On July 17th, 2008, the Union and the Company proceeded, ad hoc, to have Arbitrator Picher hear a dispute concerning time limits with respect to GO-105.
The substantive issue before the Arbitrator can be characterized as follows;
“Whether or not the Union was mandated to file grievances to arbitration within the 60 day time limit as provided by Article 84 of Agreement 4.16”.
The complete decision of the Arbitrator is posted below in three (3) parts.
MY COMMENTS AND REVIEW:
BACKGROUND:
Arbitration process:
Grievances filed to arbitration are, when submitted, scheduled on a “first in - first heard basis”, this “rule” applies except for dismissals or as otherwise agreed between the parties.
To put the matter in context, should the Union be obligated to file all grievances to arbitration within 60 days the system would quickly “clog up”. Additionally, more serious matters in dispute e.g. pensions, material changes, heavy discipline etc. would be delayed, arguably for years.
In 2004 the Union began experiencing an extreme increase in grievances against CN Rail. The amount of grievances, in a very short period of time, exceeded 1000. This is important when considering that the Arbitrator at the CROA & DR sits 3 days out of each month (excluding August) in which to hear ALL disputes filed by all participating parities to the CROA & DR.
As a result of the obvious change in management style (resulting in a massive amount of grievances being filed) the Union filed a complaint to the CIRB arguing that the Company was intentionally “frustrating” the grievance process and, further, were not abiding by decisions subsequently rendered by the Arbitrator.
The CIRB found that in fact the Company was continually violating previously arbitrated matters (e.g. Article 41 and 51) and issued orders of compliance.
With respect to the “frustration of the grievance process” the Board determined that such matters are to be decided by the Arbitrator.
The Company thereafter advised the Union that it required full compliance with time limits. The Union, in turn, advised the Company that, although it would attempt to be within such limits (given the volume of grievances), that they viewed such as not mandatory (given past practice and estoppel). Further, the Union advised that they would nevertheless request that the Arbitrator extend time limits given his authority to do so under the Code.
Thereafter the Union continually faced preliminary objections on the basis of time limits.
With the change in the CROA & DR rules (as agreed to by John Armstrong) requiring that preliminary objections to be heard separately from hearing the case on its merits the arbitration process became more frustrating and, at the same time, grievances continued to increase.
The matter came to a head in December of 2004 involving the dismissal of Mr. J. Coffey. A case in which the Company argued time limits for filing to arbitration were not complied with by the Union.
At the same time the parties were in the last stages of negotiations, with John Armstrong as the Chief Spokesperson. As the matter of time limits remained at issue it became more likely that negotiations would be the avenue in which to settle the matter.
During the J. Coffey case, however (within weeks of a negotiated settlement) the matter of time limits was addressed with the assistance of the Arbitrator. It should be noted that although the “agreement” (as alleged by the Union) is produced in part in the recent award, they do not provide that portion identifying all recipients e.g. M. Picher, M. Church.
It was the Union’s position that the following individuals participated in the settlement of the time limits issue at the Coffey case;
Arbitrator M. Picher
M. Church (UTU Lawyer)
John Coleman (CN Lawyer)
Rex Beatty (General Chairperson)
Jim Robbins (UTU Vice-General Chairperson)
Myron Becker (CN Manager Labour Relations
It should also be noted that other individuals were present at the actual hearing including Rollie Hackle etc.
Subsequently the matter of J. Coffey was heard and the award reflected that the Company withdrew its preliminary objection.
Shortly thereafter Mr. Myron Becker wrote Rex Beatty with a proposed agreement. Rex Beatty responded to Mr. Becker on January 17th, 2005, advising of the agreement reached at the arbitration of J. Coffey. Although the Company acknowledged receipt of Rex Beatty’s letter they confirmed that they did not respond in any manner.
On February 12th, 2005, the parties concluded a tentative collective agreement.
In April of 2005, after ratification of the collective agreement, the Company again raised the issue of time limits (now too late to have the matter place on the negotiating table) and again Rex Beatty responded (it should be noted that at all times grievances continued to be heard and resolved by the Arbitrator). The Company again did not respond.
In November of 2006 the Company once again raised the issue of time limits and again Rex Beatty reiterated the agreement it believed it had reached during the Coffey case (the Company again did not respond). As the parties were in negotiations the Union submitted a demand that stated;
“Reaffirm that there are no time limits for the submission of grievances to arbitration”.
The Union filed the demand in this manner so as to maintain its position of past practice and estoppel (agreement reliance) should no agreement be reached at negotiations and the matter proceeded to arbitration. Simply put, if the Union submitted a demand to remove time limits for filing to arbitration the Company could arguably say “why submit a demand if there was a practice in place”.
On February 19th, 2007, Rex Beatty and the rest of the negotiating team were removed from Office.
John Armstrong and Robert Sharpe thereafter assumed the duties of General Chairperson and Negotiators (along with Clint Miller from the U.S.). The demand to “reaffirm” no time limits existed to proceed to arbitration was dropped by the Union. Additionally, the Union negotiators signed an agreement with CN which, among other things, replaced all previous agreements on “time limits”.
Company material subsequently received by General Chairperson Ethier clearly indicated that the Company was going to rely on the Armstrong/Sharpe agreement with respect to the issue presently in dispute.
At this point, however, Brian Shell for the UTU International intervened in the matter and attempted to have Mr. M. Church removed on the basis of conflict. To settle the matter CN subsequently agreed not to discuss the agreement as did GO-105. GO-105 agreed so as to retain the services of M. Church (Brian Shell agreed not to raise the issue of conflict should the agreement of Armstrong/Sharpe not be relied upon).
The Arbitrator did not hear nor was there any evidence presented at the arbitration hearing in regards to the Armstrong/Sharpe agreement.
However, had Mr. Shell not intervened GO-105 could have utilized the Armstrong/Sharpe agreement to demonstrate that there were previous agreements, arguably the one reached during the Coffey case.
It should be noted that both John Armstrong and Robert Sharpe were summonsed to the hearing to give testimony. For the record it is my understanding that Bob Sharpe agreed to participate and assist GO-105 and dispute the position of the Company.
John Armstrong did not attend the hearing or contact any of the participants up to and including the hearing. To point, as will be identified later, Mr. Armstrong did not attend to dispute the representations by CN’s Myron Becker.
THE HEARING:
At the hearing the positions of both parties were advanced.
Although there was no dispute on the Union’s letter identifying the “agreement” it believed it had reached with the Company during the Coffey hearing (the Union had retained all fax confirmations as who received the letter) the Company denied that they had in fact reached an agreement.
When questioned, although initially stating they had, the Company (Myron Becker) acknowledged that at no time did he nor the Company respond to Rex Beatty as to his letter or his position. The Company acknowledged that they did not advise Rex Beatty of their disagreement with his position.
When examined, Mr. Becker stated that he “advised John Armstrong” during a private meeting prior to signing the tentative collective agreement in February 12th of the Company’s disagreement. Evidence was further established that the meeting had to have taken place between January 17/05 – date of the letter – and February 12/05 – signing of the tentative agreement (NOTE: other than the evidence of Myron Becker, there is no evidence of any meeting involving John Armstrong).
Evidence was established that Rex Beatty was not advised by John Armstrong of the position of the Company (as stated by Myron Becker) in order to have the matter addressed at those negotiations.
The Arbitrator references the position of Myron Becker with respect to John Armstrong as follows;
“While the Company acknowledges that no answer was given to Mr. Beatty’s letter which asserted, in the settlement of the Coffey grievance, that a general agreement with respect to the waiver of article 84 time limits for filing to arbitration had been reached, it maintains that the Union was advised otherwise. As reflected in the evidence of Mr. Becker at the hearing, in the negotiations for the renewal of the collective agreement Mr. Becker was dealing with Mr. John Armstrong, then UTU Vice President and chief spokesperson at the bargaining table. He recalls that he expressed to Mr. Armstrong that the Company was not agreeing to a general waiver of the time limits for filing to arbitration found within article 84.4 of the collective agreement.”
NOTE: Notwithstanding any dispute I may have with John Armstrong on other matters, I do not believe that the meeting with Myron Becker took place nor do I believe John was advised of the Company’s disagreement.
It would however be interesting to hear John’s position with respect to the testimony of Myron Becker.
The Arbitrator, in reviewing the positions of both parties, accepted the premise that there was no agreement as it would, essentially, require the acknowledgment of the Company verbally or in writing.
The Arbitrator did not accept that there was a past practice or that estoppel applied with respect to these issues. It should be noted, however, that the position of GO-105 with respect to proceeding to Arbitration is and has been consistent with the practice presently in place in Western Canada (at least for now) and honoured by the Company.
The Arbitrator however maintained that he would continue to rule on the issue of time limits on a case by case basis as provided by the Code.
All grievances are presently still “alive” and proceeding to arbitration on the basis of the decision of the Arbitrator.
Rex Beatty
Thursday, July 31, 2008
TIME LIMITS AWARD - PART 1
IN THE MATTER OF AN ARBITRATION INTERIM ORDER
BETWEEN:
THE CANADIAN NATIONAL RAILWAY COMPANY
(“the Company”)
And
THE UNITED TRANSPORTATION UNION
(“the Union”)
RE: ARTICLE 84 – TIME LIMITS
ARBITRATOR: Michel G. Picher
APPEARING FOR CANADIAN NATIONAL RAILWAY:
Andre Giroux – Counsel
Doug Van Cauwenbergh – Director, Labour Relations
Myron W. Becker – Director, Labour Relations, CSXT – Operations
J. Torchia – Senior Manager, Labour Relations
R.A. Bowden – Manager, Labour Relations
Donald Gagne – Manager, Labour Relations
Barry Hogan – Manager, Labour Relations
J. Krawec – Manager, Labour Relations (Retired)
APPEARING FOR UNITED TRANSPORTATION UNION:
Michael A. Church – Counsel
Guy Ethier – General Chairperson
Glenn Gower – Vice General Chairperson
Ed Page – Local Chairperson, Local 483
Rex Beatty – Former General Chairperson
James Robbins – Former Vice General Chairperson
A hearing in this matter was held in Toronto on July 17, 2008.
AWARD
This grievance concerns the application of the provisions of article 84 of the collective agreement which govern the timeliness of a submission of a grievance to the Canadian Railway Office of Arbitration and Dispute Resolution. By agreement, the parties decided to have this matter heard and determined by the Arbitrator on an expedited and ad-hoc basis.
A conference call was held in advance of the hearing, in relation to a possible intervention on behalf of the United Transportation Union’s international office. Its counsel, Mr. Brian Shell, expressed concern during the conference call that the dispute not deal with certain events and the actions of representatives appointed by the UTU’s international office after the commencement of a strike by the Union against the Company on February 10, 2007 until such time as General Chairperson Guy Ethier was elected in October of 2007. By agreement between the parties it was undertaken that there would be no evidence or argument concerning the events between those dates. That undertaking was honoured during the course of the hearing and, for the purposes of clarity, nothing in this award touches upon actions of the representatives of the UTU International between the commencement of the strike on February 10, 2007 and the installation into office of Mr. Ethier in October of the same year, or in relation to the timeliness of any grievances within that period.
The time limits in relation to the grievance procedure have been included in the collective agreement since 1929. Those time limits relating to the various steps of the grievance procedure are not here at issue. What is at issue is the time within which a grievance is to be filed for arbitration with the Canadian Railway Office of Arbitration and Dispute Resolution. The provisions of articles 84.3 through 84.5 of the collective agreement bear on this dispute. They read as follows:
84.3 A grievance which is not settled at the Vice-President’s Step of the grievance procedure may be referred by either party to the Canadian Railway Office of Arbitration for final and binding settlement without stoppage of work.
(Refer to Addendum No. 22)
84.4 A request for arbitration shall be made within 60 calendar days from the date decision is rendered in writing by the Vice-President by filing written notice thereof with the Canadian Railway office of Arbitration and on the same date a copy of such filed notice will be transmitted to the other party to the grievance.
NOTE: In the application of this paragraph upon receipt of a request for arbitration, the Company will meet with the General Chairperson, within 30 calendar days from receipt of such request, to finalize the required Joint Statement of Issue. Failure to comply with the provisions of this paragraph will permit either party to the dispute to progress the dispute to the Canadian Railway Office of Arbitration on an “ex parte basis” pursuant to the provisions of the Memorandum of Agreement governing the Canadian Railway Office of Arbitration.
Grievances Not Timely
84.5 Any grievance not progressed by the Union within the prescribed time limits shall be considered settled on the basis of the last decision and shall not be subject to further appeal. The settlement of a grievance on this basis will not constitute a precedent or waiver of the contentions of the Union in that case or in respect of other similar claims
BETWEEN:
THE CANADIAN NATIONAL RAILWAY COMPANY
(“the Company”)
And
THE UNITED TRANSPORTATION UNION
(“the Union”)
RE: ARTICLE 84 – TIME LIMITS
ARBITRATOR: Michel G. Picher
APPEARING FOR CANADIAN NATIONAL RAILWAY:
Andre Giroux – Counsel
Doug Van Cauwenbergh – Director, Labour Relations
Myron W. Becker – Director, Labour Relations, CSXT – Operations
J. Torchia – Senior Manager, Labour Relations
R.A. Bowden – Manager, Labour Relations
Donald Gagne – Manager, Labour Relations
Barry Hogan – Manager, Labour Relations
J. Krawec – Manager, Labour Relations (Retired)
APPEARING FOR UNITED TRANSPORTATION UNION:
Michael A. Church – Counsel
Guy Ethier – General Chairperson
Glenn Gower – Vice General Chairperson
Ed Page – Local Chairperson, Local 483
Rex Beatty – Former General Chairperson
James Robbins – Former Vice General Chairperson
A hearing in this matter was held in Toronto on July 17, 2008.
AWARD
This grievance concerns the application of the provisions of article 84 of the collective agreement which govern the timeliness of a submission of a grievance to the Canadian Railway Office of Arbitration and Dispute Resolution. By agreement, the parties decided to have this matter heard and determined by the Arbitrator on an expedited and ad-hoc basis.
A conference call was held in advance of the hearing, in relation to a possible intervention on behalf of the United Transportation Union’s international office. Its counsel, Mr. Brian Shell, expressed concern during the conference call that the dispute not deal with certain events and the actions of representatives appointed by the UTU’s international office after the commencement of a strike by the Union against the Company on February 10, 2007 until such time as General Chairperson Guy Ethier was elected in October of 2007. By agreement between the parties it was undertaken that there would be no evidence or argument concerning the events between those dates. That undertaking was honoured during the course of the hearing and, for the purposes of clarity, nothing in this award touches upon actions of the representatives of the UTU International between the commencement of the strike on February 10, 2007 and the installation into office of Mr. Ethier in October of the same year, or in relation to the timeliness of any grievances within that period.
