The Full Story

The following is the true story of The Lively Seven

When the United Steelworkers of America (USWA) set their sights on unionizing a group of employees, you just know that some bad things could happen to some very good people – and that’s exactly what happened to banking industry employees in Northern Ontario.

Union certification drives should inform employees of the benefits of union membership through leaflets or mutually agreed-upon personal meetings. At least that’s the way grown-ups would do it. But such civility becomes an obstacle when employees are reluctant to sacrifice their own rights to union membership and the whims of union leaders. The spirit of such employees MUST BE BROKEN – and the union shifts into overdrive to accomplish this goal through well-established, hard-line tactics.Welcome to the union!

If you have a story about union tactics, please click here to share it with The Lively Seven.

1. Who are The Lively Seven?

The Lively Seven are seven employees who constituted the entire staff of the TD Canada Trust bank branch in Lively, Ontario. They rejected a union drive by the United Steelworkers of America (USWA) and wrote letters to the Canada Industrial Relations Board (CIRB, a tribunal that administers and adjudicates federal labour law), citing instances of Union intimidation, invasion of privacy, and misinformation.

The following are excerpts from their letters:

“My right to privacy was breached under the privacy act as my phone number and address were given to the union organizers. I am currently on parental leave so my information does not appear on any telephone lists, or on regular business files. On December 8th, 2004 two union organizers came to my home in Sudbury and asked if they could come in. I didn’t know who they were and they identified themselves as being from the Steelworkers union. They proceeded to come into my home and sat at my table. They informed me that the union was involved with the TD Employees and that I needed to sign a card and give them $5.00. I repeated to them that I did not wish to be part of that organization and they continued to pressure me into signing and that it would only benefit me by doing so. I again said no and still they proceeded to apply more pressure to make me sign. They would not leave my home, even after I told them I had to attend to my daughter. They finally left after 45 minutes.”

“I have worked for the TD Canada Trust for approx. 5 years and have had a good working relationship with my Employer. Any concerns that I have raised have been dealt with in a timely manner, and not always to my satisfaction, however at 45 years of age, I’ve come to accept that no is an answer too.”

“I feel the Union is a big business and I don’t see the benefit of them representing me. The only thing I see is 3% of my salary disappearing.”

“If I have a problem, I feel I can talk to anyone at my branch and know that they are all willing to help me. I don’t want to have to speak through a union rep to achieve the same communication we already enjoy at our branch.”

“I believe my career goals would take a back seat to other employees with more seniority, even if I was more qualified, I would be past over.”

“I am not interested in paying 3% of my annual salary to the Union for dues. Nor am I interested in the possibility of a strike.”

2. The CIRB wishes you a Merry Christmas and a Happy New Year!

On December 20, 2004, the CIRB sent a Notice to Employees, informing them of the Union’s application to unionize them. The Notice gave Employees 15 days to respond with any concerns or questions relating to their “wishes to be represented by, or not to be represented by a trade union” or to request Intervenor Status.

Two days later (December 22) another Notice arrived, stating that the deadline had been magically reduced to 10 days.

The CIRB cut five days off a deadline that already extended through the Christmas and New Year’s holidays. The Union had organized and campaigned for months, yet the Employees were given just 10 days to respond -- during statutory holidays and at a time when many had family and holiday plans.

The deadline was clearly unreasonable and biased against the Employees, as was the CIRB’s Notice itself. The Notice was printed on an 8½” X 11” paper in a six point font! Once it had been photocopied and faxed, it was nearly impossible to read. One page contained about 1,000 illegible words. We counted.

About 80% of the text was taken from the legislation; there were 32 subsection quotes under 7 different headings. You would be surprised how many statutes, directives, rules, regulations, sections, subsections, provisions, subject to’s, upon the directive of’s, and legal ramblings in general that you can jam onto a page when you do it in something like a “6” point font. Such statutes are already mumbo jumbo to the average union target who has not been to law school, so the CIRB obviously isn't interested in properly informing employees or making things any easier for them. Click here to see a copy of the December 22 Notice to Employees.

