Reasons for decision
complainants, and
International Brotherhood of Locomotive Engineers, respondent, and VIA Rail Canada Inc., employer, and United Transportation Union, interested party.
Board File: 18938 CIRB/CCRI Decision no. 35 October 22, 1999
The Board was composed of Ms. Michele A. Pineau, Vice-Chairperson, sitting alone pursuant to section 14(3)(c) of the Canada Labour Code (Partl - Industrial Relations), R.C.S., 1985, c. L-2, as am. 1998, c. 26. A hearing was held in Toronto on March 1, 2, 3 and May 3, 4, 5 and 6, 1999.
Mr. Cyril J. Abbass, counsel, for the complainants Messrs. George Cairns, Ken Chorney et al.;
Mr. James L. Shields, counsel, assisted by Mr. Gilles HaIIe, for the International Brotherhood of Locomotive Engineers (BLE);
Mr. Michael Church, counsel, for the United Transportation Union (UTU); and
Mr. Jean Lafleur, counsel, assisted by Mr. Bannon E. Woods, for VIA Rail Canada Inc. (VIA).
These are complaints of unfair labour practice filed pursuant to section 97(l) of the Canada Labour Code, alleging that the BLE acted in a manner that was arbitrary, discriminatory and in bad faith in its representation of employees as a result of the merger of two bargaining units, in violation of section 37 of the Code.
The background to this complaint is particular to the railroad industry, as it relates to running trade employees. Railroad employees have been organized for almost 100 years along two craft lines: the locomotive engineers represented by the BLE and the trainmen (conductors, assistant conductors, yardmen and switchmen) represented by the United Transportation Union (UTU). Until the 1970s, passenger and freight services were provided by CN and CP until passenger services were transferred to VIA as a result of the enactment of federal legislation. These services were staffed through a series of agreements with CN and CP as well as the UTU and the BLE.
As well, efficiencies brought about during the 1960s and 1970s led to a restructuring, and downsizing of the rail industry gave rise to special agreements in or about 1977 to deal with these changes, which had the effect of superseding material change provisions in existing collective agreements. These special agreements were essentially the predecessors of the technological change provisions that became part of the Code and that are designed to reduce the adverse effect of these changes through a negotiated settlement. In 1987, the material change provisions in the railway industry were renamed "Article J" and were reaffirmed in a Special Agreement. Accordingly from 1987 to 1991, Article J notices were used to enact material changes, including
changes at VIA. However, in late 199 1, the Special Agreement lapsed with respect to crew reduction notices, and parties to collective agreements reverted back to the material change provisions of their respective agreements whenever crew reductions were contemplated. This lapse had the effect of requiring any notice of any material change to be served individually on each union affected by the material change.
Meanwhile, during the 1980s and as a result of section 18 applications under the Code, CN and CP saw their bargaining units for running trades employees consolidated, and the Canadian Council of Railway Operating Unions (the CCROU) was created to bargain national issues. The CCROU is comprised of both the BLE and UTU. In 1986, VIA decided to employ its own running trade employees and negotiated transfer agreements with the UTU, the BLE and CN (excluding CP).
Contrary to CN and CP, however, the running trades at VIA remained in separate bargaining units until VIA decided in March 1997 to serve both the BLE and the UTU with material change notices. Simultaneously with these notices, VIA filed an application with the Board for a review of the bargaining units pursuant to section 18 of the Code. Before the Board, VIA submitted that it intended to abolish the two current classifications of locomotive engineer and conductor and to create a new classification of "operating engineer," whose duties were to include the present duties of locomotive engineers and the greater part of the conductor's duties, inasmuch as they relate to railway rules and regulations. The remaining conductor's duties, which represented approximately 20% of the job description and related to in- duties, were to be transferred to members of another bargaining unit represented by the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), known as "on-board services" employees. Also before the Board was the fact that this "crewing initiative," as it came to be called, would result in the loss of some 250 running trades positions and the creation of 70 other positions in the CAW bargaining unit.
