Article 4, a smokescreen for labour’s civil war

By David Bush

When Unifor left the CLC on January 16 it cited the inability of the CLC and its affiliates to properly handle the process by which workers can change unions. This process is outlined in Article 4 of the CLC constitution.

The disagreement over Article 4 is the only reason that has been given for the split in the labour movement. So it is worth asking ourselves: what is Article 4, and is it true that it is not working?

In his January 17 letter to CLC President Hassan Yussuff, Unifor President Jerry Dias states:

“At its core, the issues are rooted in an inability of affiliates of the CLC to allow Article 4 to be applied as it was intended. Article 4 allows for a democratic process for workers to change unions…

The Article 4 issues coupled with the inability of the CLC to deal with now two instances of U.S.-based unions interfering in elections and imposing trusteeship on Canadian local unions leaves Unifor at odds with many in the Canadian labour movement.”

Dias argues that unions affiliated to CLC have frustrated the Article 4 process, that Unifor was excluded from having representation on a CLC advisory committee on Article 4, and that the CLC is unable to protect the autonomy of Canadian locals of international unions.   

Dias’ arguments were echoed by others in Unifor who argued that Article 4 was in dire need of updating and definitively stating it wasn’t working.

What is Article 4?

To assess whether Article 4 is working or not, it is important we understand exactly what it is and where it came from.

In 2000, one of Unifor’s predecessor unions, the Canadian Auto Workers (CAW), engaged in a raid of the SEIU healthcare units in southern Ontario. This raiding action was condemned and the CAW was sanctioned by the CLC. In response the CLC set up a dispute resolution process in 2002 which eventually became Article 4 of the constitution. Article 4 was supposed to outline a clear process to deal with various organizational and jurisdictional disputes between unions, as the article states:

“Following this guideline promotes trust and goodwill, builds cooperation and solidarity, and conserves scarce union resources. If there is an organizing dispute, the Congress is prepared to help resolve it in a fair way that satisfies the parties involved.”

The article also outlined a process which union members could engage in if they wanted to change their union, what is now Article 4.9 of the CLC constitution.

Article 4.9 is triggered when the CLC receives “a request from a group of workers wanting to leave their own union.” Upon receiving this request, the CLC encourages members to use official channels, and a mediated process to find a solution. The CLC also contacts ranking officers in the union to ask them to resolve the problem and convenes a meeting to follow-up.

If the dispute is not resolved internally, a mediator/investigator is appointed to examine the claims made by the members, and makes sure no other affiliate union is attempting to influence them either directly or indirectly. The mediator then makes a binding decision, such as ordering elections, making them a directly charted local, or setting a cooling-off period. The process was intended to ensure fairness for the members making the complaint, while also ensuring no other union is interfering directly or indirectly. In short it was designed to prevent raiding by offering an alternative process to change unions.

Article 4 of the constitution is far from perfect. In 2011, following NUPGE’s brief withdrawal from the CLC, article 4.9 was rewritten. Article 4 was further amended in 2014 and 2017 to quell complaints of the dispute process by unions. The practice of the CLC in dealing with complaints has also changed at the request of affiliates. For years CLC reps were handling the initial complaints in contact with ranking union officers and workers. If the complaint was not resolved in this initial phase, a mediator was assigned. By and large this practice was fairly successful, with yearly reports from CLC showing high rate of successful resolutions, but at the insistence of some affiliates, the Article 4.9 justification disputes have in recent years been sent directly to the president’s office, making for a more cumbersome process.

But despite its flaws, Article 4 seemed to be working. Since the last CLC convention in May 2017, the CLC has handled 46 Article 4.9 complaints and claims to have resolved 45 of them to the satisfaction of the workers involved in them.

Article 4 and International unions

Lurking in the background of the complaint that Article 4 is not working is the crisis which unfolded at ATU Local 113 in early 2017.

On February 1, 2017 the then ATU local 113 President Bob Kinnear sent a letter to Hassan Yussuff. In this letter Kinnear, appearing to speak for the entire local, requested access to the justification process in Article 4.9 of the CLC constitution in order to change unions.

Although written as if Kinnear was speaking on behalf of his local, the letter was signed by Kinnear only. At no point did Kinnear get a mandate from the membership or even executive board approval to initiate Article 4.9. No vote, no debate nor any discussion was undertaken about this at any level in the local. There was no group of workers who triggered the justification process.

In response to Kinnear’s actions, the ATU International trusteed the local within 48 hours. The CLC’s initial reaction to this was to condemn the ATU International for the trusteeship and suspend Article 4 protections for ATU Local 113. This would mean ATU local 113 was fair game for raiding. Chris MacDonald, the then executive assistant to Yussuff, told the Toronto Star the ATU trusteeship was “payback” for Kinnear going to the CLC. MacDonald was a former Unifor staffer, who would leave the CLC later in 2017 and return to Unifor.

Unifor’s plot with Kinnear

While Kinnear and Jerry Dias appeared in the media together to denounce the trusteeship as an American invasion and an affront to Canadian union democracy, new evidence emerged showing collusion between Unifor and Kinnear that predated the trusteeship.

