SHP 312/supplementary

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

International Association of Machinists and Aerospace Workers

RE DISCHARGE OF SIX MACHINISTS ILLEGAL STRIKE AT POINTE ST. CHARLES

GRIEVORS A.Y. VIEL, M. SIMONEAU AND M. LALANDE

 

SOLE ARBITRATOR: M. G. Picher

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, CCRSU

L. Biniaris System General Chairman (CN) IAM&AW

C. Robert System General Chairman (CP)IAM&AW

 

There appeared on behalf of the Company:

L. F. Caron System Labour Relations Officer, Montreal

S. A. MacDougald Manager, Labour Relations, Montreal

P.J. Nicholson Coordinator,Special Projects, MP & CE, Montreal

R. Duhamel Equipment Officer, Taschereau Yard Motive Power Shop, Montreal

J. P. Rainville Employee Relations Officer, Pointe St. Charles Main Shops, Montreal

 

A hearing in this matter was held in Montreal on September 6, 1990.

 

Supplementary AWARD

At the hearing the following Joint Statement of Issue was filed by the parties:

DISPUTE

Claim of Machinists Y. Viel, M. Lalande and M. Simoneau following from the Arbitrator's Award dated July 3, 1990.

JOINT STATEMENT OF ISSUE:

On July 3, 1990, the Arbitrator signed his Award in the dispute between the Company and the International Association of Machinists and Aerospace Workers concerning the discharge of six (6) machinists from Pointe St. Charles Main Shops in Montreal for their role in the illegal work stoppage at that location on November 16 and 17, 1990.

The Arbitrator's Award ordered in part as follows:

The grievors Viel, Simoneau and Lalande shall be reinstated into their employment forthwith, without compensation for wages and benefits lost, and without loss of seniority.

The Company received the Award by faxmittal at 16:05 hours on Friday July 6, 1990. The Company then began to implement the Arbitrator's Award.

The Union's contention is as follows: "The Arbitrator's award ordered, among other things, the reinstatement from suspension "forthwith" of machinists Y. Viel, M. Lalande and M. Simoneau. It has come to our attention that these employees were so reinstated only on July 12, July 13 and July 6 respectively. It is the union's interpretation of the award that they ought to be compensated retroactively to July 4, 1990, for any wages, benefits or rights due.

The Company denies the Union's contention and has declined the request.

It is common ground that on July 3, 1990 the parties were verbally advised of the reinstatement of Machinists Viel, Lalande and Simoneau. The thrust of the Union's claim is that the Company did not act "forthwith" in implementing those reinstatements. With respect to Ms. Simoneau the claim is less substantial, as she was on layoff at the time so that her reinstatement essentially involved the return to layoff benefits and rights of recall. This was effected as of July 6, which the Arbitrator judges to be not an unreasonable lapse of time in the circumstances.

For the purposes of the claims of Grievors Viel and Lalande the Arbitrator is satisfied that July 6 may be looked to as the appropriate date for the commencement of the Employer's endeavours to return these two individuals to work. Although the Arbitrator's decision was verbally communicated by telephone on July 3, 1990, he was then advised by the Company that it would require a written decision. In my view that is not an unreasonable request by any party to an arbitration. On the basis of that request, the written decision was expedited to the parties on July 6, 1990. The issue then becomes what is an appropriate delay in respect of reinstatement as of the 6th of July. It does not appear disputed that in the normal course the practice of the parties is to return reinstated employees to work within one or two days of receipt of an arbitral order of reinstatement. While in specific cases the time lag may vary, having regard to the flow of communication, the whereabouts of supervisors and grievors and other factors, overall it appears that a one to two day delay is the general pattern.

Are there any factors which justify departure from that pattern in the case of grievors Viel and Lalande? The record establishes beyond controversy that as of July 3, 1990 the Company was aware that the Arbitrator was ordering their reinstatement. Pursuant to its request, it received the written decision in the afternoon July 6, 1990. According to the Company's account of events a meeting was thereafter held on Monday, July 9, 1990 "... in order to review the Arbitrator's Award". Mr. Viel, who works at the Pointe St. Charles Main Shops was advised by the Company of the decision on Monday, July 9. He was then informed that he must comply with a Company policy, whereby any employee out of service in excess of six months must pass a medical examination before returning to work. Although a medical appointment was initially scheduled for the 13th, in fact the grievor attended the Company's medical clinic on July 11, 1990 and was found fit to return to work. He was thereafter reinstated to his regular duties on July 12, 1990.

The position of the Union is that the Company's internal policy respecting medical examinations, which forms no part of the collective agreement, cannot be unilaterally applied to effectively extend the grievor's period of suspension. With this submission the Arbitrator must agree. It may have been open to the Company to require the grievor to submit to a medical examination to establish his fitness to return safely to work had it been in possession of information which gave it reasonable grounds to doubt his ability to do so. There is, however, no suggestion in the evidence before me that Mr. Viel had been ill, injured, or otherwise incapacitated in a way that would cast doubt on his ability to return to work. On balance, therefore, the requirement of a medical examination was in the nature of a cautionary measure which the Company judged appropriate for its own purposes. Assuming, without finding, that it has the right to impose such a requirement, it cannot do so in derogation of the rights of employees to be reinstated pursuant to an arbitrator's award made under the terms of the collective agreement and the Canada Labour Code. To put it differently, it cannot establish a unilateral policy which disregards the remedial authority of an arbitrator and imposes the cost of that policy upon an employee by effectively extending a period of suspension beyond what would otherwise be a reasonable date of reinstatement. If the Company chooses to require a medical examination before returning an employee to work after a suspension, and following an order of reinstatement, absent some specific provision for it in the collective agreement, it must bear the cost of that policy itself.

For the foregoing reasons I am satisfied that the Union's claim in respect of Mr. Viel must succeed. As the Company was in possession of the full award on July 6, 1990, it was able, in keeping with normal practice, to implement Mr. Viel's reinstatement at the least effective Monday, July 9, 1990. The Arbitrator therefore finds that the Company has failed to comply with the Arbitrator's direction of reinstatement, and orders that Mr. Viel be compensated for all wages and benefits lost in respect of July 9, 10 and 11, 1990.

I turn to consider the claim of Mr. Lalande. The record reveals that Mr. Lalande was discharged from the Taschereau Yard Motive Power Shop in Montreal. The Company was in receipt of the order for his reinstatement on July 6th, 1990. It appears that no effort was made to contact Mr. Lalande until approximately 17:00 hours on Tuesday, July 10. However, the grievor did not return the Company's call until Thursday, July 12, 1990. Although he was told that he was to start back at work on July 13, it appears that Mr. Lalande did not report to work until one day later, on July 14, 1990.

A review of these facts suggest that both the Company and Mr. Lalande were involved, to some degree, in causing the delay of his actual reinstatement. In the circumstances I find it difficult to accord merit to the claim made on behalf of Mr. Lalande, to the effect that he should have been back at work as of Monday, July 9. While it may be that the Company should have moved to offer him that possibility, it is difficult to disregard the fact that when it did call him on the 10th the grievor took two days to return the call, and even then required an extra day before returning to work. In the circumstances I am left in substantial doubt that Mr.Lalande would, in any event, have been available to return to work effective July 9, 1990. The Union's claim on behalf of Mr. Lalande is therefore denied. I continue to remain seized.

DATED at Toronto this 17th day of September, 1990.

(sgd) M. G. Picher

Arbitrator