Canadian Railway Arbitration Awards - 2005 Archive

September 24, 2005: Shopcraft arbitration update

SHP 585: [CN v. CAW Local 100, Arbitrator Chris Albertyn] A car mechanic in Edmonton suffered a back injury at work in October 2003. He sought medical treatment, filled out a company injury form, and spent more than one month off work. The union side of the Health and Safety Committee was only notified of the injury at the next regular monthly meeting – after the worker had returned to work. Local 100’s negotiated Health and Safety Plan calls for not only injuries, but even "near misses" which would have involved first aid or medical attendance, to be jointly investigated by the union and company committee co-chairs. Such joint investigations must be conducted "expeditiously", in "good faith", and a "cooperative spirit". The arbitrator rejected CN’s argument that the committee meeting more than one month later fulfilled the requirement of a "joint investigation", and agreed that the union had not been notified. He went on to say: "The purpose of a joint investigation is so that the union and the company can obtain information which is fresh in people’s that lessons can be learned...which might be applied to avoid a recurrence of the accident or incident." The arbitrator concluded by ordering CN to comply with its obligations of prompt notice to the union and joint investigation.

SHP 586: [CN v. CAW Local 100, Arbitrator Chris Albertyn] In December 2003, CN announced that the Local 100 Health and Safety Committee at Gordon Yard in Moncton would cease to exist. In its place, an "Inter-Functional Committee" would be set up and meet only once every three months. The union grieved that this unilateral action violated not only the Health and Safety Plan but also the Canada Labour Code, which mandates a minimum of nine meetings per year. CN told the arbitrator that because of the reduced mechanical workforce at Gordon Yard, it had decided that a separate committee was no longer necessary, and that the needs of the shopcraft workers there could be better addressed through an Inter-Functional Committee. The arbitrator concluded that it was not his job to decide which structure was better. The agreement between the parties forbade the unilateral elimination of the separate Health and Safety Committee, just as it forbade the reduction of the frequency of meetings to less than one per month. He ordered CN to restore the status quo.

SHP 587: [CPR v. CAW Local 101, Arbitrator Michel Picher] In March 2004, the Company announced the abolishment of 32 trades positions at the Ogden Shops in Calgary (managed by Alstom on CPR's behalf). In the course of the displacement procedures, the Company required a number of affected tradespersons to displace members of different trades who were "unprotected" (that is, who were not eligible for Employment Security protection). The arbitrator confirmed that such "cross-craft bumping" was consistent with the terms of the collective agreement.

SHP 588: [CPR v. CAW Local 101, Arbitrator Michel Picher] An engine attendant (hostler) at Sutherland, Saskatchewan was assigned to a "swing shift" as follows:

Thursday 16:00 to 24:00
Friday 16:00 to 24:00
Saturday 08:00 to 16:00
Sunday 08:00 to 16:00
Monday 00:01 to 08:00

The Union argued that this shift violated section 169(1) of the Canada Labour Code, which provides that "the standard hours of work of an employee shall not exceed eight hours in a day and forty hours in a week", and where a day is defined as "any period of twenty-four consecutive hours" (i.e., not necessarily a "calendar day" commencing at midnight). The arbitrator agreed with Union, noting that: "[T]he standard hours provisions of the Code contemplates eight hours on and sixteen hours off in a twenty-four hour period. In other words, as a general rule as part of his or her standard hours of work an employee should enjoy sixteen hours’ rest between shifts. In the grievor’s case, on two occasions during the week, he is limited to eight hours off, scarcely sufficient time to make his way home, have time for a meal, a reasonable night’s sleep, another meal and a return to work."

