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APPEAL COMMITTEE OF PROVINCIAL COUNCIL
DECISION AND REASONS IN THE APPEALS OF
Barry Weisleder
vs.
Liz Barkley, et al
(Provincial Council Appeal Committee case 102)
Liz Barkley, et al
vs.
Barry Weisleder
(Provincial Council Appeal Committee case 202) December 16, 2002 Provincial Council Appeal cases 102/202
Appeal of Barry Weisleder
Appeal of Liz Barkley et al. with reference to the penalty imposed by Judicial Council in case #136 as set out below.
I. DECISION
1. The decision on these appeals was issued to the Appellants on December 10, 2002 as follows. It was revised by the additions marked (a) and ( b).
2. DECISION OF PROVINCIAL COUNCIL APPEAL PANEL, AS REVISED. This hearing was convened to hear two appeals arising from Judicial Council Case #136 (Liz Barkley et al, OTBU District 12 and Barry Weisleder, President, OTBU District 12). The appeals were heard together with the consent of the parties. These appeals were:
1. Barry Weisleder, appealing the penalty imposed by the Judicial Council as too severe.
2. Liz Barkley et al, appealing the penalty imposed by the Judicial Council as insufficient.
(a) Penalty imposed by Judicial Council
The Judicial Council articulated the penalty as follows: The panel found that Mr. Weisleder has failed to meet the standard expected of an OSSTF bargaining unit president. Mr. Weisleder’s behaviour has contributed to an atmosphere of disrespect for colleagues and distrust of OSSTF beyond his unit. His behaviour has created rifts within the bargaining unit, diminishing its effectiveness by diverting energy and resources away from its obligations to its members. This is an extraordinary circumstance that requires an extraordinary remedy and a significant period of time for healing and the restoration of normal union procedures. The panel felt that Mr. Weisleder’s domination of the unit is so extensive that he needed to be removed for the necessary changes to be made. Pursuant to Bylaw 8.8.5, Judicial Council has decided that the member be reprimanded, suspended from all OSSTF offices he currently holds for the remainder of their terms, and declared ineligible to hold OSSTF office for a period of 18 months from the date this suspension takes effect. The panel further decided pursuant to Bylaw 8.9.1 that the name of the member, a brief summary of the charges upheld and the penalties be published in OSSTF Update.
Barry Weisleder presented on his own behalf with the assistance of Roger Leblanc. Joan Farrell presented on behalf of Liz Barkley with her assistance.
(b) The Appeal of Barry Weisleder is denied and the Appeal of Liz Barkley et al is granted in part. Therefore, in accordance with Bylaw 9.4.3.2 the Panel decided to vary the penalty as follows.
The decision of the Appeal Committee of Provincial Council is:
1. that Barry Weisleder be reprimanded
2. that from January 1, 2003 to August 31, 2005
a) he is suspended from all OSSTF offices he currently holds, either local or provincial; and
b) he is ineligible to hold any OSSTF office either local or provincial
3. that his name, a summary of the charges upheld by Judicial Council and the Appeal Committee of Provincial Council and the penalties be published in OSSTF Update. Barry Weisleder requested as speedy a decision as possible from the Committee. In accordance with his request, the Committee is releasing this decision. This decision is unanimously arrived at and under Bylaw 9.4.4 is final and binding and without further right of appeal.
II. REASONS
3. PRELIMINARY MATTERS:
Barry Weisleder raised 5 preliminary matters :
a) Request for right to rebuttal both oral and in writing The Panel advised that the procedures for these hearings approved by Provincial Council provided for oral rebuttal.
b) Request for panel to reconsider its decision not to grant leave to appeal on the findings of the Judicial Council on the complaints against the Appellant. This request was based on the contention that the legal opinion obtained by OSSTF for Barry Weisleder on the “60-day rule” raised serious questions about the rulings made during the Judicial Council process , which rulings the appellant claimed worked to his disadvantage. However, in response to a question from the Chairperson, he agreed there was no difference between the foundation ruling on the “60-day rule” found in the Judicial Council transcript of May 27, 2002 at p.26, lines 26-39
"The Judicial Council has considered the arguments, in particular with respect to Bylaw 8.2 which says that a member submitting a form of complaint under 8.1 must make such submission no later that 60 days after the incident giving rise to the complaint. So the emphasis of 8.2 is very definitely in relation to the incident. All incidents in order to be valid charges must be within 60 days of the laying of the charges. The reference of 60 days does not apply to exhibits. Some of the materials submitted by both parties may in fact, be intended as background to testimony that will occur, and um...but if there are materials and for example we did request further information on some of the charges..if those materials referred to incidents that occurred outside of the 60 days, those will be dismissed. Further, that if a document used in testimony..the document is used by either party that refers to incidents that occurred outside the 60 days, that we will disallow at that time. So the emphasis of the document is not on the date of the document, because it could in fact, be legitimate background, but on the incident that the document is intended to uphold."
and the legal opinion. This request consequently becomes a request to review individual decisions as they were made during the Judicial Council process. This Panel has already considered and ruled on whether it will grant Leave to Appeal the merits of the decision. Moreover, it is not the function of the Appeal Panel to second guess the discretion of the Judicial Council in making its rulings, especially when the transcript shows:
(1) little or no evidence of objections made at the time of the rulings, and
(2) both sides used the rulings during the Judicial Council Hearing as an adjudication benchmark
(3) Roger LeBlanc speaking for Barry Weisleder thanked the Chairperson of Judicial Council as follows: "May I finish by thanking the Judicial Council for its patience in dealing with such a lengthy hearing, and particularly you, Mr. Chairperson, for your diligence and your fairness when dealing with difficult issues. Thank you."
