|September 27, 2005
One of the key issues during the 2003/2004 - CAW/CN contract negotiations, which lead to a one month strike by CAW members, was
the issue of discipline. Prior to collective bargaining, CN advised all unions representing CN workers that they were departing from the
long-established Brown System of progressive discipline, using instead a non-demerit approach that included arbitrary and harsh
deferred suspensions, and in some cases, automatic dismissal.
Experiencing the same type of heavy-handed discipline that CAW members were being subjected to, so were members of the United
Transportation Union (UTU) [conductors, yard service employees and traffic coordinators]. In response to this new, unorthodox-type of
discipline, the UTU challenged CN before the Canadian Railway Office of Arbitration (CROA). Unfortunately, the UTU lost.
Arbitrator Michel Picher ruled in CROA 3374 (PDF) that CN was not violating any agreements between the parties, but rather changing
their Company policy with respect to discipline, all while doing so, keeping within the procedural requirements and protections of the
UTU/CN Collective Agreements.
Reference to the Brown System in the UTU collective agreements (as in the case of most if not all CN collective agreements) was
"extremely spare," as according to Arbitrator Picher. It was on this basis that he ruled CN's departure from the Brown System was not a
violation of the collective agreement on account there were no specific provisions enshrining this system within the collective agreement,
thus he dismissed the grievance.
With this decision in mind, the CAW brought the matter to the bargaining table and "negotiated-back" the Brown System at the CAW/CN
bargaining table. This achievement was shown as "Attachment C" in both Local 100 and Council 4000 Memorandum of Settlements.
The CAW was of the opinion that Attachment 'C' would form part of the collective agreements being it was negotiated at bargaining and
the letter of settlement did not specify otherwise. Normally, items agreed upon at the bargaining table that are to not form part of the
collective agreement specifically state such within those documents. Notwithstanding, CN argued that the discipline letter was never
intended to be printed in the collective agreements.
Consequently, the CAW referred the dispute to arbitration. In a well presented case made before Arbitrator J.F.W. Weatherill by National
Representative Abe Rosner, Arbitrator Weatherill agreed with the union that Attachment 'C' is to form part of the CAW Collective
Agreements and printed as such.
In his award, Arbitrator Weatherill expressed the following:
"In the instant case, Attachment C is specifically referred to in clause 19 of the memorandum of settlement. In my view, the clause should properly be read
as incorporating the Attachment by reference, the statement that the issue of discipline "is resolved on the basis of Attachment C" making reference to the
attachment necessary for an understanding of what the basis of settlement in fact was - that is, what the actual agreement of the parties with respect to that
issue. While that, in my view, is sufficient to decide the present case, it may also be noted that there is no disagreement that the issue of the system of
discipline was an important one in the negotiations, and to include the terms of its resolution in the printed copy of the collective agreement would appear
to be a matter of common sense. The parties did not specifically and expressly agree to print or not to print the Attachment together with the collective
agreement, but for the reasons I have set out above it follows, in my view, both from the general provisions of Rule 58 (the agreement is to be printed
together with 'its addendums', of which Attachment C is certainly one), and the particular incorporation by reference of the Attachment in clause 19 of the
Memorandum of Settlement, that the Company is obliged to print the terms of Attachment C with the collective agreement.
It is, for the foregoing reasons, my award that the relief requested by the union in the Joint Statement of Issue be granted."
The CAW won their grievance, meaning the system of discipline CN is to use for CAW members (the Brown System) as negotiated, will
be enshrined appropriately in the CAW Collective Agreements.
The full award will be published on cawcouncil4000.com in the coming days.