IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
RE: APPENDIX S
SOLE ARBITRATOR: Michel G. Picher
APPEARING ON BEHALF OF THE COMPANY:
Sylvie Grou – Senior Manager, Labour Relations, Montreal
Doug S. Fisher – Senior Director, Labour Relations, Montreal
Caroline Gilbert – Manager, Labour Relations, Montreal
APPEARING ON BEHALF OF THE UNION:
Ken Stuebing – Counsel
Luc Couture – International Representative, St. Leonard
Brian Strong – Senior System General Chairman
Ron Hewson – General Chairman
A hearing in this matter was held in Montreal, Quebec on July 9, 2012.
The original grievance in this matter was heard on May 1, 2012. It involved the claims of S&C Technicians C. Dallaire and V. Bernier, for three hours each for calls which they were available to take on each other’s territories when one or other was on vacation. The gist of the arbitrator’s award, issued on May 18, 2012 is captured in the following two paragraphs at pp. 4-5:
Upon a review of the material before me, I am compelled to allow the grievance claims of Mr. Dallaire and Mr. Bernier. As noted by counsel for the Union, article 4.7 of the collective agreement contemplates the making of “mutually satisfactory arrangements between an S&C Supervisor and the accredited representative of the employees “for protection of the employee’s territory”. The representation of the Union is that an arrangement was worked out in the territories covered by Mr. Dallaire and Mr. Bernier, whereby they would be entitled to a three hour claim for weekdays when they are required to protect calls on each other’s adjacent territories by reason of vacation.
The existence of that arrangement was not challenged at the hearing by the Company’s representatives. Moreover, it is repeatedly referred to in grievance correspondence to the Company from the Union’s local representative, Mr. Steven Hethrington. In fact, among the documents filed by the Union are a series of emails which confirm the application of the three hour rule as far back as 2001. The preponderance of the evidence before me would suggest that in principle, and in practice, the rule respecting penalty payments of three hours which is advanced in this case by the Union, was honoured by the Company through both agreements and practice. For the purposes of clarity, it would appear that it is entirely open to either side to end those arrangements by proper notice, absent any contrary limitation within their agreement. However, while it may be open to the Company to consider terminating the agreement which I find operated in favour of the grievors in the instant case, I am satisfied that that arrangement was in place and that the grievors and their Union had a proper expectation that it would be respected insofar as the claims before me are concerned.
The foregoing conclusion does not, in my view, devoid article 4.5 and Appendix S of the agreement of any meaning. But I would be inclined to agree with counsel for the Union that while Appendix S appears to allow the Company to require employees to protect calls on adjacent territories in situations of brief coverage of the kinds listed in the third paragraph, there is no reference in that paragraph to mutual coverage in respect of annual vacations. As indicated above, those situations seem to have been addressed in accordance with local understanding that the three hour claim would be paid. In effect, the record would indicate that the assertion of Mr. John M. Greene, Director for S&C Champlain, made in a letter dated June 8, 2009, that no agreement was established between the Company and the employees or the Union, is in fact without foundation. While I am satisfied that the Company may well be entitled to bring any past or existing arrangements to an end by a form of proper notice, it clearly did not do so at any time prior to the claims made by the grievors.
Following the award the parties have disagreed as to the scope of the arbitrator’s finding. The Union submits that the arbitrator’s award stands for the proposition that the language of Appendix S does not require mutual coverage in respect of annual vacations. In the Union’s submission, the final paragraph reproduced above indicates the arbitrator’s view that the Company cannot compel employees on adjacent territories to protect calls on neighbouring territories in situations when the incumbent on that territory is on a scheduled annual vacation.
The Company takes substantial issue with that interpretation of the award. It submits that the grievance was entirely about the two claims of Mr. Dallaire and Mr. Bernier, that those claims were allowed in the specific circumstances placed in evidence, and that nothing more can be read from the decision. In other words, as the Company would have it, the grievance deals with the fact that Mr. Dallaire and Mr. Bernier had made a local arrangement whereby they were to be compensated three hours for remaining on call to the adjacent territory when either them was on vacation. In the Company’s view the award cannot be viewed as speaking to the broader question of whether the Company can or cannot direct employees to be on call for adjacent territories on the occasion of annual vacations.
Upon a careful review of the original materials and the award itself, I am compelled to conclude the Company is correct. As reflected in the Union’s ex parte statement of issue, the issue placed before the arbitrator was not whether the Company could or could not direct call coverage during vacation situations on adjacent territories. Rather, as is evident from the language of the ex parte statement of issue, the sole issue was whether the claims made by S&C Technicians Dallaire and Bernier were payable in accordance with an arrangement which the Union maintains had been made with the Company. The award finds that in fact that arrangement was in place and that the Company effectively violated it by failing to pay the three claims of both employees.
In other words, the core substance of the award is the arbitrator’s finding that the grievors had made an arrangement with the Company whereby they would be compensated for remaining on call during each other’s vacations, as regards their adjacent territory. The Union did not seek and the arbitrator did not grant any determination or declaration with respect to whether the Company is entitled to demand such coverage under the broader terms of Article 4.5 and Appendix S of the collective agreement. Very simply, that distinct issue was not ultimately dealt with by the arbitrator in the award which issued on May 18, 2012.
It is obviously open for the Union to grieve the question of whether the Company can direct employees to be on call for adjacent territories during the annual vacation of the incumbent employee on that territory. That, however, is not the question which arose in this case and is not one which was determined by my award.
In the result, I am compelled to declare that the interpretation of the award put forward by the Company is correct. The arbitrator’s decision does not extend to making any finding with respect to whether the Company is entitled to require employees to provide on call coverage in adjacent territories in the circumstances of annual vacations.
I continue to retain jurisdiction.
Signed at Ottawa, Ontario this 17th day of July, 2012.
Michel G. Picher