Aother Domino Falls -- CUPE Files Mand. Retirement Grievance

[Raymond Hall]

Another Domino Falls . . .

Canadian Union of Public Employees Files Mandatory Retirement Grievance Against Air Canada


The union representing Air Canada Flight Attendants has filed a grievance with Air Canada regarding the termination of employment of one of its members by reason of mandatory retirement.

This leaves ACPA and the Flight Dispatchers' union as the only unions at Air Canada to not yet seek temporary reinstatement of their members already terminated and prohibition against further involuntary termination of employment by reason of age discrimination, pending ACPA's appeal of the Federal Court's confirmation of the Tribunal's ruling that the mandatory retirement exemption under the Canadian Human Rights Act is unconstitutional.

The filing of the grievance comes after one of its members rejected the union's suggestion that he/she await the outcome of proceedings in progress by some other members of the union before the Canadian Human Rights Tribunal and insisted upon the union fighting his/her termination of employment by reason of age, through the grievance / arbitration process.

The reason for choosing the grievance / arbitration process is obvious. Arbitrators have the power to order immediate reinstatement, whereas the Tribunal can issue orders only after completion of a hearing that can take several years to conclude, as the pilots well know. Members of the IAMAW and of the CAW were ordered reinstated within weeks of the filing of their respective grievances.

The filed CUPE grievance reads as follows:

NATURE OF THE GRIEVANCE:

The Union claims that Air Canada violated the Collective Agreement, including but not limited to Articles 1, 3, 19.02, 24.01, LOU 14, and any and all relevant provisions of the Collective Agreement, and the Canadian Human Rights Act, any and all relevant statutes and legislation, including the maintenance of a policy that requires an individual to retire at sixty-five years of age.

SETTLEMENT REQUESTED:

We ask that Air Canada

1) Immediately withdraw all practices and policies that include any reference to mandatory retirement;
2) Provide written confirmation of the violation;
3) Make any member adversely affected by the violation whole in every respect;
4) Ensure that all Collective Agreement provisions are equitably applied to individuals that choose to work past the age of sixty-five;
5) Provide for any other remedy deemed appropriate.
6) Make the grievor whole.

We request a hearing within the contractual time limits and that the Company provide all documentation relied upon in this matter.

[DrBoeing]

A number of people from the maintenance department have filed a grievance and have since returned to duty post 65 years.

[Norwegianwood]

Isn't this called "representing union members", something acpa thinks it can cherry pick, and only for the chosen few

[accumulous]

1. Each of the other unions, CAW, IAMAW, and CUPE have obviously received legal opinions that Mandatory Retirement is now legally indefensible.

2. The Arbitrators involved in these cases obviously agree 100 percent with the Federal Court.

3. This isn’t Rocket Science. The other big Union leaders obviously realize, juxtaposed to the Pilot fiasco, that the alternative exposes their entire Membership to paying half the wages of every Member who sits out awaiting reinstatement, which could through special assessment wipe out any contract pay increases for every active Member for a long time to come. The outright civility of the big Unions is like a breath of fresh air.

4. It also opens up the career path for everyone. Everybody on the same page. They know it’s a win-win situation, they get it, they understand it, and they’re doing it, for free.

5. This is precisely where the Pilots fall right completely off the rails. A hopeless inability to comprehend even the very simplest concepts. The other Unions also pull their entire Membership with the same team of horses in the same direction. The magnitude of their Leadership is highly evident, whereas the Pilots are entirely mired down under the weight of Special Interest Groups, pie-in-the-sky seniority ‘deals’, and lawsuits, desperately trying to give away their Pensions and to assist in chopping the Airline in half, under the weight of their misguided lack of planning. At this juncture, you have to realize the only thing that can likely crack this certified nutcake is a Gavel. It’s a mess for the Pilots, a really big mess. The entire aviation community must be just stunned watching it unravel.

[Morry Bund]

So, as I understand it, the CHRT has advised that its decision on the BFOR issue referred to it by the Federal Court in the February decision will be released before the end of June. And ACPA, in its refusal to file a grievance on behalf of its members facing termination of employment in April and May cited the "uncertainty" of the BFOR issue, given the referral of the issue from the Federal Court back to the Tribunal for reconsideration.

