POST # 3 – HACKEL ET AL – HISTORY TO THE COMPLAINT

A: Preamble;

The complaint filed by the former General Chairpersons and Vice-General Chairpersons is now a matter of record. To better understand the hearings (and testimony) in front of the CIRB it is important to review the history leading up to the complaint.

The following is lengthy however I believe that is was unavoidable as the history expands over period of a number of years (and I add certain additional comments to put matters in context). Each of the points made herein are important and they are supported by material facts (documents, testimony etc.).

In other words the facts are indisputable.

I have also provided a short “aftermath’ of points to consider.

Although I intend to submit posts on the representation vote over the next few weeks please be advised that my next post, on the present subject, will deal with the actual hearing before the CIRB, specifically the testimony of the various witnesses and will be identified as such, and will be identified as such.

B: HISTORY;

In 2004 the UTU commenced a raid of the TCRC on the CPR. The TCRC defeated the UTU. The reductions in dues to the UTU (in Canada) were reduced substantially (close to 50%). The financial pressure on the UTU in Canada resulted in a realization that the “UTU structure” in Canada had to change.

For example, no longer could the UTU in Canada afford to keep 3 Senior Officers positions (at the time held by J. Armstrong, R. Sharpe and Tim Secord). Although the President asked (and received) proposals on how to re-structure the Senior Officers in Canada could not come to an agreement among themselves as to the reductions in their positions.

UTU President Thompson held a meeting with the 3 Senior Officers (and others) demanding that they address the situation. Given that all 3 were elected they resisted any reduction. A “Blue Ribbon Task Force” was formed to address these and other problems (former Canadian VP Larry Olson was on the committee).

It was eventually agreed that the 3 positions would be reduced to 1 position at the UTU convention in August of 2007.

It was assumed by Tim Secord that, by that time, J. Armstrong and R. Sharpe would retire and that he would be left to fill the position, unopposed.

In May of 2006 Tim Secord announced at a Canadian Legislative Board (CLB) meeting of his intentions to seek the 1 senior position at the UTU convention with Don Anderson as his alternate. Secord received the support of the majority of the CLB members (K. Goring, M. Meylmick, J. Flynn).

The CLB additionally passed a motion to raise the dues of the Canadian membership by $3.00 per member (this is important as a 5.00$ increase had very recently been rejected by the UTU members both in the U.S. and Canada).

While on the witness stand at the CIRB (more on this later) Tim Secord (under oath) testified in cross that the CLB had the authority to raise the Canadian dues without approval of the Canadian membership. Tim testified the dues were increased to assist in “buying out” J. Armstrong or R. Sharpe to ensure, if required, their retirement. Tim testified that it was not necessary for the CLB to provide these details to the Canadian membership.

In May of 2006, after the announcement by Tim Secord, Rex Beatty announced his intentions to stand for Office of VP/LD and Rollie Hackel as alternate.

After the announcement of Rex Beatty and Rollie Hackel, Tim Secord and Don Anderson raised the issue of alleged “financial improprieties” by Rex Beatty. What Tim didn’t realize was that all monies were accounted for and the members of the GCA were kept fully apprised (with financial records) of the situation.

Further, that the GCA members directed certain legal actions be taken to protect the monies of the GCA from the UTU International. Such actions were taken given the previously improperly removal of some $69,000.00 from the GCA account by the UTU International.

(Jumping ahead briefly) - In August of 2006 the UTU International President responded by letter addressing the allegations raised by Tim Secord and Don Anderson. The President clearly and unequivocally stated that there were no financial improprieties (the members of the GCA were advised of such as were many others).

Shortly thereafter the UTU International refunded the GCA the previously (and improperly) removed $69,000.00

Tim Secord (in June) entered into a “strategic alliance” with the USWA, with the direct approval of President Paul Thompson.

The UTU President at the same time was secretly in discussions with the Sheet Metal Workers Union in the U.S. to deliver the U.S. members to the Sheet Metal Workers.

It should be noted that President Paul Thompson, after leaving as President of the UTU, obtained a paid position with the Sheet Metal Workers Union (and is presently holding that position).

