CUPE at Work:
CUPE Tried to Silence Me
This story is dedicated to the brothers and sisters who valiantly fought to bring democracy to their CUPE local. By publishing this story we hope it helps us learn so others may never have to go through the ordeal I did, ever again.
I, Brother Kenny am a dues paying Member of the Canadian Union of Public Employees.
The "Big Bad Wolf" syndrome of taking legal action against members who break internal union rules in order to silence them is not exclusive to United Food and Commercial Workers Union. It happens in other unions too. It happened in CUPE. Yes, the largest union in Canada is not without corruption. In this story the corruption began with the corrupt local executives. How far up does it travel? Nobody knows.
CUPE is Canada's largest national union. Its 500,000 members (divided up among 2134 locals) work for school boards, hospitals, municipalities, universities, public utilities, homes for the aged, day care centers, children's aid societies, libraries, transit systems, emergency services and other publicly funded employers. The CUPE Local to which I belonged is part of CUPE Manitoba, which represents 101 locals with nearly 23,000 members. CUPE Manitoba represents many sectors including school board locals, health care locals, and public services locals. CUPE Manitoba claims to "provide a bridge" between CUPE members among their various local unions. It describes itself as the glue that helps union members actively participate collectively, to promote the aims and objectives of public employees within the province. CUPE Manitoba claims its primary goal is to be a better and stronger voice on behalf of all members. National Representatives are assigned to work with locals to assist in achieving this goal.
CUPE National reps working out of CUPE Manitoba offices are supposed to provide a wide range of support including assistance with negotiations and processing grievances. But I rarely saw the National Rep assigned to my local at any union meetings except elections, held every two years. My local's by-laws specified that certain executive positions would be up for election on the odd years and the remaining executive positions on the even years.
My Local represented approximately 200 support staff at a school division in Winnipeg, Manitoba. The local was comprised of two separate bargaining units certified by the Manitoba Labour Relations Board. The original and smallest unit was made up of members who were employed as bus drivers, maintenance workers and custodians. The second and largest unit represented teachers' assistants, library technicians, science technicians and computer technicians.
Each unit had its own contract yet shared the same by-laws and the same bank account. The larger unit of teachers' assistants outnumbered the older unit by almost two to one. The past president was instrumental in bringing this group of support staff into the smaller local. The Manitoba Labour Board refused at the time to put these employees in the same bargaining unit citing that the work was far too different, but the local made the two units equal partners in the running of the local.
I believe that this decision gave away the interests of members in the smaller outnumbered unit. The new combined unit had voting rights on everything related to the work of the smaller group including their contract. The concerns of the smaller original group of members were now dependent on the sentiments of an entirely different group who performed entirely different work. As far as I could see, the merging of bargaining units just did not work well for the members but it did help the Past President build a power base. This is where my story begins - internal disputes about internal corruption.
It's a story with a theme we have all heard before: Speak up, stand up for change and you will be silenced by the autocratic legal system within the union.
After watching from the sidelines for a long while, I concluded that the executive of my local was pro management and was not only thinking like management, but also was acting like management.
The executive at the time was led by the Past President of the original smaller local and his senior executive entourage. Most everyone who tried to file grievances was given reasons by the union why they could not file or reasons why management would not go for this or that. Most of the grievances were seniority or promotion-based. Members wanted to stifle management's selection of "favorite employees" to work day shifts in a higher pay bracket. One junior employee earned more in one year than the most senior employee in the highest bracket did. Other grievance issues involved harassment in the workplace by both union members and management against other working union members. Sound familiar to anyone?
I noticed that pro-management union members were given preferential treatment regardless of seniority. Members of the executive went out for drinks with upper management while other executive members went out for coffee during work hours with management. They were allowed to leave their buildings for periods of time, were given extra staff, got the newest of equipment - the list goes on.
When I was elected to a position on the executive, management would phone me at home once or twice a day and ask me to come in and work days for a higher rate of pay. I refused. When the possibility of discipline for being insubordinate was mentioned, I told the management supervisor to do what he had to and that I would grieve it. Was it a breeding ground for collusion? Well, you decide.