SHP 589: [CPR v. CAW Local 101, Arbitrator Michel Picher] An engine attendant (hostler) negligently released the air brakes on a locomotive and later allowed it to be uncoupled, causing it to roll a few feet and contact a derailer, whereupon one wheel left the track. The employee was assessed 25 demerits and a one-year demotion to the position of labourer, largely because of his previous record of similar infractions. The arbitrator, having regard to the specific circumstances, held that "the assessment of twenty-five demerits would, of itself, have been sufficient to place the grievor on notice with respect to the need to improve his care in the safe handling of locomotives and to cause him to realize that any future infractions could have the most serious of consequences. Noting also the theme from the jurisprudence, that "demotion is not considered to be a proper form of discipline absent clear evidence that the circumstances disclose that the employee is incompetent to perform the job", the arbitrator voided the demotion and ordered compensation.

SHP 590: [CPR v. CAW Local 101, Arbitrator Michel Picher] Under the Special Agreement which signalled the closure of the Montreal Angus Shops in 1992, as amended in 1995, affected employees were entitled to eight years of Employment Security benefits, and they could bridge to retirement if they reached the requisite age and service at any time during those eight years (or longer, if they performed approved work inside or outside the railway). In this case, the two grievors actually submitted their applications for bridging shortly after exhausting their eight years of ES benefits, and were denied. The Company argued that the bridging benefit could only be claimed if employees, by bridging, either removed themselves from ES or created a vacancy to remove another employee from ES. The arbitrator disagreed, noting that there was no language in the Angus Agreement to support that theory. Moreover, he said, "it is difficult to escape the logic of the submission made by the Union’s representative, to the effect that the Company’s position results in a substantial windfall to the employer".

SHP 591 and SHP 591S: [CN v. Local 100, Arbitrator Allan Hope] Both awards relate to incidents where a car mechanic refused to change wheels on a coal train and was disciplined for insubordination. The arbitrations are factually rather complex, dealing first with the question of why the employee refused (management believed he was citing seniority issues, while the union argued he was claiming that the work was inconsistent with his medical restrictions). The matter was resolved before the completion of the arbitration hearing, but then gave rise to supplementary disputes concerning the implementation of the agreement.

SHP 592: [CN v. CAW Local 100, Arbitrator David Jones] The Union grieved when CN announced that wash-up time would be restricted to five minutes before the end of the shift, claiming that CN's past practice had been to allow at least ten minutes. The Company argued that there was no reference to wash-up time in the collective agreement, nor had the Company ever said or done anything that would lead the Union to believe that such a practice would continue, nor had the Union ever relied on such a "representation" to its detriment. In other words, besides an absence of language in the agreement, the classic elements of "estoppel" were not present. The arbitrator agreed with the Company.

SHP 593: [CN v. CAW Local 100, Arbitrator Kevin Burkett] The grievor had over 30 years’ service at CN’s Mac Yard in Toronto and was a former president of the local union lodge. At the time of his dismissal, he was Union Co-Chair of the Health and Safety Committee. After several discipline-free years, three separate incidents from September 2002 to June 2004 took him from 0 to 65 demerits and dismissal. The arbitrator, while ruling that discipline was justified in most cases, found that in at least one incident, the grievor had been deliberately singled out for harsher discipline than other employees. He commented: "To increase the severity of the penalty because an individual holds a union health and safety representative position is tantamount to penalizing that individual for holding the position." He struck down 30 of the demerits and ordered the grievor reinstated with full compensation for lost time.

SHP 594: [CN v. CAW Local 100, Arbitrator David Jones] Two car mechanics were assessed 40 and 29 demerits respectively for violating a "Track Occupancy Permit". They were also prohibited from occupying secondary assignments involving Canadian Railway Operating Rules for a period of 12 months, subject to review after that period. The arbitrator agreed that the levels of demerits were high, but did not disturb them because of the grievors' prior records. As for the work restriction, noting that they passed their CROR test some six months after being disciplined, he commented: "In the absence of an existing rule or clearly articulated policy to this effect, in my view it was not appropriate for the Company to impose a minimum 12-month restriction from secondary assignments involving TOP authorities... [T]he restriction should have been terminated when the Grievors completed the course and passed the examination in September 2004. He ordered compensation for the grievors from that point onward.