My question is this. Assuming that the Tribunal confirms its previous finding that neither Air Canada nor ACPA met the onus to demonstrate that termination of employment of pilots at age 60 qualified as a BFOR in 2007, will ACPA continue to refuse to file grievances on behalf of its members as a result of their pending termination or actual termination of employment? If so, on what basis, given that every other union at Air Canada has recognized the binding nature of the Tribunal's and the Federal Court's determination that the mandatory retirement exemption under the Canadian Human Rights Act is unconstitutional? What excuse will it then choose to use to continue pursuing its relentless refusal to recognize reality?

Or will it finally likewise file a grievance and subject its wrongfully terminated pilots to temporary reinstatement, pending the final outcome of the litigation before the courts?

Given all of the overwhelming changes in the situation before us, including the pending repeal of the mandatory retirement exemption, are we anywhere near the tipping point? Is it almost over, save for calculating the damages?

[Norwegianwood]

So, as I understand it, the CHRT has advised that its decision on the BFOR issue referred to it by the Federal Court in the February decision will be released before the end of June. And ACPA, in its refusal to file a grievance on behalf of its members facing termination of employment in April and May cited the "uncertainty" of the BFOR issue, given the referral of the issue from the Federal Court back to the Tribunal for reconsideration.

My question is this. Assuming that the Tribunal confirms its previous finding that neither Air Canada nor ACPA met the onus to demonstrate that termination of employment of pilots at age 60 qualified as a BFOR in 2007, will ACPA continue to refuse to file grievances on behalf of its members as a result of their pending termination or actual termination of employment? If so, on what basis, given that every other union at Air Canada has recognized the binding nature of the Tribunal's and the Federal Court's determination that the mandatory retirement exemption under the Canadian Human Rights Act is unconstitutional? What excuse will it then choose to use to continue pursuing its relentless refusal to recognize reality?

Or will it finally likewise file a grievance and subject its wrongfully terminated pilots to temporary reinstatement, pending the final outcome of the litigation before the courts?

Given all of the overwhelming changes in the situation before us, including the pending repeal of the mandatory retirement exemption, are we anywhere near the tipping point? Is it almost over, save for calculating the damages?

Not rocket science Morry B but then the scientists do not represent the pilots so we have what we have and will pay dearly in the end. Shields (Oops, I meant to say DUES) up to pay the piper..... as the cost gets higher and higher......

[vic777]

... do not represent the pilots so we have what we have and will pay dearly in the end. ..... as the cost gets higher and higher......

Is dumping the Union a way out?

[Johnny Mapleleaf]

Is dumping the Union a way out?

If anybody were to have attempted to get ALPA to undertake a union raid about a month ago, they may very well have been successful, given the then prevailing sentiment. But not now. ACPA is now deeply involved in the process of restoring its own integrity and changing for the better -- the revised Executive Council is indeed very, very concerned about representing the interests of its membership. Meaning, all of its membership, not just some of its membership.

This is largely due to the election of some highly qualified, experienced and judicious representatives to replace those who were turfed. But it is also a result of the doctor understanding that the problem was really the doctor himself.

Expect to see some major policy shifts with much more openness and representative behavior in the coming weeks. The changes are well under way, and may not yet be noticeable, but they will be, soon.

Now is not the time to changes horses.

[Norwegianwood]

[quote="Johnny Mapleleaf
This is largely due to the election of some highly qualified, experienced and judicious representatives to replace those who were turfed.[/quote]


You mean to say the tide has turned back to "Seniority", because the now in place chair has little else on his adgenda, naver had and never will.

I call BS bigtime!!!!!

[Johnny Mapleleaf]

You mean to say the tide has turned back to "Seniority", because the now in place chair has little else on his adgenda, naver had and never will.

His agenda has nothing to do with seniority. The seniority issue is history. It has been over 137 months since the merger took place.