It appeared to me that there were two sets of rules: One for the pro-management executive group and another for the rest of the union members. The collusion that this bred was unfair to many workers.
Tired of all the bull, members finally rallied together to try and make a significant difference at the local election in April 1999. I was asked to run for President but chose to run for an open vice president position instead. I believed that concerned members had a better chance if they ran one candidate rather than split their votes. For the President's position, we backed a woman who we helped elect in a by-election for the President's position only months earlier. She claimed to have many years of experience and to be against the reigning regime. We ended up winning several executive positions including President. Unfortunately, we would soon find out that backing this sister was a mistake, one that would turn into a nightmare for others and me.
I won the Vice President's position by acclamation when the Past President refused to run against me. He lost his position as President and was officially off the executive. There was a provision in the local by-laws, however, for a Past President to remain on the executive and remain he did although he never showed up for even one executive meeting.
The next thing my allies and I knew there was a written challenge under Section J of our by-laws by the Past President calling for the removal of the new President for failing to provide adequate representation for a member who was also his friend. The executive unanimously rejected the challenge. The Past President then went to a General Membership Meeting and, as was his right under the Local by-laws, tried the same tactic at the GMM. Once again his attempt to dethrone the President was rejected but the old guard would continue to bog down the executive with paperwork and other tactics aimed at getting back in control.
Despite being bogged down by frivolous complaints by the "old guard", the new President we'd just elected in April 1999 suddenly turned on us. In July of that year I recall that she phoned me and told me to "stop making waves". Stop making waves meant stop writing letters to management requesting information or asking for fair treatment of all employees. Up to this time she had given me free reign to send letters to management about issues concerning workers in the bargaining unit. I reminded her just why she was elected and with whose assistance but she suddenly had no recollection of who it was that rallied support for her election to the Presidency.
In the fall of that year executive members complained that our National Rep rarely ever showed up for executive or general membership meetings. CUPE sent another rep to sit in on one of our executive meetings. I remember it so vividly. The rep told us that he had taken the time to read our contract and felt that it was a very strong contract. I responded that although I was new to this executive, I too had read the contract and other contracts as well and felt that in fact it was a very weak contact if not one of the weakest in our sector.
What would make me believe that I, the green horn, knew better than a veteran union spokesperson? Firstly, I read three of the top contacts in our sector in Manitoba and could compare them to my Local's contract. Secondly, as far as I was concerned, the wording of our contract was pro management. For example, on page three of the contract Article 1: Scope Of Agreement And Definitions sub paragraph 1.02 (7) states:
Probationary Employees are those employees of the Division who are in the process of fulfilling the initial one hundred twenty (120) working days probationary requirement as set out in sub-paragraphs (1) and (2). Within the exception of temporary employees who become regular employees by virtue of the passage of time as covered in sub-paragraph (4), prior service as a temporary or casual shall not count as part of the probationary period leading up to the regular employment.
At any time during the probationary period the employee may be terminated by the division in its sole and exclusive discretion, and not withstanding any provisions of this Agreement such termination shall not be grievable nor arbitrable and shall be deemed to have been for just cause.
The contract begins with probationary employees having no rights. Not only could a probationary employee work his 119 working days and be let go for whatever management decided was just cause, but who knows how long the employee had banged around between casual and temporary status? We could be talking several years of a person's working life but, because of their "probationary" status, management had a free hand to decide if they wish to hire them. Here is another example of the kind of contract language that caused me concern (from page 6 of the 36-page contract):
ARTICLE 8: TEMPORARY WORK
8.01 An employee maybe shifted from school to school, for temporary work, for a period not exceeding sixty (60) working days, but with no downward change in salary schedule. When regular full-time or regular part-time employees are shifted pursuant to this Article, it does not constitute a reclassification to a temporary employee as defined in Article 1.02 (4) (Scope of agreement).