Please note that the issue of the Sheet Metal Workers “merger agreement” is presently before the U.S. Courts with a preliminary injunction recently put in place preventing the merger. The Court, in part, raised concern that Paul Thompson had misled the UTU members and misapplied the UTU constitution while he was President of the UTU.

In any event, the strategic alliance of Mr. Tim Secord was recognized and stated as “the first step in merging the two organizations” (UTU Canada and the USWA).

In July of 2006 Gilles Halle, Canadian Director of the TCRC (former BLE) expressed his concern of the direction Tim Secord was taking the Canadian membership and its impact on the TCRC (a future raid by the USWA).

Gilles Halle commenced writing letters raising the possibility of a pre-emptive raid by the TCRC against the UTU. Paul Vickers and Dan Suwchuck (then Gen. Chs. for the TCRC) opposed the actions suggested by Mr. Halle and publicly advised that if Gilles initiated a raid on the UTU he would not receive their support.

In July of 2006 the General Chairperson Association of Canada met (consisting of all the UTU General Chairperson in Canada). The Association passed a motion to support Rex Beatty and Rollie Hackel for Canadian VP/LD and alternate VP/LD respectively.

During the Association meeting (in light of the concerns with the strategic alliance) a number of calls were placed to UTU VP R. Sharpe requesting that he contact the UTU President to get the required assurances that no merger would be entered into without the approval of the UTU Canadian membership.

The Association advised R. Sharpe that if the President didn’t respond prior to the conclusion of the Gen. Chs. Association meeting then other actions would be initiated by the Association to address the matter.

President Thompson did not respond.

Motions were thereafter passed which expressed concern of the strategic alliance. The Association passed a motion requesting that the UTU President acknowledge that the Canadian membership would get a vote on any merger. The President declined to provide such assurances in the face of the motion.

The Association agreed to investigate other merger possibilities (including the TCRC) in the event the UTU decided to abandon the Canadian membership. Rex Beatty was given the task to look at other options and the required protections for the Canadian membership. All which would require the ratification of the Canadian membership.

A draft generic document was produced, with the assistance of Legal Counsel, which provided the protections required for the Canadian membership in any merger and get, as a result, the support of the General Chairpersons.

Discussion were held between Rex Beatty and Paul Vickers of the TCRC (no other TCRC representative was involved) of what the General Chairpersons required (for their support) should the UTU abandon the Canadians and a representation vote was ordered with respect to another Union.

In August of 2006 at Ashville N.C. the UTU President produced a document which transferred the Canadian membership to the USWA. The document provided a full time position for Tim Secord, R. Sharpe and the Ottawa staff until the end of 2009, but, in the eyes of the General Chairpersons, provided no protection for the Canadian membership.

The proposed merger agreement was to be sent immediately to the UTU Board of Directors for approval and thereafter take effect September 1st, 2006.

It is important to note that September1st was the open period of the contract (commencement of negotiations with CN). Tim Secord had advised the UTU President that the merger agreement needed to be approved immediately as the TCRC would commence its raid once the open period arrived.

The UTU President however was advised by Rollie Hackel that the CIRB would order a representation vote and the signing the document would not result in an automatic merger with the USWA. President Thompson did not sign the merger agreement in Ashville but received the approval of the Board of Directors to sign if the President subsequently deemed it necessary.

The President realized that to transfer the Canadians to the USWA he would need the support of all Senior UTU Officers in Canada. A meeting was tentatively arranged to be held in Toronto but was later changed to Montreal for September 21st (as it is now known there was no raid by the TCRC on Sept. 1st as Tim predicted).

In advance of the meeting Rex Beatty contacted Paul Vickers and advised that it was more likely then not the UTU President was going to sign the Canadians over to the USWA during the Montreal meeting and thereafter the USWA would deal with the issue of representation with respect to the CIRB.

Rex Beatty advised Paul Vickers that if the TCRC was going to make an offer to provide alternatives to the USWA for the Canadian membership (given the plans of the UTU to disassociate with its Canadian membership) that time was “of the essence” to have an alternative proposal available for the Montreal meeting.

