JUNE 12/2009
COMPLAINT FILED TO THE CIRB
Early last week our Legal Counsel, M. Church, of the Law firm of Caley/Wray was directed to file a complaint to the Canada Industrial Relations Board (CIRB).
The Complaint alleges that CN Rail continues to violated arbitration awards and CIRB Orders, this with respect to Article 41 (Yard work) and Article 51 (Rest Provisions).
The Complaint is relevant and specific to all the CTY (Conductors, Trainmen and Yardmen) on CN Rail across Canada. The Complaint, if successful, will, I believe, also impact Locomotive Engineers.
The Complaint includes an emergency request (Section 19.1) for the CIRB to take immediate action.
I have yet to receive CN Rail’s response to the complaint, assuming CN does not get any additional extensions to respond (they received an initial two day extension), I expect to receive it today or early next week (it was due to be filed to the CIRB this past week).
Once I receive CN’s reply (should they submit one) I will consult with our Legal Counsel and, if appropriate, I will post on my blog. I will, again with the approval of Legal Counsel, post updates as these matters progress.
The Complaint attached hereto is very interesting and I encourage all to read.
Fraternally yours,
Rex Beatty
______________________________________________________
THE COMPLAINT:
B E F O R E:
CANADA INDUSTRIAL RELATIONS BOARD
In the matter of the Canada Labour Code (Part I – Industrial Relations) and a complaint of unfair labour practices filed pursuant to Section 97(1) thereof by the complainant alleging violation of Sections 94(1)(a), 94(3)(a),(b),(c),(d),(e) and (f) of the Code.
And an Application pursuant to Section 19.1 of the Code for an interim order directing the Respondent to cease and desist violating the Collective Agreement, arbitration awards and decisions of the Board and to fully comply with all of such forthwith.
B E T W E E N:
Teamsters Canada Rail Conference
(hereinafter referred to as “TCRC”)
Complainant
- and -
CANADIAN NATIONAL RAILWAY Company
(hereinafter referred to as “CN”)
Respondent
_____________________________________________________________
COMPLAINT FILED UNDER SECTION 97(1)
and application filed under section 19.1
_____________________________________________________________
CaleyWray
Labour/Employment Lawyers
A. Name, Address, Telephone and Fax Number of the Complainant.
Mr. James M. Robbins
General Chairman
CTY – CN Lines Central
Teamsters Canada Rail Conference
4 - 842 Upper Canada DriveSarnia, ON N7W 1A4
Tel: (519) 332-4555Fax: (519) 332-4935
tcrcrobbins@bellnet.ca
Mr. Daniel JoannetteGeneral Chairman
CTY - CN Lines EastTeamsters Canada Rail Conference200 - 1026 Rue St. JeanQuebec, QC G1R 1R7
Tel: (418) 694-7111Fax: (418) 694-0753Email: djoannette@teamstersrail.ca
Mr. Rex BeattyTransition DirectorTeamsters Canada Rail Conference74 Parkwood DriveSault Ste. Marie, ON P6A 5K6
Tel: (705) 779-3013Fax: (705) 779-3013rexb@sympatico.ca
Represented by:
CaleyWray
Labour/Employment Lawyers
1600 – 65 Queen Street West
Toronto ON M5H 2M5
Tel: 416-775-4675
Fax: 416-366-3293
Email: churchm@caleywray.com
Attention: Mr. Michael A. Church
B. Potential Interested Parties
Mr. Daniel J. ShewchukPresidentTeamsters Canada Rail Conference1710 - 130 Albert StreetOttawa, ON K1P 5G4
Tel: (613) 235-1828Fax: (613) 235-1069djshewchuk@teamstersrail.ca
Mr. Paul VickersGeneral Chairperson
Locomotive Engineers (CN Lines Central)TEAMSTERS CANADA RAIL CONFERENCE111 - 560 Exmouth StreetSarnia, ON N7T 5P5
Tel: (519) 339-0300Fax: (519) 339-0002pvickers@teamstersrail.ca
Mr. Rene LeclercGeneral Chairperson
Locomotive Engineers (CN Lines East)TEAMSTERS CANADA RAIL CONFERENCE602 6th Avenue, Suite 360Grand-Mere, QC G9T 2H5
Tel: (819) 538-5656Fax: (819) 533-1156rleclerc@teamstersrail.ca
C. Name, Address, Telephone and Fax Number of the Respondent.
Canadian National Railway Company
935 de la Gauchetiere Street West, 7th Floor
Montreal PQ H3B 2M9
Tel: 514-399-8366
Fax: 514-399-2652
Attention: Ms. Kimberly A. Madigan, V.P. Labour Relations, North America
Represented by:
Ms. Johanne Cavé
Counsel
Canadian National Railway Company
Law Department, 16th Floor
935 de La Gauchetiere Street West
Montreal, Quebec H3B 2M9
Tel: (514) 399-4317Fax: (514) 399-4296johanne.cave@cn.ca
C. Sections of the Code Allegedly Violated.
Sections 19.1, 94(1)(a), 94(3)(a),(b),(c),(d),(e) and (f).
