Case Name: Vandale (Re) Teresa Vandale ("Vandale"), and Canadian Union of Public Employees, Local 2979 (the "Union") [2013] B.C.L.R.B.D. No.

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1 Case Name: Vandale (Re) Teresa Vandale ("Vandale"), and Canadian Union of Public Employees, Local 2979 (the "Union") [2013] B.C.L.R.B.D. No C.L.R.B.R. (2d) 303 BCLRB No. B55/2013 Case No.: British Columbia Labour Relations Board Panel: Bruce R. Wilkins, Vice-Chair Decision: March 6, (35 paras.) Appearances: Teresa Vandale, for herself. Amanda Rogers, for the Union. I. NATURE OF THE APPLICATION DECISION OF THE BOARD 1 Vandale alleges the Union violated Section 10 of the Labour Relations Code (the "Code") when it removed her from the position of shop steward. II. BACKGROUND FACTS 2 Vandale and Sean Shea were temporarily appointed as shop stewards in May Vandale ran for the office of President of the Union but lost the election to sitting President Al Guske on June 13, 2011.

2 3 On October 6, 2011, the Union's membership approved by-laws for the Union which were sent to CUPE National for approval. With respect to shop stewards, the Union's by-laws say the following: Shop stewards shall be appointed annually by the elected members of the Executive Board. If a member can adequately demonstrate that they have the support of the majority of their department the executive board may give that individual preference in appointment to be the steward for the department. 4 Previously appointed shop stewards Vandale and Shea continued to be shop stewards after the by-laws were approved by the membership of the Union. Members of the Union Executive included Glenn Miller, Vice-President; Dianna Gees, Secretary Treasurer; and Shea, Recording Secretary. 5 Section 15 of the Union's by-laws, which is entitled "Complaints and Trials", says the following: All charges against members or Officers must be made in writing and dealt with in accordance with the Trial Procedure provisions of the CUPE National Constitution. 6 On January 12, 2012, Vandale gave a shop stewards' report at a Union meeting. Among the remarks in her report are the following:...i also stated in my to her that I thought the executive should attend as they need training to better assist them in their delivery of fair and equal treatment of all the employees. *** On Monday November 14, 2011 I noted Al at work I saw Dianna driving around and I saw Glenn in his new truck driving around it would seem that no one attended the courses. *** On November 16, 2011 I sent another to Al, Dianna and our New Rep. as our new collective agreement has not been sent to the L.R.B. to be added to their other collective agreements on-line. *** I saw John on the loader at 2:20 he did NOT attend the meeting to take notes as we ALL were directed to and was so important. *** It seems strange now that an individual (EXECUTIVE MEMBER) has been put into a Vacant position that should have been posted, once held the title of O.A. 3 (the only one the District had since Elaine left) would accept this new title!!! Some requirements also suggest grade 12 education but if one has the

3 knowledge, experience, skills and abilities to get the job done that generally is sufficient and must be acknowledged too. It also seems strange that some individuals (Executives) get to draw up their own job descriptions with their own specific requirements to make sure they are the only ones who can bid successfully on the job!! PROTECTIVE SERVICES ASST. (2 of them) *** January 6, 2012 sent an requesting our new Recording Secretary's contact so I could ask for a copy of the Agenda for tonight's meeting and was informed by Dianna that SHE won't have them ready until after they hold their Executive Meeting on Wed. so I asked why she was doing the duties of the Recording Secretary. I also asked for the minutes/notes from the meeting the executive had with Barry in regards to extending the CASUAL RECYCLE position. Again I received NO REPLY. (emphasis in original) 7 Following the meeting on January 12, 2012, Guske sent Vandale a letter dated January 24, 2012 which reads as follows: Dear Sister Vandale; Following the meeting of January 12th a complaint was brought forward from one of the other shop stewards in regard to your Shop Stewards report. The steward believes the decision on the recycling positions was in the best interest of the membership, approved by the executive and the CUPE representative. The shop states that you did not try to contact him on this matter in which you tried to critique the executive creating conflict and uneasiness in the membership. As fellow brother[s] and sisters we need cooperation, understanding and mutual respect in building and maintaining a solid future and harmonious relationship between the Union and the Employer. Your report did not contain any information to hold the last statement true. The executive feels that your report reflected a focus that undermines and devalues the efforts of the executive, management and the membership to work towards a safe, stable, positive working environment within the District. Please observe and reflect back on the roles of an executive shop steward as to the way you portrayed your dissatisfaction with the executive's position on the matter concerning casuals and liberal use of. You must understand that we are trying to build permanent solutions that benefit the whole membership and to allow the Employer and the Union to work in harmony. You as a shop steward should respect the decisions of the executive in their efforts to build this relationship. If this is something you cannot do, you may remove yourself from the Shop Steward position. It is very difficult to put together a Union with a shop steward focused on negative derogatory remarks aimed at the executive and CUPE repre-

