TCRC (CTY) RESPONSE TO CN - RE: ARTICLE 41 and 51 COMPLAINT

The following is the TCRC (CTY) response to CN's submission in regards to the recent complaint (posted earlier on this blog site) filed by the TCRC (CTY) against CN Rail

The complaint, among other things, alleges that CN is in violation of the CIRB's Decision 315 which ordered CN to "cease and desist" violating Article 41 (yard work ownership) and Article 51 (Rest) provisions of the Collective Agreement.

I will provide further postings on this matter as they become available.

Rex Beatty

_______________________________________


June 22, 2009

Mr. Peter Suchanek
Regional Director and RegistrarCANADA INDUSTRIAL RELATIONS

BOARD5300 - 1 Front Street WestToronto, ON M5J 2X7

Dear Mr. Suchanek:

Re: In the matter of the canada labour code (part 1 – industrial relations) and an application for interim relief filed pursuant to section 19.1 concerning the Teamsters Canada Rail Conference, applicant; and Canadian national railway company, respondent (27546-C)


Further to this writer’s discussions with Ms. Rotatore of your office last week please accept this letter as constituting our client’s response in connection with CN’s Reply in the above matter.

We thank you for your patience and indulgence for the short extension of time in order to permit us to file this response today.

We confirm that we rely upon the earlier pleadings, affidavit and documents filed with the Board in regard to this matter. Save and except for those facts expressly agreed to in this response, the Applicant denies CN’s allegations of fact and puts it to the strict proof thereof.

The Applicant notes that CN again raises a series of preliminary objections to the Board hearing this case on the merits (i.e. delay, timeliness, referral to the arbitration process, no prima facie case, etc.). This in itself is one more example as to why the normal labour relations process is no longer effective at CN. Instead of addressing issues on the merits in a timely, efficient or productive manner, CN continually raises objections, delays or otherwise tries to avoid resolving the real issues in dispute.

The Applicant and its members are faced with either accepting to do things CN’s way (notwithstanding the Code, collective agreement, previous Board decisions, previous arbitration awards, previous settlements, etc.) or facing retaliation for attempting to exercise their rights. In this regard, we have enclosed for the Board’s review a letter dated June 11, 2009 addressed to CN’s CEO which is self-explanatory and supports the above noted assertion.

CN again claims that the Applicant’s latest allegations are all (with the exception of one incident) out of time. We submit that the Application establishes a pattern of continued violation of the various orders, directives and agreements referenced in the Application. There is no “end date” to this issue. Moreover, CN’s violations are of a continuing nature. Accordingly, we submit that there is no merit to CN’s submissions that our allegations are untimely.

Even if CN is correct in its position that some of the violations occurred more than 90 days ago, the Board has the discretion to entertain such allegations in any event and extend any time limits. This includes the Respondent’s violation of the Board’s order in Decision No. 315. Therefore we submit that the Board ought to entertain the full allegations.

We will now address some points in the order presented in CN’s response. We will first comment on the affidavit of Mr. Van Cauwenbergh (and later herein).

Upon review, only paragraph 8 needs to be commented upon which reads;

“8) CN is not involved in any form illegal, unfair or abusive practice against the content of the Collective Agreement.”

The above comment is, of course, not fact but opinion. It is for the Board to determine whether the true facts amount to any of the above in this case. Mr. Van Cauwenbergh’s short affidavit contains virtually no material facts. The above comment is speculative and suggestive. If the Board accepted such a comment as amounting to a fact as proof of its contents then any employer could simply file such an affidavit in any section 19.1 application for proof of the fact that it was not involved in any form of an illegal, unfair or abusive practice against the content of the collective agreement. It would be silly to accept such a practice.

Finally, the affidavit is insufficient for the purposes of section 19.1 in these circumstances. The affidavit does not set out any material facts to be confirmed by the affiant/deponent. Accordingly, the affidavit and CN’s Reply cannot be relied upon by the Board. We submit that our Application should be treated as being uncontested.

We shall now reply to CN’s Response without prejudice to the positions set out above.