SHP 595: [CN v. CAW Local 100, Arbitrator David Jones] A car mechanic was dismissed after being assessed 35 demerits for insubordination after an incident in which he called his supervisor a "moron", and 15 demerits for grinding without a face shield (he had previous demerits on his record which gave rise to accumulation beyond 60). At the arbitration hearing, the Company raised additional allegations about the "moron" incident which were not put to the grievor at the original disciplinary interview (involving the alleged presence of other employees, physical threats, etc.). The arbitrator disallowed any of the allegations which were not put to the grievor originally, and found that the incident, while amounting to insubordination, qualified as a "minor" case. He reduced the 35 demerits to 20. As for the safety violation, the arbitrator commented: "[S]afety is not negotiable and not optional; safety rules must be complied with 100% of the time." He maintained the 15 demerits, leaving the grievor with a total of 55, and ordered reinstatement with full compensation.

September 10, 2005: June and July CROA awards

Sorry for the long gap between updates and for the absence of the now customary summaries. Cases BACF 3489 to CROA 3496 were heard in June in Montreal, while the balance of those listed are from the July session in Edmonton. Arbitrator Picher presided at both sessions.

  • BACF 3489: [French only]Via Rail Canada Inc. et Conférence Ferroviaire de Teamsters Canada sur Requête Émanant d’une Seule Partie Litige : La Corporation refuse de compenser M. Laroche pour la perte de salaire, de bénéfices et autres préjudices.

  • CROA 3490: CNR and UTU Dispute : Union Policy Grievance - "Travel Between Port Huron, Michigan and Sarnia (and vice versa) - The Union submits, inter alia, that the Company is in violation of Articles 6.1(b), Article 9.9, Article 17.2 and Article 85.3 of Agreement 4.16.

  • CROA 3492: CNR and UTU Dispute : The assessment of demerit marks, and subsequent discharge for accumulation of demerits in excess of sixty, to Conductor "G".

  • CROA 3493: CNR and CAW Ex Parte Dispute: The institution of a reward program at Winnipeg Intermodal Program.

  • CROA 3494: CPR and Teamsters Canada Rail Conference(Rail Canada Traffic Controllers) Dispute : Assessment of 50 demerit points to RTC B. Wills and his subsequent dismissal for an accumulation of demerit points.

  • CROA 3495: Via Rail Canada Inc. and CAW Dispute: The assessment of a ten day suspension to Mr. Kenneth Fleming for failure to satisfactorily complete duties.

  • CROA 3496: Via Rail Canada Inc. and CAW Dispute: The assessment of ten demerits and twenty demerits to the discipline record of Mr. Kenneth Fleming which resulted in his dismissal for accumulation of demerits.

  • CROA 3497: Canpar and United Steelworkers Of America, Local 1976 Dispute: The assessment of 30 demerit marks to Mr. Colin Primeau for failure to follow direction of authorized personnel.

  • CROA 3498: Canpar and United Steelworkers Of America, Local 1976 Dispute: Twenty-five (25) demerits issued to London employee Mr. Dave McMaster for alleged “physical and verbal abuse” towards a Company official on December 10, 2004. Plus payment for the one and one-half days lost time plus travel and meal expenses incurred while held out of service regarding this matter.

  • CROA 3499: CPR and Teamsters Canada Rail Conference Dispute: Whether Locomotive Engineer Longworth was properly restricted to a non-safety sensitive position due to a medical condition and whether the Company fulfilled their duty to accommodate him.

  • CROA 3500: CPR and TCRC Dispute: The discipline and discharge of Mr. Brandt of Calgary.

  • CROA 3501: CPR and TCRC Dispute: Mr. Brian Martin’s claim for pay pursuant to article 25.08 of the parties’ collective agreement.

  • CROA 3502: CNR and United Transportation Union Ex Parte Dispute: The abolishment of yard assignments and subsequent replacement by a road switcher in Regina, Saskatchewan.

  • CROA 3503: CNR and United Transportation Union Ex Parte Dispute: Removal from service of Mr. Dennis I. Werboweski.

