Summary:

Members of two unions were causing slowdowns of the employers railway operations alleging that they were only exercising their rights under the meal and rest provisions of the collective agreement and were complying with the employer's speed limits and other safety regulations.

The Board found that the employees' actions were in concert and for the express purpose of compelling the employer to negotiate conditions of employment (wages) during the time such action is prohibited by the Code. These actions constitute an unlawful strike under the Code.

Appearances:

The reasons for decision were written by Mr. Hugh R. Jamieson, member.

On October 17th, 1980, Canadian Pacific Limited (CP Rail) filed this application pursuant to section 182 of the Canada Labour Code (Part V - Industrial Relations), alleging that the Ash Kennedy Division No. 657 of the Brotherhood of Locomotive Engineers (BLE) and the United Transportation Union, Local Lodge No. 501 (UTU) had contravened section 180 of the Code.

The application stated, in part:

CP Rail originally sought a remedy from the Board on March 21, 1980, however, as events turned out at that time, the merits of the application were not heard. On April 8, 1980, Board Member Hugh R. Jamieson was assigned to that application under section 118(k) of the Code. Following meetings between the parties in Vancouver and Revelstoke, the following agreement was arrived at on April 21, 1980.

For a review of the Board's policy and view of its role in applications under sections 182 and 183 of the Code, see National Harbours Board, 33 di 530; [1979] 3 Can LRBR 502; and 79 CLLC 16,204; and 33 di 557; [1979] 3 Can LRBR 513; Canadian Pacific Limited, 39 di 138; [1980] 3 Can LRBR 87; and 80 CLLC 16,059; and British Columbia Telephone Company, 40 di 163; [1980] 3 Can LRBR 31; and 80 CLLC 16,062.

On this second application the Board scheduled a hearing which was held in Revelstoke on October 23 to 25. The parties requested we delay communicating any decision until we could give them written reasons in support of our decision.

The employees of CP Rail affected by this application operate trains east and west between Field and Revelstoke, British Columbia. In addition to the daily passenger trains, freight, including general cargo, oil, gas, coal, potash, sulphur and grain, is transported over this one hundred and twenty-five point seven (125.7) miles of track known as the Mountain Subdivision of the Pacific Region.

This is one of the most arduous stretches of track in North America, winding through the hazardous mountain region with grades varying from 2 to 2.2 in certain areas. Depending on the load, some westbound trains require as many as five additional diesels as "pushers" to overcome the grade between Rogers and Stoney Creek. The area between Revelstoke and Glacier records some of the heaviest snowfalls in Canada. It is railroading at its toughest.

The locomotive engineers or enginemen, represented by the BLE are subject to a collective agreement which became effective January 1, 1979, and remains in effect until December 31, 1981. The collective agreement affecting trainmen, conductors and yardmen represented by the UTU is in effect for an identical period. The employees who are members of their respective unions are part of separate nationwide bargaining units for which collective bargaining is done at the national level. Two almost identical collective agreements are negotiated by each union, one affecting the Pacific Region and Prairie Region, the other the Eastern and Atlantic Regions.

The main factual aspects of this case are not in dispute. CP Rail alleges that actions taken by members of the BLE and the UTU have seriously delayed the movement of trains through the Mountain Subdivision. Both unions concede that concerted actions were taken by their members as of March 12, 1980, and in fact are still being taken, which have had the effect of slowing traffic.

In general terms, the evidence adduced by the parties at the hearing was as follows. Prior to March 12, 1980, trains averaged 7 to 7.5 hours to pass westward through the Mountain Subdivision, from arrival at Field to arrival at Revelstoke. Eastbound trains averaged between 7.5 to 8 hours. After March 12, the time taken in either direction escalated to between 11 and 12 hours.

CP Rail attributes the delays to several factors including increased time taken to perform required inspections or tests, increased frequency of incidents such as automatic brake applications or fouling of switches, increased frequency of stopping for meals and the increased necessity to supply relief crews.

Rest periods and meals are provided for in Article 23 and 24 of the BLE collective agreement.

       "Article 23

       REST

       "Article 24

       MEALS

The UTU provisions are set out in Articles 26 and 23(g).

       "Article 26

       REST RULE

       "Article 23

       MISCELLANEOUS SERVICE

       ...

Prior to March 12, 1980, crews usually carried packed lunches which were eaten en route. Infrequently, crews would take advantage of necessary train delays caused by switching etc. to have a hot meal. Trains were seldom delayed for the sole purpose of meal breaks. Since March 12, 1980, crews have been stopping to eat. If meals are taken at location where eating facilities are convenient, such as Golden, the delays are anywhere from 3/4 of an hour to 1 hour. If stopped elsewhere, however, trains are abandoned for periods up to 1 1/2 hours while crews are transported by taxi to and from restaurants.

When trains were normally running through the Mountain Subdivision in less than eight hours, the need to supply relief crews, which is termed "change offs", were minimal. Since March 12, 1980, the extended time of the runs has resulted in an increase in change offs from five or six a week to over fifty in some weeks. Crews are transported to and from the location of the train by taxi. The increased frequency of meals and change offs is evidenced by the spiralling cost of taxis, which went from approximately $15,500.00 during the first nine months in 1979 to approximately $36,600.00 for the same period in 1980.

Inspection of equipment and brake tests are required to be performed by crews prior to and during runs. For example, brake tests are mandatory prior to descending certain grades. When automatic brake applications occur, or "kickers" as they are known, a walking inspection of the train is required to locate air pressure leaks. CP Rail contends that inspections and tests are being performed slowly and meticulously and the increase in the frequency of kickers infers deliberate action by the crews.

All of the aforesaid actions, according to CP Rail, constitute a slowdown of work or other concerted activity designed to restrict or limit output.

While the BLE and UTU conceded the concerted actions taken by their members, they deny the motive or intent is to restrict or limit output. They contend that since a major derailment in the Mountain Subdivision on November 26, 1977 (reported on in Canadian Transport Commission, Railway Transport Committee Report, January 22, 1980, file No. 31385.3845) CP Rail has taken positive action to enforce posted track speeds and has implemented safety oriented programs. Radar surveillance and more recently Train Operation Recorders (TOR or black boxes) have been installed on trains. Enginemen have been receiving written notices of speed infractions.

Evidence was adduced on a common practice of running anywhere from five to ten miles over the posted track speeds. Inspection of equipment and tests had been neglected at the best done only in a cursory manner. The unions contend that a conscious decision was taken to comply with speed limits and other requirements of CP Rail to inspect and test equipment. The resulting increased time in moving trains through the Mountain Subdivision extended the working hours of crews so that meals became necessary and change offs increased.

Since the memorandum of understanding of April 21, 1980, CP Rail and the General Chairmen of the BLE and UTU have made admirable efforts to resolve the issues. A further memorandum was signed on May 29, 1980 which read:

       19 - Establishment of Golden as an away-from-home terminal

       20 - Extension of back track at Greeley

       21 - Local no scoop rules

Unfortunately following marked improvement in the movement of trains during June, the situation deteriorated in July. Further meetings were held in Vancouver on July 22, 1980. Again, negotiations resulted in two memoranda of agreement.

       "July 22nd, 1980.

       File: 013.68

       Resolved on the basis of Attachments "A" and "B" hereto.

       Item 20 -  Extension of back track at Greeley

       Withdrawn.

       Item 21 -  Local no scoop rules

       SIGNED in Vancouver, British Columbia, July 22, 1980.

There was a third memorandum with the BLE in substantially the same terms as with the UTU.

These agreements did not take effect as they were rejected by the BLE. It was then that CP Rail took positive action. Bulletin No. 613 was issued on July 30, 1980.