No such proposals could be tentatively agreed upon with the TCRC.

The meeting in Montreal began with a presentation by the USWA as to why the Canadian Officers should support an immediate merger. The USWA wanted the merger agreement signed that day so as to commence campaigning the following Monday (2 days later).

The original merger documents from Ashville N.C. were handed out by the President for ratification purposes by those present in Montreal (the USWA had left the room and were waiting for the outcome of the vote).

Tim Secord, Don Anderson, M. Meylmick, K. Goring, J. Flynn supported a motion to sign the transfer agreement the Majority voted against the motion.

It was the commitment of the Majority to remain with the UTU and to take the necessary action to restructure and address the issues of cost (this given the previous loss to CPR and the alleged overspending in Canada).

The Majority, on a move forward basis, committed to solving the problems associated with the UTU structure in Canada. It was agreed that, in doing so, there would be no further exploring or discussing of mergers or of the UTU abandoning the Canadian membership. The UTU President, for his part, agreed that the UTU Canadian membership would not be abandoned and would remain with the UTU (there was no mention of the pending deal with the Sheet Metal Workers)..

The President agreed to provide complete and detailed financial information to R. Sharpe to be distributed among the group (no such detailed information was ever forthcoming). A request was made of Rex Beatty to “update” his restructuring plan for UTU Canada and resubmit it to the President (which he did).

The President asked if there were any other discussions with other Unions and was advised by Rex Beatty that there was. The President directed that now that there was a commitment to move forward with the UTU and address the financial problems in Canada that the issue of a merger (with any Union) was concluded.

Everybody agreed.

It should be noted that Tim Secord testified recently at the CIRB that everybody spoke in the negative with respect to talking with other Unions (to point, he testified that Rex Beatty did not make the response that he advised the President of other discussions).

Other witnesses (e.g. R. Boechler and Rollie Hackel) testified that in fact Rex Beatty had advised the President of other discussions. Interestingly enough so did R. Sharpe (a listed witness for the UTU at the CIRB hearings) when he testified under oath in Cleveland (ref: appeal transcripts).

The President advised everyone that should there be any raid by the TCRC he would and had the authority to sign UTU Canada over to the USWA immediately and let the USWA pick up the fight with the TCRC.

Tim Secord (immediately after the stated position of the President) began distributing gloves, hats, t-shirts etc. with both the UTU and USWA logos.

The General Chairperson wrote the President (as did others) requesting that he direct Tim Secord to stop such action (this in light of the commitment in Montreal). It was the view of the General Chairpersons (and others) that Tim Secord was attempting to provoke the TCRC into raiding the UTU in Canada thereby triggering the immediate transfer to the USWA, as committed by the President.

No raid was initiated by the TCRC. There were no further discussions with any other Unions in Canada.

The UTU commenced Bargaining with CN Rail on September 24th in Montreal. The demands of the membership were clear and consistent throughout the country. Many of the demands were viewed as “house keeping” items. In other words, a need to “reaffirm” the intent of existing language and applicability given the misapplication by CN Rail.

Other demands were designed to counter what was perceived as an aggressive and anti-union “American Corporate Ideology”. An “in your face” type of management style as opposed to a more cooperative working relationship.

It soon became evident that CN was not prepared to address the issues of the Canadian membership. Additionally, given that the UTU was “isolated” in negotiations and the posture of CN, it was the consensus of the UTU Neg. Team that an agreement could not be concluded with CN without a threat of a strike or strike action.

With the realization, over time, that it was more likely then not that a threat of a strike or strike would be required the UTU negotiating team developed a strategy that, failing an agreement, a strike would ensue (if needed) during the winter months. It was decided that to wait for “warmer weather” could result in a lengthy strike or even lock-out.

It was believed that the threat of a strike or strike would bring home to CN Rail the realization that the membership and UTU negotiating team were steadfast in their positions to have a fair and equitable contract.

Mediators from FMCS where appointed (even though CN argued against such). Further, the CIRB, around the same time, ruled against CN’s Section 18 application to “break-up” the bargaining unit into three smaller units (even though Tim Secord, John Armstrong and Paul Thompson did not want to defend against the Section 18).

