AH592

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

AND

TEAMSTERS CANADA RAIL CONFERENCE

(the “Union”)

RE: GRIEVANCE OF ROBIN SAVARY

Sole Arbitrator: Michel G. Picher

Appearing For The Union:

M. A. Church – Counsel, Toronto

J. Robbins – General Chairman, Sarnia

R. Savary – Grievor

Appearing For The Company:

F. O’Neill – Manager, Labour Relations, Toronto

D. Gagné – Sr. Manager, Labour Relations, Montreal

A hearing in this matter was held in Montreal on Tuesday, November 24, 2009.

AWARD

The Company raised a preliminary objection to the Arbitrator hearing three grievances concerning the assessment of fifteen demerits, twenty-five demerits and ten demerits against employee Robin Savary. The Union does not deny that the grievances were outside the time limits contemplated within the collective agreement, albeit not by a great deal. The nature of the dispute is reflected in the Company’s ex parte statement of issue which reads as follows:

The Company maintains the position that a number of grievances submitted by the former United Transportation Union had been considered abandoned as per the Company’s letter of 29 October 2007. Therefore these grievances were considered barred from being progressed by the Union as per the provisions of article 84 of the collective agreement.

The Parties proceeded before the arbitrator on 17 July 2008 and presented arguments concerning this position. The arbitrator indicated that he agreed with the Company’s position. The arbitrator indicated that he agreed with the Company’s position on the matter, however, he remained seized on each and every case to determine whether he would exercise his discretion in relation to the extension of time limits if and when the individual grievances were advanced to hearing. Conversely, the rights of the Company to argue that the Arbitrator’s discretion should not be exercised remain intact, again to be argued on a case-by-case basis, having regard to the facts and equities of each specific grievance.

The parties are now before the arbitrator concerning the timeliness of the following three cases that had been included in the letter noted above, and the Company maintains the position that the following grievances cannot be moved forward under the provisions of the collective agreement.

The assessment of 15 demerits to Robin Savary for her “violation of Attendance Management Standards from June 01, 2006 up to and including July 18, 2006”, effective 18 July 2006.

The assessment of 25 demerits t Robins Savary for her failure to “comply with Company AMS standards from 19 July to 31 August 2006”, effective 31 August 2006.

The assessment of 10 demerits to Robin Savary for the “abandonment of your assignment on 17 November 2006”, effective 17 November 2006.

The record before the Arbitrator reveals that in the case of each of the heads of discipline which are the subject of this preliminary objection the Union did properly progress the matter to the point at which it was to move to arbitration. It is at that point which the time limits were not met.

The issue is whether the Arbitrator should exercise his discretion under section 60(1.1) of the Canada Labour Code to grant an extension of time limits.

The Union’s explanation for the delay is reflected in the reasons which it provided in a prior arbitration dealing with a similar issue, CROA &DR 3761. As reflected in that award, the period of time which is here under consideration involved substantial upheaval within the Union, or more precisely within the predecessor union, the United Transportation Union, which held the bargaining rights in the face of a displacement application by the current Union. Most particularly, at the time in question the officers of the United Transportation Union responsible for progressing grievances had been effectively removed from office by the action of the International Union. In the decision in CROA&DR 3761 the Arbitrator found that the circumstances did justify the extension of time limits, commenting in part as follows:

In the Arbitrator’s view these facts, particularly as regards the accumulation of demerits leading to the discharge of an employee, do provide a reasonable basis for an extension of the time limits. While the Company may argue that internal political struggles within a union should not be seen as a reasonable basis for an extension of time limits, the converse of that proposition is that the progressive discipline and eventual discharge of an employee should not lightly be placed beyond access to arbitration by reason of such “political” events beyond his or her control, particularly when there is no specific prejudice to the employer made evident in the material before the Arbitrator.

For the foregoing reasons the Arbitrator is satisfied that it is appropriate to allow an extension of time limits for the purposes of hearing, in full, the progressive discipline assessed against the grievor as relates to the three grievances in question. The preliminary objection of the Company is therefore dismissed. The case will be docketed for hearing of the grievances filed against the eighty demerits assessed for the incidents of June and July 2006 and August and November 2007.

The considerations expressed above apply fully in the case at hand. It is not disputed that Ms. Savary has since incurred a further assessment of forty demerits resulting in her ultimate termination for the accumulation of demerits. In that circumstance each and every of the demerits which are the subject of these grievances can have a vital impact on her job security. Conversely, there is no significant prejudice to the Company which is demonstrated in counterbalance.

For these reasons the Company’s preliminary objection with respect to the arbitrability of these grievances must be denied and the Arbitrator exercises his discretion to extend the time limits accordingly.

Dated at Ottawa this 30^th day of November 2009.

_________________________________

MICHEL G. PICHER

ARBITRATOR