'When did you become a labour relations expert?'
Earlier this week Chris Budgell, a former City of Vancouver worker and member of CUPE Local 15, won a remarkable victory in the BC Supreme Court. Budgell had asked the Court to overturn the BC Labour Relations Board's dismissal of the Duty of Fair Representation complaint he'd filed against his union in 1999. After a two day hearing, the Judge concluded that Budgell's union had not represented him very well and that the BC Labour Relations Board was patently unreasonable in its refusal to recognize that.
Budgell's victory may not seem like much to get excited about. Getting good service from a paid advocate is something that we assume should happen all of the time. So is getting fairness and due process from a judicial agency. Unfortunately it's not necessarily so - particularly if you're a union member trying to get representation from your union or fair treatment at the Labour Relations Board.
If the litigants in civil disputes or defendants in criminal proceedings were represented the way Chris Budgell was represented by his union after being fired from his job, the ranks of the legal profession would be considerably thinner by now. We may be well on the verge of a lawyer-less society! Lawyers would be disbarred by the busload if they treated their clients the way that many unions treat their dues-paying members. The insurance industry would be near collapse from the weight of all the malpractice lawsuits. If civil disputes were adjudicated the way union members' DFR complaints was handled, judges would be booted off the bench and the court system would be creaking under the weight of countless appeals.
A different system of justice has evolved for working people who are union members. It's not really about justice at all; it's about keeping them in their place and keeping good relations between their employers and their unions. Everyone involved does well out of it except the working people themselves. Few understand it and fewer still know enough about it to challenge it. Chris Budgell is the thin edge of what we hope will be a very big wedge. He challenged the system and won and he did it all on his own.
Budgell's story is a textbook example of how workers get screwed by their employers, their unions, the rent-a-judges who preside over their arbitration hearings and the LRB guys who dispense labour relations justice. Budgell got done by everyone. To this extent, he's not unique. Thousands of working people get the shaft like he got did every year. What makes Budgell unique is that he decided he was going to do something about it - to find out if there is justice outside the labour relations system. He found out that there is and it didn't take the judge all that long to see how he'd been wronged.
"When did you become a labour relations expert?" Budgell's union rep asked him when, after months of waiting, he asked that his dismissal case be taken to arbitration expeditiously.
All the wheels in the labour relations system consider themselves to be experts. They keep their expertise to themselves. This monopoly on knowledge gives them a lot of power. Few workers who have been done by the system know why, or what they can do about it.
Here at MFD, we've made it our mission to bring knowledge to working people because knowledge is power. How the labour relations system works is something we know a lot about and we're always eager to share.
Budgell was fired by his employer, jerked around by this union, pissed on by an arbitrator and blown off by the BC Labour Relations Board. Chris Budgell's case is full of good examples of what's wrong with the system, so let's see what we can learn from it. Here are a few things (we've put them in coloured text) that labour relations experts know about and now - so do you.
Budgell was hired by the City of Vancouver in 1998. The City told him that he would have to serve a 6-month probationary period. This was a big screw up because the probationary period for his job (under the collective agreement) was 12 months. The City never noticed this big boo-boo and, 6 months into Budgell's employment, decided it wanted to extend his probation by an additional 6 months.
Probationary periods are important to employers and workers. During probation, employers have a lot more discretion in firing workers - they can let them go for pretty much any reason. Once probation is over, it's a whole different ball game. The employer has to show "just cause" for dismissal and that involves a lot more time and effort. Once past probation, a worker achieves a measure of job security - he or she can't be booted out arbitrarily. That's one of the primary advantages of belonging to a union.
An employer can't unilaterally amend a term of a collective agreement - it needs the union's consent to do that. The City was in the wrong when it told Budgell that he would serve a 6-month probationary period - the actual probationary period was 12 months and the City didn't have the union's consent to impose a shorter period. At the same time, if you're hired under certain terms and conditions and your employer subsequently decides that it want to alter those, that creates a problem: Constructive dismissal. This is a real pickle for an employer.
Having told Budgell probation was 6 months, the employer then screwed up again - when it told him that it was imposing (unilaterally) a 3-month extension. None of this was done with the union's involvement or consent. The City would later argue that Budgell agreed to the extension because he didn't disagree with it at the meeting (in effect, that he led them to believe he was good with it).
But once as union is in place, employers can't do deals directly with workers. That would make belonging to a union and having a collective agreement pretty much meaningless. Nor does it make any sense at all to expect a worker with 6 months of service behind his belt to enter into these kinds of discussions alone and unrepresented.
Budgell expressed his disagreement with the extension shortly after, when his union filed a grievance about this unauthorized extension. The City fired him a couple of months later in August 1999. Budgell's union filed a grievance about his dismissal. Several months passed as the grievance made its way through the two meetings required under the grievance procedure in their collective agreement.
Labour relations experts would say, "That's just the way it is. Meetings take a long time to convene, there is a lot of preparation involved, the schedules of many important functionaries must be juggled, yada, yada…" The truth is, if you want to advance a grievance quickly, you can. Putting pressure on an employer to deal quickly with a grievance, you can.