In September 1997, the Board ordered the merger of the two units and ordered a representation vote (VIA Rail Canada Inc. (1997), 104 di 67; and 38 CLRBR (2d) 124 (CLRB no. 1206)); the BLE emerged as the successful union to represent the new bargaining unit, including all former UTU
Prior to the Board ordered vote, and as part of the procedure under the material change notice provided in the collective agreements, the eastern and western divisions (but not the central division) of the BLE negotiated with VIA a joint Memorandum of Agreement dated May 12,1997, which was designed to minimize the impact of these changes on affected employees in the bargaining unit. The agreement was to be implemented on January 1, 1998, but was conditional on a similar agreement with the UTU. As will be seen later in these reasons, a series of events took place, which resulted in this agreement never coming to pass. Its impact, however, is that it was used by the BLE as a basis for its campaign in the Board ordered representation vote and eventually as the construct for the Crew Consist Adjustment Agreement, which is the focus of these complaints.
It is also significant that when the material change notice was served upon the unions in March 1997, a collective agreement was still in force between the unions and VIA. (The expiry date of the UTU and BLE contracts was December 31, 1998.) Thus, the significance of the employer's timing was that in the event the parties could not negotiate an agreement on the material changes, the matter had to be referred to compulsory arbitration in keeping with the provisions of the collective agreements. However, the employer could not foresee that the period of time that would elapse between serving the notice, the Board hearings, the representation vote and the certification by the Board would bring the parties into the notice period for collective bargaining. Therefore, in the event that the parties were unable to come to an agreement over the material change notice, the matter could now be the subject of a strike vote as part of the collective bargaining process rather than an arbitration hearing. This change of timing also played on the balance of power between the parties by placing the employer in such a position that it could no longer force an implementation date for the crewing initiative.
It is in this context that on April 8, 1998, when negotiations came to a standstill, VIA decided that the collective agreements had lapsed and not only could it implement the crewing initiative but it could unilaterally impose the terms and conditions as it saw fit. Not unexpectedly, the BLE filed a complaint before this Board, alleging that the employer's decision to apply the crewing initiative job
assignment procedures to the conductors and assistant conductors during the freeze period amounted to a lockout contrary to section 92 of the Code. The Board found that the requirements of section 89(1) had not been met and that VIA violated the freeze provisions of section 50(b) (VIA Rail Canada Inc. (1998),107 di 92; 45 CLRBR (2d) 150; and 99 CLLC 220-0 10 (CLRB no. 1233)). The Board ordered the parties back to the bargaining table to conclude negotiations or until the right to strike was acquired under the provisions of section 89 of the Code.
After the Board's order, negotiations continued and a tentative agreement, including a Crew Consist Adjustment Agreement, was agreed to by the three regional general chairmen of the BLE. The agreement was put to the membership and ratified by a close majority carried by the locomotive engineers. This complaint arises out of the consequences of the Crew Consist Adjustment Agreement, which is "Appendix A" to the collective agreement.
The complainants are conductors and assistant conductors, all former UTU members, who allege that the provisions of the Crew Consist Adjustment Agreement were negotiated to their detriment in favour of the locomotive engineers.
Their many complaints are captured in the following summary.
The BLE acted in an arbitrary, discriminatory and in bad faith with regard to conductors and assistant conductors in the bargaining unit when:
I I it agreed to a selection process for training conductors and assistant conductors to become locomotive engineers;
12 it negotiated "bottom down" seniority provisions for conductors and assistant conductors;
13 it informed conductors and assistant conductors that they could flow back to positions within CN;
14 it made so-called "campaign promises" to the conductors and assistant conductors that it would negotiate an "enhanced standard of living" and "would respond to the collective wishes of the VIA Rail employees";
15 it negotiated a $120 premium per pay period to be paid to locomotive engineers for additional duties;
16 it accepted a $3 7,000 sum for the betterment of labour relations as a result of signing the
collective agreement, including the Crew Consist Adjustment Agreement;
17 it left the decision on the crewing agreement in the hands of the employees.