  • CROA 3504: CNR and CAW Ex Parte Dispute: The abolishment of five Train Movement Clerk positions at Clover Bar and the reassignment of their work.

  • CROA 3505: CPR and TCRC Maintenance Of Way Employees Division Dispute: The return to work and accommodation of Mr. Dan Baker.

    June 6, 2005: May CROA awards

    The May CROA cases were heard by Arbitrator Picher in Montreal.

    CROA 3483: [VIA v. TCRC] A locomotive engineer was assessed a total of 35 demerits for two incidents, in one of which he had disobeyed an order regarding the yarding of his train, and in another of which he had departed a station early causing a passenger to miss the train. Having 45 demerits already on his record, he was dismissed for accumulation of demerits. The arbitrator found that his actions were culpable in both cases, but pointed to mitigating factors (his 31 years of service and a 14-year period without discipline) in order to reinstate him without compensation.

    CROA 3484: [Canpar v. USWA] An employee was assessed 20 demerits for having allegedly spoken to a lead hand in a threatening manner. In the arbitrator's view, the matter boiled down to issues of credibility of the various accounts as well as corroboration. The grievance was dismissed.

    CROA 3485: [Canpar v. USWA] A delivery driver's vehicle sustained minor damage when he misjudged clearance while backing up. With 50 demerits already on his file, he was assessed nine demerits and a 3-day suspension. The arbitrator found no grounds on which to disturb the discipline.

    CROA 3486: [Canpar v. USWA] The grievor (the same one as in CROA 3485) was dismissed after a culminating incident of insubordination. Despite his relatively long service (1987), the arbitrator found that the employer had properly applied the principles of progressive discipline over a variety of incidents and that there was no reason to alter the final outcome.

    CROA 3487: [Canpar v. USWA] An employee left work in July 2003, claiming incapacity to work because of stress originating with a manager's behaviour, and has never returned. The employer took corrective action with respect to the manager and conducted several meetings aimed at reintegrating the grievor to the workforce. The grievor rejected all efforts to bring him back, and the arbitrator said he would have been inclined to agree that the employer made every reasonable effort at accommodation, but for one peculiar factor -- namely, that the Union was only made aware of the grievor's psychiatric diagnosis shortly before the hearing, and that it could not therefore have fully played its role in helping to propose a suitable accommodation. Accordingly, the arbitrator ruled that the grievor should be given a further limited opportunity -- of one year's duration -- to seek medical assistance, report quarterly to the Company and the Union, in an attempt to get back to work; failing which, his employment relationship will be severed.

    May 4, 2005: April CROA awards

    Arbitrator Picher presided over the April CROA session in Montreal:

    CROA 3476: [CN v. TCRC] The union sought an adjournment of the hearing into the dismissal of a locomotive engineer local chairperson, on the basis that the Canada Industrial Relations Board would be hearing the same issues and beginning earlier than the scheduled arbitration. The arbitrator noted that part of the union's allegation involved "anti-union animus" (that is, that the company's actions were in part motivated by the grievor's union position or activities), and that since the CIRB would be hearing evidence on this point, there was a risk of conflicting decisions if both hearings proceeded simultaneously. He granted the adjournment.

    CROA 3477: [Canpar v. Steelworkers] A driver was assessed 10 demerits for failing to check his fuel level before leaving on his route and not bringing the company credit card with him. The arbitrator found that the company's allegations were well-founded. He also rejected pleas that other employees in this situation had not been disciplined, because no supporting evidence (names, dates, etc.) was provided.

    CROA 3478: [Canpar v. Steelworkers] An employee's suggestion that it was too warm in the room chosen for a Health and Safety Committee meeting resulted in a heated argument with a supervisor. The employee was disciplined when the supervisor alleged he heard the employee invite him to settle the matter by taking it "outside". The arbitrator found that the comments were susceptible of more than one interpretation, and given the seriousness of the charge, gave the employee the benefit of the doubt. He reduced the penalty to a written reprimand, holding that while no threat was proved, the heated argument was inappropriate and deserving of some discipline.