As the Board knows, our complaint concerns a violation of the Board’s directives as such relates to the many violations of Articles 41 and 51. Doug Van Cauwenbergh states that “CN is not involved with illegal, unfair or abusive practices”. We believe this is designed to distance CN from the actions of its Managers. In other words, any illegal, unfair or abusive tactics by its Managers is, arguably, not condoned by CN.

We do not believe CN can escape responsibility so easily. The decision of the Board specifically directed CN to take a number of steps to address the violations of Articles 41 and 51, this as found on page 38 of Board Decision 315 as follows;

“(c) orders the employer to develop and conduct information and training sessions for all managers and supervisors charged with the interpretation and application of the collective agreements on the proper application of these provisions of the collective agreement;

(d) orders the employer to provide the Board and the union, within six months of this decisions, with a confirmation of the dates on which the information and training sessions have taken place, the attendees of those sessions and the material covered.”

It is our view that the Board specifically directed CN to: (1) Train its managers and supervisors; and (2) To provide confirmation that training has taken place. In other words, it was the responsibility of CN to ensure that such managers and supervisors applied Articles 41 and 51 correctly.

Failure of proper compliance of such managers and supervisors would be a breach of the Board’s orders that CN was to ensure “proper application of these provisions of the collective agreement.” In other words, CN is responsible for the actions of its managers and supervisors “charged with the interpretation and application of the collective agreement.”

CN did provide the names of the proposed “attendees” that were to be given training (as directed by the Board) in the application of Articles 41 and 51. There is, however, no indication of any further training of new managers and supervisors responsible for the proper application of Articles 41 and 51.

It would be our view that CN, if such training was not provided, violated item (c) of the Board’s directives (which stands alone from the initial training as contemplated in item (d)).

In any event, if such training had occurred either it was insufficient or ignored by the managers and supervisors, which was a breach of CN’s requirements to ensure the provisions of the collective agreement were complied with, this then would meet, contrary to what Doug Van Cauwenbergh states, the definition of illegal, unfair and abusive practices on behalf of CN.

The Application and Complaint filed with the Board concern the continued violations of Articles 41 and 51. CN attempts to argue that time limits for such filing have expired. (By reference to the Complaint, we include reference to the Application as well in each case.) The Board should also realize that the Complaint also concerns violations of its orders as contained in Decision 315. In other words, the failure to file a complaint to the Board on one particular situation does not in and by itself prevent further filings if a continuation of the breach occurs in other situations. Example, a complaint not filed for some unfair labour practices does not prevent such future complaints based on different material facts.

Nor is it necessary for a complaint filed to the Board be borne out of a submitted grievance. The Company attempts to argue that there are no massive violations of the Collective Agreement by referring to the grievances submitted. Our position, of course, does not solely rely on grievances already submitted but the many complaints received within the Union from its membership on continued violations.

The fact is that many members are fearful of now advancing grievances or complaining for fear of reprisals by CN Rail (the massive amount of discharges and discipline – for seemingly trivial matters) gives credence to such fears. Please review again the letter to CN’s CEO referred to earlier.

The Union has repeatedly attempted to address the violations of Articles 41 and 51 with the Company (as is evident by Daniel Joannette’s 12 grievances). The situation has not improved. The breaches of the Board’s order are another matter that needs to be addressed by the Board.

The Company, as earlier stated, now argues time limits have been exceeded for such filing. To accept the argument from the Company would be illogical to the extent that the Company could forever violate Decision 315 since the Union, at the first instance, did not file a complaint. This cannot be correct.

The Union, in good faith continued and continues to address such matters with the Company, including utilizing the CROA system (e.g. Daniel Joannette’s cases in July).

The filing to the Board, now, is supported by way of the Paul Chenier case which was initially filed at Step 2 of the grievance procedure on April 10/2009 (ref: our complaint – TAB J). It was this latest incident that initiated the decision to file the complaint to the Board (within time limits of the Board’s rules).

CN argues (Page 2 – paragraph 5) that the Paul Chenier case does not provide prima facie evidence of “massive violations”.

It should be noted that CN does not dispute the violation of Mr. Paul Chenier’s rights. In any event, the actions of the Company in violating the rights of Mr. Paul Chenier, in the face of the cease and desist orders etc. as found in Decision 315, gives rise to the complaint filed.
The nature of the complaint and the supporting documentation indicates continued breach of the Articles 41 and 51 and gives rise to why Board intervention under Section 19.1 is required.

