Lame Duck Local Can't Swim?
A burning question for the unemployed of the OFG/Loman warehouse is this: Will the Lame Duck Local take the Common Employer decisions to the Supreme Court of British Columbia? At first the answer seemed clear - Ivan Limpright, UFCW 1518 Secretary Treasurer, had twice before promised them that the Local would do so.
The first in a January 16, 2003 letter from Mr. Limpright, addressed to "All Members Formerly Employed At Loman Warehouse". Ivan states:
As you know, from the letter we sent dated December 18, 2002, the Labour Relations Board (LRB) has dismissed all of our applications regarding Overwaitea Food Group (OFG), EV Logistics, and Loman Warehousing.
The impact of these decisions has been devastating to all of us. Since receiving the LRB's decisions on December 17, 2002, the Union has completed a review of all options available to pursue the rights of the warehouse membership. Based on this review, we are able to advise that we will be pursuing appeals of the three LRB cases through the courts.
The Local 1518 "Update" magazine, featuring "No Concessions!" on the front cover, at page 6, contains this:
If the LRB decision rejects Local 1518's arguments on the common employer issue, the Union will continue to pursue the matter further before the Supreme Court of British Columbia.
But perhaps the "impact of these decisions" has not been all that devastating to Ivan. He still has his job and all those trips and the truck and the expense -account and the credit card and the power. Not many friends left from the warehouse because they're very busy jumping through HRDC hoops, AKA unemployed, and as Ivan himself admitted, "Six of them want to kick the shit out of me and the rest hate me." Why is that Ivan?
Now it's starting to look like the Lords of Layback at the Lame Duck Local (sorry, had to string those together just once) are set to deliver the grand finale in the Loman Letdown. Loman members just recently received a letter from a devastated Ivan, dated March 14, 2003, which gives every indication that, despite his devastation or the promises above, that he is about to give "his brothers at the warehouse" the big kiss off. It states:
On March 3, 2003, the Labour Relations Board provided their written decision regarding our application for reconsideration. The three member panel concluded: 'We are satisfied that the Original Decisions are consistent with the Code and Board Policy. Therefore, leave for reconsideration is denied and UFCW's application is dismissed.' We are disappointed with the decision of the LRB and we have now requested our legal counsel to review all of the decisions with a view to apply to the courts to have the original decisions overturned.
But hold on a minute say Loman members, this was just an appeal, you already had legal advice to proceed, you said that if the LRB rejects the UFCW 1518's arguments you would take this to the Supreme Court of B.C.!
It doesn't surprise any of the Loman members that Ivan would then hide behind Shona's skirt, as he has so many times before. There, on the flip side of Ivan's letter, is a letter from Shona Moore, legal counsel for UFCW 1518. Dated March 4, 2003, (10 days earlier) it states:
Enclosed please find the Board's decision in respect of the Union's application for reconsideration [B76/2003, the appeal of the True/Common Employer/ third party issues of B391 and B392]. You will note that the Board has dismissed the Union's application for reconsideration. Upon review of the Reasons for Decision, it is our opinion that there are no grounds for judicial review from this decision.
The warehouse members have grown leery of UFCW 1518 seeking "legal opinions". They suspect these are "tailored" to validate UFCW 1518 decisions as being well considered and final. They add respectability to UFCW's decisions and cloud the responsibility for those decisions. More importantly they deflect criticism for those decisions from those who made them. He who pays the piper calls the tune.
Well, one might suggest, maybe there is no judicial basis for pursuing the issue further. We'll cover that in time.
And what is the issue? In a nutshell, the recent decisions have further defined the distinction between a "third party" and an employer. But it is much more than that. It is a green light for corporate manipulations similar to what occurred at Loman. The decisions suggest that a company can retain all manner of control over an enterprise yet divorce the bargaining unit by simply switching "subcontractors". These decisions could affect all unionized workers in Canada. How many corporate big wigs are now rubbing their chins as they see the possibilities?
Although not necessarily judicial errors, paragraphs 39 and 40 of BCLRB No. B391/2002 provide some insight into the "quality" of representation Loman members have been getting:
Paragraph 39: At the hearing, while replying to Overwaitea's oral argument, UFCW did not dispute Overwaitea's contention that it had not established a prima facie case of a violation of 6(3)(f). However, it announced that what it had intended all along was to allege that Overwaitea and Loman had breached Section 6(3)(a), and it submitted that it had established a prima facie case of a violation of that section. In its reply to UFCW's oral argument, Overwaitea took issue with UFCW's attempt, at that stage of the proceeding, to allege a breach of Section 6(3)(a).
Paragraph 40: Overwaitea's objection has merit. In its written submission in reply to UFCW's First Application and in its Section 133(4) application, Overwaitea made it abundantly clear that it understood that UFCW was alleging a violation of Section 6(3)(f). UFCW responded in writing to both of Overwaitea's submissions without clarifying that it really intended to allege a violation of Section 6(3)(a). That clarification did not come until Overwaitea had finished its argument at the hearing. In the circumstances of this case, that was too late.
The Loman story presents an extraordinary set of circumstances. One of the most efficient food distribution centers in North America is purported to be sold to a new company. The new company (Loman) owns virtually nothing. It is a paper company. Its' principals have a history of "shutting down" businesses. OFG still owns the building, the racking, and all the stock in it. Everything is as before except for a few new faces and, most importantly, a new name on the paycheck. Loman and OFG then make decisions that predictably and consistently erode the efficiency of the operation. Then they say they need cost concessions because, you guessed it, the operation has efficiency problems. So, four years before the Collective Agreement is set to expire, they float a total gutting of the collective agreement at us. The members said, "Get serious. You run the place into the ground and you want us to work for peanuts? Why don't you try running the place properly?" Apparently this was never an option. The deal was designed to be turned down and so it was. But we are now portrayed as greedy union members who refused to even consider taking less. We must be taught a lesson. Construction of the EV Logistics warehouse begins and we eventually get word that all our work has been "awarded" to EV Logistics. We fight at the stores, the union pretends to be behind the campaign but puts a number of roadblocks in the way, we suspect that we have been sold out. We lose our jobs. The "shell game" successfully ends the bargaining relationship between the warehousemen and OFG. End of story. Or is it?
If this kind of "shell game" is left unchallenged, then the door is wide open for a slew of similar corporate shenanigans. Full-time Union members with "real" jobs will get the short end of the stick and be replaced by masses of part-time, no benefits, no future wage-slaves. Dues collection will continue to be a fabulous business. In the interests of furthering that business and their cocaine-style craving for more, more, more dues collection, Loman members fear that Ivan is set to give them the last stab in the back.
Does it matter that this has huge implications for all unionized workers? Will the BC Federation of Labour or the Canadian Labour Congress allow these decisions to go unchallenged? Should they even entrust its defense to UFCW 1518 should they take it on? In the upcoming weeks we'll be looking closer at the judicial reasoning in the LRB decisions and will keep you posted on the "devastation" at UFCW 1518 Head Office.