Members for Democracy Archive

Of all of the Canadian provinces, I'd bet my next pay check that Ontario leads the way in DFR discouraging and DFR disposal. Yes, it is definitely the case that union members are expected to exhaust their internal complaint procedures before filing a DFR. If that means that they will spend months, maybe even years, bringing their issue to various union appeal meetings where there is little or any hope of any meaningful consideration, so be it.

If it takes a few years, well...so be it too. If that makes the complaint too old for the OLRB to bother with, too bad. The word on the street is that the OLRB reserves the right to apply a "6 month rule". This means that if the alleged unfair representation occurred more than 6 months prior to the complaint, the complainant can expect to have his or her complaint dumped on the basis that it is not timely. There is nothing in the legislation or in the OLRB's publications that speaks to this 6 month rule, but an OLRB officer I was speaking with recently did say very clearly that the Board uses a "6 month rule where it sees fit". The 6 month rule is really handy in that very few complainants can even hope to come close to meeting it. It's doubtful that the union's appeal process can be cleared within 6 months. Then there's the time and effort that a worker will need to spend tracking down advice from the OLRB (which is decidedly worker-unfriendly) or trying to get legal advice in a province where nobody in the legal community wants to know you unless you can cough up big bucks.

If you get past your union's internal appeal process, the fun is only just beginning. The OLRB dismissed many DFR cases without a hearing - just by reviewing the written submissions of the complainant, the union and the employer. A whole lot of complaints are dismissed on the basis that the complainant does not make out a prima facie case of unfair representation. How you can make this determination on the basis of written submissions is beyond me. If the person is saying "this happened" and the other person is saying, "it didn't happen", how the hell do you nikow who's telling the truth and who's not just by looking at what they've written on a piece of paper? No matter for the OLRB. The union and the employer are infinitely more believable because...they're the union and the employer.

For those who make it past the prima facie punting stage, there's the obligatory mediation session where guys who think they're the next best thing to Vice Chairs bob and weave, plead and cajole with you to settle up on some basis that's acceptable to both your union and your employer.

If you get past this stage, the OLRB has the option of convening a full hearing or convening something called a "consulation". A consultation is sort of like a hearing only it's not a hearing. It's like an informal chat between the union, the employer and the complainant with a Vice Chair who, after hearing some informal stuff about the case, can dismiss the whole thing outright (which often happens) or conduct a hearing (which doesn't often happen). Yes, you heard right. After an informal discussion with the parties, the Vice Chair can, based entirely on his or her own discretion, can dismiss the complaint. Due process? Natural justice? Oh, that's only for the privileged.

Few DFR complaints ever get to a hearing in Ontario. The last I heard, only 2 or 3% ever succeed. The written decisions on these are largely perfunctory "no breach of the legislation" or - if it looks like the poor slob who's complaining might actually have a leg to stand on there's the overused "no labour relations purpose would be served by inquiring further into this issue". (What this means is that if looking further into the complaint doesn't serve the cause of labour-management coziness, we ain't goin' there.)

Of course when you consider that many OLRB Vice Chairs moonlight as arbitrators with the employers and unions that come before the OLRB on DFR and other matters and that many of them hope to carve out lucrative careers as arbitrators with those very same clients once they leave the OLRB, what the hell should we expect?

Working people should not expect an ounce of respect from the Ontario Labour Relations Board and its staffers. This is a pompous country club that thrives on labour-management partnering.

Nope! That's why the MFD had to wait for Brother Dority's cohorts to say "nay" before the case could proceed to court.

It would be difficult to challenge anything the OLRB (or any of the other LRB's do) because their processes are fluid and subject to change whenever. There is no hard and fast process or and few procedural rules that a member of the public could look to for a clear understanding of what he or she must do to pursue a complaint of any kind. If a worker challenged the 6 month rule, the LRB would say "There is no 6 month rule". If a worker were to challenge the validity of decisions handed down after a fireside chat/consultation, the LRB might say, "That's our established process". If that didn't seem like a good idea in the circumstances, they might say, "Hey, it's like a hearing, what's your problem?"

The whole system is set up to exclude your individual rights. Once you join a union, you have collective rights. And those rights are administered by an individual, or sometimes individuals.

The judiciary or quasi-judicial bodies look at union members as a sum rather than as parts. They require only that the parts be treated in compliance with the rules of natural justice. In a nut shell, did ya get yer chance to give yer side of the story, did the employer have his or her say, and did the union official think about the issue before making a decision. There's a bunch of other crap that plays in too, but usually it's too hard to prove. For example, I think Chris Budgell had the good sense to record the dumb-ass behaviour of the union's lawyer, and that helped him a lot when he got to court.

Anyway, you have to realize that unions are a product of the law. The laws were primarily created to protect the interest of industrialists. Workers were getting violent and had the potential to severely disrupt production. As well, industrialists in their efforts to crush worker rebellion were killing a lot of people, so that wasn't sitting well with politicians. Therefore, the union was legitimized as a method of worker control. Unions aren't free organizations. They must adhere to a strict code of conduct-they must keep their members in line with that code. If they don't they lose their government 'certification' or are fined by the courts into bankruptcy.

As you can see the Labour Codes and Acts are authored by governments. Their interpretation is kept as far from the courts as possible. The governments set up their own labour courts stocked with minds firmly in step with the government of the day. You will never find a radical thinker on a labour board. Radical thinking is punished by non-renewal of the radical's appointment.

If you look at the proposals for the revised BC Code, you will see the needs of union officials taken care of and the needs of employers taken care of, but the voice of individual union members further muffled.

There is no room in the labour relations arena for the voice of an individual worker. There is no justice for an individual unless the union official decides justice is warranted. If the union official decides justice is not warranted, there is little if any avenue available to the individual worker.

That's why unions are dying. They are irrelevant in meeting the needs of workers in an individualistic society. That's why we stand on the threshold of a time when new forms of activism are emerging, and the power of communication through technology will change the way we work, view work and demand fair treatment.

I think Remote mentioned somewhere else that due to demographics workers will be in demand. Workers in demand are valued, and valued workers are treated much differently. Workers who are valued, don't need unions, and workers who aren't valued will have more effective ways in dealing with employers than what is available through the North American business-union model.

It would be very difficult for any worker to challenge the OLRB. Few lawyers in Ontario would be willing to take on a challenge of this kind. Most of those who are familiar with labour law represent either employers or unions and no one who goes before the OLRB with any frequency wants to take on the OLRB for obvious reasons. I think that that most likely way that the not-so-just processes are going to get tossed by the courts are if working people support each other, pool their resources, help each other. Winning these cases will take a lot of effort and time but I don't think it's rocket science either. Hopefully, the distinction between justice and injustice isn't going to be a tough call for the courts (if it is, then we're in worse shape than we know).

Alternatively, with the changes that are coming with shifting demographics, the LRB's intransigence and bias may speed their obsolescence.

weiser, I don't think I had a thread going on the coming labour shortage and the impact of generational differences on the workplace but since you've mentioned it, I've started one here. .