Canadian Railway Arbitration Awards - 2008 Archive

May 11, 2008: CROA awards updated to April 2008

The CROA awards up to and including the April 2008 session in Montreal (before Arbitrator M. Picher) have been added to the database, the latest being CROA 3670. CROA 3662 and 3668 are still pending and should be worth watching for. I found the following April decisions of particular interest:

BACF 3665 CN v. UTU, available in French only. The Company denied the request of three conductors at Edmunston for early retirement credits, claiming that the conditions for a surplus situation were not met. The Arbitrator held however that there was a surplus, in light of the evidence which showed that the three employees were not replaced when they did retire, and that the spare board exceeded the needs of the operation. Hence, in line with past decisions, he awarded the credits retroactively, with interest.

CROA 3666 CN v. UTU. The grievor was dismissed for allegedly uttering abusive comments and threats to a retiree who had been brought back among others to work outside the scope of the collective agreement. The Arbitrator found that the abusive comments constituted a serious offence, but that there was insufficient evidence that the grievor had uttered threats. Taking into account his 20 years of service, all of it discipline-free, the Arbitrator reinstated the grievor without compensation.

CROA 3667 CN v. TCRC. A rail traffic controller was disciplined for insulting language constituting insubordinate conduct to his supervisor. Having had a series of similar incidents and sanctions in the past, the grievor was dismissed. While his family physician attributed his behaviour to an adjustment disorder, and the Union accordingly contended that he suffered from a disability which ought to be accommodated, a specialist's examination conclused that the employee suffered from "no impairment or disability". The Arbitrator preferred the specialist's conclusion and held that no accommodation was required under the Canadian Human Rights Act. Having regard, however, to his 17 years' service and difficulties in his personal life at the time which had since been alleviated, the Arbitrator ordered the grievor reinstated without compensation on a "last chance" basis, subject to dismissal if over the following two years he should "incur discipline for insubordination or disrespectful behaviour towards a supervisor or fellow employee".

CROA 3669 CPR v. TCRC. It was undisputed that a conductor submitted a false wage claim, for which he was discharged. The Arbitrator found that the manner in which the grievor had acted "fell short of a course of action of manipulation and concealment of the facts from his employer". Also, the grievor "came clean" during his initial disciplinary interview, although at arbitration the Union disavowed some parts of his statement. The Arbitrator concluded that the grievor, having been out of work for almost two years, had learned his lesson and was unlikely to reoffend. He ordered him to be reinstated without compensation.

CROA 3670 CPR v. TCRC. A Transport Canada safety inspector complained to the Company that the grievor, a conductor, had in a telephone conversation "adopted an aggressive and unacceptable tone and words which, in the end, she felt constituted bullying and harassment towards her". The grievor, who was assessed 30 demerits, claimed that it was in fact the inspector who had been aggressive, not he. The Arbitrator held that even without determining who said what, the evidence established that the grievor was not communicating with her in his capacity of employee, but rather as member of the Company-Union Joint Health & Safety Committee. The Arbitrator commented: "Even accepting that Mr. Geiler used the words alleged by the inspector, stating that if a serious accident should occur, blood would be on her hands, that is plainly the kind of hard communication which might reasonably be expected of a union representative transacting business that is adversarial or controversial." In the alternative, he noted that the inspector was not available at the hearing to be cross-examined, and in that regard the grievor's account was to be preferred if necessary. He annulled the discipline.