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