Management claimed that this clause was exempt from seniority by virtue of management's exclusive right to manage. "Article 4: Management" reads:
ARTICLE 4: MANAGEMENT
4.01 Subject to the provisions of this Agreement, the operation of the schools and direction to employees, including the right to hire, suspend or discharge for just cause, to assign to jobs, to classify, to promote, to transfer employees among the schools; to increase, decrease or re-organize employees, both permanent and temporary; to determine the services necessary for the most efficient operation of the schools is clearly a function of Management and is vest exclusively in the Board. The Board agrees that it will not exercise any of the foregoing rights of this clause in a discriminatory manner.
Further down is Article 10: Calculation Of Seniority - Appointments:
10.03
- When a new position is created, or when a vacancy of a permanent nature occurs, the employer shall notify the Union in writing and post notice of the position in all schools, the Maintenance shop and Transportation Department for a minimum of five (5) working days.
- The posting shall contain the following information: Nature of position, qualifications and skills, location, hours of work and salary rate.
- Qualifications will be established in a manner consistent with the current Agreement.
- Job posting with regard to Article 10.03 shall state test criteria if any.
I believed that while the language could be better, an important statement was missing and that is a clause stating that the posting will be filled by such-and-such a date. Management used this loophole to place whoever they pleased for as long as they pleased in vacant positions. Management referred members to Article 8-Temporary Work and Article 4, Management's vested right to manage, in defense of their actions.
In my view, yes we paid dues but for what? To make the union fat cats fatter and to have the privilege to see union rights trampled on and disgraced. Here is another issue members were concerned about. Article 10.04-Appointments states:
10.04 Seniority shall be the determining factor in matters of staff changes, transfers or promotions subject to the employee having the ability to do the work in the judgment of the employer, having the necessary qualifications, being able to meet the requirements to perform the job as set out in the job description and having a good employment record. A good employment record shall be defined as an employee which is free of written reprimands for a period of twelve (12) months prior to the closing date of the posting for that staff change, transfer or promotion.
In a CUPE educational course that I attended the instructor, a President of another CUPE Local, stated that from a union member's perspective that period of penalty exclusion was unfair and unreasonable. Yet it was in the contract and management used it to their advantage. Worse, it appeared to me that some members coincidentally were disciplined within a certain time frame to prevent their advancement. Management would not do anything deliberately to prevent workers from acquiring their rights as union members, would they?
To make matters worse, the contract was riddled with references to the Building and Maintenance Supervisor and his discretionary powers.
These are just a few examples of the contractual provisions that other members and I believed gave management the upper hand. There were others. Can you understand now why we were upset and wanted change? Can you see why we ran members for election? Yes we needed a lot of change, but the reform group was about to run into the CUPE status quo machine.
By the middle of November 1999 the President was officially off on sick leave and the local's National Rep advised the members that the 1st Vice President was in charge. It was a sad sight. At GMMs, our Past President, speaking from the floor would tell our acting President what to say and do. Members were up in arms again. Things were right back to the way they were before the election. The status quo had taken full control again even though different members were on the executive."
About a month later, in December, we found out that the acting President had left the country and was in Hawaii for two weeks vacation. I assumed the position as acting President and sent letters to management requesting answers to questions that a lot of members in the bargaining unit wanted answered. As well, I sent a letter to the National Rep advising him that, at the request of the members, I was asked to bring a motion at a future GMM to have him removed.
Within two weeks the old past President laid charges against me under the CUPE constitution, Section B.V1-Trials. The Legal and Legislative Rep said that the charges needed greater detail and were "opinions" more than anything else. Suddenly brand new charges were filed. Included in the charges was the letter that I sent to the National Rep.
Members at the local were upset at the National Rep for never wanting to file grievances and always wanting to go to labour management meetings with their concerns instead. In my opinion it was very hard to distinguish between the approach taken by the Past President and the National Rep in minimizing members' concerns. Of course our concerns were brought up at Labour-Management meetings. No, the outcome was not in favor of the members.
We sent letters to CUPE Manitoba and National President Judy Darcy at CUPE National office and do you think there were any changes? None, nothing, zero, zip. I was even charged with writing letters to our National President. Members of my local had sent petitions in to have our National Rep removed and still nothing, zip, zero.
