IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY
AND NATIONAL AUTOMOBILE,AEROSPACE TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA CANADA) LOCAL 100
AND IN THE MATTER OF AN ARBITRATION RELATING TO THE INCLUSION OF THE “DISCIPLINE LETTER” IN THE COLLECTIVE AGREEMENT
SOLE ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Montréal on September 6, 2005.
A. Rosner and B. DeBaets, for the union.
R. Bateman and D. Fisher, for the company.
The Dispute and Joint Statement of Issue in this matter are as follows:
The inclusion in the collective agreement of the letter concerning “Reinstatement of the Previous Discipline System”.
JOINT STATEMENT OF ISSUE:
On June 9, 2005, Ross Bateman advised Bryon De Baets that the Company will not agree to include in Collective Agreements 12 and 12.90 the letter dated March 14, 2004, from Kim Madigan to John Moore-Gough, captioned Re: Reinstatement of Previous Discipline System, which letter formed Attachment C to the March 14, 2004 Memorandum of Settlement between CN and the CAW, and which was further referenced in Article 19 of said Memorandum of Settlement.
The Union maintains that Attachment C forms an integral part of the collective agreement, inasmuch as it forms an integral part of the Memorandum of Settlement and was ratified as such by the Union.
The Union further contends that this continuing refusal, and the failure to print the collective agreement as negotiated and ratified, constitutes a violation of Rule 58.1 of the collective agreement.
By way of remedy, the Union requests the following:
1. That the Company acknowledge that attachment C is to be incorporated in the collective agreement.
2. That the Company abide forthwith by the terms of Rule 58.1 of the collective agreement and proceed to print the agreement, as negotiated, in sufficient copies.
The Company denied the Union’s contentions and declined the grievance as being without merit.
Rule 58.1 of the collective agreement deals with “Printing of Agreements”, and is as follows:
The Company agrees to undertake the responsibility for the printing of the collective agreement and its addendums (E.S.I.M.A., Employment Benefit Plan, etc.) Within ninety days from the date that the contract language is agreed to. Printing to be completed in one book where possible. The Company will provide the Union with a sufficient number of agreements for distribution to the membership and duly authorized representatives.
The present grievance affects collective agreement no. 12 and collective agreement no. 12.90. Collective agreement no. 12 was referred to throughout the proceedings, and it appears the parties are agreed that the decision with respect to that agreement will be equally determinative of the question with respect to collective agreement no. 12.90.
The collective agreement expired, according to its terms, on December 31, 2003, subject to article 60.1(c). Negotiations were carried on for the purpose of arriving at a new collective agreement, and these negotiations resulted in a memorandum of settlement dated March 14, 2004. The effect of the memorandum was to introduce certain changes to the collective agreement, and to continue other provisions. There was no change to Rule 58.
Among the subjects of negotiations
was that of the discipline system in effect on the company’s property over many
years, the “Brown system”, which it
appears the company
had sought to replace or amend. This was the subject of internal union publicity and appears to have played a role in the membership’s rejection of an earlier proposed settlement. The `settlement which was eventually accepted, and which is embodied in the memorandum of settlement of March 14, 2004, includes therein clause 19, “Discipline”, which is as follows:
Issue is resolved on the basis of Attachment C.
Attachment C to the memorandum is as follows:
Re: Reinstatement of Previous Discipline System
This will confirm discussions held during collective bargaining in 2004 regarding the Company’s approach to discipline.
The Union put forward its view that discipline is now being imposed with greater severity than in the past, using different methods (suspensions and deferred suspensions) and on grounds which rarely or never attracted discipline before.
To resolve the issue of discipline, for the life of the collective agreement or until otherwise mutually agreed, the Company will reinstate the discipline system and standards that were in effect at the commencement of the previous collective agreement, in accordance with past practice and jurisprudence.
In addition, in order to reflect the foregoing, the Company and the Union have agreed to resolve all outstanding discipline cases in accordance with the aforementioned principles.
The Company and Union will meet within twelve (12) months of ratification to discuss and agree upon improvements to the discipline system. Any changes will require mutual consent.
It was the company’s position that it was never intended to have Attachment C incorporated in the printed collective agreement, although the company raises no issue as to its being bound by the terms of that document. It is true, as the company has established that, historically, not all “Attachments” or “Letters of Understanding” have been printed in the collective agreements to which they are, in effect, appended. In certain cases, in the past, it has been expressly stated, in the attachment or letter of understanding itself, that it will be appended to the printed copy of the collective agreement. That was not done in this case. In other cases, it has been expressly stated, in the letter or attachment itself, that it is not to be included in the collective agreement. No such statement appears in Attachment C, in the instant case. In other cases, no such statement, one way or the other, appears. It has not been shown that there has been any “past practice” involving documents such as Attachment C, and indeed it would appear that the subject-matter of Attachment C is not one which has appeared in any similar document, at least in recent years. On the material before me, it cannot be said that there is any relevant past practice. The fact of the inclusion or exclusion of particular appendices, attachments or letters of understanding in collective agreements in the past has no particular significance in the instant case.
The expired collective agreement no. 12 contains some seventeen appendices, being memoranda, letters of understanding and the like. They deal with many different subjects, and it was not suggested that there is any particular pattern which would make it apparent that one or another would be appropriate for inclusion with, or exclusion from, the printed copy of the collective agreement.
In the instant case, Attachment C is specifically referred to in clause 19 of the memorandum of settlement. In my view, that clause should properly be read as incorporating the Attachment by reference, the statement that the issue of discipline “is resolved on the basis of Attachment C” making reference to the attachment necessary for an understanding of what the basis of settlement in fact was - that is, what was the actual agreement of the parties with respect to that issue. While that, in my view, is sufficient to decide the present case, it may also be noted that there is no disagreement that the issue of the system of discipline was an important one in the negotiations, and to include the terms of its resolution in the printed copy of the collective agreement would appear to be a matter of common sense. The parties did not specifically and expressly agree to print or not to print the Attachment together with the collective agreement, but for the reasons I have set out above it follows, in my view, both from the general provisions of Rule 58 (the agreement is to be printed together with “its addendums”, of which Attachment C is certainly one), and the particular incorporation by reference of the Attachment in clause 19 of the Memorandum of Settlement, that the company is obliged to print the terms of Attachment C with the collective agreement.
It is, for the foregoing reasons, my award that the relief requested by the union in the Joint Statement of Issue be granted.
DATED AT OTTAWA, this 22d day of September, 2005,