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On The Level March 2003
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In his decision dismissing the International’s application for a summary judgement and setting a trial date for January, 2004, Justice D.A. Halfyard noted that “only two Locals and one District Council have remitted monthly contributions to the International Plan for many years.” Halfyard also awarded the BC Carpenters their court costs against the International.
In its court action launched last year, the UBCJA Pension Trustees, based in Oklahoma, declared that the BC Locals and Councils owed more than 30 years worth of pension contributions for their paid officers. Claiming that the local bodies should have been contributing 13 per cent of wages towards the International Officers’ Pension Plan held and administered in the United States, the International charged them with an obligation to pay “All unpaid contributions that have accumulated from January 1, 1967, to the (present date) and all contributions payable in the future.” In its initial application, the International was seeking to get a summary judgement on future contributions (and presumably an order to pay) and a trial date to deal with the missed past contributions and damages for interest accrued. Near the end of the hearing — at the “eleventh hour,” according to Justice
SEE: MORE LUCRATIVE PAGE 2
Dismissing the International’s case, Justice Brown concluded McCarron was not acting in good faith and that he issued the order “to obtain a political advantage in the ongoing political skirmishing between the International and the Provincial Council. This is not a proper contractual purpose (of the International Constitution),” she stated.
This victory added to the euphoria that came previously from winning a decision from Justice D.A. Halfyard dismissing the International’s claim for a summary judgement against a large group of BC Locals and Councils for not participating in the International Officers’ Pension Plan. (See SUMMARY page1 above).
BC Carpenters have been involved in a long running dispute with their international parent to achieve autonomy and democratic control of their own organization.
Since 1996, the International has being restructuring the North American Carpenters Union into McCarron’s personal vision of a top-down, business style organization—a vision actively resisted by the British Columbia Carpenter membership.
Justice Brown characterized McCarron’s restructuring as “dictated by the general president. It is not designed or driven by individual members, locals,
provincial or state councils. It is imposed ‘from above.’”
She said, “These changes involved, among other things, forced mergers of locals without a vote of affected members, the transfer of power and bargaining rights from the Provincial Council to more than one newly-established Regional Council and the replacement of elected officers and delegates of the Provincial Council with officers and delegates to be appointed by General President McCarron or his appointee.”
She went on to claim, “The majority of the membership in British Columbia has been and continues to be adamantly opposed to McCarron’s plans for restructuring.”
The case, which was tried last fall, stems from a demand by the United Brotherhood of Carpenters and Joiners International General President Douglas McCarron to send a team of auditors, pursuant to Section 10B of the UBCJA Constitution, to “take possession for examination all books, papers and other records, including all financial records of the Provincial Council.”
The demand, dated June 9, 2000, went on to detail a twopage list of information to be provided, most of which is available in the convention reports published annually, according to Provincial Council Secretarytreasurer David Flynn.
A number of Local Unions received similar letters within a span of several days.
The BC Council refused permission for KPMG to scour the books “looking for excuses to put the council under trusteeship,” as BC President Len Embree said at the time.
McCarron, in his 10B order, suggested he was concerned about resolutions at the April 2000 Provincial Convention that gave him the impression BC Carpenters were about to split from the International.
He also added he was concerned about the finances of the BC Provincial Council and G.R.&S, Holdings, the holding company that the Provincial Council has used to hold and administer its assets since 1970.
Madam Justice Brown said she did “not accept” McCarron’s explanation for issuing the 10B directive. At McCarron’s suggestion that he feared the Council intended to abscond with the assets of the organization similarly to what happened in Prince Edward Island, she said, “I do not accept that the circumstances here are akin to those. Nor do accept that Mr. McCarron or the other plaintiffs believed them to be so.” When the International forcibly took over the Prince Edward Island local in 1997, certain members of the executive set up a competing local union and transferred the assets of the local to a new holding company for the new union. The International successfully sued to recover the assets.
