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Arguments in Support of the Appeal of the Decision of Judicial Council, Case #136
General
a) Specificity of Bylaws
Bylaw 8.1.(b) of Judicial Council Procedures states that the complaint shall clearly indicate which Bylaw(s) has been violated. In a number of the charges of which the appellant Barry Weisleder has been found guilty ˆ for example charge 9 and charge 4 ˆ the complainants were not at all specific in identifying which specific subsection(s) of Bylaws had been breached.Some Bylaws contain up to 25 subsections, many of which are unrelated one to the other. Firstly, Bylaw 8.1.(b) of Judicial Council Procedures should have been amended years ago to read „Bylaw(s) and subsections of Bylaw(s)‰. Secondly, the responsibility for denying a charge based on specificity, is the duty of Judicial Council, regardless whether this is pointed out by the then Respondent, Barry Weisleder. Thirdly, the lack of specificity was brought to the attention of the staff liaison to Judicial Council prior to the pre-Discovery meeting. We were then told that the specificity would be provided prior to the charge being heard, in accordance with past practice. This never occurred. That is why the representative of the Respondent presented the issue in his final remarks. Judicial Council clearly erred in not enforcing the Bylaws relevant to its jurisdiction.
The J.C. in its Decision, as stated on page one, tries to shift the onus onto the Respondent by arguing that „Opportunities existed both at discovery and in the day devoted to preliminary motions for this concern to have been raised‰. But surely the J.C. has to enforce the requirement to provide particulars, especially given the legal agreement signed by OSSTF and the Respondent in May 2002 (which forestalled obtaining a court injunction). And likewise the J.C. is obliged to enforce the OSSTF Constitution, which requires that specific bylaws be cited to justify a charge, whether or not the Respondent identifies this as an issue, or whenever the Respondent identifies this as an issue.
Prior to the commencement of the Hearings, and again during the summer interval between Hearings, the representative of the Respondent repeatedly requested specificity concerning the Bylaws cited. The requests were put to the J.C. staff liaison person, and to the J.C. Chair in writing. In anticipation of Case #138, in which most of the #136 Complainants are identified as Respondents, the J.C. much more vigorously demands Bylaw specificity, and has already ruled out several charges by employing a much more severe test than was applied throughout Case #136.
b) Conflicting Testimony
In a judicial dispute between two parties, the onus of proof is on the Complainants. The Judicial Council saw and heard a great amount of conflicting testimony and documentary evidence. Yet most of the J.C. findings appear to be made on the basis of accepting the account of the Complainants, and ignoring or disregarding the case of the Respondent. There is no reasonable attempt to justify why the credibility of the witnesses for the Complainants is validated, as opposed to the credibility of the witnesses for the Respondent.
c) Reading from Pre-Scripted Notes
The J.C. panel noted in a rather one-sided and exaggerated way that „The witnesses for the respondent tended to read from pre-scripted notes and the panel took that into account in assessing the weight to be given the evidence.‰ It is one-sided in the sense that witnesses for both sides read from notes, and it is exaggerated in its portrayal of the witnesses for the Respondent implying that they tended to read from pre-scripted notes more than did the other witnesses.
As for „the weight to be given the evidence‰ in terms of note reading, this is problematic on at least two counts. Firstly, if reading from pre-scripted notes is somehow inappropriate or devalues testimony or is a discouraged practice, why didn‚t the J.C. inform the parties of this in advance, or even during the course of the Hearings?
Secondly, the witnesses for the Complainants, starting with their main representative Liz Barkley, and particularly with regards to Merlyn James, Lorraine Wright, Kate O‚Connor, Bob Beames and Bill Pryde, relied heavily on pre-scripted notes. What weight was given to this? Apparently none. On the other hand, one of the major witnesses for the Respondent has great difficulty with testifying in English, which is his third or fourth language of communication. He required the support of notes to assist him in presenting his evidence for linguistic as well as memory reasons. Is this fact to be held against that witness, and thus to be held against the case of the Respondent?
It is common practice for persons called to testify about events that happened some months ago to make notes for themselves to keep their memory fresh. There are no OSSTF Bylaws or Judicial Council policies, which prevent a witness at a Hearing from using pre-scripted notes. If the panel had not wanted the notes to be used on the stand, it was open to the panel to so rule. The principal test for accuracy of testimony is the ability of the complainant to conduct cross-examination, not whether notes were used. Judicial Council erred in using the notes in assessing the weight to be given the evidence and in using the notes to resolve conflicts in the evidence. This error seriously taints the findings in all the charges.
CHARGES #1, #23, #24
re: [OSSTF Bylaws cited: Bylaw 4-Ethics 4.4, 4.5, 4.7] Bylaw 4 - Ethics 3.3
a) Public Documents Identify and Criticize Members
OSSTF policy advises that OSSTF office holders should anticipate being subject to criticism and being the target of stronger language than the average members would expect. This expectation is not reflected in the J.C. decision.
The panel characterizes documents criticizing the actions and opinions of those who opposed the appellant as „malicious misrepresentations of the intentions and actions of long standing and dedicated union officers.‰ This finding suggests bias on the part of the panel. All persons concerned, both Appellant and Respondent, are long standing and dedicated union officers.
