canada decision from 1990 that itself refers to Rule 19 (24) of the BC Supreme Court Rules that, among other things, uses a synonymous term, “a reasonable cause of action”.

Bear with me. This took years for me to piece together. If you are interested in the subject get hold of “Legal Writing: Sense and Nonsense” by David Mellinkoff, an authoritative book on the use and misuse of proprietary legal language.

The bottom line is this. A prima facie case is one that presents allegations that make sufficient sense to warrant further “discovery”. Further discovery usually begins with requiring the respondent(s) to respond to the basic allegations, but it rarely ends there. As the OLRB makes clear, an adjudicator is justified in throwing out a case on a “prima facie” basis if and only if the initial allegations do not make any sense at all.

Two years after Section 13 was introduced the BC Labour Relations Board redefined “prima facie” and concocted the phrase “sufficient evidence that the contravention apparently occurred”. What if the union is holding all the key evidence? Two years after that they found a way to slip that phrase into Section 13 to replace the term “prima facie”. They did it without reference to the legislature. Since then hundreds of DFR cases have been chucked using that provision, thus relieving the unions (and employers) of any need to respond at all. In a 2003 decision the current Chair and two of his associates claimed that the legislature had used those words with the intention of creating a different standard. Not so. Very, very naughty, and I suggest that will cost the Board dearly.

“Res ipsa loquitur” is very nearly the opposite of “prima facie” and that’s the concept used in my case (and probably lots of others). Basically they said that the late (to put it mildly) appointment of counsel was not necessarily responsible for the failure of the arbitration. The Board implied that was a “prima facie” assessment. If a last minute appointment of counsel was, on its own, the cause of the loss, that would be “res ipsa loquitur”. The long and sordid tale of what led to the late appointment has since been disregarded by every adjudicator, except to a limited extent the BC Supreme Court judge that gave me a measure of justice in 2003 (by remitting the case back to the Board).

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To ensure that the unions (and employers) enjoy absolute immunity, recourse to the courts was long ago shut off by creating a so-called Duty of Fair Representation and placing in the hands of those boards.

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Have you seen any evidence that the courts are generally fairer to DFR complainants than the labour relations boards? The costs of losing in the civil courts can be enormous. I hope that the following NDP bill will be passed:

Amendments to Trade Union Act

[ 06 August 2005: Message edited by: CUPE_Reformer ]

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Originally posted by Erik the Red:
So I take you don't have any direct evidence then? What I thought, thanks for sparing more of my time.

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The evidence you are asking about I presume is evidence that unions are spending their members dues in ways that do not benefit the membership. I’d offer political contributions as one example. However a more interesting and very recent example that surely most people have heard about, because it sure made the papers, is the story of that IWA local (sorry, don’t recall which one) whose immense liquor cabinet has now been publicly itemized. I’m sure I could come up with many other examples just by going through back issues of the daily papers, but I’ll let the historians do that. I’m not particularly enthralled by the sordid details.

However, while we are on the subject, here’s another thought. My (former) union, CUPE, has been claiming for years to have well over 500,000 members nationally. In nine months I believe they received about $600 in my name. Presuming that was the average, the annual total would be about $400 million. That’s a lot of money. Where is it all going?

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Originally posted by CUPE_Reformer:
Have you seen any evidence that the courts are generally fairer to DFR complainants than the labour relations boards? The costs of losing in the civil courts can be enormous. I hope that the following NDP bill will be passed:

Amendments to Trade Union Act

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All I know is what I have seen personally: the conduct of the BC Labour Relations Board and that of the BC Courts in judicial review. I’m not sure I’ll ever know what the judge was really up to in that first court judgement where I nominally won a small measure of justice. I can state unequivocally that our labour board is incapable of adjudicating DFR cases with any measure of impartiality or integrity. What I’ve concluded from the two latest court judgements against me is that the judiciary is prepared to use judicial review as a mechanism to subvert justice and extend to their quasi-judicial colleagues the same immunity they themselves enjoy.

In Nova Scotia currently, if DFR cases are heard by a court (and which court?) are they simply a form of tort (aka lawsuit) or something else? My limited understanding is that the only remedy a court can grant in a tort action is money, through a variety of “damages” (think O.J. getting sued after being found not guilty for murder).

If DFR is a tort, then I would presume the court could not order a new arbitration or anything that would constitute or might lead to substantive restitution (such as reinstatement). Part of the sales pitch for having the labour boards handling DFR cases was that they could order substantive restitution. I’ve examined the BC LRB’s record pretty thoroughly back to at least 1992 and talked to many experienced DFR applicants, and off-hand I can cite only two instances where an applicant ultimately received some benefit from going to the Board. In that time span the volume of applications rose from about 100 to over 200 per year (though I suspect it may have recently decreased somewhat – the statistics, which for years were published in print then went online are not up-to-date).

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The evidence you are asking about I presume is evidence that unions are spending their members dues in ways that do not benefit the membership.

