3903 Ad-Hoc Committee Against Administration

FAQ

November 2, 2009, 4:55 pm
Filed under: Uncategorized

Frequestly Asked Questions about Administration

Collectively prepared by the Ad-Hoc Committee Against Administration research committee

What is administration and what are the relevant rules governing it?
Why are we under administration?
When was administration first raised and what has CUPE National said in the past about administration?
What did 3903 do about the issues leading to administration prior to Oct 28?
Why has CUPE National not shared any information with the membership about administration?
Did the former executive vote to approve administration?
Why and how did the former executive vote for administration?
What are the powers of the administrator and what are the limitations on this power?
What are the administrator’s plans?

10. How will this affect our staff?

11. How do we get out of administration?

12. What is the Ad-Hoc Committee Against Administration? (how it was formed, who is in it, what its mandate is, what its structure is)

13. Should I attend the information sessions on Wed Nov 4?

14. Should I attend the SGMM on Wed Nov 4?

1. What is administration and what are the relevant rules governing it?

A chartered union local may be placed under trusteeship by its parent union. In this situation, the local’s autonomy is suspended. Trusteeship is governed, in the first instance, by section 89 of the Ontario Labour Relations Act, ‘Locals Under Trusteeship,’ which allows for a provincial, national or international trade union to assume supervision or control over a subordinate trade union under the constitution or by-laws of the provincial, national or international trade union [S.89 (1)].

The Labour Relations Act also sets out limits on the duration of trusteeship: “such supervision or control shall not continue for more than 12 months from the date of such assumption, but such supervision or control may be continued for a further period of 12 months with the consent of the Board” [S. 89 (2)].

Under the CUPE National Constitution (available at http://cupe.ca/updir/Constitution07.pdf), trusteeship, or administration by CUPE National, is governed by Article 7.8. The article states that “In cases of emergency and having received substantive evidence from members of a chartered organization that it would be in the best interests of the chartered organization of the Canadian Union of Public Employees that immediate action be taken, the National President may place a chartered organization under an administrator who shall forthwith exercise the authority and carry out
the functions set out hereunder” [CUPE National Constitution 7.8(f)].

The section of the Labour Relations Act of 1995 governing trusteeship can be found at http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_95l01_e.htm#BK103.

2. Why are we under administration?

The CUPE National Constitution permits the administration of a local when “there is reason to believe that any chartered organization may be dominated, controlled or substantially influenced, in the conduct of its affairs by any corrupt influence, or that its policies or activities are contrary to the principles or policies of the Canadian Union of Public Employees” [CUPE National Constitution 7.7(a)].

According to the National Representative to CUPE 3903, the two major factors contributing to CUPE National’s decision to put us under administration are: 1) Finances, 2) The ‘culture of harassment and intimidation’ that pervades the local.

In terms of the things leading to these two charges some specific details include:

1) Finances

a) We owe CUPE National (according to the current estimation used by the administrator) $1.2 million. This is probably the single greatest factor contributing to administration, without which it would be far more difficult to justify.

b) During the strike there were a number of problems with our financial controls:

I. Auditors we brought in to help reconcile the strike wrote a letter to the executive that determined there was “a lack of internal control and insufficient documentation… at the Local office before, during and after the strike…” As a result of these concerns, they had to cease the audit.

II. A major problem was that CUPE National has specific software and sign-in sheets that it gives out to every local on strike. In order to safeguard our autonomy, we decided to make our own sign-in sheets and use a spreadsheet of our own to keep track of finances. Given the amount of missing information, missing sheets and sheets that are so chaotic they are difficult to get information from, and given the way we accounted for this information on the spreadsheets (mistakenly writing a food or equipment expense, which CUPE doesn’t reimburse) as strike pay [which they do]), CUPE was upset not only with the lack of record-keeping but that we had (apparently rudely) told them we didn’t want to use what they were providing us with to help.

III. We decided to start paying strike pay to members for coming to GMMs, but never took into account that National would not reimburse this money as it doesn’t consider it part of strike mobilization. This may also have been other cases where work that we decided merited strike pay, that we never thought to check with National about and assumed they would pay for.

c) According to our National Representative, reconciliation between the local and CUPE National must be completed within ten weeks of completion of the strike. According to the regulations, if reconciliation doesn’t happen by the prescribed date, the National Executive Board may make an arbitrary decision about the amount owing [local executive meeting minutes, Sept 10]. Although the strike ended on January 29, 2009, we have yet to reconcile with CUPE National. However, CUPE National has also never settled on a number representing what we owe them. The National Representative was asked what would happen if the reconciliation could not be completed. He replied: “If it can’t happen then the decision is arbitrary and anything outstanding is a debt owed. If there’s a debt owed and you go out on strike again then you won’t get any money from National. So that’s the repercussion. That’s in the strike fund regulations” [local executive meeting minutes, Sept 10]. It is also important to note that we could not close the books on the strike until we stopped incurring legal fees. Because we were legislated back to work and entered binding arbitration, we continued to incur legal fees into the summer of 2009 related to the strike that prevented us from closing our books.

