Canadian Railway Arbitration Awards - 2004 Archive
November 24, 2004: November CROA awards This month's arbitrations were heard in Calgary by Arbitrator J. M. Moreau, Q.C., sitting for his first time as CROA arbitrator.
CROA 3454: A Rail Traffic Controller was dismissed by CN after failing to properly protect a track crew. This cardinal rule violation was her eighth infraction in recent years, leading most recently to a 21-day suspension and a "Leniency Reinstatement Agreement". The arbitrator discounted medical evidence of "major depressive disorder" in a doctor's letter dated 10 months after the discharge, stating that he would require "further and more timely medical documentation which establishes the link between her medical disorder and her inability to properly concentrate on her duties". He also rejected pleas that she had been denied due process by being investigated and fired within only five days of the incident, pointing out that she had made no complaint at the time of the investigation.
CROA 3455: When a CN Locomotive Engineer's father died, he asked to commence his bereavement leave four days after learning of the death. His supervisor, after "somewhat of a heated discussion" with the grievor, insisted that he commence the day immediately after. The arbitrator ruled that under the specific language of this collective agreement, the final decision rested with the Company, and the grievor's duty was to furnish a "reasonable explanation" if he wished to take his bereavement leave later. The grievance was denied.
CROA 3456: The TCRC (Locomotive Engineers) grieved that CN had begun running some trains in Western Canada with full crews instead of "conductor only", in order to utilize some UTU furlough board employees. This, they said, caused loss of earnings to engineers. The arbitrator found there was no language in the collective agreement which prevented running full crews, nor did he agree that the Company's past practice had created an "estoppel".
CROA 3457: This is a dispute between Canadian Pacific Railway and the TCRC (Maintenance of Way employees) claiming that the overtime work of a track maintainer/truck driver was assigned to the wrong worker. The grievance was dismissed.
November 13, 2004: October CROA awards For the first time since September 1986, an arbitrator other than Michel G. Picher heard cases in October at the Canadian Railway Office of Arbitration. Welcome to our world, Arbitrator Brian Keller! He will be joined in February by Arbitrator John Moreau. Mr. Picher will continue to hear the majority of cases, under changes to the system agreed to last January.
CROA 3452: A UTU member on CN was given a 21-day suspension for violating various operating rules and dismissed for testing positive for cocaine. A document entitled "Reasonable Cause Report Form" was not provided to the union prior to arbitration. The Arbitrator held that because this document was essential to both the company's decision to order a drug test as well as to the grievor's ability to defend his rights, the document should have been disclosed: "[F]ull disclosure of documents fundamental to its [the Company's] decision should be shared in order to permit a complete dialogue between the parties both in the stages leading up to arbitration as well as a full defence at arbitration." On this basis alone, the discharge was found to be null and void. The Arbitrator went on to say that if he had had to rule on the merits, he would have voided the dismissal anyway, because there was no evidence of impairment aside from the test result, and, as Arbitrator Picher had ruled in SHP 530, "a positive drug test is not conclusive of impairment when on duty, subject to duty or on call". The grievor was reinstated with full compensation except for the 21-day suspension, which was maintained.
CROA 3453: After a year off the job for medical reasons, VIA dismissed a CAW member in September 2002 for not having been in contact with the employer for several months, not responding to attempts to communicate with her, and failure to attend a scheduled meeting. It emerged that the grievor was suffering from psychological disorders which explained not only her absence from work, but also her failure to communicate. Evidence at the hearing showed that the grievor was now fit for work. The Arbitrator ruled that she could not be held responsible for her actions at the time she was fired, and ordered her reinstated. Because VIA was acting "within the scope of its knowledge" when it dismissed her, there was no order for compensation.
