BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

K. R. Peel – Assistant Regional Counsel, Toronto

A. E. Heft – Manager, Labour Relations, Toronto

R. Bateman – Human Resources Officer, Toronto

B. Russell – Facility Maintenance Engineer - N.O.D. MacMillan Yard

C. Morgan – Labour Relations Officer, Toronto

And on behalf of the Union:

Francois Paroyan – Counsel

John Platt – International Representative

Kevin Grivney – Local Representative

A. G. Cunningham – System General Chairman

Fred Gillespie – Grievor

A hearing in this matter was held in Toronto on Tuesday, 15 February 1994 and in Montreal on Monday, 7 March 1994.

The purpose of this interim award is to deal with a preliminary issue with respect to a dispute between the parties regarding the scope of the grievance. The grievance concerns the discharge of Leading Signal Maintainer F. Gillespie for alleged misappropriation of company property. The dispute and statement of issue, signed jointly by the parties and filed with the Arbitrator, reads as follows:

The evidence before the Arbitrator establishes, beyond controversy, that in the process leading up to the drafting and signing of the joint statement of issue there were several conversations between Mr. Platt, of the Brotherhood, and Mr. Bateman, of the Company. Mr. Bateman's evidence, not challenged by that of Mr. Platt, reveals that when he received the draft joint statement of issue from Mr. Platt he telephoned him to inquire as to whether the Brotherhood would be challenging the allegation of theft made by the Company. Mr. Plat replied that it would not, indicating that the sole issue to be dealt with would be mitigating factors and the appropriate measure of penalty.

At the hearing the Brotherhood sought to advance a different position, indicating that it wished to contest fully the merits of the allegation of misappropriation as against Mr. Gillespie, save for certain specified items. The Company objects to the position taken by the Brotherhood at the hearing, asserting that the Brotherhood was seeking to depart from the agreed terms of the joint statement of issue, and thereby to expand the nature of the grievance. Counsel for the Brotherhood submits that in fact the language of the joint statement of issue, as originally framed, and particularly the statement that the discipline assessed is unwarranted, is broad enough to allow the Brotherhood to now take the position which it does.

The Arbitrator has substantial difficulty with the position advanced by the Brotherhood.

Article 11 of the collective agreement governs the grievance and arbitration process. In provides, in part, as follows:

It is not disputed that the parties have, for many years, followed the established practice in the railway industry of attempting to define the scope of their dispute through the format of a written joint statement of issue. For a time, prior to 1989, the parties resorted to the Canadian Railway Office of Arbitration for the final resolution of their grievances. In that forum they were subject to rules which limited the jurisdiction of the Arbitrator to the issues raised in the joint statement of issue. Although they withdrew from the office in 1989, they continued to maintain the requirement for the joint statement within the terms of their collective agreement.

The first issue at hand is whether the parties have intended, by the terms of article 1 1.1 9 of the collective agreement, to foreclose the possibility of either side introducing a new issue during the course of the arbitration hearing, when they have executed an agreed statement of issue.

A similar issue arose in a grievance between Canadian Pacific Limited and the instant Union, then called the Canadian Signal and Communications Union, in an unreported award dated October 29, 1990, issued by this Arbitrator, and referred to as AD HOC Case 281. In the grievance there under consideration the Brotherhood sought to add a separate allegation in respect of the violation of an article of the collective agreement not raised in the joint statement of issue. In rejecting the Brotherhood's position the Arbitrator reasoned, in part, as follows, at pp. 5-6 of the award:

In AD HOC 281 the Arbitrator relied, in part, on the provisions of article 13.7 of the collective agreement which prohibited the Arbitrator from adding to, subtracting from, modifying, rescinding or disregarding and provision of the collective agreement. He reasoned that by adopting the procedure whereby a joint statement of issue is prepared, the parties intended to bind themselves to the issues so described. The current collective agreement was renewed without any material change to the language of what is now article 11.19. It should therefore be presumed, absent evidence to the contrary, that the parties accepted the interpretation rendered in Ad Hoc Case 281 as reflecting their intention for the current agreement.

In my view the conclusion reached in the earlier case attaches in the case at hand. Article 1 1.23 of the current collective agreement reads as follows:

In my view it would be to relieve against the intention of article 11.19 to effectively allow the Brotherhood or the Company to obtain an amendment of the joint statement of issue at the hearing, by direction of the Arbitrator. The collective agreement plainly does not contemplate that possibility, and in that respect is consistent with the general rules and practice within the industry, and the rules governing the Canadian Railway Office of Arbitration. Moreover, the fact that the parties have stated a preference to have the incumbent arbitrator of the Canadian Railway Office of Arbitration hear the grievances under their collective agreement is further evidence to suggest that the parties intended to maintain established industry practice within their own grievance and arbitration procedure. The purpose underlying that approach need not be elaborated. It is in the interest of both parties to come to the arbitration hearing with a clear, well-defined understanding of the scope of the dispute and issues which will be the subject of the hearing.

In the case at hand, it is common ground that the Brotherhood, through Mr. Platt, communicated unequivocally with the Company that it would not dispute the allegation of misappropriation of company property made against Mr. Gillespie. It did so in explanation of the language of the joint statement of issue, which the Union drafted. The comment was as general as it was clear, and there was no suggestion in Mr. Platt's statement to Mr. Bateman to the effect that the misappropriation of certain items would be admitted, while others would not. In the result, the Arbitrator is satisfied that the position of the Company must be upheld. The Brotherhood knowingly represented to the Company that no issue would be taken in respect of the allegation of the misappropriation of Company property by the grievor, and the joint statement of issue was executed by both parties on that understanding. For the purposes of this grievance, therefore, all items found to have been in the possession of Mr. Gillespie must be taken to have been misappropriated by him.

For the purposes of clarity, however, the foregoing conclusion would not preclude evidence being adduced by the Brotherhood to explain the circumstances of the possession of any item, or raise any factors which may have mitigating impact in the overall assessment of the discipline which is appropriate in the circumstances. The Brotherhood cannot, however, in the case at the hand take the position which it now seeks to take, namely to put the employer to the strict proof of all elements of misappropriation. It waived that position in its communication with the Company in respect of the meaning of the joint statement of issue, and cannot now resile from that position.

The objection taken by the Company is therefore sustained. The matter shall be remitted to the parties for the continuation of the hearing.

Dated at Toronto, this 14th day of March, 1994