When asked why the Provincial Council was opposed to granting the International access to the books, Flynn said he is suspicious about McCarron’s motives. “I believe that this directive is the first step towards the International moving to put the Provincial Council under trusteeship,” he said.
In his testimony, McCarron said, “I wanted to protect the assets of the United Brotherhood, and I read some resolutions that
were passed at the Provincial Council convention that called for — called for taking all reference to the United Brotherhood out of their constitution, it called for not allowing representatives of the United Brotherhood to attend the convention, and it also called for doing away with the per capita tax and I believe putting like a 25 cent — what they call franchise fee in there, and, in fact, they did stop representatives of the Brotherhood from going to the convention. And that was just unprecedented, and I wanted to act to secure the assets of the United Brotherhood, and that’s what — you know, I wanted to hire a good international accounting firm, KPMG, to go in there and give me where — where the assets
See SUIT page 2
‘No real concern for protection of assets’
Suit is a political battle
Cont’d from page 1
and the records of the Brotherhood were right at that time. I wanted to know where they were so I could protect those assets.”
When asked in court if he had examined the audited financial statements of the BC Provincial Council and G.R. & S. Holdings Ltd., he had to admit he had not. Nor had he instructed anyone else to brief him on the finances of the Council since the 10B order was given, over two years previously.
In her decision Justice Brown said, “I do not accept that the 10B directive was issued to obtain an accurate inventory of the assets of the Brotherhood in British Columbia.” She said, “I do not accept that the 10B directive was issued from a concern that the Provincial Council would disassociate from the International and illicitly make off with assets.”
She went on to explain that with all the internal financial statements available and the fact that two of the plaintiffs (Wayne Cox and Michael Autzen) had full access to any financial records they wished at all times yet asked for nothing, indicated there was no “real concern with respect to an inventory of the assets.”
During the trial, McCarron complained about the reception he got from members in British Columbia. Parts of the video of the Port Alberni meeting were entered as evidence at the trial by the International’s lawyers.
He described his 1999 tour of Vancouver Island, saying: “The first meeting we went to (on Vancouver Island) was Port Alberni and it wasn’t a very — it wasn’t a good meeting. There was — my understanding there was a lot of people there from the Mainland. I was treated with a lot of hostility, and I was asked two questions and couldn’t get a dialogue going. I recall the two questions were whether they could vote on restructuring and whether they could vote on the executive of the council prior to it being formed, I believe. And I answered no to both of those, and they walked out of the room and turned off the lights.”
That same summer, McCarron attempted to forcibly merge some members of Dawson Creek Local 1237 into Fort St. John Local 2397 even though the members had voted to join the Prince George Local 1998. He lost that case at the Labour Board. In December, he tried to force some more local mergers on Vancouver Island while decreeing the establishment of a regional council without a vote, a measure that was also stopped by the Labour Board.
In her conclusions, Madam Justice Brown outlined the International’s case as being “simply, that the constitution is a contract ,the defendants must comply with. They say that the 10B directive is a legitimate exercise of the general president’s discretion.”
She described the BC Carpenter position as that the constitution must be exercised in good faith. “It cannot,” she said, “be exercised for some private advantage or purpose foreign to the power.”
She said, “I have concluded that this is a political battle which has made its way to the courts. The 10B directive was issued to obtain a political advantage in the ongoing International/ Provincial Council battle and not for the purposes intended by the contract. Accordingly, I will not order production of the books and records as sought by the plaintiffs.”
The judge, citing the political nature of the case, also dismissed the Council’s counter claim for damages against the International. “If necessary,” she wrote, “the parties may make further submissions as to costs.”
By Doug McCorquodale
The long struggle of BC Carpenters to achieve autonomy from their parent International Union, the United Brotherhood of Carpenters and Joiners of America has run into a surprising roadblock—the Canadian Labour Congress (CLC).
