CANADIAN RAILWAY OFFICE OF ARBITRATION

SUPPLEMENTARY AWARD TO

CASE NO. 2963

concerning

CANADIAN PACIFIC RAILWAY COMPANY

and

CANADIAN COUNCIL OF RAILWAY OPERATING UNIONS
(UNITED TRANSPORTATION UNION)

SUPPLEMENTARY AWARD OF THE ARBITRATOR

The award herein issued on September 4, 1998. It concluded that the grievor, Mr. Walter Plomish, did engage in grossly improper misconduct by anonymously publishing a newsletter containing extremely negative comments, including sexual innuendo, in relation to a specifically named supervisor, as well as insulting and degrading references to other managers.

The record discloses that Mr. Plomish made a complaint to the Canada Labour Relations Board with respect to certain alleged unfair labour practices by the Company in relation to the termination of his employment. In a memorandum dated April 7, 1998 the parties agreed to adjourn the matters before the Canada Labour Relations Board and to have the issues relating to alleged unfair labour practices heard and disposed of by this Office. The document reads, in part, as follows:

NOW THEREFORE, IT IS HEREBY AGREED THAT:

1. The arbitrator of the Canadian Railway Office of Arbitration shall have jurisdiction over the anti-union animus allegations raised in the grievance concerning the dismissal of the complainant. The Respondent further agrees specifically that it will not object to the arbitratorís jurisdiction over such allegations.

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5. The parties shall not attempt to progress the above-described complaint to the Board again unless the arbitrator refuses the jurisdiction described in paragraph 1 above. The parties further specifically agree that if the arbitrator seizes jurisdiction over the anti-union animus allegations raised in the grievance, the decision of the arbitrator shall be final and binding on these allegations and the parties agree that the Canada Labour Relations Board will be asked by the Respondent, with consent of all parties, such consent being hereby given, to refuse to hear and determine the complaint in accordance with s. 98(3) of the Canada Labour Code.

In the award which issued on September 4, 1998 the Arbitrator did not make specific mention of the issue of anti-union animus. That was by oversight, given the extent to which the award concentrated upon the evidence relating to the grievorís gross misconduct, which was highly unusual in its nature, and the conclusion that the Company had ample just cause for his termination. The Council now requests that the Arbitrator complete the unfair labour practice aspect of the award, given that the grievor appears to be taking the position that the anti-union animus question was not considered and disposed of by the Arbitrator.

It is well settled that a board of arbitration can retain jurisdiction to complete any aspect of an award. It is further established that, in keeping with the decision of this Office in CROA 1861, the arbitrator of the Canadian Railway Office of Arbitration is deemed to always retain jurisdiction in matters before him, even though there may be no specific statement to that effect within the body of the award. CROA 1861 reads, in part, as follows:

It is well settled that boards of arbitration should conduct their proceedings in furtherance of the statutory purpose of settling the substance of labour disputes during the term of a collective agreement, and should avoid an unduly technical approach to procedures and remedies (see Blouin Drywall Contractors Ltd. (1973) 4 L.A.C. (2d) 254 (O'Shea), affirmed on judicial review 57 D.L.R. (3d) 199 (Ont. C.A.)). The Canadian Railway Office of Arbitration was established for the purpose of providing a relatively informal and expeditious system of arbitration to serve the employers and unions within the railway industry in Canada. The format of the hearing, the extensive use of documentary evidence and the generally abbreviated reasons for the Arbitrator's decisions have all evolved in furtherance of that goal. As reflected in the prior awards of this Office, the general understanding and expectation has been that the Arbitrator retains jurisdiction in any case for the purposes, if necessary, of finally disposing of any issue, such as compensation, which may not be dealt with in detail in the original award. While in the normal stream of ad hoc arbitrations outside this Office, it is normal for boards of arbitration to expressly state that they retain jurisdiction in respect of any aspect of a particular grievance, for many years such statements were not made within the context of the awards issuing from this Office. Notwithstanding the absence of any such statement, however, it appears to have been the consistent view of the parties and the Arbitrator that jurisdiction does continue in respect of the completion of any award.

I am therefore satisfied that I am not functus officio with respect to the issue of anti-union animus in this matter. At the request of the Union, and in light of the submissions received from the Company and Mr. Plomish, I consider that I have full jurisdiction to complete and clarify the award in respect of the matter of anti-union animus. It is my finding and declaration that there is no evidence whatsoever in any of the material which would sustain a finding of anti-union animus on the part of the Company with respect to its decision to institute a disciplinary investigation of Mr. Plomish and, eventually, to terminate his services for grossly improper conduct. While the evidence does disclose that Mr. Plomish held office within the Union executive, there is simply no meaningful evidence to suggest that the Company sought, directly or indirectly, to limit his union activities or to threaten or visit actual reprisals upon him for any involvement he may have had in the activities of his trade union. Even if it is considered that the burden of proof on this aspect resides in the employer, I am satisfied, beyond any doubt, that the evidence falls short of establishing any violation of sections 94(1)(a), 94(3)(a)(i) and 94(3)(a)(iii) of Part I of the Canada Labour Code. I am satisfied that the Company did not involve itself in interference with the administration of the trade union or its representation of employees. It did not refuse to employ or continue to employ Mr. Plomish by reason of his union activities or by reason of his possible involvement in proceedings under the Canada Labour Code. In the result, to the extent that I am granted jurisdiction by the agreement of the parties in the memorandum of agreement dated April 7, 1998 I hereby determine that the complaint of Mr. Plomish in relation to alleged violations of section 94 of Part I of the Canada Labour Code must be dismissed.

April 19, 1999 (signed) MICHEL G. PICHER

ARBITRATOR