IN THE MATTER OF AN ARBITRATION

AWARD OF THE ARBITRATOR

This arbitration concerns the assessment of thirty demerits against three members of the Union’s executive for their unauthorized absence from work. The nature of the dispute is reflected in the ex parte statement of issue filed by the Union which reads as follows:

On November 5, 2004 the three grievors left work early at 12:00 hours to attend a meeting of the Executive Board of Lodge 448. On November 4th, 2004 the Union had requested from Assistant Superintendent K. Langstaff, for leave for all members of the Executive Board of the Lodge to attend the scheduled meeting. Mr. Langstaff refused to grant leave to any member of the Executive Board.

It is the Union’s contention that the discipline assessed to the grievors was unwarranted and excessive when all factors are taken into account. It is further the Union’s position that the Company improperly denied these employees the necessary time to conduct urgent Union business, in violation of Rules 15.1, 15.3, 16.1 and 27.12 of Agreement 12. The Union requests that the thirty (30) demerits be removed from each of the grievor’s records.

The Company maintains that the discipline assessed was warranted and appropriate and requests the arbitrator deny the grievance.

The Company raises a preliminary objection with respect to the arbitrability of the Union’s allegations respecting alleged violations of rules 15.1 and 15.3 of the collective agreement. It submits that those articles were not raised in the original grievance and were never discussed during either of the two steps of the grievance procedure before proceeding to arbitration. It does not appear disputed that they were in fact raised for the first time in the Union’s statement of issue for submission to arbitration, apparently some two weeks prior to the hearing.

The Company relies, in part, on the provisions of rule 27.7 of the collective agreement. That article deals with the mechanics of the Step I and Step II processing of grievances. Part of the provision, dealing with Step II, reads as follows:

Where the appeal concerns the interpretation or alleged violation of the collective agreement, the appeal shall identify the Rule(s) and clause of the Rule(s) or Appendix involved. The appeal shall be accompanied by a copy of the Company’s decision rendered at Step II of the grievance procedure.

Rule 27.12 of the collective agreement, the article raised in the initial grievance, deals with the obligation of the Company to allow Union representatives the opportunity to have leaves of absence to deal with representation of other employees. It reads as follows:

27.12 The Company will not discriminate against any employees who, as authorized Local Union Representative, from time to time, represent other employees and will grant them leave of absence and free transportation over the Company’s lines when delegated to represent other employees.

Rule 15 is a more general provision concerning leaves of absence for all employees. Rules 15.1 and 15.3 read as follows:

15.1 When the requirements of the service will permit, employees will be granted leave of absence, not to exceed 90 days, with the privilege of renewal by consent of the Management and Committee.

…

15.3 The arbitrary refusal of a reasonable amount of leave to employees when they can be spared, or failure to handle promptly cases involving sickness or business matters of serious importance to the employee, is an improper practice and may be handled as unjust treatment under this Agreement.

At the hearing the Arbitrator ruled in favour of the Company’s objection. It is well established that the grievance and arbitration provisions of a collective agreement are designed to avoid surprise to either party. Just as it is not open to an employer to change the grounds of discipline at the threshold of arbitration, nor is it available to a union to raise an essentially different provision of a collective agreement never previously raised during the grievance procedure as a separate head of violation, only on the eve of arbitration. That general principle is clearly recognized by the parties to this collective agreement, as reflected in the clear language of rule 27.7 of the agreement. While it may well be open to the Union to add rules or provisions to the initial grievance during the course of the process in moving from step I to step II of the grievance procedure, the intention appears clear that there is to be no such alteration after the closure of step II of the grievance procedure, as occurred in the case at hand.

In the context of a separate collective agreement these principles were canvassed by the Arbitrator in CROA 3265, a dispute between CAW, Council 4000 and the Company resulting in an award dated June 14, 2002. In that award the following appears:

In the circumstances of this case the Arbitrator is compelled to agree with the objection of the Company. It is true, as the Union submits, that as a general rule it is appropriate for a bargaining agent to refer to a general article which has been violated, and that to do so would normally comply with the requirements of step 3 as provided under article 24.5 of the collective agreement. The Union might then properly submit other paragraphs of the article as evidence of collateral aspects of the Company’s alleged violation. That would not be the case, however, where, as here, the Union seeks to advance the operation of an article as a freestanding and separate substantive basis for the success of the grievance. In the case at hand, notwithstanding the substantive provisions of the articles of the collective agreement governing seniority, including article 11.9(a)(i), the Union raises the entirely different substantive right and obligation provided under article 11.5, a matter not raised at step 3 of the grievance procedure. In considering that issue, the Arbitrator considers it significant that article 24.5 expressly stipulates, with the use of the mandatory word “shall” that the Union is to specify “… the article and paragraph of the article involved.”

