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March 24, 2016
Appeal Court Hearing on
"Equitable Subordination" March 17, 2016
U.S. Steel Refuses to Discuss Its Conduct
in Wrecking Stelco
PDF
Appeal
Court
Hearing
on "Equitable Subordination" March 17, 2016
• U.S. Steel Refuses to Discuss Its Conduct in
Wrecking Stelco
Bankruptcy Proceedings
Wreak Havoc at Essar Steel Algoma
• Defend Workers' Health and Safety!
• Supplemental Affidavit of Union President
Appeal Court Hearing on "Equitable
Subordination" March 17, 2016
U.S. Steel Refuses to Discuss Its Conduct
in Wrecking Stelco
Hamilton steelworkers were in Toronto on March
17 to attend the appeal of Justice Herman Wilton-Siegel's summary
dismissal of "equitable subordination" as an option in
U.S. Steel's (USS) bankruptcy proceedings fraud. The very small
courtroom appeared overflowing with steelworkers determined to defend
their rights.
 During the course of the
hearing, the lawyer for U.S. Steel made it very clear that the monopoly
does not want to discuss its wrecking of Stelco since its purchase in
2007. USS wants
its bankruptcy protection fraud under the Companies' Creditors
Arrangement Act (CCAA) to stay very strictly within the confines of
what makes the CCAA a powerful tool of
monopoly right. The only issues USS wants discussed in CCAA are the
sale or restructuring of Stelco under favourable terms for USS, who the
creditors are, and the order of the creditors
in line for the liquidated assets according to USS dictate. The USS
lawyer argued any discussion of the general or particular features of
what precipitated the problems at the former Stelco,
who was responsible, and whether some or many of the problems were
deliberate and self-inflicted to serve a USS agenda is off limits.
USS does not want the doctrine of equitable
subordination introduced into the CCAA process as it would require
investigation and discussion of the conduct of the parent company
towards its wholly-owned subsidiary, the former Stelco. Such a
discussion, if open and aboveboard, would undoubtedly reveal proof of
wrongful conduct resulting in "oppression and breach
of fiduciary duty" and possibly even criminal charges of conspiracy to
commit fraud. At the very least, it would make the doctrine of
equitable subordination an option requiring a public
airing of U.S. Steel's objectionable conduct. This would also provide
some space for discussion of a new pro-social direction for the steel
industry and resolution of its many problems,
which would greatly assist Canada's nation-building.
Gord Capern, lawyer for the United Steelworkers (USW)
opened the hearing by asking the Appeal Court "for a declaration that
the CCAA contains no ‘restrictions' within the meaning
of s.11 of the CCAA on the court's authority to apply the doctrine of
equitable subordination."
Capern said: "The Union's objections to the USS Claims
can be classified as follows:
(a) an objection to the granting of security interests
on the assets of USSC (the 'Security Objection');
(b) an objection to the characterization of much of
USS's claim as 'debt' when it is properly characterized as equity (the
'Debt/Equity Objection');
(c) an objection grounded in USS's conduct in relation
to its Canadian plants, unionized pensioners, pension plan members, and
beneficiaries, which gives rise to claims of oppression
and breaches of fiduciary duty (collectively, the 'Conduct Objections)."
Capern said Judge Wilton-Siegel's ruling that he had no
authority to address the doctrine of equitable subordination came
without warning when the lawyers were only prepared to deal
with procedure. One of the Appeal judges asked Capern to elaborate if
"substantive arguments on the merits of equitable subordination were
presented at any time before the judge." Capern
and Counsel Andrew Hatnay, lawyer for Stelco salaried workers, both
replied "no."
The steelworkers' lawyers told the court that Judge
Wilton-Siegel ruled against equitable subordination as a procedural
option without any discussion of its content or bearing on the
case, which they found inappropriate and a misjudgement. Capern said
the Union is not looking for the Appeal Court to rule on the validity
of the equitable subordination doctrine but only
that the judge has no reason to say he lacks authority to apply it.
