STOP THE
PRESS!
OPEN ACCESS:
Feb. 2001-Submission to the Canada
Transportation Act Review Panel by BLE Canadian Director Gilles
Halle in opposition to 'Open Access' proposal.
(link)
Submission
in *.pdf click here
CRAFT AUTONOMY DECISION:
National Mediation Board
,Washington D.C.
http://www.ble.org/pr/news/nmbdecision.html
VINDICATION!
NMB-appointed panel denies UTU
application
CLEVELAND, February 29 -- The
National Mediation Board (NMB) announced
today that the panel appointed in early January has found in favor
of
the Brotherhood of Locomotive Engineers (BLE) on the question
of
establishing a single craft of "Train and Engine Service
Employees."
UTU filed an application seeking
the establishment of the new craft and
requesting a representation election on the Union Pacific Railroad
(UP)
on January 12, 1998. A hearing on the application was conducted
by the
NMB last July. The deadline for today's ruling was set in an NMB
decision issued on December 30th of last year.
BLE International President Edward
Dubroski issued the following
statement upon learning of the NMB announcement:
"I am both relieved and
pleased that the panel saw through the UTU's
smoke and mirrors. We owe an enormous debt of gratitude to the
team that
put together an overwhelming case and made this victory possible:
General Counsel Harold Ross; Special Counsel George Cohen and
his
people; our International Division staff; the Union Pacific general
chairmen; and Brother Mike Russell of Division 81, our most powerful
witness. But, most of all, we owe this victory to those Brothers
and
Sisters who stood by us and never gave up on the BLE during our
many
dark days over the past two years, especially those who made sacrifice
to travel to Washington last July and march in support of the
BLE in
100+ degree heat.
"Although this is a great
victory, we still face a tough challenge
ahead. In raising UTU dues $3.00 per month to create his 'war
chest' for
a 'fight to the finish' with the BLE, UTU President Little vowed
that we
will next face an A-card assault. The leadership of the UTU will
go down
in labor history wearing the mark of shame for serving as facilitator
for the railroad industry's agenda and, with the help of our Brothers,
Sisters and friends in the rest of the American labor movement,
we will
ultimately prevail in this struggle."
The panel's opinion was still
being reviewed at press time. An analysis
of the decision will be provided as soon as they are available.
The
actual decision also will be posted on the BLE web site.
CIRB VIA RAIL DECISION
To BLE Sisters and Brothers:
This is in response to the many posts on the BLE Members page
concerning
the CIRB decision in the Cairns et al Section 37 complaint. By
way of
introduction, I am the BLE General Chairman for CN and VIA Western
Lines
and one of the signatories to the June 12, 1998 VIA Collective
Agreement
which included, as an appendix, the Crew Consist Adjustment Agreement.
Save any criticism directed at the International officers concerning
the
VIA agreement. Vice Presidents, at least in Canada, do not negotiate
and
sign collective agreements, General Chairmen do.
Those of you who have asked for information on the BLE Members
page
concerning the CIRB decision, have presented me with a very difficult
challenge.... How to explain what has taken place without those
seeking
the explanation, having a full and complete understanding of the
VIA
negotiations, the tri party Transfer Agreements (there are two
- 1
negotiated by the BLE and 1 inherited from the UTU after the
representation vote), the 2 collective agreements ( the BLE and
the
inherited UTU agreement) and the complexities of the seniority
provisions between the 2 crafts and the 2 companies. If all of
these are
not considered together when forming an opinion about the Cairns
decision, the chances of reaching the wrong conclusion are greatly
enhanced. In my view, Madam 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 UTU understands how partial information without history and
relevant
documents can work in their favour. This is the reason that they
were so
quick to put out a press release containing excerpts from the
Cairns
CIRB decision. Provide just enough information to start the fire
and let
fertile minds fill in the blanks. From reading the posts to the
members
page, the UTU disinformation campaign appears to be working, at
least on
some. Attempting to provide you with a complete understanding
of the
issues is near to impossible however, a basic knowledge of the
above
mentioned factors is essential to understanding what has taken
place. In
providing this information I will only deal with CN and VIA and
I make
no representations or profess to speak for any of the other General
Committees involved now or in the past.