It seems evident to the Arbitrator that the parties thereby intended to ensure that, at the final step of the grievance process, both parties would be on the same page with respect to any issue which might ultimately be pleaded at arbitration, in the event that they remained at impasse with respect to the merits of their dispute. In the instant case, where paragraph 5 of article 11 is first raised at the filing of the Union’s statement of issue, there is an obvious departure from the requirement of article 24.5, to the extent that the article raised constitutes a separate and independent allegation which, standing alone, would arguably cause the grievance to succeed. In other words, what is raised in that circumstance is a different grievance. In the circumstances I am satisfied that the Company is correct in its assertion that to allow the Union to proceed with its claim under article 11.5 would be an improper expansion or amendment of the grievance beyond the intention of article 24.5. On that basis the Arbitrator sustains the preliminary objection of the Company and strikes from consideration the alleged application of article 11.5 in the circumstances of this case.

In the Arbitrator’s view rules 15 and 27 deal with different substantive rights. As is evident from the language of rule 15.3, that provision is intended to address the circumstances of any employee who may have need of a leave of absence for personal reasons, such as sickness or business matters of importance to the employee. Rule 27.12, on the other hand, specifically addresses the matter of Union officers absenting themselves from work for the purposes of Union business, the matter which is here in dispute. While there may be some similarity in the respective rights dealt with under these provisions, there is also a clear distinction between them. To raise rule 15 after the close of step II of the grievance procedure does, in my view, introduce a new substantive right which would effectively prejudice the Company in its preparation for arbitration to the extent that would be required to deal with a whole new ground of dispute not previously discussed during the grievance procedure. In the result, having regard to the language of rule 2. of the collective agreement, to the facts of the case at hand and to the principles discussed above, including the award in CROA 3265, at the hearing the Arbitrator sustained the Company’s objection to the arbitrability of the Union’s allegations concerning the purported violation of rules 15.1 and 15.3 of the collective agreement.

The facts relating to the merits of the grievance are not in substantial dispute. Firstly, on or about November 3, 2004 the Union was informed by the Ukrainian Youth Centre in Edmonton that Local Lodge 448 had until 16:00 on November 5, 2004 to confirm or cancel a banquet scheduled for the following week. Failing a timely notice of cancellation the Union would forfeit a $500 deposit already paid for that function. It appears that the event was planned as an annual retirement banquet to honour retiring and retired members of the Lodge. There was concern within the Lodge executive board, however, as to the wisdom of the timing of the event and the attendance levels that could be expected. Secondly, on the morning of November 4, 2004 Union Vice-Chair K. Fadi, whose discipline stood at fifty-nine demerits, was verbally reprimanded for being out of his work area without permission. According to the Union’s understanding, Mr. Fadi was then told by a supervisor that the mere investigation of his conduct, without the imposition of any additional discipline, would stand as a bar to the reduction of his demerits for one year of discipline-free service.

It appears that both of the above events prompted the Union executive to hold a meeting on the afternoon of Friday, November 5, 2004. At 12:23 pm on November 4, 2004 Local Chairman Rob Martin sent an email to Assistant Superintendent Mechanical, Ken Langstaff indicating that the local had need of an emergency executive meeting called for 11:45 am on Friday, November 5, 2004. He requested that the Company make arrangements to release seven car mechanics from service to attend the meeting. The names submitted included those of two of the three grievors, including Lodge President B. Wilson and Entertainment Committee Member Lorne Nolt. At the time of the message Mr. Langstaff was occupied elsewhere, dealing with a major derailment at Rosebud, Alberta which had occurred on November 2, 2004. Upon his return on November 4, Mr. Langstaff responded to Mr. Martin that he would not release the employees scheduled to work that day. It does not appear disputed that the reply provided by Mr. Langstaff was prompted by an acute shortage of staff occasioned by the derailment. In the Company’s view both the reduction of staff by reason of the derailment and the need for timely production in the conversion of pulp box cars in the Walker Car Shop did not allow for the reduction of staff proposed by the Union.