CN attempts to argue that only “massive violations” should be considered by the Board under Section 19.1. Although we think we can demonstrate massive violations, we do not think it is necessary (even though the nature of “massive” is subjective in nature) to prove such because the Board’s decision is not predicated on CN complying on such only if there exist massive violations.

The reality is that the Company blatantly violated Articles 41 and, more importantly, Article 51 (a safety related provision), which, if not corrected by the Board under Section 19.1, could have dire consequences – in other words one blatant violation could result in another Hinton or Mississauga train disaster. In fact, in the Hinton inquiry the issue of proper rest garnered significant attention.

It is for these reasons that the Company’s argument in paragraph 9 fails (abusive of the Board’s process given that such matters should be handled through the grievance /arbitration process) and ought to be given no weight.

In short, the Company breached the Board’s directives to cease and desist, etc. violating Articles 41 and 51. The Board must stand up and protect its own, uncontested decisions regarding public policy (enforcement of collective agreements).

CN paragraph 11 – CN states that since 2007 there have been 500,000 road service starts yet (in paragraph 12) only 39 grievances filed.

The 500,000 starts is a red herring argument as Article 51 was not applied in each case. Additionally, the filing of grievances is not the only means in which to determine breaches of the contract. As earlier stated, members have advised the Union of continued violations but fear of reprisals from the Company is a motivating factor not to file grievances (e.g. Paul Chenier received 20 demerits)

The reality is that the Company blatantly violated the Board’s orders. As they attempt to do at arbitration, CN tries to argue it is not repetitive or that bad.

It should be clearly noted that we are not talking about mistakes (as everyone should be trained in the correct application) but rather blatant violations. The Company’s position therefore is – we can blatantly violate the provisions provided as long as it is kept to a minimum as compared to the total train starts (this whether or not Article 51 was applicable on all starts or not).

In paragraph 14 CN attempts to justify “grievances” by stating that such breaches were, in part, for “special unforeseen circumstances”. The first point is that the Company does not “grant” rest as this is a right of the employees.

The second point is that unforeseen circumstances cannot be used to circumvent the Company’s obligations to ensure compliance with Article 51 (whether the circumstances were “special” or not). This is reflected in the Arbitration Awards and the Collective Agreement, e.g. ref: our complaint TAB E – page 15 of the January 1986 letter of explanation of Article 51 and unforeseen circumstances which states in part:

“establishes the Company’s responsibility to relieve trainmen of duty by the time rest booked is due to commence.

This applies in all cases, except where circumstances beyond the Company’s control make this impossible. ...And, while such circumstances are not necessarily limited only to the examples cited, the Company cannot rely on situations which do not affects its ability to comply with this paragraph as a reasons not to relieve trainmen by the time rest booked is due to commence...”

At paragraphs 19 to 25 (article 41) CN relies on its position that since no grievances are filed to arbitration there is no breach of the Decision 315. Whether or not there is a filing to CROA does not translate that there is no breach of Decision 315 or the provisions of the Collective Agreement. In fact, Decision 315 stands on its own as to required company compliance with such.

Certainly, if the Company is correct, the fear of reprisals for filing a grievance or raising such issues with the Company, will have worked for the Company. In other words, no grievances or filing to Arbitration equates to no breach of the Board’s decisions. Clearly this cannot be correct.

The Union has a right to protect its collective agreements as negotiated under the Code. It is the Board’s mandate to protect such provisions and not be bound by external processes of the parties when such processes cannot correct the problem (breach of the Board’s own decisions).

At paragraph 26 CN claims that it has complied with Decision 315 and has taken measures to ensure compliance with Decision 315;

If this is the case, why have the violations occurred (e.g. Paul Chenier). There is simply no evidence, other than some initial training, that new managers and supervisors have been trained as to the proper application of Articles 41 and 51. Again, if this has occurred why did the blatant violations occur? (as clearly demonstrated in, for example, the Chenier tapes). Why did the Company offer remedy settlements for the Daniel Joannette grievances?

If there was compliance with Decision 315 there would be no violations, period. So, if the Union can demonstrate such violations then the Company argument fails, this regardless of the amount of violations (either the Company respects the decision or not).