    CROA 3479: [VIA v. CAW] An Agreement 2 on-board employee was diagnosed with severe bilateral osteoarthritis of the hips and scheduled for replacement surgery with a six-month wait, with restriction to sedentary duties in the meantime. VIA rejected his repeated requests for modified duties based on its view that the law and the collective agreement do not require any accommodation of non-work-related disabilities of a "temporary" nature. The employee filed a complaint with the Human Rights Commission. After recovering from his surgery, the employee again applied for accommodation through a progressive return to work over a six-week period. VIA was prepared to agree but only if the grievor signed away his claim for the initial six months (which he had spent on weekly indemnity benefits, approximately 70% of salary). When he refused, VIA withdrew its offer of accommodation. The grievor returned to work on full duties, overcoming his pain.

    The CAW sought 100% of salary for the entire period as well as punitive and exemplary damages, claiming that VIA's violation was flagrant ("egregious"). VIA noted that no grievance had been filed until nine months after the initial refusal, and asked that the arbitrator ignore that period entirely even if he were to rule in the union's favour.

    The arbitrator wrote: "Clearly the preponderance of the jurisprudence recognizes that a temporary or curable injury, illness or physical condition can qualify as a handicap or disability within the meaning of a provincial human rights statute or the Canadian Human Rights Act. Under the current state of the law it would be unthinkable to exclude from the protections of human rights legislation persons whose illness or disabilities might, for example, include a debilitating but treatable form of cancer, a heart condition or extensive treatable physical injuries caused by a motor vehicle accident." He went on to say: "The failure of the Corporation to even consider the means by which Mr. Thomas might be accommodated short of undue hardship can understandably be characterized, as the Union would have it, as an egregious violation of the Act." He also agreed with the union (even though it was not essential to his decision) that osteoarthritis cannot be characterized as a "temporary" disability. Despite the untimeliness of the grievance, he awarded the grievor 100% of salary and benefits for the full period when his personal physician pronounced him able to work at modified duties.

    While agreeing that the powers accorded to arbitrators by the Canada Labour Code "are sufficiently broad to give this Office the jurisdiction to make the kind of punitive and exemplary award being sought by the Union in the case at hand", he decided not to do so, primarily because for nine months the choice had been made to pursue the human rights complaint without filing a grievance.

    CROA 3480: [VIA v. CAW] The union grieved when Quebec-based crews were assigned to operate beyond Toronto, claiming this as the work of Toronto-based crews. The arbitrator ruled that the mere fact that the collective agreement set out seniority groupings on a geographic basis was not enough, without explicit language, to infer that particular work was exclusively reserved to crews from that grouping. He did not rule on VIA's broader claim that it was entitled to assign crews anywhere in the country, regardless of their seniority grouping, except for this note of caution: "While it is difficult to see how it could do so without entirely undermining the significance of article 10 of the collective agreement governing seniority, that is clearly not the matter at issue in this grievance."

    CROA 3481: [CN v. TCRC] The grievor, a locomotive engineer, was also a UTU union representative and member of the health and safety committee. He was assessed a 14-day suspension and later dismissed for allegedly claiming wages to which he was not entitled during nine absences for union business. The arbitrator rejected the union's preliminary objection that the investigation was unfair because (among other things) the investigating officer consulted with another manager who was not present: "While it would obviously depart from fairness and impartiality if the proceedings were in fact being conducted by an unseen manager, the fact that an investigating officer might seek advice from an another member of management does not vitiate the proceedings, any more than if the Union representative in attendance seeks an adjournment to consult with another Union officer, provided that the frequency of such consultations is not excessive or abusive." On the merits of the case, the arbitrator found that the grievor committed a "serious error of judgement" on one of the occasions, which merited 20 demerits. On all occasions, however, there was no evidence of any attempt to defraud the company. The arbitrator ordered the grievor reinstated with full compensation for all time off work since his dismissal as well as compensation for the 14-day suspension.