The time limits in relation to the grievance procedure have been included in the collective agreement since 1929. Those time limits relating to the various steps of the grievance procedure are not here at issue. What is at issue is the time within which a grievance is to be filed for arbitration with the Canadian Railway Office of Arbitration and Dispute Resolution. The provisions of articles 84.3 through 84.5 of the collective agreement bear on this dispute. They read as follows:
84.3 A grievance which is not settled at the Vice-President’s Step of the grievance procedure may be referred by either party to the Canadian Railway Office of Arbitration for final and binding settlement without stoppage of work.
(Refer to Addendum No. 22)
84.4 A request for arbitration shall be made within 60 calendar days from the date decision is rendered in writing by the Vice-President by filing written notice thereof with the Canadian Railway office of Arbitration and on the same date a copy of such filed notice will be transmitted to the other party to the grievance.
NOTE: In the application of this paragraph upon receipt of a request for arbitration, the Company will meet with the General Chairperson, within 30 calendar days from receipt of such request, to finalize the required Joint Statement of Issue. Failure to comply with the provisions of this paragraph will permit either party to the dispute to progress the dispute to the Canadian Railway Office of Arbitration on an “ex parte basis” pursuant to the provisions of the Memorandum of Agreement governing the Canadian Railway Office of Arbitration.
Grievances Not Timely
84.5 Any grievance not progressed by the Union within the prescribed time limits shall be considered settled on the basis of the last decision and shall not be subject to further appeal. The settlement of a grievance on this basis will not constitute a precedent or waiver of the contentions of the Union in that case or in respect of other similar claims
TIME LIMIT AWARD - PART 2
Where a decision is not rendered by the appropriate officer of the Company within the prescribed time limits, the grievance may, except as provided in paragraph 84.6, be progressed to the next step in the grievance procedure.
The Union maintains that the parties have effectively agreed to waive the provisions of article 84.5, thereby relieving the Union from the obligation of filing grievances to arbitration with the CROA & DR within 60 days of the Company’s final decision, as contemplated in article 84.4. It submits that by reason of an arrangement made between the parties, it remains within the discretion of the Union to notify the Company of the time at which it chooses to file a grievance to arbitration. Its representatives submit that that arrangement is essential to avoid a clogging of the arbitration system, based on the “first in, first out” principle utilized by the Arbitration Office, with the only exception being for discharge cases.
The Company submits that no agreement or understanding in the terms asserted by the Union has been made. Its representatives stress that the timely observance of the requirements with respect to filing for arbitration are essential to the Company from the standpoint of knowing, with some clarity, which grievance files need to remain open and having a clear and realistic sense of its pending arbitration burden. The Company’s representatives accept that there may well be many circumstances in which an extension of time limits may be requested and granted to assist the Union with its own administrative concerns. However, they argue that there has never been an agreement or arrangement whereby unilateral control over the flow of grievances filed to arbitration has been remitted into the sole discretion of the Union.
In substantial part the dispute between the parties concerns what was undertaken in relation to the settlement of a specific grievance. According to the Union, discussions between the parties with respect to this issue took place around the hearing of the dismissal case of employee Gerry Coffey, a matter which was scheduled to be heard before the Arbitrator in the office of the CROA & DR on January 11, 2005. Simply put, the recollection of the Union’s then General Chairperson Rex Beatty is that the parties met outside the hearing room to deal with the Company’s objection as to the timeliness of that grievance. He states that an agreement was then reached whereby the Company not only waived its objection as to the timeliness of the filing of the Coffey grievance to arbitration, but agreed that in all future cases the Company would not assert the 60 day time limit in article 84.4, with respect to the Union’s obligation to file for arbitration. Thenceforth, as he recalls it, it was understood that it would be within the discretion of the Union as to when a grievance would be filed to arbitration in the office of the CROA & DR.
The evidence of the Company’s then representative, Mr. Myron Becker, is that there was a settlement which involved the waiver of time limits by the Company as applied to the specific case of Mr. Coffey, however Mr. Becker denies that there was any agreement between the parties beyond the specifics of that case, and that there was certainly no surrendering of the Company’s right to insist on the application of the 60 day time limit in article 84.4 in all cases in the future.
As the record indicates, there can be little doubt that as the Coffey case came on for arbitration the parties were in disagreement with the issue of the mandatory time limits for filing to arbitration. At the time the Company took the position that the Coffey grievance was filed to arbitration in an untimely way, and was therefore not arbitrable. That is reflected in a letter sent to Mr. Beatty, signed by Mr. J. Krawec on behalf of Senior Vice President K. Creel on December 6, 2004, which reads as follows:
Dear Rex,
Have reviewed your letter and proposed Joint Statement of Issue received on 03 December, 2004 in connection with the above.
Please be advised that the Company is unable to agree with your proposed JSI as the grievance is deemed to be time-barred from arbitration for the following reasons.
The historic sequence of events begins with the incident of 28 May, 2004, wherein Mr. Coffey had allegedly directed a Company Officer to “fuck off” during the course of their conversation on the lead at Oakville.
Time limits were maintained for the notice and investigation as per Article 82 of agreement 4.16, 01 and 03 June, 2004, respectively.
Likewise discipline was assessed within the required 30 days from date of investigation.(Art 82.5) on 25 June, 2004.
A step 3 grievance under Article 84.1 was received on 08 July, 2004 and responded to by the Company by letter dated 05 August, 2004. The Company appreciated your advice of your intent to progress this matter to arbitration by letter of 10 August, 2004 but did not hear further from our office until receiving the JSI on 03 December, 2004.
This time line for filing for arbitration far exceeds any contemplated time limits as provided by Article 84.4 of agreement 4.16 – Grievance procedure. Such notification was required within 60 days from the date of the Company’s response at Step 3 – that being prior to 05 October, 2004.
Therefore, the Company is of the position that the grievance is not timely as supported by Article 84.5 of Agreement 4.16 and is “… deemed settled on the basis of the last decision and shall not be subject to further appeal.”
For the above reasons, the Company does not accept your letter and proposed Joint Statement of Issue as a valid grievance.
Should you still wish to proceed to arbitration, the Company will file a preliminary objection.
By letter dated December 6, 2004 Mr. Beatty responded to Mr. Krawec in the following terms, in part:
Dear Jim,
I have this date received and reviewed your letter of December 6th, 2004 with respect to the above noted matter. I make the following initial comments.
It should first be noted that the manner in which the Union has progressed the grievance of Mr. Coffey to Arbitration is consistent with past practices, implied agreements and understandings between the parties. To this extent, I remind you of the provisions of Article 85.3 of the Collective Agreement with respect to changing any accepted interpretation of any Article of the Collective Agreement.
Specifically, any change (as suggested in your noted letter) is considered by the Union as a violation of Article 85.3. To this extent (should the Company maintain its position) please consider this a “Policy Grievance” under the provisions of Article 84 of the Collective Agreement. It should also be noted that this position will be argued by the Union should the Company raise any preliminary objection at Arbitration (as noted in your correspondence).
The Union, in addition to the above, will argue that the Company is “estopped” from changing the accepted practice (and interpretation of Article 84.4) with respect to the manner in which the Union progresses its grievances to Arbitration. The Union submits that any Company change to the accepted application of such progression will (and does) create a detrimental affect to the Union and its membership.
As you are aware the Company had an opportunity to advise the Union at the commencement of negotiations that it wished to revert to what it believed was the strict interpretation of Article 84.4. The Company did not take such action. It is the Union’s position that the Company must comply with the implied agreements and understandings with respect to the accepted manner in which the Union progresses its grievances to Arbitration.
The Company expressed itself with respect to the issue of time limits, both with respect to the Coffey matter and with respect to future practice. In that regard a letter was issued to Mr. Beatty, dated December 22, 2004, by then Director of Labour Relations Myron Becker. That letter reads as follows:
Re: Company’s Preliminary Objection Concerning the Discharge of J. Coffey
Reference our conversation concerning the discharge of J. Coffey, in regards to the Company’s preliminary objection to be heard at the office of CROA & DR on January 11, 2004, that the time limits described in Paragraph 84.4, Article 84 of the 4.16 agreement, were exceeded.
With respect to the time limit provisions outlined in Paragraph 84.4, of Article 84 of Agreement 4.16, your position is that it has been the practice to apply the provisions in the following manner:
1. In Central and Eastern Canada, the UTU has had sixty (60) days from the date of the written decision from the Company to advise of it’s intent to proceed to CROA.
2. If the Union’s advise to the Company did not include filing a written notice to CROA as outlined in Article 84.4 of the 4.16 Agreement, then the Union would request an extension from the Company.
3. As a result, the filing with CROA would be delayed and the file remains open.
During our discussions I advised that I was concerned that the practice may not be clearly understood by all parties. I also indicated that if possible we should attempt to clarify the process so that future misunderstandings can be avoided.
In view of the foregoing, the Company’s is prepared to withdraw it’s preliminary objection concerning the time limits under Paragraph 84.4, of Article 84 Agreement 4.16, in the Coffey Grievance and have the case heard on its merits.
The Company is also prepared to formalize this process and propose the following in respect to the application of Paragraph 84.4, of Article 84 of Agreement 4.16, as follows:
1) The Union will have sixty (60) days from the date of the Company’s written Step 3 response to consider whether it will be proceeding to Arbitration.
2) If the timely request for Arbitration does not include a Joint Statement for the Company to consider, a request for extension of the 60 days is to be requested. Request’s for extensions will not be unreasonably refused by the Company and the Grievance will be kept alive.
3) Once the Union or the Company, receives or issues a Joint Statement of issue for either parties (sic) consideration, the parties will meet to finalize the required Joint Statement of Issue within 30 days as prescribed in the Note contained in Paragraph 84.4, of Article 84 of Agreement 4.16. Failure to do so will permit either party to progress the dispute on an “ex parte basis”, pursuant to the provisions of the Memorandum of Agreement governing the Canadian Railway Office of Arbitration.
This agreement, with the exception of the Coffey Case, does not extend to those cases already docketed at CROA & DR for January, 2005, nor to those cases previously responded to as exceeding time limits.
If you are in agreement with the foregoing, please indicate your concurrence in the space provided and return one signed copy to the undersigned.
Mr. Beatty’s written response on January 4, 2005 rejects the proposal made by Mr. Becker and states, in part:
The following is in response to your letter dated December 22nd (received in our Office at 10:38 hrs on December 27th, 2004) in regards to the above referenced matter.
With respect, your letter has not accurately reflected the Union’s position in this matter. Your letter does not accurately reflect the practices and procedures which have been in place of many, many years (without dispute). These practices and procedures have been applied and followed by both parties without difficulty or confusion. These practices and procedures are relied upon by the Union.
It now appears, unfortunately, that the Union’s good faith attempts at resolving these matters through dialogue have failed. As such these matters, with respect, will now proceed to Arbitration for resolution as scheduled.
As noted above, the parties met and resolved the issue of timeliness, at least as regards the Coffey grievance, when that matter came on for hearing. They are disagreed, however, as to whether the settlement made in Coffey intended to confirm an understanding that the Union would be relieved of the 60 day time limit found in article 84.4 of the collective agreement, and retain discretion as to when it might wish to file a matter to arbitration.
The Union’s representatives clearly believe that the parties agreed to the latter course. That is reflected in letter sent to Mr. Becker by Mr. Beatty, dated January 17, 2005. That letter deals with the settlement made in the Coffey matter, albeit characterizing it as a settlement made in respect of the application of article 84.4 of the collective agreement. It reads as follows:
RE: APPLICATION OF ARTICLE 84.4 OF COLLECTIVE AGREEMENT 4.16
Dear Myron,
The flowing is in regards to our recent discussion (and resultant settlement) of the above referenced matter.
As background, you will recall the Company raised a preliminary objection concerning the arbitrability of a dispute concerning the dismissal of Mr. J. Coffey. Specifically, the Company argued that the Union was in violation of the time limits as contained in Article 84.4 of Collective Agreement 4.16. For reference purposes I provide the following excerpt (Company letter – December 6th, 2004):
“This time line for filing for arbitration far exceeds any contemplated time limits as provided by Article 84.4 of agreement 4.16 – Grievance Procedure.
As you know, this matter (Company preliminary objection) was scheduled to be heard by the Arbitrator on January 11th, 2005 (ref: CROA & DR Case #3466).
Prior to the commencement of the noted arbitration hearing, the parties reached a binding settlement in the resolution of the central issue in dispute (time limits – Article 84.4). It was agreed and understood that the parties are not (and have not been) restricted by any time lines as provided in the application of Article 84.4 of Collective Agreement 4.16 in the progression of grievances to Arbitration.
I appreciate your time, consideration and cooperation in resolving this very important issue.
The parties are agreed with respect to the scope of the issue before the Arbitrator. They accept that the language of article 84 of the collective agreement is clear and that it is therefore not appropriate, in the absence of any ambiguity, to have reference to past practice for the purposes of interpreting that provision. In the result, the case rests entirely on the Union’s claim of estoppel. The Union maintains that there was an agreement between Mr. Beatty and Mr. Becker, that that agreement, made in the context of the Coffey grievance, was to the effect that the Union would not be held to the strict application of the time limits for filing to arbitration contained in article 84.4, and that grievances could be filed to arbitration according to the Union’s own discretion. Counsel for the Union submits that that was the state of the understanding when the parties returned to negotiations for the renewal of their collective agreement in February of 2007, and that there was no indication from the Company that it wished to return to the strict application of article 84. On that basis, Counsel argues, the estoppel which the Union raises against the Company continues to the present time. In its alternative argument, the Union maintains that in any event the Arbitrator retains a discretion to extend the time limits in relation to any grievance under the terms of the Canada Labour Code (CROA & DR 3493) and that at a minimum this award should affirm that that discretion is exercised as regards all of the grievances outstanding prior to February 10, 2007.
The Company’s representatives deny that there was ever any understanding, agreement or practice whereby the Union was given to understand that it had entire discretion with respect to the timeliness of filing any grievance to arbitration, and that the provisions of article 84.4 of the collective agreement would not be invoked or enforced. The Company’s recital over the facts in relation to this dispute commences in late 2003, when two complaints were filed with the CIRB by the Union alleging, in part, that the Company was failing to respond to grievances. It appears that the Company’s response to the Board was that the majority of the claims which were the subject of the complaint, dating from September 2002 to October 2003, had never been received by the Company. The Company relates that shortly thereafter large numbers of grievances were filed from Mr. Beatty’s office. The Company reviewed the grievances and took the position that they were untimely.
