The crisis embroiling ATU Local 113 continues as Bob Kinnear, the trusteed President of Local 113, won an injunction on February 21 against the trusteeship of the local by ATU International. The decision by the Superior Court reinstates Kinnear as president.
This decision was followed quickly by a vote of no confidence in Bob Kinnear by Local 113’s executive board. The next day Kinnear announced his lawyers will go to court on February 23 to ask the court to hold Manny Sforza, the former trustee and international Vice President, in contempt for allegedly violating the court order by attending executive board meetings.
Tuesday’s court decision, like much of the rest of this story, has been played out far away from the workplace and the union hall. The backroom drama for the most part has not involved members, nor has it in any meaningful sense been the product of membership engagement. The ATU’s trusteeship, Kinnear’s maneuvers, the CLC’s actions, Unifor’s involvement and the subsequent legal wranglings have little to do with members and are in no way building the power of workers.
Kinnear and his allies in Unifor were quick to paint the Superior Court decision as a victory. His lawyer released a statement saying, “the decision is a stunning indictment of the unconscionable requirements of U.S.-based international unions that prevent Canadian members from ever escaping and creating strong Canadian unions.”
Jerry Dias said this the decision was a landmark victory for Canadian workers, stating, “all Bob Kinnear was trying to do was give his members a choice.”
While there is little doubt the granting of the injunction was a victory of sorts for Kinnear, there has been some confusion about what exactly Justice Michael Penny stated in his ruling and what its actual significance is going forward.
The Superior Court granted an interlocutory injunction against the ATU International trusteeship of 113 and thus reinstating Bob Kinnear as president.
Reading the decision, the Justice notes the balance of convenience was to grant the injunction until a full hearing on the matter could take place. In his ruling, Justice Penny outlined the general background of Kinnear’s request for an injunction.
Kinnear contends he raised the issue of disaffiliation in October 2016 after Hanley said a resolution calling for a remittance of new dues to the International from Canadian locals at ATU Canada should be repatriated was ridiculous. Kinnear claims after the ATU International conference in October things came to a head (neither he nor the Justice mention that it was at this conference he lost his bid for the 18th International Vice-President to a member of his own local).
Kinnear argued he brought up disaffiliating to his board in October of 2016. He claimed there was a show of hands approving this course of action. 13 of the 17 members of his board deny this ever took place and have signed statement to this effect (no minutes have been produced thus far to support Kinnear’s claim). Kinnear said that a majority of his membership supported disaffiliation (no evidence has been produced to support this claim either). He then filed a 4.9 application for a justification process on February 1. He claimed he had board approval to do so, again 13 of 17 members of the board disagree with his version of events.
Kinnear then filed a notice of motion on February 2 against a possible trusteeship from the International. The trusteeship came down on February 3.
Kinnear is seeking a permanent injunction against the International, claiming its International Constitution (sections 12, 13.4, 13.5, 13.17, 17, 21.7, 22.1, 22.2 and 27 dealing with dual unionism, decertification or secession) are null and void as they suppress free speech and stifle dissent.
Kinnear wants to know if 10 members in good standing could defeat disaffiliation against 11,000 members voting the other way and if the assets of the local will revert back to the international after disaffiliation.
To sum up, Kinnear’s claims are the Constitution of the International should be invalidated on these grounds:
1) Accessing the CLC justification process should not result in trusteeship.
2) The majority of the executive board (or any 10 members in good standing) should not in theory invalidate the will of the membership to disaffiliate.
3) The property of Local 113 should remain the property of the local not the International if they disaffiliate.
The Justice does acknowledge Kinnear’s claims are disputed and unproven in terms of the membership’s will to disaffiliate and the executive board supporting the move to disaffiliate.
The Justice’s threshold is not to say Kinnear’s claims are true and the International is wrong, rather that the issues are serious enough and “hotly contested” that they need to be tried.
Justice Penny found the trusteeship may have over stepped, depriving members of full debate and their elected leader. The purpose of the trusteeship, according to the ruling, “is to quell dissent.” The impact of the trusteeship, the Justice found, was to “deprive the membership of open and informed debate.” The Justice referenced the previous interference by the International in the last election too. However, the International was only involved in the 2015 election because members formally complained to the International about Kinnear’s violating the local’s by-laws around elections. These claims were investigated and found to have merit and another election was ordered.
