POST # 2 – CIRB – HACKL ET AL – THE SUMMATION OF THE COMPLAINTANTS (DEPOSED)

The Complainants (Hackel et al) in their final summation argued that the UTU acted in a discriminatory manner when it took the action to remove them from both elected office and membership.

The act of discrimination is against the “Code” when it is determined that such discrimination was either or all, “arbitrary”, “unreasonable” or “unlawful”.

The Complainants submit that the CIRB has jurisdiction to resolve the complaint as filed and provide the relief requested which includes;

exoneration
re-instatement
lost wages
legal costs
other relief as determined appropriate by the CIRB.

The Position of the Complainants;

The Complainants filed their complaint against the UTU under Section 95 of the Code.

Section 95 (f) provides that Unions cannot expel or suspend an employee from membership in the trade union…”by applying to the employee in a discriminatory manner the membership rules of the trade union”.

The Complainants, among other things, argued that the UTU conducted itself in a discriminatory manner by;

Customizing a process to remove the deposed from elected office and membership.
Removing the Complainants in consideration of an allegation of “Dual Unionism”
“Tainting” the process by making false and potentially libelous allegations with respect to financial impropriety.
Unreasonably interpreting the requirements of Article 85 in the face of the Code.

Any or all of which can be relied upon by the CIRB in support of the position of the Complainants.

Item 1 – Customizing a Process;

It is without dispute that creating a “customized” process of intervention and conclusion designed or applied in a discriminatory manner will be found to have breached the “Code” and will properly be before the CIRB for resolution.

The Complainants argued that the President, with the assistance of UTU General Counsel Mr. Clint Miller, created a customized process (this without trial or the need to produce or call evidence – including witnesses) for the sole purpose of achieving a predetermined result, the guilt of the Complainants.

Further, that such process was designed to ensure a predetermined penalty, removal from elected office and membership and to ensure that the penalty, once imposed, could not be mitigated (reduced) during any future internal appeal process.

The Complainants argued that the customized process was not only improper at the outset but was repeatedly modified over a period of time to ensure the required predetermined results, for example;

The initial Board of Directors “resolution” of February 19th provided that the Complainants would get a trial. However, after removal from elected Office and membership, a new resolution was created by the President and passed by the Board of Directors to eliminate a trial and only provide the Complainants with the ability of an appeal.

At the 1st appeal (Cleveland – April 2007) the Complainants were required to first present its case which was then followed by the UTU (raising the continued question of “natural justice”). To point, the Complainants were required to present its appeal without the knowledge of the evidence relied upon by the Board of Directors in making its initial decision.

The UTU utilized monies from the Canadian Legislative Board to compensate its Canadian witnesses relied upon by the UTU (e.g. S. Montani, K. Goring, M. Melymick – all in violation of the CLB mandate). The UTU, however, refused any compensation or expense reimbursement for any of the Complainants or their representatives.

The Executive Board allowed the witnesses of the UTU to answer questions but overruled the Complainants with respect to the same subject matters (e.g. alleged financial impropriety).

The Complainants, as with the Federal Appeals Court (ref: Judicial Review of the Boards’ decision regarding the legality of the strike) questioned as to why the UTU constitution has not been amended to incorporate the new “customized process”.

The Complainants submitted that a year and a half had passed since their removal and during that time (even though a UTU Convention was held) there was no attempt to amend the constitution. The Complainants submit that such inaction gives credibility to the proposition that such “customized process” was designed solely for the Complainants (predetermined results and outcome) and as such was discriminatory, arbitrary and unlawful.

i) Article 74;

The Complainants argued that the constitution (a document ratified by the delegates) provides a process of a trial and appeal (Article 74).

The UTU argued that it could not rely on Article 74 because;

1) The Local Chairpersons were in “league” with the Complainants;
2) The Canadian membership supported a strike (97%)
3) Article 74 did not allow the UTU President to lay charges and

The Complainants submitted that Mr. Secord (a then member of GCA-GO-105), John Armstrong (a then member of GCA-129) as well as others e.g. Scott Montani and Robert Sharpe etc. could have laid charges (Secord, Armstrong and Sharpe were on the Board of Directors) as well as any other members under the jurisdiction of the respective GCAs.

Dual Unionism:

The Complainants have always maintained that they did not engage in “dual unionism” (attempting to remove the members from the UTU). The Complainants freely admitted (more on this later) that they would ensure the Canadian Membership would have options should the UTU abandon them.

The Complainants testified that the UTU was in fact in secret negotiations with the United Steelworkers Union (USWA) to transfer the Canadian UTU membership to the USWA on September 1st, 2006. The Complainants were steadfast (and open) that they would take the necessary steps to protect the Canadian membership within the USWA or any other Union (more on this later).

