AD HOC 559

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN

 

 

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

 

AND

 

UNITED TRANSPORTATION UNION

(the "Union")

 

 

GRIEVANCE RE BRANT & TRACEY – 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 51 of Agreement 4.16, filed under Article 85, Addendum 123 of Agreement 4.16.

EX PARTE STATEMENT OF ISSUE:

On September 28th, 2003 the 1200 X-tra Yard Assignment (J. Brant and B. Tracey) at Sarnia were held 1 hour beyond the time rest was due to commence. The Crew properly submitted their rest message under the terms and conditions of the Collective Agreement at 1845 hours with such rest to commence at 2100 hours. The Crew was not release from duty until 2200 hours.

It is the Union’s position the Company violated the reasonable intent of Article 51 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 4th, 2004. This settlement contained, in part, the following:

Arbitrator Picher shall render decisions in respect of two of the grievances relating to article 51, 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.

It should first be noted that the Union (without prejudice) withdrew its grievance with respect to B. Tracey. The Arbitrator therefore makes no finding with respect to this particular grievor nor was such required under the mandate and jurisdiction of the Arbitrator.

On September 28th, 2003, Yard Employee J. Brant is said by the Union to have given proper notice of his desire to book rest under the provision of Article 51 of Collective Agreement 4.16, with such rest to commence at 2100 hours of the same day. The grievor was held “on duty” until 2200 the same day, 1 hour, beyond the time rest booked was due to commence.

The Arbitrator finds that it is the Company’s responsibility to have Yard Employees “off duty” by the time rest booked is due to commence and confirms the requirements of Article 51.13 which provide that Yard Employees may book rest after nine hours on duty, where the employee has given the designated officer two hours’ notice of his or her desire to book rest.

The Arbitrator finds that the requirement to have Yard Employees off duty by the time rest is due to commence applies in all circumstances except those which are clearly and demonstrably beyond the Company’s control, but even then, as soon as possible. Sub-paragraph 51.7(b) establishes the Company’s responsibility to relieve trainmen of duty by the time rest booked is due to commence. This applies in all cases, except where circumstances beyond the Company’s control make this impossible. A number of examples of such circumstances are contained in the sub-paragraph. And, while such circumstances are not necessarily limited only to the examples cited, the Company cannot rely on situations which do not affect its ability to comply with this requirement as a reason not to relieve trainmen by the time rest booked is due to commence.

Pursuant to the parties’ settlement, dated May 4, 2004, the Arbitrator directs the Company to cease and desist from violating Article 51. The Arbitrator further orders the Company to comply with the provisions of Article 51.

The Arbitrator remains seized in 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