The Decibel - The railway labour dispute, explained

Episode Date: August 27, 2024

Labour negotiations between Canada’s two major railways – CN and CPKC – and the train workers’ union, Teamsters Canada Rail Conference, have been going on for months. Last week, they hit a wall and freight service shut down across the country. Less than 24 hours later, the federal government intervened, ordering workers back. But the dispute still hasn’t been resolved.Bruce Curran, associate professor in the faculty of law at the University of Manitoba, explains where things stand in the labour dispute, what it’s ultimately about, and how the federal government might have prevented it from happening in the first place.Questions? Comments? Ideas? Email us at [e-mail]

After days without trains running on Canada's two major railways, things are getting back on track. Negotiations had been ongoing for months between Teamsters Canada Rail Conference, which is the train workers' union, and the two railway companies, Canadian National Railway, CN, and Canadian Pacific, Kansas City, CPKC. Last week, those negotiations hit a wall and work stopped. And less than 24 hours later, the federal government intervened to get work started again. But the labor dispute that prompted the shutdown isn't over. Bruce Curran is an associate professor of employment and labor law

at the University of Manitoba. Today, he explains where things stand in the labor dispute, what it's ultimately about, and how the federal government might have prevented this from happening in the first place. I'm Mainika Raman-Wilms,

and this is The Decibel from The Globe and Mail. Bruce, thank you so much for being here today. Thank you for having me. I know things have been changing a lot in this situation over the past few days, so maybe you can just kind of catch us up. Where do things stand right now with this labor dispute? On Saturday, the Canadian Industrial Relations Board delivered a decision. And that decision that was at the request of the Minister of Labor, that decision basically has two critical components. So the decision by the Canadian Industrial Relations Board, which is basically just a labor board like any other jurisdiction here in Canada, but they have jurisdiction over things like railways and airlines. They basically said that this has to go to final binding many are starting their shifts effective kind of this morning.

And we're talking Monday morning here. Monday morning. So this is Monday morning. Things are kind of getting up and running again. Right. Yes. It's going to be a while before we get back to business fully as usual, in part because the railways have stopped taking orders or had stopped taking orders for goods that are either kind of dangerous or perishable so that they weren't in transit during. They stopped actually shipping those things, but they also stopped taking orders, period, pending this labor stoppage. And they didn't know how long that

was going to last. And so it's still been several days since this all happened. Work stops late, you know, I think it was midnight on Thursday, right? So yes, what kind of economic impact is this having on the country? Has this had on the country over the last few days? The short answer is, as you suggest, it's had a massive, massive impact. And one, quite frankly, that even though I think that there's been numerous mistakes on the federal government's part that they have to wear, I think once this happened, they had no choice but to try to respond in a certain way, because no government, regardless of its political stripes, could allow this to kind of go on for very long. And so there's way more rail transit than the listeners might expect.

And it amounts to about a billion dollars a day that gets moved by rail. And over 50% of goods that move in Canada are moved at least for part of their journey through rail. Most of our imports and exports travel for part of the journey through rail. It has major impact on certain groups in particular, certain customers that rely virtually exclusively on rail by necessity. And one of the major groups that has gotten quite a bit of press understandably recently are farmers and grain suppliers who actually up till now, rail has been the sole method for them to get their product to market. And this couldn't have come at a worse time for them because this is the precise time that they are harvesting and getting ready to ship. But also it was going to have a major impact on consumers, both in terms of availability and price. I mean, basically,

it's just an astounding economic impact. Yeah. So it's a really central part of how we get goods from one place to another in this country. Right. Exactly. So, Bruce, as you mentioned, there was a lot of pressure on the federal government to get something resolved here, because there's such a potential for huge economic impacts as a result of the stoppage. On Thursday, the federal government intervened in the dispute and asked the CIRB, this is the Canadian Industrial Relations Board, which you talked about a bit earlier, asked them to bring in binding arbitration. Can you explain that? What exactly does binding arbitration mean? At its essence, what it is, is where the parties cannot agree to a collective agreement, basically it goes to a neutral third party, i.e. the Canadian

