AD HOC 553: THOMAS & AHLBORN: CLAIM REMEDY

AWARD

This grievance is brought under the remedy provisions of article 85 and Addendum 123 of the collective agreement. The scope and nature of the dispute is reflected in the ex parte statement filed by the Union at the hearing, which reads as follows:

DISPUTE:

Violation of Article 12 of Agreement 4.16. Implementation of an appropriate Remedy consistent with the provisions of article 85, Addendum 123 of Agreement 4.16.

EX PARTE STATEMENT OF ISSUE:

On October 1st, 2003 the train crew of 542 (R. Thomas – A. Ahlborn), a Toronto South road switcher assignment was instructed to switch out the Argo Lumber plant which is located on the Newmarket Subdivision, wholly within the established jurisdictional limits of the Toronto North terminal. This contrary to the provisions of article 12 of agreement 4.16.

It is the Union’s position the Company violated the reasonable intent of article 12 and, as a result, requested that an appropriate remedy be applied.

The Company declined the Union’s request.

For the Union:

(sgd.) R. A. Beatty

UTU General Chairperson

The facts giving rise to this grievance are not in dispute. As a general rule assignments which can be described as “Toronto South assignments” perform work generally within the various yards of the Toronto terminal, based in MacMillan Yard. “Toronto North assignments”, also based in MacMillan Yard, handle road and road switcher assignments northward from Toronto, for example between Toronto and North Parry. It does not appear disputed that Toronto North assignments commonly operate on the Newmarket Subdivision.

One of the Toronto North assignments, train 545, works some three days per week in the north end of MacMillan Yard. On Monday, September 29, 2003, it was assigned to proceed to the Argo Lumber Plant, north of MacMillan Yard, to perform certain switching. By reason of a spiked track, train 545 was unable to enter the industrial yard and do the work in question. Some two days later, on Wednesday, October 1, 2003, Argo Lumber advised the Company that it had an urgent need to unload lumber and needed to have a rail car spotted. In the circumstances the Company sent a Toronto South assignment, train 542, normally utilized in the southern part of MacMillan Yard, to the customer’s location to perform the necessary move.

The Union alleges that the work so assigned by the Company was in violation of article 12.3 of the collective agreement which reads as follows:

12.3 Employees operating in Road Switcher Service shall not run into other terminals or do work on territory under jurisdictional control of another terminal.

Note: However, it is understood that there may be rare and extenuating circumstances where it may be required to operate in another terminal to meet immediate customer requirements.

The position of the Union is that North Toronto and South Toronto are two separate terminals and that train 542 was improperly dispatched from South Toronto onto territory normally serviced by a North Toronto road switcher in a manner contrary to the intent of article 12.3. In essence, the Union’s position is that that the Argo Lumber Yard was “on territory under jurisdictional control of another terminal”, meaning that it was under the jurisdictional control of what the Union terms the North Toronto Terminal.

The first position of the Company is that there is no “North Toronto Terminal” or “South Toronto Terminal” as the Union asserts, but merely two separate designations of North Toronto and South Toronto for the purposes of seniority and the assignment of work. Alternatively it submits that if they do constitute separate terminals, the situation which arose on October 1, 2003 constituted an urgency which falls within the words “rare and extenuating circumstances” which would justify the exception of the Note to article 12.3 in the circumstances of the case at hand.

The Union raised a preliminary position with respect to what it maintains is a settlement of the grievance in its favour. Relatively extensive evidence was called on this issue, which the Arbitrator will deal with in an abbreviated fashion.

The evidence establishes that a number of grievances had been filed by the Union under the provisions of article 85 and addendum 123 of the collective agreement, generally referred to as the “remedy provisions”. In light of the scope of the issues the parties met in Toronto on January 5 and 6, 2004, to discuss possible resolution of certain of the matters in dispute, including the instant grievance. The position of the Union, advanced through the evidence of General Chairperson Rex Beatty, is that when he and Mr. Barry Hogan of the Company met, he indicated to Mr. Hogan, after Mr. Hogan had made what appeared to him to be admissions of having violated the collective agreement, that the meeting was being conducted on a “with prejudice basis”. According to his recollection of the meeting, notwithstanding that comment Mr. Hogan proceeded to agree that the Company had violated the collective agreement in each case grieved. The Union therefore maintains that at the conclusion of the discussions on those two days virtually all issues were settled.