In a letter dated March 1, 2004, apparently in response to a letter from the Company dated February 25, 2004 concerning a possible extension of time limits, Mr. Beatty expressed that in light of the volume of grievances it was being forced to handle, the Union did not consider the time limits to be mandatory. His letter added: “In spite of the above, the Union will, without prejudice, when requesting time limit extensions provide specifics as to the duration of such requested extension.” On March 9, 2004 Mr. Van Cauwenbergh wrote to Mr. Beatty, and to Mr. Raymond Lebel of the Union, indicating administrative changes in the handling of the second step of the grievance procedure and, in addition, reiterating: “All grievances filed in writing will be governed under the provisions found under the Grievance Procedure, as directed by Article 84 of the 4.16 Agreement and Article 32 of the 4.2 Agreement.” To the same effect, in a later letter dated March 11, 2004 Mr. Van Cauwenbergh wrote:
The time limits, as prescribed by Article 84 of the 4.16 Agreement and Article 32 of the 4.2 Agreement, are mandatory, and in the absence of a clear and mutual agreement to an extension, are to be respected. Grievances not filed on a timely basis shall continue to be administered as provided in Paragraph 84.5 of Article 84 of the 4.16 Agreement and Paragraph 32.4 of Article 32 of the 4.2 Agreement.
In closing the Company will continue to decline any grievance that is not submitted on a timely basis as prescribed by Article 84 of the 4.16 Agreement and Article 32 of the 4.2 Agreement. In respect to requests for extensions, the Company will consider request for extensions, as long as such request contains the duration of the requested extension and that the request was received within the prescribed time limits. Please refer to my letter dated February 25, 2004.
By letter dated April 28, 2004 Mr. Beatty advised the Company that he was processing some 112 specified grievances to arbitration. Noting that the Company had provided the Union with declinations in respect of each of those grievances by communication dated April 19, 2004, he went on to state:
As you are aware, the Union requested an unlimited time extension given the voluminous and unprecedented amount of grievances received. The Union acknowledges that the Company did not grant this request. You are further aware that the Union subsequently advised the Company that it would nevertheless, advance all grievances to Arbitration.
In doing so, the Union advised the Company that it would request that the Arbitrator exercise his authority under the Code to resolve such disputes in spite of any Company argument relating to time limit restrictions. The Union maintains this position. Specifically, although we acknowledge your referenced correspondence, unless you
The Union maintains that the parties have effectively agreed to waive the provisions of article 84.5, thereby relieving the Union from the obligation of filing grievances to arbitration with the CROA & DR within 60 days of the Company’s final decision, as contemplated in article 84.4. It submits that by reason of an arrangement made between the parties, it remains within the discretion of the Union to notify the Company of the time at which it chooses to file a grievance to arbitration. Its representatives submit that that arrangement is essential to avoid a clogging of the arbitration system, based on the “first in, first out” principle utilized by the Arbitration Office, with the only exception being for discharge cases.
The Company submits that no agreement or understanding in the terms asserted by the Union has been made. Its representatives stress that the timely observance of the requirements with respect to filing for arbitration are essential to the Company from the standpoint of knowing, with some clarity, which grievance files need to remain open and having a clear and realistic sense of its pending arbitration burden. The Company’s representatives accept that there may well be many circumstances in which an extension of time limits may be requested and granted to assist the Union with its own administrative concerns. However, they argue that there has never been an agreement or arrangement whereby unilateral control over the flow of grievances filed to arbitration has been remitted into the sole discretion of the Union.
In substantial part the dispute between the parties concerns what was undertaken in relation to the settlement of a specific grievance. According to the Union, discussions between the parties with respect to this issue took place around the hearing of the dismissal case of employee Gerry Coffey, a matter which was scheduled to be heard before the Arbitrator in the office of the CROA & DR on January 11, 2005. Simply put, the recollection of the Union’s then General Chairperson Rex Beatty is that the parties met outside the hearing room to deal with the Company’s objection as to the timeliness of that grievance. He states that an agreement was then reached whereby the Company not only waived its objection as to the timeliness of the filing of the Coffey grievance to arbitration, but agreed that in all future cases the Company would not assert the 60 day time limit in article 84.4, with respect to the Union’s obligation to file for arbitration. Thenceforth, as he recalls it, it was understood that it would be within the discretion of the Union as to when a grievance would be filed to arbitration in the office of the CROA & DR.
The evidence of the Company’s then representative, Mr. Myron Becker, is that there was a settlement which involved the waiver of time limits by the Company as applied to the specific case of Mr. Coffey, however Mr. Becker denies that there was any agreement between the parties beyond the specifics of that case, and that there was certainly no surrendering of the Company’s right to insist on the application of the 60 day time limit in article 84.4 in all cases in the future.
As the record indicates, there can be little doubt that as the Coffey case came on for arbitration the parties were in disagreement with the issue of the mandatory time limits for filing to arbitration. At the time the Company took the position that the Coffey grievance was filed to arbitration in an untimely way, and was therefore not arbitrable. That is reflected in a letter sent to Mr. Beatty, signed by Mr. J. Krawec on behalf of Senior Vice President K. Creel on December 6, 2004, which reads as follows:
Dear Rex,
Have reviewed your letter and proposed Joint Statement of Issue received on 03 December, 2004 in connection with the above.
Please be advised that the Company is unable to agree with your proposed JSI as the grievance is deemed to be time-barred from arbitration for the following reasons.
The historic sequence of events begins with the incident of 28 May, 2004, wherein Mr. Coffey had allegedly directed a Company Officer to “fuck off” during the course of their conversation on the lead at Oakville.
Time limits were maintained for the notice and investigation as per Article 82 of agreement 4.16, 01 and 03 June, 2004, respectively.
Likewise discipline was assessed within the required 30 days from date of investigation.(Art 82.5) on 25 June, 2004.
A step 3 grievance under Article 84.1 was received on 08 July, 2004 and responded to by the Company by letter dated 05 August, 2004. The Company appreciated your advice of your intent to progress this matter to arbitration by letter of 10 August, 2004 but did not hear further from our office until receiving the JSI on 03 December, 2004.
This time line for filing for arbitration far exceeds any contemplated time limits as provided by Article 84.4 of agreement 4.16 – Grievance procedure. Such notification was required within 60 days from the date of the Company’s response at Step 3 – that being prior to 05 October, 2004.
Therefore, the Company is of the position that the grievance is not timely as supported by Article 84.5 of Agreement 4.16 and is “… deemed settled on the basis of the last decision and shall not be subject to further appeal.”
For the above reasons, the Company does not accept your letter and proposed Joint Statement of Issue as a valid grievance.
Should you still wish to proceed to arbitration, the Company will file a preliminary objection.
By letter dated December 6, 2004 Mr. Beatty responded to Mr. Krawec in the following terms, in part:
Dear Jim,
I have this date received and reviewed your letter of December 6th, 2004 with respect to the above noted matter. I make the following initial comments.
It should first be noted that the manner in which the Union has progressed the grievance of Mr. Coffey to Arbitration is consistent with past practices, implied agreements and understandings between the parties. To this extent, I remind you of the provisions of Article 85.3 of the Collective Agreement with respect to changing any accepted interpretation of any Article of the Collective Agreement.
Specifically, any change (as suggested in your noted letter) is considered by the Union as a violation of Article 85.3. To this extent (should the Company maintain its position) please consider this a “Policy Grievance” under the provisions of Article 84 of the Collective Agreement. It should also be noted that this position will be argued by the Union should the Company raise any preliminary objection at Arbitration (as noted in your correspondence).
The Union, in addition to the above, will argue that the Company is “estopped” from changing the accepted practice (and interpretation of Article 84.4) with respect to the manner in which the Union progresses its grievances to Arbitration. The Union submits that any Company change to the accepted application of such progression will (and does) create a detrimental affect to the Union and its membership.
As you are aware the Company had an opportunity to advise the Union at the commencement of negotiations that it wished to revert to what it believed was the strict interpretation of Article 84.4. The Company did not take such action. It is the Union’s position that the Company must comply with the implied agreements and understandings with respect to the accepted manner in which the Union progresses its grievances to Arbitration.
The Company expressed itself with respect to the issue of time limits, both with respect to the Coffey matter and with respect to future practice. In that regard a letter was issued to Mr. Beatty, dated December 22, 2004, by then Director of Labour Relations Myron Becker. That letter reads as follows:
Re: Company’s Preliminary Objection Concerning the Discharge of J. Coffey
Reference our conversation concerning the discharge of J. Coffey, in regards to the Company’s preliminary objection to be heard at the office of CROA & DR on January 11, 2004, that the time limits described in Paragraph 84.4, Article 84 of the 4.16 agreement, were exceeded.
With respect to the time limit provisions outlined in Paragraph 84.4, of Article 84 of Agreement 4.16, your position is that it has been the practice to apply the provisions in the following manner:
1. In Central and Eastern Canada, the UTU has had sixty (60) days from the date of the written decision from the Company to advise of it’s intent to proceed to CROA.
2. If the Union’s advise to the Company did not include filing a written notice to CROA as outlined in Article 84.4 of the 4.16 Agreement, then the Union would request an extension from the Company.
3. As a result, the filing with CROA would be delayed and the file remains open.
During our discussions I advised that I was concerned that the practice may not be clearly understood by all parties. I also indicated that if possible we should attempt to clarify the process so that future misunderstandings can be avoided.
In view of the foregoing, the Company’s is prepared to withdraw it’s preliminary objection concerning the time limits under Paragraph 84.4, of Article 84 Agreement 4.16, in the Coffey Grievance and have the case heard on its merits.
The Company is also prepared to formalize this process and propose the following in respect to the application of Paragraph 84.4, of Article 84 of Agreement 4.16, as follows:
1) The Union will have sixty (60) days from the date of the Company’s written Step 3 response to consider whether it will be proceeding to Arbitration.
2) If the timely request for Arbitration does not include a Joint Statement for the Company to consider, a request for extension of the 60 days is to be requested. Request’s for extensions will not be unreasonably refused by the Company and the Grievance will be kept alive.
3) Once the Union or the Company, receives or issues a Joint Statement of issue for either parties (sic) consideration, the parties will meet to finalize the required Joint Statement of Issue within 30 days as prescribed in the Note contained in Paragraph 84.4, of Article 84 of Agreement 4.16. Failure to do so will permit either party to progress the dispute on an “ex parte basis”, pursuant to the provisions of the Memorandum of Agreement governing the Canadian Railway Office of Arbitration.
This agreement, with the exception of the Coffey Case, does not extend to those cases already docketed at CROA & DR for January, 2005, nor to those cases previously responded to as exceeding time limits.
If you are in agreement with the foregoing, please indicate your concurrence in the space provided and return one signed copy to the undersigned.
Mr. Beatty’s written response on January 4, 2005 rejects the proposal made by Mr. Becker and states, in part:
The following is in response to your letter dated December 22nd (received in our Office at 10:38 hrs on December 27th, 2004) in regards to the above referenced matter.
With respect, your letter has not accurately reflected the Union’s position in this matter. Your letter does not accurately reflect the practices and procedures which have been in place of many, many years (without dispute). These practices and procedures have been applied and followed by both parties without difficulty or confusion. These practices and procedures are relied upon by the Union.
It now appears, unfortunately, that the Union’s good faith attempts at resolving these matters through dialogue have failed. As such these matters, with respect, will now proceed to Arbitration for resolution as scheduled.
As noted above, the parties met and resolved the issue of timeliness, at least as regards the Coffey grievance, when that matter came on for hearing. They are disagreed, however, as to whether the settlement made in Coffey intended to confirm an understanding that the Union would be relieved of the 60 day time limit found in article 84.4 of the collective agreement, and retain discretion as to when it might wish to file a matter to arbitration.
The Union’s representatives clearly believe that the parties agreed to the latter course. That is reflected in letter sent to Mr. Becker by Mr. Beatty, dated January 17, 2005. That letter deals with the settlement made in the Coffey matter, albeit characterizing it as a settlement made in respect of the application of article 84.4 of the collective agreement. It reads as follows:
RE: APPLICATION OF ARTICLE 84.4 OF COLLECTIVE AGREEMENT 4.16
Dear Myron,
The flowing is in regards to our recent discussion (and resultant settlement) of the above referenced matter.
As background, you will recall the Company raised a preliminary objection concerning the arbitrability of a dispute concerning the dismissal of Mr. J. Coffey. Specifically, the Company argued that the Union was in violation of the time limits as contained in Article 84.4 of Collective Agreement 4.16. For reference purposes I provide the following excerpt (Company letter – December 6th, 2004):
“This time line for filing for arbitration far exceeds any contemplated time limits as provided by Article 84.4 of agreement 4.16 – Grievance Procedure.
As you know, this matter (Company preliminary objection) was scheduled to be heard by the Arbitrator on January 11th, 2005 (ref: CROA & DR Case #3466).
Prior to the commencement of the noted arbitration hearing, the parties reached a binding settlement in the resolution of the central issue in dispute (time limits – Article 84.4). It was agreed and understood that the parties are not (and have not been) restricted by any time lines as provided in the application of Article 84.4 of Collective Agreement 4.16 in the progression of grievances to Arbitration.
I appreciate your time, consideration and cooperation in resolving this very important issue.
The parties are agreed with respect to the scope of the issue before the Arbitrator. They accept that the language of article 84 of the collective agreement is clear and that it is therefore not appropriate, in the absence of any ambiguity, to have reference to past practice for the purposes of interpreting that provision. In the result, the case rests entirely on the Union’s claim of estoppel. The Union maintains that there was an agreement between Mr. Beatty and Mr. Becker, that that agreement, made in the context of the Coffey grievance, was to the effect that the Union would not be held to the strict application of the time limits for filing to arbitration contained in article 84.4, and that grievances could be filed to arbitration according to the Union’s own discretion. Counsel for the Union submits that that was the state of the understanding when the parties returned to negotiations for the renewal of their collective agreement in February of 2007, and that there was no indication from the Company that it wished to return to the strict application of article 84. On that basis, Counsel argues, the estoppel which the Union raises against the Company continues to the present time. In its alternative argument, the Union maintains that in any event the Arbitrator retains a discretion to extend the time limits in relation to any grievance under the terms of the Canada Labour Code (CROA & DR 3493) and that at a minimum this award should affirm that that discretion is exercised as regards all of the grievances outstanding prior to February 10, 2007.