Working conditions for these Employees are about to be abruptly changed by unionization – and this is the kind of notice they get to inform them of their legal rights? Doesn’t that seem rather legal ramblings legal ramblings to you?

3. Sorry Virginia, there is no Santa Claus!

Instead of focusing on family, Christmas and New Year’s, The Lively Seven wrote personal letters to the CIRB, outlining their objections to unionization and citing their unanimous rejection of the Union drive. Each woman wrote an individual letter. To make sure the CIRB got the point, the women also composed and signed a group letter. Their objections to unionization were clear:

“100% of all staff [at the Lively branch] reject the union’s overtures to speak on our behalf”

“We have not supported the union’s membership drive and DO NOT support the union’s application for certification”

“100% OF THE EMPLOYEES OF BRANCH #2832 IN LIVELY ONTARIO ARE OPPOSED TO UNIONIZATION AND REQUEST AT THE VERY LEAST TO HAVE OUR BRANCH EXCLUDED FROM MEMBERSHIP”

“I am very against this move and feel that the United Steel Workers Union have misrepresented the views of many TD Canada Trust Employees”

Gee, it seems like they don’t want to join the Union!

Yet the CIRB didn’t respond to ANY of these letters! That’s odd … the CIRB had no problem responding to letters from the big multi-million dollar bank, the big multi-million dollar Union and all of their lawyers.

4. The Lively Seven apply for Intervenor Status

By December 31, 2004, the women had opened their Christmas gifts. Thanks to that new magnifying glass from the kids, they were able to read the really small, fine print on the CIRB’s Notice.

But the fine print revealed that the CIRB didn’t really want to hear from the Employees … it only wanted to hear arguments from those with Intervenor Status. So the women wrote the CIRB again – officially requesting the Intervenor Status that was necessary to discuss their own case with the CIRB.

On January 5, 2005, the CIRB responded, stating:

“Mesdames… This will acknowledge receipt of your request for intervenor status… Your request is hereby forwarded to the Board for its consideration and determination. You will be informed of its decision in due course.”

The letter sounds helpful, but the term “in due course” eventually translated into NEVER! The CIRB never made the required ruling.

Months later, in the CIRB’s written decision, there wasn't even a reference to The Lively Seven's official Request for Intervenor Status. Apparently, the CIRB is pretending these documents no longer exist: There is no reference to any of the documents that prove the CIRB failed to carry out its assigned duty to rule on their request for Intervenor Status. Isn't that handy!

Nor did the CIRB respect the laws of the Canada Labour Code. Section 13(3) states the employer and the union have 10 days to respond to a request for Intervenor Status. The CIRB did not forward The Lively Seven's request to these parties and, as a consequence of this mismanagement, TD Canada Trust and the Union never had an opportunity to respond.

The Lively Seven were abandoned by the very Board that was supposed to facilitate their ability to be heard during labour disputes.

5. Faster Than a Speeding Bullet

The USWA conducted a certification drive from October to December, 2004. During that time, a number of Employees complained to TD Canada Trust management that they were being harassed, intimidated and coerced by Union organizers and supporters. These complaints led to the fastest harassment investigation ever conducted.

A review of filed documents shows that at 3:42 pm on December 9, 2004, TD Canada Trust faxed a letter to the Steelworkers. It cited Employee complaints about Union tactics, reminded the Union that such conduct is illegal and requested that it cease.

Four hours later (7:29 pm), the Steelworkers responded, claiming they had investigated the allegations and found (of course!) no evidence of misconduct. Miraculously, a certification campaign that covered numerous branches over thousands of square kilometres, included numerous outside/inside organizers, and comprised countless home visits was ‘investigated’ in just under four hours!

Even Superman would have a hard time accomplishing that!

6. With friends like these ...

The following excerpts from The Lively Seven letters illustrate the women’s experiences with/concerns about the Union’s tactics:

“I appreciate that a contact list is very difficult to obtain, and feel that the tactics that I assume were used to obtain my name were unethical.”