Disciplinary action was taken against crews who delayed trains while eating meals en route. As a result of demerit points assessed, three persons were dismissed, including Mr. K. Sorenson, member of the BLE Grievance Committee and Mr. J. Evans, a Local Committee Chairman of the UTU. At the request of the unions, Mr. M.K. Carson of Labour Canada was assigned to assist the parties.

On September 13, 1980, the following memorandum of understanding was arrived at.

As part of the agreement CP Rail agreed to rescind all discipline assessed for contraventions of bulletin no. 613. The three dismissed employees were reinstated. The expected improvement in train movement was not forthcoming. A meeting was held on September 24, 1980 between the local management at Revelstoke and the local officers of the BLE and UTU. Evidence was adduced by Mr. J. White, Superintendent, that out of frustration the question was asked as to what really had to happen to bring things back to normal. Mr. K. Sorenson replied that a "mountain differential" of $5.00 per 100 miles would probably solve the problem. Following a further unsuccessful meeting on October 9, 1980, CP Rail filed this application.

The relevant sections of the Code are the following:

       "107.(1) In this Part,

       'strike' includes

Unrest in the Pacific Region of CP Rail is not a recent phenomenon. As far back as March, 1975, locomotive engineers showed their displeasure by filing an application for certification with this Board. They sought a separate bargaining unit with representation by a different union. That application was dismissed mainly because the applicant union at that time failed to convince the Board that it should fragment the existing nationwide bargaining structure (see Trade of Locomotive Engineers, 13 di 13; [1976] 1 Can LRBR 361; and 76 CLLC 16,018).

The employees' frustrations obviously lie in the apparent nonacceptance by CP Rail and the National Officers of the BLE and the UTU, of their arguments about the unique circumstances in which they work in the Mountain Subdivision. At least two collective agreements have been negotiated since the danger signals in 1975, with no apparent heed being paid to the continued rumblings of discontent except that the collective agreement does contain some minor provisions for a mountain differential. The Mountain Subdivision is generally staffed by a younger generation of employees. The ruggedness of the subdivision makes it less desirable for older employees who understandably exercise seniority rights to bid out. It is to be expected that these employees are less likely to placidly accept old railroad traditions. New concepts such as the recently negotiated reduction in crews from four to three persons is seen as a total disregard for the uniqueness of the mountain track. The implementation of such programs in this subdivision before other areas, because of the less seniority of the employees, only adds to the unrest. Considering the pay base is distance rather than time, it is not unreasonable to have concerns about the comparability of travelling hard, slow miles through the mountains to the often straight flat miles elsewhere.

Having heard evidence and argument for two and a half days regarding running times, arrival times, inspection and testing times, lifting and setting off of cars and the cutting in and out of pushers, we could not help but notice the disparity in perspective between CP Rail and the two unions. There was no accurate method in which we can judge what times are necessary for safe running. We think it would be useful to reassess all of the relevant times and standards under present conditions as a prelude to next year's collective bargaining.

By taking the position that they cannot be faulted for exercising their rights under the meal and rest provisions of the collective agreements or for complying with speed limits and other regulations, the unions are merely attempting to disguise the real issues. If the actions taken were genuinely motivated by concern for safety and liability for accidents as submitted, surely the impact would also be felt in the Shuswap Subdivision between Revelstoke and Kamloops which is also manned by the membership of the same local unions. An ever increasing restlessness amongst the membership, rooted in the perceived lack of representation, is the true cause. They view themselves as a minority within the existing system of collective bargaining whose special local concerns are being ignored. By implementing the "work to rule" program on March 12, 1980, they were attempting to obtain what they have not been able to obtain through the normal channels of the existing collective bargaining structure. They achieved much during the summer as reflected in the memoranda and CP Rail is pleased with some results it achieved such as the enginemen switching for pusher locomotives.

There can be little doubt as to the intention of the parties as expressed in the various memoranda regarding their interpretation of the intent of Article 24 of the BLE agreement and Article 23(g) of the UTU agreement. The persistent refusal to accept that interpretation at the local level along with the uncontradicted motive as stated by Mr. K. Sorenson of obtaining a mountain differential confirms the real motives. The officers and members of the BLE and UTU acted in concert with the express aim of compelling CP Rail to negotiate conditions of employment during the time such action is prohibited by the Code.

Both unions and their members are bound by the conditions contained in their respective collective agreements as well as the ensuing memoranda of April 21, 1980, May 29, 1980 and September 13, 1980. It may well be that certain elements within the local executive of the unions or the membership feel they are party to a bad contract, however, there is nothing that can be done until the appropriate time in 1981.

The Board finds that the actions taken by the members of the BLE and UTU constitute a strike as envisaged by the Code. Such a strike is contrary to the provisions of section 180 of the Code.

An order will be issued concurrent with these reasons requiring the BLE and UTU to rescind their authorization of the strike. Members of both unions will be enjoined from continuing the strike and shall be instructed to perform the duties of their employment.

Summary:

Applications for cease and desist orders pursuant to section 182 of the Canada Labour Code, Part V.

Filing of Board orders - Request to file cease and desist order denied because not in writing as required by section 123 and no indication of likelihood of failure to comply.

Strike/lockout - Employer changing crew-calling procedures for locomotive engineers, trainmen and yardmen - Withdrawal of services by two union locals at two locations - Board found withdrawal at one location to constitute an unlawful strike and reluctantly issued a cease and desist order directed at the union locals involved, not the national executives - Board criticized employer for manner of implementing change.

Cases Cited:

The citations in this headnote are fully updated as compared to those within the text of the accompanying decision.

Statute Cited:

   Canada Labour Code, Part V, ss. 123; 180; 182; 183.1.

Appearances:

These reasons for decision were written by Mr. Marc Lapointe, Q.C., Chairman.

These two applications were filed almost concurrently by the Canadian National Railways (hereinafter referred to as the employer) at the occasion of allegedly unlawful withdrawal of services by groups of its employees in two localities of Canada, namely, Sioux Lookout and Rainy River in the Province of Ontario.

The two applications are dated respectively October 19 and October 20, 1983 and were filed at the CLRB regional office in Winnipeg on those dates and dexed to the offices of the Board in Ottawa on the same day. On the 21st of October, the Board notified all parties that it would hold a public hearing in these two applications to commence on October 24 at 2:00 p.m. in Ottawa.

Effectively, a public hearing was held in the one application dealing with Rainy River in the afternoon of October 24, continuing on October 25 all day, and dealing with the Sioux Lookout one in the morning of October 26 to terminate prior to noon.

The Board has decided to issue reasons for its decision in these two applications and to combine both into these very reasons.

The employer alleges that the respondents have violated the provisions of section 180 of the Code and under the purview of section 182 it has requested the Board:

The respondents in these two applications are, for the Sioux Lookout location (Board file 725-136), the Brotherhood of Locomotive Engineers (hereinafter referred to as the BLE) and its Local 654, and the United Transportation Union (hereinafter referred to as the UTU) and its Local 1229, and for the Rainy River location (Board file 725-134), the BLE and its Local 749 and the UTU and its Local 1179.

The genesis of this labour relations disturbance is the decision by the Employer to change its crew calling procedures, involving the assignment of work to locomotive engineers, trainmen and yardmen on a day-to-day basis, across its whole system in Canada. The previous system was basically predicated on the assignments being done mostly by telephone on a local basis at each location across Canada where these categories of employees of the employer are based. The change is planned to be made in two phases. Firstly, a centralization of the present system into a few large cities in Canada. The localities of Sioux Lookout and Rainy River assignments to be centralized at Winnipeg. Secondly, the whole system will then be computerized. The first reported inkling of the decision of the employer to implement this change, according to the evidence, and which could be gotten by the BLE and the UTU goes back to May 1983. In the CNR administrative regions of the Prairies and the Mountains, the first real significant details of the plan and of its impact on the existing procedures were made available to the regional and local representatives of the BLE and UTU only on July 21st and a target date for full implementation of phase I was set for October 18 in Brandon and Rainy River, and October 25 in Sioux Lookout.

