Canadian Pacific Limited, applicant, and Ash Kennedy Division
No. 657 of the Brotherhood of Locomotive Engineers, and United
Transportation Union, Local Lodge No. 501, respondents

42 di 40; [1981] 1 Can LRBR 121
CLRB Decision No. 273
Board File: 725-79

Canada Labour Relations Board
James E. Dorsey, Vice-Chairman; James D. Abson and
Hugh R. Jamieson, Members

October 30, 1980

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:

Mr. N.D. Mullins, Q.C. representing the applicant; Mr. D. Rosenbloom representing the respondents.

 

REASONS FOR DECISION

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

I

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:

"On or about Saturday, March 8, 1980, advice was given to the applicant by Mr. F. Christofferson, President of the U.T.U. Local that circumstances were such that members of the U.T.U. Local were disturbed and fed up. The members were of the view that there would have to be a change in the work pattern. On Sunday, March 9, advice was given to the applicant by Mr. J.W. Burns, the Local Chairman of the B.L.E. that something would begin to take place on the following Wednesday, March 12, 1980. The applicant assumed from this that there would be a work slowdown.

On Wednesday, March 12th, practices were implemented by members of the above described Locals of the B.L.E. and the U.T.U. which had the effect of slowing down train operations."

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.

"MEMORANDUM OF UNDERSTANDING

The Unions have expressed concern over what they consider to be an appreciable increase in the 'on duty' time of Revelstoke crews. The parties signatory hereto agree to investigate into this matter and will monitor the operation for 30 days, making comparison with other periods in the preceding 24-month period. The 30-day period mentioned above shall commence on Tuesday, May 6, 1980.

A Committee will be established consisting of System, Regional and Local Company Officers as well as two local representatives each of the Brotherhood of Locomotive Engineers and United Transportation Union and the respective Union General chairmen. They shall inquire into matters affecting the on-duty times of crews with a view to improving such times. Such matters, while not limited thereto, shall include:


(1)

Calling time at Terminals.

(2)

Initial Terminal Delay.

(3)

Availability of advance train information (line-ups).

(4)

Switching in Yard at Revelstoke.

(5)

Track speed.

(6)

cutting in of pusher engines at Rogers.

(7)

Meals en route.

(5)

Delays en route.


In respect of (7) above, the practices with respect to eating en route in effect prior to March 12, 1980, will be restored immediately.

The 30-day period mentioned above may be extended by not more than 15 days by mutual agreement of the Committee.

The parties will request that the Canada Labour Relations Board dismiss the pending application of the Company without prejudice to the Company's right to make a new application on the same or additional facts and the Unions will authorize Mr. D.J. Rosenbloom to accept service of such application on behalf of the Unions provided such application is filed within six months of the date of this Understanding and copies are sent by regular mail to the Unions.


Dated at Revelstoke, B.C. April 21, 1980.


FOR CANADIAN FOR THE UNIONS:
PACIFIC LTD.

signed signed

General Manager, General Chairman,
Pacific Region U.T.U.

General Chairman, B.L.E."

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.

II

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

(b)(1)

Engineers may book rest after being 11 hours or more on duty. Engineers booking rest en route will give at least one hour's notice to the dispatcher along with advice as to the number of hours of rest desired; eight hours to be considered sufficient except in extreme cases. If the dispatcher will provide a satisfactory run to the destination point, arrangements may be made to continue the trip. The engineer will be the judge of his own condition."


* * * *

       "Article 24

       MEALS

Engineer on freight train will be given reasonable time for meals between terminals on advising dispatcher 1 hour in advance. Time occupied not to be deducted in computing overtime or arbitraries unless such overtime or arbitraries have been increased by engineer delaying his train in taking time to eat."

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

       "Article 26

       REST RULE

(a)

A trainman will not be required to leave a terminal until he has had at least 8 hours' rest if desired, but such rest must be booked on the train register when going off duty. In no case, if rest is booked at the terminal, shall it be for less than five hours.

(b)(1)

Trainmen may book rest after being 11 hours or more on duty. Trainmen booking rest en route will give at least one hour's notice to the dispatcher along with advice as to the number of hours of rest desired; eight hours to be considered sufficient except in extreme cases. If the dispatcher will provide a satisfactory run to the destination point, arrangements may be made to continue the trip. A trainman will be the judge of his own condition.

(2)

In instances where rest is taken en route the Company will provide the necessary accommodation. Consideration will also be given to the availability of eating facilities when this is desired by the trainman booking rest.

(i)

Trainmen who have given notice that they require rest may be required to take rest desired prior to the expiration of 11 hours on duty to enable the Company to provide accommodation or to ensure that other trains can proceed.

(ii)

In circumstances where proper notice of rest desired has been given and eleven hours on duty have expired and sleeping accommodation cannot be provided or eating facilities are not available, the trainman, if relief is not provided, will, in the event arrangements have not been made in accordance with Section (1) hereof, be run either with a light engine or engine and caboose to a point where sleeping and eating facilities are available or to the point of destination.

(iii)

A trainman booking rest en route and replaced by a relief trainman will be permitted to travel to the terminal on his own train or shall be dead-headed by the Company after the expiration of the period of rest booked.

(3)

Trainmen taking rest en route will first arrange to clear trains which could otherwise be unable to proceed against their train.

(4)

Time off duty on rest will be deducted in computing time for the continuous trip.

(c)

Trainmen will not be permitted to book conditional rest, that is okay for certain trains but not for others, or okay for conductor but not as a brakeman.

(d)

Except when required in emergency, or as provided in Clause (e), trainmen will not be permitted to waive any rest booked.

(e)

A trainman on rest in excess of the rest booked by other members of the same crew will, when the crew is ordered for service, be called and given an opportunity to waive the balance of rest booked in order to work with his crew, provided that such trainman has had at least 5 hours' rest. When such trainman has not had 5 hours' rest, he will not be called and if at an away-from-home terminal, will be replaced by the junior available man on the crew or crews next out. When rest has expired, he will fill out the crew from which his replacement was obtained. If his crew returns to the away-from-home terminal before he is required to fill out the crew from which his replacement was obtained he will fill out his own crew again."


* * * *

       "Article 23

       MISCELLANEOUS SERVICE

       ...

(g)

Meals En Route


Time occupied in taking meals en route will not be deducted in computing overtime or arbitraries unless such overtime or arbitraries have been increased by trainmen delaying the train by taking time to eat."

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.

III

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:

"MEMORANDUM OF UNDERSTANDING BETWEEN CANADIAN PACIFIC LIMITED AND THE UNITED TRANSPORTATION UNION ON BEHALF OF CONDUCTORS AND TRAINMEN AND THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS ON BEHALF OF LOCOMOTIVE ENGINEERS ON THE PACIFIC REGION

Consequent on the Memorandum of Understanding signed at Revelstoke, B.C., on April 21st, the Company and Union Committee established thereby made certain recommendations. Most of these recommendations have been agreed to and have been or are in the process of being implemented.

There were however 6 suggestions which were not agreed upon between the Company and Union members of the Committee as follows:

Item 4 -  Calling of crews at Revelstoke


14 -

Cutting in and cutting out of pusher engines at Rogers and Stoney Creek


15- Eating En Route

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

       20 - Extension of back track at Greeley

       21 - Local no scoop rules

Negotiations on these items will continue between the parties signatories hereto for the term of 60 days from May 31, 1980.