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Evidence from the CUPE National website. 2001 Election irregularities

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The evidence you link to shows that the CUPE national office found some problems and is dealing with them as they should.

As for gbuddy's DFR complaint none of us know what the details of it are. It could very well be that the union decided that his case had no merit to it and therefore refused to pursue it...and gbuddy is unhappy about that.

Also, all unions produce audited financial statements that get presented to union conventions and/or are published in union publications.

[ 07 August 2005: Message edited by: radiorahim ]

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Also, all unions produce audited financial statements that get presented to union conventions and/or are published in union publications.

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In my opinion CUPE members (except NEB members, Trustees, and National Convention delegates) have no constitutional nor legal right to inspect either copies of the National Secretary-Treasurer's Reports or audited financial statements of CUPE National.

I have never seen any financial statements published in the CUPE National magazine Organize.
The latest National Secretary-Treasurer's Report on the CUPE National website which I saw was March 2004.

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Originally posted by radiorahim:
As for gbuddy's DFR complaint none of us know what the details of it are. It could very well be that the union decided that his case had no merit to it and therefore refused to pursue it...and gbuddy is unhappy about that.

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The initial points I was trying to make do not flow from the specific circumstances of one case. I have taken the time to investigate the circumstances of many DFR complaints and they are all different. However all complainants face the same issues.

Nevertheless, I am perfectly happy to share the details of my case with anyone. That’s because, unlike the employer, CUPE, and the LRB, I have nothing to fear from the facts.

Everything I have produced in terms of evidence and argument is filed in court, which I believe puts it in the public domain. The five LRB decisions and three court judgements are online. Here, in chronological order, are the URLS’s:

www.lrb.bc.ca/decisions/B202$2000.pdf
www.lrb.bc.ca/decisions/B448$2000.pdf
www.lrb.bc.ca/decisions/B108$2001.pdf
www.courts.gov.bc.ca/jdb-txt/sc/03/01/2003bcsc0119.htm
www.courts.gov.bc.ca/jdb-txt/ca/03/06/2003bcca0605.htm
www.lrb.bc.ca/decisions/B421$2003.pdf
www.lrb.bc.ca/decisions/B303$2004.pdf
www.courts.gov.bc.ca/jdb-txt/sc/05/04/2005bcsc0487.htm

Bearing in mind that my position is that, save for the first Supreme Court judgement, these are all absolutely absurd, they do nonetheless provide a pretty thorough chronology of the case. Read them if you wish and then draw your own conclusions about the merits of my case. My DFR submissions to the LRB and my affidavits to the courts have never been posted online, but I’d be perfectly happy to share them with anyone, and will likely get around to posting them in due course, along with a copy of CUPE’s long-delayed (that would be three years) response to my complaint.

The second part of your comment also warrants a response. Many if not most people interested in this topic should be aware of a book called “Winning Cases at Grievance Arbitration” by Jeffrey Sack, Q.C., one of very few, and I suspect still the best, on the topic. I discovered it shortly after being terminated and realizing that CUPE was going to do nothing for me.

I therefore had a very good idea of what CUPE should have been doing. The short extract from the first Supreme Court decision that was quoted in an earlier post focuses on the delay in appointing counsel. The arbitration took place seven months after I was terminated. The lawyer who was parachuted into the case at the last minute went into the hearing totally unprepared. (He was also terminally ill and from what I observed, clinically depressed, which might well explain his willingness to proceed in such a manner.) Read Jeffrey Sacks book. See what he says about proceeding with the investigation and preparation processes in a timely manner. Of course the three BC Court of Appeal justices who overturned the Supreme Court finding disagree with Mr. Sack on this vital point, so perhaps despite having spent a long and very active career in labour law he doesn’t really know what he’s talking about.

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I have no doubt that the union “decided” my case had no merit... In fact the labour boards grant the union's the right to settle unilaterally, without the member's agreement, at any time, and using any feeble excuse...

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Grievance arbitrations can be very expensive for local unions. Why do you think that CUPE Local 15 took your "meritless" grievance to arbitration?

[ 08 August 2005: Message edited by: CUPE_Reformer ]

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so you caught a half a break on the probationary period, screwed it up by not learning to do your job, plated hard-ass with the other employees, and got canned. the union went to bat for your sorry ass and got you another 3 months to get your shit together. you decided to fuck the union over for some cash, by playing a bullshit DFR beef.just my opinion ,of course.
i think i'll side with the LRB, and stand by my previous assessment.
did you ever brush up on the Novell?

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Any half-brain or quarter-wit would understand that even if you don't support gbuddy's plight, his extensive adventure within the labour system is very revealing and that the rot uncovered has long term ugly consequences for all.

Your local union agreed to take your case to arbitration. I didn't know that when I first posted. I thought they'd refused to take your case to arbitration.

Your CUPE national rep thought you didn't have a hope in hell of winning your case at arbitration and recommended that you "take the deal".

You refused to take the deal and so CUPE appointed an outside lawyer to represent you at arbitration.

You rolled the dice. You lost. That's life.

