Sunday, June 29, 2008

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

Wednesday, June 25, 2008

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

Monday, June 23, 2008

POST #1 – CIRB HACKEL ET AL VS THE UTU – AN OVERVIEW

Although there was much testimony (over a period of 18 months) I have decided to commence my first two posts by a reviewing, in brief, the summation of each party.

Thereafter I will go through the evidence as it relates to the reality of the situation. I believe by doing it this way viewers will be able to keep in context the many events which motivated the Deposed and the UTU to take the action they did and how it impacted on the protection of the Canadian membership.

Preamble

To best understand the arguments presented to the CIRB (by both parties) in final summation I have framed the situation as follows;

Within the “Labour Universe” there are two “worlds”

The “world” of the Bargaining Agent (UTU).
The “world” of the Canada Labour Code (The Deposed).

(1) In spite of or (2) in consideration of the reality of what has transpired over the past number of years (which the viewers can decide) the parties framed their respective positions so as to convince the CIRB in which “world” it should review and dispose of the complaint.

In short, if the CIRB finds that at all times the UTU was within its “legal” authority (its world), it will unlikely find in favour of the deposed.

Conversely, if the CIRB finds that the UTU violated the “Code” it will more than likely find in favour of the deposed.

The UTU “World” and Summation

A Bargaining Agent (Union) receives a “bargaining certificate” from the CIRB to be (in Canada) the sole representative of a “bargaining unit” (Members). In granting such a certificate the Union is obligated to conduct itself consistent with the Canada Labour Code (Code).

A Union has a “contract” with its members called a “constitution”. The Union constitution must conform to the “Code”.

It is this “world” that the UTU submits is applicable in the circumstances. The UTU submits that its position is truthful and the CIRB should rely upon it to dismiss the application of the deposed. In other words, the CIRB has no jurisdiction to find in favour of the deposed much less provide the requested relief by the deposed.

The UTU submitted that the deposed are “liars” and “traitors” who “flagrantly” violated Article 85 of the UTU constitution by conducting a strike against CN Rail (without seeking the mandatory assistance of the President) and, as such, the Union was free to take disciplinary action, no matter how severe.

The UTU submitted that at no time did it consider the allegations of dual unionism or monetary impropriety when determining disciplinary action (removal from Office and membership) rather such action was only as the direct result of the violation of Article 85.

The UTU claims that the “customized” process of summarily removing the deposed from Office and Membership on February 19, 2007, without trial, was within the authority of the President. The UTU further submits that an appeal of the deposed, without the UTU having to “prove” the guilt of the deposed was, again, within the authority of the President as provided in the “Savings Clause” of the constitution – Article 38.

The UTU argues that it had to create the unique and unprecedented customized process as Article 74 (trials) of the constitution could not be relied upon to get the desired results as the Local Chairpersons (members of the GCA) were in league with the deposed. Further, because the President could not bring charges against the deposed he had to formalize a process in which he could bring charges and the desired result (removal from Office and Membership).

The UTU asks that the CIRB to dismiss the application of the deposed.

PART 2 – THE DEPOSED SUMMATION NEXT – PLEASE KEEP POSTED.

Rex Beatty

Friday, June 20, 2008

CIRB DECISION - TIME FRAME

Before I leave Toronto I was asked as to the time frame of when the CIRB would issue its decision in regards to the deposed against the UTU.

The Board usually issues its decision within 30 days however, given the complexity of the case and evidence presented, it may take longer than 30 days. On completion of the hearings yesterday the Board advised that it would issue the decision as soon as possible (I will advise of the results when received).

As to my personal case (Beatty against CN Rail) the matter is still pending as to whether the Board will hear my case or defer to Arbitration. The Board will be issuing a time line in which this important matter will be addressed and decided (I will keep you posted).

As noted on my earlier post, I will shortly be providing a series of posts as to how and why we were in front of the Board with respect to the deposed vs. UTU. To appreciate the information I will, as earlier presented, give my understanding of the final summations of both the UTU (Brian Shell) and the deposed. By providing the final summation the information that will follow will "connect the dots" to both parties positions.

Rex Beatty

Thursday, June 19, 2008

CIRB CASE CONCLUDED

At 15:40 hours today the case of the former General Chairs. and Vice-General Chairs. (Hackel et al)against the UTU International concluded.

We, the deposed, (and others in attendance) are now free to talk about the case and re-produce documents. We are also free to look at and participate in "runningtrades.com" on these matters. On this point I invited the Admin. of runningtrades to contact me should they have questions.

I will be travelling home to Sault Ste. Marie tomorrow and will shortly thereafter provide a sequence of posts in regards to this case. It is my intent to commence with the final summation of the UTU and then the final summation of the deposed. Thereafter I will methodically walk through the case as presented.

Please keep posted.

Rex Beatty

Friday, June 13, 2008

CIRB CASE UPDATE

The complaint of the deposed General Chs. and Vice-Gen. Chs. is now entering its final phase.

The UTU International concluded with its case and its final witness (Clint Miller) on Friday the 13th.

The final phase of the case (as it now stands) will commence on June 18th for three days. The deposed are considering calling Mike Church as a rebuttal witness on the first day. Thereafter both parties will give their final summations.

Upon completion it is anticipated that the deposed will be free to provide specific details of the case (it is my intention to post such on my blog). Please keep posted.

Rex Beatty

Wednesday, June 11, 2008

UTU INTERNATIONAL FRUSTRATES THE REPRESENTATION OF CANADIANS

It has been reported that the UTU International has refused to release any monies to Locals and General Committees.

When questioned the UTU International responds by claiming that it is doing a "Canadian Audit" and will not release any money. The continued operation of the GCA (and staff) and the ability to represent at the Local level are now at risk.