Budgell took a keen interest in his two grievances. By December 1999 he was getting impatient. He wrote to his rep asking for the union to get a move on. He asked that his grievances be taken to arbitration through an expedited process that is available for those who want to get to their day in court before they get too old. His rep, Chris Merrick, refused to go the expedited route and chastised him: "I wonder what your background is in labour relations and when you became an expert."
Workers are supposed to sit quietly on the sidelines as their grievances make their way, often at a snail's pace, through the grievance procedure. Depending on the collective agreement, a grievance procedure may require anywhere from one to three meetings between representatives of the employer and union. Under most collective agreements, dismissal grievances can be filed at one of the later steps of the procedure, to speed things up. It's not uncommon for these meetings to take several months to arrange. This is often because the employer representatives drag their heels about scheduling meetings, take too long to respond at each of the steps - and the union reps let them.
There are a number of steps that union reps can take to speed a grievance through the procedure. These include holding the employer to the time lines set out in the collective agreement for processing the grievance, advancing the grievance to the next step if employer reps are dragging their asses on meeting, and applying for expedited arbitration - a process available under the labour laws of most Canadian provinces.
Union officials and management guys hate expedited grievance proceedings, which are available under the labour laws in most provinces because the hearing comes up too quickly. Everyone has to scramble around getting prepared and maybe even putting off other more interesting tasks. It is often said that because the arbitrator is appointed by the department of labour instead of selected by management and union officials, there is an additional element of risk - "You never know who you'll get". The reality is that you're as likely to get an arbitrator who's a jerk one-way as the other. With the expedited process you at least get a decision out of him or her more quickly.
Merrick's lack of enthusiasm for Budgell's grievances can be easily understood by those who know a thing or two about the repping trade.
Most staff reps don't really see themselves as advocates for or representatives of the worker. If they represent anything, it's the union and its interests, which aren't always consistent with those of the members. Practitioners in the repping trade see themselves as miniature lawyers or alternative dispute resolvers - practitioners of the craft of keeping order. When in mini-lawyer mode, they take educated guesses about the strength of a case and - right or wrong - let their conclusions determine how actively they will pursue it. A perceived "lost cause" isn't worth spending a lot of time on. The relationship they develop with the member also influences their thinking, as does the relationship with the employer. A difficult member will get less attention, usually only as much as is required to guard against a DFR. A probationary member isn't worth a hill of beans. A good relationship with an employer must be preserved. Problem-solving, dispute resolution "win-win" arrangements are trendy buzzwords in the repping trade. There are many reasons for a rep to not want to put a lot of effort into a case like Budgell's and none of them are good ones.
Merrick himself said told Budgell that his role is to resolve problems. The problem wasn't that some poor bastard had been unjustly dismissed; it was that he'd filed a grievance that needed resolving. Resolving the grievance, so that there could be peace been management and labour, was the objective. If getting Budgell his job back wasn't something the employer wanted to entertain, well, other options would need to be canvassed, and were.
Sensing Merrick's lack of interest, Budgell advised him that he was getting impatient and that if the union would not represent him, he would damn well represent himself.
This was a bad move if he wanted his rep's cooperation: Staff reps don't like to be questioned, second-guessed or threatened with worker-initiated action. By demanding representation, Budgell frosted his relationship with his representative big time.
Merrick dutifully brought Budgell's grievances to the local's grievance committee. He told the committee that the union only had a 50/50 chance with the grievance and that there was chances of success were not "extremely high". The whole thing would take 4 hearing days and cost the local $20,000 to $25,000.
There may or may not have been meaningful discussion of the merits of the two grievances at this meeting. In some cases there is in others, the grievance committee is given a cursory review of the grievances and the rep's opinion of what the outcome will be and how much the whole thing will cost.
There are a couple of very interesting issues in Budgell's grievances: Once a collective agreement is signed, the employer can't unilaterally change any term or condition of the agreement. The consent of the union is required. At the same time, at common law, representations made to workers at the time of hire, can't be withdrawn or altered without putting the worker in a constructive dismissal situation.
Was the employer stuck with the shorter probationary period it told Budgell he'd have to serve when he was hired? Did the employer have the right to unilaterally extend that probationary period? Was Chris Budgell past probation at the time he was fired? If the answer to the first question is "yes", and the second question is "no", then Budgell would have been past probation at the time of his dismissal. It's doubtful that the employer had done the kind of performance management that it needs to show in cases where it wants to satisfy an arbitrator that it had just cause for dismissal. Budgell's case wasn't an ironclad winner but then, few grievances are. At minimum, he had an arguable case and stood a reasonable chance of winning. If he won, he would be reinstated, quite likely with back pay and seniority.