In respect of Item 14, it has been agreed, pending final resolution within the time specified above, as follows:

Effective June 6, 1980, train and engine crews of trains requiring to have pusher engines cut in their train at Rogers, will be paid an arbitrary of 20" as payment for time at Rogers and a further 20" for time at Stoney Creek for cutting out of pusher engines.

It is further agreed that engine crews of pusher engines will perform the necessary work of coupling and uncoupling of trains to cut pusher engines in and out at the above locations.

In respect of Item 15, eating en route, it is agreed as follows:

In all reasonable circumstances Train and Engine Crews on the Mountain and Shuswap Subdivisions will come to work prepared to move their trains through to destination without delaying train to take meals.


DATED May 29th, 1980, REVELSTOKE, B.C.

For the Company For the Employees
signed signed

General Manager General Chairman,
Operations and UTU
Maintenance
Pacific Region General Chairman,
BLE"

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

Mr. L.F. Berini,
General Chairman,
Brotherhood of Locomotive Engineers,
No. 204-610-70th Ave. S.E.,
CALGARY, Alberta
T2H 2J6
Mr. P.P. Burke,
General Chairman,
United Transportation Union,
No. 403-630-8th Ave. S.W.,
CALGARY, Alberta.
T2P 1G6

Dear Sirs:

Further to our meeting in Vancouver, July 22nd, concerning the Revelstoke situation.

Attached are four (4) copies of the Memorandum of Agreement resolving the six suggestions as contained in the Memorandum of Understanding dated May 29, 1980, together with four (4) copies of each of two Memoranda of Agreement, attachments "A" and "B", signed and dated July 22, 1980, Vancouver, B.C.

It is understood that this agreement is subject to ratification by the Local Chairmen concerned and must be ratified by both unions in order to be made effective.

If the above meets with your concurrence, would you please so indicate in the space provided.

Yours truly,

signed

J.M. Patterson.

I CONCUR

signed

General Chairman,
United Transportation Union

signed

General Chairman
Brotherhood of Locomotive Engineers

* * * *

MEMORANDUM OF AGREEMENT BETWEEN CANADIAN PACIFIC LIMITED AND THE UNITED TRANSPORTATION UNION ON BEHALF OF CONDUCTORS AND TRAINMEN AND THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS ON BEHALF OF LOCOMOTIVE ENGINEERS ON THE PACIFIC REGION

Consequent on the Memorandum of Understanding signed at Revelstoke, B.C. on May 29, 1980, negotiations have taken place on the six unresolved suggestions specified therein and it is agreed that they are resolved on the following bases:

Item 4 -  Calling Crews at Revelstoke

Trainmen/Yardmen at Revelstoke must secure telephone service at their residences where available and accept calls by telephone subject to the provisions of the applicable Collective Agreement.


Item 14 -

Cutting in and cutting out of pusher engines at Rogers and Stoney Creek


Effective the day following ratification of this Agreement, train and engine crews of trains requiring to have pusher engines cut in their train at Rogers, will be paid an arbitrary of 30" as payment for time at Rogers and a further 30" for time at Stoney Creek for cutting out of pusher engines. In the event pusher engines are cut out of the train at Glacier or Albert Canyon, rather than at Stoney Creek, the arbitrary will be paid for time at either point whichever applies.

It is further agreed that engine crews of pusher engines will perform the necessary work of coupling and uncoupling of trains to cut pusher engines in and out at the above locations.

Item 15 -  Eating en route

In all reasonable circumstances train and engine crews on the Mountain and Shuswap Subdivisions will come to work prepared to move their trains through to destination without delaying train to take meals.


Item 19 -

Establishment of Golden as an away-from-home terminal

       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

Notice has been served by the Company on the Union to terminate such provisions in Local Rules at Revelstoke.

SIGNED at Vancouver, B.C. This 22nd day of July, 1980.


FOR THE COMPANY: FOR THE EMPLOYEES:
signed signed

General Manager General Chairman,
Operation and Main- UTU
tenance,

Pacific Region signed

General Chairman, BLE


* * * *

MEMORANDUM OF AGREEMENT BETWEEN CANADIAN PACIFIC LIMITED AND THE UNITED TRANSPORTATION UNION CONCERNING ESTABLISHMENT OF TWO UNASSIGNED FREIGHT POOLS AT REVELSTOKE, BRITISH COLUMBIA, TO HANDLE TRAFFIC ON THE MOUNTAIN SUBDIVISION

IT IS AGREED:


1.

Effective at 1200, Monday, August 11, 1980, an unassigned freight pool will be established at Revelstoke with the away-from-home terminal at Golden and with sufficient train crews to handle traffic destined Golden or south of Golden and traffic from south of Golden or originating Golden. A Mountain Subdivision unassigned freight pool with the away-from-home terminal at Field will be retained with sufficient train crews to handle all other traffic on the Mountain Subdivision and any surplus traffic for Golden or south of Golden, or surplus traffic from south of Golden or originating Golden, when necessary.

2.

These separate unassigned freight pools will be known as the 'Golden' and 'Mountain' unassigned freight pools.


3.

As circumstances warrant, the Company may discontinue the 'Golden' unassigned freight pool upon 10 days notice in writing from the Superintendent to the Local Chairman and may re-establish the 'Golden' unassigned freight pool subject to bulletining such re-establishment 10 days in advance. In the event that the 'Golden' unassigned freight pool is discontinued, the 'Mountain' unassigned freight pool will handle all traffic on the Mountain Subdivision including traffic destined to or originating at Golden or the Windermere Subdivision.

4.

Under emergency circumstances, an available crew at Golden working the 'Golden' unassigned freight pool, may be called if it is determined by the Company that it will expedite assistance to the location of the emergency, when crews are not available at Field. Collective Agreement provisions will apply with the exception of the provisions of Article 14(b).

5.

The Superintendent and Local Chairman will determine the number of crews to be established in the 'Mountain' and 'Golden' unassigned freight pools and these crews will be regulated under Collective Agreement provisions.

6.

Employees working in the 'Golden' unassigned freight pool after 1200, August 11, 1980, will claim and receive 123 miles to be shown as miles run when performing working service Revelstoke to Golden. Collective Agreement provisions will otherwise apply.

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

FOR THE COMPANY: FOR THE UTU
signed signed

General Manager, General Chairman
Operation and United Transportation
Maintenance Union"

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.

"In all reasonable circumstances, Train and Engine Crews on the Mountain and Shuswap Subdivisions, in accordance with the intent of Article 24 of the Collective Agreement with the B. of L.E. and Article 23(g) of the Collective Agreement, with the U.T.U., will come to work, prepared to move their train through to destination without delaying the train, to take meals."

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.

"MEMORANDUM OF UNDERSTANDING BETWEEN CANADIAN PACIFIC LTD., THE UNITED TRANSPORTATION UNION AND THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS

IT IS AGREED THAT:

The intent of Article 23(g) of the Collective Agreement governing Conductors and Trainmen, and Article 24 of the Collective Agreement governing Locomotive Engineers, is that in all reasonable circumstances, train and engine crews are expected to come to work prepared to move their trains through to destination without delaying trains to take meals.

In other circumstances, it may be necessary at Golden to take meals in restaurant facilities, transportation will be supplied by the Company for this purpose when city restaurants are closed.

Similarly at Rogers, in other than reasonable circumstances, crews may eat in resthouse at normal meal hours or obtain food in resthouse during periods other than normal meal hours, when food is available.

Signed at Revelstoke, B.C. this 13th day of September, 1980, in the presence of Mr. M.K. Carson, Canada Department of Labor.


