CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4117
Heard in Montreal, Tuesday, 10 July 2012
Concerning
CANADIAN PACIFIC RAILWAY COMPANY
And
TEAMSTERS CANADA RAIL CONFERENCE
EX PARTE
DISPUTE:
Appeal of the Company’s unilateral notice of cancellation of the Fatigue Management Plan at Cranbrook and Fort Steele.
UNION’S STATEMENT OF ISSUE:
In June 2012, the Company served notice on the Union that it would discontinue time pools and scheduled days off for all running trades employees at Cranbrook/ Fort Steele effective July 12, 2012. The time pools and scheduled days off in question are part of a Fatigue Management Plan that was negotiated in good faith pursuant to a February 27, 2009 letter of understanding regarding Cranbrook terminal.
The Union contends that the Company’s June 2012 initiative to cancel the Fatigue Management Plan that was pursuant to the February 27, 2009 letter of understanding violates the terms of the collective agreement covering, respectively, locomotive engineers as well as conductors, trainmen and Yardmen (etc.), as well as the Canada Labour Code and the terms of the recently enacted Bill C-39. In addition, the Company is estopped from seeking to cancel the Fatigue Management Plan.
The Union seeks a declaration that the proposed cancellation of the Fatigue Management Plan at Cranbrook and Fort Steele violates the collective agreements, Canada Labour Code, Bill C-39 and/or past practice. The Union requests an order from the arbitrator that the Company cease and desist from its proposed cancellation of the Fatigue Management Plan at Cranbrook and Fort Steele.
The Company disagrees with the Union’s contentions. CROA&DR 4117
FOR THE UNION:
(SGD.) D. R. ABLE GENERAL CHAIRMAN – LE WEST
(SGD.) D. W. OLSON GENERAL CHAIRMAN – CTY WEST
There appeared on behalf of the Company: R. Hampel – Counsel, Calgary
There appeared on behalf of the Union: K. Stuebing – Counsel, Toronto D. R. Able – General Chairman, Calgary D. Fulton – Vice-General Chairman, Calgary
INTERIM AWARD OF THE ARBITRATOR
The Union seeks an interim order from this Office, effectively directing the
Company to cease and desist from the implementation of the discontinuance of time
pools and scheduled days off for running trades employees at Fort Steele. It is common
ground that on June 12, 2012, the Company issued to the Union a notice that it would
end the time pool and scheduled days off arrangement at Fort Steele as of July 12,
The position of the Union is that the parties made an agreement with respect to
the establishing of the time pools and scheduled days off at Fort Steele by way of a
letter of understanding dated February 27, 2009. It is the Union’s position that that
agreement must now be viewed as effectively a part of the collective agreement, and
that the Company is in violation of the collective agreement by reason of the notice
which it provided on June 12, 2012. The merits of the grievance, which may be
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scheduled to be heard in September of 2012, will involve the Union taking the position
that the Company is not at liberty to depart from what it maintains is a firm agreement
that is tantamount to a collective agreement provision.
The Company questions the Union’s perception of the letter of understanding of
February 27, 2009, arguing that it was made in contemplation of establishing a pilot
project as outlined in a letter of October 23, 2009, an arrangement which in fact either
party could terminate by thirty days’ written notice. The Union counters that given the
length of the practice which was installed at Fort Steele, matters had proceeded beyond
the phase of a pilot project to where the employees were entitled to expect ongoing
adherence to the time pool system and scheduled time off previously established.
The Union alleges that the Company has violated the collective agreement, the
Canada Labour Code, and also that its change in working conditions is contrary to the
freeze provisions of Bill C-39, which recently legislated an end to a strike lawfully
engaged in by the Union. In the circumstances, the Union submits that this is an
appropriate case for interim relief in the form of an injunctive declaration pursuant to the
discretion of the Arbitrator under section 60(1)(a.2) of the Canada Labour Code.
I agree with the Union that the jurisprudence in respect of this discretion has
generally evolved to established a consensus as to the two part question to be
answered in an application of this kind:
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Is there a fair question to be arbitrated?
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Where does the balance of perceivable damage or harm lie?
When that two step analysis is applied in the instant case, there is clearly a
question to be arbitrated, as the parties are obviously at odds with respect to whether
the Company can unilaterally terminate the time pool system established at Fort Steele.
The more substantial question involves the balance of damage or harm. In my view the
Union’s argument is more compelling in that regard. It stresses, and I agree, that the
advantages of time pools and regularly scheduled time off are of real value to
employees in the immediate, to the extent that they guarantee a certain life style and
the ability to enjoy family time on a relatively planned basis, something which is far more
difficult under normal methods of work scheduling in the industry. Should the Union’s
grievance ultimately prove successful, how can the employees who will have lost the
advantage of predictable working hours and time off, later be compensated should the
grievance succeed on its merits? I find it difficult to see how any true reparation could
be effected.
With respect to the Company’s interest, while it appears that there may have
been a time, apparently following the strike, where there was a substantial need to use
management personnel to operate trains, the material which it presents on this
preliminary motion does not appear to stress that that is a current and ongoing problem.
In other words, there is reason to believe that the Company can continue to operate and
properly service its customers on a reasonably efficient basis between now and the
hearing of the grievance on its merits, possibly in some two months’ time, if it is required
to maintain the status quo.
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When the above interests are balanced, I am compelled to conclude that the
balance of foreseeable damage is greater for the employees should the relief requested
not be granted.
For these reasons the Union’s request is allowed. The Arbitrator directs that the
Company cease and desist from the planned implementation of the notice of June 12,
2012 to discontinue time pools and scheduled days off at Fort Steele commencing July
12, 20012. The Company is directed to maintain the status quo until such time as the
grievance is heard and disposed of on its merits.
June 17, 2012 (signed) MICHEL G. PICHER ARBITRATOR
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