CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3784
CANADIAN PACIFIC RAILWAY COMPANY
MAINTENANCE OF WAY EMPLOYEES DIVISION
Claim on behalf of Mr. Mark Wardle.
JOINT STATEMENT OF ISSUE:
The Company issued Special Bulletin #107/99 dated
The Union contends that: 1) The Company is in violation of Articles 44, 14,5 and 15.2(a) of Wage Agreement 41 in not allowing Mr. Wardle to work his permanent position. 2) The Company has violated Clause 5.2.3 of Special Bulletin 107/99. 3) The Company has violated past and current practice in this regard.
The Company denies the Union’s contentions and declines the
(SGD.) WM. BREHL (SGD.) D. FREEBORN
NATIONAL PRESIDENT MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
K. Hein – Labour Relations Officer,
D. Corrigan – Labour Relations Officer,
D. Freeborn – Manager, Labour Relations,
And on behalf of the
Wm. Brehl – President,
D. W. Brown – Counsel,
AWARD OF THE ARBITRATOR
It is worth
noting at the outset that employees who were awarded flagging positions under
Bulletin #107/99, worked fifteen straight days but were paid on the basis of a
5/2 schedule (five days at straight time followed by two days at overtime
rates). The flagmen were not paid during the contractor’s six days of rest. The
The Union points to the requirement set out in section 5 of that bulletin:
5.2 Hours of work
5.2.1 The regular working hours of these positions will be from 07:00 hrs. to 15:00 hrs, Monday to Friday inclusive.
5.2.2 The applicants will be required to work similar hours as the contractor and may be required to work up to seven days per week.
5.2.3 When the scheduled rest days of the contractor will be different than the flagman, the flagman must report to work at the nearest toolhouse to his flagging assignment or to the headquarter of his permanent position; this must be arranged and coordinated between the flagman and the designated Railway representative.
before the Arbitrator is that the Company and the
5. We strongly recommend that employees take 4 days off at the conclusion of the 10 days worked. We need to ensure that a quality of life is maintained for your members, and our employees, given the amount of days and long hours anticipated to be worked. We must also be aware of the fatigue factor and not unduly risk our employees’ well being.
I am supporting the idea that the employees should be taking their days off and should not be allowed to displace into their bulletined positions due to the fact that this will only cause a displacement reaction.
In my view, the
above correspondence captures the parties’ intentions concerning the
application of the bulletin. The Union’s submission that paragraph 5 of the Company’s
letter should not be read as a commitment to the four days off on the part of
the Company (in keeping with the five days on two days off), because the
Company only “recommended” in their correspondence that employees take four
days off after ten straight days of work, is not a fair representation of the
Company’s intent as set out in paragraph 5 above. The fact that the Company
goes on to speak to the need to maintain a quality of life for the membership
reinforces the Company’s position that employees should not be working on their
days off. The Union reply of February 10th in turn favourably accepts the
Company proposal and adds that allowing employees to work on their days off
would cause an unwanted displacement reaction. Given the clear understanding
between the parties, there was no need to issue an amended bulletin as the
does not support the
A procedural issue
arose during the hearing when the Company, for the first time, raised an
argument of laches, or as Arbitrator
Weatherill succinctly described it in his supplementary award to CROA 901, “unreasonable delay”. The
14. The decision of the arbitrator shall be limited to the disputes or questions contained in the joint statement submitted by the parties or in the separate statement or statements as the case may be, or, where the applicable collective agreement itself defines and restricts the issues, conditions or questions which may be arbitrated, to such issues, conditions or questions. The Arbitrator’s decision shall be rendered in writing, together with written reasons therefore, to the parties concerned within 30 calendar days following the conclusion of the hearing unless this time is extended with the concurrence of the parties to the dispute, unless the applicable collective agreement specifically provides for a different period, in which case such different period shall prevail.
I note the comments of Arbitrator Picher in CROA 2891:
The Arbitrator cannot accede to that submission, on a number of grounds. Clauses 8 and 12 [now clauses 10 and 14] of the memorandum of agreement obviously reflect the agreement of the parties that the procedures of the Office should ensure that there be specificity, well in advance of the hearing, with respect to the identification of contractual or legal issues to be pleaded and resolved. To that end, clause 5 requires that a joint statement, or an ex parte statement, be filed not later than the eighth day of the month preceding the month in which the hearing of the grievance is to take place, with a copy to be provided to the opposite party.
See also CROA 1755S, 2234, 2528, 2533, and 2739.
found in the instant case that the Company should have put the
For all the above reasons, the grievance is dismissed.
(signed) JOHN M. MOREAU, Q.C.