Industrial Relations Board, to determine. It's not simply that they are facilitating the negotiations. They are actually, after receiving submissions, they will actually impose the terms of the collective agreement on both parties. And both parties really have to, regardless of whether they get what they want, they're going to have to live with that. But that's the idea of final binding arbitration. Now, the Teamsters Union has said that it plans to fight this decision in federal court. But Bruce, I'm wondering, how effective is this tactic to bring in binding arbitration? My argument is that in some respects, it's become an effective gambit for the federal government here in that it's resolved the immediate problem, which was that the economy was at a

virtual standstill, right? So in some respects, it has kind of worked. Now, it was by no means guaranteed that it would have, but it did. But I wish to be very clear about the listeners that my opinion is that this is at best a Band-Aid solution and is not going to solve the party's issues or problems. The main issue is really safety on the rails and in particular, kind of protecting workers from being forced to work while fatigued. Like that was the major issue in this work stoppage. And the arbitration is not going to deal particularly well with that. What final binding arbitration tends to deal with very well are where there are only very narrow issues that are in dispute. There are many, many issues in dispute for the party here. And it also deals best with when those issues are financial, because arbitrators don't really have any magic here. And what they basically tend to do is look at what the financial provisions are of other comparable collective agreements for workers

doing similar work in similar industries and trying to replicate those. And there really aren't effective comparators to deal with the kind of major and serious issues, particularly with respect to safety, where the parties are very, very far apart. We'll be back in a moment. So Bruce, you mentioned safety and fatigue as issue here. So let's talk about that. How are these playing out in this dispute?

Well, they are really, in some respects, two pushed beyond the limits of reasonable human endurance for those who are in safety sensitive positions and that they are going to, and history will back them up on this, they will be in the crosshairs in the event of any major catastrophic rail accident. And the fatigue can lead to the major catastrophic rail accident. And the fatigue can lead to the major catastrophic rail accidents. So we're talking literally like people driving the train being overtired and fatigued and therefore maybe not as reactive. Correct. And the science backs them up on this

and numerous kind of inquiries and investigations on past Canadian rail disasters wholly back them up on that. And this all goes back to a individual in the 2010s named Hunter Harrison, who was a longtime American railway executive who basically became at different times the executive of both CN and CP. And he implemented something that was known as precision scheduled railroading. It's a lean system of management where the railways basically work with as few kind of crew and as few workers as possible. And this is thought to basically drive inefficiencies out of the system. And the railways are under pressure because they are now kind of publicly traded companies to basically focus on short term profits. squeezed much harder and have pressure, severe pressure being put on them to actually work

kind of longer hours where fatigue may be an issue. Can you help us understand this, Bruce? Like, I guess, what are working conditions like right now for railway workers? How do these actually play out? Basically, the workers are being required with very short notice to be starting work and being away from kind of home for many days at a time, working very, very long hours with few breaks, few rest periods that oftentimes the railways, they are not factoring in the, in some cases, substantial because these are remote areas, travel time that the workers have to engage in to go to railway accommodations for these individuals. And so one of the issues

for railway workers and one of the things that leads to fatigue is the unpredictable shift schedules and the fact that they are oftentimes starting their shifts kind of late at night. And so even though sometimes they're not actually working for, you know, like 17 hours straight, they are up for long periods of time. And that this has a severe impact on their cognitive functioning and decision making akin to them being basically drunk drivers in essence. Yeah, it's hard to know like how to get adequate sleep if your schedule is all over the place, right? Right, which is a problem for both the workers, but also for the general public because fatigue can and has led to catastrophic rail disasters

in the past for Canada. Can you give us some examples of that? Like instances when fatigue has actually played this role in railway safety? Since 1990, there has been more than 30 major rail disasters in Canada, and there have been investigations or inquiries of these. And in virtually all of them, fatigue has been pointed to as a major contributing factor. Now, again, not the only factor, but a major contributing factor. So we can start in kind of modern times with a real disaster that happened in Hinton, Alberta. And in February of 1986, 23 people were killed in a collision between a Canadian National Railway freight train and a Via Rail passenger train. And there was a commission of inquiry into this by a justice, and he concluded that the CN train crew ignored signals to stop and failed to follow established

