General Committee of Adjustment CP West
I am in agreement with the Union that the Company’s Bulletin would run afoul of the KVP Test as it has the potential to be interpreted by the Company in a manner which is inconsistent with the Agreement: The Union’s concern that the Company would consider an employee to be on “two straight-away trips” and so the “on duty” clock was “reset” is not an unreasonable one.
Please see the attached CIRB decision concerning CPKC’s appeal on calculation of wages for Paid Personal Leave under the Canada Labour Code.
In view of the uncontradicted evidence of the Grievor regarding the unstable footing that existed on his train as the switch was approached, I am satisfied the Company has not met its burden of proof to establish the application of the Bulletin was reasonable in this case and provided cause to discipline the Grievor for failure to comply with the Bulletin.
No cause for discipline having been established, the 20 demerits assessed to the Grievor are vacated.
In making this decision, I have had regard to the very long service of this Grievor and have considered his discipline record – and the jurisprudence – very carefully. In view of the very long service of the Grievor; the relatively minor nature of this incident in comparison to others in this industry as recognized in CROA 4098; the jurisprudence; and also understanding that the Grievor had already been placed at Step 3 on his reinstatement, I am satisfied that 30 demerits was excessive and unwarranted for this incident. I am prepared to exercise my discretion to set aside that discipline and to substitute reinstatement, however given that the Grievor had been reinstated at Step 3 and his record was therefore precarious, I do so with time served as a suspension (so a reinstatement without compensation and benefits).
The Company also argued that it was not inevitable that Mr. Bobier would have been entitled to the extra shift, based on seniority, and cites CROA 4694. This case, in my view, is distinguishable, as it deals with claims between bargaining unit members. Here, the issue is between a bargaining unit member and a member of management performing bargaining unit work. Mr. Bobier is the only bargaining unit member claiming this extra work and the time for anyone else to do so is long past. The grievor was entitled to make the claim advanced.
The Union has also asked for a “Cease and Desist” Order to be given to the Company concerning the use of management members to do bargaining unit work. Although I agree that I have the power to do this see AH 809, I decline to do so here. The parties will be before the CIRB shortly, with far greater evidence and time than that available through the CROA process
For these reasons, the grievance is allowed. I retain jurisdiction for any questions concerning the implementation of this award.
Grievance regarding an ESB’s (Clayton Wright) declined wage claim (OA) due to his pool turn not having 10 hours off duty (8 + 2) between round trips as submitted by Conductor Clayton Wright for being withheld from his regular position to protect work as a Locomotive Engineer.
The Grievance is allowed. A declaration will issue that the Company has breached the Collective Agreement by:
a. Altering the requirements of Article 113.01(6) by unilaterally imposing on the Grievor a 10 hr rest requirement; and
b. by using the Grievor’s personal rest history to determine the earnings the Grievor “would have made” on his “regular position” under Article 113.01(6).
Decisions on five appeals filed on behalf of Conductor William Ryan.
Decisions on four appeals filed on behalf of Conductor Neil Lashley.
After careful review of the facts and evidence, I find that under the Spare Board guarantee provisions he should have be considered in pro-rated off-status for the two days. Such days are not penalized but instead are prorated. Spare Board employees are not entitled to spare board guarantee payments for that day or days. To do otherwise would assess a potentially greater financial loss to Spare Board employees in comparison to other employees who were in the same status on the same two days. The days in question should not have been penalized to negate an entitlement after he returned to work. Under the language the two days were subject to prorated and as such he was not entitled to spare board guarantee for the two days but was entitled to the remainder of the guarantee.
In view of the foregoing the grievance is allowed and the Grievor will not be compensated for the two days but will be compensated for the remainder of the guarantee period accordingly.
It cannot be suggested that the Collective Agreement in this case supports qualification testing – or drug and alcohol testing of any type. The employment agreement therefore did not provide to the Company the legal justification to subject the Grievor to qualification testing.
The Company has not met its burden of proof to demonstrate it had legal justification to test the Grievor for drug and alcohol use, as part of his qualification for the role of Conductor.
In view of this finding, it is not necessary to determine the other issues raised by the arguments of the parties. The Grievance is upheld. The Grievor is to be reinstated and made whole for all lost wages and benefits, including any impact on his pension benefits.
After carefully reviewing the relevant evidence and the respective submissions of the parties I find, there was just cause for discipline but not for discharge. I find that this incident does not demonstrate the Grievor has a lack the necessary rehabilitative potential, or that he cannot comply with the requirements of a safety critical workplace. Accordingly, I am prepared to exercise my discretion to reinstate the Grievor and to substitute a lesser penalty than discharge.
The Grievor will be reinstated without compensation or loss of seniority. Time out of service will be as unpaid suspension. A one day compensation will be appropriately made to ensure the Grievor’s ability to remain in the pension plan.
The facts and circumstances relating to Road Trainmaster Rioux’s observations and the investigating officer’s conduct raise questions about the degree to which they approached their respective tasks with an open mind.