D. Date which the Complainant/Application knew of the circumstances giving rise to the Complaint/Application.
April 7, 2007.
E. Particulars of the measures taken, if any, to have the Complaint/Application submitted to Arbitration under a Collective Agreement or reasons why an arbitration did not take place.
1. The issues raised in this Complaint/Application (hereinafter referred to as the “Complaint”) are matters within the jurisdiction of the Board. The Board has the necessary authority, jurisdiction and resources to deal with the issues raised in this Complaint. The Board also has the respect of the labour relations community which is essential in order to deal with the issues raised in this Complaint.
2. Furthermore, the grievance procedure under the collective agreement is not set up to deal with the matters raised in this Complaint in a timely, efficient or enforceable manner as required.
3. The issues raised in this Complaint go well beyond those for which an arbitrator can be expected to assist in these circumstances. This Complaint requires the scrutiny of the Board. The Board is more appropriately suited to deal with the issues raised in this Complaint for many reasons.
4. There is no guarantee when or if any of the issues raised in this Complaint can or will ever be addressed adequately by an arbitrator under the collective agreement governing those parties for, inter alia, the reasons set out below. In fact, many of the issues raised in this Complaint have been addressed by an arbitrator in favor of the Complainant only to have the Respondent ignore the declarations, directives and orders of the arbitrator.
5. The problems currently existing in the arbitration process mandated by the TCRC’s collective agreements with the Respondent are many and well known. The Complainant provides examples of such later in this Complaint.
6. As the Board is aware, there is also a huge backlog of grievances emanating from the Complainant’s bargaining unit. This backlog is particularly acute in respect to grievances emanating from the two components of the TCRC in this case. The Complainant will elaborate on this issue more fully later in this Complaint.
7. The Complainant submits that adjudication before the Board in regard to the issues raised in this Complaint will be a more effective, expeditious and appropriate manner in which to resolve said issues. The Complainant submits that the facts as pleaded in this Complaint support its position that the issues ought to be adjudicated before the Board in a public forum in an expeditious manner. The Complainant believes that the issues raised in this Complaint meet the test as set out in jurisprudence by this and other labour boards in Canada in regard to the taking of jurisdiction by such boards of similar complaints. For example, reference may be made to the recent decision of this Board in respect to complaints brought by the predecessors of the Complainant involving this same Respondent: CIRB Decision No. 315 March 5, 2005, Board File Nos. 23386-C and 24061-C. The Complainant will have more to say about the effect of this decision later in this Complaint.
8. Finally, this Complaint is also about safety - the safety of the Complainant’s members, other employees and the public. It goes without saying that safety issues are always time sensitive.
F. Statement of Facts, relevant dates and grounds for the Complainant’s overview of the Complaint.
Overview of the Complaint
9. This Complaint involves a request by the Complainant that the Board deal with the Respondent’s continuing refusal to abide by the collective agreement, settlements, arbitration awards and Board directives in respect to the matter of two critical provisions of the collective agreement.
10. The collective agreement maintains provisions which protect the yard service employees’ craft. The collective agreement also protects the ability of the running trades employed in this case (the conductors, tradespersons and yard persons) to book and take rest once they have properly notified the Respondent of their desire to do so. In both cases, the Respondent refuses to follow the collective agreement, other agreements or the orders referred to above.
11. The Respondent is determined to run its trains as it sees fit in its total discretion. If the collective agreement, settlements or orders get in the way, the Respondent ignores such. The Respondent has decided that it is easier, cheaper and more effective to repeatedly violate the collective agreements, settlements and order of the relevant tribunals in order to achieve its aims.
12. The Respondent knows that the Complainant cannot utilize the grievance and arbitration process to address these issues in an effective, timely or efficient manner. As will be seen, the Respondent has played a role in undermining the arbitration process which was designed to be expeditious, effective and workable.
13. The result of the Respondent’s actions has been to undermine the Complainant’s ability to discharge its duty as an effective bargaining agent on these important issues. The Respondent is well aware that the Complainant’s membership is upset, frustrated and demoralized by the Complainant’s inability to effectively address the issues in question. The Respondent reaps the benefit of its misconduct because the Complainant’s membership is now blaming the Complainant for the loss of the important protections in question. The Complainant requires the swift assistance of the Board to remedy this situation and to restore some balance to the labour relations’ environment at CN in respect to the issues raised in this Complaint.