Mr. Doug Dillon and Mr. Michael Galvin, conductors with 34 years of experience with CN and VIA, testified on behalf of all the complainants. As a result of the signing of the crew consist agreement, Mr. Dillon became unemployed and Mr. Galvin is presently awaiting a transfer back to CN. Their common understanding of the initiative was that the newly created position of "operating engineer" would be a merged position, which provided equality between the bargaining units and dovetailing of the seniority lists. This included equal access to training, severance, transfers and early retirement provisions, and a number of other benefits. In their view, the Crew Consist Adjustment Agreement favoured the locomotive engineers and failed to provide any real benefits to the conductors. For example, the conductors were required through a qualifying process for training while the locomotive engineers automatically qualified for training and, consequently, the newly merged position; locomotive engineers kept their rank on the seniority list, while the conductors were placed at the bottom of the seniority list, according to the date on which they qualified as locomotive engineers, and could no longer transfer back to CN. Both felt it was most unfair that they should have to rebuild their seniority after 34 years of employment with CN and VIA. They also testified that employees who have elected to return to CN are presently without a position and are paid to stay at home while VIA sorts out its differences with CN on this subject.
By way of an example of the inadequate representation by the BLE, Mr. Dillon explained that when the conductors became BLE members on October 31, 1998, the BLE would not admit them as regular members. An appeal had to be made to the national executive for the conductors to be admitted as active members. Mr. Dillon testified as to animosity of the locomotive engineers at having conductors trained to qualify as locomotive engineers. He explained that employees of these two crafts have always been able to flow back between the two different unions at VIA and at CN, when they could not hold a job in their craft and qualified for both crafts, as well as through the twice annual bidding process.
Mr. Dillon was critical about how the May 12, 1997 agreement between the BLE and VIA was not immediately revealed to UTU members and only came to light as a result of the Board hearings in April 1998. In view of the BLE's coyness in not publicizing this agreement, it was christened by UTU members as the "secret agreement." He believes that this secret agreement was the basis for the final Crew Consist Adjustment Agreement and that the BLE knew that it would be carried by the locomotive engineer group since they had the majority in the bargaining unit. He pointed out that the material change notice should have been challenged before a third party as originally planned by the UTU rather than passively accepted by the BLE.
Mr. Galvin testified that although he was selected for training on June 30, 1998, he was told the following day that he no longer qualified, which he later learned was due to three minor disciplinary infractions that took place in 1996 and were not related to his experience and competency as a conductor. The denial of training for the entire conductor group has been grieved and referred to arbitration.
As one of the employees who opted to return to CN, he cannot exercise that option at this time and has seen his present and future earnings significantly reduced since he no longer receives overtime pay, which in the past represented a significant part of his salary as a conductor. He was further frustrated by the limited severance options given to the conductors and the pressure exerted by VIA to make a hasty decision on those options without the benefit of appropriate time to evaluate the
consequences of their choices.
He criticized the $200 special assessment levied by the BLE to fund the challenge to the material change notice, which was in fact never initiated since the crew consist agreement was finalized without the necessity of legal action. He asserted that he was unaware that the special assessment had paid for the expenses of Mr. Les Lisle and Mr. Bernard Leclair who were representatives on the negotiating team.
Mr. William Scarrow, national vice-president of the UTU and a seasoned negotiator, testified that in his initial discussions with VIA, he understood that the intent of the crew consist reduction was to create a new position of operating engineer with an expanded on-board services position. The majority of the conductor's duties were to be combined with those of the locomotive engineer, which included that portion of the work that could be done from the engine.
In the fall of 1997, while awaiting the outcome of the representation vote, the UTU drafted contracted proposals on behalf of the conductors, which were passed on to key people in the BLE, including all BLE chairmen. These proposals included a demand that the 70 on-board services positions created as a result of the merging of the positions of locomotive engineer and conductors be awarded on a priority basis to former conductors.
Mr. Scarrow criticized VIA's practices by describing the better conditions at CN whereby conductor positions were enhanced by providing mandatory training to allow them to qualify as locomotive engineers as well as to alternate with the locomotive engineer on certain runs. He also offered as an example of dovetailed seniority what occurred at Quebec North Shore and Labrador (QNS&L) railroad. He testified that through his contacts in the railway industry, he became aware that one of VIA's negotiation strategies was that in the event of an early agreement with the BLE, it would agree to a "top-bottom" seniority list; however, should they not agree, VIA would unilaterally implement a dovetailed seniority list.
He recalled the events that created a lingering animosity between the BLE and UTU over the
implementation of the "belt pack agreement" and the ='s perceived success in obtaining positions at the BLE's expense. He believed that had the UTU negotiated the Crew Consist Adjustment Agreement, it never would have done so without obtaining full training rights for the conductors, flow-back rights, access to on-board services jobs and appropriate relocation payments. He commented that even if the conductors were to return to CN, their training and skills would need serious updating to meet CN present needs.
