The attached letter (in RTF format) has been posted today (http://forums.uncharted.ca/viewtopic.php?t=639) at the online labour issues forum, uncharted.ca.

Ignoring issues doesn't resolve them and doesn't make them go away. As long as Section 13 remains a part of the BC Labour Relations Code it will continue to be an embarrassment to this province and to the entire labour relations regime.

No institutions, least of all those that claim to be advocates for a just society, should need to be beyond the reach of legitimate external oversight.

I call upon the BC Federation of Labour to demonstrate that it truly believes in the principles that it espouses by acknowledging and responding to my letter.

Sincerely,

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This evening I sent the following email to the BCFed's President, Jim Sinclair and Secretary-Treasurer, Angela Schira:

The attached letter (in RTF format) has been posted today (http://forums.uncharted.ca/viewtopic.php?t=639) at the online labour issues forum, uncharted.ca.

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open letter (PDF file)

[ 29 November 2006: Message edited by: CUPE_Reformer ]

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Ignoring issues doesn't resolve them and doesn't make them go away.

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First they came for the Jews, but I did not care because I was not a Jew. Then they came for the blacks, but I did not care because I was not black. Then they came for the union members who were not favoured in the eyes of the executives, but I did not care because I was unknown to the executives. Then, then they came for me after all, but there was no one left who could care for me.

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I agree with Sinclair's response. If there is an alternative to protect union members from the enormous costs of dealing with spurious claims by nutballs with axes to grind, I'd like to know what these alternatives are.

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Hear Hear! I think Sinclair's comments make perfect basic common sense, and only a nutball with an axe to grind would not agree with this assessment.

I totally support an external mechanism to address disputes within labour unions that their own internal disputes resolution mechanisms may not be able to handle.

The fact is unions are cooperative associations of workers that in fact belong collectively to their members. They hold regular membership meetings, conventions, conferences, shop floor sessions, etc., and elect all of their leadership positions via some form of democratic process. When you take a job expecting the pay and conditions resulting from union organizing and activity, you should obviously join the union and do your part to support that process(no, gbuddy, that's not "conscription." It's fair play in that no one gets something for nothing or at the expense of someone else).

If someone is unhappy with how a particular leadership run a union you are in, then get together with other union members, start a campaign and vote them out. It happens all the time in labour unions.

If you don't like how a grievance was handled, talk to a rep and demand investigation under the union's constitution.

Jim Sinclair’s reply to my letter is of course absolute rubbish. His organization and the rest of the labour community have successfully ensured that there is no external mechanism available to address the concerns of union members who have been betrayed by their unions.

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I guess I would be the aforementioned “nutball”.

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Paranoia strikes deep.
Into your life it will creep
It starts when you’re always afraid
Step out of line, the man come and take you away

Buffalo Springfield 1967

Seriously, sir, how can you dismiss that whole letter as “rubbish?” I think the guy took the time to give you a reasoned and factual explanation for the position of the Fed. You may not entirely agree with it, but it clearly offers a very good premise of justice: the right to be assumed innocent until proven otherwise and the onus of an accuser to provide some factual verified basis for probable cause before a trial of any kind can begin (that wasn’t the case with the horror of the Bill 19 era he’s referring to and still isn’t with most situation where a boss hammers an employee—that’s why it’s called oppression, authoritarianism, totalitarianism, dictatorship, corporatism, boss rule, etc—things that cause so much death, destruction, persecution, misery and suffering everywhere).

These are historically established fundamentals of justice and freedom—things which historically the labour movement has fought for all over the world. And because of this, you call it rubbish, in addition to your repeated condemnations of, not only your entire union, but the whole labour movement, all because your one particular grievance case didn’t go your way. You’ll forgive me if I get the impression you’re a nut ball.

Why do I write this? Because despite your loony ravings, I actually feel for your situation, having been there myself, both as an aggrieved worker seeking justice and redress, and as an elected union rep seeking this for other members. In both cases, there have been situations where I have been forced to accept defeat in filing grievances for both myself and for those I was elected to represent, even though I felt strongly that both I, in my personal case, and other members, in three different cases, were in the right and deserved redress.