G. the players, their structure and relationships with the respondent
14. The TCRC represents a variety of classifications of employees working in the railway industry in Canada including but not limited to the running trades, maintenance of way employees and rail traffic controllers. The TCRC represents such groups at various railroads from very large to very small employers. These railroads include national passenger railroads, freight railroads and commuter operations to name just a few.
15. The TCRC represents virtually all of the unionized running trades employees in Canada. The running trades employees include but are not limited to the following classifications: locomotive engineers, conductors, assistant conductors brakepersons, yard forepersons, yard operations employee, yard persons and traffic coordinators.
16. The TCRC represents the running trades who operate passenger and freight trains for the major (Class 1) railroads in Canada. This includes the Respondent CN. The TCRC has a number of collective agreements with each of the railway companies referred to above. The TCRC’s collective agreements cover many thousands of employees.
17. This Complaint involves employees of the Respondent who work under Agreement 4.16 in Eastern and Central Canada. These employees are conductors, assistant conductors and yard persons. They will be hereinafter referred to as the employees in question.
18. The TCRC became the successor bargaining agent and party to the collective agreements with the Respondent referred to above by virtue of the Board’s decision of September 2, 2008 certifying the TCRC as the successor trade union to the former bargaining agent for said purposes (the United Transportation Union – “UTU”). The employees formerly represented by the UTU are often referred to as TCRC – CTY (Conductors, Trainpersons and Yardpersons).
19. As noted above, the running trades’ employees on whose behalf this Complaint is brought include the conductors, assistant conductors and yardpersons working under Collective Agreement 4.16 from Thunder Bay east in either yard or road service. Agreement 4.16 is administered by two of the TCRC’s – CTY new General Committees of Adjustments (“GCA”). The TCRC GCAs are the mirror image of the former GCAs of the former bargaining agent, UTU. The GCAs in question represent conductors, trainpersons and yardpersons working under Agreement 4.16 in their respective geographic jurisdictions. That is, both GCAs represent these classifications of employees working on their territory within the classification in question. Both GCAs also represent other classifications of employees including traffic coordinators (formerly known as yardmasters) under Agreement 4.2.
20. The TCRC GCA-CTY representing employees on CN’s Central Region operates under the authority of General Chairperson J. Robbins. The GCA-CTY representing Employees throughout most of CN’s Eastern Region (i.e. Quebec) operates under the authority of General Chairperson D. Joannette.
21. All of the employees in question are considered safety sensitive or safety critical employees. They perform complex, dangerous and difficult work in a heavy industry. They are held to very high standards by the Respondent, the public and regulatory agencies. These standards have increased over the years particularly after the catastrophic railway collision known as the Hinton Train Disaster.
22. The Respondent constantly changes its demands on the employees in question. The employees are subject to ever increasing demands, workloads and standards. Most of the employees work on an unscheduled basis and are expected to be available when required. That is, they are called for work shortly before their trains arrive. They work on spareboards which requires them to be available for duty on two hours’ notice.
23. In recent years, CN’s operations and attitudes towards its running trades employees has changed. It has also reduced the size of its crews (road and yard) considerably. At the same time, its trains have become larger, heavier and more complex to operate. The train crews are also often required to take these same trains longer distances and to work greater hours. There is less flexibility built into the system by the Respondent to allow for any tolerance of its crews not meeting its exacting standards.
24. The above noted changes are deliberate. The Respondent has designed its operation to become as “lean and mean” as possible – and then some. By doing so, the Respondent has become the most efficient Class 1 freight railway in North America. It has also become very profitable in the process. Over the past decade, the Respondent has consistently posted record revenue and profits.
25. At the same time as all of the above has taken place, and in parallel to such, the Respondent has instituted a very aggressive approach in terms of the reasons, amount and severity of discipline in respect to the employees. The labour relations’ environment in the Respondent’s operations, vis-à-vis the employees, have changed dramatically.
26. The work climate in the Respondent’s operations has been described by an independent government study as “a culture of fear”. That is, the Respondent has been accused of operating a culture of fear against its own employees. (Reference will be made to the recent report of a federal parliamentary committee on Rail Safety in Canada.)
27. Relatively speaking, discipline (including dismissals) has increased dramatically in recent years. The Respondent has been accused of massive violations of its collective agreements with its running trades employees. There are huge backlogs of grievances in the offices of the GCA’s.
28. The two GCA’s which represent the employees in question are finding it difficult to cope with the Respondent’s constant violations of the collective agreement. This is particularly acute in respect to violations in two important areas of the collective agreement which have received repeated attention by the Canadian Railway Office of Arbitration and Dispute Resolution (“CROA&DR”) arbitrators and this Board. This is despite the fact that the CROA&DR arbitrators and the Board have repeatedly ruled in favour of the respective GCAs on the issues in question.