To point, the time frame for reaching a legal strike/lockout was now in place. Time was running out – both parties were facing a strike/lockout, the “edge of the cliff”.

The negotiating team sought a strike mandate from the membership. Not only was the strike mandate high (97%) but the membership turnout was high (98%). In fact, some terminals had a 100% turnout and provided a 100% strike mandate.

With the “strong message” in hand the UTU negotiating team was convinced that CN would now address the issues that were on the table.

The UTU negotiating team requested permission of the UTU President, under Article 92, for strike authority (for purposes of strike pay only). The request to the President was consistent with the previous interpretations of the President.

The UTU President refused. Rather the UTU President advised that under Article 85 the General Chairperson “must” ask the President for assistance and release all their authorities to the President to conclude a collective agreement.

The General Chairs. disagreed and fully explained the situation to the members of the GCA (and provided updates to the Canadian membership by a dedicated “negotiations website”).

CN thereafter began to question the UTU negotiating team with respect to what they termed “internal problems within the UTU as to who could authorize a strike”.

On Thursday, days before a strike was to commence at CN Rail, the CEO, H. Harrison, left the negotiating table to travel to Florida.

It was at this time the UTU negotiating team became aware that the UTU International had been secretly in contact with CN (without the knowledge of the UTU negotiating team) advising that there would be no strike at CN. The President simply would not allow a strike at CN Rail, despite the mandate received by the Canadian membership.

Although the negotiating team repeatedly advised CN that it should not concern itself with internal union matters it became readily apparent that CN (by its conduct) dismissed any notion that a strike would commence. To point, CN was (it incorrectly assumed) no longer “facing the edge of the cliff” nor was the “clock ticking down” to a strike.

A tactical error by CN which actually contributed to the strike as opposed to reaching a settlement without strike action. In other words, had the UTU International not interfered it is now widely believed that a strike would have been avoided and a settlement concluded.

Many times the negotiating team attempted to contact the President by phone and fax but to no avail. R. Sharpe confirmed that Paul Thompson would not authorize a strike and that CN Rail was aware of the President’s position. The negotiating team was advised that President Thompson was unavailable as he was in Florida.

Some 8 hours before the strike the negotiating team again met with CN Rail. Again CN Rail was advised that a strike would commence at 0001hours on February 10th. Again CN questioned the right of the Canadians to strike CN Rail and openly spoke of the UTU International’s opposition to a strike.

4 hours before the strike deadline the GCAs were convened by conference call and a full update was provided, including the actions of CN and the UTU International. The GCA directed the negotiating team to continue with strike action. Mr. S. Montani, a Local Chair. in GCA GO-105, voted in favour of a strike only to later write a private letter to the UTU President apologizing for his actions.

Mr. Montani advised the President (in writing) that in his opinion the “strike” was being initiated to discredit the UTU President in support of the TCRC. Of course such was not the case as the evidence now demonstrates. It should also be noted that Scott Montani was directed to release his letter when he testified against the deposed during the appeal process in Cleveland.

Within hours of the strike CN served “papers” on the negotiating team (with a Sheriff present) advising of the consequences if the strike proceeds. It should be noted that CN relied on the representations of the UTU President with respect to its notification.

The negotiating team, with the support of the GCAs, under extreme and stressful conditions, remained steadfast.

The strike commenced at 0001 on February 10th, 2007.

CN immediately filed an emergency application to the CIRB requesting that the strike be declared illegal.

The CIRB convened an emergency hearing on February 12th. The UTU International retained the services of Mr. Brian Shell (a former Counsel for the USWA) to represent the UTU International’s position (in support of CN Rail – against the soon to be deposed and the UTU Canadian membership).

The negotiating team hired M. Church and D. Ellickson of the law firm of Caley Wray.

At the initial hearing Brain Shell requested a postponement so he could become better acquainted with the file. Interestingly, CN Rail agreed to the postponement as requested by Mr. Shell, interesting as the UTU International was supporting CN Rail’s application. Interesting when considering the nature of CN’s emergency application and the information being relied upon.