Mr. Scarrow compared four previous instances of lump-sum payments made by CN that had been used to benefit employees affected by crew reductions and not general union administration.
Finally, he criticized the BLE for not conducting a ratification vote of the Crew Consist Adjustment Agreement along craft lines so as to reflect the true feelings of the members. He concluded that the BLE had sided with the employer in the demise of the conductors as a running trade at VIA. Thus, it came to pass that conductors who lost their jobs or did not qualify for training did not obtain a wage increase or equivalent compensation, whereas the locomotive engineers who all qualified for the new duties through mandatory training obtained significant wage increases and protected seniority.
Mr. Gilles HaIIe, the Canadian Director for the BLE, explained in his testimony that in 1984, the locomotive engineers were the last group of employees to be transferred to VIA, To provide employment protection to this group, a transfer agreement including a "flow-back rights" clause was negotiated between CN, VIA and the BLE, which provided that where a locomotive engineer could not hold a position with VIA in his own classification, he could return to CN with full seniority. It is in this manner that the VIA seniority list became identical to the CN list. However, any new locomotive engineer hired directly by VIA after that date is automatically placed at the bottom of the seniority list and is not protected on transfer to CN. In the case of a vacancy at VIA, the position is advertised at both VIA and CN and the most senior locomotive engineer who bids secures that position. Consequently, if the CN employee is more senior than the VIA employee, the CN employee is entitled to the position.
According to Mr. Halle's understanding of VIA's crew consist reduction, VIA wanted to eliminate the conductor position, as well as to transfer the "rule book" part of the duties to the locomotive
engineer and the remaining duties to on-board services personnel. While he was not involved in those negotiations, he understood that the May 1997 agreement was but a preliminary step, since the BLE did not represent the conductors and assistant conductors at that time, and that it was conditional on VIA concluding a similar agreement with the UTU. While the results of the vote became known by the middle of September 1997, the Board's certificate was not issued until October 31, 1997.
The results of the vote notwithstanding, the BLE gave notice to VIA on October 1, 1997, on behalf of the locomotive engineers, to commence collective bargaining. Their contract demands were forwarded to VIA on October 16. At about the same time, Mr. HaIIe addressed letters of concern on behalf of all running trades to the Transportation Safety Board and the Minister of Transport with respect to the reduction of work crews on the trains and its impact on railroad safety.
With the presence of conductors in the bargaining unit and a copy of their demands, Mr. Halle thought of looking for a person to help him with the conductors' collective agreement and as a result spoke to Mr. Bernard Leclair, a former general chairman for the UTU. New contract demands were added to the BLE's list as "Block Three Issues" and forwarded to VIA.
Concurrently, the locomotive engineers and conductors successfully petitioned the BLE executive to appoint Mr. Les Lisle to the negotiating committee, along with the three general chairmen, and Mr. HaIIe as their spokesperson. Mr. Lisle was assigned to work on various committees.
During December, negotiations between the BLE and VIA soured as a result of a dispute concerning the applicability of the collective agreements and the numerous grievances previously filed by the UTU on behalf of conductors. Negotiations were suspended during January and February 1998, in part due to the now infamous ice storm and because Mr. HaIIe was chairing parallel negotiations with CN on behalf of the rail traffic controllers.
In January 1998, VIA summoned all locomotive engineers to attend training for the duties being added to their job description.
On February 13, 1998, the BLE wrote to VIA and took the position that it considered the memorandum of May 12, 1997 to be defunct since the January 1, 1998 implementation date for the crew consist initiative had now passed, and it no longer considered itself bound by its previous agreement of May 1997. These issues were folded into national negotiations as the BLE was now in the open period of the contract.
Negotiations came to a standstill in March 1998 and the BLE applied for conciliation. On March 6, 1998, a conciliator was appointed. Through the conciliator, the BLE tried to negotiate an attrition process to meet VIA's demands under the proposed crew consist agreement and to integrate newly trained locomotive engineers from the ranks of the conductors. Mr. HaIIe also proposed that 15 baggage handling positions be maintained and that VIA create a spare board at all VIA terminals, which had a potential for creating 20 jobs. He also proposed that any retiring locomotive engineer be replaced by a newly trained conductor. Concurrently, Mr. HaIIe negotiated a temporary agreement with BLE local chairmen at CN to suspend the advertising of VIA positions at CN pending the internal attrition process. None of these proposals were accepted by VIA.