One of the weaknesses of giants like this employer is that considerable time is consumed from the moment of inception of such plans, and the moment they percolate right down to each individual employee. Canada is an impossibly vast country. And national unions like BLE and UTU have their facilities and personnel strained to the limit in responding to the obligation of informing and consulting with their respective members, in such circumstances.

There are collective agreements in full force and effect between the employer and these two unions. These collective agreements contain similar provisions in more recent years, devised to attempt to address in a reasonable fashion the problems of changes brought upon by more advanced technology. In that industry, it began with the well-known Freedman report (Samuel Freedman, Report of Industrial Inquiry Commission on Canadian National Railways "Run-Throughs", Ottawa; 1965) and changes have been precipitated more recently with the advent of computerization in many of the operations of the employer.

Using one of these provisions in one of the collective agreements as an illustration, we read:

The evidence reveals that between July 21st and October 18th, some communications were exchanged between various officers of the employer based in Winnipeg and various regional and local officers of the BLE and UTU at Winnipeg.

Fundamentally, the officers of the two unions were expressing concerns which had been raised and were being raised by their members in Rainy River and Sioux Lookout as to the exact impact of the proposed changes in the crew calling procedures, alleging that the details of the plan were either unclear or contradictory or both.

Time was marching on.

The members were alleging that the changes to their working conditions were material and would adversely affect them, and began to take the position that the provisions referred to above should apply prior to the plan being implemented. Conversely, they wanted a written commitment from the authorities of this Company that their interpretations of some of the details of the plan were correct and finally they were asking for a postponement to the implementation until the matter was placed before arbitration or the written commitment was given.

The employer was adamant in two positions:

As an alternative, the employer was expressing the position that the employees could grieve and the matter would follow the general course of a common grievance under the collective agreement.

On the 18th of October, the employees of both locals of the two unions, in Rainy River and in Sioux Lookout, booked off, fell sick, were not available or did not respond to assignment calls. At Rainy River it occurred on the 18th and at Sioux Lookout, on the 19th.

>From here on the facts differ as to the two locations. And the Board will deal with the two cases consecutively but separately.

In the case of Sioux Lookout, the labour relations officer of the Board reported that the employees returned to work almost immediately and much prior to the onset of the public hearing of the Board. The evidence adduced before the Board reveals that on Sunday October 23, the parties met in Winnipeg and on the basis of a written commitment by the employer, the unions and their local members were at work on Monday the 24th, Tuesday the 25th and Wednesday, October the 26th. We reproduce hereinafter the text of that commitment.

In Rainy River, the employees, members of the two locals of the two unions, are still not performing their duties in a normal fashion and the employer is continuing what it began to do on October 18, that is, crewing its trains with supervisory personnel.

The Canada Labour Relations Board was vested by Parliament in 1978, with the authority appearing in sections 182 and 183.1 of the Code. Prior to 1978, the Board only had the power to declare that a strike or lockout was unlawful. These sections read as follows:

Therefore the powers of the Board have been significantly increased. However it will be noted that it is still left at its discretion to either make a declaration or issue an order. In a series of three decisions, the Board has attempted to define its policy regarding the application of these new powers.

In National Harbours Board (1979), 33 di 530; [1979] 3 Can LRBR 502; and 79 CLLC 16,204, the Board stated:

               (pages 536-539; 507-509 and 466-468)

In National Harbours Board (1979), 33 di 557; [1979] 3 Can LRBR 513, the Board stated:

Back in 1974, in Newfoundland Steamships Ltd. (1974), 7 di 8; [1975] 2 Can LRBR 275; and 75 CLLC 16,147 the Board had also announced another of its policies regarding its interpretation of section 182 of the Code:

Turning to the matters at hand, and dealing first with the application addressing the locality of Rainy River (Board file No. 725-134).

The Board finds that the withdrawal of services, under various forms, which the employees of the employer, members of Local 749 of the Brotherhood of Locomotive Engineers, and members of Local 1179 of the United Transportation Union, constitutes a strike. Because there is a collective agreement in effect, and because the stipulations of section 180 of the Code have not been satisfied, such strike is unlawful and the Board so finds. It cannot condone such transgression of the provisions of the Code. As to the issuance of an order to cease and desist, with hesitancy, the Board has concluded that in the present circumstances such an order is warranted and an order will issue.

However, said order shall not be addressed to the Brotherhood of Locomotive Engineers and the United Transportation Union and their national officers. Ample evidence adduced at the hearing has convinced the Board that in the short lapse of time between the 20th of October to this date, the Brotherhood of Locomotive Engineers and the United Transportation Union by its national officers have taken all reasonable measures to induce their respective members at Rainy River to perform normally their duties. Furthermore, they had nothing to do with the decision taken by their respective members in Rainy River to transgress the provisions of the Code.

The wording of the application by the employer could be read as requesting the Board to apply a cease and desist order to all members of the Brotherhood of Locomotive Engineers and of the United Transportation Union in Canada. The order to be issued concomitantly with the present reasons for decision shall be restricted solely to the members of the two locals of the two unions in Rainy River and their local officers and the local chairman of the two Locals.

The Board, on the other hand, appeals to the national officers of both the Brotherhood of Locomotive Engineers and the United Transportation Union to lend their offices to facilitate obedience to the order of the Board by their respective Locals in Rainy River and the members thereof. The Board has just expressed its hesitancy in issuing the cease and desist order in this application because it was not overly impressed by the heavy-handed manner in which the employer went about the implementation of the change in crew calling procedures. More specifically, there was considerable insensitivity in assessing the possible concerns of its employees living in such an isolated and remote small locality as Rainy River. It appears to the Board that it would have been relatively easy to ensure that said employees would be thoroughly canvassed as to their concerns and the necessary explanations and clarifications given to them in due course prior to final implementation on October 18, 1983.

In addition, the Board, through the evidence, has been made aware of the various forms of redress in sound labour relations which these parties have and had at their disposal to resolve their differences. Evidence was given as to the length of time which could elapse in the application of these recourses with a modicum of good faith on both sides. Furthermore, the settlement which occurred in Winnipeg on Sunday, October the 23rd, between the employer and the same categories of employees based at Sioux Lookout, as reflected in the letter quoted at length above, and which allowed for the peaceful implementation of the change at that location,reinforces the Board in its conviction that this dispute could have been averted. It is a pity for the Rainy River employees that the date of implementation concerning them preceded that of Sioux Lookout by seven days or, conversely, that it possibly took the Rainy River turbulence to make possible the solution arrived at for the Sioux Lookout location.

Finally, there was evidence concerning the United Transportation Union that once the withdrawal of services had begun, the highest authorities on both sides rapidly came to a verbal gentlemen's agreement that a resolve of the dispute at Rainy River could be arrived at by speedy reference to arbitration.

The Board is convinced that the parties have all of the necessary tools to resolve this labour relations dispute and is confident that they will achieve a solution in good time and within the rule of law.

There was reference above to the verbal application made by counsel for the employer to the Board to file its order, if it issued an order, in the Federal Court, according to the provisions of section 123 of the Code which reads:

This application is denied and for two reasons.

1.  It will be noted that such an application is predicated upon "the request in writing of any person or organization". The application not having been made in writing must therefore fail.