At CN’s paragraph 27 - 28 – CN claims that it hired an outside consultant to create a training program to provide instructions to its supervisors on Articles 41 and 51.

At best, such training was done within six months of Decision No. 315 – there is simply no evidence of any further training. If there was not, this would be a breach of the Board’s decision (ref: item c). And if they did, CN would be responsible for the breaches of Articles 41 and 51 by any of its managers/supervisors.

CN’s paragraph 29 – The Board and the Union are well aware of CN’s ongoing efforts to ensure compliance.

This is incorrect, the Union is not aware of this, and in any event it is irrelevant and is no excuse for violations or breach of the orders (although CN would certainly like to have this standard - no breach as long as they are trying). Certainly the Company avoids violating Articles 41 and 51 when it does not adversely affect its operations but routinely violates such should the operations be adversely affected.

The reality is that there should be no violations of Articles 41 and 51. There is simply no excuse .This is the purpose of the cease and desist orders. It is troubling that years after Decision 315 CN maintains a position of “ongoing efforts” to comply.

CN paragraph 30 – CN attempted to discuss Articles 41 and 51 with the Complainant recently but they refused.

Recently a new VP of CN Operations was placed in Toronto and an invitation was extended to Mr. Jim Robbins to meet this individual. The Company was previously advised by Jim Robbins that he was pursuing a new course of action to address violations of Articles 41 and 51. Ironically, the original agenda items to be discussed at the time to meet the new VP were expanded by CN to include a desire to discuss Articles 41 and 51 only after Mr. Robbins gave notice of his intention to pursue actions such as this Complaint.

Although the Union believed the Company was being disingenuous, and only attempting to thwart the Complaint to the Board, the Union nevertheless did not refuse to discuss these matters. To the contrary, as reflected in Mr. Robbins email to the Company (ref: our complaint – TAB K) the Company was advised that the matter was now being handled by Rex Beatty, Transition Director of the TCRC, and Mr. Robbins specifically advised CN that:

“if there are to be any discussions with respect to either Article 41 or 51, the Company should contact Mr. Beatty personally, as the process has already commenced”

NOTE: the process meaning a complaint being prepared for the Board.

It should be noted that at no time did the Company attempt to contact Mr. Beatty as requested by Mr. Robbins.

CN Paragraph 34 – grievances handled at CN/Union Joint conference.

CN argues that at a recent joint conference 94 grievances were handled.
The amount of grievances handled must be considered in the context of the total amount of grievances. For Mr. Jim Robbins alone, the grievances (only at his Office) exceed 1500. The amount of grievances in the system and those not reported (for fear of reprisals) far exceeds that amount.

The other General Chairpersons within the TCRC are experiencing similar grievance overloads.

CN paragraph 35 – formal arbitration process.

The arbitration process is an expedited process but limited to its own mechanism. It is only expedited for those grievances (which are limited) that make the docket. The many thousands of grievances, even if all were filed, would create a situation that the CROA could not handle. The System is broke.

CN paragraph 36 – Arbitrators have authority.

The Arbitrators are not the best authority in these circumstances to enforce the Board’s orders (e.g. cease and desist). The Company is essentially saying that even if there are breaches of Articles 41 and 51, regardless of the Board’s directives, these matters are for the Arbitrator to now decide. This cannot be correct given the Board’s unique and self-contained mandate.

CN paragraph 39 – CROA backlog is incorrect.

CN takes this position on the sole basis of the CROA system. In other words CN is looking at only part of the grievance process. There is no dispute that thousands of grievances exist. There can be no dispute that the CROA system cannot handle all of these grievances.

CN paragraph 41 – CN – Articles 41 and 51 grievances are not a priority at Arbitration.

Not so, as is evident by Daniel Joannettle proceeding to Arbitration. Jim Robbins advised of the seriousness of the situation and the filing of the complaint to the Board.

The reality is that CN, in an unprecedented manner, has discharged a massive number of employees. For example, there are a large number of discharge cases having taken over the CROA Docket with respect to Jim Robbins’ GCA. In fact, there are so many present dismissals that it would take years, under the present system, to have them all addressed (this notwithstanding future dismissals). See the letter referred to earlier.