I agree with the Company that the rule was violated if the signal was not broadcast. However, that fact was not established by the Company.
In view of all of the foregoing I find discipline to be void. The Grievor shall be reinstated and made whole for lost earnings and benefits.
Arbitrators have considered the individual facts and established a wide range of discipline including 15 demerits in the similar facts of CROA 4533. In that case he upheld the 15 demerits assessed. In view of all of the forgoing the Grievance is allowed in part. The discipline will be reduced to 15 demerits.
Laval, QC, June 7, 2023 – A federal judge has found Canadian Pacific to be in contempt of court after the company forced train crews to work excessively long hours in violation of a court order to abide by the collective agreement and Transport Canada regulations.
The judge found “beyond a reasonable doubt” that the rail company “intentionally” overworked train crews in 22 incidents of the 38 presented. However, the judge also noted that “CP’s own evidence was that thousands of situations continue to occur annually” where train crews are not relieved from work in time.
Most important, though, was the specific undertaking given to employees by the Company when the cameras were installed. They are intended only to monitor security. They are not meant to be used to measure employee productivity. In acting as Ms. Bryson did, the Company breached the undertaking it made when the video cameras were introduced. It undertook they would be used only “to investigate claims of theft or break and enter”. That was the Union’s understanding at the time. That was not the purpose for Ms. Bryson’s viewing. In the circumstances, the Company was not entitled to view the video recording when Ms. Bryson did so, and it cannot rely upon them. Accordingly, as was said in CROA 2707 I find it was not reasonable for the Company to have regard to the video tape evidence.
The Company submitted that the alleged offence placed doubt on his continued employment. In spite of this alleged doubt the Company reinstated the Grievor before the hearing on this matter. In view of all of the foregoing the arbitrator orders that the Company remove the 30 demerits points and resulting dismissal from his record and compensate him for his losses accordingly.
Fourth, Mr. Mellquist’s detailed evidence in his Statement satisfied the arbitrator that he was candid with CP about the incident. He acknowledged his behaviour was inappropriate and expressed remorse. Mr. Mellquist is also a long service employee having been hired in 1986. For the above reasons, the arbitrator orders CP to reinstate Mr. Mellquist, without loss of seniority, but without compensation for lost wages and benefits.
In the circumstances, and considering the limited information available from the employee Statement in this case, the arbitrator concludes that Mr. Mellquist merited a 5- day suspension for his actions. The arbitrator agrees with the TCRC that this situation did not justify CP holding Mr. Mellquist out of service under article 39.06 of the CA.
Considering the context of this 2015 case when suspensions were the “norm”, rather than demerits, as well as Mr. Brydge’s proper discipline record, the arbitrator has decided to substitute a 3-day suspension for CP’s original 30-day suspension. This determination applies only to Mr. Brydge’s situation and should not be taken as a precedent for future cases. The disciplinary landscape has changed since 2018 with the reintroduction of demerit points in a hybrid system.
CP remained fully entitled to plead that it still had cause for dismissal, despite Arbitrator Hodges overturning Mr. Igbelina’s 30-day suspension. But its attempt during the hearing to file more ETs into evidence demonstrated Arbitrator Sims’ legitimate concerns. These past ET tests never formed part of Mr. Igbelina’s disciplinary record. He had never had a chance to contest them. They cannot be raised at arbitration to support CP’s case for just cause.
The arbitrator has raised procedural concerns about the disclosure in this case. Only full disclosure allows the railway model to hear, in a procedurally fair way, multiple cases in a single day.
CP demonstrated that the grievor tested positive while subject to the RPA. The Record discloses no innocent explanation for that result. However, because CP did not follow the RPA’s process, the arbitrator has decided to reinstate the grievor with appropriate conditions.
For the reasons explained above, the arbitrator dismisses CP’s 3 preliminary objections. The TCRC can bring a single grievance contesting a scenario, like the one which allegedly occurred during the week of February 15, 2021 and request remedies on behalf of any affected employees.
The arbitrator further dismisses CP’s objection contesting the TCRC’s request for a “cease and desist” order. The TCRC has advised CP that its remedial requests go beyond what might otherwise be considered routine. The merits of this case will determine whether the TCRC has any entitlement to that type of remedy.
The arbitrator dismisses CP’s objection arising from the TCRC’s request that any affected employees be made whole. The merits of this case will determine whether CP has any liability. The particulars of any compensation for impacted employees would only occur after a decision on liability.
In view of all of the foregoing, I find the failure to recognize undue delay negatively impacted the Grievor’s right to a fair and impartial investigation. For the reasons I have set out in this award, the evidence did not establish culpability. The evidence necessary or given to the Investigating Officer against the Grievor was at times unavailable, largely unreliable and in some cases not credible.
The Grievor’s dismissal is therefore void ab initio.
The Grievor will be reinstated without loss of seniority or benefits and with compensation of all wages in accordance with his original RTW Plan. The RTW Plan will be reviewed and updated accordingly within 30 days of this award.