Judicial Council transcript of September 20, 2002, page 21, lines 2-4. Moreover, in those examples which Barry Weisleder entered prior to the discussion about the legal opinion, the panel found the rulings to be not inconsistent with the foundation ruling for the most part. Such inconsistencies that did occur impacted both parties. Therefore, this request was denied.
c) Request to reschedule the hearing to a mutually agreeable date after January 16, 2003 due to the length of the transcript.
Barry Weisleder had indicated his inability to appear on the first date that this hearing was scheduled. He offered December 5, 2002 as one of the dates on which he was available. The Panel accepted this date. The time constraints for reading the transcript applied equally to both parties and to the Panel, whose members were able to read the transcript and make notes prior to the hearing date. Barry Weisleder indicated he had not read the transcript in its entirety. However, he did suggest that he could provide more than 30 examples of evidence to support his points. The Panel also took into account the fact that these appeals were about only the penalty assessed by the Judicial Council and not about the Council’s findings of guilt or innocence in terms of the complaints before it.
Therefore, the request for postponement was denied.
d) Request to rule the newsletter and other documents submitted by Liz Barkley et al. inadmissible.
e) Request to rule the additional penalty requested by Liz Barkley et al. of barring Barry Weisleder from attendance at OSSTF meetings unconstitutional. The Panel advised that these two requests could be included in the arguments of the Parties, as both Parties supplied some evidence relating to matters which occurred after the Judicial Council decision. The Panel would deal with these matters as part of its substantive decision and decide what weight to give to them.
4. REASONS FOR THE DECISION
Barry Weisleder provided the Panel with an extensive analysis of the factors to be weighed in a penalty in criminal, workplace and professional association proceedings. Joan Farrell on behalf of Liz Barkley et al. argued the right of OSSTF to discipline its members in its own process, and that such discipline was what this hearing was about.
In his submission, Barry Weisleder, in a change from most of what he submitted in support of his request for Leave to Appeal, acknowledged he had made errors in those areas where the Judicial Council had found him in violation of both the OSSTF and District 12 OTBU Constitution and Bylaws. However, he pointed out changes that were being made both in bargaining unit procedures and in his own behaviour, which, he asserted, were remedying such errors. Joan Farrell expressed doubts about the sincerity of this, citing comments by Barry Weisleder in the Toronto Substitute Teachers’ Newsletter of November 2002
"On the basis of a set of frivolous charges, the OSSTF Judicial Council has now ruled that I be suspended and barred from holding any office in OSSTF for eighteen (18) months." and comments of others in the material submitted by her, the distribution of which he would or should have been aware. Barry Weisleder stated that he was not the author of the materials which had been distributed in his support. Joan Farrell argued that such distribution was not only within OSSTF and that distribution of such material outside of OSSTF brought discredit on the Union. The panel members did weigh this evidence of remorse, or lack thereof, when making their decision.
Barry Weisleder proposed that, in light of the efforts at rehabilitation, which he has outlined, if the Panel saw fit to impose any suspension, it should not exceed one month. Joan Farrell pointed out that before Judicial Council, Liz Barkley et al. had requested a penalty of 10 years suspension based on more than a score of complaints. The Judicial Council had found Barry Weisleder guilty in violation of the provincial and local bylaws in at least 12 of these complaints. On this basis Liz Barkley et al. were requesting an increase in the suspension imposed by Judicial Council to 5 years, reduced from the original request for 10 years. Further, they were requesting that he be banned from attending all OSSTF meetings other than those mandated by the Ontario Labour Relations Board.
The Panel considered the oral and written submissions of the Parties both for the requests for Leave to Appeal and in support of the Appeals and also the transcript of the Judicial Council proceedings. They considered the submissions regarding punishment, deterrence and the opportunity for rehabilitation in criminal sentencing; the progressive discipline concept at the heart of employment discipline; and the Constitution and Bylaws of OSSTF and of the District 12 OTBU which were violated. The panel also considered that Barry Weisleder in his written submission filed November 29, 2002 acknowledged his errors in behaviour and violations of a number of OSSTF Bylaws.
The Judicial Council decision contained in addition to its findings and penalty, a number of recommendations for assistance to the Bargaining Unit. Both the findings and the recommendations are beyond the scope of this Hearing, which has been requested, in both of the Appeals now being heard, to assess only what is an appropriate penalty.
