10 (1) Every person has a right to the application of the principles of natural justice
in respect of all disputes relating to
(a) matters in the constitution of the trade union,
(b) the person’s membership in a trade union, or
(c) discipline by a trade union.
(2) A trade union must not expel, suspend or impose a penalty on a member or refuse
membership in the trade union to a person, or impose any penalty or make any special levy
on a person as a condition of admission to membership in the trade union or council of
trade unions
(a) if in doing so the trade union acts in a discriminatory manner, or
(b) because that member or person has refused or failed to participate in activity
prohibited by this Code.
(3) If a trade union charges, levies or prescribes different initiation fees, dues or
assessments in respect of a person according to whether the person applies or has applied
for membership in the trade union before or after an application for certification by the
trade union to represent the person as bargaining agent, the fees, dues or assessments are
deemed to be discriminatory for the purpose of subsection (2) (a).
The general principles of section 10 that applies to this matter deals with the
principles of natural justice which set out the procedural rights requiring notice in the
form of the right to know the case against individuals and the particulars of that case.
"There is also a right to a hearing, the ability to call evidence and introduce
documents, the right to cross-examine and to make submissions. The obligation to respect
natural justice also requires trade union decision-making bodies to provide reasonable
notice of the proceedings. A breach of natural justice can be founded on the absence of
notice and an opportunity to make submissions."
In April of 1999 the Construction Locals in northern British Columbia Local 1237 in
Dawson Creek and Prince George Local 1998 effected a merger wherein Local 1237 would merge
into Local 1998. The membership in both locals voted and each local overwhelmingly
approved of the merger. The locals sent a request to Washington to approve the merger. The
10th District Board member James Smith sent Alberta International Union
Representative Ray Drisdelle to Northern British Columbia to investigate the merger. There
was no indication from Drisdelle, Smith or McCarron that the merger would be not approved
in any other form than already agreed to by the membership in the Locals. It came as a
complete surprise when McCarron carved out the members of Local 1237 Dawson Creek school
board Maintenance bargaining unit and transferred them into the all employee Fort St. John
School Board Local 2397. McCarron approved the merging of the remaining construction
members of Local 1237 into Local 1998.
This was contrary to the agreed merger between Locals 1237 and 1998. Local 1237 and the
School Board local 2397 never voted on a merger between themselves.
Locals 1237 and 1998 appealed to the Executive Board to overturn McCarron’s
decision. It was denied. The Locals then made an application to the Labour Relations Board
under section 10 and 37. Section 10 deals with the denial of natural justice. Section 37
sanctions the transferring of bargaining rights between unions.
The Board found that the International violated the code under Section 10 of the Code.
The Board stated that the International’s propensity to issue edicts without reasons
breaches the principles of natural justice. The Board concluded that:
As I do not accept the International’s arguments attempting to mitigate the lack
of notice, I find there was a breach of natural justice by the General President when he
made his decision. I also note that aside from the inadequacy of the notice, there may be
a further defect in the General President’s decision by its failure to offer any
reasons for his conclusion, a matter dealt with more fully below.
The Board also concluded that the International could have corrected itself.
A defect in natural justice can be redeemed if due process is afforded subsequently. A
tribunal may cure its procedural defaults through review or appellate proceedings where a
party has been accorded a full and fair hearing at a later stage.
The Board noted further failings of the International to correct its errors.
The International’s offer of an opportunity to appear in person before the General
Executive Board to make oral representations was a half-way measure that went some way to
remedying the original breach, but it is not one sufficient to overcome the original
defect. The flaw in the appeal proceeding in this case was there was not a complete
rehearing with the right to question witnesses on material issues of fact underlying the
opinion that formed the basis of the decision. The hearing before the General Executive
Board was not what is known in legal terms as a trial de novo (e.g. a complete rehearing
of the matter). Although the Locals were free to call their own witnesses to offer
evidence, there was no right to call those advocating a different view to test their
opinions under cross-examination.
The Board concludes finally that," The combination of the absence of reasons at
the first level with the lack of an opportunity to cross-examine leads me to conclude that
the defect in natural justice has not been cured. Although those two grounds provide
sufficient basis taken by themselves for that finding, yet a further issue arises in
relation to the adequacy of the reasons of the General Executive Board. The decision of
the General Executive Board is most brief."
Besides denying a fair hearing the International’s fondness of issuing edicts and
pronouncements on decisions without reasons damaged their case severely. The Board pounced
on the fact that even with the most "charitable reading" of the
International’s "decision" there was no explanation, just conclusions. In
addition the appeal was dismissed by a "simple confirmation of the General
President’s decision, which in turn had no reasons."