The Company’s representatives deny that there was ever any understanding, agreement or practice whereby the Union was given to understand that it had entire discretion with respect to the timeliness of filing any grievance to arbitration, and that the provisions of article 84.4 of the collective agreement would not be invoked or enforced. The Company’s recital over the facts in relation to this dispute commences in late 2003, when two complaints were filed with the CIRB by the Union alleging, in part, that the Company was failing to respond to grievances. It appears that the Company’s response to the Board was that the majority of the claims which were the subject of the complaint, dating from September 2002 to October 2003, had never been received by the Company. The Company relates that shortly thereafter large numbers of grievances were filed from Mr. Beatty’s office. The Company reviewed the grievances and took the position that they were untimely.
In a letter dated March 1, 2004, apparently in response to a letter from the Company dated February 25, 2004 concerning a possible extension of time limits, Mr. Beatty expressed that in light of the volume of grievances it was being forced to handle, the Union did not consider the time limits to be mandatory. His letter added: “In spite of the above, the Union will, without prejudice, when requesting time limit extensions provide specifics as to the duration of such requested extension.” On March 9, 2004 Mr. Van Cauwenbergh wrote to Mr. Beatty, and to Mr. Raymond Lebel of the Union, indicating administrative changes in the handling of the second step of the grievance procedure and, in addition, reiterating: “All grievances filed in writing will be governed under the provisions found under the Grievance Procedure, as directed by Article 84 of the 4.16 Agreement and Article 32 of the 4.2 Agreement.” To the same effect, in a later letter dated March 11, 2004 Mr. Van Cauwenbergh wrote:
The time limits, as prescribed by Article 84 of the 4.16 Agreement and Article 32 of the 4.2 Agreement, are mandatory, and in the absence of a clear and mutual agreement to an extension, are to be respected. Grievances not filed on a timely basis shall continue to be administered as provided in Paragraph 84.5 of Article 84 of the 4.16 Agreement and Paragraph 32.4 of Article 32 of the 4.2 Agreement.
In closing the Company will continue to decline any grievance that is not submitted on a timely basis as prescribed by Article 84 of the 4.16 Agreement and Article 32 of the 4.2 Agreement. In respect to requests for extensions, the Company will consider request for extensions, as long as such request contains the duration of the requested extension and that the request was received within the prescribed time limits. Please refer to my letter dated February 25, 2004.
By letter dated April 28, 2004 Mr. Beatty advised the Company that he was processing some 112 specified grievances to arbitration. Noting that the Company had provided the Union with declinations in respect of each of those grievances by communication dated April 19, 2004, he went on to state:
As you are aware, the Union requested an unlimited time extension given the voluminous and unprecedented amount of grievances received. The Union acknowledges that the Company did not grant this request. You are further aware that the Union subsequently advised the Company that it would nevertheless, advance all grievances to Arbitration.
In doing so, the Union advised the Company that it would request that the Arbitrator exercise his authority under the Code to resolve such disputes in spite of any Company argument relating to time limit restrictions. The Union maintains this position. Specifically, although we acknowledge your referenced correspondence, unless you
TIME LIMITS AWARD - PART 3
are otherwise notified by the Union, we will proceed to Arbitration on all of the above referenced matters.
It should also be noted that these matters are, in part, the subject of a complaint presently before the Canada Industrial Relations Board. To this extent, we will advise our Counsel of these latest developments. The Union reserves its rights to refer to these latest developments during the scheduled hearing before the CIRB.
It is in the foregoing context that the Union then advised the Company that it was forwarding the Coffey matter to arbitration, prompting the Company’s position that the Coffey grievance was untimely. In a letter dated December 6, 2004 Mr. Beatty replied to Company Vice President K. Creel, in part:
The Union, in addition to the above, will argue that the Company is “estopped” from changing the accepted practice (and interpretation of Article 84.4) with respect to the manner in which the Union progresses its grievances to Arbitration. The Union submits that any Company change to the accepted application of such progression will (and does) create a detrimental affect to the Union and its membership.
As noted above, the Coffey matter settled at the offices of the CROA & DR on January 11, 2005. The position of the Company is that it simply withdrew its objection to timeliness in that case, without prejudice. When Mr. Beatty wrote his letter of January 17, 2005 asserting a general understanding with respect to the waiver of article 84.4 of the collective agreement although the Company did not respond, it submits that it did not agree and that it continued, in any event, to decline grievances in violation of time limits under article 84.
The Company notes that the issue of progressing matters and requesting time limits is again reflected in correspondence from Mr. Beatty in 2006. On January 27, 2006 Mr. Beatty wrote to Mr. Krawec concerning the matter of a substantial list of grievances settled at a joint conference in London, Ontario on December 10, 2005. That letter reads as follows:
Please find attached a voluminous list of grievances which were settled at the recent Joint Conference on December 10th, in London. As you are aware the decision of our Office in these matters may be individually appealed through an internal appeal process contained within the UTU Constitution. Should such an appeal be successful our Office may be directed to proceed to Arbitration.
It is with the above in mind that we request that time limits be extended in these matters until all appeals (if initiated) have been exhausted. It is our view that such a request is reasonable and consistent with the Collective Agreement and in line with the intent and purpose of the Canada Labour Code.
If you are in agreement with the above (extension of time limits) please sing in the place provided and return to our Office.
With respect, should you disagree with our request, by notification or by not signing, we will proceed on the premise that such refusal is unreasonable. In this regard, should an appeal of our decision be successful we will deal with such matters (time limits) should they give rise to any future preliminary objection.
In closing, and with respect, we fully understand the difficult situation this creates for the Company (keeping files open). Although we are bound by the above noted process we stand by our decision in the resolution of these grievances. In the event an appeal is progressed we assure you that we will aggressively advocate our position of settlement as expressed to you at our Joint Conference.
By letter dated January 30, 2006 Mr. Creel responded to Mr. Beatty that the Company could not accept his suggestion stating, in part: “To agree to your request would render settlement discussions/conferences virtually useless and files would remain ‘open’ or result in every case going to arbitration in order to seek finality.”
The Company further notes that during the course of bargaining in the contract negotiations in the fall of 2006 the Union made a number of demands, including the proposal to “reaffirm there are no time limits at step 3 for progression”. The Company did not agree and the Union proceeded to exercise its right to strike. In the settlement following the strike no change was made to the language of article 84. Some time later, by way of letter dated April 25, 2008 addressed to General Chairperson Guy Ethier, Mr. Van Cauwenbergh proposed the general issue of time limits in article 84, upon which the parties were clearly not in agreement, could be addressed in an ad hoc arbitration. The Union agreed and this hearing ensued.
The Company argues that the facts simply do not support the Union’s assertion of an estoppel. With respect to the merits of the dispute, it argues that to allow the Union to indefinitely extend time limits by its own discretion, advancing matters to arbitration as it sees fit, is tantamount to placing a “Sword of Damocles” over the Employer’s head. It argues that the Company would be placed in a position of perpetual uncertainty and preparation, unable to administer its collective bargaining affairs in a rational way. Its representatives submit that the sequence of correspondence reviewed above confirms that at all times the Company held to the general position that the time limits in article 84 of the collective agreement are mandatory, indicating that it was prepared to extend the time limits by agreement, subject to such extensions being for a clear period to a date certain.
While the Company acknowledges that no answer was given to Mr. Beatty’s letter which asserted, in the settlement of the Coffey grievance, that a general agreement with respect to the waiver of article 84 time limits for filing to arbitration had been reached, it maintains that the Union was advised otherwise. As reflected in the evidence of Mr. Becker at the hearing, in the negotiations for the renewal of the collective agreement Mr. Becker was dealing with Mr. John Armstrong, then UTU Vice President and chief spokesperson at the bargaining table. He recalls that he expressed to Mr. Armstrong that the Company was not agreeing to a general waiver of the time limits for filing to arbitration found within article 84.4 of the collective agreement.
With respect to the mandatory nature of the time limits, the Company refers the Arbitrator to prior jurisprudence of the CROA including CROA 1233, 1056, 1356 and 1900. The Company also cites CROA 1929 for the proposition that a practice or understanding must be demonstrated on the evidence to be mutual, and “not a unilateral thought of only one party”.
I turn to consider the merits of this dispute. The Arbitrator must confess to considerable difficulty in understanding and accepting the argument of the Union that it has an unfettered discretion with respect to the timing during which any grievance may be filed to arbitration, notwithstanding the language of article 84.4 of the collective agreement. The Arbitrator readily appreciates that there may have been some great frustration experienced by the Union, particularly during that period of time during which it would appear many grievances simply were not responded to by the Company. Obviously, in that situation, absent any final determination in writing from the Vice President, as contemplated within article 84 of the collective agreement, the Union would be at liberty to advance the grievance to arbitration at such time as it might deem appropriate. Its right to do that, however, does not flow from any mutual understanding with respect to a waiver of the provisions of article 84. Rather, it flows from the express provisions of the Note to article 84.4 and the language of article 84.5.
How can the Arbitrator conclude that there was a mutual understanding between the parties with respect to the Union’s right to file grievances to arbitration at its discretion, in disregard of the 60 day time limit found in article 84.4, when there is not a jot of mutual written evidence to support the Union’s position? While it is obviously true that an estoppel can rest upon statements and verbal evidence, in the instant case the assertion of Mr. Beatty with respect to the purported understanding made at the time of the Coffey settlement is in fact denied by the evidence of Mr. Becker, evidence which the Arbitrator considers to be fairly and honestly given.
Reverting to first principles, it is important to recall that the Canada Labour Code, section 3(1), defines “collective agreement” as “…an agreement in writing entered into between an employer and a bargaining agent containing provisions respecting terms and conditions of employment and related matters”; the requirement of a written understanding is the most basic element of proof of a collective agreement. As a general rule, an agreement in writing is signed or executed by both parties who agree. It is not to be inferred from the self-serving written declaration of only one party, absent compelling and extraordinary evidence to support such an unusual conclusion.
The position which the Union argues in the case at hand is fraught with risk for all parties to collective bargaining. Suppose, for example, that a Company officer were to write the Union’s General Chairperson, asserting his personal, albeit erroneous, belief that the author of the letter and the General Chairperson had agreed that henceforth wages would be reduced by 10 percent and hours of work increased by 20 percent. For whatever reason, the Union does not reply to the letter sent by the manager. Can it seriously be argued that the failure to respond to such a self-serving letter would give rise to an estoppel so that the Company could effectively implement a reduction in wages and an increase in working hours? That is simply not the basis upon which collective bargaining and collective agreements are made and enforced in Canada. Parties to collective agreements are not to be placed at peril of having their collective agreement amended should they fail to respond to self-serving declarations or interpretations communicated to them by the other side. The doctrine of estoppel was never intended to extend so far.
What does the evidence in the instant case disclose? As reviewed above, notwithstanding the written position asserted by Mr. Beatty with respect to the settlement made in the Coffey grievance, there is an extensive line of correspondence from Company representatives stating and restating that in the Company’s view the provisions of time limits for filing to arbitration found in article 84.4 of the collective agreement are mandatory, and can be departed from only by an agreed extension of time limits. There is, with respect, no compelling evidence of any contrary mutual understanding between the parties or of any contrary representation by Mr. Becker.
What the Union asserts in the case at hand is a significant amendment of the collective agreement. Is a board of arbitration to conclude that so important an event, apparently made in the anteroom of the CROA in settlement of the Coffey dispute, was left to a verbal exchange and a handshake? Is a board of arbitration to conclude that the Company surrendered its ability to know with some precision the status of any given grievance, and in the ongoing scope of its arbitration liability, not to mention the managing of its ongoing files, for nothing in exchange and without reducing the understanding to writing? I think not. I also consider it implausible that the parties would have agreed to such an arrangement, and yet upon the renewal of their collective agreement in 2007 made no adjustment whatsoever in the mandatory time limits language of article 84.4 of the collective agreement. It is highly doubtful that the parties would have intended to effectively conceal their true agreement from the managers and Union officers responsible for its administration or the employees whose critical rights depend on the language of their collective agreement. I am satisfied that there was no understanding, no representation and that no estoppel can be said to operate. On that basis the position of the Union cannot be sustained.
What of the alternative position of the Union? Section 60(1.1) of the Canada Labour Code, Part 1 grants to an arbitrator the discretion to extend the time limits in relation to the grievance and arbitration procedure established within a collective agreement, “…if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension”.
In light of the statutory language reproduced above, the Arbitrator is not persuaded that it would be appropriate to grant a blanket time extension for a substantial number of grievances in relation to which there have been no representations or submissions made as to the issue of reasonableness or possible prejudice to the Company. It may well be that in light of the disputes between the parties over recent years, including the complaint to the CIRB, the two elements of section 60(1.1) of the Canada Labour Code, Part 1 may be made out, on a case to case basis. However, in the Arbitrator’s view the section is to be applied in specific reference to an individual grievance which is before the Arbitrator for a determination. In my view it is highly doubtful that an arbitrator could, in any event, give a blanket extension of time limits for a large number of grievances in relation to which the specific facts and equities are not known. Therefore, with respect to this branch of the Union’s argument, the Arbitrator simply declares that nothing in this Award derogates from the right of the Union to request that the Arbitrator exercise his discretion in relation to the extension of time limits if and when the individual grievances are advanced to hearing. Conversely, the rights of the Company to argue that the Arbitrator’s discretion should not be exercised remain intact, again to be argued on a case by case basis, having regard to the facts and equities of each specific grievance. Simply put, each grievance is entitled to be assessed on the standards of reasonableness and possible prejudice to the other party, as contemplated within the Code, on a case by case basis.
For all of the foregoing reasons, the grievance must be dismissed.
Dated at Ottawa this 29th day of July, 2008.
_______________________________
Michel G. Picher
Aribtrator
It should also be noted that these matters are, in part, the subject of a complaint presently before the Canada Industrial Relations Board. To this extent, we will advise our Counsel of these latest developments. The Union reserves its rights to refer to these latest developments during the scheduled hearing before the CIRB.
It is in the foregoing context that the Union then advised the Company that it was forwarding the Coffey matter to arbitration, prompting the Company’s position that the Coffey grievance was untimely. In a letter dated December 6, 2004 Mr. Beatty replied to Company Vice President K. Creel, in part:
The Union, in addition to the above, will argue that the Company is “estopped” from changing the accepted practice (and interpretation of Article 84.4) with respect to the manner in which the Union progresses its grievances to Arbitration. The Union submits that any Company change to the accepted application of such progression will (and does) create a detrimental affect to the Union and its membership.