An Appeal judge asked what relevance the judge's ruling
has to the case. Capern said given the judge's recent ruling in USS's
favour regarding the debt/equity objection, the equitable
subordination doctrine acquires significance as the U.S. company stands
to gain almost everything if Stelco's assets are liquidated.
Capern went through the arguments contained in the
union's factum on the significance of the 2009 amendments to the Act
and Parliament's intent. In summary, he said the
amendments broadened a CCAA judge's discretionary powers. He concluded
by refuting USS's assertion that the union wants to open the flood
gates to U.S. laws coming into Canada.
 Counsel Michael Barrick for
USS went straight to the issue of whether a CCAA court should discuss
U.S. Steel's conduct in destroying the productive capacity of Stelco
and any
agenda USS may have in precipitating bankruptcy protection. He argued
that including conduct objections in the claims scheduling and claims
approval motion was inappropriate. Any
discussion of equitable subordination would have to include U.S.
Steel's conduct towards its wholly-owned subsidiary and that was
inappropriate under CCAA, which is a summary process,
he argued. By introducing the conduct objection the Union is trying to
turn the process into something it was never intended to be. The Union
wants to turn CCAA more into a straight
bankruptcy procedure rather than a summary process to protect USSC from
bankruptcy to the benefit of the creditors. For example, he said the
objectors had already turned the debt/equity
issue into a nine day long trial. By trying to interject the conduct
objection into the claims process the Union is trying to slow down the
process even further. That goes against the intent of
the CCAA. The objective of the Act is to find compromise and
to proceed summarily, he said. The CCAA is restricted to claims and
does not concern itself with conduct. The aim
is to restructure efficiently, to deal with amounts and priority of
claims summarily. The CCAA is a claims process, he repeated.
Introducing conduct objections is a massive broadening of
the scope beyond its intent, he suggested. Parliament dealt with
equitable subordination by limiting claims to secured claims, unsecured
claims and equity claims. The framework of the Act is
restricted to creditors and debtors, not
inter-creditor claims and disputes. Layering on conduct objections goes
far beyond what Parliament intended with the CCAA, he
insisted.
Capern gave a short reply reiterating that the issue of
equitable subordination came up when how to proceed with the claims was
under discussion. All issues were put forward to
determine whether they should be dealt with at the same time or
separately. It is premature to deal with any equitable subordination
remedy, he argued. Its legitimacy has not been
determined within the process. This is not what the Union is seeking.
It is asking "for a declaration that the CCAA contains no
‘restrictions' within the meaning of s.11 of the CCAA on the
court's authority to apply the doctrine of equitable subordination."
Note
For further discussion of Wilton-Siegel's dismissal of
equitable subordination see TML Daily, March 16,
2016
Bankruptcy Proceedings Wreak Havoc at
Essar Steel Algoma
Defend Workers' Health and Safety!
President Mike Da Prat of Steelworkers Local 2251 in
Sault Ste. Marie reports that workplace safety at the Algoma steel
facilities is in a "state of collapse."[1]
Da Prat places the blame
squarely on the Essar global monopoly for refusing to abide by its
contractual arrangements under the existing collective agreement and
provincial law. He charges the monopoly is using
bankruptcy protection under the anti-worker Companies' Creditors
Arrangement Act (CCAA) to attack the rights of steelworkers
including the right to safe working conditions. The
collective agreement, provincial law and rights of all employees are
under assault from abusive, autocratic and arbitrary practices under
the CCAA, the judge and company.
 President Da Prat reports
that members of Local 2251 are awaiting proper adjudication of more
than 4,700 grievances under the terms of the collective agreement and
provincial law.
Many of the existing grievances deal with workplace safety and others
are being filed daily, as the company seeks to evade its social
responsibilities. The company is using CCAA as a
shield to delay any action on grievances and outstanding issues and
attack the right of workers to safe and healthy working conditions and
other issues.