You have one small tiny point that has some merit. That being that CUPE appointed the outside lawyer at the last minute and that there should have been more time for the outside lawyer to prepare their case.

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Originally posted by radiorahim:
Your CUPE national rep thought you didn't have a hope in hell of winning your case at arbitration and recommended that you "take the deal".

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The CUPE national rep, Chris Merrick, was at the grievance committee meeting to present his assessment of my case and make a recommendation. I was there too and presented my own statement. That was the time for him to say I didn’t have a hope in hell. The local’s grievance committee, as you ought to know, has the mandate to decide whether or not a case goes to arbitration. They decided mine would (without any debate whatsoever) and they were never asked to review that decision again.

Your national union rep, knowing that it was a lost cause tried to get you some kind of deal which you refused to take.

All through the transcripts there are all kinds of references to you impuning the motives of everyone around you without a shred of evidence to back it up.

That's called being a jerk. Look it up!

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Grievance arbitrations can be very expensive for local unions. Why do you think that CUPE Local 15 took your "meritless" grievance to arbitration?

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However, according to the expert opinion above, the answer is that “most local unions will push your grievance to arbitration as a matter of course...even if they think its a complete lost cause.”

[ 09 August 2005: Message edited by: gbuddy ]

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Originally posted by gbuddy:

However, according to the expert opinion above, the answer is that “most local unions will push your grievance to arbitration as a matter of course...even if they think its a complete lost cause.”

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More specifically, "when a member is fired or loses money". Which is about right IMO - when a grievance is weak, it's far more likely to go to arbitration if it's a dismissal/termination grievance than most any other type of grievance.

When someone is fired or suspended without pay you push the grievance to arbitration on whatever grounds you can find...no matter how flimsy. Being fired is the equivalent of "capital punishment" in the grievance/arbitration system.

From what I've read of your case, you were on probation, couldn't really do all of the aspects of the job when you were hired...but the employer gave you a chance to prove your stuff. Not too many new hires catch a break like that...especially in IT.

At the end of the probation the employer determined that you hadn't caught on...they also alleged that you didn't get along with your co-workers and decided to can you.

Given the facts of your case, if I'd been in your staff rep's position I would agree that your case was weak...and would have tried to cut a deal.

Deals are cut all the time because arbitrations are so damned expensive and time consuming for both the union and the employer.

Sacks might have written a great grievance/arbitration textbook, but unfortunately the world doesn't operate according to textbooks.

Over the years I've seen some unions seriously drop the ball on grievance/arbitration, human rights and other types of cases...this isn't one of them.

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Originally posted by siggy:
Any half-brain or quarter-wit would understand that even if you don't support gbuddy's plight, his extensive adventure within the labour system is very revealing and that the rot uncovered has long term ugly consequences for all.

Before going off half-cocked maybe take the time to actually read the "evidence" of a labour structure gone corporate.

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Originally posted by radiorahim:
Well I'm not a lawyer...but I do have some 30 years of involvement as an activist in the labour movement and held various positions over the years in a couple of different unions so I do speak from a bit of experience.

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Thirty years is a lot of time to master the trade. Have you ever shared any of that expertise with the other people on this forum? What are some of your more noteworthy accomplishments as a labour activist?

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I don't lay any claim to have mastered anything. Just a regular rank & file activist who's been elected to a number of unpaid positions over the years and served on a variety of unpaid committees. I made whatever contributions I felt I could make thats all.

As mentioned before I've seen some times where members have had legitimate complaints about their unions...situations involving sexual and personal harassment, allegations of racism, health & safety issues that were improperly dealt with. I've also seen situations that are total bullshit.

Sorry, have to go now as I've gotta get up at 03:00 to earn a living. I'll be back tomorrow.

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That's what I thought. You can't recount any accomplishments because there haven't been any.

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Draw whatever conclusions you want to.

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As mentioned before I've seen some times where members have had legitimate complaints about their unions...situations involving sexual and personal harassment, allegations of racism, health & safety issues that were improperly dealt with.

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In my opinion few unions have internal appeal processes for deciding which grievances will proceed to arbitration. The unpopularity of some members and local union politics can sometimes cause some members' legitimate grievances to be improperly dealt with.

Do you have any union internal appeal process suggestions for minimizing the above abuse?

[ 10 August 2005: Message edited by: CUPE_Reformer ]

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In my opinion few unions have internal appeal processes for deciding which grievances will proceed to arbitration. The unpopularity of some members and local union politics can sometimes cause some members' legitimate grievances to be improperly dealt with.

Do you have any union internal appeal process suggestions for minimizing the above abuse?

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The union with the best internal complaints process that I'm aware of is the CAW where they have an outside "ombudsperson" for lack of a better word to deal with member complaints.

There may be other unions with this sort of process but I can't name any off the top of my head.

With other unions its a matter of figuring out at which level of the union the decision is made to either go forward or not with a grievance. In some unions this is done at the local union level while with others it may be done higher up.

In many unions the best initial avenue of appeal would be at a local general membership meeting. The local general membership could compel the executive to go forward to arbitration with a grievance.