That does not mean there cannot be serious disagreement among them. Public criticism has customarily meant voicing criticism outside the Federation. It does not apply to strenuous disagreements within Federation confines. This is clearly pointed out in OSSTF policy („OSSTF Statement on Harassment‰) which states that „persons who participate in political activity must expect to tolerate a level of vexatious conduct directed at them that would not be acceptable at a non-political level.‰
The panel states, „that it was impossible for the respondents to clear their reputations because they were unaware of the full extent and manner of distribution of the documents‰ in question. But it was established that the named documents were available to, in one case, a very small group of members, and in the case of the President‚s report to the March 20 General Meeting, to the assembled members. The present Complainants had access to the sum of these groups both by their repeated interventions and personal attacks on the B.U. President at General Meetings at least from September 2001 through June 2002, and by mailing their campaign literature to the homes of all the members prior to the June 2002 AGM.
b) Demeaning Statements Made at Meetings
The Judicial Council did not reflect the fact that the Respondent was the target of pungent criticism by the Complainants from at least September 2001 through June 2002. This included his integrity being impugned by the repeated claims of several of the Complainants that the Respondent did not attend to the duties of his office, that he did not provide service to members, that he took pay and vacations that were not authorized, that he acted like a dictator in chairing meetings, in collective bargaining, in newsletter production and in other bargaining unit operations, that he misrepresented OSSTF, that he manipulated and falsified minutes of meetings, and that he usurped the functions of union officers. The J.C. appears to have failed to recognize that the Respondent in the accused writings was only responding to a lengthy barrage of slander against himself, a response that he refrained from making until March of 2002. It was the demeaning statements of the Complainants that created the negative atmosphere within the Executive and General Membership Meetings of which they complain.
The J.C. Panel found that the criticisms and accusations made against the opponents of the Respondent „were not borne out by the evidence‰. But how could the Panel come to that conclusion, except by ignoring the evidence and testimony presented by the Respondent and his witnesses? In addition, the Respondent was unfairly prevented from presenting much of his evidence.
Furthermore, freedom of expression includes freedom of criticism of members in a union context, without in advance having to prove every criticism uttered. Give and take of criticism is the lifeblood of democracy. It is the prerogative of members to decide the validity of criticisms and arguments made at all levels of the union. Indeed, that‚s what elections are for.
June 2001 to June 2002 was a year of factional conflict in the bargaining unit, originating in an issue over bargaining the collective agreement ratified in June 2001. There were many heated debates. Appellant is criticized for the use of sarcasm. This may be a failing, but it is a common one, and should not be associated with an extreme sanction such as removal from office.
The Respondent is found guilty of criticizing his opponents inside the Bargaining Unit. The language the Respondent is accused of using against his opponents is quite commonly used in OSSTF, as well as in most unions and most parliamentary bodies around the world. CBC TV recently re-broadcast part of a speech, delivered in Parliament, by former Conservative MP John Crosby in which he referred to a government member as being „vicious, vile and vindictive‰. The House of Commons never reprimanded Mr. Crosby, nor was he charged, nor was he punished, for the use of such language, which is much stronger than any of the terms the Respondent is accused of employing.
The Respondent is found guilty of failing to exhibit „courtesy and good faith‰ in dealing with his opponents, when in fact he exercised enormous restraint while enduring many months of personal attacks and disruptive behaviour on the part of his opponents prior to making any public response to them. And in responding, he named no one, but dealt with the issues and the practice of union officers per se.
The panel found that the Respondent did not encourage „the free exercise of professional judgement‰ or „foster cooperative relationships among colleagues‰ or „enhance public regard for all members‰. But the record of the Respondent as one of the foremost promoters of an affirmative image for occasional teachers belies this claim. His independent and uncompromising advocacy for substitute teachers has encouraged free and critical thinking and lively debate, in place of an all too common submission to demeaning attitudes and practices towards substitutes. The panel‚s finding, on the other hand, is tantamount to saying that by responding to his bitter, persistent and unfair opponents, the Respondent forfeits the right to being considered „ethical‰ in OSSTF.
D12 Voice, the publication of which Liz Barkley is an editorial board member, has made much stronger criticisms and demeaning comments on OSSTF President Earl Manners. D12 Voice has compared Manners to the violent, corrupt, and dictatorial former Teamsters‚ union President Jimmy Hoffa, and has accused Manners of stifling democracy and dissent in OSSTF. No charges have been laid against Liz or other D12 Voice editors for „demeaning comments‰. Is this a case of oversight, or a double standard? If the D12 Voice commentaries are permissible, what is the yardstick being applied to Appellant?
c) Intimidated Female Members of his Bargaining Unit Executive
The allegations of intimidating female members of the Bargaining Unit Executive are not borne out. The testimony of several female members of that body, speaking for the majority of females on the Executive, refuted the claim.
To the contrary, testimony revealed that the pro-feminist policies and practice of the Respondent has drawn many female members into union activism and helps to account for the relatively high proportion of women on his bargaining unit executive bodies, presently and for the past twenty years.
The Respondent is accused of calling the Grievance Officer incompetent. This is untrue, and was not proven; it was simply asserted by a witness for the Complainants. There was conflicting testimony on this point. The use of sarcasm is cited, as if that is understood to be a criminal offence. Interruption of a Treasurer‚s report is cited, and it is implied that the interruption was accompanied by sarcasm ˆ which is false and was not corroborated. Furthermore, it appears that the J.C. has not taken into account the reports of the Treasurer‚s difficulty in communicating to meetings, and the helpful and timely nature of the Chair‚s assistance to her at those meetings.
