An arbitrator has ruled that BCNU's standing provincial Nominations Committee acted in a fair and reasonable manner when it removed candidates Will Offley, Sharon Sharp and Mary Jean Lyth from the ballot prior to last year's provincial election.
Offley, Sharp and Lyth (the "applicants") appealed to the BC Labour Relations Board last May after the Nominations Committee made the decision to remove these individuals from the ballot before the voting period began.
Arbitrator Tom Hodges issued his reasons and final award on Feb. 25 following several days of arbitration last fall. He found that the removal of the applicants from the ballot "was not arbitrary, discriminatory and/or in bad faith." He also found that the Nominations Committee went beyond a fair and reasonable procedure when it gave the applicants multiple opportunities to respond and correct false or misleading allegations they had made about other candidates and the union.
Hodges noted that the applicants failed to respond to the committee, refused to accept its established authority with respect to the election process and did so to their peril. "It was not the procedure that failed the applicants; the procedure did what it was designed to do. The applicants were the masters of their own demise," he wrote.
Hodges found that the applicants' campaign was marked by multiple guideline infractions and was a departure from the appropriate standard of conduct expected of a union member participating in an election. He also found that the union's election code of conduct is clear, fair and reasonable and does not prevent freedom of speech.
Hodges ruled that the union's application of discipline following these candidates' removal from the ballot was appropriate in this case. He noted that Offley in particular is worthy of disciplinary sanctions and ruled that he not be a member in good standing for a period of eight years. Hodges also found that Offley defamed BCNU following the applicants' removal from the ballot and awarded the union $15,000 in damages against the member.
In the course of the arbitration hearing, Hodges found that BCNU President Gayle Duteil engaged with the Nominations Committee in a way that was aggressive. Citing Duteil's May 9 complaint, where she threatened to sue the committee for defamation should they not remove the applicants from the ballot, he found that Duteil's interactions with the committee "amounted to a flagrant attempt to interfere with and manipulate its processes."
"Ms. Duteil was the incumbent president of the BCNU and should have known better and conducted herself with a standard of care equivalent to her experience and stature within the BCNU," Hodges wrote. "I find that Ms. Duteil's conduct was improper and that there was a causal nexus between her conduct and the applicants' maintenance of their case against the BCNU and the provincial Nominations Committee which in the interests of fairness cannot be ignored."
Hodges also expressed the view that the applicants were driven to incur significant legal fees to prosecute their claim in large measure believing that Duteil's actions would result in new elections.
"A number of documents tendered into evidence that created the appearance of potential interference in the committee's process reasonably caused the applicants to maintain their challenge to their removal from the ballot," he wrote.
Hodges noted that eight of the 13 complaints that incumbents filed with the committee were Duteil's, and six of these demanded the applicants' removal from the ballot.
The arbitrator found that Duteil's attempts were unsuccessful in large measure because of the strength of character of committee chair Michelle Nelson and the other committee members. "For its part the committee sought to conduct itself in a fair and reasonable manner consistent with BCNU policies and the principles of natural justice," Hodges wrote.
Largely as a result of Duteil's conduct, Hodges ordered BCNU to pay the applicants $75,000 for the partial reimbursement of legal fees they incurred while pursuing the case.
"It is my hope that this award will send a message to dissuade those who would attempt to improperly use their power and influence to impact the decisions of a neutral body responsible for governing elections," wrote Hodges. "In the final analysis, this dispute was very avoidable but for the conduct of two key individuals."
The award confirms that no new elections for any of the positions on BCNU's provincial executive committee are required.
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