I find the investigating officer established that the collision was avoidable had Conductor Anderson fulfilled the obligations. I also note that Conductor Ward indicated in his incident report that he was specifically calling the east end, recognizing that such permission is safer when given by a crew member in the location where the move would occur.
For the foregoing reasons, I also find that CP’s investigation was not fair or impartial as required by the collective agreement. The discipline is to be removed from the Grievor’s record and he will be compensated for loss of earnings.
The arbitrator has considered the parties’ competing interpretations of the CA. For the reasons expressed above, the CA does not contemplate CP’s ESR Toronto-Buffalo employees receiving their “calls” while still on their Toronto-Buffalo tour of duty. The negotiated language fits far more comfortably within the scenario, which appears to have been the status quo for years, of CP calling crews after the expiration of the FRA’s 10- hour rest period.
While this may result in employees receiving “held away pay” under article 8 of the CA, that result alone is not sufficient to discount the parties’ existing negotiated wording. A change to that scenario must come from collective bargaining rather than from a rights arbitrator.
The arbitrator declares that the Bulletin violates the collective agreement. The TCRC has requested various resulting remedies. The arbitrator retains jurisdiction to hear the parties’ arguments in that regard should they be unable to agree on the appropriate remedies.
Not surprisingly, as CP has proved in the past in an impairment case involving cocaine, severe consequences follow for employees who work in safety sensitive positions when impaired. But in the absence of evidence showing impairment at work, CP had no grounds to discipline Ms. Daniher.
For the above reasons, the arbitrator concludes that CP had no reasonable grounds to test Mr. Calibaba. Consequently, it had no grounds to impose any discipline. The arbitrator grants the TCRC’s remedial request that Mr. Calibaba be reinstated to his position with no loss of seniority and full compensation for all lost wages and benefits. Mr. Calibaba is entitled to interest on these amounts.
In 2020, the Grievor was discharged from her position as a Conductor. The Union grieved the discharge and, on January 24, 2022, this Office issued CROA 4806 & 4807 (the “Award”), ordering the Company to reinstate the Grievor and make her whole in all respects. I retained jurisdiction regarding the implementation of the Award.
In the decisions relied upon by the Company, the grievors took no steps or provided no evidence to show that they applied for other work: CROA 4355S, CROA 4505S. In the circumstances of this case, including the short period of time at issue, I am not persuaded that the Grievor failed to take steps to mitigate her losses between January 1 and January 24, 2022. Accordingly, there is no basis to reduce her compensation for the Relevant Period for failing to mitigate. The Grievor is entitled to be compensated at the agreed-upon comparator rate from January 1, 2022 to August 18, 2022.
To the extent, as asserted by the union, that “union members who are required to attend disciplinary investigations have found that their personal health information beyond functional limitations are relied on as Appendixes in such proceedings,” that practice must come to an immediate end. An employee who provides consent on a FAF to disclosure of medical information does so for one purpose only: to provide the necessary information for accommodation. Any other use of the information is completely improper (not including, of course, when necessary to respond to an accommodation grievance or some other legal proceeding or as required by law).
In the aftermath of the award, the FAF disclosure provision should have been revised to comply with the award. The Company is directed to immediately amend the FAF consent provision to eliminate reference to Policy 1804 and to promptly inform that union that it has done so. To the extent that Policy 1804 continues to allow disclosure of medical information beyond functional abilities and restrictions for accommodation purposes (or for use in an accommodation grievance or as required by law) it is of no force and effect.
This case concerns an employer revision to the employee consent provision of the FAF. It proceeded to a hearing in Toronto on October 31, 2018. At that time, and with the explicit consent of counsel, an effort was made to resolve the outstanding issues in dispute. It was agreed that the parties would continue those discussions following the hearing, but that if they were unable to resolve the outstanding matters, I would, as was discussed at the hearing, issue a direction. Unfortunately, the parties were unable to reach an agreement. Accordingly, I direct as follows with respect to the consent provision of the FAF: Except as required by law, supervisors and managers are only entitled to information about functional limitations.
In this case, I find there was no concern for false claims or inability to trust the Grievor during his employment prior to the June 12, 2018 collision. There is no dispute regarding the impact on the Grievor. He did not attempt to hide his absences and no concerns were raised by the Company. Unlike the Grievor in Ad Hoc 700, I can find no reason to believe he cannot return to that trusted status.
In view of all of the forgoing, the Grievor will be reinstated without compensation or loss of seniority.
Given all of the foregoing, I find the assessment of a 20-day suspension excessive. The discipline will be reduced to 15 demerits. The Grievor will be compensated accordingly.
The Company was aware of the mitigating factor of this case as it was held in the back log of grievance until the back log cases were referred to me for arbitration in October of 2021.
In view of all of the foregoing, the grievance is allowed in part. The time from dismissal to October 31, 2021 will serve as suspension without pay. The Grievor will be reinstated effective October 31, 2021 with compensation for lost wages and benefits from that date.