4 sentative. Further outward remarks will not be tolerated. Opinions can help a local evolve but opinions that attack and undermine the executive do not help us grow. Therefore, on the interim, shop stewards will respect each other's boundaries. (emphasis in original) 8 Vandale replied extensively to Guske's letter on February 6, 2012 with a five page rebuttal letter of her own. In that letter, among other comments, Vandale defends her conduct as a shop steward and criticizes the Union Executive among other comments. 9 Going back as far as 2011, Vandale had been in contact with CUPE National about the running of the Union. National representative David Scott was appointed in response to the concerns Vandale had expressed to the CUPE National office. On February 23, 2012, Scott met with Vandale to discuss the situation. Among other topics discussed, Scott asked Vandale to be more respectful when dealing with the Union's Executive. He sent her a follow-up letter which briefly summarizes the topics they reviewed at the meeting: Dear Sister Vandale: RE: Meeting of February 23, 2012 I want to thank you for taking time out of your day to meet with me. As discussed here are the five (5) points that I had you review before leaving: 1. Transparency 2. Postings 3. Consistencies 4. Mutual Respect 5. Reclassifications I hope to work with the Union (including members) and the Employer to implement changes. In solidarity, David Scott National Representative 10 Vandale participated in a Union general membership meeting on March 15, She presented a shop stewards' report as she had in the Union meeting on January 12, On March 16, 2012, Guske sent a letter to Vandale and made the following remarks: Teresa Vandale Re: Cupe Local 2979 March Regular Monthly Meeting Dear Teresa Vandale,

5 The executive along with the Rank and File who showed up to the March 15, 2012 Regular Meeting were appalled with the way you conducted yourself during this meeting. We are here to help bring in members to keep them informed and allow the Rank and File to put items on the Agenda. We do not want out of control members putting our meetings in disarray. Here are some of the Actions and Statements you bought [sic] up during the meeting. * This meeting is a farce and a joke. * I am going to the Media. * Public Works only show up when there is food. * When there is a vote, Public Works shows up. * Calling Public Works, Army troops. * Throwing your report across the table. * Statement referred to a grievance this is not over with. * Under your breath remarks. * Slamming your hand on the table. These union meetings have to be conducted with professionalism and in a timely matter [sic]. We are doing our best to bring these members into our meetings but what we do not want is this kind of behaviour that portrays our local as out of control and unprofessional. This is not the first time you have been approach [sic] with your conduct at union meetings, your conduct will have to improve for these meeting [sic] and act professional and with dignity or the union will not allow you to participate in any other meeting. Sincerely, Al Guske, Cupe Local 2979 President 11 I note that Vandale does not dispute the facts as alleged by the Union of her conduct during this meeting, except for the allegation that she "threw" her report across the table, she says she simply gave a copy of it. 12 On May 17, 2012, Shannon Johnson volunteered to be a shop steward at a Union meeting and was accepted by the membership. Vandale was removed from the position of shop steward by way of a letter from Guske on May 25, That letter said the following: Re: Shop Steward Duties Dear Teresa: It has come to light with the executive of Cupe Local 2979, that your conduct as shop steward and member of Cupe Local 2979 has been inappropriate and very unprofessional.

6 The executive has no other choice but to remove you from your shop steward duties and you will no longer conduct union business relating to grievances or any other union business to do with Cupe Local Sincerely, Al Guske, Cupe Local 2979 President 13 After being removed from the shop steward position, Vandale continued to ask the National Union for specifics as to why she had been removed. On October 15, 2012, she sent an to Scott as follows: III. David, Robin: Again I am asking for specifics as to why I was releived [sic] of my Shop Stewarding duties by the executive here, They will not give me any answers and I feel I have asked enough times for this information, I asked again at our last general meeting and my president stated "it was a done deal, go to the top" I asked the top of what, I have asked you I have asked David and I have asked CUPE National. What part of our Constitution did I break, none that I have read and for me to make a complaint against my executive I would have to take it to a committee of 11 local members and we all know that with the numbers in the public works department all of my trial panel would be from there as they dominate the whole of the local in every way and eliminating 3 of them would not make a difference and I would still not get fair hearing there either. Why didn't my executive have to follow this process when they FIRED me as a shop steward? So in all actuality my executive violated our Constitution by not following the process themselves so I guess they are above any rules or processes because they are the executive that controls, dominates and are corrupt in their leadership methods and how they handle matters. (emphasis in original) ARGUMENT 14 Vandale says the Union failed to act according to the principles of natural justice when it removed her from the position of shop steward. She says she was not given particulars or specifics of the accusations and charges brought against her; there was no notice of charges or accusations; the Union did not say what part of the Constitution it was relying on or specify what gave them the authority to discipline; there was no trial or trial panel; no hearing was held; there was bias based upon the manner in which she handled grievances in which executive members were personally involved; there was no verdict based upon evidence but only on matters outside of the evidence; and that she was not allowed the right to legal counsel. 15 Vandale argues the Union by-laws stipulate the Executive has the power to appoint shop stewards, but there is nothing that says it can remove a shop steward once appointed. She argues that Article 15 states all charges against members or officers have to be dealt with in accordance with the trial procedure provisions of the CUPE Constitution.

