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CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION

SUPPLEMENTARY AWARD IN

CASE NO. 3753

Heard in Montreal, Thursday, 16 April 2009

concerning

CANADIAN NATIONAL RAILWAY COMPANY

and

TEAMSTERS CANADA RAIL CONFERENCE

EX PARTE

On November 24, 2009, there appeared on behalf of the Company:

D. Crossan – Manager, Labour Relations, Prince George

D. S. Fisher – Director, Labour Relations, Montreal

And on behalf of the Union:

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

SUPPLEMENTARY AWARD

On September 8, 2009, the Union requested that a supplementary hearing be held “… regarding the application of the Arbitrator’s decision in CROA & DR 3753 (Gormley discharge)”. The basis for the request was that the Arbitrator erred in his award of May 22, 2009 by including a reference to alcohol testing as part of the reinstatement order of the grievor. A supplementary conference call hearing was arranged for November 24, 2009 with representatives of the Company and the Union, and the Arbitrator. During the course of the oral submissions, the Union requested an opportunity to address the issues raised during the conference call by way of written submissions. The Company did not object to the request. The parties then provided their written submissions in accordance with the timelines established by the Arbitrator and agreed to by the parties during the conference call.

In order to focus on the issue at hand, it is worth noting the concluding paragraph of the May 22, 2009 award:

The grievance is allowed in part. The grievor is to be reinstated to his employment without compensation or loss of seniority. The grievor’s reinstatement shall be conditional upon his written agreement to be subject to random, unannounced drug and alcohol testing, to be administered for a period of not less than two years from the date of his reinstatement. Any failure on his part to comply with the conditions of such testing, or a positive test result, shall be grounds for immediate termination of the grievor’s employment. His discipline record will stand at 15 demerits based on the findings noted above from case number CROA 3752.

(emphasis added by underlining)

The Union submits that it is not seeking a review of the award but rather a clarification of the existing award and/or the correction of what it views as an error in the award. The Union maintains that the Arbitrator’s jurisdiction is not limited to the correction of simple “technical errors” (i.e. a typographical error) but also includes what the authors Brown and Beatty in Canadian Labour Arbitration (4th) at 2:4000 describe as “...errors arising from accidental slips or omissions...” The Union maintains on this latter point that the order for random alcohol testing by the Arbitrator was inconsistent with the rest of the award. The Union notes that no evidence was adduced that alcohol was a factor, nor was alcohol discussed during the hearing, nor was alcohol testing requested by way of relief. The Union is of the view that this is the kind of accidental error that the Arbitrator has the jurisdiction to correct and indeed should correct. The Union also adds that random alcohol testing is an extraordinary and onerous intrusion on a person’s rights and that it is unfair to require alcohol testing as a result of a mistake.

The Company maintains that the Arbitrator has exhausted his jurisdiction and, with the exception of clerical or typographical errors, cannot amend or in any way change the substance of the award. The Company submits that the award is unambiguous and that the Arbitrator has no jurisdiction to remove the requirement for alcohol testing from the award. The Company further maintains that the doctrine of functus officio is applicable in the instant case. The Arbitrator’s order for the grievor to undergo drug and alcohol testing, in the Company’s view, is not an “error” of the type falling within the exceptions to the functus officio rule. The Union, in the end, is not seeking the correction of a typographical error but rather seeks an amendment to a significant part of the Arbitrator’s order. The Company submits that to allow corrections of so-called “slip-ups”, as the Union has characterized the order for alcohol testing, is incorrect and would undermine the need for certainty in arbitration awards, as mandated in the Canada Labour Code.

The Arbitrator notes that the expectation of the parties in a dispute before a judicial or quasi-judicial body is that the decisions rendered are final, binding and not subject to review, in accordance with the doctrine of functus officio. Brown and Beatty at 2:4000 explains that principle as follows:

In general terms, the doctrine of functus officio stipulates that once a board of arbitration has finished making its decision, its grant of jurisdiction is terminated and thereafter it has no power to render a further decision or award.

The only exception to the above rule is that arbitrators may correct errors of a clerical nature, as noted in Mitchnick and Etherington, Leading Cases on Labour Arbitration at s. 3.7 where the authors state:

According to the doctrine of functus officio, once an arbitrator has issued a final award his or her jurisdiction is exhausted and the award cannot be altered except to correct a clerical error. The arbitrator cannot subsequently make a finding already made or interpret the award for the parties.

I also note the comments of this office set out in CROA 3207 (Supplementary Award).

More fundamentally, as the primary basis for this supplementary award, I must agree with counsel for the Company that the Arbitrator is functus officio in this matter. While this Office maintains an implicit retainer of jurisdiction, without attaching to each and every award a statement with respect to remaining seized of a dispute (supplementary award to CROA 1861), the retainer of jurisdiction can only be exercised to explain or complete an award, not to reconsider it on its merits or alter any substantive aspect of its conclusions. Boards of arbitration, including this Office, do not have an inherent jurisdiction to reconsider their awards. That jurisdictional reality is essential to the interests of clarity and finality in the disposition of disputes and the final and binding determination of the rights and obligations of parties under collective agreements governed by the Canada Labour Code. The retainer of jurisdiction is, of course, available for such purposes as dealing with aspects of the dispute which have not been fully resolved in the original award, and perhaps not addressed in evidence, such as calculation of compensation secondary to the principal conclusion of the award. Considerations of that kind do not arise in the case at hand.

Any review of the instant award concerning whether the order of the arbitrator for drug and alcohol testing is supported by the evidence, as the Union argues here, would amount to a substantive review of the evidence presented by the parties at the hearing and a violation of the functus officio principle. In that regard, the Arbitrator has no jurisdiction to revisit the award to determine whether there was any evidence of alcohol before the Arbitrator to support the direction for alcohol and drug testing. That is not the kind of clerical error correction permitted under the Canada Labour Code once awards have been issued and would amount to a derogation of the Arbitrator’s jurisdiction if such a review were undertaken.

To summarize, an Arbitrator only maintains jurisdiction to correct clerical errors, such as typographical errors, which arise as a result of an accidental slip or omission. An arbitrator has no inherent jurisdiction to review an award for any substantive matter once the award is issued. The Arbitrator, in this case, therefore has no jurisdiction to review the instant award to determine whether the directions accompanying the reinstatement order is supported by the evidence concerning the presence or absence of alcohol. I would add that, in dealing with substance use and/or abuse, the remedy of the Office has consistently been to include testing for all substances, including alcohol. (See, e.g., CROA 2683, 2969, 3632 and 3701.)

For all the above reasons, the presiding Arbitrator must deny the request of the Union to reopen this grievance and alter the award as requested.

Signed at Calgary, December 22, 2009

(signed) JOHN M. MOREAU, Q.C.

ARBITRATOR