The CIRB granted the postponement and set a date of February 19th to hear CN’s emergency application, receive pleadings and hear oral argument.

On February 19th, with many Canadian UTU members (all in support of the elected Canadian negotiating team) as well as news reporters present, the case commenced.

CN was represented by Mr. John Coleman and was assisted by CN Officers. The UTU Canadian negotiating team was again represented by M. Church and D. Ellickson.

The UTU International was represented by Brian Shell, standing alone.

After a long day of representations and argument (which I must say M. Church and D. Ellickson were brilliant) the CIRB adjourned to deliberate on the evidence. The CIRB advised the parties that it intended to resume in 2 hours at which time it would issue an oral decision followed later by written reasons.

During the break the negotiating team was advised by the UTU International that they had been removed from Office and membership in the UTU. They were also advised that Tim Secord was presently in Sault Ste. Marie securing the Office of GCA -GO-105 and removing the staff. Similar actions were taken at the other GCA Offices.

It is interesting that Tim Secord had traveled by car (7 hours) to SSM from Ottawa to “seize” the Office of GCA GO-105. Point, it was obvious that the decision was made by the President to remove from Office and membership the negotiating team even prior to the commencement of the hearing before the CIRB.

Shortly after notification of the removal from Office and membership (and during the CIRB break) the Minister of Labour and the Director of FMCS contacted Rex Beatty requesting the negotiating team stop the strike before back to work legislation was enacted.

Rex Beatty advised the Minister that he and the rest of the negotiating team had just been removed from Office and membership. The Minister and the Director of FMCS expressed shock and dismay. The Director requested a meeting with the now former negotiating team in order to address the situation with respect to the back to work legislation and what negative affects it could have on the membership and to assist in stabilizing the situation.

The CIRB resumed the hearing and found unanimously in favor of M. Church and D. Ellickson on behalf of their clients. The strike was declared legal.

The next day the former negotiating team met with the Director of FMCS and committed to assisting in having the membership to return to work (and preserve their right to strike) and to attempt another chance at negotiations (which the Director agreed to participate in).

The former negotiating team left Montreal and immediately proceeded to advise the membership to return to work.

Interestingly, upon the request to return to work, the UTU President immediately reversed his position and ordered the strike to continue. It became readily apparent that the UTU President wanted “back to work” legislation to force a binding contract on the Canadian membership to “bind” them to the UTU for the life of the contract.

Even though the UTU membership by over 90% returned to work, both CN and the UTU perpetuated a myth that a strike was “still on going” and that CN could not man its trains and the Canadian economy remained in trouble, for example Scott Montani, of Oakville, directed as many members as he could to remain on strike.

The UTU President advised CN Rail that they would “bring down the picket lines” and attempt to negotiate collective agreement. Paul Thompson advised that should the contract be rejected by the Canadian membership the strike would automatically be reactivated.

A tentative agreement was reached but subsequently rejected by more that 80% of the membership in April of 2007.

The UTU President immediately advised CN that the UTU members in Canada were on strike. Legislation was immediately enacted with a process for final offer selection.

During the FOS the UTU did not seek assistance, notes, documents or any other information from the former negotiating team or the various locals to assist in the process. The UTU refused to utilize the assistance of the law firm of Caley/Wray, the UTU’s Lawyers in Canada for some 25 years. All of which were offered for the betterment of the Canadian membership but refused by the UTU International.

Rather, John Armstrong and R. Sharpe were appointed to the process with Mr. Clint Miller a U.S. based Lawyer of the UTU International (an acquaintance of CN’s VP Labour Relations, Kim Madigan).

The final offer selection was ruled in favour of CN Rail. It is evident by the letters sent by John Armstrong and R. Sharpe that they had little involvement in the final process. Rather Mr. Clint Miller acted on behalf of the Canadian Membership.

In the meantime the Canadian Membership, in demonstrating its disgust and disappointment in the UTU, began initiating card signing to join the TCRC. In effect, the UTU given its actions were able to fulfill their own prophecy.

The CIRB accepted the card signing and ordered a representation vote. The UTU International continually delayed the process and attempted to deny the Canadian UTU membership the right to determine their choice of Bargaining Agent.

