Awards & Resolves

Awards

Vacation days in 2018 

“The December General Holiday dates extended the vacation to January and the vacation was further extended by the January General Holiday dates. There Is no other interpretation. Management knew all of this and agreed to this in advance; why else would it otherwise have started calling the cohort on the evening of January 2nd asking them to sign on for duty?” The Arbitrator agreed with our position and awarded “the remedy for each affected employee is $175 per day lost and each affected employee shall receive an additional day of vacation, or if two days were lost, two additional days of vacation, on a mutually agreed day, or dates, as the case may be.”  

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Outpost at Spence

For years there has been a local rule governing the assignments and clarifying the entitlements of payments for crews to work at the Spence outpost. The agreement has been tested on several occasions including the forcing of employees to Spence in CROA 4294.   Regardless, it was a local rule and the Company cancelled it in accordance with the terms of the agreement and the Arbitrator found such. Of significance to the matter is the Arbitrator recognizing and confirming the applicability of the two letters within the CBA regarding Outposts. The affected employees will receive all compensation associated with deadheading and those letters. 

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Live lift work past the border in Portal

The Company’s initiative to remove containers, that had been flagged by customs, directly off a train just over the border at Portal North, Dakota. The operation of the “Live Lift” results in, on many occasions, the head end of the train going outside the terminal switching limits. In an effort to resolve the issue, Arbitrator Kaplan mediated the issue resulting in the appendix to the award.    As such, the outstanding grievances, and claims held in abeyance, will be paid at 75 miles and on a go forward basis the crews will be 50 miles to perform the “Live Lift”. 

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Appeal of the dismissal of Marc Lebeuf

It is my view that the termination penalty imposed on the grievor, an 11-year employee, for the GOI breaches for this incident, is excessive. The grievor’s termination shall be substituted with a 30-day suspension. He shall be reinstated to his former position and otherwise made whole.

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Appeal of the dismissal of Mark Smith

The grievance is upheld. The grievor shall be reinstated to service without loss of seniority and shall otherwise be made whole. I shall retain jurisdiction should any issues arise in the implementation of this award.

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Kaplan Supplemental to Award 1B Initial Terminal

The award was anchored by the Letter. It notes that the words “set off” and “pick up” were not present in the relevant provisions of the collective agreement. It then went on to provide – even though these words were absent – that Conductor Only crews could continue to do two things.

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Kaplan Awards Final Terminal

In brief, all four grievances submitted to arbitration allege a violation of Conductor Only Provisions at the Final Terminal. Both parties filled detailed written briefs and reply briefs. The cases proceeded to a hearing by Zoom on November 11, 2020.

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Appeal of the dismissal of Conductor D. MacDonald of Calgary, Alberta.

“The arbitrator heard the grievance on the merits on October 10, 2019. In his decision dated October 23, 2019, the arbitrator determined that residual traces of marijuana in the grievor’s urine as a result of recreational off-duty marijuana use did not “establish impairment”, did not violate the Drug Policy, and did not establish just cause to terminate his employment. The arbitrator ordered CP to reinstate the grievor as an employee “

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Judicial review of the above decision:
“The arbitrator’s analysis, based on the facts before him, shows a line of analysis leading from the evidence to the conclusion. His reliance on arbitral case law was reasonable. The Union relies on eight CROA decisions, from 2008 to 2019, which all state that a failed urinalysis test is not by itself sufficient proof of impairment. Oral fluid testing, on the other hand, can reliably show impairment. In basing his decision on the CROA case law, on the facts found by the arbitrator, the arbitrator’s analysis was reasonable.” 
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AH709 El Borte No RTW Accommodation

BTC made bona fide efforts to accommodate Mr. El Borte during the short 5-day period when he had safety-related limitations. BTC only realized upon Mr. El Borte’s return to work that he could not perform work in a safety sensitive position. This obliged it to deal with the accommodation issue in real time. Despite this challenge, BTC provided Mr. El Borte with a viable partial work option.

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AH710 Lystukha - Permanent Demotion to Different Craft

In sum, BTC did not demonstrate that Mr. Lystukha’s conduct, while deserving of discipline, merited a permanent demotion to his former position of maintainer. His lesser responsibility for the August 7, 2019 incident and his candour, albeit delayed, merits instead a suspension.

The arbitrator accordingly reinstates Mr. Lystukha to his position as conductor.

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Conductor Only Initial Terminal Disputes

Sisters and Brothers, This is in regard to the second to final remaining dispute (Conductor Only Initial Terminal Violations) from our last bargaining sessions with CP and agreed by the parties to be heard by Arbitrator William Kaplan in the closed period. We have one last issue to be heard by Mr. Kaplan on November 11, 2020, that being Final Terminal Switching Violations. These proceedings have been delayed significantly due to the Covid-19 pandemic, and are being heard electronically as opposed to in-person hearings due to our inability to meet face to face.