“I am now concerned that if the Steelworkers Union does take over, I will be blacklisted.”

“I feel the union has invaded my privacy as how they found out that I worked for the TDCT and how they obtained my phone number and my dwelling address I would like to know as this is not public knowledge.”

“I felt violated”

“I also take exception to the fact that the Steelworkers lied to employees at other branches when they informed them that all employees at the Lively branch had signed Union cards some time ago.”

“I find the Union organizing tactics unlawful; unethical and extremely harassing.”

“He came about 8:30 at night [the Union organizer] with no notice he was coming and stayed for one and one half hours.”

“Tactics used by the union in an attempt to intimidate us into signing union cards is both disturbing and unacceptable. Repeated phone calls and visits to individual homes without prior notice or invitation . . . The Union claims to be our voice, but chooses to ignore the simplest request, ‘not to be contacted’.”

“The Union in its zealousness to organize a new industry has claimed many things that we know are falsehoods. Is the Union ever held accountable for lies told during their campaign?”

“I feel that they have intimidated me by harassing me through telephone calls over many months.”

“I feel the union is pitting one worker against the other, causing bad feelings and discomfort between branches.”

“Apparently no doesn’t mean no when a Union is on a drive to have their cards signed.”

“The Union representatives aggressively attempted to convince me to allow them into my home.”

“I believe the Union, in its desire to organize the Employees of TD Canada Trust had total lack of respect for my privacy, first by calling me a second time, and every time thereafter and even more importantly by paying me a visit at home.”

“I felt my privacy had been invaded and was angry that someone had disclosed that information without my consent.”

Employees at other branches may have also made complaints to the CIRB or to management at TD Canada Trust.

DID YOU MAKE A COMPLAINT? Or were you too frightened to make a complaint? Please share your stories with us. Your anonymity will be respected.

7. Just standard union behaviour, ma'am

A review of case filings suggests that persistent pressure from the women’s Employer, TD Canada Trust, may have forced the CIRB to investigate the allegations of harassment and intimidation.

The CIRB’s investigating officer apparently conducted a “random investigation” with “random interviews” (that included just three of the Lively employees), and then submitted a confidential report. We don’t have a copy of this report, but the CIRB’s March 29, 2005, decision provides insight into its assessment of the Employee’s allegations. The CIRB writes:

“While some employees stated that they were uncomfortable about being asked to join a union, or that it was untimely, generally their concerns stemmed from a lack of knowledge about the unionization process …” and “The Board therefore dismisses these allegations as being unsupported by the facts.”

That is, the CIRB believes:

(1) The Union’s behaviour is entirely justified. The CIRB is telling Canadians that hardline union tactics are a justified component of ‘labour relations.’ So do unions engage in such tactics because labour boards allow them to do so?

(2) If employees are upset by this behaviour, it’s because they “lack knowledge of the unionization process.”

At this point, you may be thinking it's better for employees to ignore the CIRB and take their concerns about union tactics straight to their employer. Unfortunately, that’s not going to work either. The CIRB says employees have to go directly to them (the CIRB) to fight against unions and their intimidating tactics!

“Any disquiet about undue influence or coercion into signing membership concerns should be brought to the Board’s attention by employees themselves” and “… no useful purpose is served by the employer raising such an issue in an attempt [to] oppose an application for certification.”

With that statement, the CIRB’s nonsensical circle of logic is now complete: Employees who are subjected to hardline union tactics during a certification drive can only complain to the union or the CIRB. The union may quickly dismiss the allegations (see above - Faster than a speeding bullet) and the CIRB won’t hear your complaints unless you win the CIRB interview lottery for Intervenor Status. BUT UNDER NO CIRCUMSTANCES are you to tell your employer!

This demonstrates a key problem with employee rights in Canada: Canada is one of the few countries in the industrialized world that still allows forced union membership, forced union dues and denies unionized employees who are not members of the union the right to participate in activities such as ratification votes! This ensures that employees who are seeking a union, or are unionized and wish to make complaints against their employer, have access to union money, union pros and union-side lawyers. Legislated dues provide the union with plenty of resources to challenge employers – and they do so regularly.

