Canada Industrial Relations Board Conseil canadien des relations industrielles 1 Front Street West, Suite 5300, Toronto, Ontario M5J 2X7 1, rue Front ouest, Place 5300, Toronto (Ontario) M5J 2X7 Fax: (416) 973-6543 _____________________________________________________________________ COMPLAINT TO THE CANADA INDUSTRIAL RELATIONS BOARD Section 37: Duty of Fair Representation 1. Name and address of the complainants: Rob McInnis Don Gerke Antony Dodd Eric David Mark Zwanski Mike Lowther Stuart Hyde c/o 207 Lindsay Street, Kimberley, BC V1A 1L4 Address for Service: CAVALLUZZO HAYES SHILTON McINTYRE & CORNISH LLP Barristers & Solicitors 474 Bathurst Street, Ste. #300 Toronto, ON M5T 2S6 Tele: (416) 964-1115 Fax: (416) 964-5895 Attention: James Hayes 2. Name and address of employer: Air Canada Air Canada ZIP 1263 Labour Relations Dorval, PQ H4Y 1H4 Attention: Kevin Howlett, Senior Vice-President, Employee Relations, Air Canada-Montreal Telephone: (514) 422-4622 / Fax: (514) 422-5609 - and - 2 . Air Canada Air Canada Center Labour Relations (zip 1263) 730 Cote Vertu West Dorval, PQ H4Y 1C2 Attention: Scott Morey, Vice-President Labour Relations, Air Canada Telephone: (514) 422-5658 / Fax: (514) 422-5669 3. Name and Address of the bargaining agent: Air Canada Pilots Association 6299 Airport Road, Suite 205 Mississauga, ON L4V 1N3 Attention: Paul Strachan, MEC Chairman Telephone: (905) 678-9008 Fax: (905) 678-9016 4. Statement of facts and circumstances in support of your complaint. See Schedule “A” 5. Describe the nature of the order or decision that you seek from the Board: See Schedule “B” Counsel for Complainants’ signature: ___________________ Date: February , 2009 SCHEDULE “A” I. INTRODUCTION the application 1. This application concerns continuing action by ACPA with respect to the seniority rights of the former Canadian Airlines minority pilot group employed at Air Canada. 2. More particularly, the application addresses pre-collective bargaining conduct and the refusal of ACPA to respond to former Canadian pilots who seek a simple assurance that their bargaining agent will not seek to diminish minority seniority rights or re-rank seniority order established by the Keller Award. 3. The application has immediate labour relations significance beyond its straightforward facts. 4. As the CIRB has previously recognized, a successful effort by ACPA to circumvent a pilot seniority integration arbitration award will serve to renew tensions among other employees similarly situated in other Air Canada bargaining units. Collective bargaining in 2009 will be difficult enough in the current economic environment. Air Canada should not be confronted with an unlawful demand. The ACPA membership should be united not held hostage to a divisive but settled dispute. the applicants 5. The applicants are pilots who were employed by Canadian Airlines prior to the corporate merger with Air Canada in 2000. They are represented by ACPA for purposes of collective bargaining. ACPA and Air Canada are parties to an Air Canada/ACPA collective agreement which will expire on June 30, 2009. 6. The applicants comprise the ALPA Merger Committee which acts as the exclusive representative of the former Canadian pilot group concerning all matters reasonably related to the Keller awarded seniority list. They also constitute the Oversight Committee directed by the Keller Award. The role of ALPA in these matters was identified most recently in CIRB L.D. 2000 on November 12, 2008. 7. The applicants have instructed counsel throughout all of the pilot seniority litigation which has been conducted since the corporate merger. They have considerable experience with these matters. 8. The applicant Rob McInnis, an A340 Captain based in Vancouver, has been the Chair of the Merger Committee since 2000. He has over 38 years service as a mainline airline pilot consecutively with CP Air, Canadian Airlines, and Air Canada. 2 Captain McInnis is a past President of both the Canadian Airline Pilots Association (“CALPA”) and the International Federation of Airline Pilot Associations (“IFALPA”). IFALPA is an international association which represents over 100,000 airline pilots from over 100 member associations around the world. Captain McInnis has extensive experience at the CALPA bargaining table and has been involved with virtually every pilot seniority integration which has taken place in Canada since 1985. 9. Accordingly, the applicants understand and respect the role which ACPA discharges as exclusive bargaining agent. Their sole interest as members of the Merger Committee is to discharge their own fiduciary responsibility to the former Canadian pilot group which entails ensuring that the final and binding Keller Award is respected. background 10. The current Air Canada pilot seniority list is the one awarded by Arbitrator Keller in 2003. The litigation history concerning this matter is well known to the CIRB and is summarized below. 