October 15, 2004: September CROA awards In addition to the awards issued after the September session in Montreal, I'm posting previous awards BACF 3416 (in French only), CROA 3418 (whether BMWE employees can be forced to fill positions of less than 45 days' duration), CROA 3435 (dismissal of a rail traffic controller for making $14,000 worth of unauthorized long distance calls), and supplementary award CROA 3438S. Following are the September awards:
CROA 3444: At issue were two communications from CN to UTU members in Quebec announcing stricter attendance guidelines. The first one placed a blanket requirement of medical certification on all employees missing any time at all during the holiday period (Christmas - New Year's). The arbitrator struck down this directive, finding that it conflicted with specific provisions in the collective agreement which determined when doctor's notes were required. The second communication announcing closer monitoring of attendance, including a statement that the Company "may" investigate if an employee books sick more than once in 28 days. Here the arbitrator found nothing per se in violation of the collective agreement, noting that previous awards had recognized "the prerogative of an employer to enforce attendance through the implementation of a more strict attendance management policy". At the same time, he said that in particular cases, the mere holding of an investigation after a single case of sickness might be abusive, and that such matters were better treated as individual rather than policy grievances. He repeated the principle that "collective agreements ... are to be interpreted and applied reasonably by both parties".
CROA 3445: CN claimed that the UTU had agreed verbally to accept 21 bridging credits instead of the 28 available at Capreol in order to accelerate a settlement. The UTU had a different recollection of the meeting which had taken place 4 years before. The arbitrator referred the parties to a recent decision, where he had stated that "parties to collective agreements invariably settle their disputes by executing a written memorandum of settlement. Where an agreement was only oral, he would need far better evidence of who said what than what the Company was providing. He ordered that the remaining 7 credits be issued.
CROA 3446: As a result of managers' replacing rail traffic controllers during a strike, CPR decided that it could redistribute responsibilities and abolish one RTC desk. The Union claimed this constituted a TO&O (technological, operational, or organizational) change. The arbitrator disagreed, ruling that it was a "normal reassignment of duties arising out of the nature of the work".
CROA 3447: The TCRC (Maintenance of Way) claimed that the abolishment of a supervisor's position constituted a TO&O change and demanded notice accordingly. In this case, the arbitrator analyzed that while only a single position was involved, what CPR had actually done in the Surrey Butt Welding plant was to eliminate the entire first level of supervision -- clearly, in his view, an organizational change not saved by any of the usual exceptions. He ruled in favour of the Union.
BACF 3448: [French only] This CN-UTU award deals with one of those arcane running trade premium issues which I have never understood too well (no offence to our operational colleagues). However, the award is interesting (to me) in that the arbitrator needed to look at a previous award by a different arbitrator on a similar grievance and decide which aspects of it were binding on him and which were not.
BACF 3449: [French only] Following the decision in BACF 3429, the grievor refused CN's offer of accommodation as conductor in commuter service, subject to a medical examination to determine his functional limitations, insisting he be accommodated in his former position in intermodal service. The arbitrator found that the Company's offer was reasonable, quoting another arbitrator: "The wishes of the person needing accommodation are relevant but not determinative. It may be that they will have to accept a less attractive position to avoid going out the door."
BACF 3450: [French only] CN dismissed a yardmaster for smoking a single marijuana joint at a family get-together. The grievor signed an abstinence contract some 15 months earlier (following a self-referral for alcoholism) and successfully passed 5 random tests in the interim. He was experiencing some difficulty as it was the anniversary of the death of his spouse. He had more than 30 years of service and no record of any discipline related to alcohol or drugs. The arbitrator found him to be "remarkably open" in admitting his single transgression and making no attempt to mislead the employer, following which he again referred himself to a treatment centre. He had also managed to remain alcohol-free since September 2002. Under the circumstances, the arbitrator ruled that he should be reinstated with the same re-employment contract to run for an additional two year period.
CROA 3451: A CAW member was dismissed for uttering death threats aimed at fellow employees, after serving a previous 20-day suspension (still under dispute) for a heated altercation with a supervisor. The arbitrator did not believe the grievor's explanation that it was "just a joke", and found that at the hearing he was "less than remorseful". The arbitrator went on to say: "Threatening the murder of fellow employees is an extremely serious matter. While at one time such comments might have been given a certain latitude, highly publicized real life tragedies which have occurred in a number of workplaces, both in Canada and elsewhere in recent years, have understandably changed that." Despite the grievor's 15 years of service, the dismissal was maintained.
September 22, 2004: CROA 2099 Thanks to the visitor who noticed that CROA 2099 was missing from the site -- it's up now. It will apparently be useful in connection with CROA 3448, which is coming soon. And thanks also to Colette Newton of CROA, who kindly dug up another 108 old Ad Hoc cases. They will be posted in the near future (without summaries, I might add).
