Canadian Railway Arbitration Awards - 2006 Archive

April 16, 2006: CROA updates since September 2005

We're back after a long absence with 38 CROA awards since September 2005. Hopefully the updates will be regular again. Watch also for new Shopcraft and Ad Hoc cases in the near future.

September awards (M. Picher, Montreal)

BACF 3506 [French only]: CN v. TCRC re company claim that an error was made when three words ("after 8 hours") had inadvertently been added to the final version of the February 3, 2003 Memorandum of Agreement. CN asked the arbitrator to apply the "doctrine of rectification", a relatively rare procedure whereby a collective agreement or other text can be "corrected". The arbitrator, however, pointed out that he can only make a change where it is proven that the document did not reflect the intent of both parties. In this case, the evidence showed that the union representative asked for and desired this change. The fact that the company representative made a mistake, or didn't understand the issue, was insufficient to "correct" the text.

CROA 3487S2: CANPAR v. USWA re a dispute as to whether the company or the grievor had to pay for the cost of filling out his medical forms based on the earlier award CROA 3487.

CROA 3491: CN v. UTU re Union Policy grievance under the provisions of article 84 of the 4.16 collective agreement, concerning non-bargaining unit employees (including management employees) performing bargaining unit work.

CROA 3507, CROA 3508 and CROA 3509: CN v. UTU re appropriate remedy regarding the violation of articles 102 and 15 of collective agreement 4.3 involving train 202 in Winnipeg on May 2, 2005. This case involves the special "remedy" provision of the UTU collective agreement dealing with "repetitive violations of the collective agreement". The arbitrator decided that: "[T]his is an appropriate case for the application of the remedy provisions, having particular regard to the parties' own acknowledgement of the deterrent value of the remedy provision. I am not satisfied that in these circumstances counselling managers is sufficient..."

CROA 3510: CN v. CAW re treatment of an Owner Operator at the hands of the Company.

CROA 3511: VIA v. CAW re employee dismissed for "abusive language and behaviour and insubordination". The dismissal was upheld, with the arbitrator concluding that: "While it may be that the grievor has a relatively good work record, and received commendations for the quality and productivity of his efforts as an employee, the long-term record discloses an individual who, notwithstanding prior discipline, including dismissal, operates in the workplace as an unpredictable temper time-bomb."

CROA 3512: VIA v. CAW re assessment of 30 demerits for misuse of company property with the intent of discrediting the Corporation.

CROA 3513: VIA v. CAW re the two-year demotion imposed on a Service Manager. When two on-board employees had been insubordinate, the Service Manager was ordered to remove them from service and not to honour their train passes for the return trip home. Because he deemed that the employees could not finance their own way back, the Service Manager disobeyed the instruction. The arbitrator commented: "The prospect of a transportation employer effectively abandoning its employees in a remote location, without their own means to return to their home base is disturbing, to say the least." He held that the grievor was justified in disobeying the order and that no discipline should be imposed on that account. However, he also found that the grievor was not fully candid in reporting the events to his superiors and had breached the trust inherent in his position. He reduced the two-year demotion to one of six months.

October awards (J. Moreau, Montreal)

CROA 3514: CPR v. TCRC (Maintenance of Way) dealt with whether employees on Employment Security, while employed outside the Company, were subject to recall to positions in other CPR unions within their Basic Seniority Territory. The arbitrator ruled that they were.

CROA 3515: CPR v. TCRC (Maintenance of Way) re the characterization of, and the wage scale associated with, new trucks being introduced by the Company.

CROA 3516: CN v. UTU re the assessment of 45 demerits against an employee for attempting to receive $27,000 in relocation expenses to which he was not entitled.

BACF 3518 [French only]: CANPAR v. USWA - the arbitrator reduced from 20 to 10 demerits a penalty for the use of disrespectful language to a supervisor.

BACF 3519 [French only]: CN v. UTU re the reduction of two positions out of 16 at Garneau. The arbitrator held that the collective agreement provisions did not establish a "floor of employment", and that such a substantial guarantee would have required clear language.

November awards (M. Picher, Montreal)

CROA 3517: CN v. UTU re payments for "doubling" and 12.5 miles.

CROA 3520: CP v. TCRC re assessment of 40 demerits and dismissal for accumulation account "crossing over the leading edge of a car in motion and for stepping over the rail, between two cars, while in a subsequent conversation with a supervisor, without obtaining three point protection for his train."

CROA 3521: CP v. TCRC re 30 demerits, and dismissal for accumulation, of an employee for entering a main track and leaving equipment unattended without proper authority.

CROA 3522: CP v. TCRC re the dismissal of a very junior conductor for serious deficiencies in his work and not having the capacity to work as a conductor. The arbitrator, while agreeing with the company's assessment, found that there was no documentary proof that the employee had been properly trained. He ordered him reinstated, without compensation, as a "new hire" and that he be given the benefit of full training and evaluation.

CROA 3523: In this CP v. TCRC case, the arbitrator maintained the dismissal of a conductor, finding that this "employee of relatively short service knowingly deceived the Company by failing to report a collision, including damage to the shell of a tank car which previously contained a hazardous substance."

CROA 3524: CP v. TCRC (Maintenance of Way) - the arbitrator found insufficient justification for the company departing from the mandated rest days of Saturday/Sunday or Sunday/Monday.

CROA 3525: CN v. CAW re 45 demerits assessed an intermodal Heavy Equipment Operator for refusing to take his lunch break at the time directed by his supervisor. The arbitrator found there were mitigating circumstances and reduced the penalty to 20 demerits.