29. As noted earlier, the TCRC has many collective agreements with the Respondent which apply to its members employed at CN. The running trades members constitute some of the largest bargaining units at CN (in terms of the employees represented). The bargaining unit which represents the CTY classifications is one of the largest, if not the largest, bargaining unit represented by the TCRC at CN.
30. The TCRC bargaining unit members employed at CN work under collective agreements which require any unresolved grievances to be referred to and adjudicated at the CROA&DR.
31. The CROA&DR sits three days per month during eleven months of the year. One arbitrator at a time hears the cases which are scheduled on these dates. These cases must be scheduled at least one month prior to the next CROA&DR session.
32. The CROA&DR hears cases involving many classifications, employees and collective agreements. These include several companies and numerous trade unions. They also include many different classifications, including the classifications referred to earlier. There are many different bargaining agents most of whom are fighting for the available spots on the CROA&DR schedule each month.
33. As one would expect there are only so many available slots for any one GCA each month. Moreover, discharge cases are given priority.
34. The CROA&DR arbitrators, secretary and office do their best to adjudicate as many cases as possible. Cases are of course settled or withdrawn prior to or at the scheduled arbitration date. However, because of the nature of the CROA&DR and its various rules, it is often difficult, if not impossible, to substitute cases or to utilize the time slots that are vacated. It would require at the least the consent of the CROA&DR and all of the parties to do so. The Complainant does not believe that CN would easily give its consent in such cases. On the contrary, it is the recent experience of the Complainant that CN is reluctant to give its consent to use the CROA&DR process as efficiently as possible. In fact, it is the Complainant’s experience that CN often raises preliminary, procedural and timeliness objections if at all possible. The result is that many cases are bifurcated, delayed and made more complex. Moreover, the valuable few arbitration spots are taken up by such tactics.
35. In years past, the CROA&DR system served the parties well. In fact, the system functioned well even when it handled more companies, more bargaining agents and substantially greater numbers of employees covered under the collective agreements in question. This was particularly true for CN which in years past had many more employees who were subject to the CROA system. In fact, CN had multiple numbers of conductors, trainpersons and yardpersons employed under its various collective agreements. Ironically, despite many fewer employees the grievance backlog is greater than ever.
36. The CROA&DR system is designed to provide guidance, precedent and final and binding arbitration awards to be obeyed. For the most part, the parties (particularly CN) used to respect arbitration awards, directives and orders from the CROA&DR arbitrators. This respect has been eroded in recent years.
37. The point of the above is that the CROA&DR system does not and cannot satisfy the requirements of the bargaining agents, collective agreements or the Code. This is true if one party does not respect the decisions of the CROA&DR system or in fact of this Board.
Collective Agreement Provisions
38. Two of the most important articles of Agreement 4.16 are the Yard Service Employees’ Work Defined - Article 41 and Booking Rest - Article 51.
39. Article 41 is reproduced at Exhibit “D” to the Affidavit of Rex Beatty accompanying this Complaint. Article 41 essentially protects the jurisdiction of the yard service employees.
40. Article 51 is reproduced at Exhibit “E” to the Affidavit of Rex Beatty attached to this Complaint. Article 51 is designed to allow the running trades employees to book rest when required in a variety of situations. It is an essential article. It allows crew members and yard employees to book rest when they feel they cannot continue to work for a variety of reasons. It is an article designed to protect the safety of the employees, public and railway operations as a whole. Accordingly, it is likely the most important article in the entire collective agreement.
41. In recent years, the Respondent has been found to repeatedly violate each of the above noted articles. This is demonstrated by virtue of a series of arbitration awards, on the record settlement agreements which confirm such and decisions of this Board. For example, reference may be made to CIRB Decision No. 315.
42. CIRB Decision No. 315 has been replicated as Exhibit “B” of the Affidavit of Rex Beatty. The Complainant will have more to say about this decision later in this Complaint.
43. An example of the application of Article 51 may be found in CROA Case No. 3280 (reproduced at Tab 1). We have also included a copy of the letter of January 15, 1986 from the Respondent which forms part of collective agreement 4.16 between the parties that includes, inter alia, an explanation as to how the Respondent would interpret Article 51.
44. As is apparent from the decision referred to above, the Union was successful in its allegations. In fact, the Union was so successful that the Arbitrator awarded an additional penalty payment against the Respondent in view of the blatant and flagrant violation.
45. Over the next few years, the Respondent continued to violate Article 51 of Agreement 4.16. The Complainant has provided at Exhibit “A” to the Affidavit of Rex Beatty, several other examples of the Respondent violating Article 51. In each case, the Arbitrator found that the Respondent had violated the collective agreement, directed the Respondent to cease and desist from violating Article 51 and furthermore ordering the Respondent to comply with the provisions of Article 51. In addition to the above noted arbitration awards, the Respondent also settled “on the record” many other grievances with the Complainant which involved similar violations. These settlements include promises by CN that it will comply with the collective agreement in the future.