Transfer Agreements
1. When VIA was formed the employees for the new corporation were
obtained from CN Rail. This included carmen, clerks, locomotive
engineers, conductors and trainmen.
2. In 1986 the unions for the non-operating crafts (now one union
- the
CAW) negotiated "Employment Security" agreements for
their members that
provided a percentage of pay for their members upon layoff. The
operating unions (BLE and UTU) negotiated separate protection
agreements
for their respective members that provided for locomotive engineers,
or
conductors and trainmen, working at VIA the ability to "flow
back" to CN
when they could not hold work at VIA. As well, the "Transfer
Agreement"
provided that when additional operating employees were required
at VIA,
CN employees were given the first opportunity, in seniority order,
to
apply for these positions. CN spare boards continued to protect
vacancies at VIA Rail at locations where VIA did not maintain
a spare
board. This arrangement has worked well and benefited our members
for
many years.
3. CN has allowed operating employees to flow back to CN when
unable to
hold work on many past occasions. On one such occasion, when on
June 14,
1995, Justice Mackenzie abolished the UTU baggage position, CN
allowed
the affected employees to flow back without incident. Via continued
to
have access to a ready source of fully qualified operating employees
from CN.
VIA Negotiations/ Representation Vote
1. In Mach 1997 and prior to the representation vote at VIA Rail,
VIA
served the BLE and UTU separately with material change notices
that
intended to transfer the duties of the conductor and assistant
conductor
to the locomotive engineer on passenger trains. The balance of
the
conductors and assistant conductors duties were to be transferred
to the
on board services personal.
2. The BLE, as required by the provisions of the Collective Agreement,
negotiated a settlement, not to abolish the conductors and assistant
conductors positions, rather to minimize the adverse effect on
locomotive engineers, should VIA be successful in eliminating
the
positions of conductor and assistant conductor and transferring
their
duties to the locomotive engineers. The "Material Change
Agreement" was
signed by 2 of the 3 BLE General Committees on May 12, 1997 and
contained two conditions, one that VIA conclude its material change
negotiations with the UTU and two, the BLE material change agreement
would become null and void if the crewing initiative was not completed
by December 31, 1998. Condition 1. was negotiated as the BLE felt
VIA
could not abolish the craft of conductor and assistant conductor
using
the material change provisions of the UTU collective agreement.
Condition 2. was negotiated to allow the BLE to renegotiate the
provisions of the agreement (if VIA was correct or the UTU agreed)
should conditions change during the time between the BLE signing
the
agreement and the conclusion of negotiations with the UTU. Many
of you
will have heard this May 12, 1997 material change agreement referred
to
by the UTU as the "Secret Agreement". Was it a secret
agreement? I don't
think so. This agreement was provided to the BLE members who would
be
affected by it if VIA and the UTU reached an agreement, or if
it was
otherwise achieved, to remove the conductor and assistant conductor
from
passenger trains. Was it shared with the UTU? Certainly not, this
was a
BLE agreement for the benefit of its members. Simply stated, it
just
wasn't any of the UTU's business how the BLE minimized the adverse
effects to locomotive engineers should the UTU agree with VIA
to remove
the conductor and assistant conductor from the train. 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 their history
and you
tell me.
3. In October of 1998 the BLE, on behalf of its members, (the
locomotive
engineers) served contract demands on VIA Rail (the current collective
agreements expired December 31, 1998). The UTU served similar
notice to
VIA of its intention to negotiate a new collective agreement (the
UTU
collective agreement also expired on December 31, 1998). Meetings
between VIA and the BLE took place to negotiate renewed collective
agreements.
4. It's important to remember, that prior to and while the separate
(BLE
and UTU) contract negotiations were taking place the CIRB was
hearing
the issues related to the abolishment of the conductors and assistant
conductors. VIA was asking the Board to order a "winner take
all"
representation vote between the BLE and the UTU. VIA's application
was
opposed by the BLE and supported by the UTU. Why would the UTU,
who had
fewer members at VIA, support VIA's application for a representation
vote? It is not that difficult to understand given, what was taking
place and the sequence of events at VIA Rail. In my view, the
UTU could
see the writing on the wall, they would most likely be unsuccessful
in
retaining the conductors and assistant conductors jobs at VIA
at an
arbitration hearing. If they lost the representation vote, the
BLE would
have to deal with that issue and if they won, the now emerging,
plan to
dovetail seniority rosters would be put into place. This is something
the UTU have been looking toward for many years. The UTU have
come to
understand that, while they have lots of members their jobs are
rapidly
disappearing.
