Awards & Resolves

Awards

Appeal of the Company’s new Return to Work Agreement provided to JB

The Union contends that the provisions that appeared in the January 10, 2022 RTWA for the Grievor that do not appear in the signed April 14, 2023 RTWA are not reasonable, are arbitrary as well discriminatory and caused the Grievor to be held off duty unnecessarily.

I find that the grievor is entitled to full compensation for all periods he was available to work after January 10, 2022 until April 14, 2023.

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CPR’s Policy on Asbestos Management

Dispute: The incorrect and arbitrary handling of Mr. P. Smith in relation to CPR’s Policy on Asbestos Management, but the issues give rise to the entire policy and its adopted course and actions.

January 24, 2024 -  "I declare that the Company breached the 2006 AMP when it failed to provide the requested information as it pertained to Peter Smith. I further declare that the Company breached the 2006 AMP when if failed to provide a medical assessment when it was informed that Peter Smith had been exposed to asbestos."  

"I find as well that all other TCRC members and former members, who have reasonable grounds to believe they have been exposed to asbestos while on Company service, are entitled to request the information and services set out in the 2006 AMP." 

Any eligible TCRC member or former member may contact Employee_Services@cpr.ca to request the information and services set out in the 2006 AMP.

Read CROA Case No. 4870...



Tie-ups Enroute (55555)

I am in agreement with the Union that the Company’s Bulletin would run afoul of the KVP Test as it has the potential to be interpreted by the Company in a manner which is inconsistent with the Agreement: The Union’s concern that the Company would consider an employee to be on “two straight-away trips” and so the “on duty” clock was “reset” is not an unreasonable one.

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Another TCRC Win Against CPKC

Please see the attached CIRB decision concerning CPKC’s appeal on calculation of wages for Paid Personal Leave under the Canada Labour Code. The complaint was successful in the contention the amount is the average of daily earnings for the 20 previous working days, as opposed to CPKC’s contention it would compensate a minimum day (100 miles).

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Appeal of the 20 Demerits assessed to Conductor Darren Gaymer

In view of the uncontradicted evidence of the Grievor regarding the unstable footing that existed on his train as the switch was approached, I am satisfied the Company has not met its burden of proof to establish the application of the Bulletin was reasonable in this case and provided cause to discipline the Grievor for failure to comply with the Bulletin.

No cause for discipline having been established, the 20 demerits assessed to the Grievor are vacated.

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Appeal of the 30 demerits and subsequent dismissal of Conductor D. Gaymer

In making this decision, I have had regard to the very long service of this Grievor and have considered his discipline record – and the jurisprudence – very carefully. In view of the very long service of the Grievor; the relatively minor nature of this incident in comparison to others in this industry as recognized in CROA 4098; the jurisprudence; and also understanding that the Grievor had already been placed at Step 3 on his reinstatement, I am satisfied that 30 demerits was excessive and unwarranted for this incident. I am prepared to exercise my discretion to set aside that discipline and to substitute reinstatement, however given that the Grievor had been reinstated at Step 3 and his record was therefore precarious, I do so with time served as a suspension (so a reinstatement without compensation and benefits).

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Managers performing Bargaining Unit work while employees are available

The Company also argued that it was not inevitable that Mr. Bobier would have been entitled to the extra shift, based on seniority, and cites CROA 4694. This case, in my view, is distinguishable, as it deals with claims between bargaining unit members. Here, the issue is between a bargaining unit member and a member of management performing bargaining unit work. Mr. Bobier is the only bargaining unit member claiming this extra work and the time for anyone else to do so is long past. The grievor was entitled to make the claim advanced.

The Union has also asked for a “Cease and Desist” Order to be given to the Company concerning the use of management members to do bargaining unit work. Although I agree that I have the power to do this see AH 809, I decline to do so here. The parties will be before the CIRB shortly, with far greater evidence and time than that available through the CROA process

For these reasons, the grievance is allowed. I retain jurisdiction for any questions concerning the implementation of this award.

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ESB’s (Clayton Wright) declined wage claim

Grievance regarding an ESB’s (Clayton Wright) declined wage claim (OA) due to his pool turn not having 10 hours off duty (8 + 2) between round trips as submitted by Conductor Clayton Wright for being withheld from his regular position to protect work as a Locomotive Engineer.

The Grievance is allowed. A declaration will issue that the Company has breached the Collective Agreement by:

a. Altering the requirements of Article 113.01(6) by unilaterally imposing on the Grievor a 10 hr rest requirement; and

b. by using the Grievor’s personal rest history to determine the earnings the Grievor “would have made” on his “regular position” under Article 113.01(6).