46. The Respondent continued to violate Article 51. The Complainant filed a series of Article 51 decisions with the Federal Court of Canada in order to compel the Respondent to comply with the Arbitrator’s awards. Regrettably, these measures did not change the Respondent’s conduct in this area. Reference to several examples may be found at Exhibit “C” to the Affidavit of Rex Beatty.
47. The Complainant spent considerable time obtaining successful decisions from the Arbitrator in respect to the proper interpretation of Article 51 referred to above. In fact, the Complainant spent considerable time, effort and money in a lengthy, difficult and complex series of ad hoc arbitration hearings in order to obtain the results in question.
48. The Respondent agreed that it had violated the collective agreement as alleged. The wording of the awards of the Arbitrator were drafted in consultation with the parties. Nonetheless, the Respondent continued to violate this same article in similar circumstances.
49. The Complainant had a similar experience with the Respondent in respect to the application of Article 41. The Complainant obtained a series of successful awards from the CROA arbitrator which confirmed the Union’s interpretation of Article 41. Reference may be made to CROA Case No. 3043 and 3309 (which was later settled on the record and on consent of the parties). These cases have been reproduced at Tab 2.
50. The Respondent continued to violate Article 41. Accordingly, the Complainant again engaged the services of the Arbitrator to provide a definitive ruling, direction and orders in respect to the violations of Article 41. In a similar process described above in connection with Article 51, the Complainant successfully obtained positive awards and language from the Arbitrator. Again, the Respondent agreed that it had violated the collective agreement as alleged and promised to stop such violations. Examples of some of these awards are reproduced at Exhibit “A” to the Affidavit of R. Beatty. Many more grievances were settled between the parties on consent, on the record and contained similar promises on behalf of CN.
51. Notwithstanding the successful arbitration awards, the filing of these awards in the Federal Court and an acknowledgement by CN’s senior management that its managers were violating the arbitration awards issued, the Respondent continued to violate the collective agreement and awards. The registering of the awards in the Federal Court had no effect upon the Respondent.
52. The Complainant next turned to the Board for assistance by filing Complaints with the Board alleging, inter alia, that the Respondent continued to ignore the provisions of the collective agreements referred to above, the successful arbitration awards, etc.
53. The parties engaged in a long and expensive hearing before the Board in connection with the aforesaid complaints. The Respondent CN raised many objections to the Board entertaining the Complaints. These objections were dismissed by the Board.
54. By way of a decision dated March 24, 2005 (CIRB Decision No. 315), the Board found in favour of the Unions in respect to the continued violations of Articles 41 and 51. CIRB Decision No. 315 is attached as Exhibit “B” of the Affidavit of Rex Beatty.
55. The Board commented upon many of the successful arbitration awards at paragraphs 69, 70, 72, 73 and 74. Reference may also be made to the appendix attached to the decision at pages 39-40 wherein there are examples of some of the successful Article 41 awards (as well as some successful Article 51 awards). Reference may also be made to page 44 of the appendix where further examples are reviewed in respect to the successful awards referred to above.
56. The Board found in favour of the Union’s arguments that the Respondent continued to violate the collective agreement, settlements and arbitration awards involving the proper interpretation and application of Articles 41 and 51 (see paragraph 82). Moreover, the Board had the following additional comments about the Employer’s conduct:
[83] The psychological impact for the employees of a finding of unfair labour practice is that the offender be required to communicate to affected employees that it has been found guilty of violating the Code and that it will from now on conform to its requirements. Making employees aware that their employer cannot violate the Code with impunity and that they have meaningful legal rights is essential to the enforcement of the Code.
[84] The resolution of disputes is a cooperative effort and is rendered futile where one party is determined to conduct itself without regard to the rights of the other. To the extent where the employer repeatedly breaches the same sections of the collective agreement, even after the interpretation of these sections have been the subject of one or several arbitral awards, the grievance procedure may be said to have become ineffective and the union is entitled to some relief.
57. After receipt of the aforementioned Board decision, the Complainant gave the Employer at least six months to sort out a system of complying with the collective agreement, arbitration awards, including settlements and the Board’s decision. For a time, there was some improvement in the Employer’s application of the Articles in question. Unfortunately for the Complainant, its members and the public, the situation is now even more intolerable than ever.
Bargaining in late 2006 and 2007
58. As the Board is aware, the parties commenced bargaining for a new collective agreement from early September 2006. The UTU – GCAs which formed the entirety of the UTU’s bargaining team held off filing further charges against the Respondent in respect to the continued violations in question in the hopes of reaching a better understanding in collective bargaining.