Was I mad in all these cases? Damned right I was, especially when I was advised by a lawyer counseling our union that it wasn’t worthwhile to process further. I though it was. In the end, he’s the legal expert. Not me. That still pisses me off to this day. But in retrospect, he was likely correct. We likely stood little chance of winning. But no matter how mad I got, I never went around slandering other people or condemning the whole 100,000-member union for supposedly selling me short, because that was never the case, and I know, just from knowing what real unions are, that didn’t happen to you either.

The fact is, in our undemocratic corporate capitalist dominated economy, working people, even to a large degree those who are organized, are at a constant disadvantage—both legally, financially and economically and politically—when challenging bosses. It’s horrid fact, and I try to work hard to change this via advocating the democratization of our businesses and economy. But it’s still the mainstay of the way things are. Legally, any right or protection that isn’t spelled out in a collective agreement is automatically the absolute purview of the boss. That’s why it’s called Master Servant Law (the basis of economies just about everywhere).

There is still in the labour code a section 12—duty to fair representation—which requires the elected reps and hired staff in any union to do their best in good faith to represent and defend the rights and interests of union members. The only difference is now there has to be some probable cause—as in some evidence to indicate this may not be happening—in order for an LRB tribunal to take up the case.

Otherwise someone can just point a finger at someone else and expect the board to go after them just on a whim. That’s persecution. Period.

As it is very late I will defer offering a more thorough response until I have some time. However, let me point out that I am not, as you suggest slandering anyone. If I were doing so, I would expect to hear from their lawyers. (If I do ever hear from any lawyers, I will be sure to post whatever I receive.) Also, I am not condemning the entire membership of my former union (which would be I believe over 500,000 people), or of unions generally. On the contrary, I am advocating for the rights of the rank-and-file membership, because based on everything I have seen, they are paying for a service they do not receive.

My own case is no longer just about a failed grievance, or even a grievance that could have been easily won. It is about wholesale corruption. To emphasize that point let me add that I will be citing three provisions of the Canada Criminal Code in the upcoming legal action. Once that action is underway, I will have a lot more to say publicly, and I will be identifying the individuals that I am alleging are guilty of both tortious and criminal conduct.
As I said before, I can take such an assertive approach because I have more than enough evidence to prove all of my claims.

What this upcoming case will reveal is that the Duty of Fair Representation is just one part of an enormous fraud. I have personally reviewed hundreds of DFR cases and long ago concluded that the agenda was to deny justice. I recall several years ago, when I first started seeking some help from the legal community, one particular, and still very active, employer-side labour lawyer said to me on the phone, “there is no duty of fair representation in B.C. and the unions all know it”. For once, he was being honest. Given the marathon of litigation I have since run, today I doubt that same person would even dare speak to me. My own case has been before ten LRB Vice Chairs – probably a record. The five decisions they issued are total bullshit, and everyone knows that.

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Originally posted by jester:
Nevertheless, union officials are no less protective of their entitlements than any other management.

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Yes, and just like union officials, managers, directors and CEOs are up for re-election by fellow employees every 2-3 years.

Aren't they?

Er...

ETA: Oh gee, lest I forget, managers have to submit any major policy changes or new business plans to a secret ballot of all employees! Union officials can just ram through new collective agreements anytime they feel like it. I believe I read somewhere that they just dress opponents in cement overshoes and throw them overboard, or bury them in parking lots, or something like that. Anyway, those facts aren't that important, the important thing is that governments and big business just love the unions and their leaders, which proves the unions are no good for workers. I could go on and on, but then I'd need some facts and sources. But do you think that will stop me from posting long incoherent messages? No way, why should it? Cyberspace is free, allegations are cheap, and anyway, I tried hard to get a majority of my fellow union members to agree with me, but they were way too intimidated after having read stories about evil union bosses and the lengths they will go to in order to stifle opposition, so guess what? They just re-elected the same evil union bosses and ignored my brilliant scathing incisive arguments! Doesn't that prove, yet again, how evil the unions are? Yes, it does! Thank me for agreeing with me!

[ 31 December 2006: Message edited by: unionist ]

Ever try reforming a union, loonionist? Since you are most likely one of the entrenched management types protecting your entitlements, probably not.

I remember the Teamsters local in Vancouver locked in just the sort of struggle that epitomises entrenched management using ANY method at hand to defeat dedicated reformers. Reformers who ARE dedicated union members but are also fed up with being screwed over by officials who use any and all methods to retain their grip on power.