On October 16, 2001 the BC Provincial Council of Carpenters applied to the CLC for “justification of a planned action,” in accordance with the CLC constitution. This justification sought a resolution to the dispute between the BC Carpenters and its parent International union headquartered in Washington and Las Vegas. The 16 months since the justification application was submitted “has been an exercise in stonewalling by the CLC president, Ken Georgetti,” says BC Council President Len Embree.
This should be of serious concern in the Canadian labour movement. Just three years ago Ontario Service Employees International Union (SEIU) medical workers sought independence from their parent international organization by joining the Canadian Autoworkers Union (CAW). This controversial action was denounced throughout the labour movement as raiding and resulted in CAW being disaffiliated from the CLC. The end result of over a year-and-a-half of recriminations and hard bargaining was that the more than 10,000 service workers voted 92 per cent to join the CAW.
“Now we have come full circle. It is easy to see now that CAW and Buzz Hargrove were correct in their assessment of the CLC’s inability to address Canadian workers’ desire to be autonomous from their parent International Unions,” says Embree.
On his election in 1995, General President Douglas J. McCarron, promised a shift towards organizing. But he didn’t reveal his true intentions. Instead, relying on a clause in the constitution which gives unrestricted power to the General President, he began restructuring the Carpenters Union in North America. This restructuring involved dissolving and merging local unions without membership approval as well as transferring local union assets to McCarron appointed Regional Councils—also without members’ approval. McCarron appointed the leadership of the Regional Councils and local unions were not allowed to elect or hire full time union representatives.
All power in this restructured organization resides in McCarron’s Regional Councils. Furthermore, members in most jurisdictions are no longer allowed to ratify collective agreements. McCarron’s new structure removed the right to vote and imposed a one-size-fitsall Regional Council system throughout Canada and the United States. The only jurisdictions still outside McCarron’s structure are British Columbia and one opposition carpenter local union in Sarnia, Ontario.
The International has not won any of the many lawsuits it has initiated against the BC Carpenters (See page 1). The CLC has repeatedly falsely accused the BC Carpenters of initiating lawsuits which is not allowed by the justification procedure.
Further, CLC President Ken Georgetti has threatened to dismiss the Carpenters’ justification application because of our support for a Labour Relations Code amendment before a government review committee.
The amendment would allow unions to transfer their bargaining rights to another union and would prevent a union local being put under trusteeship without the legal principle of “just cause” being applied.
The CLC President is opposed to a statutory amendment that may interfere with a parent trade union’s constitution. At the same time the BC Carpenters have been unable to process their justification application through the trade union central’s internal process.
“The CLC President has a lot of gall, stalling our application, while threatening the Carpenters from seeking relief in a statutory change,” said Embree. “One way or another we will achieve our autonomy from the International. The CLC and the International cannot prevent this,” he concluded.
More lucrative officers’ pension ‘morally wrong’
Cont’d from page 1
Halfyard, the International’s lawyer offered to forgive and forget past contributions and just go forward with future payments.
Since about 1970 or so, most of the local unions and district councils in British Columbia have been remitting monthly pension contributions for their officers and representatives to the Carpentry Workers Pension Plan of BC, which was created for the benefit of working carpenters. According to Halfyard, “The defendants have never paid contributions to the International Plan in respect of their officers or representatives.” The amount of contributions payable under the BC Plan is about half that of the International Plan.
The Locals claim they would have to stop paying into the BC Plan if ordered to buy into the International Plan. Some believe “it would be morally wrong for them to receive a more lucrative pension at the expense of the working carpenters whose earnings must pay for their contributions,” said Halfyard.
Originally named in the action were Locals 1081, 1237, 1346, 1370, 1735, 2300 and 2511 of the United Brotherhood of Carpenters and Joiners of America, the Northwest, Central, and Kootenay District Councils of Carpenters along with 20 individuals who were subsequently dropped from the application.
Subsequent to Justice Halfyard’s ruling, six more LocalUnions:1907, 1989, 1995, 1998, 2068 and 2736 as well as the Okanagan District Council and the BC Provincial Council were added to the claim. The new additions are not exempted from past contributions in the new claim.