Non-union employees who wish to make an employment standards or human rights complaint against their employer have access to a government-funded civil servant who has the power to investigate, gather documents and force hearings.

But employees who oppose unionization, seek decertification or who wish to challenge their union or a union that is trying to unionize them have no such privileges. They can’t go to their employer for assistance – and they won’t be helped by the union or the labour board. They are forced to represent themselves or to pay for their own lawyer (as The Lively Seven did).

In short, all employment legislation in Canada has a state-mandated funding mechanism for challenging employers – but not for challenging unions. This aspect of Canada's labour law must change to protect the rights of the employee.

This is one reason that the NCC is a member of the Canadian LabourWatch Association. This non-profit organization runs a website (www.labourwatch.com) to inform employees of their rights and provide them with forms and instructions for certain labour board processes from coast to coast.

8. Congratulations! You're a steelworker!

On March 29, 2005, the CIRB certified the United Steelworkers of America as the bargaining agent for the Lively branch of TD Canada Trust, as well as seven other branches in and around Sudbury. No vote was ever held; The Lively Seven’s concerns about Union tactics had not been heard. At the stroke of midnight, all bank employees simply morphed into rugged Steelworkers; business suits and briefcases were now optional.

The Lively employees then appealed to their own Human Resources department to document 19 pages of objections to the ill-considered inclusion of Lively into the Sudbury bargaining unit (based on branch size, the small size of Lively, staff structure, roads and even housing).

But, as it turns out, none of these things matter. The law allows the union itself to define the bargaining unit and to dictate this description to the CIRB.

“As may be seen in the wording of Section 24 of the Canada Labour Code, the union has the freedom to define the bargaining unit as it sees fit.”

This is similar to letting a hungry wolf determine which sheep he will take into his care! But the facts remain: The Lively employees don’t want to be unionized, they never had an opportunity to vote on whether they wanted to be unionized and their concerns about being included in the bargaining unit were never heard by the CIRB!!

9. The Union and the CIRB redefine democracy

(1) Democracy is denied when employees join the union. Six of seven Lively employees DID NOT sign Union cards. One Lively employee signed a card, but then wrote the CIRB to complain about the high-pressure home visit, and to say she regretted giving in to the pressure and signing a card. Yet, in a Steelworker democracy, one signed card - under duress - is sufficient support to seek unionization! Incredibly, the CIRB agreed that one signed card was a democratic indicator of Employee wishes.

One wonders if the unions or the CIRB would support this kind of ‘democracy’ if a Canadian government took power with just 14% of the vote! So much for the Charter Right to Freedom of Association and its corollary – the freedom to not associate!

Yup. This is democracy … union style.

(2.) Democracy is denied in choosing a bargaining unit. All seven Lively employees wrote to the CIRB, saying they did not want to associate and did not want to be part of the same bargaining unit. Yet, in its ruling to unionize The Lively Seven, the CIRB writes:

"Whether from smaller or larger branches, employees have elected, as it is their right to do so, to be represented by a single bargaining agent." [para. 29, emphasis ours]

“Employees have elected” to be represesented in this bargaining unit ??? When every employee (100%) rejected the USWA proposal? In making this determination, the CIRB ignored previous rulings that encouraged unions to consider employee wishes.

Rulings such as Sherbrooke and Rimouski stated:

• employees from each individual branch could make their own decisions on unionization
• the [union] should not take away employee’s rights to freely choose an association, and
• [the union] should consider “whether the employees wish to belong to one and the same unit."

No party denies these previous rulings. But the Union and the CIRB both take the position that the wishes of more than half of ALL employees in Greater Sudbury area is the determinor of the employee’s will to be unionized – not the wishes of employees at individual branches or towns like Lively or Levack.

Yup. This is democracy … CIRB style.

10. Who gets a say at the CIRB?

Employees are the party that is most affected by unionization. So why don’t they have a say in the process?

