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Board upholds Loblaw union
Endorses deal on new superstores

Wages lower than at existing stores

DANA FLAVELLE
BUSINESS REPORTER

The union representing 15,000 Loblaws employees acted properly when it struck a different deal for the retailer's new superstores without consulting the membership, a labour board has ruled.

The United Food and Commercial Workers union Local 1000A did the best job possible for members, Ontario Labour Relations Board member Brian McLean said in a ruling issued yesterday.

"The deal is a good one under the circumstances, particularly for current employees," McLean wrote of the pact, under which the union agreed to lower wages and benefits at the new superstores in exchange for the automatic right to represent the employees of those stores. Rates at existing stores were untouched by the deal.

Union member Ben Blasdell challenged the deal, saying it amounted to concessions bargained behind the membership's back.

"It's a real blow to working people when you can't even vote on your own contract," Blasdell said yesterday. He said he had not yet seen the decision and declined to comment further. Blasdell is the bakery manager in a Collingwood Loblaws store.

His legal representative at the one-day board hearing in October called the ruling "absolutely outrageous" and vowed to continue fighting.

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Link: The rest of the story.

Note also: In a curious display of timing, the day before this decision was announced, Loblaws indefinitely suspended Blasdell, a bakery manager in Collingwood and the lead plaintiff in this Duty of Fair Representation complaint. It remains to be seen whether the union, the defendant in Blasdell's OLRB proceeding, will now represent him in a grievance against his employer.

All in all, I am deeply disturbed by this turn of events.

Here in the U.S., Loblaw's apparent insistence that the union unilaterally adopt contract changes without a vote of its membership would be an unfair labour practice under the Supreme Court's NLRB v. Borg-Warner decision, which held that internal union ratification procedures are not a mandatory subject of bargaining. (356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958)). I don't know if the case law is the same in Canada. I do know that the union here didn't bother to file a ULP, instead it simply accepted the employer's demand and unilaterally amended the contract, without even informing its members until the changes were a fait accompli.

So Blasdell goes to the Board and says no, the union should not be allowed to do that, the union has failed to fulfill its duty to represent the members. But the Ontario Labour Relations Board disagrees, saying secret contract amendments with no ratification procedure is totally hunky-dory behavior for the union to do. And at the same time, the company surreptitiously tries to get rid of the complaining member all together!

What the heck will this mean for all other Ontario union members? They can strike and fight to get a fair collective agreement; vote, after careful deliberation, to ratify it; and then six months later, the company and union secretly cut a deal to change it and the members are totally cut out of the loop!

I used to really admire the UFCW. It has done great things to reach out to their younger members, more than any other union I know of. It has stood up for Ontario farm workers, even though the Harris government tried to make it illegal for those workers to even be represented.

I'd like to believe that what is going on at Loblaws right now are the actions of a rogue local which has gotten too close to the company. But unless the larger union does something to step in and stop them, they are single-handedly going to undermine collective bargaining standards for the entire industry.

BTW - if anyone would like to make a donation to help Mr. Blasdell pay his bills while he is fighting the company and the union, and left at least temporarily out of work right before Christmas, there is info on how to do it here.

[ 11 December 2003: Message edited by: robbie_dee ]

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Is Blaisdell going to take this from the OLRB and into the court system? If so, sue their buns, I say!

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It is almost guaranteed that the partners will be hell bent and financially able to drag the process out until Ben bleeds.

Ben's fight is about all of us, he needs our support. Does anyone else have some ideas about how best we can do that?

[ 12 December 2003: Message edited by: siggy ]

The UFCW has issued a press release with its side of the story about this OLRB case.

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TORONTO, Dec. 15 /CNW/ - The union representing 15,000 Ontario Loblaws workers says a labour board ruling has "completely vindicated" its decision to strike a deal with Canada's largest retailer to protect thousands of jobs.

In a December 8 ruling on a complaint by a Loblaws worker about the union's agreement to amend the labour contract in mid-term, board vice chair Brian McLean wrote that the Board saw "nothing unwise or improper with the union's decision."

"We knew we did the right thing to protect our members' jobs and contract rights," said Kevin Corporon, President of UFCW Canada Local 1000A.

"It is gratifying that the Labour Relations Board agreed with us in such positive terms. The board's decision is a complete vindication of our strategy."

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The dissident Members for Democracy, who supported Blasdell's DFR complaint, have posted the full text of the labor board decision, as well as a point-by-point analysis of the decision.

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Vice Chair McLean's decision is filled with virtuous wisdom insofar as the continued disempowerment of working people is concerned. It goes beyond the same-old-same-old DFR-dumping that is a daily event at LRB's across this country. Maybe that's because Blasdell's DFR complaint was not the average DFR (most DFR complaints deal with a union refusing to file a grievance on behalf of a member - Blasdell's complaint dealt with a union conspiring with an employer in pursuit of profit in ways that deprived union members of their most fundamental rights) and so the Vice Chair felt compelled to go the extra mile.

Whatever his reasons, Vice Chair McLean has taken the desecration of workers' rights in a bold new direction. His lengthy decision provides employers and their union partners with legal support for the subjugation of workers rights in favour of business interests. It provides support for the right of union officials to engage in illegal activities to the detriment of workers and lays out in stark and unambiguous terms the reality that - once a union is certified - it can do what it wants without regard to the wishes of its members.

The decision is a mass of spurious reasoning, clumsy contradictions, creative interpretations and innovative spins on the issues McLean was adjudicating. It provides a virtual "how to" guide for other Vice Chairs who must - with godlike virtue - keep the world safe for the corporate masters and their union overseers.

