AH 539
IN THE MATTER OF AN ARBITRATION
BETWEEN:
BC RAIL
(hereinafter referred to as the “Railway”)
AND:
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL #6
(hereinafter referred to as the “Union”)
(Article 27 Arbitration)
Arbitrator: H. Allan Hope, Q.C.
Counsel for the Employer: Duncan MacPhail and Tim McMillan
Counsel for the Union: James D. Fetterly and
Rick Aspinall
Place of Hearing: Prince George, B.C.
Date of Hearing: September 28, 2001
A W A R D
I – Dispute
On June 4, 2001 the Union submitted an issue for arbitration. It was particularized to the Employer in a letter dated May 28, 2001 which reads in substance as follows:
It is the union’s position that the company is in violation of Article 27.2. This has been brought to the company’s attention several times. In fact, the union has requested, but not yet received, a list of temporary management employees. Therefore, the union is asking that Article 27.2 be complied with, i.e. that employees who hold temporary management positions that have exceeded one (1) year must return to the bargaining unit. (emphasis added)
The submission to arbitration took the form of a letter in which the Union advised this Arbitrator that “we will to proceed to arbitration regarding the above-noted [Article 27.2] subject matter”. The provision in question reads as follows:
27.2 Temporary (Relief) Transfers to Management Employee Positions
An employee accepting a transfer to a temporary or relief Management Employees’ position of a duration of less than one year will be retained on the seniority lists provided the employee maintains the uniform monthly dues to the Union. Failure to pay dues will result in immediate removal of the employee’s name from all seniority lists. Upon completion of the Management Employees’ assignment the employee will return to his former regular assignment or, in the event the former assignment was abolished or completed, exercise his seniority to displace a junior employee. (emphasis added)
On July 16, 2001, the Union advised the Railway that “the application to arbitration … is now null and void as the Union considers that course of action to be complete waste of time and resources”. In effect, the Union indicated its intention to withdraw the grievance. Coincidentally, the Union put the Railway on notice that 12 of its members who had taken advantage of the Article 27.2 should be removed the Union seniority list “should they continue to compromise their seniority status”.
The Union then proposed a “90 calendar day grace period effective on today’s date”. That period of grace is due to expire on October 15, 2001, at which time the Union position is that bargaining unit members affected by its interpretation who have not returned to bargaining unit positions would be struck off the seniority list and would no longer be recognized as having seniority rights under the collective agreement.
The position of the Railway was that the dispute should proceed to arbitration. The effect of the withdrawal of the grievance, said the Railway, would be acceptance of the interpretation and application reflected in the current practice. That position was based on the submission that a party is entitled to withdraw a grievance but must do so unconditionally unless the other party agrees or a conditional withdrawal is ordered by an arbitrator.
The right of a party to withdraw a grievance and the significance of a withdrawal were discussed in Re Great Atlantic & Pacific Co. of Canada Ltd. and Retail, Wholesale & Department Store Union, Local 414, (1992) 22 L.A.C. (4th) 72 (Picher). On p. 79 Arbitrator Picher wrote:
As with any party litigant, a union progressing a grievance at arbitration retains the right to abandon or withdraw its grievance at any time. It may do so, however, subject to the grievance being accordingly dismissed by the arbitrator. As both parties must well appreciate, the dismissal of a grievance is not without consequence to the parties. Specifically, it is tantamount to an adjudication on the merits of the allegations made in the grievance, and an arbitral finding that they are not established and are without merit. (emphasis added)
As stated, this dispute was submitted to arbitration by the Union by letter to this Arbitrator dated June 4, 2001 but, before dates were fixed for the hearing, the Union advised that it considered the grievance to be “null and void”. In these proceedings the Railway submitted that the arbitration should be set down for expedited hearing and if the Union wishes to withdraw it, they must do so in acceptance of the consequences of that decision, being a concession that the grievance is without merit.
The position of the Union is that if the grievance is to be set down, it should proceed routinely and the Railway should not be permitted to “step to the head of the line” in the administration of grievances simply because it wants the issue adjudicated ahead of other outstanding disputes. The response of the Railway is that while the Union continues to insist upon its October 15, 2001 deadline, the hearing should be expedited so as employees affected will know their rights prior to the deadline.
II – Decision
I agree with the Union that the grievance should be processed to arbitration in the usual routine existing between the parties. However, I also agree with the Railway that the October 15 deadline the Union seeks impose on its members must be placed on hold until the grievance is heard and adjudicated or until the Union makes application to reinstate the deadline in these proceedings and the Railway has an opportunity to resist that application.
In the interim, the parties are invited and urged to review the application of the provision to determine whether they can reach agreement on its application in particular circumstances. On that basis, the arbitration is adjourned sine die pending an application by either of the parties to resume the proceedings. The proceedings can be resumed upon notice of seven business days to the other party and this Arbitrator.