The panel claims that the Respondent „acknowledged having publicly accused members of the previous OTBU bargaining team and the teacher bargaining team of selling out his members.‰ In the former case, this is untrue. It is a distortion of remarks he made to one OT bargaining team member in the privacy of a bargaining team caucus. In the latter case, it is a widely held viewpoint, often stated by present and past District 12 OSSTF leaders, and by occasional teachers‚ leaders all across the province following the 1999 round of collective bargaining.
The remark „I am going to get you‰ is falsely attributed to the Respondent. The remark „what goes around, comes around‰ was an innocuous observation concerning the likely general membership response to the practices of certain members, not a personal threat of any kind.
d) Intimidated Female Members of D.12 Office Staff
Allegations that the Respondent intimidated „some District 12 office staff‰ is based on the testimony of one non-OSSTF person. No other witness testified to witnessing intimidation of anyone by the Respondent.
With regard to the alleged intimidation of female office staff, the panel finds that appellant‚s behavior is characterized by „making persistent demands and making them feel uncomfortable‰. There is very little evidence cited for that finding, vague as it is.
This is also at odds with the testimony of some witnesses for the Complainants to the effect that the Respondent was rarely at the D12 building in the first place. In any case, persistence in pursuit of the resources required to service his members‚ needs can hardly be considered a vice ˆ especially in light of the low priority often given to occasional teachers‚ needs.
Certainly the installation of a peephole and other security measures should not in any way have been considered evidence in support of the factual reality of intimidation. We don‚t know why the Plant manager took those actions. He may have been misled. Evidence showed that Barry was never told of, or given any reason for the installation of the peephole.
In fact, no evidence of misbehavior was presented at the Hearing. The Respondent was never presented with complaints of misbehavior by anyone on the third floor, verbally or in writing.
CHARGE # 2
a) Did Not Prepare a Negotiating Brief re: OSSTF Bylaw 23.14.7
The Respondent was found guilty of not preparing a negotiating brief in accordance with the B.U. constitution and bylaws. The fact is that no negotiating brief was prepared in the relevant 60-day period. Negotiating briefs were prepared, routinely, in the months leading up to the commencement of bargaining with the employer ˆ but the Respondent was not permitted to present evidence of how and when that was done in the period prior to the relevant sixty days.
It is agreed that the Bargaining Unit President‚s duties include preparing bargaining issues and leading the bargaining team. But those duties are not exclusively those of the President. They coincide with the duties and contributions of other Executive members, and the duties of those members who were later elected to serve on the OTBU Negotiating Team.
As is the case with all OTBU presidents, appellant's duties do include bargaining issues, and appellant carried out these duties in every respect. The panel failed to look at the traditional bargaining process in the OTBU and at the realities of the bargaining scene in 2001-2002.
b) Collective Bargaining Committee Hand Selected by President re; OTBU Articles 8.2.2 and 9.1.1
The Respondent is found guilty of „hand selecting‰ members of the advisory CBC, but no proof of this was presented. The fact is that Executive members and other members volunteered to serve, from time to time, on the CBC. The fact that none of the Complainants volunteered to serve on this committee is beyond anyone‚s control, save their own.
c) Collective Bargaining Committee Not Properly Constituted as a Standing Committee re: OTBU Article 9.1
The fact that the Executive had a CBC sub-committee did not exclude the constitution of a wider CBC to include other OTBU members. This is what occurred in Spring 2002.
The previous Negotiating Team was elected in February 2000. The CBC for that round of bargaining was constituted in the Fall of 1999. It consisted mainly of previous negotiators and then current members of the Executive. It prepared the contract issues survey and the contract demands package for consideration at the February 2000 General Membership Meeting, which voted on the package and elected the bargaining team.
Following the June 2002 AGM, the new executive formed a collective bargaining subcommittee and authorized the formation of a Collective Bargaining Committee open to all members. The latter met in June and July 2002. These members were not handpicked, but were volunteers. No proof of any handpicking was presented.
d) Input For Survey Not Solicited by the Negotiating Team
re: OSSTF Bylaws 12.1 and 12.1.1
The notion that a Bylaw was violated because „the bargaining survey was not solicited by the negotiating team‰, is illogical on the face of it. There is no constitutional requirement in the Bylaws mentioned, or elsewhere, that the survey be issued by the Negotiating Team. In fact, the Negotiating Team did not exist at the time of the survey. It was subsequently elected. The previous negotiating team was dissolved after ratification of the latest contract in June 2001. The negotiating team is mandated to seek in-put from members, and it does this in a variety of ways other than the issuing of a formal survey.
The formation of the bargaining brief in the fall of 2001 was delayed because of an executive decision to explore a common approach to negotiations with the elementary O.T. bargaining unit. Discussions were held with the elementary reps, and a common survey was being developed. In March 2002 these discussions broke off. The secondary bargaining unit then conducted its own survey, tabulated the results, and presented them to the March 20 General Membership Meeting.
CHARGE # 4
a) Contravention of OSSTF Practice re Establishment of Grievance Appeal Process re: OSSTF Bylaws 18.1.1 and 23.14.4The Respondent was found guilty of misrepresenting OSSTF positions on contract maintenance and the establishment of a grievance appeals process. There is no evidence of the former, and the latter claim is based on a distortion of local policy and practice. Completely ignored is the fact that the B.U. consistently took the position that it would forward all grievances not resolved locally to the provincial office, where it becomes OSSTF‚s decision whether to proceed to arbitration. Thus, there was no cause or occasion for appeal at the local level. And in any case, there is nothing to prevent a member from raising an issue, or making an appeal, on a grievable matter, by taking it up with the B.U. Executive, or at a General Meeting. Indeed, this kind of discussion has occurred at STBU Council meetings in D12. Notwithstanding the existence of an Appeal committee mechanism within the D12 STBU, their members have brought grievance issues to a Council meeting when dissatisfied with the action or inaction of their Appeal committee.