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Originally posted by jester:

Ever try reforming a union, loonionist? Since you are most likely one of the entrenched management types protecting your entitlements, probably not.

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Originally posted by unionist:

ETA: Oh gee, lest I forget, managers have to submit any major policy changes or new business plans to a secret ballot of all employees! Union officials can just ram through new collective agreements anytime they feel like it. . . .
. . . blah blah blah blah blah . . . .
. . . They just re-elected the same evil union bosses and ignored my brilliant scathing incisive arguments! Doesn't that prove, yet again, how evil the unions are? Yes, it does! Thank me for agreeing with me!

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The situation I saw in my own workplace was that there was absolutely no rank-and-file participation or interest in union affairs, and that all the employees with whom I spoke about the matter expressed the same disdain for the union as for management. It is of course very easy to blame that on the rank-and-file members themselves, but that would be condemning them – precisely what I was just accused of doing.

I don’t claim to thoroughly understand the dynamics of unions or unionized workplaces. I only know what happened to me, and that was more than sufficient for the team of management, union, government and legal thugs who conspired against me to earn my eternal enmity. Countless people have been and continue to be similarly victimized, and they inevitably find they have no recourse. Through a unique set of circumstances I believe I do, and I am going to pursue that recourse not just for myself, but to ensure the victimization stops. Does that make me a hero or martyr? Of course not. I make no such claim.

I suspect the basic problem with trade unions is simply that they are indistinguishable from all the other bureaucracies that are able to control our lives with virtually no accountability. That is where I am hoping to make some real gains. We hear talk of accountability all the time, but we know it is empty rhetoric. I see in my case the possibility of making accountability a reality, and thereby demonstrating to the public that we do have the means to demand something more than empty rhetoric.

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Originally posted by gbuddy:
There is no such thing as institutional accountability because institutions are abstractions. They are figments of our collective imaginations.

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Well, that certainly holds true for your conception of trade unions.

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Originally posted by unionist:

You know, if I actually thought you had ever come within a country mile of a union meeting, or even if I just thought you were speaking out of some deeply felt conviction about union reform, I would tolerate your provocative comments and engage you in discussion on this issue.

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double babble

[ 31 December 2006: Message edited by: jester ]

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Originally posted by unionist:

You know, if I actually thought you had ever come within a country mile of a union meeting, or even if I just thought you were speaking out of some deeply felt conviction about union reform, I would tolerate your provocative comments and engage you in discussion on this issue.

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Originally posted by jester:

Bah..In other words you've been nowhere and have nothing to say

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Originally posted by Steppenwolf Allende:

The fact is, in our undemocratic corporate capitalist dominated economy, working people, even to a large degree those who are organized, are at a constant disadvantage—both legally, financially and economically and politically—when challenging bosses. It’s horrid fact, and I try to work hard to change this via advocating the democratization of our businesses and economy. But it’s still the mainstay of the way things are. Legally, any right or protection that isn’t spelled out in a collective agreement is automatically the absolute purview of the boss. That’s why it’s called Master Servant Law (the basis of economies just about everywhere).

There is still in the labour code a section 12—duty to fair representation—which requires the elected reps and hired staff in any union to do their best in good faith to represent and defend the rights and interests of union members. The only difference is now there has to be some probable cause—as in some evidence to indicate this may not be happening—in order for an LRB tribunal to take up the case.

Otherwise someone can just point a finger at someone else and expect the board to go after them just on a whim. That’s persecution. Period.

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To underscore that relationship I note that the Chair of the BC Labour Relations Board, Brent Mullin, is also the Chair of the Employment Standards Tribunal (and presumably therefore drawing two fat salaries).

The Duty of Fair Representation (Section 12 in B.C.) is a joke. The numerous problems with it began with the unfortunate choice of language, which was derived from some U.S. Supreme Court judgements from the 1940’s. “Arbitrary, discriminatory, and in bad faith” covers a lot of ground. The language is too vague and too broad, and that point was noted five decades ago. Try defining “discriminatory”. And don’t bother quoting the Human Rights codes. Not the same thing at all. Then have a go at “bad faith”. Hah! Good luck with that one!

