TIME LIMIT ARBITRATION AWARD

On July 17th, 2008, the Union and the Company proceeded, ad hoc, to have Arbitrator Picher hear a dispute concerning time limits with respect to GO-105.

The substantive issue before the Arbitrator can be characterized as follows;

“Whether or not the Union was mandated to file grievances to arbitration within the 60 day time limit as provided by Article 84 of Agreement 4.16”.

The complete decision of the Arbitrator is posted below in three (3) parts.

MY COMMENTS AND REVIEW:


BACKGROUND:

Arbitration process:

Grievances filed to arbitration are, when submitted, scheduled on a “first in - first heard basis”, this “rule” applies except for dismissals or as otherwise agreed between the parties.

To put the matter in context, should the Union be obligated to file all grievances to arbitration within 60 days the system would quickly “clog up”. Additionally, more serious matters in dispute e.g. pensions, material changes, heavy discipline etc. would be delayed, arguably for years.

In 2004 the Union began experiencing an extreme increase in grievances against CN Rail. The amount of grievances, in a very short period of time, exceeded 1000. This is important when considering that the Arbitrator at the CROA & DR sits 3 days out of each month (excluding August) in which to hear ALL disputes filed by all participating parities to the CROA & DR.

As a result of the obvious change in management style (resulting in a massive amount of grievances being filed) the Union filed a complaint to the CIRB arguing that the Company was intentionally “frustrating” the grievance process and, further, were not abiding by decisions subsequently rendered by the Arbitrator.

The CIRB found that in fact the Company was continually violating previously arbitrated matters (e.g. Article 41 and 51) and issued orders of compliance.

With respect to the “frustration of the grievance process” the Board determined that such matters are to be decided by the Arbitrator.

The Company thereafter advised the Union that it required full compliance with time limits. The Union, in turn, advised the Company that, although it would attempt to be within such limits (given the volume of grievances), that they viewed such as not mandatory (given past practice and estoppel). Further, the Union advised that they would nevertheless request that the Arbitrator extend time limits given his authority to do so under the Code.

Thereafter the Union continually faced preliminary objections on the basis of time limits.

With the change in the CROA & DR rules (as agreed to by John Armstrong) requiring that preliminary objections to be heard separately from hearing the case on its merits the arbitration process became more frustrating and, at the same time, grievances continued to increase.

The matter came to a head in December of 2004 involving the dismissal of Mr. J. Coffey. A case in which the Company argued time limits for filing to arbitration were not complied with by the Union.

At the same time the parties were in the last stages of negotiations, with John Armstrong as the Chief Spokesperson. As the matter of time limits remained at issue it became more likely that negotiations would be the avenue in which to settle the matter.

During the J. Coffey case, however (within weeks of a negotiated settlement) the matter of time limits was addressed with the assistance of the Arbitrator. It should be noted that although the “agreement” (as alleged by the Union) is produced in part in the recent award, they do not provide that portion identifying all recipients e.g. M. Picher, M. Church.

It was the Union’s position that the following individuals participated in the settlement of the time limits issue at the Coffey case;

Arbitrator M. Picher
M. Church (UTU Lawyer)
John Coleman (CN Lawyer)
Rex Beatty (General Chairperson)
Jim Robbins (UTU Vice-General Chairperson)
Myron Becker (CN Manager Labour Relations

It should also be noted that other individuals were present at the actual hearing including Rollie Hackle etc.

Subsequently the matter of J. Coffey was heard and the award reflected that the Company withdrew its preliminary objection.

Shortly thereafter Mr. Myron Becker wrote Rex Beatty with a proposed agreement. Rex Beatty responded to Mr. Becker on January 17th, 2005, advising of the agreement reached at the arbitration of J. Coffey. Although the Company acknowledged receipt of Rex Beatty’s letter they confirmed that they did not respond in any manner.

On February 12th, 2005, the parties concluded a tentative collective agreement.

In April of 2005, after ratification of the collective agreement, the Company again raised the issue of time limits (now too late to have the matter place on the negotiating table) and again Rex Beatty responded (it should be noted that at all times grievances continued to be heard and resolved by the Arbitrator). The Company again did not respond.

In November of 2006 the Company once again raised the issue of time limits and again Rex Beatty reiterated the agreement it believed it had reached during the Coffey case (the Company again did not respond). As the parties were in negotiations the Union submitted a demand that stated;

“Reaffirm that there are no time limits for the submission of grievances to arbitration”.