2) The ‘culture of harassment and intimidation’ that pervades the local:
(Note: the apostrophes are not meant to underplay any harassment or intimidation taking place in the local, they are only used because this was the exact wording chosen by the National Representative and the Administrator).

a) It is no secret that many people had a large number of legitimate complaints about: harassment, intimidation, equity issues, sexism, racism, political ‘targetting’ of individual members, misrepresentation, innuendo, toxicity on the lists and other problems with the climate of the local both before, during and after the strike.

b) The only specific things that the National Representative and the Administrator said regarding this are:

I. That more than one upset member had made phone calls in tears to National about the climate of the union.

II. That both the National Representative and the Administrator said that this factor was far more important to them personally than the million dollars owed to National.

3. When was administration first raised and what has CUPE National said in the past about administration?

The concern of CUPE National “coming in and putting us under administration” was raised at the July 21, 2009 Special General Membership Meeting on finances. This was given as the rationale for the new financial controls adopted at that meeting. At the August 13, 2009 executive meeting, the National Representative said “The local is in serious, serious financial trouble. The local is going to have to redo its budget. We’ll have to pay our per capita. All the money that has been transferred out of accounts and into other ones has to be paid back. The local is at risk of being fined. The priority has to be the administration of the local. All donations, etc will have to stop. The local does not have the money. If this isn’t figured out by September, then it will add up each month: $100 000 for National dues plus 2% compound interest. The local needs to make some serious decisions to administer itself before it gets put under administration.” [local executive meeting minutes, Aug 13].

At the September 10, 2009 local executive meeting, the executive asked the National Representative about the possibility of being put under trusteeship. He responded: “Under the constitution if you become consumed with corrupt influences or finances and this isn’t resolved then the possibility of administration becomes real. But given that the local is making a concerted effort to really rectify the situation this isn’t necessarily something that is going to happen. Also, GMMs are not strike duty so the pay that was given to members for that would not be paid by National” [local executive meeting minutes, Sept 10].

4. What did 3903 do about the issues leading to administration prior to Oct 28?

Regarding the two major issues that we are under administration for, 3903 took the following measures prior to Oct. 28th:

1) Finances:

a) The executive looked up CUPE’s policy on Financial Controls, combined them with recommendations from both the auditors and suggestions from our Equity Officer (Sheila), during the time that the executive had asked for her help with finances, and voted to implement them as soon as possible. They then took this protocol to the General Membership Meeting on

b) As the amount of money 3903 expected to receive from National became a debt that it would owe National, the executive each week helped develop (with our Equity Officer) a proposed payment plan. While it is true that this payment plan only thought the debt would amount to $500,000, it was being constantly updated and developed at each weekly executive meeting.

c) The executive passed the following motion at their July 16, 2009 meeting: “BIRT we recommend to the GMM that we hire David Burkes to do a forensic audit of our finances for the 2008-2009 fiscal year and the subsequent period to the present. The cost will be approximately, twenty five thousand dollars ($25,000.00).” The same motion was passed without amendments at the July 21 SGMM.

d) The executive passed the following motion at their June 30, 2009 meeting: “BIRT the financial officer, the chair and nay and all signers for the union be required, as part of their duties, to take the first available financial training session offered by CUPE National.”

e) The executive passed several motions at their July 20, 2009 meeting related to proposed new financial controls, including motions to change the courtesy account number, delegate Sheila (CUPE 3903 staff) to work on finances one day a week until the end of August, and put a moratorium on unnecessary discretionary expenses.

f) A Special General membership Meeting on Finances was held on July 21, 2009 to discuss the finances. This meeting confirmed the executive’s July 20 decision to put a moratorium on unnecessary discretionary expenses and the decision to change the courtesy account number. The membership later approved new financial controls at the September GMM based on the recommendations of the auditor, CUPE National’s policies on financial controls, and suggestions from our staff.

g) The membership was also interested in discussing hiring a full or part time staff member to deal with finances and discussed the issue at the July 21 SGMM. This was also a recommendation of the auditor.

h) The membership was considering proposals for a new levy to replenish the strike fund and strengthen our finances. Different levy proposals were discussed at the July, August, and September membership meetings.