Because of this stupid terminology, the agenda of the unions, employers and LRB’s was to establish a position that the determination is made on “very narrow grounds”. You’ll find comments of that sort littering the Boards’ bullshit decisions. Yet they have no legal basis on which to make that claim.

So they’re not happy with the language? Tough shit! I didn’t write it. If you don’t like it then write something better or create a different mechanism instead of making a complete mockery of justice!

The LRB Vice Chairs aren’t mandated to write legislation you say? Well that’s an interesting contention. Cause in 1994 they fundamentally altered the meaning of Section 13 and then in 1996 got their fraudulent standard illegally inserted into the Code. Which is where the Criminal Code contraventions I alluded to come in.

Try asking CUPE BC President Barry O’Neill or BC Nurses Union President Debra McPherson why, shortly after my successful court challenge of a Section 13 decision in 2003, they publicly commented that Section 13 was “unworkable” and should be removed from the Labour Code. I think the obvious reason was the fear that there would be a flood of successful judicial reviews, leading to the realization that Section 13 itself is “arbitrary”, “discriminatory” and written “in bad faith”. However instead of doing the intelligent (and even principled) thing they arranged to get my success overturned in a manner designed to discourage any further such challenges.

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My own case is no longer just about a failed grievance, or even a grievance that could have been easily won. It is about wholesale corruption. To emphasize that point let me add that I will be citing three provisions of the Canada Criminal Code in the upcoming legal action. Once that action is underway, I will have a lot more to say publicly, and I will be identifying the individuals that I am alleging are guilty of both tortious and criminal conduct.
As I said before, I can take such an assertive approach because I have more than enough evidence to prove all of my claims.

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First off, I obviously don’t know anything about your case and what and who is involved and what has happened. So I have to address what you’re talking about in generalities and my own experiences and research—not in any specific way that relates to your situation.

But when you write this:

{QUOTE] when I first started seeking some help from the legal community, one particular, and still very active, employer-side labour lawyer said to me on the phone, “there is no duty of fair representation in B.C. and the unions all know it”.[/QUOTE]

I know, speaking from my own experiences and knowledge of labour unions here, this is outright garbage, and the fact it is coming from an employer legal counsel, who’s main function is to protect the dictatorial control of bosses and corporate interests over the work place and businesses, just re-enforces the hypocrisy of this statement, this there is, sadly, absolutely NO duty of fair representation requirements on employers. They are the boss. That’s it.

Then you add this:

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My own case has been before ten LRB Vice Chairs – probably a record. The five decisions they issued are total bullshit, and everyone knows that.

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Obviously “everyone” doesn’t know that and a five unfavourable rulings on what I assume, from what we’re writing about here, is the same issue doesn’t give me a lot of confidence in your cause. That’s not to say it doesn’t necessarily have some validity (again, I don’t know anything about it). But it seems likely that the position you are taking doesn’t seem to have much legal merit or backing of prescendence.

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I called Jim Sinclair’s letter rubbish and your entire post is also rubbish, as you very well know.

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No, I think, at least at some level, you know my post, and that letter it refers to, are well reasoned and based on an appreciation for hard-won rights to justice and due process. It’s just that you are obviously angry and don’t like the fact that I largely agree with the reasoning of that letter that happens to be written by someone you don’t respect and don’t think is genuine.

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If you’re not already being paid to generate this sort of rubbish you should get your resume out there, perhaps starting with the BCFed.

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See, this is what I mean. Someone who’s got a serious issue to resolve doesn’t usually resort to such dismissive put-downs. I may not be the nicest writer out there, but if you go back and read my post again, you might see that I’m supporting concepts and practices that, at least to me, seem fair and just.

Again, I don’t know your situation and only have some vague impressions of what you are dealing with and trying to do. But from what you have written so far, it seems what you are seeking is the power to make a charge without establishing evidence of probable cause and have whoever you’re charging automatically punished without a chance to defend themselves. That is what I see as loony.

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Also, I am not condemning the entire membership of my former union (which would be I believe over 500,000 people), or of unions generally.

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Fine then. Some of your earlier posts certainly gave the impression that you were.

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I am advocating for the rights of the rank-and-file membership, because based on everything I have seen, they are paying for a service they do not receive.

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If you are suggesting that the feudal Master / Servant workplace philosophy is still a legal reality in Canada, then I must ask what exactly you claim the labour “movement” has accomplished?

