Members for Democracy Archive

MFD Weekend: Fighting our own battles and winning

Worker wins in Supreme Court, ruling slams union and LRB

A former CUPE member has scored a big win in the BC Supreme Court that could have implications for thousands of workers pursuing Duty of Fair Representation complaints.

Chris Budgell, formerly a member of CUPE Local 15, asked the Court to quash a BC Labour Relations Board decision that dismissed his DFR complaint without a hearing. The complaint alleged that CUPE was negligent in its handling of his dismissal grievance after he was fired, without warning, from his job at the City of Vancouver.

In a decision issued earlier this week, the Court found in Budgell's favour on two important points. The Judge ruled that CUPE failed in its duty to properly represent him:

Based on the record before the Board, the Union, arbitrarily, and without prior notice or consultation with the petitioner, appointed counsel, unknown to the petitioner, and unfamiliar with his case, some 24 hours prior to the date originally set for the arbitration. To appoint counsel at such late date, in the circumstances of this case, is the equivalent of providing no representation at all. No counsel, on such short notice, could properly and fully represent the petitioner's interest. It was a clear breach of the Union's duty to provide fair representation.

The Judge also found that the BC LRB's decision to dismiss Budgell's complaint without a hearing was patently unreasonable.

As pointed out earlier, previous decisions of the Board place a higher onus on a union in cases of termination. It is difficult to think of any matter more important to a union member than the loss of his job. Under the collective agreement, the individual union member rights are left at the mercy of the union. A union has an obligation under s. 12 not to act in a matter that is arbitrary, discriminatory or shows bad faith. The appointment of counsel on the eve of the hearing was in the circumstances of this matter, at a minimum arbitrary, and might, given the apparent hostility between the petitioner, Ms. Kilfoil and Mr. Merrick also constitute bad faith. In my opinion, the Board's conclusion that the petitioner had failed to meet the evidentiary burden was patently unreasonable. On the record before the Board, the Board's determination that the petitioner had not established that a contravention of s. 12 had apparently occurred must be quashed.

Unless CUPE, the LRB or the City appeal the ruling, Budgell's DFR complaint will be referred back to the LRB for hearing.

It's very common that workers' DFR complaints are pitched out by LRB's without even being heard. At the LRB, it's the rights of the employer and the union that count. Chris Budgell shows us that once you get past the labour relations "system", you have rights too.

The ruling

Chris' case is a milestone in that the courts recognized that he existed as a person, and that people's rights are always affected by the activities of the corporate bodies known as Companies, Unions and the bureaucracies set up to facilitate their business dealings.

It's unfortunate that the Justice didn't want to and in some instances was restrained from wading too deeply into the pool of swill known as the Labour Relations System. Nevertheless, Chris, literally and figuratively took on City Hall and won a huge victory.

The employer and the union were blown away by a guy with one hell of an organized mind and a truckload of tenacity.

As the "petitioner" in this case, I should say what's been achieved so far is substantially due to the moral and other support that I got from a lot of people. That includes the folks administering and contributing to this MfD site. Ultimate success in the struggle for a just system depends on people working together. Everyone participating on this web site is making a contribution to that effort.

Also, thanks for the compliments, but the truth is I'm not smarter or more organized than anyone else. I guess I've shown a good deal of tenacity, but so would most other people given the same circumstances. It was evident to me from early on that if I could get this matter before the courts I'd have a really good shot at turning it around.

I'm not the only person that has been working at challenging the labour board(s) in the courts. I've met other people who were working on their own cases long before me, and I've learned a lot from them. My relatively quick success is probably mainly due to the fact that the circumstances in my case were quite simple. From what I've seen, it appears most serious DFR cases are more complex, however the underlying issues are the same.

Perhaps the labour relations community will try to rationalize that my case was an anomaly. But that's not really true. I believe many other DFR cases could be successfully challenged in the Supreme Courts. And if my experience is any indication, it's not that hard to do (though I can only say that now in retrospect). Anyone who has a serious complaint to take to the labour boards should first decide if they are prepared to take it to judicial review. If not, it probably isn't worth proceeding at all.

Perhaps the key point to understand is that people can represent themselves in court successfully. You don't necessarily need a lawyer. In fact the entire legal community in Vancouver refused to help me, and made every effort to discourage me from proceeding on my own. They all said this case couldn't be won. The process of preparing and getting to court is a mystery of course, because that's how the legal community likes it. But once you figure out how the process works, it is relatively straight-forward. I'd say a case is generally won or lost in the preparation. I probably won mine because of a well written and thorough affidavit along with a strong argument. The hearing itself, which lasted two days, was almost anti-climactic.

So I'd encourage other people to think about doing the same. One successful case is definitely not enough if we are going to effect some real change. I still have a struggle ahead of me as my case now goes back to the Board, however at some point, I'll document the steps that I took to get to a successful court challenge, so that others don't have to go through the same learning curve. Meanwhile if anyone has any questions, post them here or just email me, and I'll try to help.