    BACF 3482: [CN v. UTU, available in French only] The company, which identified a staffing shortage in Joffre yard and a surplus in Edmunston, relied on a 1995 agreement on equal sharing of workload to address its problem. The union grieved that this agreement was no longer in effect. It noted that the original agreement was signed only by one of three General Chairs (not including the one for eastern lines), and that during a major rewrite in 2001, some clauses of the 1995 agreement were incorporated into the text of the collective agreement, but not the one concerning division of work. The arbitrator agreed, noting (as he often has before) the importance of the written word as opposed to some other understandings. He also rejected the company's contention that the parties had made an "error" in not including this principle during the collective agreement rewrite.

    March 20, 2005: February and March CROA awards

    Three awards were issued by Arbitrator Moreau at the February session in Montreal:

    CROA 3466: A CN conductor was dismissed for allegedly telling a supervisor to "f*** off" and threatening and intimidating her. The arbitrator discounted the allegation of threats, but took the swearing very seriously, saying: "The comments were totally inappropriate and the onus falls on the grievor to demonstrate that the employment relationship is salvageable after such a serious affront to the authority of his supervisor." The grievor had a spotty discipline record over 26 years of service and had served 20 years as union local chairperson. The arbitrator reinstated him to service without compensation (an eight-month suspension), concluding: "The grievor is a senior employee and must set the example of good behaviour for the sake of his reputation and that of the Company's."

    CROA 3467: The UTU claimed in a policy grievance that CN was improperly denying time claims beyond the 30-day limit provided by the collective agreement. The arbitrator agreed and issued a cease-and-desist order.

    BACF 3470: [French only] A CN maintenance of way employee with 15 years' service assaulted and caused serious injury to a fellow employee while both were travelling on a VIA train on their own time. The grievor was later found not guilty in a criminal trial. Nonetheless, the arbitrator found that the grievor had committed the offence without provocation and aggravated it by denying responsibility all along. He upheld the dismissal.

    The following five cases were heard by Arbitrator Keller in March in Montreal:

    CROA 3471: A CN conductor was assessed 30 demerits and dismissed (for accumulation of more than 60) for absenteeism related to child care responsibilities. The grievor had been disciplined twice before, 10 years earlier, for similar actions. The arbitrator approvingly cited CROA 3077, where Arbitrator Picher had said that "absent extraordinary circumstances, [absence from work to provide child care] must be viewed as a failure on the part of the grievor to plan responsibly to allow himself to be available to fulfil his employment obligations". The 12-year service employee was reinstated without compensation.

    CROA 3472: A VIA Rail locomotive engineer was assessed 45 demerits for what was described as a cardinal rule violation (CROR Rule 42). The arbitrator, while finding that 45 demerits was at the "high end" for such an offence, and notwithstanding the grievor's long service (he was retired by the time of the arbitration hearing) and that he had been discipline-free, upheld the discipline. He did so in part because of the seriousness of the infraction and in part because of "the lack of candour of the grievor and his failure to accept responsibility for the situation".

    CROA 3473: A VIA employee belonging to the CAW, assessed 30 demerits for an unauthorized leave of absence lasting more than 5 weeks, filed a grievance more than seven months later. He had hired a recently retired union staff representative as a "labour consultant" and charged the union with unfair representation in the meantime. The arbitrator ruled: "It was his decision, for whatever reason, to engage the services of [the "labour consultant"], making it that much more difficult for his certified bargaining agent to properly represent him." As the grievor's own actions led to the delay in filing the grievance, the arbitrator declined to use his powers under the Canada Labour Code to waive the time limits, and the grievance was dismissed.