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Look around you history is chalk full of what the labour movement, either on its own or a key central part of a broader social movements, has accomplished—political democracy; social safety net; universal public education and health care; human rights, freedom of information, anti-discrimination and health and safety laws; retirement security; training and trade advancement; minimum wages; control over work hours; the right to negotiate working conditions; right to due process and presumed innocence until proven otherwise; environmental protections; credit unions and cooperative of all kinds; community economic development, etc., etc., etc.,

The fact is all of these rights and freedoms that have been won are all curtailments on the dictatorial power of instituntions protected by the Master Servant Law. But sadly that law, or many of the fundamentals of it, are still in force. Capitalism, dictatorship, class society, top-down corporate governance—all things that still pretty much dominate our economy—would not be able to exist without it. So it’s till very much here. It’s just not absolute like it was at one time.

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I am strongly inclined in fact to suspect that the established union elite are determined to see this absurdity maintained because it ostensibly justifies their existence.

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First, I would like to know who this “union elite” is. There are good and bad, or better or worse, union leaders. Some have been corrupted. Most clearly have not. Some are more inclusive in their way of doing things. Others are more influenced by the top-down/follow-the-leader mentality that, as said, sadly dominates most of our economy and institutions (especially the undemocratic ones like most corporations and bureaucracies). And there are more and less centralized, or more and less egalitarian unions, depending on their structures. But where is this elite. Any of the current union leaders today had to be elected via a democratic process, and all of then can be removed via the same process.

Second, it depends of the level of social consciousness of the various leaders. A great many I know would love to see the end of capitalism and its dictatorial institutions as humanity moves toward a more socialistic economy based on the democratic control of the economy and business and long-term sustainability of community and mutual satisfaction of interest and improvement. But, most feel, that won’t come in our lifetimes, and many are cynical anything can really be done to openly advance this (I don’t agree with the latter part).

Third, as the Unionist points out, unions are in fact cooperative associations of workers. They have been around in one form or another forever, and no matter how oppressive a society got, they survived and had the last laugh in most cases, and still exist to this day. Getting rid of such oppressive economics won’t get rid of unions. Their functions and priorities may change, but they’ll always be around in one form or another.

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What incentive do unions have to see any improvement in employment standards? Altruism perhaps?

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As history shows, it seems clear to the majority of labour groups out there that the collective improvement of all workers in the economy, especially at the minimum or low end, invaviably, to one degree or another, raises it for everyone and gives more broad bargaining power to workers in specific sectors. That’s why unions have traditionally fought for raising universal standards.

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To underscore that relationship I note that the Chair of the BC Labour Relations Board, Brent Mullin, is also the Chair of the Employment Standards Tribunal (and presumably therefore drawing two fat salaries).

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You don’t need to sell me on the corruption and graft in the labour ministry, especially under the reign of the current BC Liar regime. Workers, both individually and collectively as unions, are always at a constant disadvantage, since most of the top hacks are corporate flunkies who don’t have a whit of respect for working people (who pay their fat salaries and bonuses) or any of their concerns.

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The Duty of Fair Representation (Section 12 in B.C.) is a joke.

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No, it seems to me it is well written and fair. However, the problems here don’t lie with that section, but with who’s running the labour board and their lack of concern for both unions and workers generally.

[QUOTE] Try asking CUPE BC President Barry O’Neill or BC Nurses Union President Debra McPherson why, shortly after my successful court challenge of a Section 13 decision in 2003, they publicly commented that Section 13 was “unworkable” and should be removed from the Labour Code. I think the obvious reason was the fear that there would be a flood of successful judicial reviews, leading to the realization that Section 13 itself is “arbitrary”, “discriminatory” and written “in bad faith”. However instead of doing the intelligent (and even principled) thing they arranged to get my success overturned in a manner designed to discourage any further such challenges./QUOTE]

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Originally posted by Steppenwolf Allende:
I haven’t heard either of them say this. And again I don’t know about your challenge or if they are involved in it. Also, I don’t know what in Section 13 they think is unworkable or what part of it you went to court over. If you want to tell me more, you can send me an off-list message if you like.