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Denis Neglia Supplementary

The grievor shall be compensated from the date of the issuance of the award on June 11, 2020 to the date he returned to duty, June 29, 2020. I shall remain seized should the parties disagree on the amount owing to the grievor for this time period.

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Appeal of the 45-day suspension of D. Carron

The Company has not demonstrated a reason to warrant a second investigation. In this case, the second investigation is the only evidence upon which the Company relies to assess discipline. I find that the second investigation was not conducted within the requirements of Article 39. Therefore, I am striking the investigation transcript from the record. Absent any evidence supporting the discipline, I find the discipline null and void and order it be expunged from Mr. Carron’s file.

Mr. Carron is to be made whole for all of his losses, with applicable interest within 30 days of this award.

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The appeal of the 15 demerits assessed to D. Carron

While I understand the complexity of the 24/7 operations and the importance of attendance management, there is simply no medical evidence to persuade me that Mr. Carron mischaracterized his absences from work and should have been disciplined for culpable absences. I am confident Mr. Carron will abide with the requisite notification procedures by informing the Company adequately for future absences. I order that the 15 demerits be stricken from Mr. Carron’s record immediately.

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Appeal of the 19-day suspension of D. Carron

The fact that the Locomotive Engineer received no discipline is of no assistance to the Union’s position. The safety violations were those of Mr. Carron alone. Absent of compelling mitigating factors, I see no reason to intervene. The grievance is therefore denied.

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Appeal of D. Demaray

Accordingly, I direct the grievance shall be allowed in part. The dismissal shall be set aside. The Grievor shall be reinstated without compensation and without loss of seniority.

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Suspension D. Demaray.  

The Grievor’s suspension shall be set aside. Having regard to his repeated failure to follow the rules (even though discovered in the course of proficiency tests), I impose a discipline of a 10 day suspension.

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Appeal of the ten day suspension (9-day suspension and 1-day rules) of Conductor D. Demaray

However, notwithstanding his dubious disciplinary history, and taking into consideration the Company’s failure to prove the first violation here, I am of the view that the appropriate discipline in this case would be a written warning to the Grievor. The grievance is allowed in part. The Grievor’s 9-day suspension shall be set aside and a written warning be substituted in its place. The Grievor shall be made whole and I shall remain seized with respect to the interpretation, application and implementation of this award.

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Appeal of the dismissal of D. Neglia.

I do find that notwithstanding the grievor’s unenviable record, the penalty of termination is excessive and that a lengthy suspension is the appropriate disposition in this case. The suspension must be significant given the grievor’s record and, in particular, his habit of responding inappropriately to management when he violates a safety rule or ignores instructions. The grievance is allowed to the extent that the grievor shall be reinstated to his position without loss of seniority but without any further compensation.

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The appeal of the 20 day suspension of D. Neglia

The grievor’s work record contains discipline for attendance issues and safety rules violation, most recently in February 2018 for which he was assessed a 20-day suspension (10 days served and 10 days deferred). Bearing in mind his work record and considering his overall behaviour and comments to his supervisors, I do not find the 20-day suspension to be an inappropriate disciplinary response under the circumstances. Accordingly, the grievance is dismissed.

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Appeal S. Twomey 

For the foregoing reasons, the grievance is allowed in part. The twenty day suspension is to be reduced to a tree day suspension and the Grievor’s record revised accordingly.

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Suspension of Al Blossom  

Considering all the circumstances in this case and the argumentation submitted by the parties, the 20 day suspension assessed by the Company is maintained.

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Appeal of the dismissal of A. Blossom

In general, the Grievor's record of thirty-three years of service reflects long periods of service without discipline. The majority of discipline assessments is generally for operational infractions and the twenty and thirty days of suspension are now pending before the arbitrator. The termination of the Grievor’s employment was excessive and unwarranted.

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Golden Zone Agreement

The parties be given a period of 60 days from the date hereof to negotiate the appropriate changes to the Golden Zone Agreement - pursuant to Article 35 (1) - taking into consideration the WPP.

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Accommodation M. Straka

I agree with counsel for the Union that it was not sufficient for the Company to determine whether there were vacant positions into which the grievor could be placed.

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Appeal of S. Velanoff

Having traces of marijuana in the body may raise a question of whether there is impairment, but that bit of evidence by itself is not enough to establish impairment.