On the morning of November 5, 2004, Car Mechanic Nolt approached Mr. Langstaff requesting time off for Union business that afternoon. Again Mr. Langstaff advised Mr. Nolt that he could not spare him, indicating that Mr. Martin had been so advised. Notwithstanding, at or about 11:30 am on that day Mr. Nolt approached Supervisor Greg Pasek and told him that he would be leaving at noon. Mr. Pasek reminded Mr. Nolt that he did not have permission to leave. Similarly, car mechanic Andrus approached Supervisor Pasek late the same morning indicating that he would be leaving at noon, again to be told that he did not have permission to leave. Mechanic Wilson also approached Mr. Pasek at or about 11:45 am on that morning, indicating that he would be leaving at noon, with Mr. Pasek again reminding Mr. Wilson that he did not have permission to leave. It is common ground that all three grievors left their assignments at noon, resulting in their absence from work for a period of four hours without authorization, to attend the Union meeting. That meeting also involved other employees who were not scheduled for work and, in the case of one, who had been granted leave to attend, by reason of the greater work force flexibility in his department.

It is significant to note that neither Mr. Martin nor any of the grievors gave the Company any explanation as to the nature of the urgency which would have justified their absence on the afternoon of Friday, November 5, 2004. Indeed, during the ensuing investigation of the three grievors the Union declined to give any elaboration of the reasons for the meeting, asserting that such reasons were irrelevant. In the result, the Company assessed thirty demerits against each of the grievors. As appears from the Company’s submission to the Arbitrator, the severity of that discipline, bearing in mind that each of the grievors had a clear disciplinary record at the time, is prompted by the Company’s view that their action in deciding to leave as a group constituted “a concerted job action” meriting a serious degree of discipline. In that regard the Company appears to have relied on prior arbitral decisions indicating that thirty demerits is an appropriate response to the participation of employees in an illegal strike. Reference is made, for example, to the decision of the arbitrator in CROA 3090 and CROA 3156, as well an earlier award in CROA 2646, all of which involved illegal job actions in the nature of strikes or slowdowns.

With respect, the Arbitrator has some difficulty with this aspect of the Company’s case. The fact that two or more employees absent themselves from work in concert does not necessarily mean that they are engaged in an illegal strike or concerted job action in the sense contemplated by the Canada Labour Code. For example, three employees who absent themselves on the opening day of duck hunting season to participate in a joint hunting trip may be properly viewed as absent without leave (AWOL) but not engaged in a concerted job action or an illegal strike or slowdown. Careful regard must be had to the nature of the activity, bearing in mind that as a general rule the concept of a concerted job action, slowdown or illegal strike involves an intention to bring pressure on an employer by the concerted withholding of services in a manner not permitted by the Canada Labour Code. I am satisfied that that is not what occurred in the case at hand. In my view, at most the actions of the three grievors can be fairly characterized as being absent without leave, albeit they were absent together and for the same purpose.

Was there a violation of rule 27.12 in the circumstances disclosed? That article places an obligation upon the employer to reasonably grant a leave of absence to representatives of the Union “when delegated to represent other employees.” The Union does not argue that that rule constitutes “carte blanche” for Union executives to absent themselves from work without Company authorization. Its representative submits, however, that regard must be had to the urgency of the need for the leave of absence and that, in the case at hand, the urgency did justify the action taken by the grievors.

The Arbitrator has some difficulty with that submission. Firstly, with regard to the retirement banquet, it is as least arguable that, like the organizing of a golf tournament, it falls outside the protected activity designated in rule 27.12, which is the representation of employees. As a general rule reference to the representation of employees would contemplate the processing of grievances or similar claims such as workers’ compensation or employment insurance matters, as well as bargaining for the renewal of a collective agreement. It is less than clear that the handling of internal union business such as a banquet or other social event would fall within the ambit of rule 27.12.