The fact the majority of the executive board disagrees with Kinnear was used by the Justice to argue they will provide a useful check on Kinnear going forward. The Justice noted the fact the exec board was against Kinnear’s actions supported the assertion that the trusteeship was not needed.
The Justice found Kinnear’s claim that the International’s power to discipline its members for charges of dual unionism, decertification or secession are unconscionable is without ground. These powers have not been used against members.
Ultimately the Justice says no harm will occur to the International if the temporary injunction is granted and the trustee is removed. The Justice argued that the trusteeship caused irreparable harm to Kinnear, though no evidence was produced to back this claim up as outlined in section three of the ruling. The pre-trustee status quo will be remain as the CLC justification process proceeds. The Justice also questioned whether it was appropriate for Kinnear himself to initiate the 4.9 justification process.
Ultimately this was a victory for Kinnear, one attained through the courts and bypassing the Ontario Labour Relations Act section 89, which allows international and national unions to trustee locals for violating bylaws (something which happens quite frequently). But this victory is not quite the sweeping one he or his allies would like to paint. This 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. This was a decision on whether or not the trusteeship was a valid action while the CLC justification process was playing out. The Justice explicitly states the larger issues, the disaffiliation and Kinnear’s actions require a full hearing. It also does not in any meaningful sense give an indication that Kinnear would win this case when all the evidence is aired.
There is a larger question brought up by this case is which warrants a broader discussion. Whatever one thinks of the Local 113’s by-laws and the ATU’s International Constitution, should the courts be the arbiter of what constitutes democracy in the union movement?
Hours after the Justice rendered his decision the Local 113 executive board unanimously passed a motion for Kinnear and his allies “to cease and desist from directing or assisting any campaign to take Local 113 out of the ATU.” The executive board also unanimously approved a motion of no confidence in Kinnear’s leadership. Kinnear countered these actions by signalling his intentions to take Sforza to court for violating a court order. Sforza and executive board members claim he was invited to be at the board to give at advice.
The crisis inside ATU 113 is not going away anytime soon. Kinnear and his opponents in the International and in 113 are set to duke it out in court. The CLC justification process will also play out and new information will surely come to light.
Kinnear has tried to paint himself as standing up for Canadian union rights by giving members a choice. But a choice to do what? And who besides Kinnear was calling for a choice to change unions? And where was this choice debated?
If there was a mass or even a small minority of workers who wanted to leave, why didn’t they, not Kinnear himself, file the 4.9a justification (the CLC justification process is intended for members not local presidents)? Why do the overwhelming majority of stewards and the executive board disagree with Kinnear?
The ruling does not deal with or even attempt to deal with all the contending facts and motivations in the case. In fact the Justice Penny himself raises questions about Kinnear pushing disaffiliation against the will of his own board (not to mention involvement of his members).
Unifor’s gloating over this is worrisome. They got caught colluding with Kinnear before the trusteeship (in all likelihood violating section 4 of the CLC constitution). Dias openly called for ATU 113 members to join Unifor during a period when the CLC suspended its anti-raiding provisions in regards to Local 113. Unifor have for some reason put themselves in the middle of the debate about the future of 113. But the question is, who invited them (and when were they contacted)? While some members may indeed want to leave the ATU or even join Unifor if the question was formally posed, the issue is who is posing this question and why? It certainly is not any organized fraction of members within the ATU 113. Members did not initiate the 4.9a justification process, nor did they even get a chance to debate it.
Was the trusteeship by the International justified in light of the events? It is hard to imagine that any other union when faced with a similar situation would have behaved differently than ATU International. This does not mean trusteeship was the best way to fight Kinnear’s backroom maneuvers. It could be argued that a full and open democratic fight should have been taken to the membership by the majority executive board. But ultimately it is up to the members of Local 113 to sort out the merits of the trusteeship and to judge Kinnear’s actions.
This drama has so far been played out in law firms, in courts, in the media and behind close doors. Members of 113 will have to drag this fight out of the backrooms of union wheeling and dealing and into the light. They will have to look beyond the rhetoric of nationalism and beyond the courtroom to figure out what is best for their local. This can only be done by insisting on full disclosure from the parties involved and having an open and democratic debate inside the local free of interference from other unions.