    CROA 3474: A VIA employee was approved by his physician to return to work on Jan. 1, 2004, but did not return as scheduled. He tried to introduce a new medical note at a disciplinary investigation a week later (the note revised his expected return date to May 2004), but the employer refused to accept it because it was dated after, not before, the scheduled return to work. The grievor was assessed 30 demerits and fired for accumulation of demerits. The arbitrator, noting that in fact the doctor's note did show absence for medical incapacity, found that the assessment of discipline was "at best, premature and, at worst, unwarranted". He ordered the dismissal rescinded and the grievor made eligible retroactively for all health insurance benefits (because in the event, he was still unfit for work at the time of the hearing). He declined to award damages for violation of the Canadian Human Rights Act, because he found that the discipline was based, not on any prohibited ground of discrimination, but rather on the employer's "perception that the grievor was capable of returning to work" as stipulated by the physician's first note.

    CROA 3475: A probationary Rail Traffic Controller stated on an Employment Medical Examination Report that she was not suffering from any psychiatric condition or taking medication. When she later told her supervisor she couldn't work swing shifts because of taking anti-depressants, she said she had assumed the company would check into this issue so there was no need to mention it on the form. She also falsely claimed that the company doctors knew of her condition and had cleared her for use of these drugs. The arbitrator understood that the grievor had not wanted to "broadcast" this private information, but held that she was obliged to reveal it to the employer's medical staff who would then have been required to keep it confidential. By providing inaccurate or misleading information, the grievor had removed any obligation on the employer's part to try to accommodate her medical problem. The dismissal was upheld.

    January 23, 2005: January CROA awards

    All five CROA decisions this month involved CN and the UTU, and all but one deal solely with preliminary objections brought by the railway.

    CROA 3464: Under the conductor-only agreement, early retirement opportunities had to be offered at locations where there was a "surplus" of employees. CN advertised credits only at terminals where it had established a furlough board. The UTU argued that a surplus could exist even where there was no furlough board, for example where there are laid-off unprotected employees, and that opportunities had to be offered at such locations. The arbitrator issued a declaration in favour of the union's interpretation and remitted the matter back to the parties for implementation.

    CROA 3465: [This award is a must read.] A UTU member alleged that CN officers harassed and intimidated him in connection with a personal illness and work-related injuries, as well as putting pressure on him to disclose the nature of his personal illness. In July 2004, the grievor filed a complaint under CN's harassment policy, and the union subsequently filed a grievance in September, alleging that CN and its named officers had violated CN's Human Rights Policy, the Canadian Human Rights Act, the Privacy Act, the Canada Labour Code and the Canadian Charter of Rights and Freedoms. CN filed a preliminary objection, saying that because the grievance didn't allege any violation of the collective agreement, the arbitrator had no jurisdiction to hear the matter. Arbitrator Picher found that while arbitrators might have agreed with CN's point in the past, the Supreme Court of Canada's recent Parry Sound decision has changed all that. In essence, the Court has said that every employment-related law should be considered as forming part of all collective agreements, and that arbitrators can rule on violations of the law even where the dispute is not directly "grounded" in an article of the collective agreement. Arbitrator Picher rejected CN's objection. In a final twist, however, he noted that because the legislative department of the UTU was also involved in the grievor's separate harassment complaint, CN should not have to defend itself against the union simultaneously in two forums. He therefore put the arbitration in abeyance until such time as the harassment complaint is resolved or withdrawn.

    CROA 3466: CN had filed a preliminary objection claiming that this grievance regarding the dismissal of a conductor was untimely, but withdrew the objection at the hearing. The matter will be rescheduled at a later date. [The final award is now posted.]

    CROA 3467: Based on evidence that it heard at a Canada Industrial Relations Board hearing, the union filed a grievance charging CN with having improperly clawed back various time claims in an untimely fashion (sometimes months after the fact). CN filed a preliminary objection saying the arbitrator could not hear the grievance because it was not sufficiently specific. The arbitrator found that the grievance was clear enough to constitute a policy grievance which could be settled first and then (if successful) applied to specific time claims later. The matter will therefore be scheduled for hearing. [The final award is now posted.]