What this means to you is, if you are injured after June 30, 2002, the benefits you receive will be based on your earnings one year prior to your accident. There is no more three or five-year averaging of wages. Once the one-year gross earnings are calculated, your rate is based on 90% of net. Previously, if you were making $40,000 per year, you would have received approximately $577 per week. Now you will be receiving $535 per week. The drop of $42 per week translates into a loss of more than $2,100 per year.
If you received a pension before June 30, 2002, you will receive it for life. Now pensions are only payable to age 65. If you are hurt after the age of 63, you will not receive any pension regardless of how significant your injuries are.
Should you be unable to return to your pre-accident occupation, WCB is planning to restrict any retraining to 26 weeks and 14 weeks of job search. Any useful retraining takes more than 26 weeks. As WCB will now only pay loss of earnings pensions (the difference between what you were making when you were hurt and what you can make with your retraining) in “extraordinary” circumstances, it is unlikely you will be fully compensated for your loss.
Previously, you had a right of appeal to the Review Board, Appeals Division, and the Medical Review Panel. Now there is only a two-level appeal system, the Review Division and Workers’ Compensation Appeal Tribunal (WCAT). You are only guaranteed one appeal to the Review Division, which is an internal review process conducted by WCB employees for issues relating to vocational rehabilitation benefits and some pension issues. For those people who have been caught in the backlog waiting for their first appeal, they will only be entitled to one appeal at the WCAT regardless of the issue. It is also anticipated the backlog will take two to three years to process. That means some people could wait up to six years for a hearing.
The system was meant to fairly compensate you and ensure no unnecessary burden was placed on your family or the state. With all the recent changes, the scales have been severely tipped in favour of the employer. Workers are not going to be fairly compensated, and when they appeal, will have their decisions reviewed by the WCB; the same agency that made the original decision.
Though these changes may not affect you directly, this will affect someone you know. The residents of BC should be outraged by these government changes. I would strongly suggest you write or contact the Minister responsible for WCB, Graham Bruce and voice your dissatisfaction with the recent changes to WCB , as well as the impending reduction in the WCB Regulations.
Graham Bruce
Room 311, Parliament Buildings
Victoria, BC V8V 1X4
Fax: 1-250-356-6595
Should you have any questions regarding benefits you are presently receiving or anticipate receiving, I can be reached at 604-437-0491 or Toll Free 1-877-411-2806.
The second was the decision of Justice Halfyard regarding the lawsuit brought by the Trustees of the International Officers’ Pension Plan against those Locals and Councils in BC which do not make contributions to the International Plan on behalf of their Business Agents and Organizers. The International had applied for a summary judgement, which if successful would have compelled every Local and Council in BC employing Business Representatives and Organizers to pay all past and future contributions to the International pension plan.
The case was heard in December and then late in January, Justice Halfyard brought down his decision dismissing the International’s application. Even more important, during the course of the hearing, the International agreed to drop their claim to all past contributions. Had every Local been forced to pay past contributions, which are 13 per cent of gross earnings, it would have imposed a severe financial hardship, and in some cases bankruptcy. The lawsuit is scheduled to go to full trial in January, 2004, but the claim will only be for future contributions and only if they win.
BC constitutional amendments refused
In other International affairs, last October the Provincial Council submitted the amendments to our constitution, approved by an 80 per cent yes vote in the referendum last fall, to First General Vice President Doug Banes for approval. These are the amendments that would allow for the legal costs in our fight with the International to be paid from the Strike and Defence Fund. Not surprisingly, Vice President Banes, in a letter received mid February, refused to approve the amendments. In his view they are contrary to the General Constitution. We will, of course, appeal his decision to General President McCarron, but we fully expect that he too will try to make it difficult to defend ourselves and refuse to approve the amendments. If that is the case, the Provincial Council will examine all of its options—including legal action against the International if necessary —in our efforts to have them respect the legitimate wishes of the membership in BC.