2.  The application of the provisions of section 123 is also conditional upon paragraphs (a) and (b) of subsection (1). At the moment and on the face of the evidence, the Board has no indication of a likelihood of failure to comply by the employees with the order of the Board. Furthermore, the Board does not for the moment see how the filing of its order, just issued, would serve any useful purpose. On the contrary.

As the Board stated in Seaspan International Ltd.(1979), 33 di 544; and [1979] 2 Can LRBR 493:

The Board is not interested in punishing but in remedying breakdowns in labour relations. If the declaration and order of the Board were to be defied by the employees members of the two locals of the two unions in Rainy River, the Board may always be realerted to that situation and will deal with it immediately and firmly.

As to the second application which concerns the location of Sioux Lookout, the Board has ascertained, as explained above, that the labour dispute has been resolved to the extent that the employees have returned to the performance of their normal duties after a short duration of withdrawal of services and that the situation is now normal.

In this context, the Board wishes to reiterate what it stated in 1974 in the Newfoundland Steamships Ltd. case as reported above.

This application is denied.

A declaration of unlawful strike and an order to cease and desist will issue today, together with these reasons for decision.

Summary:

Application for a declaration of illegal strike made pursuant to s. 182 of the Canada Labour Code, Part V.

Strike - Board will enquire into the reasons behind an unlawful strike or lockout to assist it in determining whether to exercise its discretionary powers under s. 182.

Strike - Practice and procedure - Board abridged the time for summoning the parties to hearing pursuant to its powers under s. 118(m) in recognition of the urgency of such applications.

Strike - Practice and procedure - Mediation services provided by Board's officers in illegal strike applications are voluntary - As with unfair labour practice complaints, Board not made aware of substance of what happened during mediation.

Strike - Remedies - Locomotive engineers and train agents booked off sick in concert and in defiance of their union leaders to protest the way provisions in the collective agreement concerning rest periods at the end of their shift were applied - Board found their actions to be an illegal strike which could not be condoned - Board did not issue an order as situation back to normal at time of hearing - Board also refused employer's request for an "anticipatory" order declaring any such future action would be unlawful - No evidence that employees were likely to participate in a further strike - Board decision to be posted by employer and unions.

NOTE: This case is currently pending before the Federal Court of Appeal (Court file no. A-1051-84).

Cases Cited:

The citations in this headnote are fully updated as compared to those within the text of the accompanying decision.

   Canadian National Railway Company (1983), 52 di 166 (CLRB no. 440). Lloyd and Superintendent of Motor-Vehicles (Re) (1971), 20 D.L.R. (3d) 181 (B.C.C.A.).
   National Harbours Board (1979), 33 di 530; [1979] 3 Can LRBR 502; and 79 CLLC 16,204 (CLRB no. 195).
   Newfoundland Steamships Limited (1974), 7 di 8; [1975] 2 Can LRBR 275; and 75 CLLC 16,147 (CLRB no. 36).

Statutes Cited:

Appearances:

These reasons for decision were written by Mr. Serge Brault, Vice-Chairman.

This case was heard at Quebec City on August 24, 1984. The principal conclusions of these reasons for decision were communicated to the parties orally that same day, at which time the Board explained that it would wait until later to issue its complete reasons for decision in writing.

The instant case concerns alleged unlawful withdrawals of services by employees of Canadian National Railways (hereinafter referred to as the employer) in the Quebec City region. These employees belong to one or the other of the respondent unions.

The Board received an application made pursuant to section 182 of the Canada Labour Code late in the afternoon on August 21 when counsel for the employer filed its application at the Montreal regional office at 4:00 p.m.

Needless to say, an application for a declaration of unlawful strike is an urgent matter to which the Board gives prompt attention, within the limits of the means and resources at its disposal.

In short, in a case of this kind, the time periods prescribed for summoning the parties are shortened under section 118(m). However, in keeping with the requirements of section 182, the employees must be given "an opportunity to be heard".

In its application, the employer suggested, in its words, that "a public hearing [is] not even necessary before the Board issues orders..." (page 7).

Since there are many ways of meeting the requirements for a hearing (see Re Lloyd and Superintendent of Motor-Vehicles (1971), 20 D.L.R. (3d) 181), the parties were summoned to a formal public hearing in a manner that, under the circumstances, was most appropriate to the urgency of the situation and in keeping with the requirements of the Code.

On August 22, the Board's administrative services therefore took steps to establish a quorum in accordance with section 115(1) of the Code, bearing in mind that hearings were in progress on the West Coast and there were no members in a position to hold a hearing in Quebec. These arrangements were completed on August 23 and the Board convened, the provisions of section 20 of the Regulations notwithstanding, a hearing that same day for the following day in Quebec City, pursuant to section 118(m) of the Code. These two sections read as follows;

The proceeding before the Board alleged that, although the respondent unions are bound by existing collective agreements, beginning on Sunday, August 19 at 11:00 p.m., employees covered by these agreements "began, suddenly and in concert [in the case of the Brotherhood], to refuse unlawfully to report for their regular duty either by calling in sick, by claiming to be ill when called to report for work, or by not being available when called to report for work". The application alleged that, on August 21 at 10:00 a.m., the day the application was made, this action involved "more than sixty (60) locomotive engineers in Joffre [i.e. Quebec City/Charny]".

The application alleged the following concerning the employees represented by the U.T.U.:

However, the employer's application did not allege that they acted in collusion or with the approval of the respondent unions, about which it had the following to say:

The application also contained this statement:

The employer's application was also accompanied by a telex (R4) which was signed by the President of the Brotherhood and sent to his members on August 20. This telex reads as follows:

Along with its application, the applicant filed two lists of the persons who allegedly participated in this unlawful work stoppage, together with the collective agreements then in force.

Finally, the employer's application alleged that the likely reason for "this outbreak" was a union demand relating to certain working conditions contained in the collective agreement:

It may be useful to quote Exhibit R-3, which the application describes as the demand for "new terms and conditions" of employment. It reads as follows:

       (translation)

CN, a national railway, provides essential services and makes the following allegations regarding the problems created by the work stoppages of its personnel:

The application goes on to allege the following:

The following are the conclusions sought initially in the application. We have numbered them for the sake of clarity:

       (translation; emphasis added)

These are essentially the allegations contained in the proceeding which was still before the Board on the eve of the hearing.

In cases like this, it is common practice for a labour relations board like ours to make available, at the applicant's request, a Board labour relations officer who offers to assist the parties in order to help them settle disputes of this kind. His intervention is strictly voluntary and unofficial and is intended to be essentially practical. This was the case in the present file where two Board officers offered their services to the parties in this capacity as soon as the work stoppage began. Thus, when the Board Members met in Quebec City on August 23, they were informed that such a mediation session was to be held between the representatives of the parties and the labour relations officers assigned to this case.

The Board Members were then informed of what was public knowledge, namely, that the employees who were the subject of the application had returned to work and that the respondents' and the employer's representatives were to hold discussions on the matter. The hearing was postponed for a time, with the agreement of the parties, and the Board Members withdrew to allow the parties to meet.

When these discussions concluded, the Board Members summoned a representative of each party to a preparatory meeting to review the situation. The purpose of this pre-hearing is basically to define, in a few minutes, the matter in issue and estimate the length of the hearing.

At this meeting, the parties briefly summarized their respective positions with regard to the proceeding before us and the facts alleged on both sides. Counsel for the employer informed the Board that, despite the resumption of work, his client still insisted on a hearing and an order. The Board then invited the parties to meet again privately to see if they could proceed through admissions, following which it withdrew.

The Board Members were later informed that the parties were ready to proceed and the hearing began early that afternoon.