The Union filed the demand in this manner so as to maintain its position of past practice and estoppel (agreement reliance) should no agreement be reached at negotiations and the matter proceeded to arbitration. Simply put, if the Union submitted a demand to remove time limits for filing to arbitration the Company could arguably say “why submit a demand if there was a practice in place”.

On February 19th, 2007, Rex Beatty and the rest of the negotiating team were removed from Office.

John Armstrong and Robert Sharpe thereafter assumed the duties of General Chairperson and Negotiators (along with Clint Miller from the U.S.). The demand to “reaffirm” no time limits existed to proceed to arbitration was dropped by the Union. Additionally, the Union negotiators signed an agreement with CN which, among other things, replaced all previous agreements on “time limits”.

Company material subsequently received by General Chairperson Ethier clearly indicated that the Company was going to rely on the Armstrong/Sharpe agreement with respect to the issue presently in dispute.

At this point, however, Brian Shell for the UTU International intervened in the matter and attempted to have Mr. M. Church removed on the basis of conflict. To settle the matter CN subsequently agreed not to discuss the agreement as did GO-105. GO-105 agreed so as to retain the services of M. Church (Brian Shell agreed not to raise the issue of conflict should the agreement of Armstrong/Sharpe not be relied upon).

The Arbitrator did not hear nor was there any evidence presented at the arbitration hearing in regards to the Armstrong/Sharpe agreement.

However, had Mr. Shell not intervened GO-105 could have utilized the Armstrong/Sharpe agreement to demonstrate that there were previous agreements, arguably the one reached during the Coffey case.

It should be noted that both John Armstrong and Robert Sharpe were summonsed to the hearing to give testimony. For the record it is my understanding that Bob Sharpe agreed to participate and assist GO-105 and dispute the position of the Company.

John Armstrong did not attend the hearing or contact any of the participants up to and including the hearing. To point, as will be identified later, Mr. Armstrong did not attend to dispute the representations by CN’s Myron Becker.

THE HEARING:

At the hearing the positions of both parties were advanced.

Although there was no dispute on the Union’s letter identifying the “agreement” it believed it had reached with the Company during the Coffey hearing (the Union had retained all fax confirmations as who received the letter) the Company denied that they had in fact reached an agreement.

When questioned, although initially stating they had, the Company (Myron Becker) acknowledged that at no time did he nor the Company respond to Rex Beatty as to his letter or his position. The Company acknowledged that they did not advise Rex Beatty of their disagreement with his position.

When examined, Mr. Becker stated that he “advised John Armstrong” during a private meeting prior to signing the tentative collective agreement in February 12th of the Company’s disagreement. Evidence was further established that the meeting had to have taken place between January 17/05 – date of the letter – and February 12/05 – signing of the tentative agreement (NOTE: other than the evidence of Myron Becker, there is no evidence of any meeting involving John Armstrong).

Evidence was established that Rex Beatty was not advised by John Armstrong of the position of the Company (as stated by Myron Becker) in order to have the matter addressed at those negotiations.

The Arbitrator references the position of Myron Becker with respect to John Armstrong as follows;


“While the Company acknowledges that no answer was given to Mr. Beatty’s letter which asserted, in the settlement of the Coffey grievance, that a general agreement with respect to the waiver of article 84 time limits for filing to arbitration had been reached, it maintains that the Union was advised otherwise. As reflected in the evidence of Mr. Becker at the hearing, in the negotiations for the renewal of the collective agreement Mr. Becker was dealing with Mr. John Armstrong, then UTU Vice President and chief spokesperson at the bargaining table. He recalls that he expressed to Mr. Armstrong that the Company was not agreeing to a general waiver of the time limits for filing to arbitration found within article 84.4 of the collective agreement.”

NOTE: Notwithstanding any dispute I may have with John Armstrong on other matters, I do not believe that the meeting with Myron Becker took place nor do I believe John was advised of the Company’s disagreement.

It would however be interesting to hear John’s position with respect to the testimony of Myron Becker.

The Arbitrator, in reviewing the positions of both parties, accepted the premise that there was no agreement as it would, essentially, require the acknowledgment of the Company verbally or in writing.

The Arbitrator did not accept that there was a past practice or that estoppel applied with respect to these issues. It should be noted, however, that the position of GO-105 with respect to proceeding to Arbitration is and has been consistent with the practice presently in place in Western Canada (at least for now) and honoured by the Company.

The Arbitrator however maintained that he would continue to rule on the issue of time limits on a case by case basis as provided by the Code.

All grievances are presently still “alive” and proceeding to arbitration on the basis of the decision of the Arbitrator.

Rex Beatty