CN Paragraph 42 – The filing to the Board is evidence of the seriousness of how the Union views the violations of the Board’s orders, this as it relates to Articles 41 and 51.

CN Paragraph 43 – There is no issue of timeliness of a particular grievance. This is a red herring argument by CN Rail and has no relevance to the issues in the present case (other than the orders found in Decision 315 which the Company breached).

CN Paragraph 45 – CN’s right of objection.

The right to object must be viewed as to the practical application of such objection, the facts present and not just as a means to thwart the process. In the case of Daniel Joannette’s cases the Company offered settlements. The Company continued to seek a resolve to the dispute but only on its terms. Once this failed (even though the Union complied) the Company raised preliminary objections, obviously not to resolve the problem but to thwart the process.

The Company, when it raised its preliminary objections relied upon the Picher “timeliness case” (Central Region) which was not applicable to the situation at hand. In fact, the Company and the Union, in that case, specifically excluded a period of time, this as it related to the Miller case.

Interim Orders;

CN paragraph 50:

a) The serious question, as is often the case facing a union in illegal strike applications, is whether or not the Company fails to comply with the terms of the collective agreement. The matter is properly before the Board since the Board issued its own orders of compliance which the Company has breached. The Board, for good public policy, must protect and enforce its own directives and the integrity of the Code.

b) There is potential serious and irreparable harm. First, the integrity of the Board’s directives which CN is in breach of, public policy and the enforcement of the Code. Second, the blatant violations of a safety provision of Article 51. Further, the irreparable harm to employees and their families for the breach of a significant portion of the Collective Agreement concerning employment.

c) The “balance of convenience” of all parties as to whether the Board’s orders should be complied with speaks volumes of CN’s approach to collective agreement compliance. Simply put, if they don’t have to comply with the Board’s directives what is the motivation to comply with the Collective Agreement. CN uses the same approach to running its trains vs. collective agreement compliance – what is most convenient to them.

CN paragraph 52 – TCRC was aware of the violations back to April 7/07.
The violations continue. The breach of the Code continues. The Company essentially argues that by not filing a complaint on one breach this thereafter prevents a complaint being filed on another breach. In other words, to translate, since the TCRC did not file back in April Decision 315 no longer is applicable.
CN is attempting to rely upon the fact that it has continued to violate the Board’s order, collective agreement and other decisions for a period of two years before this Application was filed. CN is essentially saying that since the bargaining agent did not take CN to the Board in the winter of 2007 it cannot do so now.

We rely on all our earlier submissions as to timeliness in regard to the above point. We also remind the Board that for a period of almost two years, the affairs of the then bargaining agent (UTU) were taken out of the hands of the Canadian GCAs and instead run out of Cleveland, Ohio. During this time, no applications or complaints were filed against CN by the UTU. CN committed many violations during this time which may have went unchallenged before the Board because the GCAs could not effectively file applications or complaints. When they tried to do so, even in the name of individuals, the UTU intervened on CN’s side to state that only it could authorize such and that such were not authorized. This effectively prevented the GCAs from returning to the Board.

As the Board knows only too well the GCA’s were not able to function normally in that two year period. This situation should not be held against the GCA’s. The Board should disregard this objection based on this reason alone and/or extend the time limits if necessary. CN should not be able to profit of its own misdeeds which the GCA’s could not effectively challenge until recently. It was CN which filed an unsuccessful complaint against the Canadian UTU-GCA Officers which caused them to be fired by their own union. CN therefore took advantage of the resulting turmoil and dysfunction of the Union in Canada to ignore the Board’s orders, other decisions and collective agreement.

CN paragraph 53 – CN again connects the complaint only to grievances filed.

This, of course, is wrong. The complaint mainly involves the breaches of Decision 315. There are many violations of Articles 41 and 51 and they do not become invalid because they were progressed by way of the grievance procedure.

CN paragraph 55 – no massive violations.

CN only violates where it affects its operations. These Articles are not applicable on every start. CN essentially is saying (to use a similarity) we have 40,000 employees but we only harm a small minority therefore that is acceptable as it is not massive.

No breach of the collective agreement is acceptable in the face of the cease and desist orders. If the Company is correct they can then pick and choose when to violate as long as it remains within a certain threshold.