The only parties who had any say about unionizing the Lively employees were the CIRB, the Union (The United Steelworkers of America) and the Employer (The TD Canada Trust Bank).

Ironically, the mega union and the corporate employer both have automatic standing before the CIRB. But the poor, unionized peasants who pay the union dues and salaries, and whose taxes pay the CIRB, have no such right. They have to actively solicit the CIRB for Intervenor Status – and there is no guarantee it will be granted.

The CIRB will sometimes hear individual employee submissions, but it does so at its own discretion. It claims this is the only way to avoid “… a proliferation of submissions on the issue of bargaining unit scope.” (That is, it's the only way to avoid the extra work caused by employees who choose to exercise their rights and utilize their services).

The CIRB also appears willing to make random decisions to randomly allow individuals to have random status in some random cases. Confused? So are we.

Here’s the story: One member of The Lively Seven attended a Union meeting on April 3, 2005 (after their forced unionization). At the meeting, the Union made a number of “disrespectful, underhanded, and crude” comments about her Employer of 10 years. Several days later, she wrote to the CIRB, stating, “I wish that the CIRB reconsider our request to amend the Union’s requirement to have all the branches.”

Miraculously, her personal “Application for Reconsideration” caught the attention of the CIRB. They acknowledged its receipt,and forwarded it to the Union and to her Employer for their response. They labelled her as an “Interested Party” and added her to the elite cadre of participants in this fray, along with the Employer and the Union.

Frankly, we have no idea what the term “Interested Party” means. There is no reference to it in the Regulations. The Canada Labour Code Section 12.12 (2) makes one reference to the term: “An interested party may, with leave of the judge, intervene in an inquiry on the terms and conditions that the judge considers appropriate.”

As you may have noticed, there’s been no judge or inquiry. Yet the status is inexplicably granted to this Employee, while The Lively Seven employees (as a group) remain on the sidelines. Despite working a combined 88 years for their Employer, unanimously rejecting a Union drive and writing a dozen letters to the CIRB, they have yet to be heard. And there is no indication they will ever be heard by the Union or the CIRB.

The Union actively opposed participation by The Lively Seven. In every document the USWA filed, it warned that The Lively Seven should not be heard by the CIRB. (Of course, the Union still wants their membership cards, their dues and control over their terms and conditions of employment …)

On April 11, 2005, The Lively Seven hired a lawyer. That sparked Union lawyers into a frenzy. They spent copious amounts of time generating huge piles of papers outlining a litany of poorly-crafted reasons as to why their lawyer shouldn’t be heard, including:

(1) “The Union submits that the Intervenors had the opportunity to make any submissions they wanted during the 10 day period after the filing of the Unions Application for Certification.” (March 17, 2004) Uhm … hello, they did make submissions -- and you have copies.

(2) “…the Board considered those letters in its determinations. The Board did not grant Intervenor Status to the Lively employees at the time.” Actually, the CIRB claims to have considered the individual letters and it acknowledged receipt of their request for Intervenor Status. BUT it never made the decision on that request or forwarded the request to the other parties (an apparent violation of Section 13(3)).

(3) “…the Intervenors have failed to raise any questions relevant to the exercise of the Board’s discretion and, as a result do not further the objective of the Code. The Union submits that the Request to Intervene should be dismissed forthwith.” This is standard union boilerplate – deny, object, seek dismissal. Any average reader could see the relevant issues.

(4) The Union lawyers then scraped out the bottom of the Dubious Arguments File by arguing, “The Intervenors could have raised Charter argument during the certification process – but did not.”

Whaa …aat?? They should have raised a Charter argument because some psychic vision should have shown them a future where the CIRB wouldn’t respond to their letters and wouldn’t follow through with its duty to rule on their Intervenor Status application during the prescribed period of time?

11. CIRB Motto: The best rules only apply to others

Certain aspects of this case have been repeatedly repeated ad nauseum. Because repetition is one of the best teachers (if it doesn’t first drive you to drink), you will have undoubtedly realized that a key issue is how the CIRB treated The Lively Seven.

