CIRB SCHEDULES A CASE MANAGEMENT HEARING

On April 17th, 2008, the General Chairpersons, Guy Ethier and Robert Thompson, filed a Section 19, 19.1 Emergency Application to the CIRB in connection with their previously submitted Section 37 Application.

A Section 19, 19.1 is an emergency request for the CIRB to hear matters which are connected to the Section 37 Application that, if not immediately addressed, could cause irreparable harm.

The CIRB has scheduled a “case management hearing” for 1:00 p.m. April 29th at the Board’s Offices in Toronto (located at 1 Front Street).

The complete Section 19, 19.1 Application is provided below.

Rex Beatty

___________________________________


April 17th, 2008

CANADA INDUSTRIAL RELATIONS BOARD
ONTARIO REGION

Attention: Peter Suchanek
Regional Director
1 Front Street West5th Floor EastSuite 5300Toronto, Ont.M5J 2X7

Tel. 416-973-3783Fax 416-973-6543
RE: In the matter of the Canada Labour Code (Part 1 – Industrial Relations) and an emergency application filed pursuant to Section 19 and 19.1 by Guy Ethier and Robert Thompson with respect to a complaint filed pursuant to Section 97 against the United Transportation Union (Respondent)alleging violation of Section 37 (Board File # 26786-C).


Dear Mr. Suchanek,

The following Emergency Application is filed to you under Sections 19 and 19.1 of the Code with respect to the above referenced matter. It is our position that the submissions provide prima facie reasons for immediate intervention by the Board. We do as usual, however, reserve our rights to provide additional particulars and evidence with respect to these matters.

In support of the submission herein, we have attached at (TAB 1) the following;

a) Affidavit of Guy Ethier,
b) Affidavit of Robert Thomspon
c) Affidavit of Rex Beatty


The Submission:


On or about April 3rd, 2008, the undersigned (and the Complainants in the above noted file) were advised that the International United Transportation Union (UTU) unilaterally decided to no longer fund the UTU Canada’s participation in the Canadian Railway Office of Arbitration and Dispute Resolution (CROA & DR) (TAB 2). This in spite of the fact that it is our understanding the UTU has, since the inception of CROA & DR (over many decades), funded such participation.

Section 57.1 of the Canada Labour Code (the Code) states;

“Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.”

The present Collective Agreement(s) presently in force at Canadian National Railways (CN) includes provisions establishing an arbitration process (consistent with the Code) by way of the CROA & DR.

The position of the UTU has created an immediate concern for the members of the bargaining unit in Canada and those elected Officers responsible for the processing of all differences between the employees and the employer. A concern that if not immediately addressed has the potential of creating irreparable harm.

The clear uncertainty of a negotiated process of settlement by way of arbitration has and continues to have negative consequences, both objectively and subjectively. Simply put, is unclear, at present, whether funds will be available so as to continue participation within the CROA & DR.

It is unclear whether the collective agreement arbitration process can now be relied upon in the settling of disputes. It is unclear as to what process will be available to the Canadian Membership (if any) should we be unable to participate in CROA & DR due to the UTU’s lack of financial (and historical) support.

We do note, however, that the UTU has advised that the affected General Chairpersons finance the continued participation in CROA & DR. However, it is more likely than not, given the present turmoil within the UTU, that the dues of the Canadian membership would have to be increased by the General Chairpersons to continue such participation.

The prospect of an increase in the Canadian UTU dues would not be offset by a reduction in those monies retained by UTU International. Monies that had been previously used for the CROA & DR participation. The UTU International will continue to reap those monies without providing the proper and legislative requirement of fair and responsible representation to the Canadian membership, this contrary to Section 37 of the Code.

In addition, the Complainants have recently become aware of and are of the understanding that other “Canadian” monies have been removed without the consent of the Canadian membership and without full knowledge of the Canadian membership. (TAB 3) - Reference: “IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION”.

(Page 8 Q & A. 6)

“Describe all methods implemented for raising money or any other thing of value to support litigation.”