The UTU argued before the CIRB that the issue of dual unionism was not considered when removing the Complainants nor considered at any Steps of the appeals process established by the UTU.

The Complainants submit that the change in the position before the CIRB is as the result of the reality (not previously known by the UTU International) that it is a legal right of all Canadian members (without dispute), under Section 8 of the Code (freedom of association), to advocate and support a “Union” of their choice (at any time) without reprisals.

Any reprisals would be in a violation of such legislative rights and as such would fall within the jurisdiction of the CIRB for resolution.

The Complainants submit that the UTU needed to advance the position of “dual unionism” (and did) to it membership (especially the American membership) in order to have any appeal of the Complainants denied.

Although the UTU submits that no consideration was given to the allegations of “dual unionism”, the Complainants submit the evidence demonstrates otherwise, such as;

Its Feb. 14/07 package sent to all members
the “SCAB list” at the UTU Convention referring to “dual unionism”
the UTU package sent to each delegate
the admission of UTU General Counsel Clint Miller that such was discussed and taken into consideration by the UTU Board of Directors when removing the Complainants from Office and Membership on Feb. 19/07
Video of the UTU Convention in Florida.


Alleged Financial Impropriety;

The Complainants submitted that the UTU falsely and arguably illegally, to garner support for its decision to remove the Complainants, alleged financially impropriety.

The evidence before the CIRB (more on this later) demonstrated no such impropriety existed.

Although the UTU, at the hearings, refused to rely on any of its previous allegations with respect to its allegations of “financial impropriety”, the Complainants submit that the UTU’s actions were demonstrative of discrimination.

Article 85:

With respect to Article 85 the deposed argue that they conducted themselves consistent with the UTU constitution in consideration of the requirements of Section 50 and 37 of the Code.

Article 85 is a privative clause of the constitution that mandates that the General Chairpersons negotiate and conclude agreements with the Company. In the application of Article 85 the General Chairpersons “may” request the assistance of the President.

The issue of “may” is at the center of the dispute in regards to the application of Article 85. The word “may”, the Complainants submit, is a discretionary word as opposed to mandatory words such as “must” and “shall”.

Further, upon requesting the assistance of the President, the President assumes the role of the General Chairperson with all rights and privileges, including concluding a collective agreement.

The UTU takes the position that the General Chairperson, under Article 85 “must” ask for the assistance of the President and must “hand over” full authority before a strike can be enacted.
Although the word “may’ has a specific and defined meeting the UTU argues that the President interprets the Constitution and he did so in the present case reiterating that the word “may” is mandatory under Article 85 with respect to the assistance of the President.

The Law:

The Complainants argue that the President’s interpretation of Article 85 is “unreasonable” and, in application “unlawful”. They argue that such interpretation violates the requirements of the Canada Labour Code, specifically Sections 50 and 37.

The “Code” in Canada provides for a “bargaining cycle” which includes the legal right to strike in order to achieve a negotiated collective agreement. To point, as the General Chairpersons are entitled under Article 85 to negotiate agreements they are entitled to use the frame work for such negotiations as set down by the Parliament of Canada, which includes striking. In other words, had a strike achieved a collective agreement the General Chairpersons would have fulfilled their duty under the “Code” and Article 85.

The Complainants argue that once CN Rail was advised, by the UTU, that they would not authorize a strike the chance of achieving a settlement was next to impossible. The interference by the UTU while negotiations were ongoing in fact contributed if not created a strike situation.

Section 50;

Section 50 of the Code requires the parties to “make every reasonable effort to enter into a collective agreement;”

The Complainants argued that over 97% of the membership voted for strike action. The members granted their elected negotiating team strike authority to “go on strike” to conclude a collective agreement. The Complainants submit that failure to utilize the “legal” strike authority to conclude a collective agreement would violate the “Code” as they did not “make every reasonable effort to enter into a collective agreement”.

Section 37;

Section 37 requires that the negotiating team represent the members in a manner that is not arbitrary, discriminatory or in bad faith.

The Complainants argued that it would be a violation of Section 37 to turn over full authority to the President in these circumstances as it would be, among other things, bad faith in the representation of the Canadian membership.

The Complainants submit, as in the “Pineau” decision (VIA Rail), that the obligation to comply with Section 37 is not limited to the application of the collective agreement but extends to the negotiations of a collective agreement.

Conclusion:

Please keep in mind that the oral submissions lasted in excess of some 8 hours and the above was my attempt at establishing the essence of the positions as briefly as possible identifying the essence of the submissions.

My next post will commence to walk through the history to the complaint. Thereafter I will go through the essential portions of the lengthy CIRB testimony.

Please keep posted.

Rex Beatty