Regarding his workload, may I respectfully suggest that you walk a mile in his shoes. I would expect that his job is a lot like herding cats, but without any inherent authority whatsoever. Look it up in the Constitution. His authority is to call meetings and to run them. Beginning. End. He votes only in case of a tie and has no ability to make any substantive decisions himself. Yet his job is to marshal all of the efforts of the Committees and of the membership-elected members of the MEC to pull in the same direction on all matters related to the collective agreement and the interface with the employer. An impossible task, at the best of times, let alone in times where the employer is placing inordinate demands upon the union, and the union membership itself is divided on so many issues.

Put that scenario together with a T.A. that has been overwhelmingly rejected by the membership, giving him one of the biggest repair jobs in the history of the union, and you can begin to get a sense of what must actually be on his agenda.

[Norwegianwood]

Johnny...... "The seniority issue is history. It has been over 137 months since the merger took place."
Wow has it been that long!!

AND this individual and a few of his cronies still have their "Leopard spots" and we all know about those spots don't we.
The seniority issue, as you call it, will never die for this little click who hold themselves way above others.

[Johnny Mapleleaf]

The seniority issue, as you call it, will never die for this little click who hold themselves way above others.

You are missing the point. Seniority may be an undying issue for some, but it hasn't been on the radar of the MEC for some considerable period of time now.

The critical issue that the MEC will have to face this week is how to deal with the Tribunal decision coming as a result of the Federal Court referral on the Vilven-Kelly BFOR issue. The Tribunal stated that the decision would be released before the end of June. ACPA has used the "uncertainty" of the BFOR issue as a reason to deny its pilots the grievances that all of the other major unions at Air Canada have now filed on behalf of their members. Grievances that have resulted not only in temporary reinstatement of the other union members, but a general prohibition against Air Canada continuing to terminate employees based on age.

If the Tribunal supports its previous dismissal of Air Canada's and ACPA's BFOR argument, with complete reasons as directed by the Federal Court, where does that leave ACPA? What excuse will it have to continue to refuse to file any grievances? Or will it actually change modes, and face reality?

Also on the radar are the two pending decisions from the CIRB re the reconsideration of the previous dismissals of the DFR Complaints. Although very few CIRB decisions are reversed as a result of reconsideration, some are. What will be ACPA's response if its previously vaunted Board's "vindification" of its defence of mandatory retirement gets reversed? There will obviously be some puzzled looks on the faces around that table. "WTF?"

Also, with some new blood on the MEC, perhaps, just perhaps, someone will start asking some very pertinent questions about the union's continuous unwavering refusal to consider the strategic implication of its mandatory retirement policy, including the potential adverse consequences that are likely to result when, not if, it is forced to face the music.

These are serious issues that may or may not make it onto the otherwise full agenda of the existing MEC in the coming weeks.

[Norwegianwood]

JM, I sincerely hope you are right on all counts.......... NW

[lawndart]

There may or may not be a BFOR, that is the question that was referred back to the Tribunal by the Federal court with the note that, just because the Tribunal doesn't understand the evidence, doesn't mean that it can ignore it.

I would take a closer look at Capt. Duke's presentation regarding scheduling challenges if more than 20% of pilots are restricted (over 60) in regards to the ICAO over/under rule. Does putting everyone on reserve constitute an undue hardship in accommodating foks over 60? These are the answers we are all waiting for.

Hopefully we will have some answers soon, and be able to move forward in a positive direction with the new results.

[Understated]

I would take a closer look at Capt. Duke's presentation regarding scheduling challenges if more than 20% of pilots are restricted (over 60) in regards to the ICAO over/under rule. Does putting everyone on reserve constitute an undue hardship in accommodating foks over 60?

As I read the transcripts and the summaries of evidence provided by the Coalition to its members, in both the V-K hearing and in the Thwaites hearing, Air Canada attempted to use the “fog of war” methodology to obfuscate the evidence on BFOR.

First, all of Captain’s Duke’s evidence re the numbers was not “evidence” but “speculation.” He stated unequivocally that his assumptions were based on 100% of all pilots not only continuing employment beyond age 60, but also beyond age 65. The truth is, only a small portion of pilots (about 10%) have any desire to remain employed beyond age 60—most will retire as soon as they can get any pension without taking a penalty, which means age 60 for the vast majority, regardless of whether it is forced or not.