A letter was released which showed that Kinnear had communicated with Unifor’s staffers and lawyers before the trusteeship. RankandFile.ca also unearthed a series of  recordings which showed some collusion. The first recording was of Kinnear admitting to the fact that Unifor was paying for his legal fees during his dispute with the trusteeship.

The second recording was of two 113 executive board members, Tony Barbosa and John DiNino, discussing the impending crisis in the local. The conversation took place in January prior to both Kinnear’s letter to the CLC and the trusteeship.

Barbosa predicted with stunning accuracy Kinnear’s letter and the trusteeship by the International based on Kinnear’s letter. He states that the letter would force ATU International to trustee the local and that this will play into Kinnear’s hands. Barbosa then laid out how Kinnear would respond to the trusteeship: by holding a press conference claiming he wants the members to decide. He then states:

“And then it’s done, buddy, and then all of a sudden some other guy’s gonna appear, ‘oh yeah I’m here to save the day’. Maybe it’s [inaudible] he’s going to fuckin jump in there and everything is going to get fuckin “I’m here to save you guys don’t worry.”

The recording names and clearly outlines the collusion between Kinnear and Unifor, and even the CLC’s hamfisted reaction.

Some may point to the injunction Kinnear won on February 21 overturning the trusteeship and reinstating him as president as proof that the trusteeship heavy-handed and unwarranted. The truth is the decision by Justice Penny was an interlocutory injunction — it was not a judgement on the merits of Kinnear’s claims. It was not even a judgement on the ability of the ATU International to trustee local officials for violations of its constitution. It was a decision on whether or not the trusteeship was a valid action while the CLC justification process was playing out.

Unifor aided Kinnear in his efforts to fight the trusteeship in the courts and at the membership level, paying for a full page open letter from Kinnear in the Sun, Metro and Star denouncing the trusteeship. But it was all for naught. The executive board and shop stewards in 113 turned against Kinnear and he resigned on March 17.

The fallout of the ATU crisis

The CLC and Unifor’s actions were criticized by numerous affiliates during this period. On March 3 a letter signed by the presidents of NUPGE, CUPE, USW, IAM, UFCW, and endorsed by UNITE HERE, SEIU Local 1, and UA was sent to Yussuff.

The letter stated that a “CLC affiliate (Unifor)” appears to have interfered in the “established collective bargaining relationship of another affiliate (ATU Local 113).”

It called on the CLC to declare the “original justification has been determined null and void, and that any investigation that is ongoing will focus instead on the actions of another affiliate (Unifor) that are in violation of 2 key sections of Article IV.”

These same unions also critiqued the contentious 11 page report on the crisis submitted CLC Investigator Barry Thorsteinson on March 27. The Thorsteinson report was never completed (it was cut short with Kinnear’s resignation), but it contained some glaring holes and baffling leaps of logic, which RankandFile.ca reported on at the time.  

Is the Unifor-CLC split about Article 4?

In sum Kinnear colluded with Unifor before the Article 4.9 justification letter was sent and before the trusteeship. The letter was never from a group of workers, but from a leader of a local who never brought any of these concerns to the membership or the democratically-elected executive board. Unifor clearly violated of Article 4.5a of the CLC constitution which states:

“Each affiliate respects the established collective bargaining relationships of every other affiliate. No affiliate will try to organize or represent employees who have an established bargaining relationship with another affiliate or otherwise seek to disrupt the relationship.”

For Unifor to point to the ATU 113 crisis as an example of Article 4 not working is like a robber blaming weak locks for the robbery. Likewise the crisis in UNITE HERE local 75, which is currently being raided by Unifor, cannot be pointed to as a failure of Article 4. No one at Local 75 attempted to initiate an Article 4.9 justification claim. Unifor simply left the CLC, used Article 4 as a cover and began a raid on Local 75, aided by parts of its local leadership, while many of its units were in an open period.  

There are of course problems with Article 4 both as it is written and as it is practiced, but they are certainly not the source of the split in labour. As we wrote in May of last year:

“It is only a matter a time before another disagreement over Article 4 provisions emerges from an attempted raid or dispute between a local and its union’s head office. The CLC must clarify what a “group of workers” seeking the justification process actually means…

If the ATU crisis was not dragged out from the back rooms and into the light there was a strong possibility that this whole debacle would have been swept under the rug with little to no accountability. The very fact that some tried to use the issue of nationalism as a cover for misdeeds shows why we must insist on transparent and open debate in our movement.”

Sadly these words ring painfully true. The current crisis in labour is not about the workings of Article 4, or who sits on the CLC committee to reword Article 4. The Unifor-CLC split is crass power play politics, where the temptation of new members trumps principles. This of course is dressed up in the language of nationalism and democracy, and is being justified by pointing to a dispute about the dispute resolutions process.

Article 4, although imperfect, was designed and mostly functions to prevent unions from engaging in continuous raids that would waste resources otherwise used to organize new workers and fight employers. It is easy for union members to get dragged into the palace intrigue and factionalism of this dispute. But the terms of the debate as presented to union members are a smokescreen and it would be wise not to draw lines in the sand between ourselves based upon them. It is not Article 4 that is broken, but our union leadership which is willing to engage in a civil war instead of fighting the bosses.