RE: SANDHOUSE - RUMORS AND COMMENTS - UTU VP SCARROW SETS THE RECORD STRAIGHT ON BLE/VIA RAIL

Note: The following letter by UTU Canada Vice President W. G. Scarrow sets the record straight on the BLE’s "improper collaboration" with VIA Rail to eradicate the craft of conductor from Canada’s national passenger rail carrier.

November 16, 1999

Mr. Charles L. Little,
International President,
United Transportation Union,
14600 Detroit Avenue,
Cleveland, OH 44107

Dear Sir and Brother:

RE: SANDHOUSE - RUMORS AND COMMENTS

This is further to our discussion on the recent "Sandhouse" web site posting, regarding the BLE’s decision to eradicate Conductors and Assistant Conductors from VIA Rail’s passenger trains. Although the document requests the whole truth and nothing but the whole truth, it is far from accurate or truthful.

The request by Mr. Ed Breaux to determine the whole truth and nothing but the whole truth resulted in a carefully orchestrated attempt by the BLE to pull the wool over their members’ eyes, yet again. The article has been well circulated to all BLE Divisions in Canada, as well as the U.S. It is, therefore, necessary to correct the misleading diatribe.

The first paragraph of the BLE’s explanation document acknowledges that the BLE General Chairmen were responsible for the VIA Rail fiasco. They fail to mention the fact that these same BLE General Chairmen, with the exception of one, attended very few of the negotiation sessions. The BLE’s Vice President admitted, while testifying under oath before the Canada Industrial Relations Board (CIRB), that he attended very few of the sessions, as he was out of the country most of the time. This should give the members an idea of how serious the BLE entered into the negotiations, which resulted in the eradication of Conductors.

In paragraph two the author explains that he has been confronted with a very difficult challenge in trying to explain the reason for the CIRB decision. As you are aware the CIRB determined that the BLE was in violation of the Canada Labour Code, for their gross misconduct in representing their Conductor and Assistant Conductor members, on VIA Rail.

The BLE is attempting to place blame on the CIRB Hearing Officer, as in their view, " Madame Pineau did not understand, or take into account all of the relevant factors, and this alone may explain why the decision reads as it does."

The author of this statement didn’t even bother attending the CIRB hearings. As a matter of fact, the BLE didn’t use any of the BLE General Chairmen to testify before the CIRB. They relied solely on the testimony of BLE Vice President G. Hallé, to defend their actions in front of the CIRB.

The BLE has the audacity to state, "The UTU understands how partial information without history and relevant documents can work in their favour." It is extremely difficult to comprehend how they can criticize the findings of the CIRB. Especially so, when reviewing the BLE’s campaign promises during the VIA representation vote.

The CIRB criticized the BLE for their incompetence in the negotiation process, and as well, made reference to the "campaign promises", that were not lived up to. The "do anything to win" campaign has blown up in their faces. Had the BLE delivered on their rhetorical promises, they would not be in the undesirable position they have created.

Had they done their homework and acted in a responsible and effective manner, they would not have been found guilty in this serious charge. They ignored advice and opinion from both the CIRB and VIA Rail.

VIA Rail advised the BLE during negotiations, it was "their" legal opinion that in mergers of this sort, the dovetailing of seniority was required. The BLE was so adamant to get even with the UTU, they ignored this legal opinion and wiped out approximately 40% of their own members. The CIRB quickly determined that the BLE’s animosity towards the UTU was a determining factor in the resulting agreement. The BLE provided documentation at the CIRB hearings that clearly showed they were aware of this legal opinion. As well, the BLE did not rebut this assertion during these hearings.

To their detriment, the BLE chose to ignore the statements and directions from the CIRB contained in the decision acknowledging the BLE as being successful in the representation vote. The CIRB also raised the issue of VIA creating 70 new positions in the coaches of the passenger trains, designed to assume the service duties of the Conductors and Assistant Conductors. They asked VIA’s Senior Vice President if there was going to be consideration for the Conductors, in doing this work. VIA’s response to this, was yes. It is my understanding that these new positions are now in excess of 100 employees. The BLE did not make even a half hearted attempt to secure this work. They simply allowed another bargaining unit to take over these duties.