railway operating rules. And he also said that the crew demonstrated a lack of alertness and was probably experiencing chronic fatigue. Another more recent example is the Lac-Megantic disaster. This happened in July of 2013 and a railway train carrying 72 train cars loaded with volatile shale oil derailed and exploded in Lac-Megantic. And it killed 47 people and orphaned 26 children and spilled a record 6 million liters of oil and incinerated the town center. It was the worst rail disaster in more than a century. Yeah, I think a lot of us remember that, right? That was only a decade ago. Yeah. So now there's never been a clear or good answer into exactly all of the precise causes. The substantial evidence points to fatigue also being a major factor in that. So, for example, the engineer

who was primarily responsible because it was him who was alleged to have improperly applied the brake when he left the train to rest, He had been awake for more than 17 hours. And the investigation suggests that there may have been at least a slight degradation of his cognitive performance. And so the listeners understand this did not involve either CP or CN. It involved a smaller rail company. This was MMA. This was Montreal, Maine and Atlantic,

I believe. Exactly. Yep. But they had a record where they were up on the radar screen of the federal regulators for not having a culture of safety. And this was confirmed afterwards. So, you know, all of this suggests the importance of, you know, effectively managing worker fatigue for basically, yes, for the workers' sake, but also for public safety's sake as well. Yeah. And you touched on this a little bit, Bruce, but let me ask you directly here. What are the regulations now that the federal government has in place to deal with fatigue? So most recently in 2020, the federal government implemented what is called the duty and rest period rules for operating employees. And this basically sets out in proof relative to what was there before rules around how long employees should be asked to work for any given shift and what rest periods

they should have. So that is obviously a step in the right direction. The rules only apply to a certain subset of employees, right? So, for example, not covered by these would be things like managers who completed their shift and then adopted emergency roles, you know, director of rail traffic control, which should be a massive concern because they play a critical role in the safety of the railway. They're not covered by these things. Flag people are not covered by these. And employees called maintenance of way workers are not covered. What happens if a company doesn't abide by these rules or these regulations? The short answer is, I mean, not as much as you would expect, right? So typically what regulators

try to do is a degree of moral suasion where the company then jumps up on the radar screen and they will supposedly do increased inspections. But there has also been a limited resourcing of the federal regulators. And for example, in the Lac-Megantic case, there were numerous examples of concerns that were being raised by both regulators that have these this input into things. And yet the company was not effectively, you know, followed up with that. You know, the rules were oftentimes not enforced on their part. Yeah. Bruce, just in our last few minutes here, can you kind of connect these ideas that we've talked about with safety back to the current labor dispute? Like what exactly are the parties

debating in these negotiations when it comes to safety and fatigue? Well, it's tough to know in some respects 100% because the parties are kind of taking positions publicly and it's difficult to find out what actually is 100% going on behind the scenes. But on the railways part, they're claiming, listen, we are adhering now to the letter of the recent regulations. The workers, for their part, are claiming that in the context of the negotiations, that the railway companies are requesting major safety-related concessions from them, and that this is going to lead to, sooner or later, a disaster that will negatively impact both the workers and the public safety and the railways themselves. And one of the things that's a bit interesting is that the federal government is proposing to bring in a significantly more comprehensive set of safety regulations for railway workers and safety sensitive positions.

But this has been an extremely slow process. This is also, I think, implicitly an acknowledgement on the federal government's part that the current rules are inadequate. And those rules are a little bit more systemic or systematic about managing fatigue for workers doing kind of safety sensitive things. And we should say that the two companies in these negotiations, CN and CPKC, say that the offers they're proposing wouldn't compromise the safety of workers. But Bruce, it does sound like a lot of this comes down to government regulations. So if the federal government had updated regulations, would that make a significant difference here? Yes. I mean, in my opinion, had these been released and implemented in a timely fashion, that we would not be in the position that we are today. And really, it's, I think, unfair to expect the workers were thrust into, in my opinion,

negotiating the terms of their own safety. And it's unfair to put them in that position that had there been these clear rules, the parties would not have had to negotiate against it, and that we would have avoided the work stoppage that we saw. Bruce, thank you so much for taking the time to be here today. Thanks very much for your interest in the story. That's it for today. I'm Mainika Raman-Wilms.

Our producers are Madeline White, Rachel Levy-McLaughlin, and Michal Stein. David Crosby edits the show. Adrienne Chung is our senior producer and Matt Frainer is our managing editor. Thanks so much for listening and I'll talk to you tomorrow.