AD HOC 556

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN

 

 

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

 

 

AND

 

 

UNITED TRANSPORTATION UNION

(the "Union")

 

 

GRIEVANCE RE J. BUTLER – REMEDY UNDER ARTICLE 85
ADDENDUM 123 OF AGREEMENT

 

 

SOLE ARBITRATOR:                    Michel G. Picher

 

 

APPEARING FOR THE COMPANY:

J. Coleman                            – Counsel

J. Torchia                               – Director, Labour Relations, Edmonton

B. Hogan                               – Manager, Workforce Strategies, Toronto

J. Krawec                               – Manager, Labour Relations, Montreal

D. VanCauwenbergh          – Manager Labour Relations, Toronto

 

APPEARING FOR THE UNION:

M. Church                             – Counsel

R. A. Beatty                           – General Chairperson, Sault Ste. Marie

J. Robbins                             – Vice-General Chairperson, Sarnia

G. Scarrow                            UTU Vice-President (retired), Sarnia

G. Gower                               – Local Chairperson, Toronto

W. Namink                            – Local Chairperson, Sarnia

 

This grievance was presented to the Arbitrator on January 28th, 2004 for resolution. By Memorandum of Agreement, dated February 11, 2004, the parties agreed to adjourn the matter, sine die, and agreed to have the matter mediated with the Arbitrator acting as sole Mediator. In the event the dispute could not be resolved through mediation the parties agreed to remit the matter back to the Arbitrator for final and binding resolution.


AWARD OF THE ARBITRATOR

DISPUTE:

Violation of Article 41 of Agreement 4.16, filed under Article 85, Addendum 123 of Agreement 4.16.

EX PARTE STATEMENT OF ISSUE:

On September 17th, 2003, Conductor J. Butler operating Train M393331-17 upon arrival at Sarnia was instructed to perform his set-off and then lift 23 cars from Track AO 16. After coupling such cars to their train the crew was then required to transfer the combined traffic to Port Huron. This in violation of Article 41.

It is the Union’s position the Company violated the reasonable intent of Article 41 and, as a result, requested that an appropriate remedy be applied.

The Company declined the Union’ request.

For the Union:

(sgd.) R. A. Beatty

General Chairperson

This grievance was presented to the Arbitrator on January 28th, 2004 for resolution. By Memorandum of Agreement, dated February 11, 2004, the parties agreed to adjourn the matter, sine die, and agreed to have the matter mediated with the Arbitrator acting as sole Mediator. In the event the dispute could not be resolved through mediation the parties agreed to remit the matter back to the Arbitrator for final and binding resolution.

Through a series of mediation sessions the parties were able to agree on a mediated settlement dated May 4, 2004. This settlement contained, in part, the following:

Arbitrator Picher shall render decisions in respect of two of the grievances relating to article 41, identifying the issues and violations found, with appropriate cease and desist and compliance orders, the wording of the awards to be drafted in consultation with the parties.

In compliance with the agreement between the parties the following is the decision of the Arbitrator with respect to the instant dispute concerning the application of Article 41.

On September 17th, 2003, Conductor J. Butler, a road crew, was instructed to transfer cars from Sarnia Yard to Port Huron. It is without dispute that both yards are considered a “series of yards” within the limits of Sarnia. The parties now agree that the transfer of work form one yard to another, within a series of yards, is work belonging to Sarnia Yard Employees, as governed by Article 41.1 of Collective Agreement 4.16.

With respect to the issues giving rise to the instant dispute the Arbitrator in CROA 3043, stated:

The Arbitrator declares the practice whereby the Company requires that road service employees pick up or set off cars within the Montreal switching limits, as described in this award, constitutes a violation of article 41.1 of the collective agreement.

In CROA 3182, the Arbitrator issued a further decision which states in part:

The Arbitrator is bound to conclude that the examples concerning Conductors Dubois and Guay, as well as converse examples of the dropping of cars within the Montreal yard by crews operating from Taschereau to Joffre, constitutes a violation of the prohibition against transfer movements long established within the terms of article 41.1 of the collective agreement as interpreted by this Office. …

… The Arbitrator further directs the Company to comply with the terms of article 41.1 as clarified in this award.

On review of the facts in the present dispute and related arbitral jurisprudence, and pursuant to the parties’ settlement, dated May 4, 2004, the Arbitrator finds the Company in violation of Article 41.1 of the collective agreement. In making such a finding and further to the May 4, 2004 settlement between the parties, the Arbitrator directs the Company to cease and desist from violating Article 41.1. The Arbitrator further orders and directs the Company to comply with the provisions of Article 41.

The Arbitrator remains seized in this matter should there be any dispute in the application of this award.

Dated in Toronto this 13th day of August, 2004

(signed) MICHEL G. PICHER

ARBITRATOR