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Appeal of N. Eisner

Arbitrator Weatherill cited the contradictory results between the oral fluid test and the urine drug test as further support for his finding of insufficient evidence of impairment.

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ESR Supplemental Award

I agree with the Union that employees who are required to operate their trains beyond Lambton, in breach of the limits found in the Buffalo/Toronto ESR, must be compensated.

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ESR Supplemental Award

I agree with the Union that employees who are required to operate their trains beyond Lambton, in breach of the limits found in the Buffalo/Toronto ESR, must be compensated.

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Grievance Tracking System

The instant case is clearly different, in that the grievance procedure, and the filing of grievances, is expressly provided for in the collective agreement.

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Appeal Conductor P. Levy

As a result, the discipline imposed on the grievor on September 15, 2018 when his employment was terminated is declared to be void ab initio.

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Over Hours Arbitration

March 23, 2018 - Sisters and Brothers, This morning the Union received the awaited results of our hearings before Arbitrator Clarke in regards to the systemic Over Hours violations.

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Dismissal Appeal of D. Lang

The arbitrator orders CP to reinstate Mr. Lang in his employment, with compensation and without loss of seniority, except for the period of the 7-day suspension.

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CROA 4637 Ms. M. Kosheluk

Given the circumstances outlined in the parties’ briefs and documents, I conclude that the Company did not fulfill its duty to accommodate the Grievor.

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Appeal of B. Desjarlais

The arbitrator accordingly substitutes a 3-day suspension for the original 30-day suspension. No discipline was warranted for the two occasions when Mr. Desjarlais booked unfit.

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G. Trollard Appeals

I find a failure to comply with Article 23.01(4). I therefore allow the grievance and set aside the discipline, directing that the grievor be made whole.

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Appeal of G. Ward

Mr. Ward is entitled to the compensation he would have earned in his accommodated position from March 1, 2017 until he returned to work full time.

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Appeal of A. Stringer

The arbitrator substitutes a 30-day suspension for Mr. Stringer’s dismissal. Mr. Stringer is entitled to compensation, without loss of seniority, but less any amounts he earned in mitigation.

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Appeal of Brent Grossett

Taking into consideration the Grievor’s conduct in this matter, along with his previous record, I am satisfied that the penalty of the 98 day suspension is not excessive.

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Dismissal of R. Morale

The arbitrator orders that CP substitute a 60-day suspension for the current 152-day suspension and compensate Conductor Morale for the difference.

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Dismissal of LE Murtagh

The grievance is allowed in part. The dismissal will be set aside and replaced with a one-month suspension. The Grievor, having already been reinstated, shall be otherwise made whole.

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Appeal J. Shewchuk

The arbitrator orders that CP reinstate Mr. Shewchuk with appropriate compensation. The 30-day suspension and the termination will be removed from his record.

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Company’s failure to accommodate G. Robinson

While there may have been an earlier issue which potentially influenced CP’s analysis, that cannot justify disregarding the significant medical information Mr. Robinson provided.

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Appeal of S. Taylor

My conclusion is that, despite the seriousness of these Rule violations, aggravated by the damage caused, Mr. Taylor’s employment relationship is capable of restoration.

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Appeal of J. Bujold

In these circumstances the termination is set aside and the grievor will be reinstated without compensation. She has been remorseful and has accepted full responsibility.

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Appeal of K. Lyle

For these reasons, I find that the Company has established just cause for discipline, but that the penalty of termination, should be reduced to a 60 day suspension.

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Appeal of S. Wojcik

The arbitrator orders CP to reinstate Mr. Wojcik, with full seniority, and with compensation for any lost wages and benefits, other than for the period of the 7-day suspension. 

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Lacolle subdivision

Thus, the grievances are allowed. The company shall cease and desist from any such future violations of the collective agreements.

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Appeal of the dismissal of K. Hansen

The arbitrator orders CP to reinstate Mr. Wojcik, with full seniority, and with compensation for any lost wages and benefits, other than for the period of the 7-day suspension. The arbitrator remains seized for any issues arising regarding this reinstatement order, including for sums earned in mitigation.

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Lambton (Supplemental)

Accordingly, for all the reasons stated above and in my February 7, 2017 award, I find that the Company may apply the Obico exception to trains operating under the Belleville RTA into the Lambton Yard for intermodal service.

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RCLS Award

I direct the parties to follow the material change provisions and negotiate measures to minimize the significant adverse effects associated with the 2015 reintroduction.

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Mactier to Sudbury

The Company is directed to cease and desist such violation in future and to compensate all crews who have been or are required to deadhead to Sudbury since September 2015.

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Bridging to EDO’s

One important issue that was addressed concerned bridging to EDO’s. We reached the following agreement on this issue.