59. As the Board is aware, the late 2006 and early 2007 round of bargaining was a terrible ordeal for the Union and its membership. Negotiations broke off in early February 2007 when the Respondent relied upon an assurance from the UTU’s International that the Canadian Officers, bargaining team and membership would not resort to a legal strike. This is despite the fact that the Canadian bargaining team had given CN notice of its intention to commence a legal strike unless further progress was made at the bargaining table.
60. The Respondent filed an unprecedented complaint against the Union’s Canadian bargaining team and Union officers (all of whom were long term CN running trades employees). This Complaint was dismissed and the strike was deemed to be legal. All of the full time officers of the Canadian GCAs and some others were thereafter dismissed by the International Union. The next 20 months were a nightmare for the Union’s GCAs and membership. During this same time CN continued to violate Articles 41 and 51. The new Canadian Union Officers (who were allowed to replace the previous Canadian GCA Officers after a period of time) tried to file grievances in regard to such but very few were able to get to arbitration.
61. Throughout 2007, 2008 and 2009, there have been massive numbers of violations of Articles 41 and 51. The GCAs attempted in vain to resolve these violations with the Respondent. The GCAs were therefore forced to try to bring the same issues back to arbitration which of course defeated the whole purpose of the earlier agreements, awards and Board decision.
62. An example to the above is as follows. The new TCRC – GCA for CN Eastern Lines progressed a number of grievances through the grievance procedure alleging violations of Article 51. The Company initially agreed that it had violated Article 51 in many cases but then resiled from said agreements when the Union insisted at phase two of the remedy procedure that it required increased penalties for the members so as to provide a disincentive to the Company from further violations. When the Company rejected this overture the Union advised the Company that it would proceed to arbitration. The Company then raised new defences and positions at arbitration as well as new objections (i.e. timeliness of the grievances).
63. The Complainants have acquired evidence that the Company is instructing its running trades crews to operate hours in excess of work (and for which the crews booked rest) in violation of the earlier awards and decisions.
64. When the Complainant tried to take a series of these cases to arbitration the Respondent raised preliminary objections on the grounds of timeliness notwithstanding the fact that it knew that the Complainant wanted to take these cases to arbitration, there was no prejudice and that the Respondent itself had asked for the Complainant to delay taking the cases to arbitration to allow the parties to discuss such further. An example of such is reflected in a recent award (CROA&DR Case No. 3762) involving approximately 14 grievances (attached at Tab 3).
65. As is apparent in the aforementioned case, the Company’s objections were dismissed. However, the result was that the Complainant was forced to spend considerable time, effort and resources trying to overcome the Respondent’s preliminary objections. Each of the cases was bifurcated. The Complainants cannot hope to get these cases back before CROA&DR on the merits until July 2009 at the earliest. The result of the Respondent’s actions in addition to the above contributed to a delay of all of these grievances being heard at arbitration on the merits.
66. In the Complainant’s Central Region, it is experiencing similar difficulties with the Respondent in respect to violations of the Articles in question (particularly Article 51).
67. An example of the Respondent’s practices in respect to the interpretation of Article 51 in the Central Region is illustrated by the case of J. Sergent on December 17, 2008. Mr. Sergent came on duty at 08:35 hours. In compliance with Article 51, he gave his notice to book rest after 12 hours. Although he requested rest after 12 hours pursuant to Article 51, he was not allowed to go off duty until 23:05 hours. The Respondent replied to the grievance saying, almost reluctantly, in retrospect, it should have accommodated the Grievor in some respect. Nevertheless, the grieving employee was kept on duty for hours after he should have been allowed to book off for rest (Tab 4). This harm is irreparable to the employee after the fact! (Even the Hours of Services laws require that an employee not be required to work beyond 12 hours.)
68. On December 28, 2008, another crew was kept on duty for over five hours beyond their rest period. The Respondent claimed that it was not the intent of the Chief RTC to be disrespectful of the collective agreement. The Company advised that it was their intent to adhere to the collective agreement (as it related to Article 51 Rest Provisions) but the response was simply unsatisfactory and demonstrates the Respondent’s wanton disregard for this critical right (Tab 5).
69. The Complainant has many other examples of crews being forced to remain on duty after they have told the Company that they are tired and want to book rest as they are absolutely entitled under the collective agreement (as reinforced by arbitration awards, settlements and the decision of the Board). They believe it is unsafe for them to work any longer on the particular shifts in question at this difficult occupation. However, their objections (for the few that have the courage to object) fall on deaf ears. The Respondent then responds by minimizing the incidents or rejecting the grievances outright.