Signed
M.K. Carson

FOR THE COMPANY FOR THE EMPLOYEES
signed signed

Vice-President, General Chairman,
Pacific Region U.T.U.

signed signed

Asst. Vice-President General Chairman
Industrial Relations B.L.E.

signed

Vice-President, U.T.U.

signed

Vice-President, B.L.E."

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.

IV

The relevant sections of the Code are the following:

       "107.(1) In this Part,

       'strike' includes

(a)

a cessation of work or a refusal to work or to continue to work by employees, in combination or in concert or in accordance with a common understanding, and

(b)

a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output;"


* * * *

"180.(1) No employer shall declare or cause a lockout and
no trade union shall declare or authorize a strike unless

(a)

the employer or trade union has given notice to bargain collectively under this Part;

(b)

the employer and the trade union

(i)

have failed to bargain collectively within the period specified in paragraph 148(a), or

(ii)

have bargained collectively in accordance with section 148 but have failed to enter into or revise a collective agreement.

(c)

the Minister has

(i)

received a notice, given under section 163 by either party to the dispute, informing him of the failure of the parties to enter into or revise a collective agreement, or

(ii)

taken action under subsection 164(2); and

(d)

seven days have elapsed from the date on which the Minister

(i)

notified the parties of his intention not to appoint a conciliation officer or conciliation commissioner or to establish a conciliation board under subsection 164(1),

(ii)

notified the parties of his intention not to appoint a conciliation commissioner or to establish a conciliation board under section 166, or

(iii)

released a copy of the report of a conciliation commissioner or conciliation board to the parties to the dispute pursuant to paragraph 170(a).


(2) No employee shall participate in a strike unless


(a)

he is a member of bargaining unit in respect of which a notice to bargain collectively has been given under this Part; and

(b)

the requirements of subsection (1) have been met in respect of the bargaining unit of which he is a member."


* * * *

"182.

Where an employer alleges that a trade union has declared or authorized a strike, or that employees have participated, are participating or are likely to participate in a strike, the effect of which was, is or would be to involve the participation of an employee in a strike in contravention of this Part, the employer may apply to the Board for a declaration that the strike was, is or would be unlawful and the Board may, after affording the trade union or employees an opportunity to be heard on the application, make such a declaration and, if the employer so requests, may make an order

(a)

requiring the trade union to revoke the declaration or authorization to strike and to give notice of such revocation forthwith to the employees to whom if was directed;

(b)

enjoining any employee from participating in the strike;

(c)

requiring any employee who is participating in the strike to perform the duties of his employment; and

(d)

requiring any trade union, of which any employee with respect to whom an order is made under paragraph (b) or (c) is a member, and any officer or representative of that union, forthwith to give notice of any order made under paragraph (b) or (c) to any employee to whom it applies."

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.


Canadian National Railway Company, complainant, and
United Transportation Union, Local 1179 and Brotherhood
of Locomotive Engineers, Local 749, respondents

Canadian National Railway Company, applicant, and
Brotherhood of Locomotive Engineers and its Local 654
and United Transportation Union and its Local 1229,
respondents

52 di 166
CLRB Decision No. 440
Board Files: 725-134, 725-136

Canada Labour Relations Board
Marc Lapointe, Q.C., Chairman; Lorne E. Shaffer and
Nicole Kean, Members

October 27, 1983

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.

National Harbours Board (1979), 33 di 530; [1979] 3 Can LRBR 502; and 79 CLLC 16,204.
National Harbours Board (1979), 33 di 557; [1979] 3 Can LRBR 513; and 79 CLLC 16,024.
Newfoundland Steamships Ltd. (1974), 7 di 8; [1975] 2 Can LRBR 275; and 75 CLLC 16,147.
Seaspan International Ltd. (1979), 33 di 544; and [1979] 2 Can LRBR 493.

Statute Cited:

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

Appearances:

Mr. Paul Antymniuk, for the applicant;
Mr. Maurice Wright, Q.C., for the respondents.
 

REASONS FOR DECISION

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

I

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:

1)

to issue a declaration that the withdrawal of services by some members of the respondents constitutes an unlawful strike,

2)

to issue a cease and desist order requiring the employees to perform the duties of their employment, and

3)

verbally at the close of argument at the public hearing, counsel for the employer requested that the Board file the order issued in the Federal Court, as per the provisions of s. 123 of the Code.

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.

II

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 company will not initiate any material change in working conditions which will have materially adverse effects on employees without giving as much advance notice as possible... No material change will be made until agreement is reached or a decision has been rendered in accordance with..."


III

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:

1)

the change was not of a material nature having materially adverse affects and therefore could not be governed by the specific provisions in this regard in the collective agreement;

2)

the implementation dates stood.

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.

IV

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.

"Gentlemen.

This refers to our discussions of October 23, 1983 in response to your concerns related to the implementation of centralized crew calling procedures at Sioux Lookout.

While we indicated to you that centralized crew calling procedures will be implemented on Tuesday, [sic] October 25, 1983, local practices in respect of manning trains at Sioux Lookout will not be changed

In relation to the other concerns which you raised, this will serve as our commitment to meet with you on November 3rd and 4th 1983 in order to address these concerns.

In this respect any clarification which may be required in your respective collective agreements will be addressed by Letter of Understanding. In addition, crew calling procedures will be clarified and compiled in a list suitable, to the extent possible to both parties and will be communicated to you in writing over the signature of an appropiate [sic] Company Officer."

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.

V

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:

"182.

Where an employer alleges that a trade union has declared or authorized a strike, or that employees have participated, are participating or are likely to participate in a strike, the effect of which was, is or would be to involve the participation of an employee in a strike in contravention of this Part, the employer may apply to the Board for declaration that the strike was, is or would be unlawful and the Board may, after affording the trade union or employees an opportunity to be heard on the application, make such a declaration and, if the employer so requests. may make an order

(a)

requiring the trade union to revoke the declaration or authorization to strike and to give notice of such revocation forthwith to the employees to whom it was directed:

(b)

enjoining any employee from participating in the strike;

(c)

requiring any employee who is participating in the strike to perform the duties of his employment: and

(d)

requiring any trade union of which any employee with respect to whom an order is made under paragraph (b) or (c) is a member, and any officer or representative of that union, forthwith to give notice of any order made under paragraph (b) or (c) to any employee to whom it applies."


"183.1(1) An order made under section 152 or 183


(a)

shall be in such terms as the Board considers necessary and sufficient to meet the circumstances of the case, and

(b)

subject to subsection (2), shall have effect for such time as is specified in the order.

(2)

where the Board makes an order under section 182 or 183, the Board may, from time to time on application by the employer or trade union that requested the order or any employer, trade union, employee or other person affected thereby, notice of which application has been given to the parties named in the order, by supplementary order

(a)

continue the order, with or without modification, for such period as is stated in the supplementary order; or

(b)

revoke the order."

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:

"...the Canada Labour Code ... was amended in June 1978 so as to give the Board a new jurisdiction: that of issuing cease and desist orders equivalent to the injunctions issued by the courts of the land (Quebec Superior Court, Provincial Supreme Courts and the Federal Court, Trial Division).

We previously quoted the text of section 182. It concerns unions, union members and employees, and their officers and representatives. Section 183, which is similar in effect, concerns employers and any persons acting on their behalf.