5. On October 31, 1998 the results of the representation vote
became
known, the BLE had won the right to represent all operating craft
members including locomotive engineers, conductors, assistant
conductors
and yardmasters.
6. The BLE revised its contract demands to include the demands
of the
former UTU members at VIA. The revised demands were obtained from
the
UTU and presented to VIA shortly after the results of the representation
vote were known. The BLE maintained the position that VIA could
not
eliminate the craft of conductor and assistant conductor by using
the
material change provisions of the collective agreement, for two
reasons,
one, the provisions of the material change were not meant to deal
with
the abolishment of a craft and two, now that the parties were
in the
open period of the collective agreement any change to crew consist
provisions must be dealt with at the bargaining table. VIA did
not agree
and threatened that the Collective Agreements no longer existed
and that
it intended to implement its Crewing Initiative with or without
an
agreement with the BLE. The BLE filed a charge of unfair labour
practice
with the CIRB alleging that VIA was engaging in or threatening
to engage
in, an illegal lockout of employees. The Board agreed and sent
the
parties back to the bargaining table to deal with the collective
agreement issues "including the crew consist issue".
The Board decision
was clear, VIA could not implement its crewing initiative and
the BLE
must deal with the crew consist issues presented by VIA at the
bargaining table.
7. The BLE maintained the position throughout negotiations that
VIA's
"Crewing initiative" should be accomplished through
attrition. In order
to accelerate the attrition process the BLE proposed and negotiated
50/30 retirement packages for locomotive engineers and conductors,
locomotive engineer training opportunities for conductors and
assistant
conductors, an option to flow back to CN under the Transfer Agreement,
opportunities to continue to work at VIA in other jobs for those
not
covered by the flow back provisions, severance options for the
same
group. Remember, the BLE employed four VIA Rail conductors who
were
obtaining input from the conductors and assistant conductors by
direct
contact. I can not think of another negotiation where the membership,
on
a one on one basis were permitted to provide input to the bargaining
committee. The VIA conductor representatives, at one point in
the
negotiations, spoke to every member, on a one on one basis, concerning
the options that VIA had presented and how they felt about it.
8. Negotiations continued until June of 1998 when the BLE was
presented
with a final offer from VIA, either accept the memorandum of agreement
as presented or VIA would lockout the members. Not such an idle
threat
when you consider that VIA would be saving about a million dollars
a day
when not running its trains. Via works on a subsidy from the Canadian
Government, who is very interested in privatizing VIA Rail. Not
only
would the VIA members be affected by a lockout but the CN members
as
well (they report to work at the same locations in a number of
terminals). The members of my GC of A came together in June of
1998 and
for 3 1/2 days we debated and considered whether to accept the
memorandum of agreement and put it out for ratification or refuse
it and
place the members at VIA on the street. A decision was taken to
put the
memorandum out for ratification and allow our members to vote.
This was
done with the following results:
On my GCof A, 83.6 % of the ballots mailed were returned, of those
ballots returned 64.1 % voted in favour of the tentative agreement
with
35.9 % against. It is my understanding that my GC of A had the
lowest
percentage of members in favour and that one of the GC of A's
had an 80%
plus in favour of the tentative agreement.
CIRB Cairns Decision
1. August 21, 1998 former UTU Via Rail conductor, George Cairns
filed a
complaint with the CIRB alleging unfair labour practice by the
BLE. His
charge included a great number of accusations that he believed
show
unfair labour practice, quantity, not quality, filled Mr. Cairns
charge
of unfair labour practice. The Board heard testimony from a number
of
individuals, including Vice-President and Canadian Director, Gilles
Halle, Guy Scarrow, Vice-President UTU, and a number of conductors
from
VIA Rail.
