AD HOC – 468
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
RE: DANIEL CHARLEBOIS – LETTER DATED APRIL 21, 1998
Sole Arbitrator: Michel G. Picher
Appearing For The Brotherhood:
D. J. Wray – Counsel
John E. Platt – International Representative
Luc Couture – System General Chairman
K. W. Kearns – System General Chairman
Daniel Charlebois – Grievor
Appearing For The Company:
Susan Blackmore – Labour Relations Associate – Pacific Division
Roger K. MacDougall – Counsel
Sylvie Michaud – Business Partner – Human Resources – Pacific Division
Fran Metcalfe – Engineering Coordinator – Engineering – Pacific Division
Ron Nichol – Manager, S&C
A hearing in this matter was held in Calgary on Monday, 8 November 1999.
By this grievance the Brotherhood alleges that the Company failed to properly implement the terms of a settlement reached between the parties on December 24, 1997. The Brotherhood’s Dispute and Ex Parte Statement of Issue reflects the objection which it takes in these proceedings. They read as follows:
The instructions to D.G. Charlebois under letter of April 21, 1998 to report to the S&C Wiring Shop in Edmonton.
EX PARTE STATEMENT OF ISSUE:
The Union contends that the grievor was dealt with unfairly and contrary to the agreement of December 24, 1997 when he was assigned to the S&C Wiring Shop in Edmonton; the Union contends that the assignment of the grievor was a matter for discussion and agreement as between the Company, the Union and the grievor and that this did not take place. The Union also contends that the grievor was assigned to a position that causes his extreme pain and creates an undue financial hardship.
The Company contends that it acted in compliance with the agreement of December 24, 1997.
The Company raises a preliminary objection. It submits that the grievance is not arbitrable, as the Brotherhood claims that the grievor has been “dealt with unfairly”. Citing the decision of the Arbitrator in CROA 2187, a decision effectively upheld by the Supreme Court of Canada on October 16, 1997, it maintains that there is no jurisdiction for the Arbitrator to deal with a complaint that an employee has been unfairly or unjustly dealt with.
The Arbitrator takes no issue with the law and principles asserted by the Company. If the sole basis for the grievance before me was that Mr. Charlebois feels he has been dealt with unfairly without reference to any substantive contractual right, that would be the end of the matter and it would not be arbitrable. That is not, however, the essence of the grievance. The gist of the grievance is found in a letter dated April 30, 1998, addressed to the Company’s Manager, Labour Relations, Mr. J. Torchia from System General Chairman J. Senenko. While that letter does assert that the grievor has been unjustly dealt with, it is clear on its face and from its content that it does more. The penultimate paragraph is, in my view, indicative of the true nature of the dispute. The letter recounts that the grievor was the subject of a settlement whereby, in accordance with clause 5, he was to be returned to active duty with restrictions on the understanding that “the Company, the Union and Mr. Charlebois will meet to determine how and where he will re-enter the work force.”, an assertion restated in the Brotherhood’s ex parte statement of issue. The Brotherhood alleges that, without consulting with the Brotherhood, and apparently based on its view that the initial situation would be temporary, the Company assigned Mr. Charlebois to work in the S&C Wiring Shop in Edmonton, in a position which apparently required him to spend lengthy periods of time in a seated position, and equally lengthy periods of time uninterrupted in a standing position. The letter from Mr. Senenko registers the Brotherhood’s concern that that assignment is inconsistent with his physical limitations, and more fundamentally that it was given to him without any consultation or discussion with the Brotherhood, in a manner inconsistent with the letter of settlement reached between the parties on December 24, 1997. In that regard the penultimate paragraph of Mr. Senenko’s letter reads as follows:
This leads me to the conclusion that the Company does not intend to honour the commitments made in the reinstatement agreement …
Based on the foregoing documentation, I am satisfied that the preliminary objection of the Company cannot succeed. What is at issue in these proceedings is not solely a claim of an employee having been unjustly dealt with. The real subject of the grievance is the alleged non-compliance of the Company with the substantive provisions of clause 5 of the terms of settlement of December 24, 1997, a matter which is properly arbitrable.
When regard is had to the facts, the Arbitrator is not persuaded that the grievance can succeed. The record before me appears to reflect the decision of the Company to place Mr. Charlebois temporarily in the S&C Wiring Shop, the location where he last held a permanent position, as an interim measure pending his CROR rules qualifications which would be necessary before he could work unsupervised in the field. Most significantly, it would appear that at or about the time of that assignment there were discussions between the Company and the Brotherhood with respect to possible alternative positions for Mr. Charlebois, including work at Jasper, and work on an Edmonton based regional gang. It is clear that the Company and the Brotherhood did not agree on the issue of his assignment, but the language of clause 5 of the reinstatement contract does not, on its face, stipulate the necessity of agreement among the parties. What the clause does reflect is the parties’ anticipation that they would discuss “how and where he will re-enter the workforce”. To suggest that the power of decision is somehow vested in Mr. Charlebois or in his bargaining agent, a position not in fact advanced by the Brotherhood, would plainly be outside the ambit of the language agreed.
On the whole, I am satisfied that there was reasonably timely communication between the parties with respect to the grievor’s assignment to the wiring shop, and that the decision of the Company to make that assignment on a temporary basis, with the apparent understanding that Mr. Charlebois could take such breaks as he might require from standing or sitting positions, and indeed make use of a cot which was provided to him for that purpose, does not reflect a violation of the spirit or of the letter of clause 5 of the reinstatement agreement of December 24, 1997.
For these reasons the grievance must be dismissed.
Dated at Toronto, November 15, 1999
(signed) MICHEL G. PICHER