The Board explained above how it uses these sections in practice before holding a public hearing. This practice and the policy underlying it are based on the Board's conviction that Parliament did not intend, by giving this new jurisdiction to the Board, to create a remedy that was identical and parallel to that still offered by the courts of the land.

...

In our opinion, Parliament was attempting to enlarge the arsenal of measures that the Board could use to assist the parties in voluntarily concluding collective agreements in an orderly manner, or settling work stoppages in an orderly manner during the term of a collective agreement. It is in this way that the Board has interpreted the basic, significant discretion given to it in sections 182 and 183. After giving the party in question the opportunity to be heard the Board may decide not to issue an order even when faced with facts showing that an unlawful work stoppage exists. Everything depends on the higher interests to be satisfied in given circumstances: these higher interests may be summarized very simply. They involve creating or helping to create the factual situation most likely to promote healthy and orderly labour relations. In order to accomplish this, the Board believes that in cases of unlawful work stoppages which are the result of disturbances in the relations between the parties, it is important to identity the cause in order to determine the remedy. This is what it has instructed its officers to do in their meetings with the parties before the public hearing. In the foregoing, we mentioned the success of this policy and of the practice followed. However, even in the event that the Board's officer fails, it may happen that the Board will conclude after a public hearing that it may take the same action either by issuing an order containing specific directives conducive to remedying the cause of the disturbance or by refusing to issue an order. It seems that this view of the Board corresponds to that of the regular Courts. In fact, in McKinlay Transport Limited v. Goodman et al, [1979] 1 F.C. 760, 90 D L R. (3d) 1689, 78 CLLC 14,161, a case in which a party wanted the Federal Court Trial Division to issue an injunction and for which the judgment is dated July 27, 1978, shortly after implementation of Bill C-8, Thurlow J. stated the following:


"There is a further consideration that appears to me to bear on whether or not the discretion should be exercised to grant an interlocutory injunction even if the Court has jurisdiction to entertain the action and the application and the case for an injunction is otherwise made out. Parliament has recently enacted extensive amendments to the Canada Labour Code which, in my view, demonstrate that the purpose was to vest in the Canada Labour Relations Board extensive and far-reaching powers to deal with labour relations in the works and undertakings to which the statute applies including the granting of injunctions enjoining employees from participating in strikes, and the making of orders requiring employees to perform the duties of their employment - a power not exercised by a Court of equity. Not only has the Board been vested with powers more extensive and particular than those of the Courts in such situations but the area in which the Board's decisions are open to attack and review has been narrowed by the amendments. The power previously reserved to the Minister of authorizing prosecution for violation of the Act has also been vested in the Board.

In the face of these provisions, even though the legislation does not specifically support to withdraw from the Superior Courts' jurisdiction to issue injunctions in respect of conduct arising out of labour disputes, it seems to me that the Court can and ought to take into account in exercising its discretion that Parliament has shown its disposition that such matters be dealt with by the Board on the principles which it applies in the search for achievement of the objects of the legislation rather than by the Courts. It is perhaps unnecessary to add that Court injunctions have not been notoriously successful as a device for achieving harmonious labour relations or for resolving labour disputes.

A further aspect of the matter with respect to the exercise of discretion is that there is nothing before me to show that prompt and effective relief is not obtainable by the plaintiff in appropriate proceedings therefor before the Canada Labour Relations Board. (pages 763-4; 691-2; 15,030; emphasis added)'


...

...this Board wishes to inform parties availing themselves of the provisions of sections 182 and 183 of the Code that in general and except in very rare circumstances, it will not grant permission to prosecute without having given the parties bound by one of its orders the opportunity to comply with the directives contained therein, directives which attempt to create or maintain an atmosphere conducive to healthy and orderly labour relations. We are not attempting primarily to punish but rather to find solutions."

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

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

"Before the new Canada Labour Code took effect in 1973, the Canada Labour Relations Board, as then constituted, had no power to remedy situations involving unlawful strikes or lockouts. The Code (R.S.C. 1970, c. L-1 amended by S.C. 1972, c. 18) made provision for only penal sanctions and any request of this nature had to receive prior authorization from the Minister of Labour.

In 1973, through the amendments made to the Code, Parliament conferred on the new Canada Labour Relations Board, in addition to the penal sanctions already provided for, the discretion to declare that a strike or lockout is, was or would be unlawful. This in fact constituted the addition of a power of reprimand or warning.

On June 1, 1978, Parliament amended the Canada Labour Code again, making substantial changes therein. It added to the Board's power to declare strikes or lockout unlawful the power to issue cease and desist orders. At the same time, the legislator amended section 194 and thereby entrusted the Board with the power to authorize prosecution. Finally, section 123 was also amended in such a way as to give the Board the discretion to ensure execution of its decisions and/or orders by authorizing that they be filed in the Federal Court.

By conferring on the Board the power to declare a work stoppage unlawful, issue cease and desist orders, authorize prosecution and control the enforcement of its decisions and orders in association with the Federal Court, Parliament provided the Board with a range of tools designed to enable it to deal in an effective and flexible manner with situations involving unlawful strikes and lockouts. And this is the very orientation that the Board intends to give to its action. Using these tools, it will always seek the causa causans, the true reason for an unlawful act, will try to find a solution and will grant the parties permission to prosecute only in extreme cases where it has no alternative and only if it is satisfied that by so doing, it will contribute not only to observance of the law but also to harmonious labour relations. Although an employer may, at the same time that it seeks a declaration of an unlawful strike and a cease and desist order, request an authorization to prosecute, the Board's general policy in such circumstances will be to deny automatic authorization to lay criminal charges. (see, in this regard, National Harbours Board, unreported Board decision No. 195) It is our conviction that this solution is a last resort and that it is preferable to settle differences, even of this nature, using what is known as labour relations solutions. When the Board declares that a union has violated section 180 and by issuing a simple cease and desist order or one accompanied by directives addressed to one or the other or both parties, orders the said union to end unlawful acts, it expects the union to understand that what it was doing was forbidden and ran counter to the spirit of the Code in general and the collective bargaining process in particular. It the union fails to comply with the Board's order or indicates, by its attitude, that it intends to continue to violate section 180, the Board may intervene again in order to make the union understand that it must play the game according to the rules set out in the Code. Under section 194, the Board may authorize prosecution and/or under section 123, it may tile its order in the Federal Court, the second course of action could ultimately lead, among other things, to a conviction for contempt of court. However, even in the case of section 123, the Board has established a policy according to which it will deal with this provision in the spirit of orderly labour relations. (See, in this regard, Seaspan International Ltd., unreported Board decision No. 196)"

(pages 560-561, and 515-516)

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:

"The Board wishes to indicate that it is not of the opinion that this clause is punitive in nature but rather is to be looked upon as an instrument to foster orderly labour relations.

It is to be noted also that Section 182 vests the Board with a discretionary power: depending upon circumstances the Board will issue or will not issue a declaration of unlawful strike or for that matter, a declaration of unlawful lockout under section 183, the counterpart to Section 182.

A comparison of the text of Section 182 of the Canada Labour Code with Section 82 of the Ontario Labour Relations Act seems to indicate that the same purport would be contained in the two provisions and, in general, the same principles of interpretation that have been laid down by the Ontario Labour Relations Board would govern the interpretation of the Canada Labour Relations Board in applying the provisions of Section 182. In this context the Canada Labour Relations Board is not unaware of one of the main findings of the Ontario Labour Relations Board to the effect that except for special circumstances, whenever at the time when the hearing by the Board is held on an application of this nature, if the alleged unlawful stoppage of work has ceased, the Board would not entertain the application."