As noted above, the Coffey matter settled at the offices of the CROA & DR on January 11, 2005. The position of the Company is that it simply withdrew its objection to timeliness in that case, without prejudice. When Mr. Beatty wrote his letter of January 17, 2005 asserting a general understanding with respect to the waiver of article 84.4 of the collective agreement although the Company did not respond, it submits that it did not agree and that it continued, in any event, to decline grievances in violation of time limits under article 84.
The Company notes that the issue of progressing matters and requesting time limits is again reflected in correspondence from Mr. Beatty in 2006. On January 27, 2006 Mr. Beatty wrote to Mr. Krawec concerning the matter of a substantial list of grievances settled at a joint conference in London, Ontario on December 10, 2005. That letter reads as follows:
Please find attached a voluminous list of grievances which were settled at the recent Joint Conference on December 10th, in London. As you are aware the decision of our Office in these matters may be individually appealed through an internal appeal process contained within the UTU Constitution. Should such an appeal be successful our Office may be directed to proceed to Arbitration.
It is with the above in mind that we request that time limits be extended in these matters until all appeals (if initiated) have been exhausted. It is our view that such a request is reasonable and consistent with the Collective Agreement and in line with the intent and purpose of the Canada Labour Code.
If you are in agreement with the above (extension of time limits) please sing in the place provided and return to our Office.
With respect, should you disagree with our request, by notification or by not signing, we will proceed on the premise that such refusal is unreasonable. In this regard, should an appeal of our decision be successful we will deal with such matters (time limits) should they give rise to any future preliminary objection.
In closing, and with respect, we fully understand the difficult situation this creates for the Company (keeping files open). Although we are bound by the above noted process we stand by our decision in the resolution of these grievances. In the event an appeal is progressed we assure you that we will aggressively advocate our position of settlement as expressed to you at our Joint Conference.
By letter dated January 30, 2006 Mr. Creel responded to Mr. Beatty that the Company could not accept his suggestion stating, in part: “To agree to your request would render settlement discussions/conferences virtually useless and files would remain ‘open’ or result in every case going to arbitration in order to seek finality.”
The Company further notes that during the course of bargaining in the contract negotiations in the fall of 2006 the Union made a number of demands, including the proposal to “reaffirm there are no time limits at step 3 for progression”. The Company did not agree and the Union proceeded to exercise its right to strike. In the settlement following the strike no change was made to the language of article 84. Some time later, by way of letter dated April 25, 2008 addressed to General Chairperson Guy Ethier, Mr. Van Cauwenbergh proposed the general issue of time limits in article 84, upon which the parties were clearly not in agreement, could be addressed in an ad hoc arbitration. The Union agreed and this hearing ensued.
The Company argues that the facts simply do not support the Union’s assertion of an estoppel. With respect to the merits of the dispute, it argues that to allow the Union to indefinitely extend time limits by its own discretion, advancing matters to arbitration as it sees fit, is tantamount to placing a “Sword of Damocles” over the Employer’s head. It argues that the Company would be placed in a position of perpetual uncertainty and preparation, unable to administer its collective bargaining affairs in a rational way. Its representatives submit that the sequence of correspondence reviewed above confirms that at all times the Company held to the general position that the time limits in article 84 of the collective agreement are mandatory, indicating that it was prepared to extend the time limits by agreement, subject to such extensions being for a clear period to a date certain.
While the Company acknowledges that no answer was given to Mr. Beatty’s letter which asserted, in the settlement of the Coffey grievance, that a general agreement with respect to the waiver of article 84 time limits for filing to arbitration had been reached, it maintains that the Union was advised otherwise. As reflected in the evidence of Mr. Becker at the hearing, in the negotiations for the renewal of the collective agreement Mr. Becker was dealing with Mr. John Armstrong, then UTU Vice President and chief spokesperson at the bargaining table. He recalls that he expressed to Mr. Armstrong that the Company was not agreeing to a general waiver of the time limits for filing to arbitration found within article 84.4 of the collective agreement.
With respect to the mandatory nature of the time limits, the Company refers the Arbitrator to prior jurisprudence of the CROA including CROA 1233, 1056, 1356 and 1900. The Company also cites CROA 1929 for the proposition that a practice or understanding must be demonstrated on the evidence to be mutual, and “not a unilateral thought of only one party”.
I turn to consider the merits of this dispute. The Arbitrator must confess to considerable difficulty in understanding and accepting the argument of the Union that it has an unfettered discretion with respect to the timing during which any grievance may be filed to arbitration, notwithstanding the language of article 84.4 of the collective agreement. The Arbitrator readily appreciates that there may have been some great frustration experienced by the Union, particularly during that period of time during which it would appear many grievances simply were not responded to by the Company. Obviously, in that situation, absent any final determination in writing from the Vice President, as contemplated within article 84 of the collective agreement, the Union would be at liberty to advance the grievance to arbitration at such time as it might deem appropriate. Its right to do that, however, does not flow from any mutual understanding with respect to a waiver of the provisions of article 84. Rather, it flows from the express provisions of the Note to article 84.4 and the language of article 84.5.
How can the Arbitrator conclude that there was a mutual understanding between the parties with respect to the Union’s right to file grievances to arbitration at its discretion, in disregard of the 60 day time limit found in article 84.4, when there is not a jot of mutual written evidence to support the Union’s position? While it is obviously true that an estoppel can rest upon statements and verbal evidence, in the instant case the assertion of Mr. Beatty with respect to the purported understanding made at the time of the Coffey settlement is in fact denied by the evidence of Mr. Becker, evidence which the Arbitrator considers to be fairly and honestly given.
Reverting to first principles, it is important to recall that the Canada Labour Code, section 3(1), defines “collective agreement” as “…an agreement in writing entered into between an employer and a bargaining agent containing provisions respecting terms and conditions of employment and related matters”; the requirement of a written understanding is the most basic element of proof of a collective agreement. As a general rule, an agreement in writing is signed or executed by both parties who agree. It is not to be inferred from the self-serving written declaration of only one party, absent compelling and extraordinary evidence to support such an unusual conclusion.
The position which the Union argues in the case at hand is fraught with risk for all parties to collective bargaining. Suppose, for example, that a Company officer were to write the Union’s General Chairperson, asserting his personal, albeit erroneous, belief that the author of the letter and the General Chairperson had agreed that henceforth wages would be reduced by 10 percent and hours of work increased by 20 percent. For whatever reason, the Union does not reply to the letter sent by the manager. Can it seriously be argued that the failure to respond to such a self-serving letter would give rise to an estoppel so that the Company could effectively implement a reduction in wages and an increase in working hours? That is simply not the basis upon which collective bargaining and collective agreements are made and enforced in Canada. Parties to collective agreements are not to be placed at peril of having their collective agreement amended should they fail to respond to self-serving declarations or interpretations communicated to them by the other side. The doctrine of estoppel was never intended to extend so far.
What does the evidence in the instant case disclose? As reviewed above, notwithstanding the written position asserted by Mr. Beatty with respect to the settlement made in the Coffey grievance, there is an extensive line of correspondence from Company representatives stating and restating that in the Company’s view the provisions of time limits for filing to arbitration found in article 84.4 of the collective agreement are mandatory, and can be departed from only by an agreed extension of time limits. There is, with respect, no compelling evidence of any contrary mutual understanding between the parties or of any contrary representation by Mr. Becker.
What the Union asserts in the case at hand is a significant amendment of the collective agreement. Is a board of arbitration to conclude that so important an event, apparently made in the anteroom of the CROA in settlement of the Coffey dispute, was left to a verbal exchange and a handshake? Is a board of arbitration to conclude that the Company surrendered its ability to know with some precision the status of any given grievance, and in the ongoing scope of its arbitration liability, not to mention the managing of its ongoing files, for nothing in exchange and without reducing the understanding to writing? I think not. I also consider it implausible that the parties would have agreed to such an arrangement, and yet upon the renewal of their collective agreement in 2007 made no adjustment whatsoever in the mandatory time limits language of article 84.4 of the collective agreement. It is highly doubtful that the parties would have intended to effectively conceal their true agreement from the managers and Union officers responsible for its administration or the employees whose critical rights depend on the language of their collective agreement. I am satisfied that there was no understanding, no representation and that no estoppel can be said to operate. On that basis the position of the Union cannot be sustained.
What of the alternative position of the Union? Section 60(1.1) of the Canada Labour Code, Part 1 grants to an arbitrator the discretion to extend the time limits in relation to the grievance and arbitration procedure established within a collective agreement, “…if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension”.
In light of the statutory language reproduced above, the Arbitrator is not persuaded that it would be appropriate to grant a blanket time extension for a substantial number of grievances in relation to which there have been no representations or submissions made as to the issue of reasonableness or possible prejudice to the Company. It may well be that in light of the disputes between the parties over recent years, including the complaint to the CIRB, the two elements of section 60(1.1) of the Canada Labour Code, Part 1 may be made out, on a case to case basis. However, in the Arbitrator’s view the section is to be applied in specific reference to an individual grievance which is before the Arbitrator for a determination. In my view it is highly doubtful that an arbitrator could, in any event, give a blanket extension of time limits for a large number of grievances in relation to which the specific facts and equities are not known. Therefore, with respect to this branch of the Union’s argument, the Arbitrator simply declares that nothing in this Award derogates from the right of the Union to request that the Arbitrator exercise his discretion in relation to the extension of time limits if and when the individual grievances are advanced to hearing. Conversely, the rights of the Company to argue that the Arbitrator’s discretion should not be exercised remain intact, again to be argued on a case by case basis, having regard to the facts and equities of each specific grievance. Simply put, each grievance is entitled to be assessed on the standards of reasonableness and possible prejudice to the other party, as contemplated within the Code, on a case by case basis.
For all of the foregoing reasons, the grievance must be dismissed.
Dated at Ottawa this 29th day of July, 2008.
_______________________________
Michel G. Picher
Aribtrator
RECENT ARBITRATION AWARDS
I have just received two arbitration awards;
1. Preliminary issues regarding the CN Pension "dispute" and,
2. Issue of time limits - GO-105.
I am presently reviewing both cases for purposes of posting. I expect to have this completed today or early tomorrow.
Keep posted.
Rex Beatty
1. Preliminary issues regarding the CN Pension "dispute" and,
2. Issue of time limits - GO-105.
I am presently reviewing both cases for purposes of posting. I expect to have this completed today or early tomorrow.
Keep posted.
Rex Beatty
Wednesday, July 30, 2008
URGENT NOTICE - GO TRANSIT MATERIAL CHANGE
The following notice is issued by the Office of the General Chairperson UTU GO-105) to all employees regarding the GO Transit Service in Toronto as it relates to CN Rail's material change notice and, more specifically, RECENT NOTICES ISSUED BY CN RAIL
THIS IS AN URGENT MESSAGE AND SHOULD BE CAREFULLY READ
________________________________________________
URGENT
**** MESSAGE FROM THE UTU - GO-105 RE: GO TRAIN MATERAIL CHANGE****
The following is in response to CN notice No. 08-080 dated July 24th, 2008 (and related material e.g. CN notice 08-082).
Please be advised;
THERE IS NO AGREEMENT BETWEEN THE UTU AND CN RAIL OR ANY OTHER THIRD PARTY (BOMBARDIER) WITH RESPECT TO CONTINUED EMPLOYMENT AT GO TRANSIT IN THE APPLICATION OF THE MATERIAL CHANGE NOTICE
Although the Union reserves any and all its rights to challenge any unilateral interference by the Company in the Union's representation of its membership we advise of the following;
It is the position of the Union that the referenced notice of CN Rail and the contained representations are both improper in terms of collective agreement compliance and the Canada Labour Code.
It is the position of the Union that the Company cannot unilaterally engage in negotiations with the Union's members or detract from any applicable provision of the collective agreement without the expressed written consent of the Union.
In spite of the above every member that proceeds to sever their employment with CN Rail, absent the proper resolution of the material change notice, will loose all rights, privileges and protections as they relate to the legal relationship between CN and the Union including but not limited to;
Seniority at CN
Grievance Procedure (Article 84)
Discipline process (Article 82)
Material Change Provisions (adverse affects)
Wage protection
Benefits protection
Relocation protection Laid -off protections
Pensions
Although the above referenced bulletin by CN implies that certain identified protections presently guaranteed by way of Union membership will remain SUCH IS NOT THE CASE.
It is the position of the Union that any continuation of employment at GO service must be consistent with existing agreements, benefits and protections as guaranteed by the Code and the existing Collective Agreements. Further, any adverse affects of such continued employment resulting from a material change notice must be addressed by way of Article 79 (e.g. wage protections, relocation benefits, severance packages etc.).
AT PRESENT THERE ARE NO AGREEMENTS WITH THE UNION TO ADDRESS ADVERSE AFFECTS WITH RESPECT TO GO TRANSIT. (u-001 - July 30/08)
THIS IS AN URGENT MESSAGE AND SHOULD BE CAREFULLY READ
________________________________________________
URGENT
**** MESSAGE FROM THE UTU - GO-105 RE: GO TRAIN MATERAIL CHANGE****
The following is in response to CN notice No. 08-080 dated July 24th, 2008 (and related material e.g. CN notice 08-082).
Please be advised;
THERE IS NO AGREEMENT BETWEEN THE UTU AND CN RAIL OR ANY OTHER THIRD PARTY (BOMBARDIER) WITH RESPECT TO CONTINUED EMPLOYMENT AT GO TRANSIT IN THE APPLICATION OF THE MATERIAL CHANGE NOTICE
Although the Union reserves any and all its rights to challenge any unilateral interference by the Company in the Union's representation of its membership we advise of the following;
It is the position of the Union that the referenced notice of CN Rail and the contained representations are both improper in terms of collective agreement compliance and the Canada Labour Code.
It is the position of the Union that the Company cannot unilaterally engage in negotiations with the Union's members or detract from any applicable provision of the collective agreement without the expressed written consent of the Union.
In spite of the above every member that proceeds to sever their employment with CN Rail, absent the proper resolution of the material change notice, will loose all rights, privileges and protections as they relate to the legal relationship between CN and the Union including but not limited to;
Seniority at CN
Grievance Procedure (Article 84)
Discipline process (Article 82)
Material Change Provisions (adverse affects)
Wage protection
Benefits protection
Relocation protection Laid -off protections
Pensions
Although the above referenced bulletin by CN implies that certain identified protections presently guaranteed by way of Union membership will remain SUCH IS NOT THE CASE.
It is the position of the Union that any continuation of employment at GO service must be consistent with existing agreements, benefits and protections as guaranteed by the Code and the existing Collective Agreements. Further, any adverse affects of such continued employment resulting from a material change notice must be addressed by way of Article 79 (e.g. wage protections, relocation benefits, severance packages etc.).