The CIRB is “an independent, representational, quasi-judicial tribunal,” i.e. a group of experts that administer and adjudicate federal labour law. (For more spell-binding information about the CIRB, check out their website: http://www.cirb-ccri.gc.ca/index_e.asp). The CIRB members sit independently and essentially act as ‘judges.’ There are rules and regulations that must be followed, but some rules seem to be selectively ignored:

e.g. Timely responses to filings and requests. The Canada Labour Code–CIRB Regulations-13(3) clearly establishes the ground rules for all parties regarding “Time for Responding, Replying or Intervening,” by stating:

“A response to a request to intervene must be filed within 10 days of the filing of the request to intervene.”

The Lively Seven worked during Christmas, New Year’s and the Canada Day long weekend to meet deadlines for CIRB submissions. In contrast, the CIRB routinely failed to meet its own deadlines, as required by its own regulations.

Note the following incidents that demonstrate this apparent inequity:

(1.) According to the Regulations, The Lively Seven had to file for Intervenor Status within 10 days of receiving the CIRB’s December 22 notice about the USWA's application for certification. They filed their request on December 31, and the Union and the Employer would then be required to respond to that submission within 10 days.

The CIRB dutifully responded to The Lively Seven’s request on January 5, 2005, stating:

“Your request [for Intervenor Status] is hereby forwarded to the Board for its consideration and determination. You will be informed of its decision in due course.”

But the other parties (e.g. the Union and the Employer) didn't respond within that time frame because the CIRB hadn't bothered to forward the request to them. They didn’t even know The Lively Seven had applied for Intervenor Status!

(2.) Since their first request was ignored, The Lively Seven hired a lawyer to submit a second request for Intervenor Status on April 19, 2005. The CIRB then determined it wanted to change file numbers, so The Lively Seven re-filed (as requested) on April 21. For the other parties to meet the 10-day deadline, the CIRB had to inform them [the Union and the Employer] on that same day (April 19 or 21 – The Lively Seven think it should be the 19th). But the CIRB didn’t even send a notice until May 2 – 13 days after the request and three days after the responses were due!

(3.) The CIRB granted the USWA certification on March 29, 2005. On April 15, the Employer (TD Canada Trust) initiated an application for the CIRB to reconsider this decision. On June 27, a CIRB panel granted The Lively Seven Intervenor Status for this reconsideration process ONLY, stating:

“…the original submissions of the Lively employees … [also contained] “a significant component which went to the issues in dispute.”

This suggests that the CIRB granted the Intervenor Status on the basis of the original (and now missing) December 31 request, rather than their April 19 request (done through a lawyer). The CIRB writes:

“the original…representations addressing the substantive issues under consideration are to be transmitted to the parties [the Union and TD Canada Trust] and an opportunity given to respond … However, as this opportunity was not granted to the parties [on December 31] … the Board finds it appropriate to grant Intervenor Status to the Lively employees in the reconsideration application filed by the employer.”

(4.) Once The Lively Seven were granted Intervenor Status (on June 27), the timelines were bent again. The CIRB gave them just 8 days (not 10) to respond with reasons as to why the unionization decision should be reconsidered. Further, the time frame (June 27-July5) included the Canada Day long weekend (when their lawyer was on vacation)! BUT The Lively Seven STILL filed their submissions by the CIRB deadline.

(5). The Lively Seven’s April 19 submission also requested a “stay” on the CIRB’s March 29 decision on Union certification. This stay would stop negotiations on a Collective Bargaining Agreement until the reconsideration was completed.

But the CIRB ruled (on June 27) that The Lively Seven had no right to request a stay, because they didn’t have Intervenor Status at the time of the March 29 decision. Of course, in this same ruling, the panel essentially stated the women SHOULD HAVE HAD STATUS at that point. The only reason the women didn’t have the status is because the CIRB failed to do its duty and rule on their application for Intervenor Status. The vicious and illogical circle of bureaucracy continues.