The Board went to say that "I am mindful that unions are not organizations run by
lawyers, nor should they be"…and…" the Board does not expect internal
union bodies to render a decision with the same complexity as a Supreme Court
judgment" …however… "the degree of formality and completeness required
may be tied to the level of sophistication of the union body that is being
challenged."
The Board’s view of the astuteness of the International is embarrassing.
"Just as the duty to respect natural justice may vary with the nature of inquiry,
so may the content of the duty vary with the nature of the decision-making body. In this
case a different level of sophistication would be expected of the General Executive Board
as the highest level of the union hierarchy. At the very least, some statement would be
expected of such a body as to why it reached the conclusion it did. I do not consider that
minimal standard to be unduly onerous yet it was not met in this case."
The Board’s decision overturned the International’s proclamation forcing
mergers which was contrary to the Locals’ membership wishes was also a violation of
Section 37. The Board noted that if it was wrong about the breach of Section 10 the
International’s forced merger edict would still fail because of Section 37 law on the
transferring of bargaining rights.
The law in respect to section 37 of the British Columbia Labour Relations Code reads as
follows:
Merger or amalgamation
37 (1) If a trade union claims that because of a merger, amalgamation or a transfer of
jurisdiction it is the successor of a trade union that at the time of the merger,
amalgamation or transfer of jurisdiction was certified as the bargaining agent for a unit,
the board may, in a proceeding before the board or on application by the trade union
concerned,
(3) If the board makes an affirmative declaration under subsection (1), for the
purposes of this Code the successor acquires the rights, privileges and duties of its
predecessor, whether under a collective agreement or otherwise.
The law in British Columbia requires that before unions can merge it requires a Section
37 application to the Labour Relations Board. Unions can use their Constitutions to merge
but it is without effect until a Board application is made and a declaration issued.
Furthermore apart from any union constitutional provision, the law requires that the
merging unions that are the predecessor and successor unions, together with the affected
members must give clear approval to the merger. Approval "is accomplished by having a
majority of employees in a meeting convened for that purpose on adequate notice support
resolutions in favour of succession."
The Board also ruled that it does "not accept the submission of the International
that no vote is required where two locals of the same parent merge."
The Board found that a vote of the membership is required to effect a merger whether it
is between two different unions or among locals in the same union. The logic of the Board
was spelled in the following way:
I can also discern no labour relations policy reason for a difference in the
requirement to conduct a vote where the locals merging are locals of the same
international parent or subordinate branches of the same national parent. It is difficult
to conceive of any distinction in principle that would require a vote where there is a
merger between separate organizations, but no vote in a merger between other entities
where there is an overarching relationship between the locals through the parent-local
connection. If the underlying policy is driven by a concern to ensure that the democratic
will of the employees is respected, the same requirement for proof of employee support
should be required in both instances.
There are further applications before the Labour Relations board. These applications
further confront McCarron’s restructuring to carve out of the provincial council
another regional council. In a recent proclamation from McCarron he merged locals without
membership votes in preparation to create the new carved out regional council. The Board
noted this in its decision.
Rather than pursuing further litigation in this case and the related applications, it
may make more sense to explore other alternatives. From this decision, it should be clear
to the International that before bargaining rights can be transferred, there should be
proof of employee support. It should equally be clear to the Locals that substantial
adherence to constitutional provisions relating to mergers is required before the Board
will grant a Section 37 application to transfer bargaining rights.
The International has come to British Columbia many times over the last twenty years to
interfere in the vested rights of the members. Every time there has been prolonged
litigation. Every time the International has taken a shellacking. British Columbia
Carpenters have warned the International on every occasion that the constitution does not
fit the legislative statutory rights afforded British Columbia workers. The law supercedes
the constitution. The International has continued to ignore this fact and continued to
tilt at the windmills. We expect them to continue the tilting. Their continued arrogance
is expected. The membership continues to suffer because of the International’s
nonsense. The expenditure of funds and energy to preserve the vested democratic voting
rights of the membership is the great shame of the International. Recently another
International Union tried to impose trusteeship on a Local Canadian union. The British
Columbia Labour Relations Board expressed anger over an American union trying to impose
its will on Canadians and sent that International packing as well.
Despite all this the struggle continues. The International is completely arrogant to
assume it has any power in British Columbia. The International has antagonized the
membership in British Columbia and there is a growing opposition to McCarron in the United
States. It reminds me of an observation of a mid twentieth century American
President…that those people maintaining power riding on the back of a tiger ended up
inside.
(There is a link to the full decision at www.carpentersunionbc.com)