September 20, 2004: July CROA awards I apologize for the late update, but summer proved busier than expected.
CROA 3331S: What should a union do when it wins at arbitration but the employer keeps repeating the same violation? That was the dilemma which brought the locomotive engineers back to the arbitrator this time. In April 2003, he had ruled (CROA 3331) that CN was wrongly using engineers away from their home territory to rescue trains. He limited his award to a declaration to that effect, saying it was unnecessary "to make any further order for future compliance" because "there is no reason to doubt that the foregoing declaration, and the clarification brought by this award, will be respected by the Company". At the July 2004 hearing, the union alleged CN had violated the same provision six more times in the past year -- and CN admitted it. But when the union asked the arbitrator to amend his previous award to include an order for future compliance, he declined, saying he had no jurisdiction to change his own award -- only to implement it. Arbitrator Picher appears to be telling the union that it must come to him with a fresh grievance if it wants a new stronger remedy.
CROA 3436: A UTU member on CN who was scheduled for substance testing reacted with strong language when a Medisys employee compromised the confidentiality of his medical file in a communication with a company supervisor. CN's response was to fire this employee of twenty-two years' service. All of his active discipline of 30 demerits was related to his addiction illness. The arbitrator ruled that the grievor's abusive behaviour was wrong, as there were other channels to deal with the admitted violation of his privacy rights. At the same time, he also ruled that the facts did not warrant dismissal. He ordered the grievor reinstated with full compensation (approximately 16 months' worth) minus a two-week suspension.
CROA 3437: A CN assistant conductor is given a written reprimand after having been observed committing several rule violations characterized as "minor". The award deals briefly with the difference between "verbal counselling", which is not viewed as discipline, and a written reprimand, which is. He finds that it was not "double jeopardy" to apply both methods in this case.
CROA 3438: A CN conductor had previously been dismissed and reinstated under a signed agreement stating that anything less than "full compliance" with safety regulations would result in the "gravest of consequences". On this occasion, the company alleged that he had left an angle cock closed and a handbrake applied in a cut of cars which he had doubled onto his train. The arbitrator upheld the first charge, but found that in the case of the handbrake, the purely circumstantial evidence was "equally consistent with culpability and innocence", given the uncertainty of the situation. The arbitrator noted that the reinstatement agreement did not call for termination in the case of a safety violation, but left room for discretion. He also considered the fact that this twenty-year service employee had maintained a good discipline record prior to the terminal illness and death of his spouse. He ordered the grievor reinstated without compensation.
CROA 3439: A UTU member on CN who had bid onto the furlough board missed two calls in a six-month period while working only once in the same period. He did not respond to attempts to reach him for an investigation by telephone and registered mail. It emerged that he had gone to work for another railway in another province, while remaining on pay and benefits with CN. The arbitrator stated that "employees who enjoy that extraordinary protection [furlough board] must take all reasonable steps to be available for work when called". Given the grievor's "remarkable degree of indifference", the arbitrator concluded that he had effectively abandoned his employment.
CROA 3440 was resolved during the hearing through mediation by the arbitrator.
CROA 3441: A CN intermodal Heavy Equipment Operator was dismissed for accumulation of demerits after being the subject of two complaints of inappropriate behaviour lodged by outside truck drivers. He had 35 demerits prior to these complaints and six previous disciplinary sanctions regarding safety and customer service issues. The arbitrator took into account his 17 years of service as well as evidence of the company's "tolerance" of certain "short-cuts" which contributed to one of the incidents. He ordered the grievor reinstated without compensation.
CROA 3442: A CN Track Maintenance Foreman was assessed both a 30-day suspension and a permanent demotion to Trackman as a result of various safety and rule violations. The arbitrator first held that one of the accusations could not be pursued because it did not figure on the "Form 780" (discipline form) issued at the time. He also ruled that permanent demotion was excessive, finding that the company should more properly have deemed him unqualified to hold a higher-level foreman's position. The suspension was reduced to two weeks.