Thus it is evident that Appellant did ensure that OTBU members had the benefit of procedures for representation under the Ontario Labour Relations Act. Grievances that could not be resolved at the local level were forwarded to the Provincial Office. There is absolutely no denial of right here at the bargaining unit level. To the contrary, there is a stronger commitment to advocacy for members in this OTBU than in many other bargaining units in OSSTF. The employer is aware of this strong advocacy predisposition, and as a result most member concerns are resolved locally without filing a grievance.
b) Usurped Role of Grievance Officer Re: OTBU Bylaw 10.5.2
Contrary to the statement of the Judicial Council, Barry Weisleder did not testify that he handled all the grievances for the unit, and he did not say that he usually gave the grievance report at Executive meetings. Barry did say that B.U. members preferred to come to him with their concerns. He stated that he and two of the V.P.s met Management once each month to discuss grievances and related issues, and that all three reported to Executive meetings on this topic. The First V.P. usually led off in reporting, and the President would supplement her report.
Barry testified that he often assigned the First V.P. and other Executive members to handle member concerns. The problem arising was that the First V.P. had little time or desire to handle grievances because of her recurring and ongoing LTO assignments, and because of her stated aversion to conflict with Management. Naturally, because of union time release for four school days out of five, the B.U. president had more time, and more experience in handling member concerns and grievance issues.
Judicial Council also erred in refusing to accept the affidavit of Harish Gulati regarding grievances and how Complainant Lorraine Wright handled them. Mr. Gulati could not appear to give evidence because he had to attend to his dying mother in England.
CHARGE # 6
a) Bargaining Unit Executive Did Not Meet Once Per Month
The bargaining unit executive held ten to eleven meetings each year (in addition to the four General Membership meetings held each year), but had a long-standing practice of not meeting in January. Prior to the relevant 60-day period, no objection was raised to this practice, nor has anyone ever alleged that the bargaining unit could not do its business in its normal cycle of meetings. The place to deal with issues like this is at the executive meeting, not at Judicial Council. It was the Executive that voted each time when and where to schedule meetings. Meetings were never set by decree of the president.
The fact that the frequency and timing of Executive meetings was an established practice going back five years raises an estoppal argument. If there is an issue here, it should have been raised long ago. Strictly speaking, one would be obliged to raise the issue when the matter was first violated, or at least at the beginning of each school year, and not in the 60 day period relevant to Case #136.
In addition, it appears no consideration was given to the fact that this B.U. Executive met more frequently than any OTBU Executive in OSSTF. Indeed, what is the point of the requirement to meet with a certain frequency if not to ensure that the business of the union gets done? No one has alleged that the B.U. could not, or did not do its business through its normal cycle of ten or eleven meetings a year, including meeting occasionally during the summer months. This B.U. is more active, with a longer list of member services, educational and social activities, and other accomplishments, than most comparable bargaining units in OSSTF.
b) No Schedule of Bargaining Unit Executive Meetings Published
In the five year history of the bargaining unit, the Toronto OTBU Executive has never published an advance list of meetings.
The Constitution does not stipulate when the list of meetings is to be published. Where indeed is the Constitutional requirement to publish a list in the relevant 60 day period?
And once again, there is the estoppal argument. If there is an issue here, it should have been raised long ago. It is not legitimate to raise a discontinued practice or rule several years after it has ceased to be operative.
CHARGE # 9, # 18, # 19 re:OSSTF Bylaw 23.22
a) Bargaining Unit Funds Were the Responsibility of The President Rather than that of the B.U. Treasurer
The panel found that Appellant breached Bylaw 23.22 because all bargaining unit funds were not the responsibility of the bargaining unit treasurer. Appellant's evidence was that the bargaining unit began by controlling its own rebate funds, but soon found that the required yearly audit would cost over $2000. The District 12 treasurer offered to look after financial administration of the funds, and this saved the audit cost. The Bargaining Unit funds were transferred to the District 12 bank account, and the District 12 treasurer was responsible for these funds. The evidence shows that all funds and expenditures are fully accounted for. Appellant ensured that financial obligations and constitutional obligations of the bargaining unit were properly met. Appellant did not draft the budget; the District 12 treasurer did, in consultation with Appellant and the Bargaining Unit Executive . Once more, these issues were never raised with Appellant prior to the laying of the charges.
b) Usurped Role of the Bargaining Unit Treasurer
All B.U. funds were constitutionally the responsibility of the B.U. Treasurer. But the fact is that B.U. Treasurer Merlyn James did not exercise her responsibility. She did not take any initiative, prior to the laying of this charge, to express any concern about the B.U. Treasury or her responsibilities. Her attendance at „Treasurer‚s Workshops and her meeting regularly with the District Treasurer‰, if true although not proven, does not explain or excuse her lack of initiative with regard to the day-to-day conduct of the B.U.‚s financial business. Merlyn James rarely proposed an expenditure, and she never offered to facilitate a payment to any one of the B.U. creditors.