Labour relations boards generally do not interfere with the internal politics of a union...as long as whatever decisions the union makes are within the bounds of the law.

It may be understandable that in its formative years the labour movement felt compelled to quash anything that looked like dissent. The nascent movement had to present a solid common front to contend with employers who held all the cards. However, it appears that in later years, successive generations of labour leaders lost their commitment to the cause and the result today seems to be trade unions that are run as private businesses with no interest in serving or representing their members.

The regime that has evolved to sustain this deception is a hierarchy of corruption, at the top of which sit the various labour boards. These agencies exist to “maintain the labour peace”. Their structure and mandate is incompatible with any legitimate concept of justice. They do not adjudicate anything. They are just glorified horse-trading palaces where the labour relations community meets to divide up the spoils.

Union members, the vast majority of whom did not chose to become members, have no legal rights whatsoever. While employers have absolute control over their lives, employees are entirely dependent on the unions to represent their interests, both collectively and individually. It is a matter of public record that collective interests are not being served, and that the “movement” is in decline in every respect.

I would therefore argue that it is essential that individuals now do everything they possibly can to assert themselves. As the law has limited us as individuals to challenging the regime before the labour boards, I believe that is where the toughest and most consequential battles are going to be fought. Thus far, the legal profession has shown no interest in assisting us. In fact only “labour” lawyers deal with matters that go before the labour boards, and they are all work for unions and employers.

However, self-represented litigants are making progress. On the day I stood before three justices of the BC Court of Appeal, facing lawyers for three powerful bureaucracies, another Court of Appeal justice was making a presentation to the annual conference of the BC Coalition of Administrative Tribunals (liberally attended by labour board Vice Chairs and staff) entitled “Surviving the Unrepresented Litigant”. I subsequently wrote to that justice and requested a copy of his paper. He wrote back and refused to provide one, saying such materials were not intended for public consumption.

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Originally posted by gbuddy:
Union members, the vast majority of whom did not chose to become members, have no legal rights whatsoever.

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However, self-represented litigants are making progress. On the day I stood before three justices of the BC Court of Appeal, facing lawyers for three powerful bureaucracies, another Court of Appeal justice was making a presentation to the annual conference of the BC Coalition of Administrative Tribunals (liberally attended by labour board Vice Chairs and staff) entitled “Surviving the Unrepresented Litigant”. I subsequently wrote to that justice and requested a copy of his paper. He wrote back and refused to provide one, saying such materials were not intended for public consumption.

I believe that is a strong indication of the profound concern the judicial and quasi-judicial communities have that ordinary citizens are making progress in seeking justice.

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"The wisest thing to do with a fool is to encourage him to hire a hall and discourse to his fellow-citizens. Nothing chills nonsense like exposure to the air."

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Originally posted by CUPE_Reformer:

gbuddy:

Can you provide any other examples of how self-represented litigants have been making progress?
Maybe the members of the above BC Coalition consider self-represented litigants to be ignorant nuisances.

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While I am sure there are many more self-represented litigants before our various administrative tribunals and courts than the public would imagine, they receive virtually no exposure.

How many of them have won anything of significance? In a recent newspaper article the judicial community was quoted admitting (once again) that it doesn’t even have any solid data on how many people represent themselves in court. I believe that’s because it’s an issue they don’t want to look at.

An important point to keep in mind is that most legal disputes are resolved before they get to court, or before a formal decision is rendered. Most professional litigators probably have far more experience arranging these settlements than they have actually winning or losing a case in court. The labour lawyer representing CUPE in my case had never been in court before he met me!

How often are litigators willing to negotiate with someone who doesn’t have a lawyer? How many would negotiate a settlement in good faith? If the job of litigators is just to broker deals, then they need have no conviction about the merits of their client’s case. Self-represented litigants on the other hand are people who have very strong convictions, and the more effort they put into fighting their own battles the less inclined they are to sell out. The lawyers and adjudicators know this.

I do know other individuals who are continuing to challenge the system. The system itself is so committed to self-preservation that it when it sees such people making progress it will bring to bear every conceivable instrument to frustrate that effort. As my own experience has demonstrated, there are countless ways to effect delay, which is probably the most effective strategy. Some people have suggested that the fact my case has already occupied the time of sixteen adjudicators reflects poorly on my character and motives. How absurd!

Since I found the Members for Democracy web site, which enthusiastically discusses these kinds of issues, I have seen ongoing posts and articles about various cases being pursued without lawyers. Off hand I can’t recall any that have yet been concluded. However, I think some significant victories are not far off. In the BC Labour Board’s notorious Judd decision, the Chair and his two colleagues acknowledge that self-represented litigants may be getting more sophisticated. They then go on to claim that we don’t understand the extremely limited extent of a union’s Duty of Fair Representation.