7 16 Vandale seeks a number of remedies from the Board including reinstatement to the position of shop steward and costs. 17 The Union says the complaint should be dismissed for lack of particulars. 18 The Union argues there is no provision in the CUPE Constitution that speaks to the selection and/or removal of individuals from a shop steward position. It says a complaint that an offence has been committed under the Constitution is not a prerequisite to one's removal from a shop steward position. 19 The Union says the case before me should be decided in keeping with Gregory Wilson, [1997] B.C.L.R.B.D. No. 378, BCLRB No. B378/97 where the Board made the following comments: The shop steward is not an employee of the Local Union. The steward does, however, act as the Local Union's and the members' representative. In exchange for that the steward is afforded certain benefits: dues refunds; one of the last people to be laid off on a job site. If the steward is not acting in accordance with the duties outlined in the bylaws, then the Business Manager has every right to remove him from the position after complying with basic rules of natural justice. These basic rules are that the person must know the case being made against him or her and the person must be given an opportunity to answer this case. This does not necessarily mean a formal hearing even if a hearing is provided for in the Constitution and/or the bylaws (see Herman Pereira et al., [1996] B.C.L.R.B.D. No. 8, BCLRB No. B8/96). In this particular case there is no provision for a hearing in such a situation. From a practical point of view, with jobs lasting on average three to four months in the glazing industry, to introduce a formal hearing into the removal of a shop steward would grind the processes of natural justice to a halt. (paras ) 20 The Union says it met the requirements of the rules of natural justice by informing Vandale her conduct was inappropriate, and that Vandale had the opportunity to adjust her behaviour. The Union says she chose not to do so. IV. ANALYSIS AND DECISION 21 The facts before me establish that Vandale used her position as a shop steward to criticize and undermine the Union's President and Executive. The evidence I have reviewed demonstrates that Vandale is openly contemptuous and explicitly critical of the Union Executive. 22 The question I must answer is whether Section 10 of the Code was violated by the Union. Section 10 of the Code reads in part as follows: 10 (1) Every person has a right to the application of the principles of natural justice in respect of all disputes relating to

8 (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. 23 The conduct the Union complained of is not a violation of the Constitution which is among the listed offences which require a formal charge. I therefore conclude that this is not a "matter in the constitution" under Section 10(1)(a). Nor is this a matter under 10(1)(b), because Vandale's membership in the Union is not affected. The question is whether the removal of Vandale from the office of shop steward constitutes "discipline" under Section 10(1)(c). The removal of a shop steward was considered discipline by the Board under Section 10 in Hermon Pereira, et al., [1997] B.C.L.R.B.D. No. 83, BCLRB No. B83/97 ("Pereira"). I will take it for granted that Section 10(1)(c) does apply. 24 What are the requirements of natural justice in the circumstances of this case? The requirements of natural justice are contextual, and one of the key considerations is the nature of the interest of the person affected by a union's decision. The Union has removed Vandale from the position of shop steward and replaced her with another person. This has no employment or monetary consequence for Vandale. She has not been expelled from membership in the Union or given a punitive fine. She has not been banned from seeking office in the Union in the future. 25 I find in this context the effect of the Union's decision upon Vandale is less than in those circumstances where a person has lost their job because of a loss of union membership, for instance. Consequently, the procedural requirements of natural justice are on the lower end of the scale. What Vandale suffered was the loss of the office of shop steward. 26 I find Vandale has suffered the consequence she has as a result of the reasonable administration of the Union. In my view the Union had ample justification for taking the actions it did. Vandale used the office of shop steward to explicitly and aggressively attack the Union Executive in a clear attempt to undermine it. This is not a situation that could reasonably continue. This is because it is behaviour which, when objectively viewed, could be destructive of the proper administration of the Union. 27 The role of the shop steward is a crucial one in the system of labour relations under the Code. Shop stewards act as observers and advocates for their unions in the thick of the everyday operation of the workplace. They respond to members' complaints; ensure the collective agreement is being followed in the workplace; initiate and defend grievances under the collective agreement; report to the membership at large concerning the administration of grievances; keep the members informed concerning union issues; and keep the executive informed of what is happening in the workplace. When a union member takes on the role of shop steward there is a reasonable expectation that person will not use that position to also undermine a union's democratically elected leadership. When a person uses the office of shop steward for the collateral political purpose of undermining a democratically elected union executive, this creates a critical problem for the proper administration of the union. 28 This is not to say that union members do not have the right to criticize their union. In Marilyn Coleman, BCLRB No. B282/95, 28 C.L.R.B.R. (2d) 1 ("Coleman"), the Board said the following: The power of discipline and the principle of majoritarian rule cannot be used by a union executive or its officers to silence the views of a minority or to take away the right of an individual member to dissent from the majority view.