On April 3, there was no significant progress in negotiations, and on April 13, VIA issued a letter to the BLE informing them of its intent to merge the positions of locomotive engineer, conductor and assistant conductors as of April 16, 1998, with or without the BLE's agreement.
As a result of this ultimatum, the BLE sent a letter to the Minister of Labour seeking consent to file a complaint with the Board pursuant to section 97(3) for an alleged failure to comply with section 50(b). On April 23, 1998, the Board upheld the BLE's complaint that the collective agreements continued to apply. VIA was unable to implement its crewing initiative.
On May 20, 1998, the conciliator filed a no board report. As a result, the BLE negotiating committee discussed with Mr. HaIIe the possibility of returning to the bargaining table with VIA to see if anything more could be done about an agreement on the crewing initiative. One week later, in the absence of Mr. HaIIe the negotiating committee, admitting little progress, decided to sign off the
proposed agreement and, after discussion with Mr. HaIIe let the membership decide on whether to accept the agreement. The agreement was ratified by a very close vote.
Throughout negotiations, no training had been undertaken with the conductors, as the BLE had been unsuccessful in convincing VIA to enter into a joint training program for them. Mr. HaIIe admitted that while they favoured "unprejudiced consideration" to anyone wanting to be trained, in the end, the selection, training and final qualification process was in the hands of the employer. He confirmed that the selection process was presently the subject of a grievance that had been referred to arbitration.
Mr. Halle's explanation for not merging the seniority lists was that it was not possible to dovetail the locomotive engineer and conductor lists because this would have had the effect of moving a newly qualified conductor ahead of an already qualified locomotive engineers on the seniority list. Furthermore, this initiative would have an adverse effect on the 1,500 locomotive engineers at CN who were entitled to flow back to VIA through the bidding process. Mr. HaIIe explained that the suspension of the CN transfer agreement in order to fill the VIA positions resulting from the crewing initiative was only temporary in order to allow conductors in training to qualify and replace locomotive engineers choosing to retire under the crewing initiative. It is only in this sense that the conductors have a right of preference ahead of CN locomotive engineers under the Crew Consist Adjustment Agreement.
In cross-examination, Mr. Halle admitted that 35 to 40 locomotive engineers will retire as a result of the crewing initiative, so that once these locomotive engineers have retired and been replaced internally by newly trained conductors, CN locomotive engineers would once more be able to bid on VIA jobs. According to CN general chairmen, this was a one-time waiver to allow attrition resulting from the crewing initiative. After the waiver period, 1,500 CN engineers have priority on any vacant VIA position over recently trained conductors already at VIA.
As BLE spokesperson at the negotiating table in 1997-98, Mr. HaIIe considered the impact of the loss of jobs and not seniority as the most important issue for conductors and assistant conductors.
He took the further position that VIA could not call the merged position an "operating engineer" because all the rule books, the legislation and the certification documents referred to locomotive engineers. Thus, the title of locomotive engineer was maintained.
Mr. HaIIe admitted that during the campaign to represent the merged bargaining unit, no agreement was reached with CN about whether the transfer agreement would apply. He was not immediately concerned because CN had not challenged a previous so-called "Mackenzie Agreement," nor had it challenged previous crew reductions at VIA. He did not find out about CN's intentions to block the flow-back until the matter came to light during the Board's hearings in April 1998. In his opinion, the difficulty is merely a financial difference of opinion between the corporations.
Mr. HaIIe stated that he agrees with a selection process for conductors because, based on his experience at CN, not all can be trained as locomotive engineers. He acknowledged that he was unfamiliar with the UTU's unsuccessful arbitration challenge involving selection for training.
The complainants argued that in this case, it was well known that VIA wanted to reduce its crews. What the BLE did was to leave the decision in the hands of the employees, knowing full well that the majority of the locomotive engineers would not turn down an agreement that was so clearly in their favour. What was the incentive to strike over an agreement that provided them with job guarantees, maintenance of seniority within the bargaining unit, a substantial pay raise and a fund for their union? In proposing such a one-sided contract to the membership, the union did not fairly acknowledge and provide for the minority's competing interests of job security, seniority and other critical employment rights.