2) The ‘culture of intimidation and harassment’ that pervades the local:

a) The Equity Officer, with the executive, developed an anti-oppression protocol and a member to member grievance protocol over the summer. This protocol was passed to the General Membership Meeting in August.

b) On October 20 the Executive of CUPE 3903 underwent anti-oppression training to resolve some of the longstanding ‘toxic’ patterns in its dynamics. It had also scheduled a follow-up session on November 23rd.

c) The executive had scheduled (though it has now possibly been canceled) two sessions of management training to learn to direct its staff in an equitable way.

d) The Equity Officer had planned and was beginning to implement anti-oppression training for all 3903 committee members.

e) The existence of the position of the Equity Officer itself is a sign of the strong commitment that many 3903 members have to promoting equity in the workplace.

5. Why has CUPE National not shared any information with the membership about administration?

The new administrator, Lynn McDougall, sent one short message to the membership on October 28 after news of the take-over was leaked. In her discussions with individual members and with the former executive on October 29, Lynn McDougall stated that she was aware of the need to better-inform the membership and that she was planning on writing a communique to the membership, similar to the information she was giving to former executive at the October 29 meeting. She stated that the information would be sent out on the evening of October 29. A second communique with some of the basic points of her meeting and times for the information sessions on November 4 was sent out early on November 2.

6. Did the former executive vote to approve administration?

Yes, the former executive of 3903 voted to ask CUPE National to put the local under financial administration on Tuesday, October 27. The vote was 7 for, 1 against, and 1 abstention. Two executive members sent regrets and one had to leave by 12:30pm.

7. Why and how did the former executive vote for administration?

On Friday October 24 select members of the former executive met with National’s financial representatives about reconciling the strike (matching the invoices for the money National had sent to us with the picket sheets). After that meeting the executive members that were present felt that National administration was a mixture of necessary and inevitable because of the sheer amount of money owed.

Whether these members communicated this information to other members of executive or not is unknown, however it is clear that a sizable portion of the executive was unaware that this would be voted on prior to the October 27 meeting. Two members of the executive were not able to attend the executive meeting on October 27 and had no prior warning that a proposal in support of National administration would be debated and voted on. Therefore they were completely disenfranchised from voting. The motion was only introduced an hour and a half into the meeting, with no prior warning, and only a few minutes before a third member of the executive had to leave to teach. Therefore he was also disenfranchised from voting on it. There were clearly members of the executive ‘in the know’ and others not ‘in the know’ at the meeting on Tuesday, since the chair brought the motion typed-out and the National Representative knew to be present at the meeting.

One member of the executive raised the equity issue of the missing executive members and asked to table the motion so that all the members of the executive at least had the opportunity to be informed of the debate taking place. The motion to table was defeated, after the National Representative to 3903 stated that he had to call National and inform them of our decision that afternoon.

During much of the debate around the motion it was understood that either the executive could vote to ask to be put under administration or CUPE National would choose to do it unilaterally. The executive was informed that if it voted in favor of administration, then the administration would be considered a ‘friendly administration,’ but that if they voted against it, National would decide to put us under ‘unfriendly administration’. The difference between the two was explained to them as: ‘friendly administration’ – the executive stay on working as advisors to the administrator to provide help and information (and still receive their honoraria); ‘unfriendly administration’ – the executive would be removed from office and have no role in the future administration. Given these conditions the vote by the executive was almost unanimously in favor.

Under CUPE 3903’s bylaws, the executive committee “shall be the governing body of the local between membership meetings” [Article 9b]. Under our structure, their powers are very limited. Although the bylaws can be interpreted in many ways, it is generally accepted that the organizational structure in Article 4 is intended to suggest a hierarchy and that Article 9(c) also suggests the membership in the GMM can overrule the Executive Committee, making the GMM the highest decision-making body in the union. Given that the regularly-scheduled October GMM was two days away, it was entirely inappropriate and a severe abuse of power for the executive to consider unilaterally inviting National to put the local under administration. The October GMM was cancelled by the chair of the local on October 26, the day before the executive’s vote because of “a delay in obtaining necessary information regarding our finances” [CUPEnews, Oct 26]. Given what the chair was contemplating at the time, it seems clear that she had the necessary information; she just didn’t want to share it. It is extremely rare for a regularly-scheduled GMM to be cancelled for any reason–in fact, none of the members involved in the preparation of this FAQ can ever remember it having been done before.