11. There remains within ACPA a political constituency obsessed with seniority issues which usually succeeds in electing a fluctuating number of representatives with a singular agenda. To date, the leadership of ACPA has been unable or unprepared to make clear to its membership that this dispute is at an end. In the result ACPA has never accepted that the Keller Award is and should be final and binding– notwithstanding the express language of the Keller protocol which gave rise to the award. 12. Commencing in 2003, as was permitted by the Keller protocol, ACPA sought judicial review of the Keller Award which application was followed by an appeal and a further leave application to the Supreme Court of Canada. ACPA acted exclusively on behalf of the majority original Air Canada pilot group. ALPA acted on behalf of the former Canadian pilots through the applicants on the Merger Committee. 13. Also commencing in 2003, as was not permitted by the Keller protocol, ACPA initiated a vigorous effort to seek CIRB reconsideration of the Keller Award. Those Board applications led to additional applications for judicial review. Furthermore, original Air Canada pilots engaged in a variety of misconduct which drew negative comment from the CIRB. Those actions included conduct relating to the acquisition of B777 and B787 equipment which Air Canada characterized as an unlawful strike. ACPA later engaged in a misguided ‘mediation’ exercise with Air Canada and Mr. Teplitsky which the CIRB declined to sanction. 3 14. The applicants refer to the further extensive course of conduct previously cited in CIRB File Nos. 23857-C and 25435-C. 15. The pilot seniority issue has been the subject of multiple attempts at negotiation, two full rounds of mediation/arbitration, numerous complaints and applications for before the CIRB, six or more applications for judicial review, one appeal, one application for a stay, and four applications for leave to the Supreme Court of Canada. In addition, individual pilots or groups have initiated seniority-related Board proceedings. 16. The most recent round of litigation involved the Teplitsky exercise. Most unusually, the CIRB referred that matter to three person panels consisting solely of neutrals. ACPA’s request that the Teplitsky recommendations be endorsed by the Board was rejected by a unanimous panel consisting of Chair Edmondson and Vice-Chairs Durette and Fecteau. A request for reconsideration of that decision was rejected by yet another unanimous panel which included Vice-Chairs Sims, Tobin, and Ruck. Both of those decisions were upheld, also unanimously, by the Federal Court of Appeal with leave denied by the Supreme Court of Canada on November 29, 2007. 17. It is important to recognize that the former Canadian pilots were also dissatisfied with the Keller Award. Neither side clearly won or lost. The Keller Award was a compromise outcome which fully satisfied no-one. That is the nature of zero sum seniority integration arbitrations as the CIRB has come to appreciate. The difference between ACPA and ALPA has been that ALPA has accepted the ‘final and binding’ commitment which the parties made to each other, to Arbitrator Keller, and to the CIRB– while ACPA has not. CIRB and judicial commentary 18. The CIRB and the courts have expressed strong views that this dispute should be ended. 19. In January 2004, the Board opined at para. 58 of Decision 263: “There is a point in any process where the parties must either resolve their dispute or accept that they have obtained maximum gains. There is also a time when common sense must prevail.” 20. In May 2005, Dawson, J. of the Federal Court Trial Division at para. 146 cited that CIRB observation with approval and added that “there is a public interest in bringing finality to this dispute”. [2005 FC 723] 21. In March 2006, the Edmondson panel in Decision 349 stated that: 4 It is the seniority-related rights and benefits, not the employee’s ranking on the seniority itself, that are routinely negotiated by the collective agreement parties.[para.92] ACPA and Air Canada, acting alone, cannot change the rankings of the former Canadian pilots on the seniority list because of a perceived unfairness on the part of some of the other pilots in the bargaining unit...the Keller award, which sets the post-merger seniority rankings for the pilots at Air Canada, is final and binding. [para. 107] ACPA and Air Canada’s section 16 (p) request is a disguised attempt to have the Board do indirectly what it has already said it has no jurisdiction to do directly. [para 103] The dismissal does not mean, however that ACPA and Air Canada, acting on their own, will never be able to justify addressing the issue of pilot seniority in the future. Just as the 2000 merger necessitated changes to existing seniority lists, so too may some new, equally significant, corporate initiative or event occur that would necessitate making changes to the present pilot seniority list..an event of the magnitude of a merger, for example, might occur sometime in the future.