FEDERAL APPEAL COURT CANADA – A REVIEW

NOTE: Please be advised that the following is my personal comments and opinions on my observation as to what transpired at the hearing.

INTRODUCTION:

The hearing into CN Rail’s Application for review of the Canada Industrial Relations Board (CIRB) decision of February 19th, 2007 (legality of the strike at CN) commenced at 09:30 hours.

CN Rail was represented by two Lawyers and the UTU International was represented by two Lawyers. Both of these parties were arguing, on behalf of their clients, that CN Rail’s Application should be allowed.

Mike Church represented the Respondents.

THE HEARING:

Mike Church, as a preliminary matter, first spoke indicating to the three Justices that CN Rail’s Application should be dismissed as the issue was now “moot”, this given the back to work legislation.

Mike gave a brief overview of the legislation and advised that the legislation also included any other bargaining agent that may replace the UTU (referring to the UTU/TCRC representational vote).

NOTE: If the preliminary issue was allowed CN Rail’s Application would be dismissed and the decision of the CIRB would remain.

CN RAIL:

CN agreed that the issue was moot but that the Court, to prevent reoccurrence, needed to answer the question “who could issue a strike notice?” CN argued that to wait for a “live” case could result in a wrong decision by the CIRB and therefore creating liabilities.

One Judge stated that each situation has its own set of circumstances. The Judge stated, for example, that it could be the General Chairpersons this time and maybe somebody else at another time.

CN argued that only the Trade Union could issue the strike notice (as in the Code) and a ruling by the Court in this case would help future Labour Relations. CN, on being questioned by the Judge, acknowledged that there was no problem in the past on who issued the strike notice.

The Chief Judge questioned as to why not clearly address who could issue a strike notice in the UTU Constitution? CN stated that it was not part of that process.

The Judge suggested that the statutory requirement in the present case (according to the CIRB) had been met and that any dispute was an internal one within the UTU.

THE UTU INTERNATIONAL (UTU):

The UTU also agreed that the matter was moot but argued that only the Bargaining Agent could authorize a strike and that CN was aware that the UTU did not issue a strike notice nor did the General Chairpersons have authority to issue a strike notice.

One Judge reminded the UTU that the Code did not say Bargaining Agent but rather “Trade Union”. The UTU tried to argue that it was one in the same and referenced only part of the Code in support of that position. The Judge quickly reminded the UTU that the Code said more and thereafter proceeded to quote to the UTU the relevant portions of the provision (much to the dismay of the UTU).

The UTU could not provide an adequate response.

The UTU thereafter argued that there was no dispute in the UTU Constitution as to who had the authority to issue a strike notice and that was the UTU President.

One Judge said “well apparently there is a dispute” and went on to reference the word “may” as contained in Article 85 of the UTU Constitution.

The UTU International, again, was unable to adequately respond.

The Chief Judge stated, “You have had close to 2 years to change the UTU Constitution to make it perfectly clear that only the President could issue a strike notice, if that is what the membership wanted. Why wasn’t this done?”

The UTU responded by saying; “My client is not of the view it needed to be done”.

The Judge then asked “If that was so and President Approval was required how would CN know when the General Chairpersons filed the notice that they did or didn’t have the President’s approval?” The UTU responded “they could ask us”.

The UTU also commented on the decision of the CIRB to order a representational vote between the UTU and the TCRC (as referenced by Mike Church). The UTU said that it was not convinced that the CIRB decision to order a vote was correct and that a vote would necessarily take place.

The UTU stated that the CIRB was required to be certain that enough “cards” were signed by the “correct” employees in order to direct a proper representational vote. The UTU stated that it is reviewing the signed “cards” and may take issue with the correctness of the CIRB’s decision to order a representational vote.

The Justices advised the parties that they had enough information to address the preliminary issue raised by Mike Church and adjourned at 10:20 to deliberate.

COURT DECISION:

In less than 20 minutes the Justices returned and ruled in favour of Mike Church and the Respondent’s and dismissed CN Rail’s Application.

The CIRB decision stands undisturbed. The strike was legal.

POTENTIAL FURTHER AFPEAL:

The next step, if CN (with the support of the UTU International) decides to appeal the decision of the Court, is to go to the Supreme Court of Canada.

It should be noted that it is not an automatic right to appeal to the Supreme Court of Canada. CN must get “leave” to appeal. In other words it must get permission to ask if it can apply to appeal and even if it did get permission to apply (which is extremely doubtful) it is highly unlikely the Supreme Court of Canada would hear the case.

However, CN Rail has the resources to try and appeal and the UTU International has your dues (at present) to assist CN so we’ll just have to wait and see.


MY COMMENTS;


It is important to note that the UTU International has lost every single case that was required to be decided by an independent Tribunal or Court with respect to the matters relating to the issuing of a strike notice by the General Chairpersons on behalf of the Canadian membership.

The actions of the UTU clearly demonstrated its total disregarded for the reality that it exists for the membership not the other way around and certainly not for CN Rail.

The decision of the General Chairpersons to issue a strike notice, in order to get a collective agreement, was legal under the Code as was authorized by 97% of the Canadian membership.

Given the presentations at the hearing on behalf of the UTU it is clearly evident that the UTU is using every tactic it can to delay any representational vote in order to collect as much of the Canadian dues as possible without providing representation as required by Section 37 of the Code.

The UTU International is continuing its “scorched earth policy” and is willing to use Canadian dues to pay incredible (and wasteful) legal costs to perpetuate the delay. It is my belief that they think the collecting of the dues from the Canadians is greater than their legal costs. I predict they will continue unless the Section 37 Complaint to the CIRB by the General Chairpersons corrects the situation or the vote ordered by the CIRB takes place.

At the same time the UTU International is proceeding to cut representational costs in Canada such as removing funding for the Canadian Railway Arbitration (CROA) – more on this in a later post.

I must say, however, when I review my notes, that the Court proceedings was somewhat unfair to CN and the UTU International given that they only sent a combined total of 4 Lawyers to take on Mike Church (lessons learned). Maybe John Armstrong, Robert Sharpe, Paul Thompson and Clint Miller should have considered using Mike Church during the Final Offer Selection Process.

Oh, I forgot, they were requested to do so but rejected that idea.


Rex Beatty