The Grievor is not a long service employee. He has a discipline record with two previous suspensions. His failure to be accountable for his actions are inconsistent with his returning to a safety critical position.
The Union had six grievances before the Arbitrator for this Grievor and two were dismissal for accumulation of demerits. The Company requested separate decisions for each grievance. The Grievor was dismissed a second time for a rule violation.
"Based on all the evidence before me, I cannot find that the Company provided a fair and impartial investigation in this case. In my view, the frustration of the Union is understandable given the facts and involvement of Mr. Gough and Mr. Harter in this particular case. However, the particular conceptualization of targeting by the Company in general has not been found as a result of this case."
"In view of all of the foregoing, I find the Grievor’s discipline void ab initio due to the failure to provide a fair investigation and the significant procedural errors set out above. I order CP to reinstate Mr. Blackwood in his employment, with compensation of all wages and benefits lost and without loss of seniority."
In these circumstances, there was no basis to discipline the Grievor. His behaviour was not prohibited by any rule and it was not unsafe. It might have been open to the Company to discuss the situation with the Grievor and provide guidance about when to avoid riding on the ladder. However, there was no basis for discipline and this incident should not have led to the Grievor’s discharge.
Given my conclusion that discipline was unwarranted, it is not necessary to address the Union’s allegations that the investigation was unfair and impartial.
The Grievor is reinstated forthwith with full compensation and without loss of seniority.
I find the Company chose to assess discipline of a 40 day suspension for this incident as a Major Violation. However, it returned the Grievor to work without restrictions after 28 days. In so doing, I find the Company actually chose to address this matter as less than a Major Violation. After the Grievor had been held out of service for 28 days the decision was made to return him to service without any requirement for training or restrictions. I find that decision is understandable given his previous good record. However, the Company failed to properly consider all the same mitigating factors when assessing the original discipline.
After consideration of all of the foregoing the grievance is allowed in part. The Grievor Troy Woodhouse will be reinstated in accordance with the following. The period from August 5, 2019 to July 5, 2021 will be counted as time out of service without compensation. Upon return to work at CP Rail, he will be compensated for lost time and benefits for the time from August 5, 2020 to December 3, 2020 when he refused reinstatement.
Based on all of the forgoing I cannot find that the Grievor received a fair and impartial hearing. The evidence produced did not justify the discipline. I find the discipline imposed is null and void. The Grievor be made whole for lost wages and benefits.
In view of all of the foregoing I find the discipline assessed is excessive. It will be reduced to a five day suspension and the Grievor will be compensated accordingly.
In view of all of the foregoing dismissal will be replaced with time served as suspension without pay. The Grievor will be reinstated without compensation for lost time or benefits within 60 days of this award.
The Employer argued that the discipline imposed on the Grievor was reasonable and in keeping with its Hybrid Discipline and Accountability Guidelines. The Union objected to the Guidelines because they were introduced unilaterally by the Employer and are the subject of outstanding Union grievances. These issues are beyond the scope of my jurisdiction. Having assessed the discipline based on existing CROA jurisprudence and principles, I am satisfied that the discipline imposed was excessive and must either be rescinded or reduced, as described above. The grievances are allowed, in part.
The Grievor’s disciplinary record should reflect a total of 25 demerits points for the incidents reviewed in this award. This would have brought her active discipline record to 45 demerit points at the time of her termination, which is below the threshold for termination under the Brown system. Therefore, the termination is set aside and the Grievor is to be reinstated and made whole in all respects.
For the reasons set out above, I find that the Company did not discharge its burden of proving that the Grievor was impaired while on duty or subject to duty, or otherwise violated Rule G, the Policy or Procedure, nor that the June 10, 2019 incident was caused, in whole or in part, by his alleged impairment. In the absence of impairment, there is no cause for discipline. In the circumstances, I find that the Grievor’s dismissal due to his drug consumption and test result of June 2019 was not warranted.
I order that the Grievor be reinstated without loss of service and that he be made whole for all compensation and benefits lost.
Article 5.7 of the ESR Agreement states that, for the purposes of employees’ annual vacation (referred to in Article 5.7 as “AV”), Hamilton will be treated as an independent terminal. Contrary to the Company’s submission, Article 5.7 does not state that Hamilton will be treated as an independent terminal “only” for employees’ annual vacation purposes. Therefore, Article 5.7 is not inconsistent with the finding that Article 5.8 also creates a special regime for the staffing of assignments. For these reasons, the grievance is allowed.
I order that the Grievors be compensated for all lost wages for the layoff period at issue and that they be made whole, notably regarding pension, vacation, benefits, earned days off and vacation, without loss of seniority.
This was an Award achieved regarding numerous grievances advanced regarding the Company continuously utilizing foreign railway locomotives in the lead position and that do not comply with Collective Agreement provisions / past jurisprudence as well as Canadian Regulations. Specifically, the issue and grievances in connection with foreign locomotives was directed toward locomotives unequipped with proper fridges, hot plates, and vinyl seats. The Award in itself is self-explanatory, and clearly, Arbitrator Kaplan agreed with the Union position in this matter. Our focus now must be to ensure our Membership immediately notify the Company when we receive a train/assignment with a non-compliant locomotive leading to ensure it is swapped properly and to ensure that subsequent crews do not have to work under substandard conditions.
