SHP646

ARBITRATION

between

CANADIAN NATIONAL RAILWAY COMPANY

and

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (TCA-CANADA)

GRIEVANCE CONCERNING ARTICLE 51 – March 31, 2008

ARBITRATOR MICHEL G. PICHER

There appeared on behalf of the Company:

S. Grou – Manager, Labour Relations, Montreal

Robert Champagne – Assistant Superintendent, Mechanical

Denis Parent – Assistant Superintendent, Montrain

D. S. Fisher – Director, Labour Relations, Montreal

There appeared on behalf of the Union:

D. St-Louis – National Representative, Montreal

Richard Brosseau – Regional Vice-President, Montreal

Heard in Montreal, August 5, 2009

AWARD OF THE ARBITRATOR

DISPUTE:

Alleged violation of articles 6.1, 6.22, 40.1, 52.1, 52.18 and appendix X of collective agreement 12.

JOINT STATEMENT OF ISSUE:

The Union alleges that the above-mentioned provisions were violated on March 31, 2008, at Rivière-des-Prairies, when the firm Perkan was allegedly subcontracted to change the wheels on the GATX 300980 car.

The Union claims payment at overtime rates for the hours worked by the outside firm Perkan.

The Company denies the Union's request.

FOR THE UNION: FOR THE COMPANY:

REGIONAL REPRESENTATIVE MANAGER, LABOUR RELATIONS

(SGD.) R. BROSSEAU (SGD.) S. GROU

In this file, the burden of proof falls to the Union. It must establish, according to the balance of evidence, that the Company infringed the articles of the collective agreement cited in the description of the Joint Statement of Issue.

Before these provisions can be examined, the Union must prove that the work in dispute—changing the wheels on the GATX 300980 car—was performed by a sub-contractor at Rivière-des-Prairies Yard on March 31, 2008. The only evidence the Union filed to that effect is a note from its local representative, which was written based on information provided by someone else. However, the Union did not produce any witnesses to the alleged events.

For its part, the Company denies that it ordered the wheels of the car in question to be changed by the sub-contractor. To support its claim, it filed as evidence the invoice that the sub-contractor sent it for its work on the day in question. As appears from the invoice, the equipment used on March 31, 2008, did not include the crane that would have been essential to change the wheels of a car. The car repairs performed by sub-contract at Rivière-des-Prairies on March 31, 2008, included other work involving welding and replacing equipment other than wheels on only three other cars. No work was performed that day on the GATX 300980 car and, in any case, no wheels were changed on any car.

The arbitrator must obviously handle the file based on the evidence as submitted. The Union could have obtained access to digital information in the Company's possession by subpoena to obtain a more precise image of the work performed by the sub-contractor during the period in question, but it did not issue such a subpoena. Moreover, the most convincing and credible evidence filed before me remains the sub-contractor's invoice, which supports the Company's position that the work in question was not performed.

For these reasons, the grievance is dismissed.

August 7, 2009 ARBITRATOR

_______________________________

MICHEL G. PICHER