"It's 50/50" is a standard rep's-eye-view assessment as to the odds of winning a grievance at arbitration. Why it's 50/50 as opposed to 60/40 or 30/70 is rarely ever explained. 50/50 is like saying, "we might win and we might lose"; the glass is half empty or half full. A grievance committee can do what they want with this kind of assessment. If they want to dump the grievance, they can say, "there's a good chance we're going to lose", if they want to proceed with the grievance, they can say, "there's a good chance we're going to win". These 50/50 assessments are pretty meaningless. In Budgell's case, Merrick says the chances are 50/50 and then says that they are not extremely high. This seems inconsistent in that "not extremely high" would suggest that the chances are "high". How high do the odds have to be before a member is entitled to representation?
Merrick's estimate as to the length of hearing maybe have been carefully considered or could have been straight off the top of his head. The same can be said about his assessment as to costs. Costs are often a major consideration in grievances that the union wants to dump. "It will cost the local thousands of dollars to represent you" is a standard kiss off. But where is the line drawn? How much money is too much to spend defending the rights of union members? Nobody knows. The experts aren't saying.
Upon learning that his grievance would be taken to arbitration, Budgell asked for a new representative, someone with whom he shared mutual respect and trust. Sounds like a reasonable request. Why would anyone want to be represented by somebody with whom they share mistrust and disrespect? Budgell got less than he asked for in union staff lawyer, Ms. Kilfoil. Although he was accused by his employer of poor work performance and not getting along well with others, Ms. Killjoy declined to interview witnesses who Budgell said could refute the accusations. Worse still, "During [their] second meeting [she] became progressively more disrespectful and hostile to the petitioner. She made comments to him such as "you just don't get it", "you still don't get it", "you should sit back and take a good look at yourself" (this from the court judgment). Imagine having this ill-mannered dump truck fighting your battle!
Labour lawyers don't like to be questioned or second-guessed by workers. Although they are often quick to pop off with opinions they are not so quick to explain themselves. Workers are expected to take their word for it. Kilfoil's highhanded demeanour towards Budgell is not unheard of among union lawyers. Their client is the "union", not the union member. Despite the strengths of his case, she decided, based on whatever, that it wasn't worth putting a lot of effort into. Budgell just wasn't getting it or, more to the point, he wasn't buying it.
Kilfoil persuaded Budgell to make an offer to settle both grievances: Reinstatement to his job with a new 3-month probationary period. When she presented the offer to the employer, however, there were a couple of additional strings attached: Budgell would agree to forfeit any claim to back pay, seniority and benefits that he'd lost over the 6 months that had passed since his dismissal.
Kilfoil would probably tell us that "reinstatement" means just that: reinstatement. If nothing is said in the settlement about back pay, seniority or benefits, there's no entitlement to those. That's true but how is someone who is not a labour relations expert to know about this?
The employer didn't buy the proposal in any event and instead, countered with an offer of $7,500.00 in exchange for Budgell's resignation. When Budgell said he'd have no part of such a deal, Kilfoil told him that she was going to recommend that the union's executive (which has the authority to settle the grievance with or without Budgell's agreement) accept it anyway. As if that's not bad enough, she was going to do this just one week before the arbitration hearing was scheduled to begin.
Here is the union's in-house legal hack - someone who is supposed to be a resource person and to represent members to the best of her ability (presumably anyway) - telling a member with a pretty decent case that he ought to forfeit his job for a lousy $7500. Further, she's not going to foist this on the union's executive as a good deal. Further, she's going to do it a week before the hearing. Believe it or not this kind of shit actually happens. How's that for representation?
Throwing some money at "the griever" is a cynical strategy employers use to settle grievances. The thinking is that, by this stage in the proceedings the poor bastard is flat broke and hurting badly so a few thousand bucks will seem awfully appealing. It also gives his representatives something to take to the union executive that they can spin as a "reasonable offer to settle". What's reasonable about giving up your livelihood for a pittance? Don't know. The experts aren't saying.
Fortunately, Budgell had the presence of mind to put the brakes on this. He wrote to the local exec telling them that the offer was unacceptable to him and again asking for proper representation. The day before the hearing, the Local responded to his request. In a phone message from the Secretary Treasurer, he was told that an outside lawyer had been retained for him and that the hearing, scheduled to begin the following day, had been adjourned by one day to allow the two of them to meet and prepare.
Arbitration hearings can be and frequently are deferred by weeks, sometimes even months. The union can either ask for the employer's consent to adjourn (employers will often say "yes" because they know that sooner or later they'll be the ones asking for an adjournment and will want the union to cut them some slack). Otherwise, they can go before the arbitrator and ask for an adjournment. Being represented means being represented competently, by someone who is well prepared. We don't doubt that the hastily appointed outsider was a competent guy who did the best he could under the circumstances but having only one day to prepare for a hearing involving two distinct grievances and some complicated issues is ridiculous. Budgell might as well have brought a trained seal.
The hearing into the two grievances lasted all of two days (not four, as Chris Merrick had estimated) and Chris Budgell lost both. Again, he'd have been better off going before a trained seal and asking for justice. But wait 'til you hear what happened next. We'll be back next week to make a journey of learning and discovery out of that.