“The December General Holiday dates extended the vacation to January and the vacation was further extended by the January General Holiday dates. There Is no other interpretation. Management knew all of this and agreed to this in advance; why else would it otherwise have started calling the cohort on the evening of January 2nd asking them to sign on for duty?”
The Arbitrator agreed with our position and awarded “the remedy for each affected employee is $175 per day lost and each affected employee shall receive an additional day of vacation, or if two days were lost, two additional days of vacation, on a mutually agreed day, or dates, as the case may be.”
The Company’s initiative to remove containers, that had been flagged by customs, directly off a train just over the border at Portal North, Dakota. The operation of the “Live Lift” results in, on many occasions, the head end of the train going outside the terminal switching limits. In an effort to resolve the issue, Arbitrator Kaplan mediated the issue resulting in the appendix to the award. As such, the outstanding grievances, and claims held in abeyance, will be paid at 75 miles and on a go forward basis the crews will be 50 miles to perform the “Live Lift”.
For years there has been a local rule governing the assignments and clarifying the entitlements of payments for crews to work at the Spence outpost. The agreement has been tested on several occasions including the forcing of employees to Spence in CROA 4294. Regardless, it was a local rule and the Company cancelled it in accordance with the terms of the agreement and the Arbitrator found such. Of significance to the matter is the Arbitrator recognizing and confirming the applicability of the two letters within the CBA regarding Outposts. The affected employees will receive all compensation associated with deadheading and those letters.
It is my view that the termination penalty imposed on the grievor, an 11-year employee, for the GOI breaches for this incident, is excessive. The grievor’s termination shall be substituted with a 30-day suspension. He shall be reinstated to his former position and otherwise made whole.
The grievance is upheld. The grievor shall be reinstated to service without loss of seniority and shall otherwise be made whole. I shall retain jurisdiction should any issues arise in the implementation of this award.
The arbitrator further agrees in these circumstances with the comments of the Arbitrator in CROA 4418 “…that the imposition of a serious sanction, short of termination, will have the desired rehabilitative impact on this grievor”. Accordingly, after considering all the facts, the Arbitrator directs that the Company reinstate the grievor forthwith without loss of seniority, but without compensation for any wages or benefits lost.
The award was anchored by the Letter. It notes that the words “set off” and “pick up” were not present in the relevant provisions of the collective agreement. It then went on to provide – even though these words were absent – that Conductor Only crews could continue to do two things.
In brief, all four grievances submitted to arbitration allege a violation of Conductor Only Provisions at the Final Terminal. Both parties filled detailed written briefs and reply briefs. The cases proceeded to a hearing by Zoom on November 11, 2020.
Sisters and Brothers, This is in regard to the second to final remaining dispute (Conductor Only Initial Terminal Violations) from our last bargaining sessions with CP and agreed by the parties to be heard by Arbitrator William Kaplan in the closed period. We have one last issue to be heard by Mr. Kaplan on November 11, 2020, that being Final Terminal Switching Violations. These proceedings have been delayed significantly due to the Covid-19 pandemic, and are being heard electronically as opposed to in-person hearings due to our inability to meet face to face.
“The arbitrator heard the grievance on the merits on October 10, 2019. In his decision dated October 23, 2019, the arbitrator determined that residual traces of marijuana in the grievor’s urine as a result of recreational off-duty marijuana use did not “establish impairment”, did not violate the Drug Policy, and did not establish just cause to terminate his employment. The arbitrator ordered CP to reinstate the grievor as an employee “
“The arbitrator’s analysis, based on the facts before him, shows a line of analysis leading from the evidence to the conclusion. His reliance on arbitral case law was reasonable. The Union relies on eight CROA decisions, from 2008 to 2019, which all state that a failed urinalysis test is not by itself sufficient proof of impairment. Oral fluid testing, on the other hand, can reliably show impairment. In basing his decision on the CROA case law, on the facts found by the arbitrator, the arbitrator’s analysis was reasonable.”
Under the circumstances, I find that the appropriate discipline for this incident should be a further period of suspension. The dismissal penalty shall be removed from the grievor’s record and substituted with a suspension of 45 days. The grievor shall be reinstated into his employment and made whole without loss of seniority. The Suspension grievance succeeds. The 30-day suspension is set aside. The Dismissal grievance also succeeds to the extent that a 45-day suspension is substituted for the grievor’s dismissal.
In general, the Grievor's record of thirty-three years of service reflects long periods of service without discipline. The majority of discipline assessments is generally for operational infractions and the twenty and thirty days of suspension are now pending before the arbitrator. The termination of the Grievor’s employment was excessive and unwarranted.