(6.) The Union asked the CIRB for an extension on its final day for responding to The Lively Seven’s July 5 submission. The Lively Seven’s lawyer opposed it, but the CIRB granted it anyway (even though The Lively Seven and TD Canada Trust had already made their submissions according to CIRB deadlines). Consequently, the Union was unfairly able to review and comment on TD Canada Trust’s submission in its own [late] response to the CIRB!

The CIRB has never penalized the Union – despite its repeated abuse of this process. Only a dysfunctional bureaucracy would reward missed deadlines.

12. Waiting for Godot is nothing compared to waiting for the CIRB

The Lively Seven submitted their reasons (asking the CIRB to review its March 29 decision to unionize them) on July 5, 2005.

136 days later (on November 18, 2005), the CIRB finally ruled on that request:

“Following a review of the extensive submissions of the parties including those submitted on behalf of the Lively employees, the Board has decided to dismiss the present application.”

But there was no explanation or reason given for the decision… just ‘no.’

The CIRB had supposedly reviewed the decision for over 4 months – so one would expect reams of paper explaining the decision and any logic behind it. Instead, the CIRB claimed that because of “the volume of its present caseload,” it would have to issue “full reasons” in the future.

Too busy to explain its decisions? Since when has “busyness” been an accepted excuse for not doing your work properly?

Decision-Making 101. Some advice for the CIRB: Decision-making doesn’t have to be that hard. In fact, if you’ve already made the decision, then the hardest part of the job is done! After all, you have supposedly considered the factors involved and made a reasoned decision based on those same factors. If the reasoned decision is already made, then it should be easy to explain WHY you made that decision. Right?

13. Reasons received ... but where's the BEEF as Clara would say?

334 days later (on October 18, 2006), the CIRB finally provided reasons for the decision it made 11 months ago (you know, the one that defended the decision it made 19 months ago). This huge lapse in time may account for some details being fuzzy at best … and in off-site storage at worst.

The reasons failed to mention key facts and documents related to the CIRB error that denied The Lively Seven their natural justice rights to due process and provided evidence that the CIRB failed to follow its own regulations. How’s that for fuzzy? Especially since more than 10 pages of the 35-page ruling were supposedly dedicated to outlining the facts, history and legal issues of the case.

Here are the missing facts: The CIRB erred when it failed to rule on The Lively Seven’s December 31, 2004, Application for Intervenor Status. In a January 5, 2005, letter, the CIRB acknowledged receipt of the Application and promised to rule on it prior to the certification ruling. But the CIRB never ruled on the Application, and it failed to forward the Application to the Union (USWA) and the Employer (TD Canada Trust), as required by CIRB regulations.

The ruling makes no mention of the dates, documents or legal issues relating to these facts and the CIRB’s error. Instead, it quietly re-characterizes all letters from The Lively Seven as “wishes.” This change in terminology deliberately ignores two facts -- that one letter was an Application for Intervenor Status and the CIRB had already referred to it as such (in its January 5, 2005 letter and June 27, 2005 decision).

14. CIRB contradictions

Section 35 of the Canada Labour Code says “wishes” documents are letters that employees write directly to the CIRB and cover such things as “I want a union,” “I don’t want a union,” or “I’ve changed my mind about the union.” “Wishes” letters are deemed confidential (unless disclosing them to the union and the employer would “further the objectives of the Code”).

In its October 18, 2006, decision, the CIRB discussed the “wishes” letters:

“[72] One of the bases for the reconsideration application is the failure by the original panel to provide copies of the employees’ interventions to the other parties. Pursuant to section 35 of the Regulations, the Board is required to keep employee wishes confidential.

[73] Because the interventions filed addressed the wishes of the employees, in keeping with section 35 of the Regulations, the Board did not disclose the employees’ letters to the union or the employer.”

The ruling makes an interesting change in terminology since:

(1). The CIRB obviously believed The Lively Seven had made an Application for Intervenor Status in January, 2005 — it just never acted on it. A January 5 CIRB letter to the Lively workers clearly acknowledged receipt of the Application and promised to act: “Your request [for Intervenor Status] is hereby forwarded to the Board for its consideration and determination. You will be informed of its decision in due course.”