2. As you have noticed the complaint is filed under George Cairns
"et
al", the reason being many of the conductors and assistant
conductors
joined Mr. Cairns after the original complaint was filed. Why?
It is
quite simple, the conductors, many of whom had voted in favour
of the
memorandum of agreement, saw an opportunity to better their position
if
Cairns was successful. Viewed through their eyes, they had what
they had
and could only improve upon it. Don't forget that while these
individuals became BLE members, many never accepted that fact.
In the
evidence given by Mr. Doug Dillon (34 years as conductor) he complained
that the BLE Division 583 would not admit the conductors and assistant
conductors as regular members. The truth of the matter is that
the
former UTU members wanted to form their own Division and did not
want to
associate with the locomotive engineers of Division 583.
3. After all the evidence was heard, the Board upheld three of
the many
allegations filed by Mr. Cairns. They were:
1. the selection process for conductors and assistant conductors;
2. the seniority provisions as they affect conductors and
assistant conductors who qualify as locomotive engineers; and
3. the application of the Special Agreement negotiated between
the UTU, VIA and CN.
Lets take these findings one by one. I want to make it very clear
that I
agree with the first and third items in the Boards findings.
On the first finding the BLE has filed grievances and is proceeding
to
arbitration with the issue of the selection process for locomotive
engineer training. The position of the BLE is that VIA did not
give fair
and unprejudiced consideration to all applicants. Basically, the
BLE is
alleging that, for the most part, VIA selected candidates for
locomotive
engineer training that, if the other options were forced, would
have
produced extra costs for VIA (severance and bridging and retirement).
What VIA did was to disqualify most of the conductors and assistant
conductors who had flow back rights to CN - no additional cost
to VIA.
The grievances on this matter were filed shortly after the results
of
the selection process became known to the BLE. I am at a loss
to explain
why the Board would include this matter in the decision.
On the third finding concerning the flow back provisions of the
Special
Agreement (Transfer Agreement) the BLE has filed grievances and
the
issue is now before an arbitrator. The BLE maintains that the
Transfer
Agreement was negotiated to provide for operating employees to
flow back
to CN whenever they could not hold work at VIA. All evidence has
been
called and the arbitrator is in the process of formulating a decision
on
this matter. Once again I am at a loss to explain why the Board
has
included this matter in the decision.
On the second finding, I have a somewhat different opinion of
Madam
Pineau's findings. In my view she did not fully comprehend the
complexities of the seniority system between the two companies
and the
two crafts. Let me break this down into the different components.
1. The BLE and the UTU negotiated separate transfer agreements.
Each
would allow their own craft to flow back independent of the other.
ie
locomotive engineer unable to hold work as a locomotive engineer
at VIA
would flow back to CN, not bump into the conductors ranks as at
CN. The
interchangeable rights provisions apply to locomotive engineers
with a
seniority date prior to 1988.
2. When the locomotive engineer so displaced was able to hold
work
at VIA again a bulletin would be issued open to all locomotive
engineers
at CN in seniority order. The most senior locomotive engineer
applying
would be awarded the job. (not necessarily the locomotive engineer
who
was displaced from VIA waiting recall). The locomotive engineer
so
awarded the job at VIA would go to VIA and fill out a job choice
and
take what ever job his seniority allowed. ( not necessarily the
job that
was bid to get to VIA) In the end the junior locomotive engineer
would
end up on the least desired job.
3. Similarly the conductors would flow back and rebid jobs at
VIA.
The interchangeable rights provisions apply to conductors who
have a
seniority date prior to 1988.
Here is where the issue becomes more complicated. With the advent
of the
representation vote the BLE inherited the former UTU collective
agreements, including the transfer agreement. With no conductor
or
assistant conductors left at VIA the UTU Transfer Agreement would
appear
dead, except for one thing. What do you do when a former conductor,
now
trained as a locomotive engineer can no longer hold work at VIA.
How do
you let the displaced former conductor flow back to CN as a locomotive
engineer (where he/she has no standing on the locomotive engineers
list
at CN) under the BLE Transfer Agreement. Given the nature of the
BLE
Transfer Agreement and the fact that there are no conductors jobs
left
at VIA how would this individual ever be able to return to VIA
as a
locomotive engineer (the only jobs left at VIA). He would not
be able to
even apply for the job at VIA because he has no seniority on the
CN
locomotive engineers list.