It fell to the B.U. President, the only nearly full-time officer of the B.U., to ensure that bills and member expense claims were forwarded to the District Treasurer and paid in a timely fashion, within the limits of the budget.
c) Treasurer Attempted to do her Job
B.U. Treasurer Merlyn James took no initiative to handle the day to day responsibilities of her office during the nearly two years she held the position. Her only contact with the B.U. President was at monthly Executive meetings, at which she typically arrived late and left before adjournment. Even her own expense claims she would hand over to Appellant, rather than take them to the District 12 Treasurer. There was no sign that Ms. James attempted to do her job, and there was no evidence that Appellant interfered with any attempts by her to do her job.
d) Funds Remaining in POSO Account Not Reflected in Annual Final Report
The District Treasurer knew very well of the existence of the Province of Ontario Savings Office (POSO) bank account. Mr. Beames received funds from that account when he first agreed to administer the B.U.‚s funds. If the balance in the POSO account was not reflected inside the Annual Financial Report, that was the decision of Mr. Beames, not that of Appellant. Neither Mr. Beames nor any one else ever raised this issue prior to the laying of this charge.
e) POSO Account Records in Sole Possession of the President
The POSO account was inactive for two years. The account records and bankbook were kept in the OTBU office at the District 12 building until the OTBU was evicted from the D12 premises.
CHARGE # 11a re; OTBU Bylaws 10.3.2 and 10.3.3
a) Usurped Role of Bargaining Unit Secretary
The Respondent is found guilty of usurping the role of the Secretary and manipulating her minutes. The fact is that the Secretary‚s draft minutes were replete with errors and extraneous comments. Liz Barkley even conceded this fact when Peter Lipman ruled as such at the March 20, 2002 general meeting when he was in the Chair. The J.C. completely disregarded the testimony of several members to the effect that the Secretary‚s own draft minutes of February 2002, March 2002, April 2002 and May 2002 were never adopted.
How can the Respondent be guilty of manipulating or changing draft minutes that were never adopted?
b) Attempted to Manipulate and Alter Minutes of the Executive Meetings
There was a problem with the draft minutes of executive meetings. They were often inaccurate and contained extraneous comments. From 1999 to the summer of 2001 Appellant received draft minutes in advance of meetings and could fill in gaps and make corrections. But after June 2001 Appellant did not receive minutes in advance and much time had to be spent at executive meetings dealing with corrections to the minutes and then approving them. Occasionally the executive ran out of time, and could not approve the minutes at that meeting. Inaccuracies must be altered prior to approval: otherwise the minutes are misleading. This is a common practice in parliamentary procedure. It should not have been characterized by the panel as an attempt to manipulate and alter minutes.
c) Motions in Minutes Altered as Part of Approving Minutes When President had Balance of Votes
The panel found that „whenever Mr. Weisleder held the balance of the votes, motions were routinely altered as part of approving the minutes.‰ But which motions were „routinely altered‰? The record, as submitted at Discovery, shows that during the relevant 60-day period the Executive was deadlocked on motions with regard to the minutes. Few, if any motions were adopted. The minutes were „routinely‰ referred or were left to be considered at the next meeting due to lack of time or the Œroutine‚ vote deadlock. The allegation that minutes were altered is not supported by any facts.
d) President Set up a Committee of Table Officers to Re-Write B.U. Secretary‚s Minutes
The purpose of the executive sub-committee was to deal with this problem of the minutes so that it did not impede the functioning of the bargaining unit. Production of accurate minutes, and their subsequent approval by the executive are essential functions, which appellant was furthering.
The Executive sub-committee of officers was to review draft minutes so as to facilitate a discussion of properly prepared minutes at the Executive. The Secretary actively boycotted the review process, which was mandated by vote of the OTBU Executive.
CHARGE # 13 Re: OSSTF Bylaw 23.14.14
a) Did Not Cooperate With the Building Security Procedures in D.12 Building
With regard to D12 building security, there was no proof presented of Barry Weisleder seeking to enter the premises improperly. There was one instance in the relevant 60 day period when, standing by the third floor door, he could hear voices on the other side of the door, during regular business hours, and thus he was being improperly denied entry. In frustration, he attempted to use his electronic wand to enter in order to retrieve B.U. mail.
None of the electronic security data presented by Mr. Beames accounted for any exits from the fourth floor, nor did it record who left a door open. The electronic data could only show entry, not exit instances. Beside, leaving a door open for a short time in order to facilitate the transport of heavy materials across its threshold is hardly grounds for discipline.
Despite claims that the Respondent „disregarded warning memos‰, no warning memos concerning building security were given to the Respondent. None was presented in evidence against his assertion.
CHARGE # 16 Re: OSSTF Rules of Order 2.8 and 2.12
a) Debated and Ruled on Resolutions While Chairing Meeting
Appellant accepts that on rare occasions he did debate and vote on resolutions even though he was chairing the meeting. The remedy in parliamentary procedure would be to raise a point of order, not to lodge a complaint with Judicial Council. There was no evidence of appellant's refusal to recognize and act on such a point of order. We also note that OSSTF Rules of Order permit a Chair to vote in order to break a tie vote, and that the Rules of Order are silent on whether a Chair can vote otherwise.
In its inflexibility, Judicial Council refused to allow testimony that the President of District 12 did regularly enter debate and vote on motions when in the Chair at District meetings.
Debating and voting on resolutions by the Chair is routinely done in the District 12 STBU and elsewhere. In the case of the OTBU, when this rarely occurred, it was an innocent error which was immediately pointed out and corrected. Surely it would be a breach of the rules to refuse to recognize and/or to refuse to act on such a point of order. There was no evidence of such a refusal.