The CCAA Justice Frank Newbould has ordered the
steelworkers and salaried employees' locals at Algoma to submit a
250-word summary of each case by April 11. Only those
received by that time will be considered under the CCAA and all those
must be resolved by the end of August. President Da Prat says given the
lack of company cooperation both deadlines
are unreasonable and in contradiction with the collective agreement and
provincial law.
The CCAA deadline and pressure on the union are seen as
a way to have most of the present grievances and any new ones left
unresolved and eventually dismissed by the CCAA
judge. This is coupled with deteriorating working conditions and
increasing threats to health and safety, as arrangements agreed to
under provincial law and the collective agreement come
under attack.
Judge Newbould made his intentions clear to attack the
rights of workers in favour of monopoly right. Using his presumed
autocratic and arbitrary authority under the CCAA,
Newbould said he was responding to a request from Essar Steel Algoma
for an expedited resolution process for outstanding grievances. He
wants the deck cleared so to speak by the end of
August with only a limited number of cases to continue under the
collective agreement and a small number to be stayed pending the
conclusion of the CCAA proceedings.
The Essar monopoly precipitated the judge's action by
filing a factum in the CCAA court warning a restructuring or successful
sale of the Algoma facility would not occur under the
weight of so many unresolved grievances. "It is illogical to believe
that a third-party purchaser will be willing to assume 3,000 unknown
and unquantifiable grievances without knowing
what impact those grievances will have on the business," the company
swore in its factum.
This attitude of monopoly right to declare an aim and
to abuse the rights of workers to serve that declared aim is typical of
the neoliberal line and resulting disequilibrium in relations
of production gripping Canada today. In the arbitrary style of feudal
lords, the company and CCAA judge declare that rights are expendable
because the end or aim of a "successful
restructuring or sale" justifies any means to reach that end including
an attack on workers' rights. The judge underlined this imperialist
pragmatism saying he has ordered that any claim not
included on a summarized list by April 11, "shall be deemed to be
withdrawn with prejudice by USW Local 2251 or USW Local 2724, as
applicable, and shall be and is hereby forever
barred and extinguished." Justice Newbould also declared with equal
regal bluster that all decisions made pursuant to this week's order are
final and binding and not subject to judicial
review.
President Da Prat said Local 2251 wants to continue
working through grievances under the procedure contained in the
collective agreement and increase the pressure on the company to
abide by the law and not violate workplace health and safety. President
Da Prat remarked that his local has been through two previous periods
of CCAA protection, in 1991 and 2001. In an
affidavit sworn last month, he accuses the company of disregarding the
collective agreement "in an unprecedented manner" since Essar most
recently sought protection under CCAA last
November. Da Prat claims human rights issues and occupational health
and safety have become major concerns.
"This is markedly different from the company's actions
during prior restructurings, when Algoma complied with the terms of the
collective bargaining agreement in force at the
relevant time," Da Prat says.
 Both judge Newbould and James
Rennie, Essar Steel Algoma's vice president of human resources, argue
that the exceptional circumstances of bankruptcy protection under CCAA
have
changed the equation and leave no room for equilibrium in workplace
relations. In the minds of both men, quick dismissal of the grievances
equates with resolution detached from any
change in workplace practices and upholding of the rights of workers.
This serves a successful restructuring so is therefore good and proper.
Newbould calls on workers to rally around the company
aim and give up their rights or else all may be lost. He says, "It
would also seem to be in the interests of the grievors to have a
procedure to resolve the grievances and thus assist in a positive
outcome for the business on which their livelihoods depend."
Rennie accuses the workers and their union of abusing
the grievance procedure by filing too many grievances. He denies any
connection with the company's unsafe workplace practices
while under CCAA protection. He says the company wants to work with
Local 2251 "to create a safe and effective work environment for its
employees" but the outstanding grievances are
an impediment to a successful restructuring or sale of the company.
The response of the company executive and judge
extolling the workers to forget their rights and rally behind the aim
is exactly why workers need clear rules governing workplace
conditions and steps to resolve differences so that workers' rights are
not abused under all circumstances. The arbitrary nature of CCAA means
that working conditions will deteriorate
under a dictatorship of the company and CCAA where workers' rights are
not recognized and workers' defence of their rights is criminalized.