AT PRESENT THERE ARE NO AGREEMENTS WITH THE UNION TO ADDRESS ADVERSE AFFECTS WITH RESPECT TO GO TRANSIT. (u-001 - July 30/08)
Wednesday, July 23, 2008
GO TRAINS - MATERIAL CHANGE
While in Toronto last week I committed to posting material relating to CN's "GO Train material change notice". As such please find attached the latest letter sent to CN Rail;
______________________________________________
July 22, 2008
Our File: MC000-08-001
Mr. M. CORY
Senior VP - Eastern Canada
Canadian National Railway
1 Administration Road
Concord, ON L4K 1B9
Attention: R. Bowden By Fax Only - Mr. R. Bowden
Re: Material Change - Article 79 of Agreement 4.16 – Elimination of GO Service
Dear Sir:
The following is in regards to our meetings and discussions with respect to the above referenced matter.
In consideration that the new date of implementation of the material change is fast approaching (August 1, 2008) it is imperative that we complete the required negotiations as contemplated by the 4.16 Collective Agreement. It is imperative that we resolve the many issues relating such implementation or, at the least, identify the areas of dispute (this for purposes of timely third party resolution).
Although the Company has not provided specific detail as to the impact on our membership (e.g. layoffs, relocations etc.), it has become quite apparent to the Union that the implementation of the Company’s material change is going to result in significant adverse effects to our members.
As you know, from the discussions to date, it is the Union’s position that the material change will result in a surplus of running trade employees, not only in the Greater Toronto Area (GTA) but, potentially, throughout the seniority district. It is the Union’s continued position that the surplus of employees may, among other things, result in junior employees being either cut-off and/or laid-off from CN Rail.
In order to minimize the significant adverse effects on the employees the Union requests, among other things, that the following measures be negotiated and settled prior to the new implementation date of August 1, 2008;
Early retirement separation allowances
Optional lump sum severance payments
Maintenance of earnings
Relocation expenses
Familiarization / learning the road
In addition to the above it is also imperative that we negotiate meaningful employment (or mutually acceptable alternatives) for our medically restricted employees prior to implementation.
Further, understanding that these significant adverse effects may not be limited to the Greater Toronto Area (GTA), to negotiate and settle the measures that will flow to each terminal and affected employees.
Although the Company has revised the proposed implementation date of the material change (accepted by the Union without prejudice) it now appears that such implementation will in fact take place on August 1st, 2008. Given such, in consideration of the tight time lines in which to complete these negotiations, this office will make itself available to meet at your earliest opportunity to address the above referenced matters and concerns.
With respect, your prompt response to the foregoing, with your availability dates, would be greatly appreciated.
Yours truly,
G. J. ETHIER
General Chairperson UTU
cc: Glenn Gower (e/m)
Paul Vickers (e/m)
Local Chairpersons -CN - GO-105 (e/m)
______________________________________________
July 22, 2008
Our File: MC000-08-001
Mr. M. CORY
Senior VP - Eastern Canada
Canadian National Railway
1 Administration Road
Concord, ON L4K 1B9
Attention: R. Bowden By Fax Only - Mr. R. Bowden
Re: Material Change - Article 79 of Agreement 4.16 – Elimination of GO Service
Dear Sir:
The following is in regards to our meetings and discussions with respect to the above referenced matter.
In consideration that the new date of implementation of the material change is fast approaching (August 1, 2008) it is imperative that we complete the required negotiations as contemplated by the 4.16 Collective Agreement. It is imperative that we resolve the many issues relating such implementation or, at the least, identify the areas of dispute (this for purposes of timely third party resolution).
Although the Company has not provided specific detail as to the impact on our membership (e.g. layoffs, relocations etc.), it has become quite apparent to the Union that the implementation of the Company’s material change is going to result in significant adverse effects to our members.
As you know, from the discussions to date, it is the Union’s position that the material change will result in a surplus of running trade employees, not only in the Greater Toronto Area (GTA) but, potentially, throughout the seniority district. It is the Union’s continued position that the surplus of employees may, among other things, result in junior employees being either cut-off and/or laid-off from CN Rail.
In order to minimize the significant adverse effects on the employees the Union requests, among other things, that the following measures be negotiated and settled prior to the new implementation date of August 1, 2008;
Early retirement separation allowances
Optional lump sum severance payments
Maintenance of earnings
Relocation expenses
Familiarization / learning the road
In addition to the above it is also imperative that we negotiate meaningful employment (or mutually acceptable alternatives) for our medically restricted employees prior to implementation.
Further, understanding that these significant adverse effects may not be limited to the Greater Toronto Area (GTA), to negotiate and settle the measures that will flow to each terminal and affected employees.
Although the Company has revised the proposed implementation date of the material change (accepted by the Union without prejudice) it now appears that such implementation will in fact take place on August 1st, 2008. Given such, in consideration of the tight time lines in which to complete these negotiations, this office will make itself available to meet at your earliest opportunity to address the above referenced matters and concerns.
With respect, your prompt response to the foregoing, with your availability dates, would be greatly appreciated.
Yours truly,
G. J. ETHIER
General Chairperson UTU
cc: Glenn Gower (e/m)
Paul Vickers (e/m)
Local Chairpersons -CN - GO-105 (e/m)
Monday, July 21, 2008
UTU PRESIDENT'S POSITION NOT SUSTAINED
Very recently Robert Thompson, UTU General Chairperson in Western Canada (GO-129), appointed former General Chairperson, Bryan Boechler, as his nominee on the "Method of Pay Committee".
CN Rail, however, argued that Mr. Boechler could not be appointed as he was not a member of the Union. Mr. Brian Shell, Legal Counsel for the UTU International President, M. Futhey, sided with CN Rail (again) arguing that the UTU President has ruled that General Chairperson Thompson does not have the authority to appoint a non-union member to the method of pay committee.
Robert Thompson grieved the position of the Company and the International President, requesting an interim order that;
"Mr. Brian (sic) Boechler be appointed as his nominee to the Regional Implementation/Review Committee, over the objection of the President of the UTU International in Cleveland, Ohio."
On July 21st, 2008, Arbitrator M. Picher issued his Interim Award.
I encourage everyone to read this award and note, in particular, the reference and remarkes related to Article 85 of the UTU Constitution.
INTERIM AWARD:
CANADIAN OFFICE OF RAILWAY ARBITRATION AND DISPUTE RESOLUTION
In the matter of an arbitration interim order
Between
Canadian National Railway
(‘the Company”)
And
United Transportation Union
(“the Union”)
Re Regional Implementation/Review Committee
CROA & DR Chief Arbitrator
Michel G. Picher
Appearing for Canadian National Railway:
André C. Giroux – Counsel
Douglas Van Cauwenbergh – Director Labour Relations
Appearing for UTU (GO – 129):
Michael Church - Counsel
Robert S. Thompson – General Chairperson
Appearing for UTU International:
Brian Shell – Counsel
A hearing in this matter was held by telephone conference call July 16, 2008
Interim Award
The General Chairperson for GO-129, situated in Edmonton, Alberta and responsible for Union business on the Company’s Western Lines, seeks interim relief. Specifically, he asks the Arbitrator to direct that Mr. Brian Boechler be appointed as his nominee to the Regional Implementation /Review Committee, over the objection of the President of the UTU International in Cleveland , Ohio.
The bargaining rights for the instant bargaining unit are presently under contest. A representation vote has been conducted in respect of a displacement application brought before the CIRB by the Teamsters Canada Rail Council (TCRC). The results of the vote are soon to be counted. At present, the bargaining rights remain with the UTU International.
The conflict in relation to the TCRC application has resulted in former General Chairman for Western Canada, Brian Boechler, being suspended from Union membership by a resolution of the Board of Directors of the UTU International on February 19, 2007. He continues to be employed as a conductor/trainperson in the bargaining unit.
The Implementation/Review Committee, also referred to as the Method of Pay Review Committee, is charged with periodically reviewing the system of remuneration for bargaining unit employees in Western Canada. Originally scheduled to meet on July 14, 2008, the Committee, comprised of two Company representatives and two union representatives, one each from the TCRC (locomotive engineers) and UTU (conductors) is to make important decisions affecting the wages of employees across the system in Western Canada. The appointee of the UTU is determined by the General Chairperson, as reflected in the language of Addendum 70, clause 12(b) which provides, in part:
Regional Implementation/Review Committee (Temporary)
Consisting of:
· 1 appointee by each CCROU General
Chairman
· 2 Senior Company Officers
Mr. Rob Thompson, General Chairperson for the UTU, wishes to appoint former General Chairperson Brian Boechler as his appointee to the Method of Pay Committee. It is not disputed that Mr. Boechler has performed that function on many occasions in the past and is the person most familiar with the process and issues of the Committee. The UTU International President has advised the Company that Mr. Boechler cannot sit as an appointee of the UTU on the Committee. Based on that advice the Company is declining to meet with Mr. Boechler as the appointee of the General Chairman. Understandably, it does not wish to be placed in a position which could result in a complaint that it has interfered with the administration of a trade union and the representation of its employees by the Union.
No one disputes the urgency of his interim award. While the meeting of July 14th has been postponed by agreement, it is not disputed that the Committee must meet in advance of the next arbitration sittings of this Office, in September and preferably in the next week or two. As the Company’s representative explained, to have the Committee postpone its meeting to October would in all likelihood result in employees having their wages clawed back in a scenario that is problematic for the Company, the Union and the employees affected.
As reflected in the jurisprudence, the two questions to be addressed are whether there is a fair question to be arbitrated and if so, where does the balance of foreseeable damage or harm lie? (Alliant Telecom Inc. (2002), 103 L.A.C. (4th) 304 (Christie)).
There can be no doubt that a fair arbitrable issue is presented. Prima facie both the Constitution of the UTU and the collective agreement appear to vest in the General Chairperson the exclusive management of wage issues and an exclusive power of appointment to the Method of Pay Committee. The Constitution provides, in part:
General Committees of Adjustment shall have authority to make and interpret agreements with representatives of transportation companies covering rates of pay, rules , or working conditions - subject to membership ratification in accordance with the principles of this Article.
…
In the event a matter cannot be satisfactorily adjusted, the
General Chairperson may request the assistance of the
International President.
…
Any system or local adjustments agreed to by the International
President or by his/her representatives, shall be subject to a
majority vote of the local chairpersons affected.
As appears form the foregoing, it is much less than clear that the International President can simply trump the decision of a General Chairperson in matters of wage adjustments. It would appear that the International President cannot begin to act in such matters without the invitation of the General Chairperson to do so.
Under the Canada Labour Code, collective agreements are conceived as rational and binding documents intended to provide certainty in the day to day management of the terms and conditions of employment of the employees who are subject to an agreement. It would, for example, be highly counter-intuitive to conclude that an international union president could intervene to make an agreement with an employer for a reduction of wages or benefits, or an extension of working hours, notwithstanding the terms of a collective agreement.
The instant agreement expressly vests in the General Chairperson the authority to choose his or her appointee to the Method of Pay Committee. On its face the language would not appear to preclude the appointment of an accountant, a lawyer or of a consultant of the General Chairperson’s choosing, regardless of their membership status. While the merits of the issue have not been argued here, it would appear to the Arbitrator that there is a clear prima facie issue to be arbitrated.
What of the balance of foreseeable damage? Counsel for the International Union has presented no argument delineating any specific harm which could result to the International Union in the event Mr. Boechler is appointed. His involvement on the Committee cannot impact the bargaining rights application pending before the CIRB, as the representation vote has been taken and is “in the can”, soon to be counted. There has been no suggestion made that Mr. Boechler, who is a highly respected individual, would act in bad faith to undermine the interests of the General Chairperson or of the employees.
At most what emerges is the prospect, obviously unpalatable to the International President, that a person driven from UTU membership can be made a Committee appointee within the discretion of the General Chairperson. With respect, while that perspective may be understandable, it does not weigh heavily when the interests of the General Chairperson are compared. Additionally, the Company has made no argument that it would suffer harm should Mr. Boechler be appointed.
Nothing which the General Chairperson does is arguably more important than managing wage adjustments. The unchallenged representation which Mr. Thompson makes to this Office is that no one has the experience and skills of Mr. Boechler to do the complex and important work of representing him on the Method of Pay Committee. While counsel for the International Union questions why someone else could not be appointed, the Arbitrator has some difficulty with a position that questions the judgement and desires of the General Chairperson, particularly in light of the language of Addendum 70 of the collective agreement, which appears to make the appointment one which is to be made in the sole discretion and judgement of the General Chairperson.
With respect to the balance of foreseeable harm, to deny the interim relief sought would, it appears, place the wage protection of the employees in the hands of a lesser qualified individual than Mr. Boechler, a result fraught with greater risk both for the employees and their General Chairperson. I am satisfied that in these circumstances the risk of foreseeable harm compellingly favours the granting of the interim relief sought by Mr. Thompson.
The application for interim relief is therefore allowed. The Arbitrator directs the Company to accord forthwith to Mr. Boechler full and unqualified status as the appointee of the General Chairperson to the Regional Implementation/Review Committee.
Dated at Ottawa this 21st day of July, 2008
____________________________
Michel G. Picher
Arbitrator
CN Rail, however, argued that Mr. Boechler could not be appointed as he was not a member of the Union. Mr. Brian Shell, Legal Counsel for the UTU International President, M. Futhey, sided with CN Rail (again) arguing that the UTU President has ruled that General Chairperson Thompson does not have the authority to appoint a non-union member to the method of pay committee.
Robert Thompson grieved the position of the Company and the International President, requesting an interim order that;
"Mr. Brian (sic) Boechler be appointed as his nominee to the Regional Implementation/Review Committee, over the objection of the President of the UTU International in Cleveland, Ohio."
On July 21st, 2008, Arbitrator M. Picher issued his Interim Award.
I encourage everyone to read this award and note, in particular, the reference and remarkes related to Article 85 of the UTU Constitution.
INTERIM AWARD:
CANADIAN OFFICE OF RAILWAY ARBITRATION AND DISPUTE RESOLUTION
In the matter of an arbitration interim order
Between
Canadian National Railway
(‘the Company”)
And
United Transportation Union
(“the Union”)
Re Regional Implementation/Review Committee
CROA & DR Chief Arbitrator
Michel G. Picher
Appearing for Canadian National Railway:
André C. Giroux – Counsel
Douglas Van Cauwenbergh – Director Labour Relations
Appearing for UTU (GO – 129):
Michael Church - Counsel
Robert S. Thompson – General Chairperson
Appearing for UTU International:
Brian Shell – Counsel
A hearing in this matter was held by telephone conference call July 16, 2008
Interim Award
The General Chairperson for GO-129, situated in Edmonton, Alberta and responsible for Union business on the Company’s Western Lines, seeks interim relief. Specifically, he asks the Arbitrator to direct that Mr. Brian Boechler be appointed as his nominee to the Regional Implementation /Review Committee, over the objection of the President of the UTU International in Cleveland , Ohio.