Here (with some added emphasis) is a real gem, paragraph 99 from the BCLRB’s B63/2003 decision of February, 2003:

“While trying to be accessible to individuals who are unrepresented is very important, simply passing these types of complaints through to the next step without fully engaging the Section 13 requirements is, in our view, inconsistent with the legislative emphasis of that section. Despite the Board's existing statutory ability to dismiss any complaint or application at any time for failure to make out a prima facie case (Section 133(4)), the Legislature has set a special mandatory threshold for Section 12 complaints. It has established a minimum that must be done before respondents are put to the difficulty and expense of being engaged in litigation. The Legislature has in fact emphasized the requirement of sufficient evidence of an apparent contravention at two points in the Section 13 process for Section 12 complaints. That legislative policy should be given effect.”

By "unrepresented" the Board’s Chair, Brent Mullin and his colleagues Sharon Kearney and Jan O’Brien are referring to the vast majority of Duty of Fair representation complainants. They claim that the Labour Code contains a generic “prima facie” provision. Look more closely at the words. We know the plain translation of “prima facie” is “on first view” yet Mullin & Co. claim it allows them to dismiss applications “at any time”. Regardless, Section 133(4) doesn’t in fact use the term “prima facie”, and since they succeeded in getting it removed in 1996, neither does Section 13.

Is there any evidence at all to support the claim, made no less than four times in this one paragraph, that the BC legislature was responsible for creating two distinct “prima facie” standards?

The best place to look (in fact the authoritative place) is the public record of the legislature’s debates. Section 13 was quite extensively debated when it was introduced in the House on November 26, 1992. I don’t think there’s any mention of “sufficient evidence of an apparent contravention” in this record. In fact I believe this was the only time the House ever debated this provision and that Mr. Mullin himself did not get around to penning the “sufficient evidence” phrase until two years later, in the Board’s “leading” Terry Norris decision of 1994.

Do labour board adjudicators have the right to invent new language after the legislature has debated and passed a statutory provision? Do they also have the right to claim that their own words are the words of that legislature and that those words indicate the intent to create a double standard?

This kind of behaviour is an affront to democracy. In fact there is a legal term for it. It’s called “contempt of parliament” and there is a process for dealing with such cases.

[ 29 August 2005: Message edited by: gbuddy ]

[ 29 August 2005: Message edited by: gbuddy ]

In your comments about the labour relations regime, in fact it was created specifically to take the issues in and around collective agreements out of the court system, and establish a level where these disputes could be settled or arbritrated in a more cost effective manner. Individual rights (those not covered under a "Collective Agreement") pretty much aren't dealt with by the LRB, they are dealt with at the Labour Standards Branch.

I will admit that I haven't taken the time or effort to read your exhaustive references to your specific case, because frankly, if everyone who had a problem with their union on some level approached it by airing it out in a public domain, the internet would probably become bogged down with bs. Do yourself a favour, file your Section 12 if you haven't already. And if you have and the LRB found against you, hey, that's the game and how its played. If you're independently wealthy, you can hire a lawyer and attempt to pursue the action further.

Of course, CUPE 15 has multiple worksites I'm sure, and if you have some compatible skills perhaps they can work with you to help you find gainful employment where you're not like a fish out of water. Of course, that is if there's a willingness to do so on their part after the public "golden shower" you've administered to them. Realistically, do whatever you need to do to get over this experience and move on. It's not healthy to fight the fights against many foes.

quote:

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Originally posted by keglerdave:
Gbuddy...

Of course, CUPE 15 has multiple worksites I'm sure, and if you have some compatible skills perhaps they can work with you to help you find gainful employment where you're not like a fish out of water.

Whatever course you choose to take, I wish you well.

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Airing such suggestions here though is not likely to have any effect. If you are serious, perhaps you would consider contacting CUPE Local 15 President Paul Faoro (since I know he won’t talk to me, except through a lawyer).

My own suggestion for resolving this matter is one that is very simple and more appropriate. It is common knowledge that even before the arbitration hearing Local 15 stumbled into in March 2000, they were blaming the CUPE National staff for getting them into an untenable position by a) doing no preparation for the hearing, and b) refusing at the last minute to go through with it. It was Local 15’s Secretary-Treasurer who was compelled at the last minute to search for a substitute advocate and pure luck (in retrospect bad luck) that she found anyone at all. Under the circumstances (having already wasted more than six months) they should have arranged for an indefinite adjournment so that the appropriate preparation could be done. That’s just plain common sense.

Since I had been expressing my concerns about the lack of preparation for months, it is Local 15 that must accept the responsibility for everything that has since transpired. Of course, among themselves they can continue to blame the National organization. However, what they can and should now do is write to the Labour Board and admit the truth. They failed to fulfill the Duty as prescribed by the Code. The Board will then be compelled to re-open the case (and they could not claim that the Code does not allow such an action, because they re-open cases whenever they feel so inclined).

The Board can then call all parties into a mediation session (also a standard procedure). The remedy for a situation of this sort is for the Board to order a new arbitration with the grievor having “independent standing”. That way I have control over my own fate and can’t blame anyone else for the outcome. The City knows as well as I do the case I will present and I believe they will therefore acquiesce to reinstating me. All of that can be accomplished in no time and without any significant cost.