The grievance is upheld to the extent that the 30 day suspension is to be removed from the grievor’s record and substituted with a written warning. He shall otherwise be made whole for his losses.
The damages caused by the Grievor to the switch handle and the car bumper, his delay to report the incident and his lack of candor especially during his conversation with Supervisor Carter by downplaying what had occurred and the damage that was caused could have place some doubt on his continued employment.
For the foregoing reasons, the grievance is allowed in part. The twenty day suspension is to be reduced to a three day suspension and the Grievor’s record revised accordingly.
Accordingly, the appropriate resolution of this matter is to
direct that:
a) the parties be given a period of 60 days from the
date hereof to negotiate the appropriate changes to the Golden Zone
Agreement - pursuant to Article 35 (1) - taking into consideration the
WPP; the provisions of Article 25.05 and the parties’ past practice.
b) failing agreement thereon, the matter is to be returned to me for
determination;
I agree with counsel for the Union that it was not sufficient for the Company to determine whether there were vacant positions into which the grievor could be placed. The duty of accommodation goes further, requiring the employer to consider whether various job functions can be bundled together to create a sufficiently productive accommodated position. Additionally, the obligation of scrutiny on the part of the employer, and for that matter on the part of the Union, extends beyond the bargaining unit and can encompass managerial responsibilities or work in relation to another bargaining unit, subject only to the limitation of undue hardship.
I have no difficulty arriving at the same conclusion reached by Arbitrator Weatherill, as have other arbitrators from this Office before him, that a urine drug test that uncovers traces of marijuana is not conclusive of impairment.
Having traces of marijuana in the body may raise a question of whether there is impairment, but that bit of evidence by itself is not enough to establish impairment, whereas the negative breath alcohol and oral fluid tests strongly indicate that there was not. There is no suggestion whatever that the grievor’s conduct, movements or verbal behaviour were indicative of impairment.
This case concerns the entitlement of employees who are held out of service or suspended for greater than thirty days. The parties filed detailed briefs and the matter proceeded to a hearing in Toronto.
The GMS is not a joint union-management program; it is not the property equally of the company and the union, as is the collective agreement. Thus, the company’s letter of April5, 2019 improperly limits the rights of the union and of employees to file grievances and constitutes, I find, a violation of the collective agreement.
The Company introduced evidence of earlier iterations of the language in question, but respectfully those earlier iterations, dating back decades, are not helpful as these provisions have been changed in more than one respect, and they simply do not meet the basic test for relying on bargaining history or otherwise as an aide to interpretation. One is left with the collective agreement language, and it is clear and compelling: the company can, in certain circumstances change the class, of service and if does so, it can return the crew to their Home Terminal or, if turned, pay them the 100 miles. Accordingly, and for the foregoing reasons, the crew is each entitled to compensation for 100 miles.
The termination for the incident of April 22, 2017 shall be substituted with a suspension for his period out of work, in addition to his reinstatement without compensation or loss of seniority.
The grievance is upheld to the extent that the 30 day suspension shall be removed from the grievor’s record and substituted with a written warning. The grievor shall be otherwise made financially whole. I shall retain jurisdiction should a dispute arise with respect to the amount owing to the grievor.
Given the focus of CP’s submissions on discipline, the arbitrator must conclude that undue hardship has not been shown. The appropriate remedy therefore will be comparable to those which this Office has ordered in past cases. In similar situations, this Office has ordered reinstatement with conditions.
Each decision in this area is limited to the specific facts of the case. The TCRC demonstrated CP did not have reasonable cause to require Mr. Lind to undergo substance testing as a condition of an arbitrator-ordered reinstatement. Mr. Lind is therefore entitled to the compensation claimed for the period from February 24, 2016 to June 9, 2016.
I agree with the Union that the initial termination as well as the later reduced penalty were both extraordinarily harsh. The penalties are set aside and replaced with a 7 day suspension, for the insulting language, but not for a refusal to follow directions. The grievor is otherwise to be made whole, with interest.
The arbitrator accordingly substitutes a 3-day suspension for the original 30-day suspension. This suspension applies solely to Mr. Desjarlais receiving a call for work and booking off sick at that time. No discipline was warranted for the two occasions when Mr. Desjarlais booked unfit in accordance with the collective agreement.
The arbitrator has concluded that the dismissal for the September 3, 2016 derailment incident was excessive and shall be replaced by a 7-day suspension. The arbitrator orders CP to reinstate Mr. Lang in his employment, with compensation and without loss of seniority, except for the period of the 7-day suspension and less any amounts earned in mitigation.
From the totality of these five cases, I cannot discount the grievor’s feelings. The discharge penalty applied three times in a row are now all set aside and the grievor is to be reinstated as directed above. In the last two cases particularly, the magnitude of the penalty grossly outweighs the relative seriousness of the offences alleged.