This must not pass!
The judge and company executive push the line of
exceptional circumstances to deny rights and overturn laws, collective
agreements and equilibrium at the workplace. Rennie is
directly involved at the workplace and knows exactly what the company
is doing. The judge does not now and has never worked in an industrial
facility where workers must fight to defend
their rights under all circumstances as threats of serious injury and
even death are an ever present danger and all kinds of excuses are
constantly made to demand anti-worker
concessions.
The judge may wonder all he wants why workers demand
their rights and desire equilibrium under a rule of law and collective
agreement and refuse to give up their rights under any
circumstance because he is not an industrial worker and does not stand
with the working class. The judge takes the side of monopoly right
where imperialist pragmatism declares the end
justifies the means including the denial of rights under the hoax of
exceptional circumstances. He mocks the working class and revels in the
arbitrary powers of the CCAA, which include
the overthrow of the rule of law and any equilibrium under a collective
agreement.
 Workers are having none of
this and demand that their rights be upheld under all conditions.
President Da Prat has responded forcefully in his affidavit with a
detailed condemnation of
health and safety practices at the steelmaker's Sault operations. He
says, "Algoma's actions immediately before and after the initial [CCAA]
order have eroded the health and safety
procedures established by the collective agreement, and the regime is
in a state of collapse."
The illegal and destructive practice of using CCAA to
attack the rights of workers must stop. The recurring use of CCAA to
avoid finding a new direction for the steel industry in
Canada that is viable and sustainable must stop. The use of the CCAA to
attack the rights of workers and others is an affront to the dignity of
all Canadians and must stop.
Down with the Anti-People CCAA and Its
Nation-Wrecking and Abuse of Rights!
Public Right Yes! Monopoly Right No!
Keep Algoma Steel
Producing!
Note
1. President Da Prat cites
numerous recent health and safety concerns at Algoma Steel including:
- Thirteen pieces of unsafe equipment were taken out of
service only after a machinist was seriously hurt by a grinder.
- Three collisions between locomotive and rail cars
were not reported by the company to the union. The workers had to
report the incident themselves causing Da Prat to say, "I am
highly concerned that the company is giving the appearance of a good
track record by under-reporting health and safety issues."
- Essar Steel Algoma has no lock-out procedure to
disable machinery used to drill into the No. 7 blast furnace to release
liquid iron.
- The company is denying needed medical assessments to
workers operating mobile equipment.
- Dangerous products used in the workplace are not
properly labeled.
Supplemental Affidavit of Union President
(Sworn March 10, 2016)
In the matter of bankruptcy protection of Essar
Steel Algoma under the Companies' Creditors Arrangement Act (CCAA)
I, MICHAEL DA PRAT, of the City of Sault Ste.
Marie, in the Province of Ontario, MAKE OATH AND SAY:
1. I am the President of the United Steelworkers Local
Union 2251 ("Local 2251") and, as such, I have personal
knowledge of the matter deposed in my affidavit, except
where I have indicated that I have obtained facts from other sources,
in which case I believe those facts to be true.
2. I have had an opportunity to review the Affidavit of
David James Malcolm Rennie [Essar Steel Algoma's vice president of
human resources], sworn March 9, 2016 ("Rennie
Affidavit"). This affidavit is supplemental to the affidavit I
swore on February 24, 2016 ("Initial Affidavit"), and in
response to the Rennie Affidavit. Capitalized term used
herein but not otherwise defined have the meaning attributed to them in
Initial Affidavit.
The Rennie Affidavit
3. The Rennie Affidavit was served by the Applicants at
approximately 8:00 p.m. on March 9, 2016.
4. On March 9, 2016, I travelled to Toronto from Sault
Ste. Marie to be present for the hearing of the grievance procedure
motion, returnable March 11, 2016, and was in Toronto
when I received the Rennie Affidavit.