CN’s paragraph 56 – Union has declined to meet.
This is incorrect (ref: Jim Robbins’ email), but in any event irrelevant. A complaint to the Board stands on its own merits and is not preconditioned on attempts by one party attempting to thwart the process by disingenuously requesting a meeting.
CN’s paragraph 59 – CN relies on Doug Van Cauwenbergh’s affidavit. We rely on our earlier comments.
Any violation of the Collective Agreement which is in breach of cease and desist orders is illegal, unfair and abusive.
The Union is committed to working with the Company to ensure that the Employer can operate its railway as effectively, efficiently and profitably as possible consistent with the rights of the employees we represent under the Code, collective agreement and the decisions referenced in these pleadings.
As set out in the Application, if the relief sought its not granted, a chill on the Union’s representational abilities will effectively frustrate meaningful labour relations and the Union’s ability to ensure that its members’ rights are protected. Moreover, the Application makes it clear that the Company is adversely affecting safety rights which could, of course, lead to dire consequences. This is an area where CN has already been warned by an independent government body. It is an area where the Board should apply a “zero tolerance policy” to CN’s practices as described in the Application in greater detail.

For all of the foregoing reasons, it is respectfully submitted that the relief requested ought to be granted.

Finally, if the Respondent is serious about desiring to resolve the issues in dispute without a hearing before the Board, we are prepared to meet with the Respondent as soon as possible under the auspices of the Board. We invite the Board to initiate such a process at its earliest convenience.

As always, please feel free to contact the undersigned should you have any questions or concerns with respect to this matter. Thank you for your time and attention.
All of which is respectfully submitted.
Yours truly,CaleyWrayMichael A. Church
MAC/shEncl.

cc: R. Beatty
J. Robbins
D. Joannette
D. Shewchuk
P. Vickers
R. Leclerc
L. Rotatore
J. Cavé
CIRB Ottawa

RANDOM DRUG TESTING - RECENT COURT DECISION

Recently the Law Firm of Caley/Wray defended a decision of a Board of Arbitration with respect to the issue of random drug testing. The Arbitration case, argued successfully by M. Church, was appealed by the Company (Imperial Oil) by way of a Judicial Review to the Ontario Court of Appeal.

The Law Firm of Caley/Wray, by way of Doug Wray and Mike Church, successfully defended against the application of Imperial Oil.

The following is taken from “The Lawyers Weekly” and relates directly to the success achieved by Caley/Wray;



___________________________________________________
On May 22nd, the Ontario Court of Appeal issued a unanimous judgement on the contentious issue of random drug and alcohol testing in the work place that will influence Arbitrators and Courts across Canada.

The Appeal Court ruled that the random drug testing policy launched in 2003 by the appellant Imperial Oil Ltd. was not a reasonable exercise of the management rights and workplace safety provision contained in the company’s 1996 collective agreement.

The Court affirmed that the Company’s policy of conducting randomized, mandatory saliva mouth swab testing of employees in safety-sensitive positions was null and void BECAUSE IT DID NOT COMPORT WITH THE COMPANY’S CONTRACTUAL OBLIGATION TO TREAT ITS WORKERS WITH “RESPECT AND DIGNITY”.

As found by the arbitration board’s majority, Imperial’s policy of random drug testing without reasonable cause was an “unwarranted intrusion” on employees’ privacy and “an unjustifiable affront to their dignity,” THE APPEAL COURT AGREED”.

Imperial rolled out the saliva testing in 2003 to replace the drug testing policy the company jettisoned in 2001 after the Court of Appeal ruled in “Entrop v. Imperial Oil” - a case that involved a challenge to urine drug testing by non-unionized workers under Ontario’s “Human Rights Code” - that urinalysis doesn’t promote the legitimate goal of drug-free, safe workplace because urinalysis identifies drug use, rather than on-the job impairment.

One law firm which wrote a paper on impairment testing, said the Court of Appeal has made clear that “especially where there is a collective agreement with any provision that refers (employees) privacy or human rights - or even if the agreement is silent – that employers still need to cautious about drug testing when it is not suspicion-based” or when the testing isn’t part of an investigation into an industrial accident.