When the hearing began, counsel for the employer repeated that, despite the resumption of work by its employees, his client still wanted a declaration that the activities alleged in its proceedings constituted an unlawful strike, as well as an order from the Board prohibiting an apprehended walkout, the whole under the powers conferred upon the Board by section 182 of the Code in order to deal with this type of case.

Counsel for the employer informed us that he was abandoning the conclusion we identified as number 2. He asked us to make, without further ado, the necessary changes to his conclusions because he was no longer asking the Board to put an end to an existing work stoppage, but rather to prohibit an apprehended work stoppage within the meaning of section 182. The Board granted him permission.

Speaking for all the parties, counsel for the employer then informed the Board that following the pre-hearing the parties had agreed on a statement of facts on the basis of which they were prepared to present arguments. This statement would be based essentially on the application filed by the employer, to which corrections or additions would be made.

Because the persons assembled before the Board were not experts, and because the respondents were not represented by counsel, the Board, as has been its custom for some time, summarized, with the parties' approval, what had transpired at the pre-hearing mentioned earlier. Similarly, the Board reminded the parties that, while it was aware that its labour relations officers had mediated between them, it had not been informed of how this mediation session had proceeded or of the conversations that had taken place between the parties and the Board's officers. In short, this is the same practice the Board follows in complaints of unfair labour practice where, as a rule, its not informed by its officers of the successes and failures of their mediation efforts. To proceed otherwise would obviously render any attempt at mediation useless because one party would be afraid of being held responsible in the event mediation failed.

Once the Board had drawn attention to these facts, it invited the parties to proceed with their evidence.

The facts agreed on by the parties can be summarized as follows:

Turning now to the apparent causes of this work stoppage, the Board notes that the evidence, although brief, nevertheless reveals a sufficient number of facts.

The crux of the problem is the application of article 68.7 of the Brotherhood's collective agreement (or its counterpart in the U.T.U. collective agreement) with which the Board is familiar.

The evidence adduced before us as to the cause of this work stoppage concerns complaints from employees regarding the way in which this article was apparently applied in Quebec City. The Quebec City employees described the problem in these terms in a statement filed by the parties:

The evidence adduced also reveals that the Quebec City employees requested a meeting with Mr. Lagacé because, we were told, "we no longer had confidence in anyone in Quebec City".

It was alleged in the application that the disputed provisions "had never been contested through a grievance and/or arbitration".

According to the admissions, the way in which these provisions were applied had been discussed for a number of years; grievances had been filed but had never reached arbitration, and the basic problem had never been resolved.

During the meeting with Mr. Lagacé, the latter promised to study the possible solutions in order to make the application of the contentious provision more acceptable to the employees.

Following a pause in the hearing, the parties finally agreed to file a memorandum (R-8) from the national Vice-President for Labour Relations, Mr. Morin, issued in May 1982. This memorandum was prepared following national collective bargaining and dealt with the way in which CN intended that this provision be applied:

It was explained to us that this directive dealt specifically with the problems that gave rise to the walkout, namely, the occasions when the employees would be required to remain aboard a train during their rest period.

A copy of this memorandum indicates that copies had been sent to the union officers who were in a position to know the national policy on this matter.

Finally, it was explained to us that this memorandum essentially appealed to the good judgment and discretion of those who had to apply this provision.

In short, the Vice-President agreed to examine the way in which this directive had been applied in Quebec City. His intervention suggests that the situation in this regard in Quebec City was exceptional and warranted study, if indeed the local application of this clause was the cause of an unlawful work stoppage.

Without explaining what he meant, the Vice-President told the union representatives that the results of his study, whatever they might be, would be made known quickly: "It won't take a year or six months."

The union representatives promised to ensure that work, which had already resumed, would continue and took various steps to inform their members.

These, briefly stated, are the facts adduced before us.

When presentation of the facts was completed, the Board explained to the parties the significance of declaring their presentation of evidence closed, following which each party was invited to state whether it had anything to add.

The Board declared the presentation of evidence by the parties closed and invited them to present their arguments.

Essentially the applicant argued that there was clear evidence that the employees had participated in a strike, but acknowledged that the respondent unions had no hand in it.

Counsel pointed out that, had a hearing been held on August 20, an order would certainly have been issued and he insisted that the situation was still volatile.

Counsel noted that the employees had walked out in defiance of their union leaders and that instituting proceedings was not enough to force them back to work.

Counsel maintained that, by resorting to illegal means once, the employees had succeeded in securing the intervention of Mr. Lagacé, Regional Vice-President, and that there was reason to fear they might do so again. According to counsel, it was better to tell an employee to remain at work while he was on the job than to tell him to return to work after he had walked out.

The assurance from union representatives that activities would proceed normally was not valid because they had no control over their members.

Although Vice-President Lagacé had the authority, it was not known when, if ever, his decision would be handed down. His undertaking was merely a band-aid solution, when an order was needed. The problem involved the application of the collective agreement, which was a local responsibility, and this problem could flare up at any time.

Finally, counsel stressed that the problem was purely a human relations one and that the employees' expectations could be high. He noted the distortions in communication between all the interested parties.

Counsel concluded by noting the Board's expertise "in these delicate situations where everyone must co-exist". With this in mind, he argued, the Board must state categorically that the action taken was unlawful and issue a preventive order, at least to preserve harmonious relations. He asked for a "mild" order.

The respondents' representatives, for their part, stressed that the Board should examine the causes of these incidents. They noted that these difficulties in applying the collective agreement were peculiar to this region.

They dwelt at length on the problems of trust that had forced the employees to appeal to a higher authority in whom they had confidence.

Communication had been re-established and the situation had returned to normal. There was no need for an order.

In rebuttal, counsel for the employer pointed out that the company's conduct had been neither arrogant nor ruthless; it had acted within its rights.

The Board will begin by examining the action taken by the employees between August 19 or 20 and 22, namely, booking off sick.

Section 107 of the Code defines the word "strike" as follows:

Moreover, section 180(2) of the Code stipulates the following:

One requirement of section 180(1) is that the parties have initiated the collective bargaining process and have complied with the time limits prescribed by the Code.

The Board should make clear that these rules also apply to the declaration of a lockout. A strike or lockout cannot be declared at any time and certainly not outside the time period prescribed by the Code, however this action is disguised.

The Board has no hesitation whatever in concluding that the action taken by the members of the respondent unions is completely illegal and totally contrary to the Code.

The employees who initiated this action showed a total disregard for the Code and the Board categorically condemns their action.

To ask the Board to tolerate an unlawful strike is to ask it to ignore the law, and this it cannot do. Moreover, if disguised unlawful strikes were tolerated, disguised lockouts would also have to be tolerated. Clearly the Board could not do one without doing the other, because the economy of the Code depends essentially on the maintenance of a balance in the means of pressure available to each side.

The Board is not fooled by such a tactic as sudden declarations of illness, especially when these illnesses end during a meeting just as suddenly and collectively as they began.

The concerted declarations of illness made between August 19 or 20 and 22 constituted an unlawful strike.

The Board must also examine the reasons for the outbreak of this unlawful strike. A work stoppage always has causes and it is important for a board like ours to try and identify them when it is asked to exercise the very considerable discretionary powers it enjoys where this kind of disruption of labour relations occurs.

In National Harbours Board (1979), 33 di 530; [1979] 3 Can LRBR 502; and 79 CLLC 16,204 (CLRB no. 195), the Board reaffirmed that its interventions in unlawful work stoppages must be marked by "... the desire not only to remedy the symptoms of problems arising in labour relations but also to do so in particular by determining the source of the malady...". (pages 531; 503; and 531). See Luc Martineau, "La "gestion" des conflits par le Conseil canadien des relations du travail" (1981), 36 Ind. Rel. 589 (English summary: The "Management" of Conflicts by the CLRB, at p. 614).

