By David Bush
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 Ruling
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?
The fallout
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.
David Bush, I think your bias against UNIFOR as a former SEIU organizer is showing here. SEIU, like ATU failed their Canadian members and the ones fortunate enough to bail have been better served with a Canadian union. As a former CAW-TCA local president I encourage ATU Canadian members all across the country make the break from the International and join UNIFOR.
I powerfully don’t care about union tribalism. I have no particular loyalty to the SEIU or its leadership ( I have long ceased working for them and I never particularly cared for agreed with its leadership). Unifor has lots of good members and units, but it also has problems. Some of which are well documented by members on this website. The last round of deals in the auto sector which stripped away defined benefit pensions for new members and was arguably worse than the last UAW contract in the sector. There is also the cozy and unporductive relationship between Unifor leadership and the Liberals (not to mention the President of Unifor donating money to the racist Tory Kellie Leitch). So yeah SEIU has loads of problems, like any union, but Unifor being a Canadian union is no less riddled with issues. So spare me.
For the benefit of readers that are not familiar with the Amalgamated Transit Union, would it not have been a good idea to have included the fact that ATU 113 is the Toronto local?
Amazing how these “Executives” are loosely throwing around words like “Democratic” and “Parliamentary Procedure” These same individuals who are accusing Bob of all these heinous crimes (rightfully of course) are doing exactly the same if not worse, case in point Sforza full page article on the corruption in our local, yet the IU receives all financial reports from the local and Treasurer Kevin Morton has to countersign every “check, expense and receipt” so where were all these “honest board members” when Bob was robbing the bank? Why was the membership not informed by Mr Morton and Mr Sforza?
Mr Morton (gatekeeper) and Mr Sforza were you both freaking sleeping on the job or just complacent? The evidence indicates undoubtedly the latter. What a web we weave!
Curious as to the view of our membership as it is personally an insult to my intelligence, but then the view of the majority is muzzled by this very local.
Bob’s Lawyer states that Many presided over the emergency meeting, irrelevant to those claims and notably, is that we have some unsavoury characters in that, we had a leak. What is astonishing is the fact that an emergency meeting of this magnitude was called and only three executive members attended? Where were the others, having a drink at a bar on the locals credit card, or was the check already pre-signed by the Treasurer? The right and only way would have been to have put a matter of this importance and magnitude to a vote by the membership, it seems the Board is scared of the result by the very system they thrived on.
A vote of non-confidence by way of a “Quorum” three members of the executive board? Judge’s ruling that Bob claim is arguably based on only ten members been able to reject a break away from the IU, what is amiss here is the Judge failed to see that the local’s “kitty” is controlled by way of a “Quorum” of less than ½ a percentage point of its membership voting at a meeting, and that would equal to approximate three members per executive board member. Stack a meeting and bleed the “kitty” hell this might even stump Trump, bleed (rob) not grab the kitty is the way to go!
While I detest Bob’s actions with a vengeance, having been in unions since I was eighteen years old and a former board member of IBEW many moons ago, I have never seen such arrogance, muzzling, deception and corruption in a local.
The local loves to spend money on software that is personally beneficial, what would be very beneficial would be to implement in person and electronic voting in all matters of monetary value and in the election of board members, this would truly reflect the “true desire and will of the membership” which by the way is an extremely easy process even using our own membership area (I can just visualize the sleazy ones quivering in their boots as that would end their reign of corruption) This would reflect the true meaning of “Democracy” and I’m sure the IU and the entire local Board, that love to preach but not practice would not disagree? Over to you Many, Kevin and the rest of the board for comment?
The local has engaged in practices that are anything but “democratic” by limiting, censoring and restricting access to our membership site and on the FB site anytime there are elections, strife or any matters of importance, this is the most disgraceful and deceitful act on part of the Local in an attempt to further their own agenda. Irrespective of a side, opinion or view every member is entitled to free speech, freedom of thought, freedom of expression and the right to be heard. The Board was not elected to “Play God” which is exactly what these undesirables are doing.
As for Bob blowing his fog horn of his leadership record, lets this be an eye opener, this is an individual who is single-handedly responsible for the membership been declared “an essential service” by his misguided actions of thuggery and wildcat/work stoppage against the TTC and more so the ridership of this great city, OHIP premiums sure Bob an articling law student could have won this one as it was so clearly written into the agreement, my belief aside random drug testing is a result of a broken and weak union, run to the ground by Bob and his fellow board members whose only agenda seems to be to enrich themselves. Did I miss any of Bob’s achievements? I stand corrected he did mop the floor well as a janitor in the TTC.
Very well said. My only issue is all the Bob bashing. Did the Board allow Bob to do whatever he wanted i.e. Wild cat strikes, etc. the board must have voted on all these issues that Bob is being blamed for. I say spread the love.
The self serving BS is a major contributing factor as to why I retired. Was the executive so badly cowed by Bob Linear? They know how angry the membership is about these issues an yet kept their mouths shut for fear of being defeated next election. It’s obvious this is not about the membership. So now what? Is it too little and too late to grow a spine?