OSSTF permits, indeed it even requires the Chair to comment on the impact and advisability of motions before the House. OSSTF rules require the Chair to answer questions put to the Chair about pending motions. This is what the Respondent did at Executive meetings. He did not chair any General Meeting during the relevant 60 day period.
How can the J.C. Panel make an objective assessment about whether the Respondent exceeded „that, which is allowable under normal explanations from the Chair‰? There was copious conflicting testimony on this point. It appears that the Panel simply chose to believe one side of the dispute, exclusively. Bruce McWhinnie, who was assigned as staff to the last week of J.C. Hearings, also attended a Toronto OTBU Executive meeting on April 11, 2002, and could have shed some light on how that meeting was chaired, influenced by his advice on preparations for the OTBU AGM.
Additional Arguments
a) Admissibility of Evidence by Judicial Council Changed in the Course of the Hearings
Judicial Council was inconsistent in its rulings on the admissibility of evidence in relation to the relevant 60 day period. On page 2 (Charges #1, 23 and 24) of the Judicial Council document „Decision with Respect to the Charges‰, reference is made to an undated document titled „The Not So Hidden Agenda of the Disloyal Opposition‰. That document was available to a small group of members after May 28, 2002, that is, after the end of the relevant 60 day period. On that same page 2, paragraph 2, reference is made to accusations that previous bargaining team members were guilty of „selling out‰ the interests of members. Testimony to that effect was provided by Lorraine Wright in which she referred to comments allegedly made prior to June 2001, which was long before the relevant 60 day period. When the Respondent attempted to give evidence to support the accusations made inside the document titled „The Not So Hidden Agenda...‰, Judicial Council refused to allow his testimony and other evidence on the basis that the cited incidents occurred outside the relevant 60 day period. These are only two examples of many examples that could be given of inconsistencies in Judicial Council‚s application of the 60-day rule. This double standard of admissible evidence constantly hampered the defence against the charges.
Furthermore, the rulings of the J.C. on the admissibility of evidence changed in the course of the Hearings. At first, the parties were allowed only to refer to evidence that was introduced by direct testimony, and not to refer to the evidence assembled in the binders that had been submitted to the Pre-Discovery meeting. That restriction was lifted, but still the J.C.‚s rulings on evidence were inconsistent and prejudicial to the Respondent, as the transcript will show.
We have sought OSSTF legal counsel concerning evidence outside the sixty day relevant period, and we hope to present this at the Appeal Hearing.
The Respondent‚s representative, in the opening statement of August 26, indicated to Judicial Council that the Complainants had breached the Minutes of Settlement reached on May 22, 2002, by the Superior Court of Justice, and the Judicial Council order issued on May 27 regarding „in camera‰ obligations of both parties. The Complainants had violated these orders by issuing a document hostile to the Respondent, sometime between May 25 and May 30, containing issues being heard at the Judicial Council. The Respondent requested, as a result, that all charges be dismissed. Judicial Council ruled incorrectly at that time that this breach of protocol was a matter for the Courts, and not for Judicial Council to decide, even though J.C. was acting as an arm of OSSTF, which was a party to the agreement of May 22.
b) Enforcement of the Particulars / Dismissal of Charges
To the best of our knowledge, Judicial Council has never in the past enforced the requirement of particulars. But given the legal agreement of May 22, 2002, signed by OSSTF and the Respondent, the Judicial Council was obliged to do so. As noted in correspondence re: Case #138 (Barry Weisleder, et al, versus Liz Barkley, et al), it is now an obligation to provide particulars, although no OSSTF Bylaw has yet been changed to reflect this fact.
Taking this approach, Judicial Council has already dismissed 10 charges out of 22 charges, and has dismissed several parts of other charges, prior to Case #138 being heard (it is presently scheduled for late January 2003).
Judicial Council should have done the same thing with regards to Case #136. This lack of proper procedure was very prejudicial to the Respondent who had to prepare and make arguments for many charges that should have been dismissed by the J.C. beforehand. Clearly, the Respondent was at a distinct disadvantage because of the inconsistency between existing Bylaws and the constantly evolving practice of the Judicial Council.
c) Mediation Requested
The Respondent in Case #136 on two occasions requested that the matters in dispute be mediated or be sent to the Mediation Council. He argued that these matters did not appropriately belong at Judicial Council. Both requests by the Respondent were refused by the J.C., which argued that the two parties could decide to seek mediation on their own if they wished to do so. Nonetheless, in Case #139 of District 25 (Ottawa-Carleton), which is to be heard by Judicial Council and which is very similar to Case #136, all matters have been put in abeyance by Judicial Council until a Secretariat member has completed an investigation and made recommendations to the General Secretary. This courtesy was never extended to the Respondent in Case #136. Judicial Council erred in this case in failing to apply OSSTF Bylaws 6 and 7, and especially subsection 7.7 of Bylaw 7 (Counseling and Mediation Procedures for Dealing with Disputes Affecting the Professional Relationships Between Members).
