Canada Federal Court of Appeal places 'stay' on CIRB decision

The Brotherhood of Locomotive Engineers has taken another major step toward overturning an incredible ruling by a member of the Canadian Industrial Relations Board.

The Federal Court of Appeal in Canada has placed a hold on the CIRB's October 22 ruling, which alleged that the BLE failed to give adequate representation to certain operating employees negatively impacted by VIA Rail's decision to combine the locomotive engineer and conductor crafts in 1997.

On January 18, Federal Judge J. Edgar Sexton placed a stay on the CIRB ruling until a full appeal hearing can be held on or before May 31, 2000. In essence, Judge Sexton placed a stay on the October 22 CIRB ruling because it was so self-contradictory and inconsistent.

"(T)he Board mistakenly relied on evidence relating to the negotiations between BLE and VIA, having previously concluded that it would not hear such evidence," Judge Sexton stated on Page 4 of his decision. "(T)he Board committed several breaches of the rules of natural justice."

This is the second major decision against the CIRB ruling since it was released on October 22, 1999. In November, Arbitrator Michel G. Picher ruled that Canadian National had to accept the flow-back of displaced former conductors and assistant conductors from VIA Rail.

After VIA Rail consolidated the crafts of conductor and locomotive engineer in 1997, there were various conductors who could not hold work under the new craft structure. Using a settlement negotiated in 1987, the BLE secured the rights of these individuals to "flow back" to CN as conductors.

However, CN refused to acknowledge the agreement and did not allow the flow back of the adversely impacted conductors. Arbitrator Picher's ruling forced CN to allow these displaced individuals to "flow back" as conductors.

In its October 22 decision, the CIRB ruled that the BLE misrepresented workers by failing to secure flow back positions at CN. Just 30 days later, the ruling issued by Arbitrator Picher completely destroyed that pillar of the CIRB decision. Picher's ruling, coupled with Judge Sexton's decision to stay the October 22 CIRB ruling, gives the BLE two strong reasons to believe the CIRB ruling will be overturned completely.

In his January 18 decision, Federal Judge Sexton criticized the CIRB ruling for its inconsistency.

Page 6 of his ruling states, "To support its allegation that the Board made inconsistent findings on the issue of collusion, VIA points to an early passage in the Board's decision where the Board found that it had not been substantiated that BLE and VIA had 'colluded to eliminate the position of conductor.' It contrasts that finding with the Board's later conclusion that there was 'an improper collaboration between the employer and the respondent union to achieve a desired outcome for both parties at the expense of the rights of the minority and most affected group of employees.' The group of employees referred to are the conductors. It is certainly arguable that these are inconsistent findings."

Page 7 of his ruling states, "Finally, to demonstrate that the Board committed a breach of natural justice, BLE and VIA highlight the Board's initial decision to not hear evidence relating to the negotiation process between BLE and VIA. They submit that despite that decision, the Board nevertheless relied on evidence relating to the negotiation process in its reasons for judgment."

Originally, the suit was brought against the BLE by the UTU and one of its former members, George Cairns. Cairns agreed to bring suit against BLE even though the BLE secured full payment and benefits for him and all other displaced conductors.

If the October 22 CIRB ruling is overturned, Judge Sexton ruled, then "BLE and VIA Rail shall be entitled to their costs of this application to be paid jointly by George Cairns et al. and UTU."

A copy of Judge Sexton's ruling is available for download in PDF format on the BLE webpage.

© 2000 Brotherhood of Locomotive Engineers