The CIRB also asserted that as the duties of the Conductor and Locomotive Engineer were being merged, then each of the classifications should have equal opportunity to the newly created "Operating Engineer" positions. The BLE totally ignored this directive.

The BLE’s attempt to explain the creation of the Transfer Agreements for the operating employees, is another typical misleading assertion. The truth of the matter is, the UTU spent several arduous and time consuming months negotiating an agreement that contained full protection for our members, should they lose the ability to work as Conductor or Trainman at VIA Rail. We achieved something that no other union was able to achieve, and that was lifetime flow back between CN and VIA Rail, as well as a sound mechanism to accommodate any member that became disabled. The BLE went in several months later, and signed a "Me Too" agreement.

When they signed the infamous Crew Consist Adjustment Agreement (CCAA), they not only wiped out the ability to go back and forth between CN and VIA, they also eliminated positions that our disabled members had relied upon, should they become medically restricted.

Although the BLE document was supposed to explain the whole truth, the reference to the Material Change notices is a total misrepresentation of the actual facts. Contrary to the BLE’s assertion, the notices did not transfer the duties of the Conductor and Assistant Conductor to the Locomotive Engineer. VIA’s Material Change notice, and their submission to the CIRB, was to merge the duties of the separate classifications into a new classification referred to as an Operating Engineer. This is the reason that the CIRB made the above referred to statements.

The BLE also professes to be adverse to the corporation’s position that the Material Change could be used to eliminate an entire craft. This is a bold faced lie. The truth of the matter is, the BLE wrote the CIRB and agreed that VIA was correct in applying the Material Change provisions, and that the UTU’s challenge was wrong.

It is a matter of record that the UTU was contesting the applicability of the Material Change. As well, one of the BLE’s General Chairmen was also contesting VIA’s position. While this was being done, the two BLE General Chairmen went ahead and signed the secret agreement. They literally stabbed a fellow officer in the back. It is interesting to note that the BLE General Chairman that was fighting with VIA, had the most members affected. The BLE assertion that the "Secret Agreement" was provided to the BLE members who would be affected by it, if VIA and the UTU reached an agreement, is a total misrepresentation of the truth and facts. The Secret Agreement was reluctantly produced as a result of a subpoena, and directive of the CIRB. This document was kept undercover for months, and would not have been produced had the CIRB not directed the BLE and VIA to release it. If this is an example of the whole truth and nothing but the whole truth, it is not much wonder that the CIRB found the BLE guilty of unfair labour practices. In my view, the reason it was not shown to the UTU, was because they were ashamed of it.

The final sentence in the BLE’s paragraph two under their VIA Negotiation Article, reads as follows: "Did the BLE have cause to think that the UTU might agree with VIA, and sell the jobs of Conductor and Assistant Conductor? Just look at the history, and you tell me."

This comment comes from one of the individuals that sold out a fellow BLE Officer. When I heard rumours that the BLE was about to sign a deal with VIA Rail, I telephoned retired BLE General Chairman Brother Cliff Hamilton to see if there was any truth in the rumour. He advised that he was not even close to an agreement, and as a matter of fact he had filed a grievance against VIA. I then asked what his counterparts were doing and if they were supporting him, and he responded no, and added, "They eat their young you know". You can rest assured that Brother Hamilton did not collaborate with VIA, as he was the only BLE General Chairman who knew what VIA intended with the Material Change notice, in the end.

The following page asserts, "It is important to remember, that prior to and while the separate (BLE and UTU) contract negotiations were taking place, the CIRB was hearing the issues relating to the abolishment of the Conductors and Assistant Conductors. This is absolute malarkey, and about as far from the truth that one can imagine.