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Driving Company Vehicles

Accordingly, the arbitrator accepts TCRC’s grievance and declares that CP’s practice of having TCRC members drive company vehicles to deadhead themselves violates the collective agreement.

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Vacation Resolves

It is agreed that the application of the Annual Vacation Matrix in your respective Collective Agreements under the November 13, 2004 Letter RE: Annual Vacation.

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Reduced Road Switcher

This dispute derives from the Company running reduced crews when Road Switcher and/or Yard Assignments are bulletined with 3 employees. 
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CROA 4534: Weusten

Mr. Weusten’s record will be adjusted to reflect this reduced penalty and he is otherwise to be made whole and compensated for all lost wages, with interest, without loss of benefits and without loss of seniority. 
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CROA Case No. 4549

The arbitrator orders that CP reinstate Ms. Brander forthwith. CP will substitute 15 demerit points for the 2014 30-day suspension it imposed. 
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Milton Corridor Award

After carefully considering the submissions of the parties, I find that I am compelled to dismiss the Union’s grievance. 
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CROA 4531 - OM Vaughan

The Company’s auditors shall search and pay for OM claims that were denied since the October 2015 period. Furthermore, an abeyance code is to be established in order to track potentially reoccurring claims that the Company would refuse.
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Ex Parte: Lambton Award

Crews operating under the Belleville RTA are not required to operate to Lambton Yard, save and except one train pair that may, at the Company’s discretion be operated as far as Obico as a single fixed mileage tour of duty. 
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AMT Montréal

The terms and conditions of the work relating to the Montreal commuter trains from CP to Bombardier, effective July 1, 2017.    
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Ex Parte: Delson Award

Therefore, after carefully considering the parties’ submissions, I am compelled to find that the Union’s position is correct.  
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CROA 4534: Popescu

Appeal of the dismissal of Conductor Trainee Dan Popescu of Revelstoke, BC.   
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CROA 4533: Curtis

Appeal of the dismissal of Conductor Frank Curtis of Edmonton, Alberta.   
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CROA 4532: Cordero

The Company’s refusal to allow Conductor Cordero to rescind his notice of resignation.   
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CROA 4530: Mr. R

The dismissal shall be removed from the Grievor’s record and he shall be reinstated forthwith without loss of seniority, but without compensation for lost wages and benefits, and subject to the following conditions.   
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CROA 4524: D. Playfair

Since CP did not meet its evidentiary burden, the arbitrator upholds the TCRC’s grievance and orders that this discipline be struck from Mr. Playfair’s discipline record.   
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CROA 4529: Conductor AB

The Grievor is to be reinstated in his position forthwith without loss of seniority and is to be compensated for all wages and benefits lost.   
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CROA 4525

Dispute with respect to the implementation of CROA Case No, 4208.    
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Handling of Unassigned Pool

Should CP management persist in the blatent disregard to their legal obligations, we will take action to enforce those decisions through the Federal Court System and we will have no alternative but to seek maximum available penalties the court provides.    
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CROA 4523: Lougheed

The arbitrator orders CP to reinstate Mr. Lougheed with full compensation and to replace his dismissal with a written warning.    
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Run Around Award

This award is supplementary to an award I issued on August 3, 2016 (the “August 3, 2016 Award”) with respect to a hearing held on July 6, 2016. Handling of Unassigned Pool and Spareboard Employees.     
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Vacation Vacancy Award

In my opinion, the resolution of this matter should be one that balances the interests of both parties and will foster further discussion and hopefully an agreed upon outcome through free collective bargaining.     
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CROA - Thief River Falls

I find and declare that the material change provisions of the Collective Agreements do not permit the Company the right to initiate the proposed January 22, 2016 ESR between Winnipeg, MB and Thief River Falls, MN without the need to change crews in Emerson, MB or Noyes, MN.     
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AdHoc Award 641 - RCLS

The parties are directed to jointly compose the required agreement language and finalize the requisite details within 60 days following the date of the issuance of this decision, failing which any outstanding matters are to be returned to me for binding resolution.      
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ESR Chapleau-Schreiber

Given both the fact that the Company is compelled by this award to make the concession on the $80.00 NR as ordered and in light of the comments contained in the ad hoc awards referred to, I direct that Appendix A Clause 4.3 be included in the ESR agreement without the Union’s proposed highlighted portion included.      
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CROA 4421: Cleroux

I direct that the grievor be reinstated to his employment forthwith with no loss of seniority, and that he be compensated for all wages and benefits lost.
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CP CROA Letter

CP withdraws June 26, 2015 letter and remains a member of the CROA&DR committee.      
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