5. The Rennie Affidavit mischaracterizes critical
information with respect to the grievances filed by Local 2251, and the
current state of the health and safety system at Algoma.
6. My counsel, Mr. Brzezinski, e-mailed counsel for the
Applicants to request an adjournment of the grievance procedure motion,
given the need to respond to the Rennie Affidavit in a
fulsome way. Unfortunately, without access to documents from the
grievance database, which can only be accessed in Sue Ste. Marie, it is
difficult to comprehensively address the issues
raised in the Rennie Affidavit. However, counsel for the Applicants
rejected Local 2251's request for an adjournment. Attached hereto and
marked as Exhibit "A" is a copy of the
e-mail correspondence among counsel with respect to the adjournment
request.
7. As a result of Algoma's response to the request for
a consent adjournment, I am swearing this supplemental affidavit to
respond to the Rennie Affidavit to the best of my ability in
the circumstances.
The Current Health and Safety Regime
8. The Rennie Affidavit states that Algoma has
attempted and continues to attempt to work with Local 2251 "in order to
create a safe and effective work environment for its
employees." To the contrary, Algoma's actions immediately before and
after the Initial Order [for bankruptcy protection under the CCAA] have
eroded the health and safety procedures
established by the Collective Agreement, and the regime is in a state
of collapse.
9. Workplace health and safety procedures are critical
to the well-being of employees, especially in an environment as
inherently dangerous as steel manufacturing.
10. Article 10.02 of the Collective Agreement mandates
Algoma and Local 2251 to establish a Joint Health and Safety Committee
consisting of employee and management
representatives. The representatives are required to work together and
hold regular safety meetings to ensure that the requirements of the Occupational
Health
and
Safety Act ("OSHA") are upheld in the workplace.
11. Certified worker safety representatives from the
union ("Safety Representatives") would actively inspect the
workplace for any health and safety issues. Safety
Representatives inspected the workplace on a full-time basis, and did
not otherwise perform other duties on the shop floor. Safety
Representatives have traditionally reported to a Safety
Chairman, who is a union representative, and any disagreement or
disciplinary action taken against the Safety Representatives would go
through the Safety Chairman. The Joint Health and
Safety Committee has been productively operating in this manner since
1981.
12. In or about March 2015, the company unilaterally
altered the structure of the Joint Health and Safety Committee so that
the Safety Representatives would now report to newly-hired
management representatives, in breach of the Collective Agreement. This
breach is ongoing.
13. The fact that Safety Representatives report to
management, as opposed to the Safety Chair, means that they are
vulnerable and susceptible to reprisals from Algoma's supervisors
and foremen. The ability of the Safety Representatives to conduct
health and safety inspections without the threat of reprisals is
critical to ensuring that occupational health and safety
standards are upheld in the workplace.
14. Since this change has occurred, the company has not
only thwarted the ability of the Safety Representatives to inspect the
workplace by scheduling inspections without the
involvement of the union, it has also threatened reprisals against the
Safety Representatives, and taken reprisal action against two of these
representatives.
15. In an e-mail dated July 2, 2015, Mr. Rennie writes
to Safety Representatives mandating that they comply with the company's
schedule for inspections, and threatening reprisals if
they refuse: "Any employee refusing to comply with the schedule should
be advised that such action will be taken as an act of insubordination
or in the alternative a collective effort to
refuse to work." Attached hereto and marked as Exhibit "B" is a copy of
Mr. Rennie's July 2nd e-mail.
16. As a result of the company's reprisals, I had no
choice but to release the Safety Representatives from their duties.
They resumed their jobs on the shop floor.
17. In response to a complaint filed by Local
2251 with respect the above-mentioned health and safety issues, The
Ministry of Labour made the following findings: "The company has
restructured the health and safety committee without joint agreement.