But 20 months later, the CIRB ruling suddenly referred to the official Application as a “wishes” letter, and offered no explanation for the sudden change in terminology!

(2). The June 27, 2005, CIRB ruling also found that the letters constituted an Application for Intervenor Status. Based on that Application [not “wishes”], the CIRB granted The Lively Seven Intervenor Status for the Reconsideration Application filed by the Employer:

“…although the original submissions of the Lively employees were in part, expressions of their wishes about wanting or not wanting to be represented by the union, there was also a significant component which went to the issues in dispute …. [such representations] are to be transmitted to the parties and an opportunity given to respond to the points raised. However, as this opportunity was not granted to the parties in file 24751-C [prior to unionization], the Board finds it appropriate to grant intervenor status to the Lively employees in the reconsideration application filed by the employer…

(3) In July, 2005, the CIRB issued a document to The Lively Seven, stating:

“As regards to the intervenors’ request for a stay of the “original decision” the Board points out that prior to receiving intervenor status on June 27, 2005 the Lively Branch employees did not have their requisite standing to request a stay.”

The Intervenor Status (that they were granted on their Employer’s appeal for reconsideration) was quite limited when compared to the Status they would have had as Intervenors at the outset. In addition, the CIRB didn't grant this status because it actually wanted to hear what The Lively Seven had to say. It was granted because the “other parties” (the Union and the Employer) were not given the opportunity to take a run at the Employee’s submission! To rub more salt in the wound, the June 27 decision in no way acknowledged, let alone apologized for, the procedural error that resulted in The Lively Seven being unionized against their will and without due process.

So what’s going on here? Why all the contradictory rulings?

There are three options: Door #1, Door #2 and (drum roll, please), Door #3. Let’s see what’s behind each door:

Door #1: The CIRB is playing a rousing game of Lost and Found with The Lively Seven’s Application for Intervenor Status.

• FOUND: (January 5, 2005) The CIRB has the December 31, 2004, Application. It issued a letter that acknowledged its receipt and promised to act on it.
• LOST: (January 6-March 29) The Lively Seven heard nothing from the CIRB and the CIRB took no action on the Application. Where did it go?
• STILL LOST: (March 29) A CIRB decision made no mention of the Application or the January 5 letter. Both documents seem to have disappeared.
• FOUND: (June 27) Oh, wait — maybe they do have it. A CIRB letter decision referred to the Application, and clearly stated that The Lively Seven submissions were not just “wishes” and should have been acted on.
• FOUND: (July 8) A CIRB letter denied The Lively Seven a stay of negotiations because they didn’t have Intervenor Status for the March 29 decision!!! This contradicted the CIRB’s June 27 ruling that acknowledged the existence of the December 31 Application and, based on that Application, awarded them Intervenor Status on their Employer’s appeal.
• LOST: (November 18, 2005-October 18, 2006) CIRB decisions failed to document the existence of the December 31 Application, the CIRB’s January 5 recognition of it, and the CIRB’s subsequent failure to act on it.
• FOUND: (October 18, 2006 – onward) All of the above documents are on the web (Click to view). The CIRB can’t make them go away and no bout of spontaneous combustion can immolate the whole World Wide Web. If the CIRB is guilty of incompetence, then its subsequent rulings are suspect and must be reconsidered.

Door #2:

• The CIRB deliberately ignored the Application out of bias against the employees. If that is the case, then the CIRB’s subsequent rulings are also biased and must be reconsidered.

Door #3:

• The CIRB deliberately omitted mention of specific facts and documents in its ruling. If the CIRB deliberatly denied The Lively Seven of their right to due process (through incompetence or bias), then the CIRB is guilty of a cover up.

CONCLUSION: No matter which Door is hiding the truth, one thing is for certain. It’s time for the government to bring about systemic changes to the CIRB processes and personnel. It’s time for the courts to examine the true facts and provide The Lively Seven with the justice that it has thus far been denied.