Lets suppose that the BLE do as Madam Pineau is suggesting and
dovetail
the former conductors seniority at VIA Rail and cut these conductors
in
where their service date allows. Now we would have a mixture of
locomotive engineers and conductors displaced from VIA waiting
to flow
back to CN (CN would take the same position whether it was former
conductors or a mix of former conductors and locomotive engineers)
How
are we any closer to resolving the issue?
Lets suppose that CN allowed, or the arbitrator rules, that the
mixture
of former conductors and locomotive engineers can flow back to
CN. The
locomotive engineers would displace into the locomotive engineers
jobs
at CN, the conductors would flow back into the conductors jobs
at CN. If
a job came open at VIA, a bulletin would be issued and the senior
CN
locomotive engineer applying would go to VIA. The former conductor,
because he has no seniority standing at CN, would never be allowed
to
return to VIA to work. That is unless the BLE dovetailed the former
conductors seniority into the locomotive engineers at CN.
How do you think the CN locomotive engineers would feel about
that? How
do you think the UTU members at CN, waiting their opportunity
to become
locomotive engineers, would feel about that? If the BLE were to
dovetail
the seniority of the former conductors into the CN list what date
would
you use. Would you use their service date, the same as most of
the
locomotive engineers used to apply and become locomotive engineers?
Is
this a fair and equitable solution? What about senior conductors
who
passed up locomotive engineer training and at a later date qualified
as
locomotive engineers? All locomotive engineers who applied for
training
from the conductors ranks at CN, regardless of their conductors,
seniority took their turn on the bottom of the CN locomotive engineers
list when they qualified.(this is in accordance with the provisions
of
the UTU agreements with CN).
What if you used the date subsequent to the last bulletin for
locomotive
engineer training, passed up at CN by the former conductors? In
most
cases this would give the former conductors (locomotive engineer)
seniority outside the protection date for interchangeable rights
under
the transfer agreement.(1988) Because their locomotive engineers
seniority date would be subsequent to the date provided in the
Transfer
Agreement they would not be permitted to bid over to VIA. Still
we are
no further ahead.
How can the BLE negotiate a collective agreement that would affect
employees in another Company without giving those employees an
opportunity to vote on the issue. Quite simply, you can't. Who
do you
think would be taking the BLE in front of the Board if any of
the above
scenarios were put into place without allowing the affected memberships
(VIA members, CN BLE members and CN UTU members) to vote on the
issue.
What do you think the chances of this being ratified?
The only realistic solution to this problem is what the BLE negotiating
committee was proposing from the beginning. Allow the reduction
of the
conductors and assistant conductors positions to take place using
attrition. When a conductor or an assistant conductor retires,
bridges,
severs, qualifies as a locomotive engineer or otherwise leaves
the
service, the position is not filled.
I can't help but wonder if the UTU membership will continue to
hail Mr.
Cairns as a hero once they fully understand what he has done and
the
effect that his actions could have on them both at CN and VIA.
The BLE
will be making all these points and more when the Pineau decision
comes
before the Board for review and the Federal Court for judicial
review. I
am confident that one of the two will recognize the bias displayed
by
Madam Pineau and strike down her decision.
In closing I want to touch on the charge that the BLE and VIA
Rail acted
in concert to improperly remove the conductor and assistant conductor
from the train. All I can really say is you had to be there. This
was a
very tense and hard fought negotiation. Bitter feelings resulted
from
the negotiations and the "final offer" from VIA and
they remain to this
day. Madam Pineau took unsubstantiated statements of UTU Vice-President,
Guy Scarrow and two conductors, with an axe to grind, and turned
them
into fact. She disallowed or ignored the BLE statements as "gain
saying"
and formed her opinion on half the evidence.
I hope this helps you to understand the issues and the complexities
that
Madam Pineau has so thoughtlessly dealt with in her decision.
In solidarity,
M. W. Simpson
General Chairman
CN - VIA Lines West