That’s how the Labour Board should have dealt with this matter in the first place.

quote:

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Originally posted by keglerdave:
Gbuddy...

I will admit that I haven't taken the time or effort to read your exhaustive references to your specific case, because frankly, if everyone who had a problem with their union on some level approached it by airing it out in a public domain, the internet would probably become bogged down with bs. Do yourself a favour, file your Section 12 if you haven't already. And if you have and the LRB found against you, hey, that's the game and how its played. If you're independently wealthy, you can hire a lawyer and attempt to pursue the action further.

It's not healthy to fight the fights against many foes.

---

Nothing disappoints me more than seeing the vast majority of people accepting the propaganda of the self-anointed elite. A piece of advise I received from a CUPE shop steward when I was seeking help in defending myself from the employer’s campaign of harassment was that I needed to learn to behave like a “peon”. That was the word used: the Mexican term for peasant. And this advise came from a representative of the largest union in Canada.

I’ve been in court a number of times and witnessed the undisguised contempt that the legal profession, including the judiciary, have for ordinary citizens. That we pay though our taxes for the legal system in their view doesn’t entitle us to use that system. When we try to make use of the system, we are punished with bullying behaviour, absurd decisions, and legal costs.

If I was “independently wealthy” I wouldn’t need to make any effort on my own behalf. I’d be a member of the elite and could buy justice just the way they do. A key conclusion I have reached is that until we effect major reform of the entire Canadian judicial / quasi-judicial regime, we are going to make precisely zero progress in resolving any other social or economic problems.

On facing the bench I received a not very subtle message that the courtroom belongs to the presiding judge(s). Well the courthouse belongs to us, the people. And I’m not prepared to continue paying for it unless I and my fellow citizens have the same access as corporations, unions, and government bureaucracies.

Now tell me that’s bs!

[ 31 August 2005: Message edited by: gbuddy ]

[ 31 August 2005: Message edited by: gbuddy ]

quote:

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The conundrum as I see it is that the labour relations regime has demonstrated and continues to demonstrate that the Duty of Fair Representation is a sham. The evidence is so substantial and copious that it is undeniable. In order to maintain this fraud the regime has placed strains on the legal system that it simply will not sustain. Our legal system was not built to tolerate such injustice indefinitely, and I believe the determination of the regime to continue operating in this fashion will soon have severe consequences.

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[ 06 April 2006: Message edited by: CUPE_Reformer ]

quote:

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Originally posted by gbuddy:
The conundrum that I spoke about at the beginning of this thread is that the labour relations regime believes individual rights for employees are incompatible with collective rights. I would argue that in the real world you cannot have one without the other, because the result is either anarchy or tyranny.

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Your comments above linking anarchy and tryanny are very telling. Another area of politics and law you apparently know very little about but fell free to expound on.

quote:

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Originally posted by kropotkin1951:

The Labour Board is not empowered by statute to oversee whether unions do their jobs well only that they do their jobs to a minimum level. The reason is that if you are truly being screwed you then can go to your fellow workers and union members and get them to deal with the union officials who are not providing services.

I think that it would be good for the trade union movement if an orgainization like the BC Fed could hire a Workers Obudsman to look at how individual members are represented. Unfortunately as soon as such an ombudsman released a ruling against an disgruntled person like you they would be tarred with the same brush you so liberally smear everyone with.

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The Labour Boards are not really adjudicative agencies. They are nothing more than glorified horse-trading palaces.

Your suggestion that the BCFed and similar organizations fund an Ombudsman office has some merit. If it were run competently and fairly then there would be very few DFR complaints being litigated. But of course you're not serious, as you demonstrate with your very next sentence.

[ 06 April 2006: Message edited by: gbuddy ]

quote:

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The Labour Board is not empowered by statute to oversee whether unions do their jobs well only that they do their jobs to a minimum level. The reason is that if you are truly being screwed you then can go to your fellow workers and union members and get them to deal with the union officials who are not providing services.

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What do you think about the following? 220+ CUPE Local 15 members did not receive strike pay

[ 06 April 2006: Message edited by: CUPE_Reformer ]

Another little piece you seem to have missed out on is that if there was no union the boss would have fired your ass out the door and you would not have any recourse because you were a short term employee. A non-union employer can fire anybody they want subject only to giving them enough notice or money in lieu of notice. A three month position even if you convinced a judge it was an unjust termination would likely lead to very little in the way of a monetary judgement.

Your union looked at your case and determined it was a loser and that the collectives money should not be wasted. You disgreed and have spent an unbeleivable amount of time and energy on this. Maybe you should have taken some Novell upgrading courses and a course on interpersonal relations so you could change the attitude that you seem to have that no matter what everyone else thinks you are right.

Unions are run by people and that is their greatest weakness.

[ 06 April 2006: Message edited by: kropotkin1951 ]

quote:

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Originally posted by kropotkin1951:
Unions are run by people and that is their greatest weakness.