In this case I am not prepared to find the grievor waived the right to object. The Union’s representative, while not objecting to the adequacy of the initial notice, asked at Question 9 for an assurance that all the evidence being acted upon had been disclosed. It is obvious that, despite nothing being produced from Mr. Tzing, the investigating officer was in possession of details of the allegations yet he disclosed nothing. An informed waiver requires full knowledge. The absence of disclosure when asked adds to rather than waives the seriousness of the initial absence of a compliant notice of hearing. I find a failure to comply with Article 23.01(4). I therefore allow the grievance and set aside the discipline, directing that the grievor be made whole. I reserve jurisdiction to make any further remedial order necessary, should the parties be unable to agree.
This morning the Union received the awaited results of our hearings before Arbitrator Clarke in regards to the systemic Over Hours violations that go to the core of rail employees’ rest and work-life balance. We will provide a brief summary for you as it is a lengthy award but encourage all to read and provide any questions to your Local Chairperson so they can be forwarded to our offices for clarification.
The Grievor resigned his employment with the Company effective August 11, 2016 (Company Submissions; Tab 3). There is no evidence with respect to the Grievor’s rationale for resigning. I infer, therefore, that he did so of his own volition and for his own reasons. Accordingly, no compensation would flow after the date of his resignation. In that respect, I accept the comments of Arbitrator Picher in CROA 2028. The grievance is allowed. The Grievor shall be made whole from the period of time that the Company’s SAP report was completed to the date of his resignation on August 11, 2016.
The arbitrator orders that CP reinstate Mr. Shewchuk with appropriate compensation. The 30-day suspension and the termination will be removed from his record and written warnings will be substituted in their place.
The arbitrator orders that CP substitute a 60-day suspension for the current 152-day suspension and compensate Conductor Morale for the difference. The arbitrator remains seized should any questions arise regarding this award.
The penalty imposed must be proportional to the transgression alleged. In my view, a discipline of dismissal is disproportionate in the circumstances and should be replaced with a suspension of one month. The grievance is allowed in part. The dismissal will be set aside and replaced with a one-month suspension. The Grievor, having already been reinstated, shall be otherwise made whole.
Based on the medical information provided to CP, it is unclear why they concluded that they could no longer continue to accommodate Mr. Robinson during the graduated period suggested by his physician. While there may have been an earlier issue in 2012 which potentially influenced CP’s analysis, that cannot justify disregarding the significant medical information Mr. Robinson provided. CP violated its duty to accommodate; Mr. Robinson is entitled to a remedy.
My conclusion is that, despite the seriousness of these Rule violations, aggravated by the damage caused, Mr. Taylor’s employment relationship is capable of restoration. I find it just and equitable in the circumstances that his termination be set aside and he be restored to employment, but without compensation, the intervening period being recorded as a suspension. I remain seized to finalize this remedial award, if necessary.
Ms. Bujold’s record over the prior year was poor. In these circumstances the termination is set aside and the grievor will be reinstated without compensation. She has been remorseful and has accepted full responsibility which convinces me that this is a working relationship that can be successful in the future.
I do not find a violation of Article 70.05 in these circumstances, albeit that I have seen fit to mitigate the penalty. For these reasons, I find that the Company has established just cause for discipline, but that the penalty of termination, should be reduced to a 60 day suspension.
Having considered these arguments, I find I must dismiss the grievance. Most of the cases cited in support of intervention involve first offences or longer service employees. None of them involve both a very recent prior infraction or a reinstatement on strict conditions as is the case here. Like Arbitrator Weatherill in CROA 681 I find that the Employer had just cause for dismissal and no intervention is warranted.
The arbitrator orders CP to reinstate Mr. Wojcik, with full seniority, and with compensation for any lost wages and benefits, other than for the period of the 7-day suspension. The arbitrator remains seized for any issues arising regarding this reinstatement order, including for sums earned in mitigation.
A two month suspension is substituted for termination with the grievor to be made whole except for the two month’s pay.
Thus, the grievances are allowed. The company shall cease and desist from any such future violations of the collective agreements. I order that all work done by US crews since October 29, 2013, be returned to the bargaining unit.
After carefully considering the submissions of the parties, I find the Company breached the Collective Agreement by unilaterally cancelling the Shepard Agreement.
After carefully considering the submissions of the parties, I find that the Company breached the Collective Agreement by unilaterally cancelling the Pitt Meadows MOA.
In terms of orders, I am of the view that only my order for an abeyance code is necessary at this time. I believe it is best to remit the remainder of the remedial relief back to the parties to discuss together with the issues arising from the cancellation of the Red Deer Interim Diversion Agreement. I am hopeful that my awards will assist the parties in focusing their discussions and resolving their differences.
In terms of orders, I order the Company to immediately establish an abeyance code for Red Deer crews and Edmonton crews in accordance with the Union's request as outlined in this award.
The arbitrator accepts TCRC’s grievance and declares that CP’s practice of having members drive company vehicles to DH violates the collective agreement.
In my opinion, the Company was not exercising a contractual right under the earlier agreements. Rather, the Company was initiating a material change in working conditions, which has had significant adverse effects on the current employees working at these two terminals. Accordingly, for all the reasons I have set out above, I am allowing the grievances.