CROA 3526 and CROA 3527: CN v. CAW re total of 45 demerits for damage caused to equipment (same grievor as above) and dismissal for accumulation. The arbitrator ordered reinstatement without compensation and a warning that any fresh offence would lead to dismissal.

CROA 3529: CP v. TCRC re 40 demerits for inappropriate conduct towards a fellow employee.

December awards (M. Picher, Montreal)

CROA 3528: CANPAR v. USWA re employee denied request for banked overtime while off due to bona fide illness. The grievor saw his doctor on the fourth day of a five-day illness and the doctor's note covered the whole period. The arbitrator held that even though the doctor hadn't made the diagnosis of the very first day, there was sufficient evidence - including the grievor's own word - to show the grievor had been ill: "In this case I am satisfied that the grievor's word can be accepted, coupled with the medical diagnosis which he obtained from his physician."

CROA 3530: CANPAR v. USWA re employee not permitted to return to his position account unable to maintain sufficient productivity after a back injury. The arbitrator dismissed the grievance, stating: "The duty of accommodation does not compel the employer to keep an employee in a position which he or she is not able to fill to a reasonably satisfactory level of productivity. While some slight allowance may be made for an individual's disability, the Arbitrator is compelled to agree with the Company's representative that in the case at hand a 15% shortfall in productivity, given that the grievor would be in receipt of the same wages as other employees, is a demonstration of undue hardship. The foregoing conclusion does not, of course, foreclose the ongoing obligation of the Company and the Union to continue to seek to accommodate the grievor's disability, if that can be done short of undue hardship.

CROA 3531: CN v. UTU alleged failure to accommodate a trainperson who had suffered a work-related injury. The arbitrator concluded: "[The grievor] was offered a day shift, administrative job in August of 2001 which was well within her physical limitations. While that may not have been the job she felt most suited for, it was work which would reasonably have accommodated her disability. Bearing in mind that the Company had made various efforts to accommodate [the grievor] from 1996 through 2001, her decision to walk away from the work then being offered to her was, in my view, an effective frustration of the accommodation process. If she had no productive work thereafter, it was because she did not want to do the work being offered to her, not because the Company failed in its obligation of accommodation."

CROA 3532: CN v. UTU re failure to accommodate. The grievor, suffering from multiple sclerosis, was told in 2004 that his accommodated duties, which had been ongoing for some years, were no longer in effect and he was given 30 days to explore other options, including short or long-term disability benefits. The arbitrator, finding there had been no change in the grievor's condition, allowed the grievance and ordered reinstatement to his previous duties with full compensation (but without the requested punitive damages), stating: "What the record does disclose is that there was a change in the person who was grievor's general supervisor and, secondly, that the Company decided to move its administrative operation to a building which did not contain a wheelchair accessible office or work station for the grievor. What the evidence suggests, on the balance of probabilities, is that the alteration in the Company's situation may have made the accommodation of Mr. Kilba more difficult. However, before the Arbitrator the Company has made no extensive argument to substantiate that fact or to suggest it is an explanation for undue hardship in the continued accommodation of the grievor."

January awards (J. Moreau, Montreal)

CROA 3535: CANPAR v. USWA re 20 demerits and four days held out of service for damaging company equipment. The arbitrator decided that the grievor's action was a momentary act of recklessness which deserved only 10 demerits. He ordered the grievor reimbursed for the time held from service, holding that the following contract clause was inapplicable to a relatively minor incident: "An employee may be held out of service for a period of not more than four (4) working days for infractions of a serious nature. This practice is only to be utilized in cases of alleged infractions of a serious nature where it is in the best interest of the public, the Company or fellow employees. This provision is not to be used as a form of discipline. In the event an employee is held out of service, the interview is to be held as soon as possible."

BACF 3536 [French only]: CANPAR v. USWA re 30 demerits and dismissal of an employee for leaving his truck unlocked and the motor running. The arbitrator found that the degree of negligence was not as great as it appeared and ordered the employee reinstated with 59 demerits on a last-chance basis.

BACF 3537 [French only]: CN v. TCRC re reduction of positions in the north of Québec. This case was decided on the same lines as BACF 3519.

BACF 3538 [French only]: In CN v. TCRC, the union asked for remedies claiming that six locomotive engineers had been required to work beyond 10 hours on a number of occasions despite having sought to book rest. The arbitrator, however, said there was no proof of an actual refusal by their supervisors, and moreover there was proof of their having voluntarily worked beyond 10 hours on other occasions.

February awards (M. Picher, Montreal)

CROA 3539: In this case involving CN, the UTU and TCRC, the arbitrator agreed with the unions that the replacement of CN crews with Ontario Northland Railway (ONR) crews operating Ontario Northland passenger trains on CN lines between North Bay, Ontario and Toronto, Ontario, constituted a material change.

CROA 3540: CN v. TCRC and UTU concerning the temporary diversion of trains from the Northern Ontario to the Southern Ontario route during an 11-day period in January 2005. The unions claimed this diversion was due to an operating plan prepared to defend against potential strike action, and that therefore a material change notice should have applied. The company brought evidence, to the arbitrator's satisfaction, that the reason for the diversion was failures owing to cold weather conditions.

CROA 3541 and CROA 3542: CN v. UTU, both cases settled during the hearing, no award.

CROA 3543: CN v. UTU re demotion/disqualification of a conductor for failure to properly report an injury and failure to work safely. Penalty reduced to a three-month demotion.