CROA 3443: This policy grievance filed by the TCRC (Maintenance of Way) against CPR challenges a company interpretation of the Job Security Agreement whereby otherwise eligible employees who cannot hold work because of an Article 8 change may not automatically qualify for Employment Security protection. The company's theory was that the number of protected employees could not be greater than the "net" number of jobs lost. The arbitrator rejected this theory, finding no basis for it in the collective agreement, and finding that it militated against the very protections that had been negotiated. This award deserves a careful read, if only to appreciate the importance of just reading the contract language, as opposed to trying to impute novel intentions and meanings that stray wide of what the parties wrote.
June 23, 2004: June CROA awards The following awards have been issued following the June CROA session in Montreal:
BACF 3429: A conductor who had suffered a workplace injury was accommodated for a period on a train where he wasn't required to do switching at departure and arrival. When that run was eliminated, he was placed on the furlough board, and when that was eliminated, he remained home without pay. The union grieved that CN failed in its duty to accommodate, arguing that a spareboard employee should have been called to assist him in performing his physical functions when required. The union was unwilling to consider any accommodation other than in his position as conductor, nor would he agree to a physical examination to determine his functional restrictions. The arbitrator found that the union's demands constituted an undue hardship on the railway. At the same time he found that CN failed in its duty to consider all possible other assignments, at the location and region and throughout the system, including in other bargaining units. He allowed the grievance in part, ordering that a full assessment be done in accordance with the CROA caselaw and the Canadian Human Rights Act. Because of the union's refusal to contemplate other accommodation, there was no order of compensation. [Note: this award is available only in French.]
In CROA 3430, the arbitrator found that Art. 61.6 and Appendix 86 of the CN-TCRC(BLE) agreement applies only to rescue service in the situation of trains on extended runs.
In CROA 3431, CN had fired a locomotive engineer (30 years' service and a clear discipline record at the time) for failing to appear at a disciplinary investigation. The arbitrator found that the employee had no proper excuse for failing to appear, and indeed had been disciplined twice previously in his career for the same behaviour. At the same time, he said CN should have known that "summary termination is a sanction virtually unprecedented for merely failing to appear at an investigation". He ordered the engineer reinstated with one-half compensation.
CROA 3432: This case involves CN's alleged failure to accommodate a UTU member during a portion (almost 3 months) of her pregnancy. CN offered her a yard assignment which would have required that senior employee be displaced and possibly lose income. The union refused. The arbitrator found that the railway's offer was "reasonable" though perhaps not "optimal", and that the union did not have sufficient grounds to decline it out of hand. At the same time, he held that CN's proposal, taken alone, might have imposed an "undue hardship" on the senior employee. He ruled that there was a "shared breakdown" in the accommodation process and ordered compensation for one-half of the time lost.
CROA 3433: CN fired a conductor for "improper and fraudulent reporting of time" during a two-week period, despite his 30 years of service and what the arbitrator called an "extremely positive career discipline record, a record containing no suggestion of dishonesty". The arbitrator found that the company had tightened up its reporting procedures and failed to communicate the changes to the employees. He ruled that the grievor had been guilty of an "error of judgment" on one occasion, and ordered him reinstated with full compensation of wages and benefits, and an assessment of 15 demerits for carelessness in recording the time of another employee.
CROA 3434: This is a companion case to CROA 3433 above, involving a locomotive engineer charged with the same offence. In this case, the arbitrator also found that dismissal was too severe, and ordered the grievor reinstated without compensation, on account of his weightier discipline record.
CROA 3400S shows some of the interesting complexities which arise in implementing a "make whole" or compensation order by an arbitrator. Note also that a corrected version of CROA 3425 has been posted.
June 1, 2004: May CROA awards The following awards are from the May session of the CROA in Montreal:
CROA 3422: A CN conductor who operated a train without a printed clearance had his 60-day suspension reduced to 15 days.
CROA 3423, CROA 3424, CROA 3425, and CROA 3426 deal with the dismissal of a VIA customer service employee following a series of behavioural issues with fellow employees and customers. The grievor was reinstated without compensation after a lengthy suspension.
In CROA 3427, a VIA locomotive engineer was held out of service for several months for additional rest and medical assessment.
CROA 3428: A dispute concerning the reduction of guarantees for VIA locomotive engineers when a train delay caused a reduction in layover time.
May 11, 2004: Another 46 Ad Hoc awards Please click here for another instalment in the ongoing project to fill in the missing award gaps. A note of caution: many of the awards posted this time are extremely brief, obviously having been heard through a very expedited process, and may consequently be of little precedential value. Caveat emptor.