It is interesting that the action of the UTU International comes at a time when the CIRB has issued the time line for the representation vote.

The scortched earth policy of the UTU continues.


Rex Beatty

REPRESENTATION VOTE

The CIRB has advised that ballots for the representation vote at CN Rail will be mailed on June 27th to be returned by August 8th. Anyone not receiving a ballot be July 11th should contact the CIRB.

I will be travelling to a number of Locals to speak on this and other issues. I will very shortly provide the times, dates and locations of the Locals I will be attending. Please keep posted.


Rex Beatty

Tuesday, June 10, 2008

UPDATE - JUNE 10 - CIRB HEARINGS

Mr. Brian Shell has now advised the CIRB that he can now proceed with the hearings as scheduled (reference the previous post).

The case involving the deposed Gen. Chs. and Vice-General Chs. will commence this Thursday and Friday with the UTU's schedule last witness (Mr. Clint Miller - the UTU's U.S. Legal Counsel). Final summations for this case are scheduled for June 17 thru to and including June 20th.

The case of Rex Beatty against CN Rail will continue on June 16th (this is a continutation of the "case management" process).

Both cases will be held in Toronto at 1 Front Street and is opened to the Public.

Rex Beatty

Friday, June 6, 2008

CIRB – CONTINUATION OF HEARINGS

The complaint of the deposed General Chairpersons and Vice-General Chairpersons (ref. as - R. Hackl et al) will resume on June 12th and 13th in Toronto.

The UTU International is expected to call its second and final witness, the UTU General Counsel from Cleveland, Mr. Clint Miller (secord was the first witness and only other witness).

The following week, commencing on June 18th (for three days), the parities are expected to give their final summations. Subsequent to the final summations the matter will be in the hands of the CIRB for determination.

My personal case against CN Rail was to resume in front of the CIRB on June 16th. However, due to unfortunate circumstances, Mr. Shell (for the UTU) has requested a postponement. Given Mr. Shell’s circumstances I have advised my Legal Counsel to agree to Mr. Shell's request.

My prayers and sympathies are extended to Mr. Shell and his family.

Rex Beatty

Wednesday, June 4, 2008

POSITION WITHIN THE TCRC

As you know, the UTU International has and continues to perpetuate a suggestion that the deposed General Chairpersons and Vice-General Chairpersons secretly supported a raid by the TCRC in exchange for a position within that organization.

I can categorically say, without hesitation, that such was not nor has ever been the case.

These are lies that were initiated by the UTU International with the assistance of certain Canadians (secord, meylmick, goring, flynn etc.) and are being perpetuated to this very day.

It is my belief that the TCRC will be the successful Bargaining Agent once the representational vote has been completed. It is my understanding that the UTU International has also concluded that such will be the case (the reasons for the UTU scorched earth policy - see post immediately below).

The success of the TCRC will be as a direct result of the actions of the UTU International and their named Canadian co-conspirators and their disgraceful behaviour over the past couple of years, and for no other reason.

As much as the vote is directed by the CIRB and is a matter of record I do however have a say and opinion on my personal status should the TCRC be successful, this in regard to a position within the TCRC

For the record I have not now nor have I ever been guaranteed any “job” with the TCRC (or any other Union organization) in exchange for my support for a "raid".

If the TCRC becomes the Bargaining Agent and should I seek to hold an elected position within this or any other Union organization I would only do so by way of election that is both transparent and acceptable.



Rex Beatty

THE SCORCHED EARTH POLICY OF THE UTU INTERNATIONAL CONTINUES

As I have previously posted, I will attend any meetings (time and means possible) to answer any questions regarding the upcoming vote, the many cases presently before the CIRB and events over the past couple of years.

If you wish to invite and have me attend a local meeting please contact your local union representative(s) and have them call me.

Having stated the above I provide the following for you to consider;

It is my understanding, at present, that the UTU has “sub –leased” the Ottawa National Office and directed that all files (except ongoing cases) be shredded. To point, even before the vote takes place and results known the UTU has decided to destroy materials (including historical records) that have the potential to assist the Canadian membership in the future (whoever the representative may be). The scorched earth policy of the UTU continues.

It is my view that the UTU will continue to frustrate the “Bargaining Agent Representation Process” to provide continued opportunity for the UTU to collect Canadian Union dues. As you know, the UTU, at the first of each month, collects dues from Canada. To point, every time the UTU delays the process beyond the first of each month they collect more dues money. The money obtained by dues collection outweighs the cost associated with the delaying the vote. I predicate that the UTU will continue with this strategy of delay, all to the detriment of the Canadians.

It is also my understanding that the UTU has and will continue to limit any expenses associated with the representation of the Canadians by Canadians. The UTU, in an unprecedented fashion has now begun to question the legitimate expenses of the GCAs to delay the releasing of monies. Monies that have been collected for the sole purpose of representing the Canadian membership by Canadians. The accountability of which rests solely with the members of the GCAs (Local Ch.) and their respective Canadian members and not the UTU International unless charges of some impropriety have been filed (which has not occurred).

The UTU is questioning the manner in which “local” dues assessments are handled by the local Canadian membership and some of those persons locally responsible for such monies.

The UTU International has completely and effectively abandoned the Canadian membership, not because I say so but is evident (for some time) by their actions. Please note that the UTU has not advised any of the “American” membership of the events unfolding in Canada by way of their web-site (www.utu.org). Please note that the Canadian UTU web-site, for some time has been abandoned. This is interesting when considering the “publicity” campaign and its associated costs when the UTU International interfered and, in my view, destroyed the UTU representational structure in Canada during last round of negotiations and the attacks (personal at times) that they perpetuated by way of outright lies and innuendos against the duly elected negotiating team.

Rex Beatty