“ANSWER: I have used all forms of communications, verbal, mail, email, and website postings, to urge UTU members to contribute to the plaintiff’s Save Our Union fun, which I oversee and from which I have paid periodic statements from Arthur Fox”.

(Page 9 Q & A 8)

“Identify every person, labor organization, including the UTU and/or any of its locals, subordinates and/or affiliates, nonprofit organization and/or employer, or officer, agent, member and/or employee thereof, who has contributed any payment, loan, delivery and/or agreement to pay, loan and/or deliver, money or thing of value, directly or indirectly, for legal fees, costs or expenses in this case on behalf of Plaintiffs. In answering this Interrogatory direct your attention to the Instructions in paragraph 2 and 3 above.

a. For each person, labor organization, nonprofit organization, and/ or employer, or officer or agent, and/or employee thereof, identified, provide:


i) The amount(s) of each contribution(s); and
ii) To whom the contribution(s) was made.”

“ANSWER: Objection: The information sought is confidential and given anonymous threats that have been directed at Plaintiff Ed Michael on the Save Our Union website, I am willing to disclose this information only in camera and under seal.

Subject to and without waiving this objection, contributions to the plaintiffs’ Save Our Union fund have been received, to date, from 66 individual members, ranging from $20 to $1,600, and from 29 subordinate UTU entities, ranging from $100 (US) to $30,000 (Canadian). In addition, a retired UTU member loaned plaintiffs the $35,000 required, at the outset, to retain Mr. Fox.” (emphasis added)


In consideration of the above noted Canadian contributions the Senior UTU Officer in Canada, Mr. Garth Bates (Canadian VP/Canadian Legislative Director) reviewed the Canadian Legislative Account (referenced as LO-60).

Mr. Bates requested that the UTU International General Secretary and Treasurer, Kim Thompson, forward requested records dealing with the Canadian LO-60 account, the UTU International denied the request (although Mr. Bates was advised that he could review the files should he travel to the UTU Head Office in Cleveland, Ohio).

Mr. Bates makes the following observation as it relates to these matters; (TAB 4)

“I have just now been made aware that there was a $30,000.00 donation made to the “Save our Union Fund” down in the US and am wondering where the $30,000.00 came from. I am not suggesting that anything illegal was done but when I look at the dollars spent out of this fund in the past 3 years and now find I am being refused access to the expenditures I am becoming a bit suspicious.

My original request was based merely on the fact that as the VP/Leg. Dir., Myself along with Brother Goring are custodians of this fund and considering the fact that this fund spent almost $320,000.00 over its budget in the past 3 years I thought it prudent to get an idea of where this money was being spent so as to prevent potential bankruptcy by the end of 2008.

My first thought as to the refusal of the requests is “Why not?” If there is nothing to hide, send the documentation. In this days and age electronic communication we should not even need to hard copies of it. In any case I intend to respond to the refusal and if necessary seek legal advice both in Canada and the US.”

It should be noted that two days after Mr. Bates raised the concerns regarding the “Canadian monies” he was “charged” with his Office. Mr. Bates is due to stand an internal UTU trial and, should he be found guilty, he stands to lose his elected Canadian UTU Officer positions and membership within the UTU.

Mr. Bates, if removed, will no longer be in a position to protect the Canadian membership and pursue his cause of “financial accountability”.

The charges against Mr. Bates are attached as (TAB 5). The internal UTU hearing on the charges against Mr. Bates are scheduled for May 13th, 2008.

It is our submission that the charges against Mr. Bates are groundless and intended to undermine the rights of the Canadian membership as provided by the Canada Labour Code. Including the right to be free of repercussions relating to matters properly before the Board.

We respectfully request that the Board take immediate action to protect the Canadian membership from irreparable harm. We request that the Board call an emergency hearing into this matter and, additionally, to issue the following interim Orders;

a) Direct the UTU International to continue to pay the required CROA & DR participation fees.

b) Direct the UTU International to cease and desist from any hearings, trials etc. of Mr. Garth Bates, Canadian VP/Canadian Legislative Director, until such time as the Board declares otherwise.

c) Direct the UTU International to immediately and forthwith provide all the records, accounts, financial statements etc. regarding all monies with respect to Canadian dues and monies relating to the direct representation of the Canadian UTU membership, including but not limited to the LO-60 account.

d) Direct the UTU International to provide the source and authorization of the donated #30,000.00 to the “Save Our Union” fund.

e) Direct the UTU to put into “Trust” all Canadian Dues, except for the direct operation and maintenance of the subordinate UTU bodies presently operating in Canada. Such funds to be released to the appropriate parties and at a time as determined by the Board.

f) Any other directive as determined to be warranted by the Board under the circumstances.