The CIRB suspended hearings in August of 1997 while the vote was taking place. The open period of the contract was not until October 1, 1997, and demands were not served until this time. The BLE was given the right and privilege to represent Conductors effective November 1, 1997, and they didn’t begin negotiations until after this time.

The question was posed, " Why would the UTU, who had fewer members at VIA, support an election between the two unions?" The answer is apparent. When the Secret Agreement was finally produced, the UTU realized if there was going to be any salvation for the operating crews at VIA, there was a need to have a single union. Our decision was based on the following facts:

The BLE had already stabbed their fellow General Chairmen in the back.

The BLE had committed a serious error by agreeing that the Material Change provisions applied in the carte blanche elimination of a craft, when the two BLE General Chairmen signed the Secret Agreement, that stabbed their own brother in the back. The Secret Agreement also jeopardized the Second Engineer’s position.

If the representation vote was not held prior to the upcoming contract, and negotiations failed, VIA would have forced the UTU on strike, and there was concern that the BLE would not honour our picket lines, as had been experienced on the Soo Lines.

We had also heard a rumour that the BLE had another "Secret Deal" with VIA, and were not sure what this might entail. (It was later determined that the BLE had in fact concealed another Secret Agreement from their members.)

These were the reasons that we sought an election. The BLE had shown their negotiating skills by signing an agreement that would ultimately result in their own demise. The UTU was seeking to provide protection for all operating crew members.

The document goes on to say that negotiations continued until June 1998, but does not say anything about negotiations ceasing, because the majority of the Committee were not satisfied with the deal being offered. At this point in time there were several ex-Conductors involved with the negotiations. In the absence of the ex-Conductors, the BLE requested VIA give them one more chance, as they were concerned that VIA would arbitrarily implement by dovetailing the seniority, as per the legal opinion that told VIA they had to do so. The BLE did not negotiate the deal, VIA dictated it to them. The BLE got cold feet and ran.

The BLE relays that they revised their demands, to encompass the concerns of the Conductors. They conveniently forgot to mention the fact that the UTU had served the demands originally on October 1, 1997, and then forwarded a copy to the BLE when the CIRB confirmed they were the new bargaining unit. We also provided them with a detailed strategy of how to proceed with the Material Change and upcoming negotiations. This list was provided to each and every BLE Officer and Committee person on the negotiating team. The BLE totally ignored this advice, as well as the UTU’s offer to assist, if requested.

The BLE asserts that many of the complainants simply joined into the process as they were allegedly seeking a method to better themselves. It is alleged that these members voted in favour of the agreement. It is uncertain how Mr. Simpson knows this, as it was my understanding the vote was by secret ballot. If it was a secret ballot, I suggest that this opinion is simply conjecture and certainly not worthy of acknowledgement.

The author goes on to assert another unfounded and unsupported statement. He states that Mr. Doug Dillon was not denied membership in the BLE, but was simply denied the right to strike up his own Division. It is my understanding that Mr. Dillon was not seeking to start his own Division, but attempting to have a separate Local Committee of Adjustment, as provided in the UTU Constitution. Mr. Dillon was an active member in the UTU, and realized that the basics for craft "autonomy" and "protection of crafts" were dependent upon the establishment of separate Local Committees of Adjustment.

Needless to say, had there been a craft vote on the Crew Consist Adjustment Agreement, it would have never been ratified. As stated in the CIRB Decision, the BLE used the higher number of members in an unaffected craft to push an agreement through. The author goes on to say that he agrees with the CIRB’s directives, regarding the Transfer Agreement and the selection process for Conductors and Assistant Conductors.

He does fail to acknowledge that the UTU advised the BLE that CN was going to challenge the applicability of the Transfer Agreement, and would not permit the surplus employees to flow back to CN. The UTU advised the BLE, in November 1997, that they should not sign any agreement with VIA until they had written confirmation from CN agreeing that employees could flow back. The BLE totally ignored this advice and set the surplus employees up for a waiting game. They concluded an agreement with VIA that required the BLE to grieve if CN rejected these employees. It is interesting to note that VIA is paying the BLE’s legal bills. These facts have been conveniently overlooked. So much for the whole truth and nothing but the whole truth.