The arbitrator orders that CP reinstate Ms. Brander forthwith. CP will substitute 15 demerit points for the 2014 30-day suspension it imposed. CP will substitute a 5-day suspension for Ms. Brander’s 2016 termination.
I am satisfied that, in the circumstances, it is reasonable for the Company to conclude that it can no longer trust the Grievor to perform to the high standards that are required of his job.
Therefore, after carefully considering the parties’ submissions, I am compelled to find that the Union’s position is correct. The collective agreements and past practice confirm that Delson is outside the Montreal Terminal. The Company is not at liberty to unilaterally declare Delson to be within the Montreal Terminal.
I order the Company to cease and desist operating trains operating trains contrary to my findings. I order the Company to create an abeyance code for all claims arising from their conduct.
Therefore, for the above-mentioned reasons, the grievance is allowed. Mr. Popescu is to be reinstated into employment as a Conductor Trainee, with compensation for all lost wages and benefits.
No such right is granted to the Grievor by the Collective Agreement in the case at hand. Perhaps Mr. Cordero regrets his decision to resign from the Company; this is not, however, sufficient grounds to reinstate him in his previous position.
For the above-mentioned reasons, the grievance is allowed in part. The discharge shall be recorded as a three months’ suspension. The Grievor is to be reinstated forthwith without loss of seniority and with compensation for all wages and benefits lost, save for the three months’ period of suspension.
The dismissal shall be removed from the Grievor’s record and he shall be reinstated forthwith without loss of seniority, but without compensation for lost wages and benefits.
Thus, for the above-mentioned reasons, the grievance is allowed. The Grievor is to be reinstated in his position forthwith without loss of seniority and is to be compensated for all wages and benefits lost.
Appeal of the Company’s unilateral changes of not paying “off main track payments” (OM) at Vaughan Yard and the refusal to establish an Abeyance Code for these declined claims.
Dispute with respect to the implementation of CROA Case No. 4208, specifically as to whether Mr. Gauvin’s July 2008 dismissal disentitled him to HAS benefits for his service prior to his dismissal.
Since CP did not meet its evidentiary burden, the arbitrator upholds the TCRC’s grievance and orders that this discipline be struck from Mr. Playfair’s discipline record.
The arbitrator orders CP to reinstate Mr. Lougheed with full compensation and to replace his dismissal with a written warning.
I am hopeful that this award, together with my August 3, 2016 Award, will provide the parties with the necessary direction to review and resolve all the outstanding claims. However, in the event that the parties cannot resolve all the outstanding claims.
Accordingly, for all of the reasons stated above, I find and declare that the material change provisions of the Collective Agreements do not permit the Company the right to initiate the proposed January 22, 2016 ESR between Winnipeg, MB and Thief River Falls, MN without the need to change crews in Emerson, MB or Noyes, MN.
Employees shall be permitted to change their vacation period into a week or weeks, which are not fully allocated. Such changes shall be made on a seniority basis, according to the craft list the employee falls within that particular year.
This award concerns an arbitration held under the material change provisions of the four separate collective agreements governing the services of Locomotive Engineers (“LEs”) - East and West and Conductors/Trainmen/Yardmen (“CTYs”) - East and West pursuant to notices issued on September 18, 2014 and April 15, 2015. The relevant provisions of the collective agreements are found in article 72 of the collective agreements governing CTYs and article 34 of the collective agreements governing LEs.
In conclusion, having regard to my findings in this matter, the Company is ordered to cease and desist violating the Collective Agreements. The Company is directed to comply with their obligations under the Collective Agreements, including the Kaplan Award.
We have received a response from Keith Shearer, GM Regulatory and Operating Practices on the issue of the use of GE Locomotive jump seats for deadheading crews.
TCRC Collective Agreements remains contractually obligated to refer or accept the referral of any grievances to CROA&DR involving our Union for final disposition in accordance with Sections 56 and 57 of the Canada Labour Code.
Please see the attached award from the CIRB that we received today regarding Union Leave and our complaint following our legal work stoppage. As you will read, the CIRB found that the employer did breach section 94(1)(a) of the Code.
As you will recall, two outstanding issues remained from the December 2012 Kaplan Arbitration. Commuted value for terminally ill employees and the Company’s demand to execute a Consolidated Collective Agreement.
The grievor is to be reinstated into his position with the Company forthwith, without loss of seniority and with compensation for all wages and benefits lost.
This grievance is therefore allowed, in part. I direct that the grievor be reinstated to his employment forthwith, without compensation for wages and benefits lost and without loss of seniority.
This is in regards to recent discussions concerning the use of Management personnel to preform bargaining unit work.
Reinstatement of employee Extended Health/Dental benefits during disciplinary suspensions of less than 30 days.
“The arbitrator’s decision is an outrage and, as a railroader, I am appalled we would be forced to place this employee back in the cab of a locomotive. On my watch, this individual will not operate a locomotive,” said CP’s chief executive officer Hunter Harrison in a news release.