The bargaining rights for the instant bargaining unit are presently under contest. A representation vote has been conducted in respect of a displacement application brought before the CIRB by the Teamsters Canada Rail Council (TCRC). The results of the vote are soon to be counted. At present, the bargaining rights remain with the UTU International.
The conflict in relation to the TCRC application has resulted in former General Chairman for Western Canada, Brian Boechler, being suspended from Union membership by a resolution of the Board of Directors of the UTU International on February 19, 2007. He continues to be employed as a conductor/trainperson in the bargaining unit.
The Implementation/Review Committee, also referred to as the Method of Pay Review Committee, is charged with periodically reviewing the system of remuneration for bargaining unit employees in Western Canada. Originally scheduled to meet on July 14, 2008, the Committee, comprised of two Company representatives and two union representatives, one each from the TCRC (locomotive engineers) and UTU (conductors) is to make important decisions affecting the wages of employees across the system in Western Canada. The appointee of the UTU is determined by the General Chairperson, as reflected in the language of Addendum 70, clause 12(b) which provides, in part:
Regional Implementation/Review Committee (Temporary)
Consisting of:
· 1 appointee by each CCROU General
Chairman
· 2 Senior Company Officers
Mr. Rob Thompson, General Chairperson for the UTU, wishes to appoint former General Chairperson Brian Boechler as his appointee to the Method of Pay Committee. It is not disputed that Mr. Boechler has performed that function on many occasions in the past and is the person most familiar with the process and issues of the Committee. The UTU International President has advised the Company that Mr. Boechler cannot sit as an appointee of the UTU on the Committee. Based on that advice the Company is declining to meet with Mr. Boechler as the appointee of the General Chairman. Understandably, it does not wish to be placed in a position which could result in a complaint that it has interfered with the administration of a trade union and the representation of its employees by the Union.
No one disputes the urgency of his interim award. While the meeting of July 14th has been postponed by agreement, it is not disputed that the Committee must meet in advance of the next arbitration sittings of this Office, in September and preferably in the next week or two. As the Company’s representative explained, to have the Committee postpone its meeting to October would in all likelihood result in employees having their wages clawed back in a scenario that is problematic for the Company, the Union and the employees affected.
As reflected in the jurisprudence, the two questions to be addressed are whether there is a fair question to be arbitrated and if so, where does the balance of foreseeable damage or harm lie? (Alliant Telecom Inc. (2002), 103 L.A.C. (4th) 304 (Christie)).
There can be no doubt that a fair arbitrable issue is presented. Prima facie both the Constitution of the UTU and the collective agreement appear to vest in the General Chairperson the exclusive management of wage issues and an exclusive power of appointment to the Method of Pay Committee. The Constitution provides, in part:
General Committees of Adjustment shall have authority to make and interpret agreements with representatives of transportation companies covering rates of pay, rules , or working conditions - subject to membership ratification in accordance with the principles of this Article.
…
In the event a matter cannot be satisfactorily adjusted, the
General Chairperson may request the assistance of the
International President.
…
Any system or local adjustments agreed to by the International
President or by his/her representatives, shall be subject to a
majority vote of the local chairpersons affected.
As appears form the foregoing, it is much less than clear that the International President can simply trump the decision of a General Chairperson in matters of wage adjustments. It would appear that the International President cannot begin to act in such matters without the invitation of the General Chairperson to do so.
Under the Canada Labour Code, collective agreements are conceived as rational and binding documents intended to provide certainty in the day to day management of the terms and conditions of employment of the employees who are subject to an agreement. It would, for example, be highly counter-intuitive to conclude that an international union president could intervene to make an agreement with an employer for a reduction of wages or benefits, or an extension of working hours, notwithstanding the terms of a collective agreement.
The instant agreement expressly vests in the General Chairperson the authority to choose his or her appointee to the Method of Pay Committee. On its face the language would not appear to preclude the appointment of an accountant, a lawyer or of a consultant of the General Chairperson’s choosing, regardless of their membership status. While the merits of the issue have not been argued here, it would appear to the Arbitrator that there is a clear prima facie issue to be arbitrated.
What of the balance of foreseeable damage? Counsel for the International Union has presented no argument delineating any specific harm which could result to the International Union in the event Mr. Boechler is appointed. His involvement on the Committee cannot impact the bargaining rights application pending before the CIRB, as the representation vote has been taken and is “in the can”, soon to be counted. There has been no suggestion made that Mr. Boechler, who is a highly respected individual, would act in bad faith to undermine the interests of the General Chairperson or of the employees.
At most what emerges is the prospect, obviously unpalatable to the International President, that a person driven from UTU membership can be made a Committee appointee within the discretion of the General Chairperson. With respect, while that perspective may be understandable, it does not weigh heavily when the interests of the General Chairperson are compared. Additionally, the Company has made no argument that it would suffer harm should Mr. Boechler be appointed.
Nothing which the General Chairperson does is arguably more important than managing wage adjustments. The unchallenged representation which Mr. Thompson makes to this Office is that no one has the experience and skills of Mr. Boechler to do the complex and important work of representing him on the Method of Pay Committee. While counsel for the International Union questions why someone else could not be appointed, the Arbitrator has some difficulty with a position that questions the judgement and desires of the General Chairperson, particularly in light of the language of Addendum 70 of the collective agreement, which appears to make the appointment one which is to be made in the sole discretion and judgement of the General Chairperson.
With respect to the balance of foreseeable harm, to deny the interim relief sought would, it appears, place the wage protection of the employees in the hands of a lesser qualified individual than Mr. Boechler, a result fraught with greater risk both for the employees and their General Chairperson. I am satisfied that in these circumstances the risk of foreseeable harm compellingly favours the granting of the interim relief sought by Mr. Thompson.
The application for interim relief is therefore allowed. The Arbitrator directs the Company to accord forthwith to Mr. Boechler full and unqualified status as the appointee of the General Chairperson to the Regional Implementation/Review Committee.
Dated at Ottawa this 21st day of July, 2008
____________________________
Michel G. Picher
Arbitrator
Friday, July 11, 2008
UPDATE: MY “FIRST” SET OF MEETINGS
I have just returned from Belleville, London and Sarnia after attending ad hoc meetings (as opposed to Union meetings).
At the meetings I gave presentations on;
i) What had transpired over the last couple of years with respect to the UTU and CN,
ii) The recently concluded CIRB hearings and ongoing hearings,
iii) The evolution of the Canadian Railway Unions,
iv) The representational vote (and why I am supporting the TCRC) and my encouragement to vote for the TCRC,
v) What will transpire with respect to representation within the TCRC for the former UTU members at CN should the TCRC be successful in the vote,
vi) The present relationship between CN Rail and the UTU International,
vii) Pension issues,
vii)The time limit ad hoc arbitration scheduled for July 17th (in Toronto),
ix)My personal thoughts on some of the problems we may face in the future.
During my presentation I encouraged questions and answered all that were asked of me.
I found that the attendees were well informed on the issues and asked questions which, in my view, made the meetings extremely successful. It became very clear to me that there is a definite (positive) change coming, commencing with August 18th, 2008.
NOTE: As some of the attendees had not yet received their ballots the process of contacting the CIRB was discussed and, as I understand it, phone committees will or may be established to get the vote out (which I encouraged). On this point please remember that if you have not received your ballot by July 11th you are to contact the CIRB before July 29th. Failure to do so will affect your right to vote.
NEXT SCHEDULED MEETINGS:
MY NEXT MEETING WILL BE IN CAPREOL ON MONDAY JULY 14TH AT 13:00 HOURS.
NOTICE: MY MEETING IN HORNEPAYNE IS CANCELLED AND WILL BE RESCHEDULED, THIS DUE TO THE ARBITRATION CASE ON JULY 17TH.
THERE WILL BE A MEETING IN TORONTO, FOR BOTH TORONTO NORTH AND SOUTH, ON JULY 16TH.
Rex Beatty
At the meetings I gave presentations on;
i) What had transpired over the last couple of years with respect to the UTU and CN,
ii) The recently concluded CIRB hearings and ongoing hearings,
iii) The evolution of the Canadian Railway Unions,
iv) The representational vote (and why I am supporting the TCRC) and my encouragement to vote for the TCRC,
v) What will transpire with respect to representation within the TCRC for the former UTU members at CN should the TCRC be successful in the vote,
vi) The present relationship between CN Rail and the UTU International,
vii) Pension issues,
vii)The time limit ad hoc arbitration scheduled for July 17th (in Toronto),
ix)My personal thoughts on some of the problems we may face in the future.
During my presentation I encouraged questions and answered all that were asked of me.
I found that the attendees were well informed on the issues and asked questions which, in my view, made the meetings extremely successful. It became very clear to me that there is a definite (positive) change coming, commencing with August 18th, 2008.
NOTE: As some of the attendees had not yet received their ballots the process of contacting the CIRB was discussed and, as I understand it, phone committees will or may be established to get the vote out (which I encouraged). On this point please remember that if you have not received your ballot by July 11th you are to contact the CIRB before July 29th. Failure to do so will affect your right to vote.
NEXT SCHEDULED MEETINGS:
MY NEXT MEETING WILL BE IN CAPREOL ON MONDAY JULY 14TH AT 13:00 HOURS.
NOTICE: MY MEETING IN HORNEPAYNE IS CANCELLED AND WILL BE RESCHEDULED, THIS DUE TO THE ARBITRATION CASE ON JULY 17TH.
THERE WILL BE A MEETING IN TORONTO, FOR BOTH TORONTO NORTH AND SOUTH, ON JULY 16TH.
Rex Beatty
Monday, July 7, 2008
ADDITIONAL MEETINGS I WILL BE ATTENDING
I will be attending a meeting in Capreol, as a guest, on Monday July 14th, at 13:00 hours. It is my intent to attend a meeting, as a guest, in Hornepayne on Tuesday July 14th. I have yet to get confirmation from Hornepayne about the meeting but I will confirm my attendance (time and date) if and when available.
At present, I am still expecting to attend a meeting, as a guest, in Toronto (for both Toronto North and Toronto South). I will post the date and location when available.
As earlier posted, I will be in Belleville Tuesday July 8th (meeting at 19:00 hours), London July 9th (meeting at 19:00 hours) and Sarnia July 10th for two meetings (14:00 and 19:00).
Thanks,
Rex Beatty
At present, I am still expecting to attend a meeting, as a guest, in Toronto (for both Toronto North and Toronto South). I will post the date and location when available.
As earlier posted, I will be in Belleville Tuesday July 8th (meeting at 19:00 hours), London July 9th (meeting at 19:00 hours) and Sarnia July 10th for two meetings (14:00 and 19:00).
Thanks,
Rex Beatty
UPDATE
As I will be travelling this week attending meetings as a guest to speak on the issues presently facing running trades employees with respect to CN Rail, the CIRB cases and the representational vote, there may be a slight delay in posting information in regards to "Hackl et al vs the UTU".
I will attempt to get this infomation out as soon as possible.
Please keep posted.
Thanks,
Rex Beatty
I will attempt to get this infomation out as soon as possible.
Please keep posted.
Thanks,
Rex Beatty
Saturday, July 5, 2008
POST # 4 – CIRB – HACKL ET AL – THE WITNESSES
Preamble:
I have recently published a number of posts putting into context the hearing before the CIRB with respect to the complaint of the deposed against the UTU under Section 95 of the Code.
As the case commenced both parties were required to submit written pleadings as well as witness lists and “will say statements”.
The Complainants (deposed) were required to present their case first followed by the Respondents (UTU).
The UTU was represented by legal counsel Brian Shell with his assistant Rosa Basa. Tim Secord, Jim Flynn and Don Anderson were in attendance in support of the UTU only at the commencement of the hearing. Thereafter, other then legal counsel, there were no supporters for the UTU.
POINT: UTU President, Mike Futhey, given the many requests to meet on the issues (which he declined), did not deem it necessary to send an “independent” observer from the UTU to follow the proceedings and file reports. Mike Futhey did not believe it necessary to hear, first hand, the evidence of the very people he, as a previous member of the Board of Directors, voted to remove from Office and membership.
The deposed were represented by legal counsel Craig Morrison. The Complainants, Rex Beatty, Bryan Boechler, Rollie Hackl and Jim Robbins, remained in attendance throughout the hearings.
There attended, at each hearing session, supporters of the Complainants.
NOTE:
Raymond Lebel (one of the deposed) retired from CN Rail shortly after being removed from Office by the UTU.
Sylvia LeBlanc (one of the deposed) quit CN Rail shortly after being removed from Office.
Gary Anderson (one of the deposed), due to personal matters, was unable to attend but was in constant contact as the case progressed.
Overview of this POST:
I will identify each of the witnesses to which each party advised the CIRB they would be relying upon to present their case.
NOTE: Although I will identify the witnesses who provided testimony it is most noteworthy as to the witnesses the UTU failed to call and, in addition, witnesses not listed (e.g. Paul Thompson, John Armstrong, Scott Montani, Jim Flynn, Don Anderson, Mike Meylmick, Kevin Goring and Dave Brunton etc.)
Other POSTS:
I will briefly and in point form go through the testimony of the witnesses which will complete the hearing as presented to the CIRB. Thereafter I will list the documented evidence as it relates to the events of this case.
UTU'S LIST OF WITNESSES:
Rick Marceau – Assistant Vice-President (listed – did not testify)
Robert Sharpe – Canadian VP (listed – did not testify)
UTU Executive Board (listed – did not testify)
Members of the UTU Board of Directors (listed – did not testify – other then Tim Secord)
Tim Secord (listed and testified)
Clint Miller – UTU U.S. Legal Counsel (listed and testified)
As noted, former UTU President Paul Thomspon, the individual interpreting the constitution, “laying charges”, sending docuements (recall the Feb. 14/07 "package" to all members), conducing the vote at the convention, was not listed as a witness nor attended any of the hearing dates.
Scott Montani, Mike Meylmick, Jim Flynn, John Armstrong and others (individuals that gave testimony in Cleveland against the deposed), were not listed nor testified.
Kevin Goring, Don Anderson and Dave Brunton were not listed nor gave testimony.
