BRITISH COLUMBIA LABOUR RELATIONS BOARD B.C. RAIL LTD. UNITED TRANSPORTATION UNION, LOCALS 1778 AND Margaret Arthur, Vice-Chair and Registrar

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1 BCLRB No. B410/94 BRITISH COLUMBIA LABOUR RELATIONS BOARD B.C. RAIL LTD. (the "Employer") -and- UNITED TRANSPORTATION UNION, LOCALS 1778 AND 1923 (the "Union") PANEL: Margaret Arthur, Vice-Chair and Registrar COUNSEL:David K. Pidgeon, for the Union Duncan M. MacPhail, for the Employer CASE NO(S).: DATE OF DECISION: October 14, 1994

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3 - 3 - BCLRB No. B410/94 DECISION OF THE BOARD I. NATURE OF APPLICATION On August 12, 1994 the Union applied under Section 99 of the Labour Relations Code for a review of Arbitrator Ready's Award dated August 5, On October 4, 1994 the Union applied for a stay of Arbitrator Ready's Award pending the Board's adjudication of its Section 99 review application. For the reasons that follow I am dismissing the stay application on the basis that it is untimely. II. BACKGROUND The Union applied under Section 99 of the Code for a review of Arbitrator Ready's Award on August 12, Submissions have been exchanged between the parties and this application for a review of the arbitration award has been assigned to a panel for adjudication. Counsel for the Union was recently advised that the Employer is implementing the interest award and subsequently submitted an application for a stay on October 4, The Employer is offering buyouts to employees on October 7, 1994 that will be open for thirty days; the Employer will proceed with a change of card with a new bidding process effective November 10, 1994 and the Employer intends to implement cabooseless conductor-only trains effective December 1, III. POSITIONS OF THE PARTIES The Union contends that it meets the test for a stay as outlined in The Board of School Trustees of School District No. 44 (North Vancouver), IRC No. C133/92. It submits that its ability to advance its appeal will be irremediably prejudiced if a stay is not granted. The buyout election expires on November 7, 1994 and there may be a complete change of card by November 10, 1994 which means it would be unrealistic to "unring the bell" even if the Union is successful in its appeal. The Employer submits that the stay application should be dismissed on the basis that it is

4 - 4 - BCLRB No. B410/94 untimely and that it does not meet the tests for a stay. stay: On the issue of timeliness the Employer gives the following reasons for dismissing the (a) The filing of a review application does not by itself result in a stay of an arbitrator's award. Therefore, when the Union did not apply for a stay with its Section 99 application the Employer was entitled to assume no such application was forthcoming. (b) The Board requires under Labour Relations Rule 28 that Section 99 applications be filed in fifteen (15) calendar days. (c) The Board's policy as outlined in Brinco Coal Mining Corporation, BCLRB No. B74/93, (Leave for Reconsideration of BCLRB No. B6/93) (1994), 20 CLRBR (2d) 44, is to enforce the time limits and any request for extension of time must be made within the fifteen calendar days. (d) The Employer began the pre-implementation process as soon as the Award was published and the Union knew, or ought reasonably to have known that the Employer was implementing the Award. (e) The Union fails to advance any extraordinary circumstances for filing the stay application outside of the time limits or why the Board should exercise its discretion in this case. (f) The Employer will be prejudiced if the Board accepts this application notwithstanding its late filing. The Employer's implementation efforts will be in jeopardy if the Board accepts the stay application. On the merits of the stay, the Employer contends that the balance of convenience favours the Employer and the Union has not made out a strong prima facie case in its Section 99 review application. While the Employer made a detailed submission on the merits I will only reiterate

5 - 5 - BCLRB No. B410/94 its position on the buyout and the change of card. The Employer states that the buy-out plan will be unchanged regardless of the outcome of the appeal as the Union has never opposed it. Further, the plan is not the subject of the Union's appeal. Neither is the buy-out plan limited to a thirty-day period. The Employer indicates the Union may be referring to the thirty-day early signing bonus, i.e. those applying within the first thirty days will receive an additional bonus payment. This bonus is subject to discussion and negotiation and failing an agreement between the parties, Arbitrator Ready has retained jurisdiction to resolve the issue. To date the Union has refused to discuss this matter with the Employer. On the change of card issue, the Employer submits that on the basis of the Union's appeal, its right to move to cabooseless conductor-only operations is now beyond challenge. The Employer also states that if the Union's appeal is successful it would be a simple matter to conduct another change of card. IV. ANALYSIS AND DECISION The Board will issue a stay in two circumstances: where a party applies for a stay of a Board decision pending a leave application under Section 141 of the Code, and where a party applies for a stay of an arbitration award pending a review application under Section 99 of the Code. The tests for a stay are the same for both types of application: The Board of School Trustees of School District No. 37 (Delta), IRC No. C5/93. An applicant must present a serious case for reconsideration and the applicant must demonstrate that its ability to advance its application for reconsideration will be irremediably prejudiced if the stay is not granted. The Board has had a longstanding policy requiring parties to comply with an original panel's decision pending the adjudication of reconsideration applications. This was expressly stated in Brinco, supra. That decision also went on to state that "a party wishing to avoid immediate compliance must seek and obtain a stay of proceedings in accordance with established jurisprudence: Burns International Security Services Ltd., BCLRB No. 40/86, (1986) 12 CLRBR

6 - 6 - BCLRB No. B410/94 (NS) 129; Board of School Trustees of School District No. 44 (North Vancouver), IRC No. C133/92." This policy has also been applied to stays of arbitration awards. A party must therefore apply for a stay within the fifteen-day calendar time limit. A party failing to do so can expect that the decision or award will be implemented and/or complied with. In the case before me, the Union applied under Section 99 of the Code on August 12, 1994 but did not apply for a stay until October 4, The Union knew or ought to have known that the Employer was proceeding to implement the arbitration award. The Union did not provide any extraordinary circumstances why the stay application was not made at the same time as its Section 99 application. Neither did the Union apply for an extension of time to submit a stay application. Because the Union did not make a stay application the Employer was entitled to rely on the results of the arbitration award and begin implementation. I am not prepared to exercise my discretion and intervene in that process. The application for a stay is dismissed. LABOUR RELATIONS BOARD MARGARET ARTHUR VICE-CHAIR AND REGISTRAR