(pages 9; 277-278; and 1148)


VI

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.

VII

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:

"123(1) The Board shall, on the request in writing of any person or organization affected by any order or decision of the Board, file a copy of the order or decision, exclusive of the reasons therefor, in the Federal Court of Canada, unless, in the opinion of the Board.


(a)

there is no indication of failure or likelihood of failure to comply with the order or decision, or

(b)

there is other good reason why the filing of the order or decision in the Federal Court of Canada would serve no useful purpose."

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:

"Let us turn now specifically to the new provisions of section 123. Filing of Board orders on the written request of a person or organization affected by a Board order of decision is mandatory unless 'in the opinion of the Board' one of two circumstances prevail. The first is that 'there is no indication of failure or likelihood of failure to comply with the order or decision.' The reason for this circumstance is at least threefold. It places the question of non-compliance in the forum that made the decision, namely the Board. By doing this, Parliament accepts that the Board is the best authority to interpret the meaning of its decision and order. It also allows the Board through its officers, or directly, to seek resolution of the difference in an accommodative fashion before resort is had to judicial proceedings. Perhaps a more subtle, but equally realistic reason, is to allow the Board to review its order under sections 119 and 121 to amend any order or decision to account for partial compliance or events related to the intent of its remedial order that occur subsequent to its issuance. This recognizes the Board's practice of communicating the thrust of its decision to parties and encouraging their participation in its implementation before the step of issuing a formal order is made. This practice is intended to encourage the constructive 'settlement of disputes' as mandated in the Preamble. The criteria of likelihood of failure directs the parties to the active role to be played by the Board and points to the intent of the provision as not being merely a substitute for the procedures dictated by the Court in its decisions.

The second circumstance when the Board may not file an order is very broad: 'there are other good reasons why the filing of an order or decision in the Federal Court of Canada would serve no useful purpose.' Here we come to the centre of the Board's accommodative role and the Code's non-punitive approach to the resolution of labour relations problems. The discretion of the Board to ascertain the criteria implicit in this circumstance, like those on the exercise of discretion under section 194 to give consent to prosecute, must be exercised to further the objectives and purposes of the Code in any given circumstance. (For a discussion of the Board's jurisdiction under section 194 see Conseil des Ports Nationaux, Board decisions no. 195 and 197 both published in this issue) In short, the focus is not strict adherence to principals requiring obedience in an ordered society to orders of the courts. Rather it is recognized that the Board must act as a flexible instrument in the often shifting labour relations climate where further proceedings on its decisions can be futile or contrary to the evolved circumstances. The Board is to be sensitive and responsive to the parties' social, economic and political positions in their labour relations environment and have as its primary goal constructive accommodation. The last or another ounce of retribution in strict compliance with a Board order may not in some exceptional circumstances further future good relations, particularly where other Board recourse or intervention can achieve the same results in another manner".

(pages 553-554 and 500-501)

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.

VIII

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.


** Translation **

Canadian National Railways, applicant, and Brotherhood of
Locomotive Engineers and its Division No. 558, and United
Transportation Union (U.T.U.) and its local 4, respondents

57 di 55;
CLRB Decision No. 479
Board File: 725-143

Canada Labour Relations Board
Serge Brault, Vice-Chairman; Jacques Archambault and
Victor E. Gannon, Members

September 11, 1984

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:

Canada Labour Code, Part V, ss. 107(1) "strike"; 115(1); 118(m); 180(1) & (2); 182.
Canada Labour Relations Board Regulations, s. 20.

Appearances:

Messrs. Robert Monette and Jean Clerk, for Canadian National Railways (CN);
Mr. Gilles Thibodeau, General Chairman, for the Brotherhood of Locomotive Engineers; and
Mr. Bernard Leclerc, General Chairman, for the United Transportation Union (U.T.U.).
 

REASONS FOR DECISION

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.

I

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;

"20.

Unless the Board directs otherwise, the Registrar shall give not less than ten days notice of a hearing to all persons who have asked for notice of the hearing or who are parties."

"118.

The Board has, in relation to any proceeding before it, power


...


(m)

to abridge or enlarge the time for instituting the proceeding or for doing any act, filing any document or presenting any evidence in connection with the proceeding;"


II

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.:

"Apparently in sympathy and/or in a chain reaction, the members of the United Transportation Union in Joffre, Quebec began, during the day on Monday, August 20, 1984, to refuse to report for work, also on the grounds of 'illness'. They acted in concert to such an extent that, by 10;00 a.m. on Tuesday, August 21, approximately 55 of their number, who are employees of the applicant, had booked off sick and were not at their regular duties. The number of absences in this instance is at least ten (10) times higher than the normal rate of illness related absenteeism among this group."

(translation)

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 applicant appealed to the representative of the Brotherhood for an end to the strike and the resumption by the employees of their regular duties, but to no avail. The applicant expressed its concerns to the General Chairman of the Brotherhood, Mr. Gilles Thibodeau, who, in a telex to his members, tried himself to persuade them and his local officers to end this unlawful strike, but again to no avail. A copy of this telex is appended to this application as Exhibit R-4, to have effect as if quoted in full."

(translation)

The application also contained this statement:

"The applicant requested the officers of the United Transportation Union to put an end to this strike and they apparently tried to persuade their local officers and members to do so, but obviously without success."

(translation)

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:

"It has been brought to my attention that members of division 558 have refused to accept calls on the basis of booking sick or booking rest to protest a working condition. You are urged to convey to the membership the procedures provided for by article 113 of the collective agreement as well as compliance with the provisions of section 380 of the Criminal Code, specially that part of the Code referred to in part 3 of the officers' training and reference manual which was sent to you some time ago."

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:

"The applicant's superintendent, Mr. Reginald Cloutier, was personally informed by the local president of the Brotherhood, Mr. Gilles Hallée, and by the Brotherhood's division officer, Mr. Michel Marcoux, around 4.00 p.m. on Monday, August 20, that this outbreak of illness would end if the applicant agreed to alter certain working conditions that are expressly provided for in collective agreement 1.1 (article 687) and that have in fact been in effect since 1968 (which have never been contested through a grievance and/or arbitration) and replace them with other working conditions that would apparently be more beneficial to the locomotive engineers.

In fact, Mr. Hallée submitted a document outlining these new wording conditions, a copy of which is appended to this application as Exhibit R-3, to have effect as if quoted in full. Mr. Hallée indicated that this document was the result of a meeting of the Brotherhood members that was apparently held during the day on Monday, August 20, in Quebec City"

(translation)

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:

"It is proposed that, in future, where a locomotive engineer applies for a period of rest while aboard a train, he have the choice of either spending this time in decent accommodation (i.e. a motel, hotel or tourist home) or travelling to the destination point by the fastest means of transportation available. Where a request for a rest period is made, arrangements must be made to ensure that engineers wishing to take this rest period while aboard a train are transported to the designated location during the eleven-hour period they are on duty. The place where the engineer takes his rest shall have adequate facilities for meals (i.e. a restaurant or a kitchen).

No reprisals shall be taken against anyone."

       (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 immediate effect of this strike by the engineers is to deprive the applicant of their services to operate freight and passenger trains arriving at or departing from the Joffre terminal in Quebec City. For the time being, the applicant has been able to replace the strikers with management personnel who still have their engineer's licence. However, if the strike continues and spreads, as expected, we will soon experience delays in train schedules, which will lead eventually to cancellation of runs, to the serious detriment of the public, the applicant and its customers. We would point out that the applicant has a contractual obligation to provide VIA Rail Canada with the services of its locomotive engineers to operate passenger trains."