THE COMPLAINANT'S LIST OF WITNESSES:
Rex Beatty (listed and testified)
Bryan Boechler (listed and testified)
Rollie Hackl (listed and testified)
Guy Scarrow (listed and testified)
Glenn King (listed and testified)
Nelson Beveridge (listed and testified)
Glenn Gower (listed and testified)
Paul Vickers (listed and testified)
Cindy Little (listed – did not testify)
Guy Ethier (listed – did not testify)
Jim Robbins (listed – did not testify)
Gary Anderson (listed – did not testify)
NOTE: Carl Wallace and Paul Swim (Local Chs. Moncton – were scheduled to testify on the evidence of Jim Flynn, as he provided in Cleveland, to the extent that Rex Beatty, while attending a meeting in Moncton in 2003, was advocating for the TCRC against the UTU. The testimony of Carl and Paul would have been that these events, as sworn under oath by Jim Flynn in Cleveland, did not happen.
The UTU agreed to accept the testimony of both Carl and Paul without having them attend the CIRB hearing.
NOTE: Mike Church testified as a rebuttal witness with respect to the testimony of Clint Miller.
Please keep posted.
Rex Beatty
I have recently published a number of posts putting into context the hearing before the CIRB with respect to the complaint of the deposed against the UTU under Section 95 of the Code.
As the case commenced both parties were required to submit written pleadings as well as witness lists and “will say statements”.
The Complainants (deposed) were required to present their case first followed by the Respondents (UTU).
The UTU was represented by legal counsel Brian Shell with his assistant Rosa Basa. Tim Secord, Jim Flynn and Don Anderson were in attendance in support of the UTU only at the commencement of the hearing. Thereafter, other then legal counsel, there were no supporters for the UTU.
POINT: UTU President, Mike Futhey, given the many requests to meet on the issues (which he declined), did not deem it necessary to send an “independent” observer from the UTU to follow the proceedings and file reports. Mike Futhey did not believe it necessary to hear, first hand, the evidence of the very people he, as a previous member of the Board of Directors, voted to remove from Office and membership.
The deposed were represented by legal counsel Craig Morrison. The Complainants, Rex Beatty, Bryan Boechler, Rollie Hackl and Jim Robbins, remained in attendance throughout the hearings.
There attended, at each hearing session, supporters of the Complainants.
NOTE:
Raymond Lebel (one of the deposed) retired from CN Rail shortly after being removed from Office by the UTU.
Sylvia LeBlanc (one of the deposed) quit CN Rail shortly after being removed from Office.
Gary Anderson (one of the deposed), due to personal matters, was unable to attend but was in constant contact as the case progressed.
Overview of this POST:
I will identify each of the witnesses to which each party advised the CIRB they would be relying upon to present their case.
NOTE: Although I will identify the witnesses who provided testimony it is most noteworthy as to the witnesses the UTU failed to call and, in addition, witnesses not listed (e.g. Paul Thompson, John Armstrong, Scott Montani, Jim Flynn, Don Anderson, Mike Meylmick, Kevin Goring and Dave Brunton etc.)
Other POSTS:
I will briefly and in point form go through the testimony of the witnesses which will complete the hearing as presented to the CIRB. Thereafter I will list the documented evidence as it relates to the events of this case.
UTU'S LIST OF WITNESSES:
Rick Marceau – Assistant Vice-President (listed – did not testify)
Robert Sharpe – Canadian VP (listed – did not testify)
UTU Executive Board (listed – did not testify)
Members of the UTU Board of Directors (listed – did not testify – other then Tim Secord)
Tim Secord (listed and testified)
Clint Miller – UTU U.S. Legal Counsel (listed and testified)
As noted, former UTU President Paul Thomspon, the individual interpreting the constitution, “laying charges”, sending docuements (recall the Feb. 14/07 "package" to all members), conducing the vote at the convention, was not listed as a witness nor attended any of the hearing dates.
Scott Montani, Mike Meylmick, Jim Flynn, John Armstrong and others (individuals that gave testimony in Cleveland against the deposed), were not listed nor testified.
Kevin Goring, Don Anderson and Dave Brunton were not listed nor gave testimony.
THE COMPLAINANT'S LIST OF WITNESSES:
Rex Beatty (listed and testified)
Bryan Boechler (listed and testified)
Rollie Hackl (listed and testified)
Guy Scarrow (listed and testified)
Glenn King (listed and testified)
Nelson Beveridge (listed and testified)
Glenn Gower (listed and testified)
Paul Vickers (listed and testified)
Cindy Little (listed – did not testify)
Guy Ethier (listed – did not testify)
Jim Robbins (listed – did not testify)
Gary Anderson (listed – did not testify)
NOTE: Carl Wallace and Paul Swim (Local Chs. Moncton – were scheduled to testify on the evidence of Jim Flynn, as he provided in Cleveland, to the extent that Rex Beatty, while attending a meeting in Moncton in 2003, was advocating for the TCRC against the UTU. The testimony of Carl and Paul would have been that these events, as sworn under oath by Jim Flynn in Cleveland, did not happen.
The UTU agreed to accept the testimony of both Carl and Paul without having them attend the CIRB hearing.
NOTE: Mike Church testified as a rebuttal witness with respect to the testimony of Clint Miller.
Please keep posted.
Rex Beatty
Friday, July 4, 2008
MEETINGS I WILL BE ATTENDING
As per my earlier posts I have been requested to attend, as a guest, to speak on a variety of issues including the events of the last couple of years (negotiations, removal from office etc.) and the representational issue (TCRC vs UTU).
I look forward to any and all questions relating to these matters.
The meetings I will be attending are;
Belleville, Ontario – Tuesday July 8th, at 7:00 p.m.
London, Ontario – Wednesday July 9th, at 7:30 p.m.
Sarnia, Onario – Thursday July 10th, at 2:00 p.m. and 7:00 p.m.
The next set of meetings are tentatively set for Toronto South, Capreol and Hornepayne.
I look forward to these meetings and the discussions about the issues.
Best regards,
Rex Beatty
I look forward to any and all questions relating to these matters.
The meetings I will be attending are;
Belleville, Ontario – Tuesday July 8th, at 7:00 p.m.
London, Ontario – Wednesday July 9th, at 7:30 p.m.
Sarnia, Onario – Thursday July 10th, at 2:00 p.m. and 7:00 p.m.
The next set of meetings are tentatively set for Toronto South, Capreol and Hornepayne.
I look forward to these meetings and the discussions about the issues.
Best regards,
Rex Beatty
Wednesday, July 2, 2008
REPRESENTATION VOTE – TCRC VS. UTU
As I understand it the ballots are out for the membership to decide which Bargaining Agent they wish to represent them.
For your ready information I will be in Belleville, London and Sarnia next week (times and dates will be posted here shortly). Thereafter I intend to travel to Hornepayne, Capreol and Toronto etc.
As I am advocating and respectfully asking you to vote for the TCRC in the representation vote it is my intention to speak on the events of the last couple of years and take all questions on those matters and what my view of the future is.
MY POSITION – AN OVERVIEW:
I come from a Railway family with many members of my family working for CN Rail.
I hired on with the running trades of CN Rail in the summer of 1973. My Father, having hired on shortly after the WW 2, was the UTU Local Chairperson for Hornepayne at the time I hired on and held that position until his retirement.
Many of my family members worked diligently for the UTU and held various positions in the organization, e.g. Local Ch., Vice-Local Ch., Sec/Trea etc.
I held the position of Vice-Local Ch., Local Chairperson (brief stint as Sec/Trea), Vice-Gen. Ch., General Chairperson and Alternate Vice President, all with the UTU.
I provide this information as a clear demonstration of my involvement with and working for the membership through the UTU organization for many, many years.
MY POINT:
It is not about the organization but the membership.
You don’t vote for a label, you vote for representation.
An organization is by its very nature a political creature. It is trite to say that the organization is there for the workers but unfortunately, and far too often, those ideals are destroyed if not by the organizational institution itself but by individuals within the organization or some combination of the two.
In my view the UTU, both as an organization and in its leadership, has failed its Canadian members.
Paul Thompson, Tim Secord, J. Flynn, M. Melymick S. Montani, and K. Goring, to name a few, were able to manipulate the UTU organization to advance their won agendas. In doing so they have been able to shake if not destroy the very foundation of a once proud organization and the ideals it was founded upon.
Tim Secord was looking out for himself (ref: USWA)
Paul Thompson was looking out for himself (ref: Sheet Metal Workers)
Flynn, Melymick, Montani, Goring (needed Tim to look out for them).
Failure of the UTU Board of Directors to keep Paul Thompson in “check”.
The UTU Constitution, a “contract” with the membership, was rejected, manipulated (e.g. the removal of the deposed, issue of accredited representation etc.) by the UTU Leadership.
The FOS and the representation provided by a U.S. Lawyer, Clint Miller (an acquaintance of Kim Madigan VP Labour Relations of CN Rail) – was ruled in favour of CN Rail.
The failure of John Armstrong and R. Sharpe in standing up for the Canadian membership in their time of need.
The manipulation of the UTU delegates and other matters;
i) The failure to support the Canadian membership and the duly elected Canadian Negotiating Team.
ii) The attempt at removing Canadian Autonomy (advanced and supported by “Canadians” - Tim Secord, Flynn, Goring, Montani, Melymick and others).
iii) The distribution of literature calling duty elected Canadian delegates “Scabs”, this without due process – trial and evidence.
iv) The appointment of Tim Secord to an assigned position over the objections of the Canadian delegates.
v) The shredding of files
vi) Retaining of Canadian dues (from Locals, GCAs etc.)
vii) The removal of the Caley/Wray Law Firm
viii) The siding with CN on the legality of the strike
ix) The siding with CN on a judicial review of the legality of the strike
x) The hiring of Brian Shell, former counsel to the USWA.
xi) The blatant and misinterpretation of the constitution by Paul Thompson (“may” vs. “must”).
xii) The decision of M. Futhey (against the General Ch. and for CN) on a collective agreement issue “accredited representative”.
xiii) The power of a once proud organization (controlled by its membership) to one of a President with ultimate power of constitutional interpretation and immediate implementation subject only to an appeal. All without the required second sober thought of a Board of Directors more consumed with their own welfare than consequences to the membership.
xiv) ETC.
MY FUTURE INVOLVMENT:
If the TCRC are successful in the representation vote then I intend to stand for and run for elected Office.
I will not accept an appointment to an elected position.
If it is at all possible I would be honoured to represent you once again but within the TCRC organization.
It will be your choice.
FINAL POINT TO PONDER:
A question was asked shortly after WW 2 as to why the Nazi Party and its leaders were able to perpetuate such egregious actions against its own people, the answer simply was;
“Bad things happen when good people do nothing”.
Rex Beatty
For your ready information I will be in Belleville, London and Sarnia next week (times and dates will be posted here shortly). Thereafter I intend to travel to Hornepayne, Capreol and Toronto etc.
As I am advocating and respectfully asking you to vote for the TCRC in the representation vote it is my intention to speak on the events of the last couple of years and take all questions on those matters and what my view of the future is.
MY POSITION – AN OVERVIEW:
I come from a Railway family with many members of my family working for CN Rail.
I hired on with the running trades of CN Rail in the summer of 1973. My Father, having hired on shortly after the WW 2, was the UTU Local Chairperson for Hornepayne at the time I hired on and held that position until his retirement.
Many of my family members worked diligently for the UTU and held various positions in the organization, e.g. Local Ch., Vice-Local Ch., Sec/Trea etc.
I held the position of Vice-Local Ch., Local Chairperson (brief stint as Sec/Trea), Vice-Gen. Ch., General Chairperson and Alternate Vice President, all with the UTU.
I provide this information as a clear demonstration of my involvement with and working for the membership through the UTU organization for many, many years.
MY POINT:
It is not about the organization but the membership.
You don’t vote for a label, you vote for representation.
An organization is by its very nature a political creature. It is trite to say that the organization is there for the workers but unfortunately, and far too often, those ideals are destroyed if not by the organizational institution itself but by individuals within the organization or some combination of the two.
In my view the UTU, both as an organization and in its leadership, has failed its Canadian members.
Paul Thompson, Tim Secord, J. Flynn, M. Melymick S. Montani, and K. Goring, to name a few, were able to manipulate the UTU organization to advance their won agendas. In doing so they have been able to shake if not destroy the very foundation of a once proud organization and the ideals it was founded upon.
Tim Secord was looking out for himself (ref: USWA)
Paul Thompson was looking out for himself (ref: Sheet Metal Workers)
Flynn, Melymick, Montani, Goring (needed Tim to look out for them).
Failure of the UTU Board of Directors to keep Paul Thompson in “check”.
The UTU Constitution, a “contract” with the membership, was rejected, manipulated (e.g. the removal of the deposed, issue of accredited representation etc.) by the UTU Leadership.
The FOS and the representation provided by a U.S. Lawyer, Clint Miller (an acquaintance of Kim Madigan VP Labour Relations of CN Rail) – was ruled in favour of CN Rail.
The failure of John Armstrong and R. Sharpe in standing up for the Canadian membership in their time of need.
The manipulation of the UTU delegates and other matters;
i) The failure to support the Canadian membership and the duly elected Canadian Negotiating Team.
ii) The attempt at removing Canadian Autonomy (advanced and supported by “Canadians” - Tim Secord, Flynn, Goring, Montani, Melymick and others).
iii) The distribution of literature calling duty elected Canadian delegates “Scabs”, this without due process – trial and evidence.
iv) The appointment of Tim Secord to an assigned position over the objections of the Canadian delegates.
v) The shredding of files
vi) Retaining of Canadian dues (from Locals, GCAs etc.)
vii) The removal of the Caley/Wray Law Firm
viii) The siding with CN on the legality of the strike
ix) The siding with CN on a judicial review of the legality of the strike
x) The hiring of Brian Shell, former counsel to the USWA.
xi) The blatant and misinterpretation of the constitution by Paul Thompson (“may” vs. “must”).
xii) The decision of M. Futhey (against the General Ch. and for CN) on a collective agreement issue “accredited representative”.
xiii) The power of a once proud organization (controlled by its membership) to one of a President with ultimate power of constitutional interpretation and immediate implementation subject only to an appeal. All without the required second sober thought of a Board of Directors more consumed with their own welfare than consequences to the membership.
xiv) ETC.
MY FUTURE INVOLVMENT:
If the TCRC are successful in the representation vote then I intend to stand for and run for elected Office.
I will not accept an appointment to an elected position.
If it is at all possible I would be honoured to represent you once again but within the TCRC organization.
It will be your choice.
FINAL POINT TO PONDER:
A question was asked shortly after WW 2 as to why the Nazi Party and its leaders were able to perpetuate such egregious actions against its own people, the answer simply was;
“Bad things happen when good people do nothing”.
Rex Beatty
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