8. What are the powers of the administrator and what are the limitations on this power?

Essentially, the Administrator assumes the complete set of powers previously granted to the Executive Committee and the various subcommittees of the union. At a meeting on October 29 between the new administrator and the former executive, the administrator implied that her power encompassed the powers of both the executive of the union and the membership, reinforcing her statement to the employer earlier that day that for all intents and purposes “she was CUPE 3903”. Specifically, she claimed that the only power she did not have was to ratify a new collective agreement (as this is governed by Ontario law). However, it is clear that she is also limited by the terms of the CUPE National Constitution.

According to the CUPE constitution “…the administrator shall have full authority to conduct the affairs of the chartered organization, to receive or disburse its funds, and in general to carry out the duties which would otherwise devolve upon officers of the chartered organization, provided that disbursements of funds by the administrator shall be confined to the regular and necessary business of the chartered organization and shall not be made for any other purpose; and provided further that the funds and other assets of the chartered organization shall be and remain the property of the chartered organization. The administrator shall also call meetings of the membership in the normal manner and keep them informed of the details concerning the administration. The administrator shall be responsible to and shall regularly report to the National President and the National Executive Board” [CUPE National Constitution, 7.8(f)].

It is also useful to note that the Administrator’s power does not extend beyond that which would normally fall to the “officers of the chartered organization,” i.e. the executive members. As best we can tell, all powers that previously have required membership involvement (by-law amendments, dues increases, ratification of collective agreements, etc.) must still fall to the general membership, despite her claim to the contrary. Furthermore, although the new administrator stated there were no General Membership Meetings (GMMs) and she would decide whether or not to hold them, the constitution clearly states that GMMs must continue to be called “in the normal manner.”

The CUPE National Constitution states “The regular monthly dues shall be established or altered by the Local Union only at a regular or special membership meeting, provided that at least seven (7) days notice at a previous meeting or at least sixty (60) days written notice has been given” [B.4.3 (c)]. This suggests that the administrator does not have the power to alter the dues. Similarly, she cannot levy assessments “unless voted by a majority of the members present at a regular general meeting, following appropriate notice to all members of the proposed assessment, or at a special general meeting called for that purpose and of which all members have received adequate notice (which shall be not less than seven days) or by a majority voting in a referendum of all members” [B.4.2 (a)]. Finally, with regard to additional local bylaws in addition to the bylaws set out in Appendix B of the CUPE constitution, the constitution states that such bylaws may be enacted “by a majority vote at a regular meeting, or at a special meeting called for that purpose, make such additional by-laws as it may deem advisable, provided that at least seven (7) days notice at a previous meeting or at least sixty (60) days written notice has been given” [B.7.1]. This suggests that the administrator may not enact new bylaws without the approval of the membership in the manner outlined above. Due to the unresolved differences between the administrator’s position on October 29 and the CUPE constitution, it would be useful for the administrator to directly address the scope of her powers as soon as possible.

Finally, the term of administration is limited constitutionally to twelve-months with the possibility both of a reduction and extension in time depending on the will of the National Executive [CUPE National Constitution 7.8(g)]. The “test” used to assess the end of administration is given as the point when “a chartered organization placed under administration is no longer dominated, controlled or substantially influenced in the conduct of its affairs” [CUPE National Constitution 7.8(g)].

9. What are the administrator’s plans?

There is little information as to what the administrator’s plans are. Specific projects that she has mentioned include:

1) There will be a forensic audit

2) 3903’s lawyers will not be used for an grievances during the period of administration; only lawyers provided by CUPE National will be used

3) All committees are disbanded until further notice (though she does plan on reinstituting them in the future, though with new or the originally elected members is unknown).

4) The administrator is planning to implement a code of conduct for CUPE 3903 members.

10. How will this affect our staff?

The staff will go on working but the administrator (Lynn McDougall) will now be their boss instead of the executive. Our staff are unionized and protected by their own collective agreement with CUPE 3903, which remains in force.

11. How do we get out of administration?

There are a variety of strategies being discussed to get out of administration as soon as possible:

The decision must be reviewed by the National Executive within 14 days of October 28 and by the National Executive Board at its following meeting. The local “shall receive notice of the place and date of such meeting not less than 7 days before such date and the officers and other members of the executive board of the chartered organization or any of them shall, if they so request, be given every reasonable opportunity to make representations to the said meeting of the National Executive Board” [CUPE National Constitution, 7.8 (c)]. If either body votes to recind the administration, the administrator shall be recalled and shall cease to function within 48 hours of the decision [7.8 (b); 7.8 (d)]. The National Executive is meeting in mid-November (we are unsure of the date), and the National Executive Board is meeting in Ottawa December 15-18, 2009.