Several National Representatives as well as a Legal and Legislative Rep were present at the GMM for the jury selection for my trial. The majority of them were supporters of the Past President and the National Rep. I objected to members having to allow their names to be nominated for jury duty if they didn't wish to get serve on the jury. A Rep from CUPE Manitoba stated that she knew for a fact that potential jurors had to let their name stand, because the same issue was just decided in another recent "trial proceeding". Who said it was legal? The Supreme Court of Canada?
This selective approach to jury selection was just the beginning. When questioned under oath by my Trial Rep at the trial, our President answered questions from prepared notes she had in front of her. When my Trial rep objected, our President stated that her memory was very bad and had to rely on her notes to answer questions accurately. Our 1st Vice President contradicted herself and other witnesses called by the past president contradicted themselves too.
After hearing my accusers' witnesses, my rep and I were forced to proceed without a chance to confer with possible witnesses who could rebut their testimony. The head juror arrogantly stated that there was no reason for us not to be prepared for the case and that they were not going to waste any more of the members' money. How absurd. If we were not afforded the chance for discovery of all the information how could we possibly know the case against us or whom we should call as witnesses? Had we been afforded that right of natural justice, our witnesses would have been able to refute the testimony of the Past President's witnesses. Perhaps it was the plan all along not to allow us the opportunity to impeach his witnesses. My witnesses were allowed to sign documents related to testimony given, but the trial committee gave no weight to their substance.
I was found guilty by the trial committee and later by the approximately 15 members who showed up at the general meeting to ratify the decision. I was given a "reduced" pecuniary fine of $400.00, prevented from attending general meetings for two years and from holding office for three years. The trial committee said it was necessary to have a harsh penalty to send a message to all future executives. Yep, challenge corruption and look what will happen to you.
All of this however was not final and binding until the final outcome of my appeal to CUPE National. I waited until the last minute to file my appeal to CUPE National. The next thing I knew I received a letter from a big-wage CUPE lawyer stating that I was late in filing the appeal. I wasn't. The person who was asked by my trial rep to send in the appeal did so by fax rather than by certified mail.
Nonetheless, before the appeal trail date that was to be overseen by CUPE Manitoba National executive members, my trial rep offered me a job as a support staff worker represented by his local. I was asked to sign a letter withdrawing my appeal, as it was no longer relevant. I sent in my written appeal anyway once I was off probation. I did this for several reasons, but mainly due to the lack of representation in my old local. Although I am in a different local now and some things are better, but I cannot help but feel for members in my old local. It was my hope that my appeal would be reopened so that the right people would have too see what really was going on. The National office was way ahead of me, however, and declined to reopen the appeal.
To this very day I have the guilty verdict hanging over me although Judy Darcy, National President, has stated that according to her sources there was no finding of guilt. The same National Rep continues to be the rep for my former local. The Brother who told us how great our contract was promoted to Regional Director in Manitoba and has since retired and now acts as a consultant for CUPE. This is the very same brother who sent out an official CUPE letter preventing members from attending CUPE courses unless they had the explicit permission of their local. I feel deeply for those members who are afraid to stand up against the local or CUPE, especially after the precedent that they set by doing what they did to me.
My old local is now in the midst of an amalgamation of two school divisions and there is friction between the president we helped elect and the other more militant CUPE local executive. Their contract expired months after the other local's contract expired. They have no amalgamation clause, and no signed contract to cover them during the amalgamation, just labour legislation giving validity, for one year, to an old contract.
What have I learned? I have learned that if your union is not listening, it cannot hear you. How convenient! We the reformers were not going to reach the house of union respect, wisdom and security. We were to become road kill on the way to the house and no one wanted to hear our dying pleas for help.
I am still a member of the largest CUPE school division local in Manitoba where there are members trying to bring our local into the 21 century as well. Their efforts have met with some opposition, all of which will be food for discussion in another chapter of "CUPE at work".