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Every dime of that money was spent to avoid accountability and pervert justice.

Interestingly the statutory notice issue you have raised is yet more evidence proving my case. The people who arranged my termination had no idea what they were doing. They did not ensure that I received the notice (obviously since the termination was conducted as an ambush) or the money in lieu. The CUPE officials and staff never picked up on that. What it meant was that the employer was bound to rely on cause as the basis for dismissal, but in the end they failed to do that.

Simply by reading the statutes I was able to figure that much out.

quote:

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Originally posted by CUPE_Reformer:
The serious lack of labour education amongst rank and file union members is the greatest weakness of unions.

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What would it take to encourage, to inspire the majority of working people to begin educating themselves about the labour and employment regime? What I observed in the large unionized bureaucracy where I immediately faced difficulties was that most employees were both chronically disgruntled and apathetic. This being a municipal government, I think most of them must have had little reason to believe their employment was at risk, as long as they just kept their heads down and stayed off of management’s radar. By the same token though what they all faced was years of boredom and frustration, and no prospects of any career advancement (or of any career at all). The most contented employees appeared to be those who had made a life for themselves outside of the office and had accepted that the only reason for sacrificing eight hours a day, five days a week was to get paid.

With that attitude it is hardly surprising that no one was interested in getting involved with the union. Only people like myself, who for one reason or another had fallen under the wheels of the bureaucracy, had any reason to approach the union. In fact when I first learned that the agenda was to get me fired, I initially approached HR (with the inevitable result) and then turned to a manager (not my own of course) for advice. His reaction was rather telling. He didn’t want to hear that I had a problem and simply advised me to seek help from CUPE.

If I had known at that point what I know today about the rights of unionized employees, I am convinced I could have easily thwarted the agenda to have me fired. At that point I didn’t know anything. I didn’t know what a shop steward was, what a grievance was, or how a union local or national organization was structured or operated. I didn’t know anything about collective agreements, union constitutions, labour codes, employment standards, labour boards, how labour arbitration is conducted, etc. etc.

Today I know enough about all those things that I could easily look out for myself in a unionized workplace. However, it has taken me years of trial and error self-advocacy to learn these things.

The best possible use of the dues being paid by union members would be to ensure they all receive the same education I had to pay for myself.

Here’s one simple suggestion. The labour statutes should contain a stipulation that all new employees receive a package of information thoroughly explaining their rights and the mechanisms that exist to protect their interests. It should include a standard information brochure prepared by the government and a reference to a website that is more comprehensive.

Both the union and the employer must be held accountable for ensuring every new employee receives that package at the time they are hired, and if it can be subsequently demonstrated that they did not, the employee must be granted the appropriate consideration (e.g. waiver of all time-limits for filing DFR complaints).

[ 07 April 2006: Message edited by: gbuddy ]

quote:

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Originally posted by gbuddy:
Only people like myself, who for one reason or another had fallen under the wheels of the bureaucracy, had any reason to approach the union.

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quote:

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Originally posted by gbuddy:

The best possible use of the dues being paid by union members would be to ensure they all receive the same education I had to pay for myself.

Here’s one simple suggestion. The labour statutes should contain a stipulation that all new employees receive a package of information thoroughly explaining their rights and the mechanisms that exist to protect their interests. It should include a standard information brochure prepared by the government and a reference to a website that is more comprehensive.

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quote:

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Originally posted by Rufus Polson:
Although I've found it hard to make out much about other things you've said, this is not a bad idea.
. . . . .
Making the information easy to get is important for sure.

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There are lots of simple initiatives of that sort that would make a huge difference, but they’ve never been pursued because they would impede rather than further the agenda of the union and labour relations elite. Making sure people are as uninformed as possible has always been fundamental to their strategy.

Evidently you believe your local is providing its members with good representation. Perhaps that is actually the case, but you’ll forgive me if I remain a bit skeptical in view of what I have personally witnessed and heard from countless others. So, how about providing us with your local’s URL so we can take a look for ourselves. In exchange I offer you www.cupe15.org, the site finally launched by my former local sometime after they had disposed of me. I’d be happy to tell you what I think that web site reveals about CUPE Local 15.

[ 08 April 2006: Message edited by: gbuddy ]

[ 08 April 2006: Message edited by: gbuddy ]

quote:

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The serious lack of labour education amongst rank and file union members is the greatest weakness of unions.

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Its not like there's a lack of labour education programmes in unions. There's plenty. In unions that I've had experience with they're practically begging members to take the programmes.

Then on top of that the CLC, provincial federations of labour and the labour councils all do educational programmes as well. Some of them cost but they're usually not very expensive and often the local union will pick up the tab.

Certainly the policy of both local unions I've belonged to was to pick up the tab for any member that was taking a labour education course whenever there was a cost involved.

quote:

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Both the union and the employer must be held accountable for ensuring every new employee receives that package at the time they are hired, and if it can be subsequently demonstrated that they did not, the employee must be granted the appropriate consideration (e.g. waiver of all time-limits for filing DFR complaints).

