SHP - 389A
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF CANADA (CAW‑CANADA)
RE: DISCHARGE GRIEVANCE ‑ HARRY FINLEY
SUPPLEMENTARY AWARD RE COMPENSATION
SOLE ARBITRATOR: HUGH R. JAMIESON
APPEARANCES FOR THE COMPANY:
MR. KEN TAYLOR
MS JOSEE OUELLET
APPEARANCES FOR THE UNION:
MESSRS. ABE ROSNER
HEARD: At MONTREAL, on June 21, 1994
DECISION: June 30, 1994
This award is supplementary to the remedy issued in Re Via Rail Canada Inc. and International Brotherhood of Electrical Workers System Council No. 34, unreported award which I issued on March 15, 1994. There, the Employer was ordered to reinstate the Grievor, Mr. Harry Finley in his employment as an electrician. However, the issue of compensation was not dealt with at the time because of an objection the Employer had raised at the original hearing about my jurisdiction over that matter. That objection was based on the lack of any reference to compensation in the relevant Joint Statement of Issue and Facts which was dated January 21, 1994:
Discharge of H. Finley for gross insubordination and threatening remarks made towards a Supervisor.
On May 6, 1993, an incident occurred between Supervisor D. Hunt and Electrician H. Finley.
As a result of this incident, Mr. Finley attended an investigation on May 12, 1993 and on May 21, 1993, he was discharged for gross insubordination and threatening remarks made towards a Supervisor.
The Brotherhood requested the reinstatement of Mr. Finley.
The Corporation declined the request.
According to the Employer, my jurisdiction is limited to the issues included in that document and that the Union is barred from raising anything new. When the Employer raised this objection, Counsel for the Union was obviously caught off guard and was reluctant to argue the point. I therefore reserved on the issue and left it with the parties to discuss in the event that I upheld the grievance and decided to reinstate the Grievor:
" In keeping with my commitment made at the hearing, I will not discuss any other form of compensation for the Grievor to allow the parties time to discuss the impact of the lack of reference to compensation in the Joint Statement of Issue and Facts. Should the parties wish me to rule on this aspect, they will inform me as to how they wish to proceed. In the meantime, I shall retain jurisdiction over this matter and in particular the remedy and its implementation."
Re Via Rail Canada Inc. and International Brotherhood of Electrical Workers. System Council No. 34 supra., at page 16.
The parties were unable to resolve their differences over this issue of compensation so they reappeared before me at Montreal on June 21, 1994 to argue this point. In the interim though, as a result of a representation vote conducted by the Canada Labour Relations Board, the International Brotherhood of Electrical Workers, System Council No. 34 had lost its bargaining agent status for the bargaining unit in which the Grievor is included. That union was replaced by the National Automobile, Aerospace and Agricultural Implement Workers of Canada (CAW‑Canada) (the Union), whose representatives took over the carriage of this grievance.
Also, to complete the background, it should be noted that in the original award, it was found that the Grievor's conduct did not warrant discharge. The penalty was therefore reduced to a two months suspension without pay which was to commence on May 7, 1993 when he was first held out of service. Seniority was also to be forfeited for the period of the suspension and, the Grievor was ordered to apologize to the Supervisor.
Starting off with my jurisdiction to rule as I did, the collective agreement between these parties is silent vis‑a‑vis specific penalties for insubordination involving the abuse of a supervisor. Also, there are no references in the agreement to the powers of an arbitrator to substitute penalties in discharge or other disciplinary cases. Therefore, this is clearly a situation where, as an arbitrator dealing with a federal work, business or undertaking, I was exercising my powers under section 60(2) of the Canada Labour Code (Part I Industrial Relations) when I reduced the penalty that had been meted out to the Grievor:
" 60 ...