All which is respectfully submitted by;



____________________________ __________________________
Mr. Guy Ethier Mr. Robert Thompson
Complainant Complainant


Cc: Mr. M. Futhey, UTU International President
Mr. Garth Bates, UTU Canadian VP/Legislative Director

TRAVELLING TO MONTREAL

I will be travelling to Montreal tomorrow to assist the General Chairpersons, were needed, in the CN pension mediation session.

I expect to issue new posts (time permitting) while in Montreal.

Please keep posted.

Rex Beatty

POST REMOVAL - SECTION 37 COMPLAINT

“I was recently contacted by Mr. Brian Shell (Legal Counsel for the UTU International) arguing that it was inappropriate for me to post the section 37 complaint recently filed by the General Chairpersons.

Specifically, it was Mr. Shell’s position that the allegations against him that implied he had “threatened” Mr. Garth Bates were untrue.

Given the above, I have removed the complaint from the blog site and will let the CIRB determine the merit of the complaint.”

_________________________________________________

Rex Beatty

MY COMPLAINT AGAINST CN RAIL

On Apirl 16th, 2008 the Canada Industrial Relations Board issued the following notification;

"In the matter of the Canada Labour Code (Part 1 - Industrial Relations) and a complaint of unfair labour practice filed pursuant to sectoin 97(1) threof by Rex A. Beatty, complainant, alleging violation of sections 94(3)(a), 94(3)(a), 94(3)(c), 94(3)(d), 94(3)(e), 94(3)(f) of the Code by Canadian National Railway Company, respondent. "

________________________________________________


"This is to advise the Board has scheduled a hearing for June 16, 2008, to be held at the Board's offices located at 1 Front Street West, 5th Floor East, Suite 5400, Toronto, Ontario. The hearing will commence at 9:30 a.m.

As provided by section 47(2) of the Regulations, where a person who is notified of a hearing does not appear, the Board may proceed and dispose of the matter in the absence of that person."
__________________________________

My comments:

Although the Board has scheduled a hearing it should be pointed out, to my understanding, that the Board has not yet made a decision on whether it will retain jurisdiction over these matters. I expect that the Board may answer that question on June 16th, 2008.

Please keep posted.

Rex Beatty

RAILWAY ARBITRATION FUNDING – UTU POSITION

The following quoted letter states the position of the UTU International as it relates to the funding of the Canadian Railway Office of Arbitration and Dispute Resolution (CROA & DR);


“Mr. Garth M. Bates
Canadian Vice President/Legislative Director
71 Bank Street, 7th, Floor
Ottawa, ON K1P 5N2
Canada

Dear Sir and Brother:

This is in response to your letter dated April 1, 2008 concerning the submission of an invoice in the amount of $11,900.00 for a proportional share of costs associated with the maintenance of the Canadian Railway Office of Arbitration & Dispute Resolution (CROA & DR).

Although these costs were previously paid for by the International, as they pertain to matters relative to the collective agreement and its grievance resolution process, these costs are more appropriately shared amongst the General Committees of Adjustment who use the services of CROA & DR and as such, are returned to you for further handling and progression from such General Committees of Adjustment.

Once the respective General Committees have determined their respective apportionment of costs, they need only request payment to be made from their respective funds as they do in the normal course of handling vendor payments.

Fraternally yours,

M. B. Futhey Jr.
International President

Cc: A. Martin III, Assistant President
K.N. Thompson, General Secretary & Treasurer
S.L. Collins, Director of Finance”


____________________________________________

My comments:

What the UTU International does not appear to understand is that the participation in the CROA & DR is mandatory under the Collective Agreement and the application of Section 57(1) of the Code which states;

“Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.”