May 2, 2004: Shopcraft cases old and new Some old decisions have been located and posted:
SHP 389a: In this 1994 case, VIA argued the arbitrator couldn't compensate an electrician, previously reinstated at arbitration, because the union hadn't requested backpay in the joint statement. Arbitrator Jamieson ruled in the union's favour.
SHP 427 AFFIRMED: In 1998, Canadian Pacific -- for only the second time in history (the other time was SHP 182 , see court ruling at SHP 182A) -- sought to have the courts overturn a shopcraft award.
SHP 579: This case, actually heard in 2000, involved the discharge of a VIA electrician for falsifying his employment application and failing to attend two disciplinary investigations.
The new awards include four shopcraft grievances against BC Rail ( SHP 575, SHP 576, SHP 577, and SHP 578). On CP Rail, SHP 580, SHP 581, and SHP 582 all deal with disciplinary incidents involving an employee in Toronto, leading to his dismissal for accumulation of demerits. In SHP 583, Arbitrator Picher held that in the particular circumstances of this grievance, an incorrect overtime call could not be appropriately compensated through a "remedy in kind", and he ordered a cash payment instead. In SHP 584, he had to consider a claim for a relocation lump sum where the employee bought a house 20 months after relocating.
April 23, 2004: April CROA awards You will find eleven awards from the April CROA session in Montreal by clicking here.
April 10, 2004: 59 Missing Ad-Hoc Awards - Found! Thanks to vigilant visitors and to Colette Newton of CROA, we have retrieved and posted 59 more awards in the Ad Hoc series. Most are running trades decisions from various railways, dating from 1970 to 1995. Click here to view them. If you spot missing awards or broken links, let me know. The main Ad Hoc page has also been revamped at long last.
March 23, 2004: March CROA awards We have received seven awards from the March CROA session as well as one (3398) which was heard in January.
CROA 3398: A maintenance of way employee receiving a 20% workers’ compensation permanent disability pension claims he is fit to return to his original position without restrictions. The arbitrator rules that he must get his permanent disability “lifted" first.
CROA 3409: A running trades employee was fired after he attempted to submit time claims for a period during which he was serving a disciplinary suspension. The arbitrator finds that it was a “serious error" rather than fraud, and orders him reinstated without compensation.
CROA 3410: A dispute over whether time lost by a locomotive engineer while attending a health and safety committee meeting constituted “actual time lost" under Art. 75.3 of the CN agreement.
CROA 3411: Applicability of the monthly guarantee to a locomotive engineer.
CROA 3412: A 28-year service maintenance of way employee is dismissed for a one-week unauthorized absence.
CROA 3413: The abolishment of a bargaining unit position and the transfer of some of the duties to management personnel.
CROA 3414: Calculation of weekend mileage allowance for maintenance of way employees.
CROA 3415: An employee suffering from alcoholism who had been terminated and reinstated on previous occasions is again terminated after a further relapse.
January 27, 2004: New CROA Awards Here in brief are the themes of eight (8) awards released after the January CROA session in Montreal.
CROA 3393: VIA vs. BLE re payment for lifting and setting out of locomotives.
CROA 3394: 25 demerits issued to VIA locomotive engineers for late departures of trains.
CROA 3395: VIA engineers disciplined for not whistling long enough at crossing.
CROA 3396 and CROA 3397: Dismissed CN BMWE foreman reinstated with demotion.
CROA 3399: Whether CP BMWE members on Employment Security who avoid relocation through "8 on 8" protection must fill positions in other bargaining units.
CROA 3400: CN Traffic Coordinator dismissed for computer error reinstated with 10 demerits and full compensation.
CROA 3401: Whether union is bound by a reinstatement deal signed by a low-ranking union representative (CN vs. UTU).
January 24, 2004: BC Rail Running Trades Awards Today's update features 21 Ad Hoc awards between BC Rail and its running trades unions. Most involve CAW Local 110 (formerly Canadian Union of Transportation Employees Local #1), representing Locomotive Engineers, and there are one or two with the United Transportion Union. Instead of summarizing them (no time), I've set them out in a table with descriptive titles.