May 19, 2009
CAW takes CN to arbitration over paid sick days dispute
On May 14, 2009 at the Canadian Railway Office of Arbitration (CROA) in Montreal, the CAW challenged CN over its unilateral change
of its longstanding sick leave with pay policy for CAW clerical members at CN.  The case was heard by CROA Arbitrator Michel Picher.

Over the past year, the Union has been submitting various grievances all across Canada on behalf of individual members who
booked off sick and the Company denied their claims for sick pay despite their job not being filled.

In addition to numerous local agreements on paid sick days across the country, CN has had a long standing policy, which is set out
in the CN Human Resources Manual, whereby weekly rated CAW clerical members are paid sick pay so long as the Company does
not incur additional expense as a result of a member being off sick (the job was not filled by the use of overtime or by utilizing a
spareboard or extra employee).  The specific policy in the Manual concerning sick leave with pay is as follows:

    5.7.2        Administration

    The sick leave with pay privilege is administered solely by the Company and is separate and distinct from the weekly
    indemnity plan. It is intended as supplemental income to eligible employees who are on sick leave during regular work days
    and are not eligible for Weekly Indemnity Benefits.

    For most unionized clerical employees benefits are only paid during the waiting period for Weekly Indemnity Benefits.

    For non-unionized employees who became members of the CBRT&GW in 1982 and 1985, benefits are not restricted to the
    WIB waiting period.

    5.7.3        Conditions of Payment

    The sick leave with pay privilege is subject to the following conditions:

  • paid sick leave will only apply to clerical employees represented by the CAW 5.1 (former CBRT&GW) and not to other
    classifications of employees.
  • benefits may only be paid during the waiting period for Weekly Indemnity Benefits when there is no additional expense
    to the Company i.e. when no replacement for the absent employee is required.
  • for non-unionized employees who became members of the CBRT&GW in 1982 and 1985, benefits are not restricted to
    the weekly indemnity benefit waiting period.
  • sick leave credits not used in a 12-month period cannot be carried over to the succeeding 12-month period.

The Union challenged CN for their failure to live up to the long-standing practice of paying sick days to weekly rated employees at
various locations, including the Customer Service Centre when they book sick.  The Union relied upon the principles of estoppel in
support of its argument, and requested that the arbitrator order that any and all members who have been adversely affected by
the change (all the subsequent grievances that have been filed across the country) be compensated accordingly.

CN simply argued that the matter was not arbitrable on the basis that its sick leave policy does not form part of the collective
agreement.  The Company presented evidence to support their position.   

Unfortunately, Arbitrator Picher ruled against the Union, asserting that the dispute is not enforceable through the provisions of the
collective agreement by reason of all documentation that was relied upon specifically states that the matter will not form part of the
collective agreement.  

Arbitrator Picher wrote in his award, which is now referred to as CROA 3765, that he was “not persuaded that the Union made a
compelling case for estoppel in their grievance, whether it is viewed as an individual grievance or a policy grievance of general
application”, and therefore agreed with CN that in fact the Union’s grievance was not arbitrable.

CAW National Representative Doug Olshewski presented the case before Arbitrator Picher and had all of the Council’s Regional
Representatives attend the hearing in the event individual agreements, understandings or grievances were raised.

The Union is reviewing our options on the remaining system sick pay grievances that are outstanding.  It is not yet determined
whether this award will impact negatively these remaining grievances.

Click here for a copy of the award – CROA 3765

Once a decision is made as to the status and direction of the remaining sick pay grievances, it will be posted promptly on
cawcouncil4000.com