All avenues of appeal have now been exhausted by the BLE.

Thus, the BLE, now a division of the Teamsters Union, must pay as much as C$230,000 each to as many as 230 former UTU-represented former VIA Rail conductors -- a potential liability in the tens of millions of dollars.

Also, many of the adversely affected conductors and assistant conductors, who lost their jobs as a result of the BLE's failure to represent them in a fair manner, could be allowed to train as locomotive engineers and regain their full train-service seniority.

The BLE appealed to the Supreme Court a judgment of the Federal Court of Appeal upholding an earlier decision of the Canada Industrial Relations Board (CIRB).

These damages upheld by Canada's Supreme Court flow as retribution following the CIRB's finding of serious violations of Canadian labor laws by the BLE with the compliance of VIA Rail. The BLE and/or VIA Rail are liable for the payments on a basis yet to be determined, said the CIRB.

The CIRB will now determine the precise amount that must be paid by the BLE and VIA Rail.

Here is the background.

In September 1997, VIA Rail, (the Canadian government-owned national intercity rail passenger carrier), moved to combine the crafts of conductor and locomotive engineer into a single craft and bargaining unit of "operating engineer" (later changed to "locomotive engineer" at the insistence of the BLE).

VIA Rail said it recognized and understood its responsibility to train all affected employees so that they might meet the qualifications of the new single craft. VIA Rail promised to treat all employees equally. However, the BLE and VIA Rail later negotiated a very different result.

Following this 1997 decision, the CIRB directed that there was to be a representation election amongst the two operating crafts. The BLE was successful and gained exclusive bargaining rights for this new single craft.

The vote, very narrowly favoring the BLE, said the CIRB, was "close" and turned, in part, on BLE promises to provide craft autonomy, separate committees of adjustment for former conductors and assistant conductors, equal access to engineer training, and assurances that those conductors and assistant conductors not promoted to positions of locomotive engineer on VIA Rail could flow back to prior positions within the UTU's ranks at Canadian National Railways.

Following the representation election, a new contract was negotiated in June 1998 between the BLE and VIA Rail covering the new craft of locomotive engineer. The result of this contract was that all conductor positions at VIA Rail were immediately eliminated with the concurrence of the BLE.

Furthermore, although not one of the BLE-represented engineers lost their jobs at VIA Rail, the very great majority of the former UTU-represented conductors lost their jobs at VIA Rail since most were not offered training in the small group of locomotive engineer positions that were made available to this group in July 1998 as a result of the agreement between the BLE and VIA Rail.

Subsequently, an "unfair labor practice" complaint was filed with the CIRB by the former VIA conductors and assistant conductors, who previously were represented by the UTU. They charged the BLE had represented them in a manner that was "arbitrary, discriminatory and in bad faith."

The former conductors and assistant conductors alleged the BLE had made false promises prior to the representation election.

More specifically, it was alleged the BLE failed to create conductor general committees of adjustment as promised, failed to provide craft autonomy as promised and had acted in a discriminatory and prejudicial manner toward conductors and assistant conductors by signing an agreement with VIA Rail that failed to provide conductors and assistant conductors with the necessary training to perform the duties of the new craft.

These actions by the BLE, said the complaint, effectively eliminated, in a discriminatory manner, chances of most conductors and assistant conductors to have a fair chance at a new craft of operating engineer on VIA Rail. Not one locomotive engineer lost their job, but only a small number of conductors got those new craft assignments.

In 1999, the CIRB ruled in favor of the conductors. It ordered VIA Rail and the BLE to renegotiate the crew consist agreement as it applied to the selection process, provide training for the new locomotive engineer positions and establish seniority lists for conductors and assistant conductors.

Also, the BLE was ordered to hire a "professional" (at BLE cost) to assist the conductors and assistant conductors in the renegotiation process so that the conductors and assistant conductors would have an equal and independent voice at the table with VIA Rail and the locomotive engineers.

In May 2003, the CIRB -- which accused VIA Rail and the BLE of delaying the final decision through "a flurry of legal proceedings" -- issued new, more specific and harsher remedies.

VIA Rail was ordered to reform the seniority system and the process by which locomotive engineers are trained and selected from the ranks of the former UTU represented Via Rail conductors.

Also, both VIA Rail and the BLE are to be held responsible either jointly or severally to reimburse many of the adversely affected former conductors and assistant conductors for any lost earnings or potential earnings, and also to pay all legal fees and expenses incurred by the former UTU-represented conductors and assistant conductors who filed the complaint.

The CIRB said it would decide the compensation to be awarded the conductors and assistant conductors on an individual basis and would decide how much of the bill VIA Rail and the BLE would be responsible for. During the proceedings before the CIRB, the BLE denied it had made "promises" to the conductors and assistant conductors prior to the representation election, but rather had only provided "campaign rhetoric." The BLE said it "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 CIRB said, "What these proceedings have brought to light is the BLE's recklessness in telling the conductors and assistant conductors that they would be able to return to similar positions at CN without ensuring beforehand that these rights were indeed available."

The CIRB said "the BLE failed to uphold a reasonable standard of competence in representing its members and, in this regard, is accountable to them for its shortcomings."

The CIRB also held that VIA Rail and the BLE were guilty of collusion in that they obviously combined their efforts to negotiate an agreement that failed to appropriately recognize the former conductors' and assistant conductors' rights to the newly created position of operating engineer.