It will all come out. The members will soon find out what a thug he is. How he bullied members of the board, intimidated them, bought and paid his minions with lost time. Ignored motions past buy his board, including electronic voting. As for the emergency board meeting, I have it on good authority that 3 were absent. Not 3 present get your facts straight. Or are you on Bob’s payroll as well.
That was an error and corrected Chuck on our own FB page, however, there is no edit feature on this site, With regard to been on Bob’s payroll, I can’t be bought and I have more scruples in my little toe than Bob has in his entire body.
“Why do the overwhelming majority of stewards and the executive board disagree with Kinnear?”
Dave Bush, where do you get you information? I conpletely disagree with the above quote from your article. The majority of members, including shop stewards and safety reps I have spoken to directly, were on side with Kinnear and his actions toward secession prior the the Tuesday press conference infront of a UNIFOR banner sitting beside Diaz, it was that decision by him that turned a lot of members away. That being said, there are still a large number of members who wish to secede from the international, just do not want anything to do with UNIFOR. The talk umongst the members is that we would be better to go alone, or become our own union or association, and my understanding of the CLC constitution is that if the secession process went through, we would have to stay on our own for 1 year anyway, with rules protecting us from raiding and as well as not being allowed to affiliate during that time. Where Sforza and the international have failed the members of 113 is that there has been only a trickle of information coming out of the building, that belongs to members, and little access to the people inside. Plus the fear mongering, steady stream of propiganda that I’m sure is being paid for by members. In fairness the members should have a democratic voice, without fear of reprisals from either side. ATU constitution be dammed.
Thanks for your comment Greg. Here is what I am basing that on. 13 of the Executive Board members came out publicly against Kinnear. As per shop stewards, ATU says they have 72 percent of local shop stewards signed letters opposing Kinnear’s actions. As per membership, I never said I knew what the majority of them think. I assume a wide variety of opinions in regards to the International, Kinnear and Unifor (which is reflective of the conversations we have had with local members ).
I would hazard a guess that some if the executive who sided with the International were intimidated into doing so. Anyone I have spoken to is on Bob Kinnears side including myself.
In the Toronto Star on Feb. 23, 2017 p A7 there was a full page statement by Bob Kinnear addressed to “ATU Local 113 Members.” The statement was printed over a faded red maple leaf.
Who paid for this? This is not cheap.
Wow! missed that one Ted, amazing how these so called union leaders for the “Rank and File” have access to this kind of funds.
Feb 23, 2017. ATU 113 Court Proceeding update for those of us intentionally left in the dark!
A lot of balls from Bob who went against his own board and more importantly the membership.
Kinnear asks judge to jail rival leader as struggle for control of TTC union continues
The legal fight for control over a union representing more than 10,000 TTC employees was back in court today as the reinstated president of Amalgamated Transit Union Local 113 asked a judge to toss a rival leader in jail for violating a previous order.
Bob Kinnear, who is the longtime leader of ATU Local 113, and his entire executive board were ousted from their roles on Feb. 3 after the union’s American-based parent organization placed the local under a trusteeship and put international Vice-President Manny Sforza in charge. A total of 12 members of the executive board were then reinstated later that day after they reportedly signed “loyalty oaths” to the American union
At the time, Sforza accused Kinnear of “single-handedly and secretly” attempting to end an affiliation with the ATU and deliver his members to Unifor. Kinnear, however, argued that he only wanted to give members a chance to vote on which union they wanted to be affiliated with and accused the parent organization of suppressing democracy. Kinnear then sought a court injunction to regain control of ATU Local 113, which he was granted on Tuesday.
Just hours later, though, the executive board of the local passed a motion of no-confidence in Kinnear’s leadership and two other elected officers who purportedly helped him in pursuing a split with the ATU.
“A Canadian court has upheld a democratic vote of our members to elect their chief representative,” Kinnear said in a statement released after that vote. “Now this executive board thinks it can simply ignore both the vote of the members and a court decision upholding that vote.”
The motion that was put before an Ontario Superior Court justice today asked that Sforza be found in contempt of the Feb. 21 court order and be fined and imprisoned for “such period and on such terms as the court directs.” The motion also asked the judge to make an order, barring Sforza and the Amalgamated Transit Union from “threatening, intimidating, or otherwise communicating directly or indirectly with any officer of Local 113.
The hearing, which was largely procedural, has been adjourned until Monday. Kinnear was not present in court.
http://www.cp24.com/news/kinnear-asks-judge-to-jail-rival-leader-as-struggle-for-control-of-ttc-union-continues-1.3297934
A few things of note, One, your bias against Bob Kinnear is disturbingly evident. Two, you too have left out a few details that would lend a more balanced view to this article. And finally, no one really knows what is an accurate picture of ATU 113 members’ response to this debacle.