(translation)

The application goes on to allege the following:

"The effect of this strike by the members of the United Transportation Union is to force the applicant to find qualified replacements among its personnel to take the place of the strikers.

However, this effort will result in many delays and possibly a paralysis of operations if the strike continues or if it spreads, as is anticipated."

(translation)

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

"It is urgent and imperative that the Board intervene and put an end to these unlawful strikes immediately. ...


1)

The applicant respectfully requests the Canada Labour Relations Board to declare that the strikes by the members of the Brotherhood of Locomotive Engineers and the United Transportation Union constitute unlawful strikes, and that the continuation of these strikes is contrary to the Canada Labour Code.

2)

The applicant further requests the Board to prohibit all employees who belong to one or the other of the unions from participating in the said strikes and to order the employees who belong to one or the other of the unions and who are already participating in the said strikes to halt their strikes and perform their work.

3)

In the circumstances, it is also imperative that the Board order the leaders and representatives of each union to inform their members and their officers immediately of the contents of the orders that will give effect to the present application.


The applicant suggests that the text of the orders to be rendered by the Board should be worded so that the employees, the officers and the unions in question understand that any concerted excuse, 'sudden' illness or other action designed to reduce or limit output constitutes a strike within the meaning of the Code and that this strike is unlawful and prohibited.


4)

Furthermore, the applicant requests the Board more particularly to order Messrs. Hallée and Marcoux [local union officers] to use the power and authority of their offices to order their members to halt their strikes and return to work immediately."

       (translation; emphasis added)

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

III

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.

IV

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.

V

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

(1)

The identity of the respondents and the existence of the collective agreements.

(2)

The employees who belong to the Brotherhood refused to report for work beginning at least as of Monday, August 20.


It was also admitted, as alleged, that the members of the U.T.U. joined them the following day.

These admissions, however, were made subject to the important reservation that this was the situation on August 20, and not when the hearing began.

Similarly, the allegation that "in the absence of an order... it is anticipated that the strike will continue or spread" was not admitted.


(3)

The members of the Brotherhood who had left work had made a demand, the text of which is quoted at page 59 of this decision, regarding the rest periods provided for in article 68.7 of the collective agreement. This demand had been made at a meeting of the members on Monday, August 20 and communicated to the company's superintendent, Mr. Cloutier, late in the afternoon of the same day.

(4)

Mr. Cloutier replied to Mr. Hallée that he personally did not have the authority to negotiate or amend the contents of the collective agreement and he urged the employees to report for work. The employees refused to do so.

(5)

The evidence reveals that efforts were made by the two unions to persuade their members to report for work. In addition to the telex quoted earlier in this decision, another to the same effect was sent to the local executive of the U.T.U. on August 21.


It was very explicit;

'Further to our telephone conversation, this message is to reaffirm that any work stoppage is unlawful and in violation of our collective agreement and the Canada Labour Code which provides for very harsh penalties for any employee who takes part in a work stoppage of this kind. The members of the United Transportation Union have always honoured and abided by their contract, each of its leaders has the responsibility and the obligation to do so and they are asking you to do the same. Consequently, in order to avoid any unfortunate or regrettable consequence that the participants in this illegal work stoppage might suffer, you are ordered to return to work immediately."

(translation)

Finally, the union leaders also met with their members to present to them the arguments they put forward in the telexes regarding the necessity of returning to work.


(6)

The effect of the unlawful strike was admitted "with the qualification that this was the situation and the outlook at the time this application was filed".

(7)

With regard to events subsequent to instituting the proceeding, on Tuesday, August 21 in Quebec City, a Board officer met with the union officers. During this meeting, the employees demanded, as a condition for returning to work, that a meeting be held in which Regional Vice-President M. Lagacé would participate.


There ensued a series of meetings and conversations in which a Board officer took part.

In short, the employees' initial demand in effect became the holding of a meeting in which Mr. Lagacé would participate.

It was agreed that a meeting would be held if the employees returned to work first.

The employees then refused to do so unless they received written assurance that Mr. Lagacé would in fact take part in a meeting.

A meeting was scheduled for August 21 then cancelled.

Finally, the evidence indicates that on Wednesday a written statement was communicated and a meeting in which Mr. Lagacé would participate was scheduled for Thursday afternoon in Montreal.

Meetings of the employees of both unions were held on Wednesday evening and the employees decided to return to work. Some returned to work during the night on Thursday and others during the morning.


(8)

On Thursday, the day before the hearing, the situation was described as 95 per cent normal, "not perfect but significantly improved and the meeting scheduled between the parties took place".

(9)

The day following the return to work, the parties' evidence indicates the situation was normal in terms of both the performance of work and absences.

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 obligation to remain aboard the train during the rest period was intended to cover emergency situations. At present, the company is applying this provision punitively', Mr. Hallée pointed out.

'The conductors are allowed to leave the train, but the engineers must remain aboard. Engineers have even been required to remain aboard on Saturdays. It is humanly impossible to spend up to 20 hours in a locomotive.'

...

Like their colleagues the conductors and brakemen, the locomotive engineers want to be able to leave the train for a rest after 11 consecutive hours on duty, if the train stops at a place where there are motels.

'At present, after we complete our hours, CN replaces us with other locomotive engineers. However, the engineer who is relieved must remain aboard the train until it arrives at its destination. The noise from the locomotives makes it impossible to sleep', they claim.

They add: 'Generally, we are on stand-by at home. We get up in the morning at regular hours. We are telephoned early in the evening and are asked to report for work two hours later. In those cases, we work all night. We therefore often go 24 hours and even 36 hours without sleep. This is inhuman.

(translation)

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:

"We assured the Brotherhood of Locomotive Engineers and the United Transportation Union that the Company would make every effort to keep such occurrences to a minimum and that when they did unfortunately occur, reason and good judgment would prevail with respect to minimizing their impact on their members."

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.

VI

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.

VII

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:

"'strike' includes


(a)

a cessation of work or a refusal to work or to continue to work by employees, in combination or in concert or in accordance with a common understanding, and

(b)

a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output;"

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

"180(2) No employee shall participate in a strike unless


(a)

he is a member of a bargaining unit in respect of which a notice to bargain collectively has been given under this Part: and

(b)

the requirements of subsection (1) have been met in respect of the bargaining unit of which he is a member."

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.

VIII

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:

"... [the Company] would make every effort to keep such occurrences to a minimum and that when they did unfortunately occur, reason and good judgment would prevail with respect to minimizing their impact on [the employees]".

(emphasis added)

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.

IX

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:

"182 Where an employer alleges that a trade union has declared or authorized a strike, or that employees have participated, are participating or are likely to participate in a strike, the effect of which was, is or would be to involve the participation of an employee in a strike in contravention of this Part, the employer may apply to the Board for a declaration that the strike was, is or would be unlawful and the Board may, after affording the trade union or employees an opportunity to be heard on the application, make such a declaration and, if the employer so requests, may make an order


(a)

requiring the trade union to revoke the declaration or authorization to strike and to give notice of such revocation forthwith to the employees to whom it was directed:

(b)

enjoining any employee from participating in the strike.

(c)

requiring any employee who is participating in the strike to perform the duties of his employment; and

(d)

requiring any trade union, of which any employee with respect to whom an order is made under paragraph (b) or (c) is a member, and any officer or representative of that union, forthwith to give notice of any order made under paragraph (b) or (c) to any employee to whom it applies."