It appears that Mr. Beatty subsequently expressed his understanding of what he viewed as the settlements in an extensive letter to Mr. Hogan dated January 8, 2004. With respect to the article 12 issue that letter states in part:

With respect to this matter it was clearly understood and agreed that the Union’s position of argument as to the reasonable intent of application of Article 12 was and is correct. Such understanding in agreement was resolved with prejudice.

The letter goes on to confirm other aspects of the alleged understanding, including what Mr. Beatty characterizes as an agreement to compensate the employees forced to perform the work in violation of the collective agreement at the rate of 100 miles for each violation, with a Company notice to be issued to all employees stating the reasonable intent of article 12. In essence, the Union asserts that the merits of the grievance were fully settled between Mr. Beatty and Mr. Hogan at the meeting of January 5 and 6, 2004, and that the position of the Union should therefore be sustained on that basis alone.

The Company denies that there was any agreement whatsoever. Mr. Hogan’s testimony disputes any recollection that the discussions were agreed to be on “with prejudice” basis. By his account what when on was a “free-wheeling” discussion, generally aimed at exploring possible grounds of settlement, in keeping with what Mr. Hogan always viewed as “without prejudice” settlement discussions.

The Arbitrator has considerable difficulty, in light of the totality of the evidence, sustaining the position of the Union that the issue in this grievance was conclusively settled between Mr. Beatty and Mr. Hogan. In approaching this question the Arbitrator is persuaded by the analysis of the factors to be considered as reflected in the decision of Arbitrator Luborsky in Toronto (City) and Toronto Civic Employees Union, Local 416 (Lewis Grievance) [2002] O.L.A.A. No. 531. In that award, after a review of certain precedent cases, the arbitrator commented as follows:

These cases emphasize that verbal agreements to settle grievances are as binding upon parties as written one; however, they also indicate that elements of a clear meeting of the minds on all of the essential terms of an agreement must be found, and that the test is an objective one. Thus, in answering the central question of whether a settlement existed in the instant case, I must have regard to classic contract principles; that is, was there a clear offer and unconditional acceptance of an agreement where all fundamental contract terms were agreed upon, leaving nothing more to negotiate? … [T]he standard required of the [relying party] to prove the existence of a settlement agreement ought to be a high one, based on clear and cogent evidence …

In the case at hand it is difficult to conclude, even by Mr. Beatty’s account, that what was agreed to constituted an unconditional and final settlement. That appears reflected in the letter of Mr. Beatty of January 8, 2004 which reads, in part, as follows:

It was agreed that the noted grievances would remain pending to be heard by the Arbitrator on January 28th, 2004, as scheduled, and would only be withdrawn upon the Union’s satisfaction that the agreed to resolutions, agreements and/or understandings were clearly reflected in final letters of settlement. To this extent the Company has agreed to draft such letters of settlement for Union concurrence and approval.

Clearly no letters of settlement were ever drafted or signed by both parties. In the circumstances, what appears to emerge, at best, is an agreement to agree, very much conditional on the ultimate written wording of the agreement. With respect, the Arbitrator is unaware of any principle that would hold either party to terms of settlement in these circumstances. Those familiar with collective bargaining are well aware that, generally speaking, labour relations statutes define collective agreements as documents in writing, and that parties to collective agreements invariably settle their disputes by executing a written memorandum of settlement. While there is certainly scope for the application of notions of estoppel in the context of settlement discussions, those concepts plainly do not operate in the case at hand as there was no change of position or prejudice to the Union by reason of any action by the Company. On the contrary, it would appear, as reflected in Mr. Beatty’s letter, that the Union specifically reserved its final agreement to anything until such time as everything was satisfactorily reduced to writing. This, very simply, does not constitute the settlement of anything. Given the foregoing analysis, it is unnecessary for the Arbitrator to deal with any issue of credibility as between the recollection of Mr. Hogan and that of Mr. Beatty, save to say that in any event it would appear doubtful that the Union could satisfy the standard of clear and cogent evidence that would sustain the conclusion that a binding settlement was made.