(2) Where an arbitrator or arbitration board determines that an employee has been discharged or disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction tat is the subject of the arbitration, the arbitrator or arbitration board has power to substitute for the discharge or discipline such other penalty as the arbitrator or arbitration board seems just and reasonable in the circumstances. "
Without going any further than that, the answer to the Employer's objection almost jumps out at you from the original award. Having exercised my lawful authority to reduce the penalty of discharge, the very imposition of a two month suspension without pay in itself surely dictates that the Grievor be compensated for the balance of the time that he was held out of service. Otherwise, the two months suspension that was ordered would in effect be extended by the period for which the Grievor is not paid. That certainly was never my intention.
As for the Employer's position that there is something in the collective agreement that somehow limits my jurisdiction and binds me strictly to the Joint Statement of Issue and Facts, I see nothing to that effect in the collective agreement. The only reference to Joint Statements in the collective agreement is under Article 5.4:
"5.4 A Joint Statement of Issue and Facts of the dispute and reference to the specific provision or provisions of the Agreement allegedly violated, shall be jointly submitted to the Arbitrator in advance of the date of the hearing. In the event the parties cannot agree upon such Joint Statement of Issue and Facts, each party shall submit a separate statement to the Arbitrator in advance of the date of the hearing and shall at the same time give a copy of such statement to the other party."
While there is obviously an intention there to identify the issues and to get a concise summary of the facts before the arbitrator prior to a hearing of the dispute, there is nothing in the language of Article 5.4 that I can see to prevent me from interpreting in this case whether reinstatement referred to in the Joint Statement of Issues and Facts by the parties necessarily includes compensation.
It seems to me, with the utmost respect, that the Employer is relying on trends from elsewhere in the industry that simply have no bearing on this case. As I understand it, in the railway industry, most arbitrations are handled through the Canadian Railway Office of Arbitration (C.R.O.A.) where there are strict rules regarding the usage of Joint Statements of Issue. For example, Clause 12 of Addendum No. 10 dealing with C.R.O.A. provides that, "The decision of the arbitrator shall be limited to the disputes or questions contained in the joint statement submitted to him by the parties ...", which is certainly much stronger language than used in Article 5.4 of the collective agreement before me. In fact, many of the cases cited here by the Employer were based on that C.R.O.A. concept of limited jurisdiction for the arbitrator. However, shopcraft employees, with whom I am dealing now, are apparently not signatories to the C.R.O.A. agreement and those strict limitations on arbitrators vis‑a‑vis Joint Statements of Issue and Facts simply do not apply.
Furthermore, if I look at Article 4.4 of the collective agreement it appears that the parties themselves have dictated the terms of reinstatement where it is found that any employee is unjustly suspended or discharged:
" 4.4 If it is found that an employee has been unjustly suspended or discharged, such employee shall be reinstated with full pay for all time lost. In the event of an employee being otherwise employed pending settlement of his case by reinstatement, any pay earned will be credited against lost time." (Emphasis added)
In the face of Article 4.4, it seems to me that it would not be fatal in this case for the Union to have omitted to spell out that compensation was being sought as well as reinstatement. Under this collective agreement, one apparently goes hand‑in‑hand with the other.
In light of those observations, I see no need to delve into the precedents that the parties placed before me. Nor am I about to make some grandiose statement that may later tie the hands of the parties in their usage of Joint Statements of Issues and Facts. Better they negotiate these things rather than have rules imposed upon them by an arbitrator. On the very narrow issue of compensation in the particular circumstances of this case, I find that I do have jurisdiction to order compensation to the Grievor. Also, given what I said earlier about the two month suspension of the Grievor being extended if he is not paid for the rest of the time he was held out of service, it would make little sense not to compensate him.
I therefore order, to use the words of the agreement, that the Grievor receive full pay for all time lost, other than for the two month suspension. If the parties cannot resolve the quantum, I will retain jurisdiction to deal with that issue. In this regard, I would remind the parties that a cap was placed on the Employer's liability for compensation as a result of the last minute postponement of the scheduled February 8, 1994 hearing.
Dated June 30, 1994.
Hugh R. Jamieson