The CIRB, after a lengthy delay, ordered a vote. The voting will be tabulated on August the 18th.

CN Rail applied for a Judicial Review of the CIRB’s decision with respect to its Feb. 19 decision (legality of the strike). Brian Shell, on behalf of the UTU International, supported the application of CN Rail.

Mike Church (from Caley/Wray) represented the deposed and Canadian membership. The Court, in less then 30 minutes dismissed the application of CN Rail.

The strike was Legal.


Aftermath – Points to Ponder:

- The ability to request a representation vote is more problematic during a strike. It is not an automatic right but at the discretion of the CIRB. Point, why would the negotiating team commence a strike if it intended, at that time, to support a representation vote application by the TCRC.

- The UTU negotiating team was prepared to suspend the strike (while at the CIRB in Feb. 2007) and continue negotiations to conclude agreements in the name of the UTU. The UTU International was made aware of this by a reporting letter of the events before the CIRB. Point, why would the negotiating team consider such if they were intent on supporting, at the time, a representation vote application by the TCRC.

- Although the negotiating team was removed on February 19th, 2007, the UTU President circulated improper and arguably illegal information on February 14th to the membership attempting to discredit the former negotiating team.

- The President, among other things, alleged “financial impropriety” even though he found no wrongdoing (by written letter) in August of 2006.

- The UTU International and Tim Secord (and others) created a myth that the negotiating team was supporting a raid by the TCRC. A myth that was “put to rest” in September of 2006 (Montreal meeting).

- The “now deposed” who reiterated its position to stay with the UTU during the Montreal meeting was a position, as we now know, counterproductive to the secret plans of the President vis-à-vis the Sheet Metal Workers.

- The President, with the assistance of Clint Miller, customized a process that would support the removal of the deposed without trial and the prevent the exposure of the plans of Tim Secord and Paul Thompson.

- The appeal to the convention (as is evident by all the correspondence) centered around the “dual unionism” myth – a strong motivating factor in having the UTU U.S. delegates side with the UTU President in rejecting the appeal of the deposed.

- The President allowed only 30 minutes for the appeal (this to prevent the delegates from learning the real motivations behind the removal of the deposed).

- Tim Secord, prior to the convention, with the support of K. Goring, M. Meylmick, J. Flynn submitted a motion to remove Canadian Autonomy.

- Tim Secord produced a “scab list” to eliminate many elected Canadian delegates.

- The President elect, M. Futhey quickly learned that the merger with the Sheet Metal Workers would reduce his authority as UTU President and he would be subordinate to former VP UTU Dave Hake. Dave Hake was handpicked by Paul Thompson to be the next UTU President.

- Dave Hake lost to M. Futhey.

- The Sheet Metal Workers, as a result, appointed Dave Hake the “head of the rail division” of the Sheet Metal Workers, in effect Senior to M. Futhey should the merger continue.

- Futhey and others now rejected the merger (Futhey and Secord – as members of the Board of Directors – originally supported the merger)

- Tim Secord agreed to file to the Courts his now opposition to the merger (remember how Scott Montani came out against the merger – after supporting it – this to curry favour with the Canadian membership – now you know why – he was following the lead of Tim Secord).

- Given that Tim Secord no longer held a position in the UTU and would be returning to the ranks, was give an “appointed position” by M. Futhey, this in the face of the strong objections of the Canadian delegates and the Canadian membership. Why?

- The newly elected Canadian General Chairpersons (and Canadian VP/LR) repeatedly wrote President Futhey to hold a meeting to address the Canadian issues. Futhey declined each and every time.

- The UTU commenced its “scorched earth” policy in Canada.

i) Garth Bates was charged.
ii) Interference with Rex Beatty’s complaint against CN
iii) Sided with CN on its Judicial Review application in regards to the CIRB declaration of February 19th (the strike was legal).
iv) Refusing to distribute the required dues to Locals.
v) Refusing to reimbursement legitimate expenses of the GCA
vi) Shredding Files
vii) Closing down the Ottawa Office
viii) Etc.


OTHER POSTS TO FOLLOW.

Rex Beatty