As noted before we had to go back to Arbitrator Kaplan for a supplementary hearing on AV-GH (March 21, 2021 Award attached) which we have received his decision today. We were further successful in the ongoing years after 2017/2018 for any grievances filed as well as the original award where the company was limiting when those affected could take their 2 days.
"The Company is directed to allow employees to use their remedial vacation days in conjunction with their scheduled vacation, in the summer months and December. Lost prime time should be replaced by prime time, if the affected employee wishes. Any other outcome would not be a real remedy."
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
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.