Pursuant to the Canada Labour Code
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS SYSTEM COUNCIL NO. 11
ARBITRATOR: Michel G. Picher
FOR THE COMPANY:
D. S. Fisher - Senior Director, Labour Relations
S. Grou - Senior Manager, Labour Relations
J. M. Greene - S&C Manager
A. de Montigny - Consultant
FOR THE UNION:
S. Beauchamp - Union Counsel
L. Couture - International Representative, IBEW
D. Mitchell - Local Union Officer
S. Hethrington - Representative, Local 2054 IBEW
Heard in Montreal, September 18, 2012.
AWARD OF THE ARBITRATOR
1. Alleged violation of two collective agreements, 11.1 and NQISL, as well as the Canada Labour Code and the decision of the Canada Industrial Relations Board dated May 12, 2010.
STATEMENT OF ISSUE
2. The Union claims that the Company violated the Canada Labour Code and the May 12, 2010 decision of the Canada Industrial Relations Board (CIRB).
3. Conversely, the Union argues that the Company violated article 21 of the NQISL collective agreement, including but not limited to article 21.2.
4. The Union is seeking damages for its affected members, including, but not limited to, full compensation plus interest for the salary difference, pension and benefits pursuant to Agreement 11.1, since January 1, 2010.
The Company dismisses the Union’s claims.
5. The Company argues that the dispute is not subject to arbitration based on the fact that it is technically flawed and that the Union repeatedly failed to respect the strict terms of grievance procedure and binding dispute-settlement procedures.
This grievance results from a conflict concerning the collective agreement that should govern the working conditions in the Northern Quebec Territory (NQISL) pursuant to a decision by the Canada Industrial Relations Board (CIRB). On May 12, 2010, the CIRB granted the submission of another union, the United Steelworkers, Local 2004. The Board’s decision declared that the parties were bound by the national collective agreement provided that the employees of the national network and those of the NQISL were part of a single certification unit. The Board tried to avoid the problem of retroactive application thusly, in part:
 Given the circumstances of the present matter and to ensure the stability of labour relations between the parties, the Board deems that it would be inappropriate to retroactively invalidate the provisions of the amendment negotiated for NQISL track maintainers. Even if this amendment actually constituted a parallel collective agreement to the one applicable to the bargaining unit determined by the Board, CN and the United Steelworkers were nonetheless governed by it and applied its provisions until very recently.
It appears that since this decision the Board has undertaken a review of the decision on retroactive application, an issue that is still pending.
On July 30, 2010, the Union submitted a grievance arguing that the Board’s conclusions should also apply to its members and that national collective agreement 11.1 should apply as of the date of the Board’s decision, May 12, 2010. In its reply dated May 28, 2010, the Company’s representative, A. de Montigny responded:
The Company is prepared to accede to the request of the IBEW within the parameters of the Board’s decision, .i.e., that all IBEW members assigned to NQISL be integrated to collective agreement 11.1 effective on the date of the Board’s decision, i.e., May 12, 2010, without retroactive compensation.
However, the Union insists on the right to retroactive compensation. This is the grievance that was sent to be heard before me.
The Company raised a preliminary objection regarding the admissibility of the grievance. Its position is expressed in its letter addressed to the Union on August 20, 2010, which reads, in part:
First of all, as Mr. Fisher said during your July 19 telephone conversation, it is important to clarify that although the Company accepts your request to proceed directly to Step 3 of the grievance procedure, the Company’s position is that the time limit has expired for any grievance concerning retroactive compensation and benefits and said grievances are therefore not admissible. To date, no grievance has been submitted on this subject since 2008 despite diverging interpretations expressed during our previous discussions in 2008 at various levels of management concerning article 21 of the NQISL collective agreement.
(…) the Company maintains the position that the CIRB decision does not award retroactive compensation to a date prior to the date of its May 12, 2010 decision and therefore it cannot be concluded that collective agreement 11.1 applies retroactively to NQISL employees. Furthermore, as indicated previously, this type of situation would result in the application of two (2) collective agreements simultaneously to a single group of employees, which cannot occur.
The Company representatives argue that the grievance suffers from a fatal procedural defect and that it was filed after the time limits stipulated in the collective agreement had expired. They claim that the Union cannot file a single grievance that concerns an alleged violation of two different collective agreements, nor claim damages dating back to 2008.
During the hearing the parties agreed that if I ruled in favour of the Union on the issue of admissibility, the grievance on the merits would be suspended until the CIRB had ruled on the issue of retroactive compensation in the United Steelworkers file. It has been agreed that the parties in this case will be bound by the judgment of the CIRB in the United Steelworkers file concerning retroactive compensation in their own collective agreement.
Union counsel argues that the grievance is indeed admissible. He stipulates that it was only after May 12, 2010 that the Union was able to read the CIRB decision that declared the BMWE amendment invalid, which threw into question the validity of the IBEW amendment in Northern Quebec. It was only through the May 28, 2010 letter from the Company that the Union learned the employer’s position regarding retroactive compensation, which resulted in an opposing reply from the Union on June 24, 2010. In a letter dated July 8, 2010, the Company stated that the time limit had expired for the Union to request retroactive application, and that the request was inadmissible. This position was confirmed in a telephone conversation between the parties on July 19. However, the Union claims that it was able to know concretely only on July 8 or 19 that the employer categorically denied its right to retroactive application.
I find the Union’s position reasonable and convincing. It must be acknowledged first of all that the parties in this case have found themselves in extremely extraordinary and unforeseen circumstances. A collective agreement that they negotiated freely and applied for a number of years has been thrown into question by the CIRB decision that cancelled the Steelworker’s parallel agreement in NQISL. I find it very unrealistic for the Company to now claim that the Union should have claimed the application of collective agreement 11.1 for its members in 2008 or 2009, long before the CIRB decision. When calculating the timeframes, the triggering event is clearly the CIRB’s decision and the subsequent declaration of the Company, effectively finalized on July 8, 2010 in its letter to the Union concerning retroactive application. In my opinion, any other conclusion would be unfair to the Union which, I believe, demonstrated vigilance and clarity in the statement of its position at each step.
Neither can I endorse the employer’s thinking concerning the alleged procedural defect. This file covers new ground, to the extent that the parties have been plunged into great uncertainty regarding the application of two separate collective agreements. In my opinion, this is a circumstance that demands flexibility and an open mind, as the Court expressed in Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 8 O.R. (2d) 103 (C.A. Ont). The most important thing, especially in labour relations, is to allow the parties to debate their rights and obligations, without the undue encumbrance of technical objections.
Moreover, I award a suspension of time limits pursuant to my discretion under article 60(1.1) of the Canada Labour Code. As these are unforeseen circumstances, and the two parties are equally affected, there is no undue harm to the rights of the employer, at least concerning timeframes. It must be emphasized that the merits of the application for retroactive compensation remain to be determined.
For these reasons, I must conclude that the Company’s preliminary objection must be rejected.
Dated this October 1, 2012 in the city of Ottawa
“Michel G. Picher”