The Union has released all health & safety representatives back to
the workplace. The committee cannot reach
consensus on a schedule of workplace inspections." The Ministry of
Labour concluded that: "the employer is not providing the necessary
time for workplace inspections to be carried out,"
and issued a corresponding order. Attached hereto and marked as Exhibit
"C" is a copy of the Ministry of Labour's response, dated July 14, 2015.
18. Despite the order from the Ministry of Labour, the
company has continued to unilaterally shut Local 2251 out of the health
and safety regime, the effect of which has been that
there are currently no Safety Representatives inspecting the workplace.
Health and Safety Grievances
19. The Joint Health, Safety and Environment Manual ("Joint
Health
and
Safety Manual"), which contains the practices and
procedures by which the parties are to address
health and safety issues, is incorporated into the Collective Agreement
by virtue of Article 10.03. Attached hereto and marked as Exhibit
"D" is a copy of the index for the Joint
Health and Safety Manual.
20. Moreover, Arbitrator Parmar, an arbitrator
appointed by the Ministry of Labour to deal with a grievance issued by
Local 2251, held that the Joint Health and Safety Manual forms
part of the Collective Agreement. Attached hereto and marked as Exhibit
"E" is a copy of Arbitrator Parmar's decision, dated January 17,
2011.
21. Since the Initial Order, Algoma has been placing
the health and safety of the members of Local 2251 at risk by violating
the terms of the Joint Health and Safety Manual at an
accelerated pace. Examples of post-filing grievances relating to health
and safety issues include:
a. The company does not have a lock-out procedure to
disable the machinery used to drill into the no. 7 blast furnace to
release liquid iron. This was brought to light after a worker
was disciplined by the company for allegedly failing to follow
instructions. A grievance was filed with respect to this disciplinary
action. Algoma did not proceed to investigate the
grievance thoroughly as an investigation would have revealed the
company had failed to develop the necessary lock-out procedure, which
is critical to the safety of the workers. This
grievance was filed as Grievance No. 16-007 on January 6, 2016.
b. Algoma is denying workers operating mobile
equipment, including mobile overhead cranes, the required medical
assessments. This grievance was filed as Grievance No. 15-0850 on
filed on December 31, 2015.
c. Algoma failed to identify dangerous products used in
the workplace with appropriate labels. This grievance is referred to as
Grievance No. 15-082 and was filed on December 22,
2015.
d. A machinist was seriously injured by a grinder.
After-the-fact investigations revealed that Algoma had failed to
conduct safety audits jointly, resulting in thirteen pieces of
equipment
being taken out of service as unsafe. This grievance was filed as
Grievance No. 15-0856 on December 31, 2015.
e. Management had instructed
a worker to perform his task contrary to the manner in which he was
trained, and in contravention of the job safe practice and safe work
procedure. This
grievance was filed as Grievance No. 15-0832 on December 29, 2015.
22. The actual filings for the above-referenced
grievances are not appended to this affidavit so as to protect the
privacy of the grievor.
Vacation Scheduling
23. On November 24, 2015, Local 2251 and Algoma entered
into a Letter of Agreement with respect to alternate shift schedules.
("Letter of Agreement"). The Letter of Agreement
identifies a number of specific issues associated with the scheduling
of the workers and provides a number of options for scheduling
vacations. Two of these options for scheduling
vacations is either by the calendar week, or from days off to days off.
Another option is for employees to choose to be aligned on crews.
Attached hereto and marked as Exhibit "F" is a
copy of the Letter of Agreement.
24. However, Algoma has unilaterally changed the terms
of the Letter of Agreement so that all vacations would be booked by
calendar week only (days off to days off was no longer
an option), and that vacations would be booked as a group (no longer by
crew). The result is that junior individuals on different crews would
get the vacation time that senior employees
were properly entitled to. In other words, an employee may not take
time off if the result is that a crew of workers is short of a skill
set, even if that employee is entitled to vacation time
based on his or her seniority.