Alternatively, even if such activity should fall within the parameters of the rule, it seems doubtful to the Arbitrator that the absence of the grievors could have been justified in the circumstances. In approaching this question, there is a balancing of interest to be made. On the one hand, the Union must be reasonably able to transact business. On the other, the Union’s business cannot unduly interfere with Company production, particularly in a circumstance which involves some operational or production urgency. On the day in question it is clear that a good number of the members of the Union’s executive were able to attend the meeting to make the executive decision necessary to deal with the issue of cancelling the banquet. It does not appear disputed that that decision could have been taken without the presence of Mr. Wilson, Mr. Nolt and Mr. Andrus. It is also less than clear that the Union executive could not have met on an earlier occasion to deal with the issue of the banquet, thereby avoiding any “emergency”. Nor did the concern over the possible treatment of Mr. Fadi present any particular urgency. That employee’s rights were fully protected under the terms of the collective agreement. Any attempt by the employer to treat the convening of an investigation as tantamount to discipline could be dealt with in the fullness of time by the normal processes of the grievance procedure. Mr. Fadi’s ongoing employment was not at immediate risk.

On the other hand, the Company did have serious grounds to maintain the fullest possible complement of employees at work on November 5, 2004. The derailment at Rosebud, Alberta had deprived it of a substantial number of car mechanics for several days, including that day. That event, coupled with the exigencies of work in relation to the pulp car conversion program, did not give the Company the ability to liberate the grievors from their assignments on the afternoon in question. Their circumstances are to be contrasted with those of employee P. Chong who worked in the diesel shop. Mr. Chong was granted a leave of absence for the Union meeting, apparently because there was no shortage of employees in his department. The treatment of Mr. Chong would indicate that the Company did not apply an arbitrary and inflexible approach in the case at hand.

It should also be stressed that the facts do not disclose an arrogant or high-handed approach by the Union executive. On the contrary, as stressed by the Union’s representative, the Union deliberately refrained from asking for leaves of absence for employees in time-sensitive work areas such as the Spot Shop, the Speedy Repair Track and the Yard. In other words, the Union was not unmindful of the Company’s concerns. Nor was it apparent to the Union that it would be possible to hold a meaningful meeting during the half hour lunch break, given the geographic distances various members of the executive would have to travel to attend. As noted above, however, it is far from clear that the Union could not have held the necessary meeting after working hours the previous day.

The Arbitrator is not satisfied that the Union has established a violation of rule 16.1 of the collective agreement. That rule deals with the obligation of an employee to advise his or her supervisor in a reasonable time in the event of an absence on account of sickness or for any other good cause. While it does speak of the obligation of the employer to deal with employees to make arrangements “to lay off” it is obviously addressed to the circumstance of one who is “unavoidably kept from work” by reason of sickness “or for any other good cause”. That rule does not, in the Arbitrator’s view, address the circumstances surrounding the optional scheduling of a Union executive meeting intended to discuss banquet arrangements and a possible grievance which did not involve the immediate job security of an employee.

In the result, the Arbitrator is satisfied that the Company did have grounds for the assessment of discipline against the grievors. They knew, or reasonably should have known, that the “work now – grieve later” rule applied in the situation in which they found themselves. The denial of their request, which was made on relatively short notice, was not arbitrary or unreasonable given the unusual work exigencies which the Company then had to contend with. The fact that the Union gave the Company no information with respect to the nature of alleged urgency of the Union’s meeting obviously does little to assist its case.

On the other hand, there are mitigating factors to take into account. As noted above, the Union did attempt to limit its request to individuals whose absence it felt would not be unduly disruptive to the Company. Additionally, the Arbitrator must conclude, for the reasons touched upon above, that the assessment of thirty demerits was excessive in the case at hand, particularly as it was apparently based on the employer’s unsupported view that the conduct of the grievors was tantamount to an illegal strike or a concerted job action. I am satisfied that it was not.

For the foregoing reasons the grievance is allowed, in part. The Arbitrator directs that the discipline assessed against the grievors be reduced to fifteen demerits for their absence without leave on the afternoon of Friday, November 5, 2004. The Arbitrator retains jurisdiction should there be any dispute with respect to the interpretation or implementation of this award.

Dated at Ottawa, this 19th day of July 2005

(signed) MICHEL G. PICHER

ARBITRATOR