The majority’s reasons reveal that its rejection of Imperial’s random drug testing measure, absent reasonable cause, was based on the language of the parties’ own bargain as embodied in the collective agreement, and the evidence adduced before the Board regarding the requisite balancing of interests inherent to the examination of a random drug testing policy in the workplace.

____________________________________________

NOTE: The CTY Collective Agreements at CN Rail have a provision which requires CN Rail to exercise its rights reasonably without harassment or intimidation of the Membership.


Rex Beatty

TCRC (CTY) RESPONSE TO CN - ARTICLE 41 - 51 COMPLAINT

Yesterday the Union (TCRC - CTY), filed its response to the CIRB in regards to CN Rail's submission, this with respect to the complaint filed by the TCRC (CTY) re: Article 41 (yard work defined) and Article 51 (Rest).

The response was in PDF format and I am attempting to have it sent to me in WORD format so that I can post the complete response on this blog. If and when this is done I will post.

In the meantime I have forward the response to Daniel Joanettee (General Chairperson - TCRC CTY East) and Jim Robbins (General Chairperson TCRC - CTY C entral) and all of Jim Robbins Local Chairs.

Best Regards,

Rex Beatty

NEW POSTING IDEA

I have been inundated with alleged abusive tactics and actions of CN against the workforce including allegation of abusive discharges and discipline, harassment, intimidation, collective agreement violations and “in your face” confrontation.

I am contemplating posting such alleged activities on my blog if they are emailed to me, if I do decide to post it is my commitment, unless first approved by the sender, not to use names, locations, times or dates ,this given the fear of retaliation.

I do think it is important that our membership, colleagues and the general public, across the country, be made aware of what is alleged to be happening across the CN Rail operational system in Canada. To make people aware of the significant events that are affecting our membership and their families which, in my view, are designed to beat down the Unionized workforce into submission in order for CN to advance its operational ideology.

So, if anyone has a story to tell and, upon pre-review and approval of the undersigned, would like to have such posted on my blog please email me (with return email address, contact number and proper name attached) to my email at;

rexb@sympatico.ca


Rex Beatty

CN RESPONSE TO TCRC (CTY) COMPLAINT

As you may recall the TCRC (CN – CTY), recently filed an unfair labour practices complaint against CN Rail pursuant to Section 97 (1) of the Canada Labour Code to the CIRB, this in regards to, among other things, contempt of cease and desist orders concerning Articles 41 and 51 of Collective Agreement 4.16

In addition to the complaint filed pursuant to Section 97 (1) the TCRC (CTY) further submitted an emergency application under Section 19.1 of the Code.

CN recently responded to the 19.1 portion of the complaint. The response was in PDF format and, as of this date, I have been unable to post on my blog. In brief, however, CN argues that;

1. The complaint is not timely,
2. And, according to CN Officer, Doug Van Cauwenbergh, “CN is not involved in any form illegal, unfair or abusive practice against the content of the Collective Agreement or the TCRC itself. “
3. CN has attempted to discuss the issue but the Union refused to meet,
4. There are over 500,000 road starts and, compared to the grievances filed, demonstrates no massive violations of the Collective Agreement provisions,
5. The arbitration process is the proper forum in which to address the issues raised by the Union,
6. The Board and the Union are well aware of CN’s ongoing efforts to ensure proper compliance of the directives of the Board to comply with the cease and desist orders etc.


CN argues that the Board should not issue any emergency orders because;


i) There is no existence of a serious question to be determined,
ii) An interim order is not necessary in order to avoid a serious or irreparable injury of such a nature as to render the final judgment ineffectual; and
iii) There needs to be first an assesment of the balance of convenience for all parties concerned.


The TCRC (CTY) reply to the CN submission will be posted when received (anticipated early next week).


Rex Beatty

COMPLAINT AGAINST CN RAIL- VIOLATING REST PROVISIONS ETC.

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

MANY THANKS

I wish to take this opportunity to thank everyone who supported me for the position of Transition Director.

It is my commitment to you to do my best to represent the needs of the membership and the TCRC organization.

It has been a long difficult road that we have travelled and now it is time to turn the page and work for the betterment of ALL of the membership. To put our support behind an organization that will work for you and not for its own selfish interests.

In Solidarity,

Rex Beatty
Transition Director
TCRC