25. The Rennie Affidavit seeks to trivialize the
grievances relating to vacation scheduling. However, as employees work
demanding twelve hour shifts, often involving dangerous
equipment and tasks, time off in between shifts is critical to ensuring
the health and safety of the workforce. The company's new rules for
scheduling time off have had a negative impact
on morale, and have also damaged the trust between Local 2251 and its
members, as union members feel they were misled when they were asked by
Local 2251 to ratify the Letter of
Agreement.
26. When I raised these issues with Teresa D'Angelo, a
human resources manager at Algoma, I was informed that, in the
company's view, the CCAA stay protected the
company from any grievance that could be filed by Local 2251 to address
the company's departure from the agreed upon scheduling practices. [emphasis
added
-
TML] Attached hereto
and marked Exhibit "G" is Ms. D'Angelo's email, dated January
5, 2016.
Human Rights Violations
27. Historically, there have been a very small number
of human rights applications filed by Local 2251. Since the Initial
Order, Local 2251 has filed two applications with the Human
Rights Tribunal of Ontario ("HRTO"), and one human rights grievance.
28. The first human rights application was filed on or
about December 7, 2015. In this matter, the Applicant was disabled as a
result of a snowmobile accident, and is permanently in a
wheelchair. The Applicant was laid off on or about December 1, 2015,
despite the fact that he has seniority to hold a job and there is a job
that he can perform on his line of
progression.
29. A second application was filed on or about January
1, 2016. The Applicant in this matter was injured on the job. He was
accommodated by being moved from his 12 hour shift
schedule to a day job. Management is now refusing to allow the
Applicant to return to his 12 hour shift schedule and crew, despite the
fact that the Applicant has court-ordered visitation
rights for his child, which was based on his 12 hour schedule. In not
being able to return to his job, the Applicant is missing out on
visiting his child, and is also losing pay.
30. On or about February 17, 2016, a human rights
grievance was filed relating to an employee that management is
insisting should be subject to a functional capabilities evaluation,
despite already being selected as the successful applicant for the job,
and despite the fact that he does not have any medical restrictions.
31. These HRTO applications/grievance are not appended
to this affidavit in order to preserve the privacy of the worker.
32. Local 2251 attempted to reach a consensual
resolution with the company with respect to the human rights
applications, but to no avail. Local 2251 was left with no recourse but
to
file applications to the HRTO to ensure that the employees' human
rights would not continue to be compromised by the company.
Clarifications to the Rennie Affidavit
33. The Rennie Affidavit contends that contracting out
relates to complaints that Algoma hired an outside worker to perform
the work of Local 2251 members. This is incorrect. The
majority of the contracting out grievances relate to the failure of the
company to pay overtime pay (up to a specified number of hours) when
work is contracted out, pursuant to the
Collective Agreement.
34. The Rennie Affidavit further states that it is
common for Local 2251 to file numerous grievances arising from the same
set of facts. However, pursuant to s. 74 of the Labour
Relations Act, Local 2251 has a duty of fair representation to
its membership as the bargaining unit. As such, when an individual
employee comes to the union to file a grievance against
the company, the duty of fair representation requires the union to file
the grievance on behalf of the employee.
35. Finally, the Rennie Affidavit states that Algoma
has an "excellent track record with respect to health and safety." As
mentioned above, this is not accurate. Moreover, I have
recently been advised that three incidents of collisions between
locomotives and rail cars have not been reported by the company to the
union. I am highly concerned that the company is
giving the appearance a good track record by under-reporting health and
safety issues. Attached hereto and marked as Exhibit "H" are
copies of the three damage reports relating to
these incidents.
Referral of Grievances to Arbitration
36. Since my Initial Affidavit, I have received
additional correspondence from Arbitrator Bloch. Attached hereto and
marked as Exhibits "I" and "J" are copies of letters from
Arbitrator Bloch, dated February 24, 2016 and March 2, 2016.
37. As is evidenced from the correspondence, Arbitrator
Bloch is adjourning hearing dates pending the end of the CCAA stay
period. Local 2251 recognizes the authority of Arbitrator
Bloch to deal with the Referred Grievances in this manner, pending the
end of the stay.
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