Link to SUPP 3543.doc

 

Link to SUPP 3543.txt

 

 

CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION

 

SUPPLEMENTARY AWARD TO
CASE NO. 3543

 

Heard in Montreal, Thursday, 16 February 2006

 

concerning

 

CANADIAN NATIONAL RAILWAY COMPANY

 

and

 

TEAMSTERS CANADA RAIL CONFERENCE

 

DISPUTE:

            Duty to mitigate losses by Conductor T. Elcheson following the arbitrator’s award in CROA&DR 3543.

 

COMPANY’S STATEMENT OF ISSUE:

            In April 2004, Yard Conductor Elcheson was restricted from occupying the position of Conductor and Yard Conductor due to a series of incidents while working at Scotford Yard in and around Edmonton, Alberta.

 

            In CROA&DR 3543 the arbitrator ruled that a three (3) month demotion was more appropriate in the circumstances and reinstated Mr. Elcheson’s ability to work as a conductor / yard conductor. The arbitrator also ruled  that Mr. Elcheson be compensated for all wages and benefits lost for the balance of the period in question, subject to any issues of mitigation which may be addressed by the arbitrator if necessary.

 

            The Company contends that Mr. Elcheson’s claim for lost wages must be based on the position with the highest earnings available to the grievor during the period in question regardless of whether or not he chose to avoid or refuse such position.

 

FOR THE COMPANY:

(SGD.) K. MORRIS

FOR: DIRECTOR, HUMAN RESOURCES

 

On Tuesday, 9 March 2010 in Calgary, Alberta,

 

There appeared on behalf of the Company:

P. Payne                   – Manager, Labour Relations, Edmonton

K. Morris                   – Sr. Manager, Labour Relations, Edmonton

D. Crossan               – Manager, Labour Relations, Prince George

 

And on behalf of the Union:

M. A. Church            – Counsel, Toronto

B. Boechler               – General Chairman, Edmonton

R. A. Hackl               – Vice-General Chairman, Edmonton

G. Mensaghi             – Local Chairman, Calgary

H. Richardson          – Former Local Chairman, Calgary

P. Elcheson              – Grievor

 

AWARD OF THE ARBITRATOR

            In the original award herein the Arbitrator determined that the Company was correct demoting the grievor and denying him access to work as a conductor, albeit the period of his demotion was reduced to one of three months. It therefore became necessary for the Arbitrator to direct that the grievor be compensated for any wages lost for the balance of the period of his demotion. That is reflected in the following two paragraphs excerpted from the award:

 

After careful consideration, the Arbitrator is satisfied that a demotion for some period of time was not inappropriate. An indefinite demotion, however, was in my view excessive in all of the circumstances. On the whole, I am satisfied that a demotion from the position of conductor for a period of not more than three months would have been appropriate to bring home to the grievor the importance of bringing full focus and attention to his job.

 

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated forthwith to the position of Conductor, with his record to reflect a demotion from the position of conductor for a period of three months following the incident of March 1, 2004. The grievor shall be compensated for all wages and benefits lost for the balance of the period in question, subject to any issues of mitigation, which may be addressed with the Arbitrator if necessary.

 

            The Union submits that the grievor should be compensated for the difference between the wages which he in fact earned during the period of his demotion and the wages which he could have earned in road service over the same period. It submits that he could have earned the same wages as Conductor Stan Bolen, an employee junior to himself. Noting that during the period of time under consideration the grievor earned $117,226 and Mr. Bolen earned $160,261, it claims the difference of $43,034.

 

            The Company questions the grievor’s efforts at mitigation. It notes that he worked for a time as an assistant conductor, and worked as well for a period of more than a year in a yardmaster’s position, but not at the highest rated yardmaster’s position which his seniority could have obtained. On that basis it submits that the grievor’s compensation should be considerably more limited that the amount claimed by the Union. Among the Company’s concerns are the selection of Mr. Bolen as a comparator, given that he was the highest earning conductor in road service on the seniority territory.

 

            The Arbitrator can appreciate the Company’s concerns, and accepts its submission that the grievor was under an obligation to bid and hold the highest paying work which his seniority would permit, as part of his duty of mitigation. I therefore am compelled to agree that a deduction against the grievor’s claim must be made to the extent that he bid and held work as a Tier 3 Yardmaster when in fact he could have held the higher rated position of Yardmaster, Tier 2. I accept the Company’s submission that the grievor’s earnings of $117,226 were not in compliance with his duty to mitigate, and that if he had fully mitigated he would have earned $135,000, the amount that would have been available to him had he bid work in the classification of Yardmaster, Tier 2.

 

            However, I am also compelled to accept the Union’s submission with respect to Mr. Bolen being the appropriate comparator to determine what the grievor might have earned in road service. The Company is correct in asserting that it is not simply appropriate to choose the highest earning conductor in road service to determine what might have been earned by the grievor, as a matter of general principle. It may, in some cases, be appropriate to do an averaging of a number of employees to make a fair, albeit somewhat imprecise, determination of the earnings which the grievor might have realized. However, in the case at hand there is evidence to suggest a history whereby the grievor and Mr. Bolen were in a pattern of bidding the same work. In that circumstance I do not consider that it is inappropriate to conclude, on the balance of probabilities, that the earnings of Mr. Bolen fairly represent what would in all likelihood have been the earnings of the grievor who, it does not appear disputed, tends to gravitate to the highest paying work in road service.

 

            In light of the above, I am satisfied that the grievor should be compensated the difference between the earnings that he could and should have made by exercising his seniority to the highest available work as a yardmaster and the earnings of Conductor Bolen. In the result, I direct that the Company pay to the grievor forthwith the amount of $25,000. In normal circumstances that amount would be awarded with full interest. However, there has been a substantial passage of time, part of it not attributable to any delay occasioned by the Company. In the result, therefore, I direct that the amount of $25,000 be paid to the grievor with one half of the interest for the period between the date of the original award herein and the date of this supplementary award, subject to normal payroll deductions.

 

March 15, 2010

(signed) MICHEL G. PICHER

ARBITRATOR