First, the Panel finds that barring Barry Weisleder from OSSTF meetings [vide Preliminary (e), page 6,] would be ultra vires. The power given to the Panel “to give such decisions as should have been made” is legally limited to the penalties spelled out in Bylaw 8. If OSSTF wishes to have such an “exclusion” penalty, it must first amend its bylaws to spell this out.
Secondly, while reserving any judgement on the appropriateness of the concept of the President of a Bargaining Unit as an "employee", the Panel noted, as it examined progressive discipline, that Joan Farrell pointed out that Barry Weisleder had previously been suspended from office as Provincial Councillor for a breach of the bylaws on Executive Session.
Barry Weisleder brought to the attention of the Panel, in mitigation, his long years of service to the union movement, both in OPSEU and OSSTF. He is the first and only President of the District 12 OTBU, having served since 1997. Unfortunately, this can only lead to the conclusion that he was either aware that his actions were clearly in breach of both the OSSTF and the Bargaining Unit Constitutions, or that his ignorance of this was grossly negligent in terms of his duties to the interests of his members. Further, the findings of the Judicial Council and the evidence leading to those findings, show his negligence in such areas as :
not calling meetings as constitutionally required ;
not publishing a schedule of such meetings as constitutionally required;
improper preparation of negotiating briefs ; and
failure to properly appoint standing committees. These findings also show his disdain for
the security rules of the District 12 Office;
members of the Bargaining Unit who opposed his views; and
the rules of order governing the conduct of meetings. This disdain also showed itself in the intimidation of female employees and members of OSSTF which he acknowledged.
The findings also show Barry Weisleder in a mode of personal aggrandisement in such ways as :
manipulating and revising the Secretary’s minutes of meetings;
abusing his power as Chair of meetings;
in effect usurping the role of Treasurer of the Bargaining Unit; and
usurping the role of the Grievance Officer.
Moreover, he deliberately misrepresented to his own members the OSSTF policy for processing grievances.
In essence, this Panel of elected Provincial Councillors experienced in working for and in the leadership of local OSSTF local Bargaining Units finds in the material before them not isolated incidents or errors, but rather a pervasive pattern of behaviour that shows a flagrant inability to respect rules and boundaries, and a repeated unwillingness and inability to self censure, self discipline or self correction. This pattern in no way meets the standards of behaviour OSSTF Bylaws expect of its senior leadership. Further this type of behaviour seriously impedes the rights of District 12 OTBU members to fair representation. Barry Weisleder claimed on several occasions that there was no standard for Bargaining Unit Presidents when, in fact, the standard exists very clearly in provincial and local OSSTF Bylaws. Barry Weisleder’s view is that the standards are neither set out by precedent within our union nor set out in a manual or text.
The Panel noted that for one breach of one Bylaw a suspension for the remainder of the year from serving as Provincial Councillor was imposed and served. However the Panel believes that the instant case represents multiple serious breaches not only of the OSSTF Constitution and Bylaws, but also of the Bargaining Unit Constitution and Bylaws of which Barry Weisleder was one of the authors. There is a continuing pattern of disrespect for the members of the Bargaining Unit, other members of OSSTF and for the standards of performance and mutual respect which OSSTF expects of its members, and especially of their leaders.
The cumulative effect of Judicial Council’s findings (p.8-10) confirms the judgment of the Panel that due to his egregiously inappropriate behaviour, Barry Weisleder should not be permitted to continue in an OSSTF office. To allow him to continue in his position would arguably jeopardize the ability of the District 12 OTBU to fairly represent its members in their day to day interface with their employers, in their bargaining of Collective Agreements, in the processing of their grievances, and in their relationship with other members of OSSTF at both the District and Provincial levels. It would also convey the impression that there is no concomitant consequence for the extensive abuse of an OSSTF position, elected or otherwise.
While not prepared to grant the request of Liz Barkley et al for a five year suspension in full, the Panel, however, does believe that the penalty for continued and wide abuse of a leadership position must be rigorous, significant and emphatic. It must send a clear message that OSSTF will not tolerate such behaviour in its leaders. The Appeal Committee of Provincial Council therefore varies the penalty imposed by the Judicial Council to include :
the immediate removal of Barry Weisleder from all offices currently held for the rest of the current school year (Jan 01 - August 31, 2003)
to declare Barry Weisleder ineligible to hold any OSSTF office for a further period of 2 years (until August 31, 2005) (Two years is the length of a normal term of office for a president in this bargaining unit.) This represents a cumulative period of 32 months. The other sections of the Judicial Council Penalty remain unchanged. (See page 2, Section 2, DECISION)
5. NOTE The term “office” is at times clearly spelled out in the Constitution and Bylaws of OSSTF, e.g. Bylaws 14.2.8, 17, and 23. Should, however, there be a question of ambiguity relating to the use of the term in the implementation of this decision, such question shall be resolved by the General Secretary (with assistance, as needed, from the Parliamentary and Constitution Council). JF:ln opeiu 343 PC\Appeals\reasons102-202