The article is a glowing tribute to KML Homes, a steel building manufacturer in Cambridge, Ontario. The article mentions new techniques, carpenter installation of the steel homes, etc.
What the article fails to mention is that last year the IWA raided the plant away from the UBCJA, which had held the certification. The issues of the raid included the fact that Jim Smith, Canadian Vice-President of the UBCJA, sat on the Board of Directors of the company at the same time as being the boss of the plant’s union rep, Greg McMahon. The UBCJA had held the KML cert for many years because, in part, Carpenter Local 27 pension funds invest in the company. It is as a representative of the pension funds that Jim Smith earned his spot on the KML three-person Board of Directors, a position he still holds.
The problem is that KML employees couldn’t get grievances settled because union rep McMahon had the same boss, Smith, as the KML employees!
For years issues festered in the plant and last year the IWA raided. IWA inherited the carpenters’ collective agreement, of course, and a new round of bargaining is scheduled for later this month. That makes it IWA vs. Jim Smith in bargaining.
We won! What a feeling, what a relief.
We won two court cases that many said were lost causes— after all, how many court decisions go your way just because you are right?
In a staggering win for democracy for BC Carpenters. Madam Justice Brown agreed with us that General President McCarron did not act in good faith, that he had an ulterior motive for taking us on. Anything he does against us from now on will be coloured by that fact. Justice Brown said that McCarron had a political reason for demanding to examine BC Carpenters’ books and records. She didn’t believe his explanation. (See front page story for details on our latest court victories).
And, as some of you may already know, the International lost their application for summary judgment against the Local Unions that went to trial in January of this year.
Although the regular trial is to proceed in January 2004, it does so with some significant change. Most importantly, the International has given up any claim to past contributions. This was critical to the survival of some of the smaller locals. In the case of some of the chatter from International supporters that we could never win this issue, the fact that we also received costs in the judgment must be particularly galling. It is quite apparent that the lawsuit has very little to do with pension contributions and everything to do with trying to bully the Locals into line. What a travesty. All predicated on the belief that there are two classes of members when it comes to pension benefits. This position is still being maintained by the International even though the officers who gave evidence clearly stated they did not want to participate in their plan or
their vision.
Justice Halfyard, in his decision, indicated that Madam Justice Brown’s findings on bad faith could have a significant impact on any future findings in the pension case.
What these wins truly mean remains to be seen, but I feel it shows we have right on our side and we will win.
FTQ (Quebec Labour Federation)
We were fortunate to have Bros. Yves Mercure and Yves Ouellet from the FTQ attend our executive board meeting on February 24, 2003. The two brothers represent approximately 18,000 carpenters, lathers, and floorlayers in the province of Quebec. It was quite inspirational to hear of their success in organizing since leaving the International in the mid-80s. It is quite apparent to the Executive Board that there is indeed a common interest between the BC Carpenters and the FTQ. Besides the fundamental issue of solidarity within our own country, there remains common interest on national issues such as training, politics (i.e. softwood lumber), etc. The brothers have been invited to our convention in April and there will be the opportunity for delegates to discuss some of these issues with Yves and Yves in person.
2003 Convention - April 10
Convention is early this year and considering the issues facing us, it’s a good thing. It seems to me we need to make some obvious decisions on autonomy. We need to negotiate a new province-wide all employee agreement. The present one is up on April 30 of this year.
We will also have to begin negotiations for the standard construction agreement prior to April 30 of next year. We need to continue to focus on organizing and COMET training along with steward courses. We have had some success with these two courses to date. We need to develop a province-wide response to the vacuum created by the government in trades training.
The question remains. Do we have a better chance of success on any of these issues as an autonomous, membership directed union, or do we continue down the road as laid out by the undemocratic International hierarchy?
The answer to me is obvious! I look forward to a positive convention.