9 Each member of the union must have the right to stand for office, criticize the union and its officers, support political parties and express political beliefs of any persuasion, and to take a stand on any public issue which may be directly in conflict with their own union's position, without the fear of reprisal or discipline. (para. 168) 29 I also agree, however, with the following comments made by the Board in Pereira: Thus, a trade union may legitimately compromise individual interests in order to preserve the strength of the collectivity. This is essential to the collective nature of trade unionism.... (para. 141) 30 In his letter of January 24, 2012, Guske informed Vandale of the behaviour which was objectionable and appealed to Vandale to change her behaviour in the interests of the Union. On February 23, 2012, Scott met with her personally and made a similar appeal. Guske then sent a further letter detailing the conduct which he found offensive following a second Union meeting on March 15, In my view, the letters from Guske and the meeting with Scott, when viewed as a whole, were sufficient to inform Vandale of the particulars of the problem the Union had with her behaviour. She was informed she needed to respond in a positive manner and was asked to stop the behaviour complained of. She had the opportunity to reply to these concerns with her letter to Guske and in her meeting with Scott. Guske suggested she may remove herself from the position of shop steward. I find Vandale was informed of the problem with her behaviour and chose to continue in the same fashion at the meeting of March 15, In the circumstances, I find the actions taken by the Union were reasonable and consistent with the Union Executive's wish to ensure the Union functioned effectively. 31 What was required by the principles of natural justice in this case was for the Union to communicate the concerns it had to Vandale and to give her the opportunity to change her conduct. The Union communicated its concerns clearly. Vandale was given an opportunity to change her conduct. Vandale did not change, but rather continued her conduct in the same manner in spite of what were clear requests made by Guske and Scott. The Union used the power it felt it had under its by-laws to effect a change pursuant to their need to administer the Union in the circumstances. In these circumstances, Vandale did not have the right to legal counsel, and the Union did not have to hold a formal hearing. 32 If Vandale wishes to replace the Union Executive, her remedy is to run for office herself or to support another candidate she feels is appropriate to lead the Union. Vandale is still a member of the Union and still has the ability to criticize the Union and to speak her mind as a Union member: Coleman. Nothing in this decision should be taken to say that she is not able to continue to speak her mind. I also add that this decision should not be taken to be a judgement of the truth or falsity of comments Vandale made about the Union Executive. 33 I find the Union has not violated Section 10 of the Code. The Union's President raised the concerns he had with Vandale and told her what his concerns were with her behaviour. Vandale was able to reply and was given the opportunity to change her conduct when she received Guske's letter of January 24, She did not change her conduct. The Union used the power it felt it had under its by-laws to appoint a shop steward to replace Vandale. I find this was a step taken in accordance

10 with the principles of natural justice, and further that it was a step reasonably taken to ensure the Union could function properly. 34 The issue of whether the by-laws allow the Union Executive the power to dismiss a shop steward and appoint another one is a contractual issue. The interpretation of the Union's by-laws is a matter for the Courts: Terry Thompson, [2003] B.C.L.R.B.D. No. 444, BCLRB No. B444/2003. I do not have the jurisdiction to determine this question. V. CONCLUSION 35 The Union did not violate the principles of natural justice when it terminated Vandale's role as shop steward and replaced her with another person. Her application under Section 10 of the Code is dismissed. LABOUR RELATIONS BOARD BRUCE R. WILKINS VICE-CHAIR cp/e/qlcsb/qlced/qlhcs

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