    CROA 3468: The union filed a grievance in December 2002 concerning monetary deductions to Traffic Coordinators on the Halifax Spareboard for not being available on scheduled days off. CN never replied. In March 2003, the union asked for an indefinite extension of time limits; CN never replied. A year later, in March 2004, the union filed a policy grievance which essentially repeated the same claim as the original 2002 grievance. This time, CN replied saying the grievance was outside the time limits. The arbitrator said that when CN didn't reply to the original grievance within its time limits, nothing stopped the union from pursuing that grievance to conclusion. In the absence of any compelling explanation for the union's delay, the arbitrator declined to use his powers under the Canada Labour Code to revive the grievance.

    January 11, 2005: December CROA awards

    Happy New Year to all! The following arbitrations were heard in Montreal by Mr. Picher.

    CROA 3445 Supplementary: In CROA 3445, the arbitrator agreed with the UTU that CN owed seven Conductor Only Pension Credits at Capreol. When CN subsequently bulletined the credits, a dispute arose as to whether there were any employees were "surplus" at the time. The arbitrator said this dispute was not connected with the original award and the union would have to file a new grievance if it wishes to pursue it.

    CROA 3458: For decades, VIA Rail has deducted provincial medicare premiums from its B.C. employees' pay and remitted them to the government on the employees' behalf. On the day after the CAW ratified its three collective agreements (Aug. 30, 2004), VIA announced it would unilaterally cease this unwritten practice. The union argued that even though the practice was not enshrined in the collective agreements, the situation met the judicial definition of "estoppel". The arbitrator agreed, ordering that VIA resume and continue the deductions for the duration of the collective agreement, at which time the parties will be free to bargain over the issue.

    CROA 3459: This is a dispute between CN and the TCRC (Locomotive Engineers) stemming from the abolishment of two road switcher assignments in Winnipeg and the corresponding creation of two assignments out of Brandon. The arbitrator ruled in favour of the company, although he did reject CN's argument that article 1.7 of the collective agreement could be read as defining the geographic jurisdiction of assignments.

    BACF 3460: [Award in French only] A Turcot Yard traffic coordinator violated CROR rules when he authorized a train to back up without personally ensuring that it could do so without obstruction, thus causing a costly derailment. The grievor had 55 demerits on his file prior to the incident, for which he was assessed 40 and dismissed by CN. The arbitrator found no reason to reduce the penalty.

    CROA 3461: CN disciplined a UTU conductor, with 32 years' service and a single written warning on his record, for "conduct unbecoming" arising from passenger complaints on two occasions. One of the incidents was more than four months old at the time of the investigation, and the arbitrator ruled that "it is unfair for it to review that incident or to couple it with the fresher re-occurrence on February 18, 2004". He went on to find that discipline was justified for the more recent incident, but that the company's removal of the grievor from all passenger service was excessive. He permitted CN to respond to the Ontario Northland's request to remove the grievor from its trains, but ordered that he be allowed to bid on GO Train assignments.

    CROA 3462: CN instructed a conductor who had commenced an assignment in straightaway service to swap trains enroute. The UTU grieved that this was contrary to a mutual agreed-upon "ruling" reached by the parties in an identical situation in 2001. The company replied that nothing in the collective agreement prevented their action. The arbitrator decided it was unnecessary for him to rule as to who was right or wrong with respect to the collective agreement. He held that the 2001 "ruling" bound the parties until the next collective agreement and ruled in the union's favour -- another "estoppel" decision.

    BACF 3463: [Award in French only] A Canpar employee was dismissed for failing on two occasions to remit COD payments received on his delivery route from customers. The arbitrator found that his failure, while seriously negligent, was not tantamount to deliberate theft, for a number of reasons relating to the facts of the case. He noted that in a charge which is "quasi-criminal" in nature such as this one, the employer has the burden of showing clearly that the grievor consciously defrauded the employer with the aim of turning the money to his own benefit. As the proof was insufficient, the arbitrator ordered the reinstatement of the grievor without compensation.