As it presently stands, grievances (including dismissals) which require an arbitrated settlement may, given the UTU Internationals stated position, not get resolved due to non-payment, this all to the detriment of the Canadian membership.

The actions of the UTU International make it imperative that the CIRB address the alleged violation of the Section 37 as recently submitted by Guy Ethier and Robert Thompson.

Section 37 states;

“A trade union or representatives of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.”

It is my understanding that the General Chairpersons are considering all their options to address the situation which, among other things, may include the raising of dues.

Please keep posted for further updates.

Rex Beatty

CN MANAGERS – OVERTIME

As many of you are aware running trades employees at CN Rail have consistently complained about CN Managers performing their work.

The recent announcements that some Managers are seeking leave to initiate a “class action” law suit against CN Rail, could, if successful, demonstrate what many of you have alleged for some time, Managers doing Bargaining Unit Work in violation of the Canada Labour Code.

In consideration of the above I wish the CN Managers success as they move forward to address the issue of “unpaid overtime”.

Any Manager seeking information on the above initiative should view the following web site;

http://www.unpaidovertime.ca/.


Rex Beatty

VIDEO OF THE UTU CONVENTION – ACKNOWLEDGEMENTS

On March 18th, 2008, I received the DVDs of the UTU Convention from former General Chairperson, Barry Henry. I would like to personally thank everyone who was involved in editing the DVDs to only the Canadian content. I would especially like to thank Greg Gordon of Kamloops (Local 691).

I would also like to thank Barry Henry (former Gen. Ch.), Larry Olson (former President and VP), Mike Hone (former VP) and Guy Scarrow (former VP) for their continued support of the deposed General Chairpersons, Vice-General Chairpersons and to the Canadian membership.

THANK YOU!!!!

In addition to receiving the DVDs from Barry I also received a cover letter. With permission from Barry I have quoted, below, a portion of his letter which I think is relevant and of interest to the Canadian UTU membership.

Finally, if there is any Local Chairperson from my former GCA that wishes to have a copy of the DVDs (Canadian content) please contact Guy Ethier and we will attempt to provide a copy to each of you.

Rex Beatty

Barry Henry’s Cover Letter, in part;

“The UTU provided Delegates with a 5 disk set of the entire convention. Not many of us wanted to watch a very prolonged and expensive night of praise for paul thompson. For that reason we watched the entire convention and laid out the times that were relevant regarding our Sister and Brother’s appeals before the Delegates as well as the motion regarding Canadian autonomy and elections of our Officers by the People for the People.

Brother Greg Gordon, a Member of Local 691 in Kamloops, British Columbia volunteered his time and expertise to put this video together…

…There were several occasions where our Leaders were mocked, shouted down and treated in a most shabby manner. And, that was from the floor. It is our understanding that secord had security remove our Leaders from the foyer outside the Convention Hall.

When the Delegate from Kamloops, he being one of the 16 wearing a silly hat during Silly Hat Week, started naming all of the Delegates he, and the other silly hatters wanted removed from the convention, that little guy, who was never really elected to any position at any convention, namely paul thompson, should have immediately ruled him out of order and silenced his microphone. But no thompson relied on some guy who was his Parliamentarian, and who obviously does not have a grasp of proper procedure and allowed the crap to continue.

This writer served this Union long enough to recall how we, as Canadians, lobbied and fought at several UTU Conventions in order to gain Canadian autonomy. In other words, we, as Proud Canadians, would vote for our own International Leaders. But, the Delegate from Jasper who sat on the Constitution Committee, urged all delegates to remove that right from the Canadians. He did this at the behest of secord….

…There is but on word that would properly describe this un-Canadian action by these self-serving servants of secord and, that word is SHAME!...

…To the many Delegates who stood up for Justice, including both Canadians and Americans, we salute you! It is just unfortunate that there are not more like them.

May we suggest that, if you have the expertise at the Local level, that you arrange to make more copies available and distribute them to the Membership that you represent.

Better yet, why not call a Special Meeting and share the experience together…”

END