The BLE allowed extraneous factors, such as the results of the belt pack agreement, to fuel the hostility of the locomotive engineers towards the conductors. By agreeing to a selection process that
had such adverse effects on the conductors and assistant conductors, particularly as it implied loss of seniority, the union lacked objectivity in its dealings with the employer. Nor did the BLE keep its representation campaign promises that it would obtain for the conductors the same conditions it had obtained for the locomotive engineers in the May 12, 1997 agreement.
As he was not present when any of the crucial agreements were concluded, Mr. HaIIe could not address the complaint's substantive issues. The BLE was negligent in not investigating whether there was a problem with flow-back rights or whether the CN transfer could be modified until this state of affairs was revealed in April 1998. By taking a negotiating position that precluded the dovetailing of seniority lists, the BLE did not put its mind to the consequences of this position on VIA conductors and assistant conductors.
The BLE led the conductors and assistant conductors into believing that they would all receive the training they needed and could legitimately expect to qualify as locomotive engineers. Furthermore, while Mr. Leclair and Mr. Lisle were present and consulted, they did not have the same standing or authority as the general chairmen. The conductors and assistant conductors deserved to be independently represented in matters of crew reductions, transfer agreements and the consequences on seniority.
The complainants cited the following cases in support of their arguments: Girard Racine et al (1993), 92 di It 8 (CLRB no. 1026); Andre Gagnon (1986), 63 di 194 (CLRB no. 547); and Dufferin Aggregates, [19821 OLRB Jan. Rep. 35.
The UTU's submissions addressed the narrow issue of the belt pack agreement. It made known that the positions lost by the BLE were not transferred to the UTU and that in fact the UTU lost positions. CN scaled down the yard crews because of new technology and this affected both the BLE and the UTU, as both unions lost positions. The UTU also clarified the fact that Mr. Scarrow had proposed a number of options to the BLE that could have replaced the dovetailing of seniority.
The BLE suggested that the Board consider the complaint in two different time frames: March 7 to October 31, 1997, and November 1, 1997 to June 12, 1998. It submitted that there is no evidence that in the first period the BLE served notice of its intention to get rid of conductors; in fact, it did not even represent them at that time. Both collective agreements had material change provisions. After the notice of material change, it became quite clear that if VIA got its way, there would no longer be a traditional conductor on a passenger train and this became a very emotional issue.
The BLE emphasized that only two BLE districts signed the May 12, 1997 agreement. The central district strongly opposed the material change and proceeded on its own. UTU members mistakenly read into it that they would obtain the same benefits as the locomotive engineers, when all along it was subject to a similar agreement with the UTU. What changed the parameters was that the Board ordered a vote without hearing the merits of the application. The elimination of a bargaining unit and the division of tasks between two other bargaining units drove a wedge between two groups where there could be only one victor. Campaign literature was sent out and the vote was not only very close but divided along union lines. Mr. Halle's campaign letter was only that, campaign material and not promises.
The BLE alleged that its October 1997 contract demands are now being used to taint events subsequent to November 1, 1997. Neither the UTU nor the BLE was in a position to know which employees would be selected to fill the merged positions. Surely the Board in its decision to merge the bargaining units must have realized that there could never be 500 qualified engineers. The Board had advised the parties that collective bargaining would be difficult. This is why Mr. HaIIe actively promoted at a policy level the issue of two locomotive engineers in the train cab and the elimination of conductors as a safety concern, something the UTU had been unable to raise. In addition, the BLE decided to revise its contract demands.
During the period of March 7 to October 31, 1997, the UTU owed a duty of fair representation to its members as the BLE owed the same duty to its members. The BLE cannot be held accountable for
what was said during a campaign and there can be no reasonable expectation on the part of UTU members that they would obtain all that had been promised. The experience of UTU members should have taught them that demands put forward at the outset of bargaining are never fully obtained. The respondent took exception to the complainants' allegations that the BLE never asked for benefits for the conductors or that what they asked was mere window-dressing in view of the fact that they intended to discriminate against the conductors.
The respondent argued that the Board should not supervise negotiations, should not "sit next to the conciliator" and should not second-guess the content of the negotiation discussions between the parties.