The relevant events that gave rise to the problem appear to us to be very straightforward and seem to have led to a build-up of frustrations in the employees. The employees are members of the two respondent unions, the Brotherhood of Locomotive Engineers and its division No. 558 in Quebec City, and the United Transportation Union and its local 4, also located in Quebec City. These two groups are governed by existing collective agreements that expire on December 31, 1984.

The work stoppage began on Sunday, August 19 or very early Monday morning, August 20, when a group of members of the Brotherhood in the St. Lawrence region failed to report for work. Later, the members of the U.T.U. followed their lead. In all, some sixty engineers and an almost equal number of U.T.U. members were absent from work on Tuesday, August 21. Significantly, neither of the two unions had a hand in these events which overtook, if not surprised, them.

According to the events related in the evidence, this action by the employees resulted from a growing frustration with the way in which a provision of the collective agreement is being applied. The provision in question is article 68.7 of the Brotherhood's collective agreement and its counterpart in the U.T.U. agreement, article 51. These provisions deal with the rest periods to which the employees are entitled. According to the collective agreements filed, when an employee finishes his shift, he can be required, even though his duty has ended, to remain aboard a train for varying periods of time, without the right to leave the train.

According to the statements filed by agreement, if not admitted by the employer, some employees apparently had to remain on board for several hours at a time when circumstances did not warrant it. This uncontradicted statement, which was entered in evidence, was made by a local union leader.

The facts adduced before us reveal that the application of these provisions in the Joffre (Charny) region may have caused more problems than their application in the other areas served by CN. According to the union representatives, local management had not applied this article in the spirit in which it should have been applied.

In a memorandum clearly designed to clarify the application of these provisions, the Vice-President for Labour Relations, Mr. W.H. Morin, wrote as follows on May 21, 1982:

It was the manner in which this memorandum was apparently interpreted or perhaps misinterpreted at the Joffre terminal that triggered the hostilities.

Faced with the work stoppage by its employees, the applicant made its original application to the Board on Tuesday, August 21 and, as the evidence reveals, the Board's labour relations officers intervened to help the parties find a solution.

The evidence reveals that the Quebec City group of employees had lost confidence in the ability of management in Quebec City to resolve what, in our view, is a problem that can be solved at this level, as the parties themselves admit. Moreover, some management authorities were no doubt unaware of the level of frustration that had built up here because the evidence shows that the parties debated the matter for years, apparently without finding a solution and without the grievances ever reaching arbitration.

The prospect of a meeting with the Vice-President for the St. Lawrence region, Mr. Roger Lagacé, not to mention the effect of the present proceedings and the repeated urgings of union and management officials, was sufficient to bring about a resumption of normal activities beginning on Thursday morning, August 23, 1984. It should be noted that Mr. Lagacé occupies a position of higher authority in relation to local management which is responsible for applying, in a manner which the employees considered abusive, the provisions in question. The Board notes that the union officers' appeals for a return to work had been ignored until the announcement of the meeting with Mr. Lagacé, who is obviously held in esteem by his employees for his integrity and good judgment.

At the meeting held on Thursday, August 23, Mr. Lagacé agreed to examine the way in which these clauses were being applied in the Quebec City region as soon as possible. By doing so, he reestablished, at the very least, the lines of communication between CN and its union counterparts in this region where the credibility of those on both sides responsible for the conduct of labour relations appears to us to have been seriously eroded during this episode.

When those who have been entrusted by their union or management peers with the application of a collective agreement are not equal to the task, it is indicative of a breakdown to which the parties should not remain insensitive. That is why the Board believes that the necessary attention must be given to the problems raised and a solution found that respects the rights of the parties under the collective agreements.

When the hearing began, the employer's operations had already returned to normal. However, the CN representatives strongly insisted that there could be another walk-out by the employees.

The parties both spoke in this regard of a human problem, a communications problem. That, in the Board's opinion, is the root of the problem and the parties have clearly recognized it. Thus, an order from the Board declaring more formally that the work stoppage was unlawful would do nothing to improve the parties' labour relations or have any other practical effect.

The application, as orally amended by the employer, now spoke of an apprehended strike instead of an existing strike and sought an order to prevent it.

The Board has broad powers under section 182 to deal with an alleged unlawful strike, whether real or apprehended:

       (emphasis added)

In Newfoundland Steamships Limited (1974), 7 di 8; [1975] 2 Can LRBR 275; and 75 CLLC 16,147 (CLRB no. 36), the Board had the following to say:

As a preventive measure, since there is at present merely the hope of a settlement, the Board is being asked to issue a "mild" order enjoining the employees from participating in any further work stoppages. Admittedly, there is no guarantee, apart from the firm commitment by the union representatives, that there will not be a recurrence. However, the Board does not believe that the issuing of an order would produce better results than the discussions between the parties have achieved.

Section 182 of the Code stipulates that, before an apprehended strike can be established, the Board must be satisfied that "employees ... are likely to participate in a strike...". We do not believe there is any evidence on file to warrant our making this finding, at this stage. There is no evidence on file that another work stoppage was imminent. It is essentially because our reading of the facts leads us to this conclusion that we will not issue an order.

In Canadian National Railway Company (1983), 52 di 166 (CLRB no. 440), the Board declined to issue an order after determining that normal operations had resumed when the hearing began:

The above case was similar to the instant case: the employees had booked off sick for five or six days but resumed work when the parties agreed to meet before the hearing began. Moreover, the Board had declined to issue an order in respect of the Sioux-Lookout location, but it did issue an order covering the Rainy River location where an unlawful strike was still in progress.

For these reasons, plus the fact that it did not find any evidence of the likelihood of an unlawful strike, the Board does not deem it appropriate to issue an order.

Finally, there is not the slightest doubt that if the Board receives another application arising from these employees resorting to another disguised unlawful strike, the parties can rest assured that the Board will act swiftly and vigorously to ensure full compliance with the Code. If the Board was able to hear and decide the present case with less than four days' notice, it could do so again.

The Board, by relying on the maturity of the parties, realizes that it is running some risk. It nevertheless intends that the reasons for its decision be clearly understood.

The Board agrees with the employer that it is essential that all the employees concerned know that the Board considers the actions they took blatantly illegal and is determined to prevent a recurrence.

One of the Board's roles, particularly where it is called upon to exercise its discretionary power as in the present case, is to help the parties re-establish good relations. It is also for this reason that parties appeal to the Board. Thus, its decisions must at least be made known.

Consequently, the Board orders the employer, pursuant to its powers under the Code, to post a copy of these reasons, for a period of two months as of the date they are received, on each notice board reserved for the employees concerned in the region represented by locals 558 and 4 of the respondent unions.

The Board likewise orders the unions to post a copy of these reasons on all notice boards reserved for the unions (Division 558 of the Brotherhood of Locomotive Engineers and local 4 of the U.T.U.), also for a period of two months as of the date which these reasons are received.

The Board wishes to thank the parties' representatives for their co-operation.

Accordingly, for all the above reasons, the employer's application is dismissed.

Summary:

Application pursuant to section 91 of the Canada Labour Code, Part I, for a declaration of illegal strike and a request pursuant to section 18 to vary or amend a previous order requiring the union to cease and desist from participating in an illegal strike to include further remedies.