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Judging by what you have written you are going to be very surprised by the revelations that will result from my tort case. I have just completed the writ and statement of claim, which I hope to file and serve on the government this week. Having been through protracted courtroom and LRB litigation before (in 2003 it was ongoing simultaneously in both forums) I know I'm in for a very challenging experience, so I will have limited time to discuss these issues online. Nevertheless, I now believe that speaking publicly about this case while the litigation proceeds will be an effective strategy, so I shall make the time.

For now I'll respond to your last comment. The first BC Supreme Court judgement in my case was issued on January 24, 2003. As subsequent events demonstrated, though nominally in my favour, it was fatally flawed. The LRB and its two allies - CUPE and the City of Vancouver - quickly decided they could effectively ignore it and continue to obstruct justice. Still, that judgement apparently shook up the BC union and labour relations communities, and I have already commented on why I believe that was so.

At that time the Ministry of Labour was conducting a formal review of the Labour Code - a completely sham exercise of course. They were accepting submissions, which were being posted online. The reference I made was to the submissions signed by Barry O'Neill and Debra McPherson. These files appear to be no longer online but I made copies of them.

The BCNU submission, of 30 pages, is dated February 21, 2003 - just one month after my nominal Supreme Court success. Here's what it said about Section 13:

"There has been some discussion regarding the removal of Section 13 from the Code. The Union
supports this approach. Section 13 is unworkable and creates the very problems it was intended to
eliminate. The application of Section 13 forces the Board to examine each Section 12 complaint as
if the facts alleged are true. The effect is that complainants often assume they have an actual case of a breach of the duty."

I believe my case was the only reason there had been any such discussion. The real issue with Section 13 is that it is, in several respects, a repudiation of the fundamental principles of justice, and I now know specifically how to present that argument in court.

Debra McPherson and Barry O'Neill have both heard from me, and of course have never replied. Why don't you contact them and ask them for a candid opinion on this matter? Ask them if they think my tort challenge of Section 13 will succeed or fail, and let us know what they say. If they tell you that they don't know enough about the issues I am pursuing, then they are either lying or wilfully stupid.

If we accept the claim that Section 13 was intended to protect respondent parties from the expense of dealing with unmeritorious or frivolous or vexatious litigation, why is that protection not provided to all respondents in all litigation; why only to respondents who happen to be unions and in cases that are brought by individuals (who are usually already dealing with the disadvantage of being self-represented)? Obviously this situation is discriminatory.

The approach taken by the Ontario Labour Relations Board (OLRB) with respect to this particular issue is the right one. DFR complaints are treated like all other applications. The respondent parties are entitled to argue that the application should be dismissed because it does not present a “prima facie case”. There are numerous OLRB decisions on record that respond to these requests for summary dismissal. They all use exactly the same language, which essentially says that the “prima facie case” standard is a very low one and that there is a heavy onus on the adjudicator to justify a “prima facie” summary dismissal. The extremely low number of such dismissals reflects that legitimate standard.

Despite relying on Section 13 to dismiss hundreds of cases the BCLRB has never developed any consistent language to explain its “standard”. And that’s because it isn’t a standard at all. It’s a fraud. In fact, because the provision was conceived and drafted in bad faith, the result is a piece of legislation that fails in every respect to meet the most basic standards of statutory drafting. That’s why I am very curious to know who wrote it. No competent and principled statutory drafter (yes, it is a profession) would sign off on such garbage. But someone did.

What is most remarkable about this situation however is that had the government left the original version of Section 13 in place, I probably would not have much chance of mounting a successful legal challenge. Having contended with the courts already I know the sad truth is that the agenda of the judiciary is to support the government with its political objectives even if that means ignoring the fundamental principles of justice.

The reason I can and will mount a successful challenge is because corruption feeds on itself. The same people whose arrogance, stupidity, and disdain for the Rule of Law resulted in the original version of Section 13, had to push the envelope even further when they realized that the term “prima facie case” was an impediment to their real agenda.

They had already used the MLA’s as stooges once to put through the original version and they knew they couldn’t go back to the Legislature a second time to fix their little mistake. So in 1996 they made the change from “prima facie case” to “sufficient evidence that the contravention has apparently occurred” surreptitiously and illegally. That action was a repudiation of one of the most fundamental principles of our parliamentary system. Only our elected representatives can enact, amend or repeal legislation. Anyone else who usurps that mandate has committed a “contempt of parliament” (and, as I shall note in court, contravened the Canada Criminal Code).