Additionally, according to the Labour Relations Act the administrator must file a report to the Labour Board within 60 days, verified by the affidavit of its principal officers, setting out the terms under which supervision or control is to be exercised [S.89 (1)]. We are as of yet unsure whether this represents another opportunity to have the decision recinded or whether officers or members can make representations to the board.

Paying back National as quickly as possible is obviously a priority. This can be done through the cutting of current expenses, the increase of dues, or a special levy for the explicit purpose of paying them back.

With regards to a chilly climate, there is much work to be done. Members of all tendencies in the union have felt targetted at one point or another and there seems a genuine will to move past grudges to rebuild our union. At the October 30 town-hall, it was suggested that a sort of conflict resolution process be implemented among members who have felt harassed and intimidated, and in turn, those who have been accused of such.

12. What is the Ad-Hoc Committee Against Administration?

After learning the news that we were being put under administration, one member of the executive informed the Stewards Council List-serve and, in turn, other departmental lists. This led to the announcement from CUPE National cited above (question 5). A meeting was immediately called for the next day (October 28), which, while not strictly sticking to Bourinot’s Rules, had a similar structure to a General Membership Meeting. The meeting was attended by representatives of many departments and had representation from all three units. Among the roughly 100 members that attended the meeting, there was near unanimity that administration had to countered by the membership of the local. Many of those that attended the meeting were encouraged by the fact that many people who have had political disagreements with one another in the past were largely in agreement with each other and were ready to work together to rebuild the local.

The following motions were passed at the meeting:

BIRT: this room constitute itself as an ad hoc organizing committee against administration by CUPE national
BIFRT: that we elect a temporary coordinating committee of 5-10 members to carry out administrative and communications work for the committee until our next meetings
BIFRT: this group call a Special General Membership Meeting for the CUPE 3903 membership to discuss the issue of administration
BIFRT: that our committee organize a protest of CUPE national with the details organized by our temporary coordinating committee
BIFRT: that we organize departmental level meetings to discuss administration issues ASAP. The temporary coordinating committee will help to organize meetings in departments where we are not currently active.

A temporary coordinating committee of seven members were elected to ensure completion of tasks. An eighth member was added at the October 30 town-hall meeting and organizing session. The coordinating committee’s mandate is for a period of one week, as the mandate, structure, and strategies of the Ad-Hoc Committee are to be discussed a the SGMM. As well, rank and file members have volunteered to take on tasks having to do with communications, research and other activities. The idea of a Special General Membership Meeting, which can be called by 25 members of 3903 in good standing, was to formulate strategy around the membership’s reaction to administration.

The AHCAA’s mandate is very broad, and the committee is completely open to full participation by all members. It has a listserve, which can be accessed by contacting Yuri Yarin (yyarin@gmail.com). The AHCAA is against administration but not against the administrator, and as such we are prepared to work with her and invite her to the meeting on Wednesday. The AHCAA believes in the principles that have always guided CUPE 3903, including a commitment to autonomy, social justice, and democratic decision-making by the entire membership. Recognizing the seriousness of the twin concerns of our financial situation and our chilly climate, we call for an immediate end to administration and a renewed commitment from the membership to address these issues fully and responsibly.

13. Should I attend the information sessions on Wed Nov 4?

It is worthwhile for members to attend the first session from 2:30-4:30pm if they can, and to encourage the administrator to be forthcoming with all relevant information about administration. Unfortunately, the second session conflicts with the SGMM. Hopefully this can be resolved by the administrator’s participation on equal footing in the SGMM.

14. Should I attend the SGMM on Wed Nov 4?

It is important that as many members as possible attend this meeting, as we will be formulating official strategy, according to our bylaws, in regards to how we deal with the current situation. While the SGMM has been called by the AHCAA, it is obviously open to all perspectives, including those members who may be supportive of CUPE National administration, and those of whom are not sure where they stand. The agenda has been formulated to allow for both sides of the issue to be treated equally and the meeting will be co-chaired by respected members who have a great deal of experience in chairing 3903 meetings.

Any decisions made so far at the AHCAA can be reversed or reconsidered at the SGMM. As well, the National Administrator will hopefully be on hand to answer questions and get to know the membership.

3903 Ad-Hoc Committee Against Administration

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