Turning to the merits of the grievance, the Arbitrator is left in substantial doubt as to the persuasiveness of the position advanced by the Union, to the extent that it relies upon the provisions of article 85 and addendum 123 of the collective agreement. The standard to be established in a case of this kind was touched upon in CROA 3403 where the following comments appear:

… the threshold question which the Union must satisfy to invoke the extraordinary provisions of article 85 and Addendum 123 of the collective agreement is whether the actions of the Company constituted a blatant and indefensible violation of the provisions of the collective agreement, as articulated in CROA 3310. For the reasons related in CROA 3406, I am satisfied that in the case at hand the Union has not discharged the threshold obligation of demonstrating a blatant and indefensible violation of the collective agreement on the part of the Company. At most, what is disclosed is the advancement of two very different prima facie positions held in good faith on behalf of the both the employer and the Union, upon the merits of which the Arbitrator makes no comment.

Can it be said in the case at hand that a “blatant and indefensible violation” is made out? The Arbitrator has difficulty in seeing how. With respect to the merits of the grievance, much of the dispute between the parties resides in whether there does exist such a thing as a “North Toronto Terminal” and a “South Toronto Terminal”, as noted above. The Company maintains that there are no such terminals anywhere in its system. It maintains that the reference to north Toronto and south Toronto is a seniority and assignment reference, and nothing more.

A cursory review of the collective agreement reveals numerous references to terminals, including many references to the “Toronto Terminal”. There is no reference to a North Toronto Terminal, nor to a South Toronto Terminal. In CROA 2759 the arbitrator had occasion to consider a claim for a meal allowance by an employee normally based out of the “Toronto North Furlough Board” who was compelled to work out of “Toronto South”. In that circumstance the arbitrator found, among other things, “There was no change in Mr. Moir’s main home terminal.” The conclusion drawn was that the employee did not move from his home terminal of Toronto “… which encompasses both MacMillan Yard and Mimico.”

Given the provisions of the collective agreement, the concept of a terminal, albeit one that is undefined, is extremely important to a number of duties and obligations which arise under the terms and conditions of the collective agreement. As noted above, the Union has drawn the Arbitrator’s attention to no provision of the collective agreement which makes any reference North Toronto or South Toronto as being distinct terminals. At tab 3 of its exhibit book, the Union draws to the Arbitrator’s attention certain assignment documents which make the distinction between Toronto North and Toronto South in assigned, pool and spare service. An examination of those documents, however, leaves substantial doubt as to the merits of the Union’s position. The documents referring to Toronto North describes the assignments as being under “district 42, sub-district Toronto North”, albeit in an abbreviated form (i.e., “DIST: 42 SUB-DIST: TN”). Conversely, the documents concerning Toronto South speak in terms of district 45 and sub-district Toronto South, again under the abbreviated form of “TS”. With respect, while it may reflect geographic seniority and assignment designations, this evidence falls well short of establishing the existence of two distinct terminals. It is, of course, not uncommon at various single terminals across the Company’s system, for east and west, or north and south pools of service, sometimes with separate seniority groupings, to be established. At best the documentation provided by the Union would indicate an arrangement somewhat parallel to those kinds of work assignment designations, tied to separate seniority rights.

How, then, can it be said that the events of October 1, 2003 constitute a violation of article 12.3 of the collective agreement? That article deals expressly with transgressions onto the territory “under jurisdictional control of another terminal.” In the case at hand the industrial switching which is the subject of the grievance is normally performed by assignments out of the Toronto Terminal, albeit out of the North Toronto assignment sub-district. Awarding that work, on a given day, to the South Toronto assignment group does not, in the Arbitrator’s view, constitute a trespass by employees being required to operate on territory under the jurisdictional control of another terminal.

For the foregoing reasons, whether the grievance is approached from the standpoint of its not establishing a blatant and indefensible violation of the collective agreement, or indeed whether it is assessed on its specific merits, the Arbitrator can see no compelling basis upon which the position of the Union can be sustained.

For these reasons the grievance must be dismissed.

Dated at Toronto, this 24th day of June 2004

(signed) MICHEL G. PICHER

ARBITRATOR