The respondent argued that the BLE did write to CN regarding the status of the flow-back provisions and received no answer until the Board hearings on April 16, 1998. The BLE faced constant threats that the employer would unilaterally implement the May 12, 1997 agreement and, when it issued the letter on April 8, 1998, the BLE was quick to dispute the matter by seeking an injunction from the Board.
Throughout, the BLE's bargaining strategy was that reductions should be done through attrition and the union had set up a committee to show how attrition could be carried out. However, the Board ordered the parties back to the bargaining table to negotiate an agreement and extended the injunction for eight weeks or until the provisions of the Code could come into effect.
The respondent asserted that there is no evidence before the Board of what really transpired between the Board's order of April 20, 1998 and the outcome of the negotiated crew consist agreement. The Board is in no position to decide, almost a year later, why the BLE did not go on strike but decided to put the matter to a vote. There is no evidence of bad faith, discriminatory and arbitrary decision. What occurred at that time was conditioned by the emotionality of the situation. The conductors and assistant conductors had expectations and, because those expectations were not fulfilled, concluded that the BLE had disregarded their interests with impunity. They cannot be shocked that there is a selection process and that not all conductors will be trained. There is no discrimination in this
regard. If anything, this matter is best left to arbitration. Ultimately, there was no issue on which to strike since crew reductions were inevitable.
While the BLE objected to the selection process proposed by the employer, the maintenance of seniority provisions as they appeared in the collective agreement with an October 31, 1997 seniority date for the newly trained locomotive engineers was not unreasonable in view of industry practice. Nor was it unreasonable that training should be based on seniority rights.
The respondent argued that it was not within the Board's jurisdiction to draw any legal conclusions as to the meaning of the transfer agreement between CN, VIA and the BLE, but that the Board should take into consideration how traditional dovetailing of conductor lists would affect the remaining locomotive engineers at CN who are not parties to these proceedings. The Board should give the union a wide berth and should not second-guess decisions taken by union officials nor take a microscopic look at the union's motives even if it might not agree with them. Not only did the BLE take into consideration all the competing interests of the conductors and assistant conductors, it also factored in the complications of the situation as it then existed. The issues of training and transfer are presently the subject of grievances, and any Board decision could prejudice determinations that are yet to be made.
The respondent union cited the following cases in support of its arguments: Dan Reid et al. (1992), 90 di 58 (CLRB no. 972); G. Len Larmour et al. (1980), 41 di 110; and [1980] 3 Can LRBR 407 (CLRB no. 260); Gordon Rhodes (1995), 97 di 103 (CLRB no. 1113); Richard Connolly et al. (1998), 107 di 120; and 45 CLRBR (2d) 161 (CLRB no. 1235); Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Valerie Hertz et al. (1990), 81 di 96; and 90 CLLC 16,055 (CLRB no. 806); Gary Robert et al. (1986), 64 di 19 1; 12 CLRBR (NS) 289; and 86 CLLC 16,030 (CLRB no. 566); Gerard Racine et al., supra; Donald H. Mole et al. (1992), 88 di 14 (CLRB no. 933); Ian G. Black (1991), 86 di 38 (CLRB no. 890); Claude Latremouille (1983), 50 di 197 (CLRB no. 407); and Nathalie Lapointe et al. (1992), 88 di 209 (CLRB no. 952).
The employer submitted that bad faith is never presumed, it must be proved. The complainants have not provided a shred of factual evidence of bad faith or collusion on the part of VIA. The employer supported the BLE's submissions and gave credence to Mr. Halle's testimony. In contrast, the employer submitted that Mr. Scarrow's evidence was mere opinions, assumptions, presumptions and wishes, without much evidentiary value.
In reply, the complainants submitted that the Crew Consist Adjustment Agreement applies not only to conductors and assistant conductors but also to all members of the single new bargaining unit. More than half of that bargaining unit is not subject to any training and is simply given a preference to be considered for the job. Besides, all locomotive engineers have been trained in conductor duties.
The BLE cannot hide behind negotiations to obviate its duty under section 37. The crew consist agreement simply does not provide an equal opportunity to every member of the bargaining unit. Mr. Halle's representations were certainly not misleading to the locomotive engineers, they obtained everything they requested. If that half of the membership believed him, why not the other half