70. On February 26, 2009, Conductor Paul Chenier desired to book rest. When he questioned the refusal of the Company Officer to allow him to book rest as he was entitled, the Company Officer blatantly violated the collective agreement. Instead of allowing the grievance, the Grievor was forced to submit to an involuntary investigation by the Company on March 5, 2009 for the ridiculous allegation of failing to follow the instructions of a company officer resulting in train delays.
71. In the above noted case, all three members of the crew had filed a proper rest message. The crew and train would have made it to their destination if the Company had properly managed the train in the field. Mr. Chenier becoming tired of the Chief RTC’s bullying, elected to utilize his only recourse available which was to act upon Part II of the Canada Labour Code. He felt that continuing his trip would have led to dire consequences.
72. The Company’s response to Mr. Chenier was to penalize him 20 demerits for delaying his train. This is one third of his career. It puts him close to being subject to outright dismissal if there is another serious allegation against him. The Grievor was assessed this discipline of April 7th for failing to follow the improper instructions of his supervisor. The Company’s actions amount to outright retaliation by CN against the employee because he elected to exercise his rights under the collective agreement and the Code (see the details at Tab 6).
73. Subsequent to the above noted incident, the Company put out a bulletin to its employees commenting upon the attempt of an employee who attempted to invoke his right to refuse based on fatigue. The Company took the position that an employee could not invoke their right to refuse under the Code due to a personal condition such as fatigue.
74. The point to the above is one more example of how the Company intimidates employees for exercising their rights under the collective agreement. The employees are also intimidated if they attempt to exercise their rights under the Code.
75. The Complainant has many grievances involving examples that the rights of employees to obtain rest, properly booked in accordance with Article 51, have been violated by the Respondent. These are critical rights which must be respected in a timely manner. It is simply no answer to the employees for the Respondent to suggest they proceed to arbitration since such takes such a long time and often is delayed further by preliminary objections. In the meantime, the safety of the employees, public and railroad is jeopardized. Moreover, the harm and prejudice to the employees is irreparable. The “culture of fear” is now so pervasive that many employees are afraid to stand up for themselves, grieve or exercise their rights under the Code.
76. In addition to the violations under Article 51 (some examples of which are reviewed above) the Respondent also continues to violate Article 41. The Complainant has many examples of these violations. An example of such is the Sarnia terminal. The Complainant has reproduced at Tab 7 some of the more recent examples. The Complainant reminds the Board that this issue has been ruled upon in the Complainant’s favour in many arbitration cases (including, but not limited to, CROA Cases 3043, 3182 and 3309) as well as mediated settlements and orders of this Board. Nonetheless, the Respondent continues to violate the collective agreement (Tab 7).
77. Sarnia is not the only terminal where the Respondent violates Article 41. The Complainants have enclosed at Tab 8 a recent analogous violation in the Belleville terminal.
78. The Complainant does not want to burden the Board with the many grievances involving violations of Articles 41 and 51. There are literally hundreds of these grievances backlogged in the system. These grievances are clogging the system although they should not even be there.
79. The Complainant has included at Exhibits F, G, H, I of the Affidavit of Rex Beatty, examples of violations of Articles 41 and 51 of the collective agreement. These violations are included in support of the Complainant’s request for an interim order.
80. On April 20, 2009, General Chairperson J. Robbins forwarded an email to five of the Respondent’s senior officers raising the issue of the Company’s continued violations of Articles 51 and 41. This email is self explanatory. The Complainant advised via this email that Mr. Beatty had been requested to advance these issues to a further forum in the event that the Company did not immediately rectify the continuing violations (Exhibit K). Regrettably, the violations continue.
81. The result of the Company’s continued violations of these important provisions of the collective agreement is to completely frustrate the Complainant’s member-ship. Moreover, it undermines the efforts of the Complainant in the eyes of its membership.
82. It is obvious that the Respondent has made the decision at its highest ranks that it is easier, cheaper and more effective in terms of its operations to continue to violate the collective agreement, the many arbitration awards and directives of this Board in respect to the issues. Even consent awards and consent settlements have turned out to be ineffective in policing the Respondent’s continued violations of the collective agreement.
83. The position of the Complainant is also summarized in the Affidavit of Rex Beatty accompanying this Complaint. The Complainant relies upon the contents of the said Affidavit and the Exhibits attached thereto.
84. The Union has experienced a very similar situation in Western Canada. The Respondent routinely violates the equivalent provisions in Agreement 4.3. The Union has a series of successful arbitration awards also. The Union reserves the right to refer to and rely upon the factual situation in Western Canada. The Union will seek similar relief.