Unlawful strike - Reconsideration - Practice and procedure - Consent order - Remedies - Employer alleging that Board's consent order not complied with by members of two unions and that unlawful activities were still in progress - Members delayed the movement of trains by implementing a work-to-rule campaign because of their concern over hours of work - Board decided to rescind consent order and rehear original section 91 application - Unlawful strike defined; Board's role as well as practice and policies set out - Board sees its role as not being punitive but rather sees itself as a forum for the furtherance of sound labour relations; when seeking compliance with section 89, Board seeks labour relations solutions to labour relations problems - Discussion of Board's practice and purpose of consent orders - Board issued a declaration that unions had authorized the strike, ordered revocation of its motion declaring work to rule, ordered union to provide a copy of Board's decision, declaration of illegal strike, remedial order and a further "Notice to Employees" the content of which warned the employees of the provisions of section 100 which set out the consequences of non-compliance with its order.

NOTE: Application for judicial review of this decision to the Federal Court of Appeal was quashed (Court file no. A-7-90).

Cases Cited:

Statutes Cited:

   Canada Labour Code, Part I, ss. 18; 89(d); 91; 93(1).

Appearances:

The reasons for this decision were written by Vice-Chairman Hugh R. Jamieson.

These reasons deal with an application under section 91 of the Canada Labour Code (Part I - Industrial Relations) wherein Canadian National Railway Company (CNR or the employer) alleges that the Brotherhood of Locomotive Engineers and its local, Division 945 (BLE or Division 945), and the United Transportation Union and its Local 701 (UTU or Local 701) had authorized or declared a strike contrary to section 89 of the Code. CNR also alleged that certain employees at its Vancouver Terminal, members of the BLE and the UTU, were participating in said unlawful strike. The unlawful activities were said to consist of a work slowdown or a work-to-rule campaign.

When CNR's application was received on November 10, 1989, it so happened that a panel of the Board composed of Vice-Chairman Thomas M. Eberlee and Board Members Victor E. Gannon and Calvin B. Davis were scheduled to be in Vancouver the following week to hear other matters. CNR's application was therefore set down for a hearing on November 14, 1989 before that panel of the Board.

On November 14, 1989, as a result of consultation between the Board and counsel for the parties, the Board issued what is termed as a consent order. This order, which was based upon an agreement between the parties that neither the BLE or the UTU were in a lawful strike position and that unlawful activities were indeed going on at the Vancouver Terminal, simply ordered the members of the BLE and the UTU to cease and desist and to perform the duties and functions of their employment in a normal fashion.

The order also placed an onus on both the BLE and the UTU to bring the Board's order to the attention of its members. The order did not deal with the question of whether the BLE or the UTU or their locals had authorized or declared the unlawful strike.

This order of the Board was apparently not complied with by the members of the BLE and the UTU and, as a result, CNR filed an application with the Board on November 21, 1989 alleging that the work-to-rule campaign was still in progress and requested that the Board reconsider its order of November 14, 1989 under section 18 of the Code, to vary or amend it by adding further remedial steps so that the order would have the effect of halting the unlawful activities. In this application, CNR conceded that both the BLE and the UTU had taken steps, as required by the November 14 order, to bring the Board's cease and desist directive to the attention of their members.

This application by CNR was set down for a hearing to be held at Vancouver on November 27, 28 and 29, 1989 before this quorum of the Board. As a result of this hearing, the Board rescinded the November 14 order and issued a new order dated November 29, 1989 which found that the BLE and the UTU, through their locals, Division 945 and Local 701, had indeed authorized or declared the unlawful strike. This order contained precise instructions to the BLE and the UTU to rescind the authorization or declaration and to take specific action to provide each and every member at the Vancouver Terminal with a copy of the order as well as a copy of a "Notice to Employees" which the Board determined was necessary to bring the unlawful activities to an end.

These are the Board's reasons for reaching the conclusions which it did.

Before dealing with the merits of CNR's application we feel that it is necessary to set out at some length what an unlawful strike consists of in the federal jurisdiction and the Board's practices and policies regarding section 91 of the Code. This is particularly important in this case as the Board has instructed the BLE and the UTU, through their Local officers, to provide a copy of these reasons to all of their members at CNR's Vancouver Terminal which runs into close to 1 000 employees.

Section 91 of the Code provides:

There are similar provisions under section 92 of the Code where trade unions can seek remedies for unlawful lockouts.

Section 93(1) provides:

The governing section in the Code is section 89 which we will not reproduce but which can be summarized as prohibiting employers and trade unions from authorizing or declaring lockouts or strikes and employees from participating in strikes during the life of a collective agreement. This prohibition continues even after a collective agreement expires and it remains in place during negotiations and right through the conciliation officer stages of the collective bargaining process if the Minister of Labour appoints such an officer and into and through the conciliation board process if the Minister of Labour decides to appoint a conciliation board. Strike action is only permitted under section 89 after:

What is a strike? It is defined in the Code as follows:

What constitutes an unlawful strike? Almost any job action that is done in concert or in accordance with a common understanding that is designed to restrict or limit output if such job action is taken during the prohibition periods under section 89 of the Code.

In Graham Cable TV/FM (1985), 62 di 136; and 85 CLLC 16,058 (CLRB no. 529), the Board cited some examples of the broad range of activities that had been found to be a strike in the federal jurisdiction:

What is the purpose of the prohibitions against strikes and lockouts in section 89? The purpose of section 89 within the scheme of the Code is to establish periods of industrial peace by eliminating work stoppages during the existence of collective agreements and during negotiations up to the point in time where the Minister of Labour is convinced that both sides have bargained in good faith to an impasse and that nothing short of a strike or lockout will resolve the dispute between them. Strikes or lockouts are not permitted to be used as a means to resolve mid-contract disputes. Section 57 of the Code requires that all differences arising from the interpretation or application of collective agreements be resolved without a work stoppage. Every collective agreement is required to contain a mechanism for the resolution of such disputes by way of arbitration or otherwise. In this regard, the rule is "work now, grieve later."

What is the Board's role and policies in respect to unlawful strikes and lockouts? First and foremost, the Board sees its role as not being punitive, rather it sees itself as a forum for the furtherance of sound labour relations. When seeking compliance with section 89, the Board seeks labour relations solutions to labour relations problems. It is to this end that the Board more often than not refuses to issue a declaration of an unlawful strike in circumstances where the unlawful activities have ceased prior to the Board arriving on the scene. In the same vein, the Board often accepts the solutions worked out by the parties and issues a consent order just as it did in this case on November 14, 1989. These consent orders are designed to bring the unlawful activities to an end without assigning liability to the bargaining agent or to the employees in the bargaining unit thereby avoiding recourse to criminal or civil sanctions. Trade unions often will consent to orders in situations where they are faced with convincing their members that they must cross a lawful picket line. The consent order is the Board's way of assisting the parties to create an environment where normality can return to the work place. This provides breathing space wherein the parties can work out their differences. When issuing consent orders the Board relies on the good faith of the affected parties and, up to now, almost without exception consent orders have served their purpose and have been a useful tool to bring unlawful activities to an end. However, in cases such as this, where a consent order has not been complied with, the Board cannot stand by idly in the face of non- compliance, no matter what the labour relations considerations are.

The Board set out its policies in this regard in St. John's Shipping Association Limited (1985), 61 di 39; 10 CLRBR (NS) 118; and 85 CLLC 16,033 (CLRB no. 514):

It was within the foregoing legislative and policy scheme that the Board received the application for reconsideration from CNR on November 21, 1989 pursuant to section 18 of the Code, which provides:

Faced with non-compliance of the Board's November 14 consent order the Board decided to rescind that order and to rehear the original section 91 application in its entirety. As stated earlier, the hearing took place at Vancouver commencing on November 27, 1989. At this hearing the Board heard evidence regarding a meeting between CNR officials and representatives of the BLE and the UTU on October 31, 1989. The subject of this meeting was an evaluation study being conducted by CNR on its yard operations. This study, which has previously been done at other major centres across Canada, is known as the Yard Productivity Project. The study was scheduled to commence at the Vancouver facilities on November 14, 1989 and would last for approximately five months. The first two months would be dedicated to reviewing terminal records and the remaining three months would be spent observing terminal operations.