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I'd be really interested in hearing what some of the other lawyers and union people on this site think about what is going on.

[ 16 December 2003: Message edited by: robbie_dee ]

But this angers me SO MUCH! I think a lot of people on the left are already jaded with many of the unions, and events like this don't help.

I think that the issues raised here affect anyone in a union. For that matter, they also affect pretty much anyone who buys groceries, which is pretty much all of us.

You asked:

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Is it possible for the membership to vote on changing unions? I've never been in a union, so I don't know much about the decertification/certification process.

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Well, here's the deal. It is possible for the workers to change unions, but exceedingly difficult. The law provides an "open period" for workers to petition to decertify their union, and if they wish, replace it with a new one, in the last three months of any collective agreement that is up to three years long.

For collective agreements that run for over three years, there is an open period for the three months prior to each anniversary date of the contract, once the first three years are up.

Here, the Loblaws agreement here is a six year deal. It's first open period was in April, May and June of 2003. There will be open periods again in those same three months of 2004, 2005 and 2006.

In order for a decertification or displacement petition to be recognized by the Board, the petitioning workers must first demonstrate the support of 40% of the bargaining unit. Then the Board comes in and holds a vote between the old union, the proposed new union (if there is one), and/or no union. Majority rules.

The problem is that it is exceedingly difficult for a worker or group of workers, without significant resources, to successfully circulate a petition for a new union in very large bargaining units. The Loblaws bargaining unit includes at least 10,000 members across the province of Ontario. So a worker circulating a petition to change unions would have to get the signatures of 4,000 of his co-workers before he could trigger a vote. Those signatures would be particularly hard to get when, as suggested above by what has happened to Ben, the workers may be afraid of reprisal from both the union AND the company for their participation in such an effort.

What's particularly interesting is that the "secret deal" between Loblaws and the UFCW here was announced in late June, 2003, just as the open period for that year was expiring. This was one of the concerns that Blasdell raised in his DFR.

The OLRB vice-chair, however, dismissed this allegation (at paragraphs 86-7) by saying, simply, that it was irrelevant whether or not this deal precluded the members from decertifying the union, because it would have been practically impossible for them to do so in any case.

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86. It is apparent to me that it never occurred to Local 1000a that employees might at that stage be successful in terminating the union's bargaining rights.

87. The difficulty of the challenge facing any employee who wished to terminate bargaining rights cannot have escaped the leadership of Local 1000a. Indeed I am nearly certain that the prospect of termination of bargaining rights was so difficult that it would not have occurred to the Local at all. Let alone be a consideration in the trade union's timing of informing employees of the deal.

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The MFD comments on this here.

[ 16 December 2003: Message edited by: robbie_dee ]

However, unions affiliated with the CLC have made an agreement with not to "raid" one another's bargaining units. So even if there is enough support among the Loblaws workers to change unions, they will have to find one that will take them.

Essentially, if the disgruntled workers are able to organize themselves into a significant enough force, they can then do one of several things:

(1) Convince a CLC union to break the no-raiding pact. This is what the CAW did four years ago when it raided eight Ontario SEIU locals, at the request of the then-presidents of those locals. The SEIU International trusteed the locals in response and kicked up a big fuss that I think might dissuade the CAW or other unions from trying that again. OTOH, the IWA seems to be suffering few consequences for going after CUPE's health care bargaining units in B.C., and there the IWA is working in conjunction with an anti-labor government in doing so.

(2) Go through the CLC "justification" procedure to change unions. The CLC no-raiding agreement doesn't outright prohibit changing between CLC unions, but it does require a much longer and more involved arbitration procedure before such a change is permitted. I don't know anything about how often this is done, or how well it works.

(3) Find an unafiliated union to join. This is a difficult proposition because there aren't a lot of major unions around right now which are unafiliated, and many of the ones that would fit the bill, like CLAC, are widely considered to be "rat unions" (i.e. management-dominated).

(4) Form their own independent union. This is problematic because they run into the no resources problem again. Although it's been known for independent unions to form, displace a CLC-affiliated union in a bargaining unit, and then later "merge" with another CLC union, thus circumventing the no-raiding pact.

(5) Go without a union altogether. I am not sure what they gain by that, although I understand that some of them are now arguing that they don't lose anything by it, either.

Of course, there is also always option #6:

(6) Stay and fight within the UFCW. Run candidates for office, petition the national or international offices for changes, etc. This only works if your union is at least moderately democratic or responsive to its members. Once again, I'm not sure how well this would work inside the UFCW. I do know there isn't a great record of rank and file insurgencies toppling sitting UFCW union presidents, at least, not in any of its larger grocery locals. But there's always a first time.

On the narrower issue of the DFR itself, Blasdell also still has the opportunity to appeal the Board's decision. Money, as always, is a factor, though.

[ 16 December 2003: Message edited by: robbie_dee ]

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86. It is apparent to me that it never occurred to Local 1000a that employees might at that stage be successful in terminating the union's bargaining rights.
87. The difficulty of the challenge facing any employee who wished to terminate bargaining rights cannot have escaped the leadership of Local 1000a. Indeed I am nearly certain that the prospect of termination of bargaining rights was so difficult that it would not have occurred to the Local at all. Let alone be a consideration in the trade union's timing of informing employees of the deal.

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Hmm. So, if I'm getting this right, his reasoning is:

They didn't trample on your ability to decertify the union, because you never had that ability in the first place! Ha! Ha!