85. The Complainant also relies upon its pleadings and the Board’s decision in CIRB Decision No. 315.
86. The Complainant pleads that the Respondent’s repeated violations of the collective agreement, the Code, arbitration awards and Board directives constitutes interference with the administration of the Union and undermines the Union as an effective and exclusive bargaining agent. The Complainant pleads that these actions constitute violations of Sections 94(1)(a), 94(3)(a),(b),(c),(d), (e) and (f) of the Code. There are also the safety issues which cannot be ignored.
87. The foregoing conduct demands the intervention of the Board at its earliest opportunity.
Request for interim relief
88. The Complainant respectfully requests that the Board issue an interim order in relation to the Respondent’s conduct. Specifically, the TCRC requests that the Board issue the following interim orders. An interim order pursuant to section 19.1 of the Code:
(a) declaring that the Respondent has violated section 94(1) of the Code’s provisions as alleged in the Union’s Complaint with respect to repeated violations of Sections 41 and 51 of Agreement 4.16;
(b) directing the employer to cease and desist from violating the collective agreement with respect to these provisions;
(c) ordering the Employer to immediately communicate this decision to all of its managers and employee supervisors charged with the interpretation and application of collective agreement 4.16 in regard to the proper application of these provisions in the collective agreement;
(d) ordering the Employer to comply forthwith with the collective agreement; and
(e) ordering the Employer to post the order made pursuant to this decision in conspicuous locations throughout the workplace.
89. In support of its request for this interim order the Complainant relies upon all of its representations made earlier in this Complaint, the accompanying documents and the Affidavit of Rex Beatty.
90. In support of its request for this interim order, the TCRC also relies upon the following representations. These representations relate to Section 19.1 of the Code.
19.1 The Board may, on application by a trade union, an employer, or an affected employee, make any interim order that the Board considers appropriate for the purpose of ensuring the fulfillment of the objectives of this Part.
91. The Board has stated that it will assess each request for an interim order on a case-by-case basis having regard to what is appropriate to ensure the fulfillment of the objectives of the Canada Labour Code (Trentway-Wagar Inc. (2002) CIRB No. 57 at p. 15). Further, the Board has also stated that this assessment requires the Board to consider the issues before it in the context of the applicable labour relations realities, and the purposes of Part I of the Canada Labour Code, including the encouragement of free collective bargaining, and the constructive settlement of disputes. (Trentway-Wagar, supra, p.16).
92. The Board has provided the following example of an important goal for an interim order which is particularly appropriate in the present matter:
[32] As an example, an important goal for an interim order in a labour relations context may be that of expeditiously restoring the balance contemplated by the statute between the parties to encourage them to engage in free collective bargaining and the more constructive settlement of the matters in dispute between them. It frequently occurs that specific statutory violations arise in the labour context because of broader disputes underlying them. In the circumstances, the objectives of encouraging the parties to resolve more constructively their dispute through the broader process of collective bargaining may, in the view of the Board, require an interim order that encourages the parties to do so rather than immediately addressing a more specific matter in issue.
(Trentway-Wagar, supra, p.13)
93. The Board has stated elsewhere that the labour relations’ purpose of interim relief is to stabilize the labour relations situation, or in other words, to neutralize the potential harm of an alleged unfair labour practice complaint pending its final determination. (Bell Canada (2001) CIRB No. 116 at p. 11)
94. It is the respectful submission of the TCRC that the order sought is consistent with the encouragement of free collective bargaining, the representation of the TCRC’s members and the establishment of sound labour management relations.
REMEDIES SOUGHT
95. The Complainant requests the following relief from the Board:
a) All of the relief, declarations and orders as referred to earlier in our request for an interim order;
b) A declaration that the Respondent is violation of the Code including sections 94(1)(a), 94(3)(a),(b),(c),(d)(e) and (f);
c) An order directing the Respondent to cease and desist from any further violations of the Code;
d) An order directing the Respondent to abide by the provisions of the Code and the Collective Agreement;
e) An order that the Respondent remove any discipline issued to any employees in connection with their invoking their rights in accordance with Articles 41 and 51, the Canada Labour Code or any of the arbitration awards, settlements or earlier directives of this Board;
f) An order for any adversely affected employees of the Complainant to be made whole;
g) An order that the Respondent arrange for expedited arbitration of any outstanding grievances to be conducted within the next three months and for the costs of the Union to be fully borne by the Respondent in connection with any outstanding Article 41 and 51 grievances;
h) The Complainant’s legal costs and all other expenses associated with this Complaint/Application;
i) An order that the Respondent refrain from raising any preliminary, procedural or timeliness objections without prior leave of the Board in respect to such grievances;
j) An order that the Respondent post the Board’s order and reasons for decision in conspicuous locations throughout the workplace; and
k) Such other relief as may be appropriate.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Dated at Toronto, this 2nd of June, 2009.
On behalf of the Complainant by its
Transition Director per:
_________________________________
Rex Beatty