In November of 2015, Bob Kinnear decided to turn down a position as President of ATU Canada and run for re-election as President of ATU 113, announcing his decision to our membership by email and phone messaging. This act would later lead to Larry Hanley forcing a second vote for the position of ATU 113 President, a decision that would prove humiliating to Larry Hanley when Bob Kinnear won the second vote. Soon after, Manny Sforza pulled his bid for the same position, probably suspecting he had little change of winning the presidency away from Bob Kinnear. It is widely believed amongst our membership that this incident heightened the tension between Manny Sforza and Bob Kinnear; and it may be argued that much of the present conflict finds its genesis, at least in part, in this pre-existing animus.
In a subsequent run for Canadian Vice President for the ATU International, Manny Sforza beat out Bob Kinnear. Many hold the view that his success was only possible because the International President (IP) may have influenced the vote’s outcome because the IP found in Sforza a more pliable subordinate. I have seen no convincing proof of this claim, but it is not beyond the realm of possibility. What has been very evident to most of ATU 113 members is that Bob Kinnear has been a thorn in Larry Hanley’s (IP) side. Bob Kinnear is an aggressive advocate for his members and has been very vocal about his dissatisfaction that the International has been not been as helpful as it ought to have been with many of the major issues facing our Local. It is then very understandable that Bob Kinnear would find that the financial remittance to the International be better used in Canada for Canadian Locals. It is also quite understandable the Larry Hanley would push back against such a move.
Nevertheless, a push back that included Trusteeship, especially under these present peculiar circumstances, was an overreach; and I think the recognition of this overreach may have influenced Justice Penny’s decision and underpinned much of the present opposition of our members against Manny Sforza and Larry Hanley.
What is very evident at a grass root level is that there have been a lot of misleading information disseminated to the membership. This has made it very difficult for members to make an informed decision.
For my part, I would much prefer to see our Local remain in the ATU. But ATU, ATU Canada, Larry Hanley and Manny Sforza need to recognize that the pre-existing complaint of a continuing lack of help from the International must be addressed. It is what gave life to the present conflict. No one is well served by this teenage behaviour, least of all our membership.
Thanks for your comment, I don’t have a bias against Kinnear. I am simply following the story where it goes. maybe you disagree and that is fine.
Kinnear announced his decision not to run as Local President before the creation of ATU Canada (he announced this in August of 2015). He did win the election to be ATU Canada President in September 2015. But stepped down some months later. He also decided to rerun as President of the Local. He announced this in a mass email and had some robo calls. The election was very close, he won by 51 percent. Soon after the election a complaint was brought to the local in due time. It was voted down. The complaint about the election was then made to the International by the same member (it had four parts – failure to count spoiled ballots, untimely access to travelling ballot boxes, executive board election problems, improper campaigning ). The International received and reviewed this complaint by a members. It dismissed three of the four claims, but found improper election campaigning by Kinnear (used email and phone lists of the local, while the challenger never had access to those lists and campaigned outside the campaign period). The election was rerun and Kinnear won again, but his original challenger had retired.
Perhaps you differ on interpretation, but I highly recommend that you look at penny’s decision, if you haven’t already. Also make sure to look at the OLRB section 89. I agree lots of misinformation and half-truths in this story. I only hope that you and the rest of the members can do your best to figure out what is best for all of you. I am very concerned about the role of Unifor and the CLC’S poor handling of the situation.
The full page add in the Star on the 23rd cost roughly 50,000 dollars. A good question would be to ask who is paying for that?
I am not Bob Kinnear’s lawyer, but I have always held the nuanced position that the emails and phone calls Larry Hanley found objectionable were not in themselves campaigning, that is to say communication to the membership soliciting their favourable vote; but rather an announcement that he, Bob Kinnear, had decided to run for the Presidency after having told the membership that he would not. Now, one may find fault with his having changed his mind; but from my perspective, informing the membership of a change of mind is essentially different from campaigning. His campaigning efforts came after the emails and phone calls. I do not think the nuance was lost on Larry Hanley, What I think is he saw a change to remove Bob Kinnear from office and he took it.
I too am concerned with the cost of this misadventure. But I am also concerned about the cost incurred to our Union – Local, National and International – by this power play. Please be mindful that there was a legal finding that the International, through the agency of the Trustee, overstepped in trying to remove Bob Kinnear from his duly elected position as President.
Please let me restate my position a little more forcefully than I did in my previously posted comment. I am ardently opposed to disassociation from ATU, and I would be a strong and avid opponent of those who would try to do so, including Bob Kinnear. More importantly, I am dead set against any formalized association with Unifor.
Do you suppose that all the senior officers of our Union can find the discipline and maturity to put aside their petty differences and move on to the more urgent issues confounding our Union.
I would like to state that this ATU international has served this local for many (not Manny) decades. It has served Larry Kinnear as well as his son Bob, all this time, without having been called into question for being based in the U.S.. It obviously would have continued to do so, had Bob been elevated to a vice president position. I have to assume he was not vying for that position with the intention of removing his own members from his union. It is my belief that this short paragraph sums up this story from beginning to end. Bob is having a tantrum.
Well said Nilroy