Second, to get the numbers on F/O’s over age 60 in his models, he simply added five years to the ages of all existing F/O’s on the position assignment lists (disregarding the fact that most of them would go left-seat to maximize their salary in their last five years before actually retiring).

Third, the model that he used to calculate the numbers misapplied the ICAO augmented pilot effect. His model assumed that if either the F/O or the Augment Pilot was over age 60, the pairing could not be crewed (a “both-and” logic, rather than the necessary “either-or” logic). Hence his model was totally flawed, and his numbers were entirely meaningless.

Finally, he admitted that nobody asked Captain Kelly if he would consider continued employment as a First Officer, notwithstanding the fact that the Over-Under Rule is applicable to pilots-in-command only. There are no ICAO restrictions on F/O’s. Hence, BFOR is not about continued employment, but about employment as pilot-in-command. So there is nothing related to mandatory retirement that comes under the auspices of BFOR, period. The BFOR argument is nothing more than a ruse to keep the litigation going and to confuse the Tribunal and the Court about the real issues.

There is one other “fog of war” approach that both Air Canada and ACPA attempted to use regarding BFOR. Both attempted to say that mandatory retirement at age 60 (as opposed to the ICAO restriction at age 60) is the BFOR. But in Canada there is no connection between age 60 and the job requirements of pilots, save for the ICAO restrictions on crew complements that are determined by pilots-in-command only. There are no maximum age restrictions on pilot licensing in Canada.

This argument then allowed them to talk about the need to “accommodate” pilots over age 60, which they argued would cause undue hardship. The need to accommodate is a compelling argument, because of its impact on the other employees. But absent a job requirement to trigger the BFOR, the need to accommodate does not enter into the BFOR analysis. Without the first step in the BFOR argument (a job requirement) you can’t get to the last step (accommodation). The issue of accommodation is therefore entirely moot, absent a job requirement for termination of employment at age 60.

Finally, in both the Vilven-Kelly hearing and in the Thwaites hearing, both Air Canada and ACPA argued that they could not accommodate the return to work or the continued employment of large numbers of pilots over age 60. That argument is based not on evidence, but on speculation, for the simple reason that the issue is not yet before the Tribunal. Until you get large numbers of pilots over age 60, there is no evidence—there is only speculation. Both the Vilven-Kelly hearing the Thwaites hearing contemplated issues related to remedy (i.e. reinstatement of pilots). The more receent BFOR cases are restricted to liability only, not remedy. Hence the argument in the present cases involves only the issue of accommodation of those specific pilots themselves, not hundreds of pilots over age 60.

The result of that differentiation is that in the cases currently before the Tribunal, Air Canada must prove that on the date of termination of each individual pilot it could not accommodate him alone over age 60, by reason of the ICAO crew complement restrictions. Given that there is only one F/O currently on the line who is over age 60 (Neil Kelly) it is facetious for Air Canada or ACPA to say that continuing the employment of any one specific over age 60 Captain would cause the airline undue hardship by reason of its inability to match that Captain with at least one crew member under age 60.

[vic777]

I would take a closer look at Capt. Duke's presentation regarding scheduling challenges if more than 20% of pilots are restricted (over 60) in regards to the ICAO over/under rule. Does putting everyone on reserve constitute an undue hardship in accommodating foks over 60? These are the answers we are all waiting for.

All that is required is to ask ICAO to drop their meaningless "over/under" rule. All Airlines and Governments should ask ICAO to drop their meaningless "over/under" rule. All Airlines and Governments should humbly ask ICAO to, "lead, follow or get out of the way". It's really a no-brainer.

[FADEC]

The over/under rule was never intended to be permanent; neither was 65 for PIC's. These were temporary measures till some countries got used to the new recommendations.

ICAO recommendations are just that; individual states do not have to accept them; many countries have not. Canada has no age; The US does not apply the over/under rule.

Captain Dukes presentationns were flawed by the classic error of deciding the answer then creating the question, rather than taking the question and researching the answer.

Same mistake made by ACPA who then went looking till they found a lawyer who would take their money to tell them what they wanted to hear. The other unions asked lawyers for an honest opinion and acted accordingly. Cheaper and smarter.