       (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:

"The Board wishes to indicate that it is not of the opinion that this clause is punitive in nature but rather is to be looked upon as an instrument to foster orderly labour relations.

It is to be noted also that Section 182 vests the Board with a discretionary power; depending upon circumstances the Board will issue or will not issue a declaration of unlawful strike..."

(pages 9; 277-278; and 1148; emphasis added)

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 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."

(page 177)

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.

X

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.


Cited as:
Canadian National Railway Company

Canadian National Railway Company, applicant, Brotherhood of
Locomotive Engineers, Brotherhood of Locomotive Engineers,
Division 945, United Transportation Union, United
Transportation Union, Local 701, respondent trade unions, and
Certain employees of Canadian National Railway Company,
members of the respondent trade unions

79 di 82; 90 CLLC 16,010
CLRB Decision No. 770
Board Files: 725-261, 530-1784

Canada Labour Relations Board
Hugh R. Jamieson, Vice-Chairman; Victor E. Gannon and Ginette
Gosselin, Members

December 15, 1989

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:

Air Canada (1984), 59 di 67; and 8 CLRBR (NS) 397 (CLRB no. 490).
Graham Cable TV/FM (1985), 62 di 136; and 85 CLLC 16,058 (CLRB no. 529).
St. John's Shipping Association Limited (1985), 61 di 39; 10 CLRBR (NS) 118; and 85 CLLC 16,033 (CLRB no. 514).

Statutes Cited:

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

Appearances:

Mr. James E. Dorsey, for Canadian National Railway Company;
Mr. James L. Shields, for the Brotherhood of Locomotive Engineers, its Local Division 945 and its members; and
Ms. Leanne Chahley, for the United Transportation Union, its Local 701 and its members.
 

REASONS FOR DECISION

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

I

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.

II

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:

"91.(1) Where an employer alleges that a trade union has declared or authorized a strike, or that employees have participated, are participating or are likely to participate in a strike, the effect of which was, is or would be to involve the participation of an employee in a strike in contravention of this Part, the employer may apply to the Board for a declaration that the strike was, is or would be unlawful.


(2)

Where an employer applies to the Board under subsection (1) for a declaration that a strike was, is or would be unlawful, the Board may, after affording the trade union or employees referred to in subsection (1) an opportunity to be heard on the application, make such a declaration and, if the employer so requests, may make an order

(a)

requiring the trade union to revoke the declaration or authorization to strike and to give notice of such revocation forthwith to the employees to whom it was directed;

(b)

enjoining any employee from participating in the strike;

(c)

requiring any employee who is participating in the strike to perform the duties of his employment; and

(d)

requiring any trade union, of which any employee with respect to whom an order is made under paragraph (b) or (c) is a member, and any officer or representative of that union, forthwith to give notice of any order made under paragraph (b) or (c) to any employee to whom it applies."

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

Section 93(1) provides:

"93.(1) An order made under section 91 or 92


(a)

shall be in such terms as the Board considers necessary and sufficient to meet the circumstances of the case; and

(b)

subject to subsection (2), shall have effect for such time as is specified in the order."

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:

"89.(1)(d) seven days have elapsed after the date on which the Minister


(i)

notified the parties of his intention not to appoint a conciliation officer or conciliation commissioner or to establish a conciliation board under subsection 72(1),

(ii)

notified the parties of his intention not to appoint a conciliation commissioner or to establish a conciliation board under section 74, or

(iii)

released a copy of the report of a conciliation commissioner or conciliation board to the parties to the dispute pursuant to paragraph 78(a)."

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

"`strike' includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output."

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:

"Frequently, when job action has been taken in response to mid-contract disputes or during negotiations where trade unions or employees have simply jumped the gun and have initiated job action before they are lawfully entitled to, employers have come to the Board under section 182 [now section 91] of the Code seeking declarations of unlawful strikes and corresponding cease and desist orders. Through those procedures the definition of a strike in the federal jurisdiction has evolved to the extent that it encompasses a wide range of activities. It can even extend to a refusal to cross a legal picket line which is considered to be a right as a matter of routine in most jurisdictions. Examples of the broad interpretation that has been given to a strike, in an unlawful sense, are to be found in Canadian Broadcasting Corporation (1980), 40 di 35; and [1981] 2 Can LRBR 52 (CLRB no. 236); Air Canada (1984), 59 di 67; and 8 CLRBR (NS) 397 (CLRB no. 490); and Canadian Broadcasting Corporation (1981), 45 di 29; [1981] 2 Can LRBR 462; and 81 CLLC 16,128 (CLRB no. 322). In Canadian Broadcasting Corporation (no. 236), supra, and Air Canada, supra, the Board found that concerted refusals to work overtime were unlawful strikes notwithstanding that the overtime assignments in question were considered to be voluntary under the relevant collective agreements. The Supreme Court of Canada upheld that interpretation of a strike in Le Syndicat des employés de production du Québec et de l'Acadie and CLRB v. Canadian Broadcasting Corporation (1984), 14 D.L.R. (4th) 457; 55 N.R. 321; and 84 CLLC 14,069. In the Air Canada case the Board also found a concerted refusal to accept acting supervisory assignments to be an unlawful strike regardless of the fact that the assignments being refused were again voluntary under the collective agreement. In Canadian Broadcasting Corporation (no. 322), supra, the Board adopted the interpretation of strike expressed by the Supreme Court of Canada in Local 273, International Longshoremen's Association et al, v. Maritime Employers' Association et al, [1979] 1 S.C.R. 120; and 78 CLLC 14,171, and found that under the Code a refusal to cross a picket line in accordance with the commonly accepted doctrine of union solidarity constitutes a strike unless the employees have a right to refuse to cross a picket line by virtue of a provision in their collective agreement. Other job related action that has been found to be an illegal strike includes, a concerted work to rule, Canadian Pacific Limited (1980), 42 di 40; and [1981] 1 Can LRBR 121 (CLRB no. 273); and booking off sick or being otherwise unavailable for assignments, Canadian National Railway Company (1983), 52 di 166 (CLRB no. 440); and Canadian National Railways (1984), 57 di 55 (CLRB no. 479). One of the best examples of how wide a net is cast when the Board is assessing the legality of job action is the decision in Canada Post Corporation (1983), 54 di 152; and 5 CLRBR (NS) 280 (CLRB no. 446). There, the Board declared that an unlawful strike had been declared when the Canadian Union of Postal Workers announced that over the Christmas period its members would accept and process mail bearing ten cent stamps which was less than the postage rate required at that time."

(pages 147-148; and 14,389)

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):

"Earlier in this decision we set out briefly the legislative scheme within which the labour relations community in the federal jurisdiction is expected to operate. The rules are clear, no job action or work stoppages when a collective agreement is in effect or during negotiations until the conciliation process has been waived by the Minister of Labour or until that process has been exhausted. Under the day to day stresses of an adversarial labour relations system it is unrealistic to expect absolute obedience to those severe restraints on human reaction and it is only natural that there will be an occasional transgression outside the scheme. How the Board responds to those transgressions depends on the facts of each case. Provided that unlawful acts are not persistent, the Board will continue its endeavours to seek labour relations solutions to labour relations problems in accordance with its stated policies. However, persistent and knowing disregard for the legislative scheme or disobedience to a Board order will result in the use of the full arsenal of deterrents available to the Board under the Code."