And concerning the diversion of energy and resources, it is the Judicial Council process initiated by the Complainants, who were asked and refused to go the Mediation route, that has so far cost the Federation in excess of $100,000.
d) Flexibility of Bylaws
Both in Opening and Closing remarks to Judicial Council, reference was made to a Canadian Labour Congress publication „Internal Union Hearings ˆ Handbook for Trade Union Leadership‰, which states, in part, that „Union constitutions are not to be interpreted like legal statutes. They are drafted by trade unionists and should be read in a flexible manner with the general purpose of a trade union in mind.‰ Judicial Council clearly chose to ignore this advice throughout the Hearings, and especially regarding Charges #2, 4, 6, 9/18/19, 13 and 16. Judicial Council certainly erred in being inflexible in its refusal to allow the Respondent to show that meetings of his executive were held at least 10 times per year, although not in January, and that the election of a negotiating team did take place, although not within the relevant 60 day period.
e) Testimony of Kate Harris and of Ron Shewchuk
Judicial Council also erred and remained inflexible with regards to the Bylaws in that it evidently did not take into consideration the testimony of Kate Harris, OTBU President in District 19, and the testimony of Ron Shewchuk, OTBU President and District 25 President, both of whom argued that an OTBU president must interpret the Bylaws in a flexible manner, otherwise an occasional teachers‚ unit would not be able to fulfill its basic duties.
In fact, J.C. refused to allow consideration of a majority of Ron Shewchuk‚s affidavit, which addressed this very point. The J.C. did accept part of his affidavit, but eliminated about two-thirds of the text ˆ parts that are relevant to the role of O.T. presidents and specifically the performance of duties by the Respondent. These exclusions were not appropriate and hampered the defence against the charges.
f) Access to Files
After July 4, 2002, appellant no longer had access to his office and his files in the District 12 building, except by appointment with the D12 building manager and District Treasurer Bob Beames, one of the witnesses for the Complainants. This situation was the result of the OTBU being evicted from the D12 building by decision of the STBU Executive in D12. On August 21, 2002, the OTBU removed its remaining possessions from the D12 building. All the materials, in boxes, including the files of bargaining unit President Barry Weisleder, had to be stored in his garage, where they remain. No alternative office space was available. Thus, it became increasingly difficult to access those files and materials in order to prepare for the Judicial Council Hearings which resumed on August 26. This whole process greatly prejudiced the ability of Appellant and his representative to defend against the many charges at the J.C.
PENALTY
a) Behaviour Contributed to an Atmosphere of Disrespect
But what of the contribution made by the Complainants during their year-long factional war waged against the B.U. President? The fault of the Respondent appears to be that he responded to unremitting attacks on himself ˆ even if only six months after they started, and in a muted fashion.
b) Behaviour Contributed to Distrust of OSSTF Beyond the Bargaining Unit
Liz Barkley and other Complainants made sustained and ongoing efforts, over a period of a year, to demonize and slander the Appellant not only across OSSTF District 12 and the provincial OSSTF, even involving district and provincial OSSTF staff (e.g. Moe Jacobs), but outside OSSTF by slandering Barry Weisleder at meetings with ETFO officials. The Toronto elementary occasional teachers‚ president even issued a vicious, libellous attack letter against Appellant in March 2002, inspired by Liz‚s ongoing campaign against Appellant, which Liz et al openly distributed to members at a Toronto OTBU General Membership Meeting on March 28.
c) Behaviour Created Rifts in the Bargaining Unit Causing the B.U.‚s Effectiveness to be Diminished
He is accused of creating „rifts‰, and „diverting energy and resources away from ... members‰. But the architects of a concessionary and discriminatory contract settlement in June 2001 created the first „rift‰. The second „rift‰ was created when the same forces set out to orchestrate the removal a popular president because he had the temerity to criticize that inferior contract settlement and its architects. Liz Barkley told V.P. Steve Brinder in October 2001: „We‚ve got to get rid of Barry.‰ Liz never ceased her efforts to that end, and enlisted D12 STBU leaders in her cause, resulting in libellous letters issued by Jim McQueen to District Executive Council members and to OTBU Executive members, culminating in the eviction of the OTBU from the D12 building on trumped up security issues. But the major diversion of energy and resources has been caused by the frivolous and vexatious charges and ensuing Judicial Council proceedings initiated by Liz et al.
d) Dominates the Bargaining Unit Very Extensively
(Refer to Kate Harris testimony: two or three people do all the work in the Peel OT unit. There are no standing committees operating that include the real participation of any more than the three main activists who do all the bargaining unit work there.)
e) Meeting the Standard Expected of an OSSTF Bargaining Unit President
The Respondent is found guilty of failing „to meet the standard expected of an OSSTF bargaining unit president‰. But there‚s no clear indication of what that standard is. The penalty seems intended to censure behaviour, not criminal behaviour, but behaviour that has „contributed to an atmosphere of disrespect for colleagues and distrust of OSSTF‰.
f) Extraordinary Circumstances Require an Extraordinary Remedy
The panel's second reason for imposing this „extraordinary remedy" is extraordinary in itself. It is the fact that appellant is extremely popular and well supported by members of his bargaining unit. He was re-elected easily in June 2002. There certainly is a faction which does not like him, but that is not a reason to deprive the majority of the bargaining unit of his services.
There is no precedent in OSSTF for removing a bargaining unit president from office. In this case, the J.C. seeks to remove a bargaining unit president who was just re-elected by his membership during the actual period of the ongoing charges and hearings. It cannot be argued credibly that the 220-plus OTBU members who voted at the AGM on June 5, 2002 were unaware of the charges against the incumbent president, or were unaware of the views of the Complainants. A large majority of the members present and voting at the AGM re-elected Barry Weisleder. Surely that is, at least in part, a comment on the credibility of the Complainants and the veracity of their charges.
g) Period of Time Needed for Healing and the Restoration of Normal Union Procedures
It is amazing that the J.C. panel thinks that „healing and the restoration of normal union procedures‰ can be achieved by the forced removal and barring from office of a popular, elected president. The penalty, if upheld, will have the exact opposite effect. It will bring OSSTF into disrepute for its interference with local democracy. Ironically this comes at a time precisely when the Federation is criticizing the provincial Conservative government for usurping the role of elected officials of three major school boards in Ontario.