At this meeting, union representatives asked if this study meant that everyone would be working eight hours. Apparently, it is a practice in the yards that employees have the benefit of early book-offs once their assigned tasks have been completed. At times, employees could actually only work five and a half hours and be paid for eight hours. This is a privilege that the BLE and the UTU were concerned they might lose. This concern over the eight-hour day was plainly exhibited in a notice that was used to publicize a special joint meeting called by the BLE and the UTU for November 5, 1989. The notice read:

       "SPECIAL MEETING

       * * * * *

       YOUR ATTENDANCE AT THIS MEETING IS EXPECTED."

At this meeting, the following resolution was adopted:

The very next day, November 6, 1989, the work-to-rule campaign took effect and it was still in operation as of the Board's hearing on November 27, 1989. CNR placed before the Board many examples of changes in work patterns that affected the marshalling and movement of trains which left no doubt that these were part of a well-orchestrated campaign that could not possibly be a result of action by a few isolated individuals. Some examples of effects of the work-to-rule campaign were as follows:

Train 201

Average time elapsed from arrival of train at Thornton Yard to movement onto Fraser River Bridge:

During the four weeks prior to the work-to-rule campaign the average time varied, from 70 minutes to a high of 110 minutes. During the week of November 5, 1989, this time escalated to 280 minutes.

Train 217

Average time elapsed from arrival of train at Thornton Yard to movement onto Fraser River Bridge:

During the four weeks prior to the work-to-rule campaign the average time varied from a low of 65 minutes to a high of 110 minutes. In the week of November 5, 1989 this time rose to an average of 180 minutes. By the week of November 19, 1989, the time had increased to an average of 250 minutes.

Train 214

On Time departures from Thornton Yard:

During the four weeks prior to the work-to-rule campaign this train departed no more than one hour late. Between November 5-8, on three occasions the train departure was delayed over six hours.

Train 218

This train met the same fate as train 214. Between November 5-8, the train departure was delayed on three occasions an average of six hours and 33 minutes.

Trains 214 and 218 are eastbound freight trains used for expedited freight and new automobile transportation. Customers pay a premium for this service. Because of the effect of the job action between November 5-8, CNR was forced to change the routines of these trains as of November 9, 1989.

The job action not only caused train delays, it resulted in a back-up of rail cars which created congestion in Thornton Yard. Graphs were presented to the Board showing that during the four-week period prior to the commencement of the work-to-rule campaign the daily average rail car population at Thornton Yard ranged between 2 110 cars to 2 210. By the week of November 19, 1989, the rail car population at Thornton Yard climbed to an average of 2 650. According to CNR this congestion not only created a situation where it became almost impossible to maneuver rail cars within the yard, it also caused a back-up of cars in the system around Vancouver.

Many other examples of the effect of the work-to-rule campaign were presented to the Board by CNR. These included the cost of bringing in extra supervisors from other areas to cope with the situation; increased costs by extra overtime incurred; examples of the work patterns where tasks that had previously been completed in four to six hours by one crew now took two crews up to sixteen hours; the dramatic increase in the need for transfer crews and the resulting overtime payments required and the sudden number of yard and transfer assignments that were not completed because of the unavailability of employees. There was also a sudden scarcity of enginemen agreeable to double out which entails working a second shift or working on days off.

Contrary to what some may preach, it is usually relatively easy for the Board to spot concerted activity even where it is disguised as a lawful exercise of individual rights or a sudden concern for safety and strict adherence to rules. The concentration of the job action and its timing relative to other events such as ongoing negotiations, changes in dispatch rules, the suspension of union representatives or, like here, a work study that has a possible negative impact on the work-force, usually tell the tale and reveal the underlying cause. This usually leaves little room for doubt what the actions by the union and its members are all about. As far as the union's involvement, there is a presumption in this regard:

In this case we have a massive slowdown which is obviously well orchestrated. This, coupled with the motion for a work-to-rule campaign that was adopted on November 5, 1989 at the special joint meeting of the BLE and the UTU, which was called suddenly to discuss concerns over the possible implementation of an eight-hour day, leave little room for doubt that the work-to-rule campaign that commenced on November 6, 1989 was a concerted slowdown that was designed to restrict or to limit output. There can also be no doubt that the BLE and the UTU, through their locals, Division 945 and Local 710, authorized or declared these unlawful activities, and the Board so finds.

Having found that the BLE, Division 945 and the UTU, Local 701 had authorized or declared an unlawful strike and that the members of these trade unions employed by CNR at its Greater Vancouver Terminal were participating in the said unlawful activities, the Board decided to issue an order that best suited the situation, particularly in the circumstances where the Board's consent order of November 14, 1989 did not have the effect of bringing the unlawful activities to an end. We have already summarized the contents of the order and the gist of the remedies contained therein, and we are aware that by now most of the employees affected by the order will have read it along with the "Notice to Employees" that accompanied the order. This notwithstanding, the Board feels that it would be a useful exercise to attach copies of both the order and the notice to employees as Attachments "A" and "B" to these reasons for the information of others in the federal labour relations community who may read these reasons.

This is a unanimous decision of the Board.

       IN THE MATTER OF THE

       Canada Labour Code

       - and -

       Canadian National Railway Company,

       applicant,

       - and -

       Brotherhood of Locomotive Engineers,

       - and -

       Brotherhood of Locomotive Engineers, Division 945,

       - and -

       United Transportation Union,

       - and -

       United Transportation Union, Local 701,

       respondent trade unions,

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APPENDIX "B"

NOTICE TO EMPLOYEES OF CANADIAN NATIONAL RAILWAYS AT VANCOUVER, B.C., MEMBERS OF THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND THE UNITED TRANSPORTATION UNION

You will find attached hereto a copy of an Order issued by the Canada Labour Relations Board on November 29, 1989. You are advised to read the Order carefully as future proceedings which may arise in the event that the Order is not complied with may affect you as an individual.

You will note that this Order places liability for the declaration or authorization of the unlawful activities on your local unions but it does not name individual employees but rather it treats the employees as members of the respondent trade unions collectively. This is deliberate because the Board is aware that in the adversarial labour relations scheme within which we work, there is going to be the occasional transgression outside the law. By designing this Order so that it does not name individuals, the Board is providing an opportunity for employees to cease and desist from participating in the activities which the Board has found to be unlawful, without further penalty under the Code.

However, in the event that this Board Order is not complied with, the second step of the process involves action against named individuals who can then become subject to proceedings in the Federal Court of Canada which could result in contempt charges. Also individuals, trade unions and named trade union officials can be subject to prosecution under the Code. These proceedings can be initiated by your employer with the consent of the Board and those convicted are liable to have fines imposed upon them as set out in section 100 of the Code;

The foregoing are not the only remedies available to the Board or to your employer who can of course use its disciplinary powers and, if it so decides, the employer can take civil action against your union to recover damages incurred because of the unlawful activity.

The Board is sure that none of these further remedial steps will be necessary because it is confident that you as employees, having made your point, will return to normal work practices which is important to stabilize the labour relations climate at the Vancouver terminals.

You will note that your trade union representatives have been ordered to convey the contents of the Board Order, this Notice and the Board's reasons to follow to you and also to revoke the motion of November 5, 1989, which sparked the work-to-rule campaign. In the interests of promoting harmonious industrial relations and to avoid further remedial action under the Code you are advised to heed the advice of your trade union as it complies with this Board Order.