(pages 47-48; 127-128; and 14,229, emphasis added)


III

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:

"18.

The Board may review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application."

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

       * * * * *

BROTHERHOOD OF LOCOMOTIVE ENGINEERS DIVISION 945

and the

UNITED TRANSPORTATION UNION
LOCAL 701

DATE: NOVEMBER 5, 1989
TIME: 1300H
PLACE: ROYAL TOWERS HOTEL
NEW WESTMINSTER

TOPIC: A DISCUSSION REGARDING THE
COMPANY IMPLEMENTATION OF
THE EIGHT (8) HOUR WORK DAY IN
GREATER VANCOUVER TERMINAL

       YOUR ATTENDANCE AT THIS MEETING IS EXPECTED."

At this meeting, the following resolution was adopted:

"Whereas; the Company, CN Rail, has communicated to the unions that they plan to immediately implement a yard productivity study in the Greater Vancouver Terminal.

Therefore, be it resolved; that the running trade unions, BLE, UTU in the Greater Vancouver Terminal support the Company, C.N. Rail in this productivity study and adopt an immediate campaign of working in the compliance of all the operating rules and regulations governing the movement of trains which have been developed by the Company, CN Rail, and any other regulatory bodies.

Therefore be it further resolved; that the running trade unions, BLE & UTU in the Greater Vancouver Terminal, within their respective house of labour, support CN Rail's productivity study and openly encourage their members to take an active role in striving to create a totally safe environment for the public, the employees and Company property. M/S/C"

(emphasis added)

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.

IV

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 situations like this, in the midst of negotiations, where there is a mass refusal to work that is so obviously well orchestrated, and in the absence of any evidence to the contrary, there must be a presumption that the trade union is the architect. ..."

(Air Canada (1984), 59 di 67; and 8 CLRBR (NS) 397 (CLRB no. 490), pages 79; and 409)

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.

APPENDIX "A"


Board Files: 725-261
530-1784

       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,

       - and -

Certain employees of Canadian
National Railway Company, Members
of the Respondent Trade Unions.

WHEREAS, the Canada Labour Relations Board received an application from the applicant dated the 10th day of November 1989, pursuant to section 91 of the Canada Labour Code (Part I - Industrial Relations), alleging that the respondent trade unions had authorized or declared a strike that was contrary to the provisions of section 89 of the said Canada Labour Code and that employees of the applicant, members of the respondent trade unions, were participating in said unlawful strike;

AND WHEREAS, following a meeting between the Board and the respondent trade unions at Vancouver on November 14, 1989, the Board, in accordance with an agreement between the respondent trade unions, issued an Order dated November 14, 1989, declaring that the employees in the bargaining units represented by the respondent trade unions were acting in combination or in concert and were engaged in a slowdown of work which constituted an unlawful strike contrary to section 89 of the Code;

AND WHEREAS, by virtue of the said Order dated November 14, 1989, the Board ordered the respondent trade unions to take certain specified action to inform said employees of the Order which included directions from the Board to the employees that they forthwith cease and desist from engaging in the unlawful activities and to perform the duties and functions of their employment in a normal manner;

AND WHEREAS, on November 21, 1989, the Board received a further application from the applicant confirming that the respondent trade unions had complied with the Board's directions contained in the Order dated November 14, 1989, but that the employees in the bargaining units represented by the respondent trade unions continued to engage in the unlawful activites;

AND WHEREAS, in the said application dated November 21, 1989, the applicant, pursuant to section 18 of the Code, requested the Board to reconsider the Order dated November 14, 1989, and to issue further remedies which the applicant felt more appropriate to bring the unlawful activities to an end;

AND WHEREAS, pursuant to its powers under section 18 of the Code, the Board, on November 27, 1989, at a hearing at Vancouver, rescinded the said Order dated November 14, 1989, and proceeded to rehear the application dated November 10, 1989;

AND WHEREAS, following consideration of the evidence and argument heard found that the respondent trade unions, the Brotherhood of Locomotive Engineers, Division 945, and the United Transportation Union, Local 701, had declared or authorized a strike contrary to section 89 of the Code by way of the joint motion adopted by said respondent trade unions dated November 5, 1989, which read in part:


"Therefore be it resolved, that the running trade unions, BLE, UTU, in the Greater Vancouver terminal support the Company, CN Rail in this productivity study and adopt an immediate campaign of working in the compliance of all the operating rules and regulations governing the movement of trains which have been developed by the Company, CN Rail, and any other regulatory bodies;"


AND FURTHER, the Board is satisfied that the employees in the bargaining units represented by the respondent trade unions at the employer's terminals at Vancouver have been since November 6, 1989, up to and including the dates of the Board's hearings on November 27 and 28, 1989, engaged in the unlawful activities of a work-to-rule campaign as authorized or declared by the respondent trade unions and have thus been engaged in an unlawful strike contrary to section 89 of the Code;

NOW THEREFORE, the Canada Labour Relations Board hereby orders the respondent trade unions to immediately revoke its authorization or declaration of the unlawful strike by rescinding forthwith its motion of November 5, 1989, and to immediately notify the employees affected of such revocation and rescission;

AND FURTHER, the Canada Labour Relations Board hereby orders the employees of the applicant, members of the respondent trade unions to immediately cease and desist from participating in the said unlawful activities and to forthwith resume to perform the duties and functions of their employment in a normal fashion;

AND FURTHER, the Canada Labour Relations Board hereby orders the respondent trade unions to immediately inform the employees of the applicant who are affected by this Order of the contents of this Order;

AND FURTHER, the Canada Labour Relations Board hereby orders the respondent trade unions to immediately provide to each and every employee in the bargaining units at the Vancouver terminals with a copy of this Order along with a copy of the attached Notice to Employees from the Board. This has to be accomplished through the General Chairman of each respondent trade union along with the Local Chairman of each respondent trade union and as many other executive officers as may be required who shall attend at the premises of the employer at the commencement of each shift to distribute the said Order and Notice to Employees. This distribution shall be completed within 36 hours from the issuance of said Order;

AND FURTHER, the Canada Labour Relations Board hereby orders the respondent trade unions, through their national offices to notify the Board, within seven days of the issuance of this Order, of the steps taken by the respondent trade unions to comply with this Order;

AND FURTHER, the Canada Labour Relations Board hereby orders the respondent trade unions, through their local offices to provide to each and every member who is affected by this Order, a copy of the Board's reasons for decision immediately upon the issuance and receipt of said reasons.

THIS ORDER is made pursuant to the provisions of section 91 of the Code and it will remain in full force and effect until the provisions of section 89 of the Code have been met unless it is modified or revoked pursuant to an application under section 93 of the Code. The Board retains jurisdiction to decide any matter arising from this Order and the remedies stated therein; including, but not limiting it thereto, to decide when the employees affected by this Order have resumed to perform the duties and functions of their employment in a normal fashion should this issue arise.

ISSUED at Vancouver, this 29th day of November 1989.

APPENDIX "B"

Board Files: 725-261
530-1784

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;

"100.(3) Every trade union that declares or authorizes a strike contrary to this Part is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars for each day that the strike continues.


(4)

Every officer or representative of a trade union who declares or authorizes a strike contrary to this Part is guilty of an offence and liable on summary conviction to a fine not exceeding ten thousand dollars.


101.(1) Subject to section 100, every person other than an employer or trade union who contravenes or fails to comply with any provision of this Part other than section 50, 94 or 95 is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars."

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.