The selection process is another area where the BLE states that they can agree with the CIRB. As relayed in the material the BLE is presently involved in the process of pursuing the matter at arbitration. It is their position that the Corporation did not give fair and unprejudiced consideration. It is, of course, VIA’s position that they proceeded exactly as contemplated and agreed to in the CCAA, by the BLE and VIA. The BLE did not achieve an agreement that eliminated the ability to pick and choose. Their members were denied training for reasons that were not associated with their academic or functional abilities, because the agreement allowed VIA to select who they wanted.

The BLE cannot accept the CIRB directive to revisit the seniority arrangements. The BLE should have thought about this when they were at the negotiating table. They managed to get more money for the Locomotive Engineers, so why couldn’t they negotiate something that positively affected the Conductors? The CIRB couldn’t understand this either.

In the author’s own words, here is where the issue becomes more complicated. Assuming that the BLE had agreed to dovetail the seniority, it would have created an unworkable situation between CN and VIA, because of the wording in the Transfer Agreement. He explains that once a Conductor was returned to CN, he would thereafter be unable to get back to VIA at a later date, because he is not on the CN Locomotive Engineer’s list.

Although he now realizes this inequity, he did in fact sign an agreement that creates the same problem. Those who are ultimately accepted to take the training at VIA, do not have presence on the CN Locomotive Engineer list. If they are cut off at VIA and revert back to CN, they still do not have an avenue to get back to VIA.

There were several options available to the BLE. They could have taken a stand for the 100 or so jobs they gave away to another bargaining unit. They simply could not ignore the years of service that these senior members had acquired, and send them packing. A real union might have even thought about a strike. Sometimes tough situations require tough bargaining.

Although the BLE asserts that the only real solution was that which the BLE negotiating committee was proposing from the beginning, it’s unfortunate they didn’t aggressively pursue it. The BLE is now sitting back and pointing fingers at everyone else for their shortcomings. They had an opportunity to prove that they weren’t a one "craft" union, and show that they could represent all their members in a proper and responsible way.

The variance between the "Secret Agreement" and the Crew Consist Adjustment Agreement is so minute that the CIRB saw through the charade and directed the BLE and VIA to correct their improper and biased agreement.

The Pension Agreement in the BLE’s CCAA was not their doing. The CAW, the union that the BLE voluntarily gave the approximately 100 newly created positions to, had already negotiated the Pension Agreement before the BLE even signed their agreement. This was another "me too" improvement.

That which was not addressed in the unfair labour practice charge, was the manner in which the BLE obliterated the Conductor’s position on the Transfer Assignments. Prior to the BLE assuming the representation of the Conductors at VIA, the UTU General Chairperson had negotiated a Conductor Only Transfer Agreement that was used solely to transfer trains between the station and the passenger train storage tracks. The BLE quickly eliminated this position and filled it off the Locomotive Engineer’s list, without even a thought about the several employees they threw out on the street. They forgot to mention this in their whole truth and nothing but the whole truth document.

Mr. Breaux is right, the members should know the whole truth.

There are volumes of transcripts available that will qualify the foregoing and are readily available if needed. The CIRB decision was founded on the evidence submitted, all of which is accessible to both the UTU and BLE. I can assure you that there is nothing contained therein for the UTU to be ashamed of. We relied on the facts and telling the truth.

It has now been confirmed that the BLE and VIA are both appealing the CIRB decision. It is unknown at this time whether or not VIA is paying for the BLE’s lawyer again. If it is later determined, I will promptly advise.

Hopefully this will clarify the reality of the situation, and put our member’s minds to rest. They can still hold their heads high, and be "UTU and Proud".

With personal regards, I remain,

Fraternally yours,

W. G. Scarrow,
Vice President.