Neither the Respondent, nor the membership which elected him, will be going away. Overturning the result of a fair election, in effect trampling on local democracy, will not promote the healing of anything or anyone. It will, instead, erode solidarity and corrode democracy in OSSTF. Punitive action will be remembered for a long time, and in the short run it will foster more tension, division, disrespect and costly expense than this process has already caused. But it‚s not too late to stop this process. It‚s not too late to respect local democracy.
h) Must Be Removed for Changes to be Made
Must the will of the Toronto OTBU membership be thwarted in order to make „changes‰ that presumably are in accordance with the OSSTF Constitution and parliamentary procedures? Where has it been shown that rules of order have not been adhered to in the OTBU when points of order or privilege have been properly raised? OSSTF Secretariat members have chaired the Bargaining Unit General Meetings, including the AGM, since March 2002. The B.U. elections were prepared and staffed by Secretariat members. Recommendations from the province to amend the OTBU Constitution have been enacted. What other changes must be made that cannot be made with the President-elect in place?
Reaction and Alternatives to Penalty Imposed
Very few Œfacts‚ were agreed between the parties. Given the absence of proof (e.g. video or audio recordings of the events or of the behaviours in question), and given the preponderance of conflicting accounts, it was incumbent on the J.C. to find that the Complainants did not meet the burden of proof. They failed the test of the onus of proof on them. The Complainants proved next to nothing -- that is, beyond a reasonable doubt.
Thus in finding the Respondent guilty of alleged violations of the Constitution, the J.C. violated the elementary burden of proof requirement. And given the extreme penalty imposed, a heavier than normal burden of proof should have been exacted.
The standard of proof, when the existence of a person's job is concerned, should be a high one, nothing less than serious malfeasance unmistakably demonstrated. That is not the case here. Many of the charges were petty and should not have had Judicial Council as their first resort. The evidence throughout was conflicting, and as we asserted at the beginning of this Request for Appeal, the panel may have improperly resolved the conflicts in favor of the Complainants.
There is no precedent in OSSTF for removing a bargaining unit president from office. In this case, the J.C. seeks to remove a bargaining unit president who was just re-elected by his membership during the actual period of the ongoing charges and hearings. It cannot be argued credibly that the 220-plus OTBU members who voted at the AGM on June 5, 2002 were unaware of the charges against the incumbent president, or were unaware of the views of the Complainants. A large majority of the members present and voting at the AGM re-elected Barry Weisleder. Surely that is, at least in part, a comment on the credibility of the Complainants and the veracity of their charges.
The penalty imposed by the J.C. Panel is extreme and unwarranted. Even if all the violations found by the panel are correctly determined, the most punishment that would reasonably be required is a reprimand, accompanied by recommendations for improvement of certain bargaining unit practices.
Once again, the elections held at the AGM of the OTBU on June 5, 2002 were decisive. Numerous OSSTF provincial staff supervised them. All parties agree that they were conducted fairly and properly. The Complainants presented their arguments through a mailing of literature to all members and by telephone canvassing. To do this they had at their disposal a membership list complete with addresses and phone numbers. They argued for their points of view at the AGM, and at several previous meetings. Still, the Complainants, all of whom were candidates at the election, were defeated in the vote, and the Respondent and his team of candidates were elected -- every one of them. Removal and barring Barry Weisleder from office in OSSTF for 18 months is a violation of the rights of the members of the Toronto OTBU to elect the leader of their choice. It is a violation of basic union democracy.
It is also a violation of the Respondent‚s employment and civil rights. Removal from office deprives him of his occupation and his livelihood. Barry‚s occupation and main source of income since the establishment of the Toronto OTBU in OSSTF five years ago has been Bargaining Unit President. He held a similar position in the OPSEU, Local 595, for the preceding fourteen years. His job was not casual, or temporary, or short-term. It was nearly continuous over a period of two decades.
While it can be argued that the Respondent can seek a living as an occasional teacher, or work in another occupation, the same can be said of any person unjustly terminated. She or he can always attempt to find work elsewhere. But that does not mitigate or condone the injustice of the termination. Removal from ongoing employment, barring criminal behaviour that would justify termination, is a violation of an individual‚s right to security of employment. This penalty has implications under the Ontario Labour Relations Act.
There is no allegation of criminal behaviour against the Respondent. There is no allegation of neglect of duty or poor service or incompetence. To the contrary, Barry‚s re-election is the members‚ verdict on the quality and effectiveness of his service.
In summary, the Appeal Committee should find that the proceedings of the J.C. Hearings were seriously flawed, that most of the charges laid were frivolous, vexatious and/or improperly formulated, that the J.C. findings are wrong in light of the proper burden of proof, and notwithstanding all of the aforementioned grounds, that the penalty is inappropriate in the extreme.
Appellant requests as relief that the reprimand, the suspension, and the 18 months period of ineligibility be voided.
Or in the alternative, that the penalty be reduced to a reprimand and a clear indication of procedural changes to be made within the bargaining unit and monitored for a period of time by a member of the Secretariat.
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