---

Both collective agreements I've been covered under in my lifetime had provisions that required the employer to give new hires a copy of the collective agreement and to introduce them to their union representative. Employers would constantly get pissed at me (I didn't care) because I'd spend a long time at those meetings with new hires explaining to workers that they had rights.

quote:

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radiorahim: With my previous employer in particular I used to regularly file grievances against the employer for failing to provide new hires with a copy of the collective agreement and/or introduce new hires to the union.

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quote:

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Originally posted by radiorahim:

Both collective agreements I've been covered under in my lifetime had provisions that required the employer to give new hires a copy of the collective agreement and to introduce them to their union representative. Employers would constantly get pissed at me (I didn't care) because I'd spend a long time at those meetings with new hires explaining to workers that they had rights.

With my previous employer in particular I used to regularly file grievances against the employer for failing to provide new hires with a copy of the collective agreement and/or introduce new hires to the union.

---

The hiring process for me was a bit unusual, although that’s often been my experience working in the rather odd world of I.T. In this case, I later discovered, it was largely due to the same office politics that subsequently resulted in my termination. I can only recall one actual interview with my future manager (though I was "invited" to attend another one outside of the office conducted by my three future coworkers). That’s some background about the environment, not directly relevant to the union question.

What I learned from these meetings was mostly about the office politics. The chronic hostility between the unionized staff and the administration (and very tellingly between the members of many of the functional groups) was discussed without any reference to CUPE, as if the union effectively didn’t exist. The bureaucracy at the City is notoriously dysfunctional, but I needed a secure income and the other offer I had was with a high-tech firm that I knew would not survive the imminent tech meltdown.

In the job application process itself I do not recall any mention of CUPE whatsoever. I think I was vaguely aware that there was a union, but since no one else broached the subject it wasn’t an issue for me. The I.T. department had about 100 employees working under four managers (plus two who had no staff) and a director. I made a point of getting to know most of them quite quickly (interaction with everyone was officially part of my job) and I do not recall any of them ever mentioning the union in the nine months I was there.

Sometime after I was hired I was given a copy of a collective agreement, but there was no context. It was up to me to figure out what it meant and there were no shop stewards in I.T. or evidently taking an interest in our department. Sometime after that I remember reading parts of the C.A. and discovering that while the standard probationary period at the City was 6 months, there was a provision that stipulated a 12 month probation period for certain employees – mostly those with technical responsibilities – which clearly included me and virtually everyone else in I.T.

The probation period had been specifically discussed in the interview. I’d worked for quite a few previous employers and the probation period had invariably been 3 months. In the interview it was explained to me that I would have to accept a 6 month probation period. Not 12 months; 6 months. That’s also what it said in the written job offer, which was later attached to my DFR complaint. The manager who prepared that offer and signed it, and who subsequently engineered my termination, was the son of a former City Manager (and UBC Professor Emeritus), so its inconceivable that he did not know the truth. He later relied on the claim that the probation period in the offer was a “mistake”.

I learned from a terse comment made in the arbitration hearing that the issue of the “mistaken” probation period had been discussed by him in a meeting with HR in March. In May, on the afternoon of the last day of my purported 6 month probation, I was dragged into a meeting by this manager and the coworker who had decided I had to be eliminated, and severely criticized. I was told that the probation period would be extended for another 6 months to give me a chance to prove myself. My reaction to this was such that the manager “relented” and said he would make it an additional 3 months. (In his award the arbitrator later ruled that I had accepted this offer, but then said that if I had not I would have been terminated on the spot).

The new deal (along with all the allegations against me) was put in writing and dropped on my desk following the weekend. The last sentence said that I was at risk of being terminated. By then I knew that was the agenda. I was later terminated, again without warning, two or three days before the end of the three months.

There’s more to this particular account, but that should give some sense of what was going on. Now the obvious question is where the hell was CUPE in all this? Totally missing in action! And many months after I was fired and finally met with her what did CUPE’s staff lawyer, Conni Kilfoil, have to say about this. Her attitude was the employer can do whatever they want, with complete impunity! What was CUPE’s role in the arbitration hearing? They didn’t have a role. No one from CUPE showed up, and the guy they parachuted in knew nothing about me or my case and had never before had any dealings with Local 15. The arbitrator by the way was (and is) a tenured professor of law from UBC (just a coincidence I’m sure).

Now that’s just a small part of the whole story, which was quite thoroughly documented in a 50 page affidavit I provided to the BC Supreme Court. As I’ve said before, I could have successfully defended myself if I had known then what I know now.

That ought to adequately explain how I have reached the conclusions I have about the trade union movement. My assessment of CUPE is based on copious first-hand experience, and I have heard numerous similar accounts about CUPE and other unions. So I think the betrayal I suffered is a very common scenario.

For anyone who is wondering what I expect to achieve by talking about this, my agenda was posted online last November in an Open Letter to the BC Legislature.

[ 10 April 2006: Message edited by: gbuddy ]