AD HOC 557

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

UNITED TRANSPORTATION UNION

(the "Union")

GRIEVANCE RE W. NAMINK – 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:

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

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 October 9th, 2003 Conductor W. Namink, a road crew, was instructed to perform duties of Yard Service Employees at Sarnia. Specifically upon arrival at Sarnia Mr. Namink was instructed to lift 38 cars from AO15 and double such cars on to track AOO5. Thereafter Mr. Namink was instructed to pull the entire track of cars to the south service to Hobson. 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. This settlement (as noted) 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 October 9th, 2004 Conductor W. Namink, a road crew, was instructed to perform the duties of Yard Service Employees at Sarnia. As noted in the Union’s Ex parte Statement of Issue, Mr. Namink, upon his arrival at Sarnia was directed by the Company to lift 38 cars from track AO15 and double such cars to AOO5. Thereafter Mr. Namink was instructed to pull the entire track of cars to the south service to Hobson.

The instant dispute concerns the application of Article 41 of Collective Agreement 4.16 which has been the subject of many decisions from the CROA For example in CROA 3043, the Arbitrator stated:

This case involves the application of article 41.1, …

…

It is well established that this article has been incorporated into the collective agreement in order to clearly specify the work reserved exclusively for yard service employees. …

The Arbitrator, on review of the facts of this particular dispute, and as directed by the parties, finds the Company in violation of Article 41.

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. The Arbitrator further orders the Company to comply with the provisions of Article 41.

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

Dated in Toronto this 13th day of August, 2004

(signed) MICHEL G. PICHER

ARBITRATOR