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Apeals of Mr. Lashley

Decisions on four appeals filed on behalf of Conductor Neil Lashley.

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Appeals of Conductor William Ryan

Decisions on five appeals filed on behalf of Conductor William Ryan.

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Appeal of the declination of Mr. Danny Charron’s spare board guarantee claim

After careful review of the facts and evidence, I find that under the Spare Board guarantee provisions he should have be considered in pro-rated off-status for the two days. Such days are not penalized but instead are prorated. Spare Board employees are not entitled to spare board guarantee payments for that day or days. To do otherwise would assess a potentially greater financial loss to Spare Board employees in comparison to other employees who were in the same status on the same two days. The days in question should not have been penalized to negate an entitlement after he returned to work. Under the language the two days were subject to prorated and as such he was not entitled to spare board guarantee for the two days but was entitled to the remainder of the guarantee.

In view of the foregoing the grievance is allowed and the Grievor will not be compensated for the two days but will be compensated for the remainder of the guarantee period accordingly.

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Appeal of the dismissal of Conductor A. Unrau

It cannot be suggested that the Collective Agreement in this case supports qualification testing – or drug and alcohol testing of any type. The employment agreement therefore did not provide to the Company the legal justification to subject the Grievor to qualification testing.

The Company has not met its burden of proof to demonstrate it had legal justification to test the Grievor for drug and alcohol use, as part of his qualification for the role of Conductor.

In view of this finding, it is not necessary to determine the other issues raised by the arguments of the parties. The Grievance is upheld. The Grievor is to be reinstated and made whole for all lost wages and benefits, including any impact on his pension benefits.

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Appeal of the 20 demerits and subsequent dismissal of Conductor Rick Sobry

After carefully reviewing the relevant evidence and the respective submissions of the parties I find, there was just cause for discipline but not for discharge. I find that this incident does not demonstrate the Grievor has a lack the necessary rehabilitative potential, or that he cannot comply with the requirements of a safety critical workplace. Accordingly, I am prepared to exercise my discretion to reinstate the Grievor and to substitute a lesser penalty than discharge

The Grievor will be reinstated without compensation or loss of seniority. Time out of service will be as unpaid suspension. A one day compensation will be appropriately made to ensure the Grievor’s ability to remain in the pension plan.

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Appeal of the 30 demerits and subsequent dismissal of Conductor Craig Fossum

The facts and circumstances relating to Road Trainmaster Rioux’s observations and the investigating officer’s conduct raise questions about the degree to which they approached their respective tasks with an open mind.

I agree with the Company that the rule was violated if the signal was not broadcast. However, that fact was not established by the Company.

In view of all of the foregoing I find discipline to be void. The Grievor shall be reinstated and made whole for lost earnings and benefits.

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Appeal of the 20 Demerits assessed to Conductor Craig Fossum

Arbitrators have considered the individual facts and established a wide range of discipline including 15 demerits in the similar facts of CROA 4533. In that case he upheld the 15 demerits assessed. In view of all of the forgoing the Grievance is allowed in part. The discipline will be reduced to 15 demerits.

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The use of cameras at the Schreiber GYO

Most important, though, was the specific undertaking given to employees by the Company when the cameras were installed. They are intended only to monitor security. They are not meant to be used to measure employee productivity. In acting as Ms. Bryson did, the Company breached the undertaking it made when the video cameras were introduced. It undertook they would be used only “to investigate claims of theft or break and enter”. That was the Union’s understanding at the time. That was not the purpose for Ms. Bryson’s viewing. In the circumstances, the Company was not entitled to view the video recording when Ms. Bryson did so, and it cannot rely upon them. Accordingly, as was said in CROA 2707 I find it was not reasonable for the Company to have regard to the video tape evidence.

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CP Guilty of Contempt of Court

The judge found “beyond a reasonable doubt” that the rail company “intentionally” overworked train crews in 22 incidents of the 38 presented. However, the judge also noted that “CP’s own evidence was that thousands of situations continue to occur annually” where train crews are not relieved from work in time. 

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The use of cameras at the Schreiber GYO

Most important, though, was the specific undertaking given to employees by the Company when the cameras were installed. They are intended only to monitor security. They are not meant to be used to measure employee productivity. In acting as Ms. Bryson did, the Company breached the undertaking it made when the video cameras were introduced. It undertook they would be used only “to investigate claims of theft or break and enter”. That was the Union’s understanding at the time. That was not the purpose for Ms. Bryson’s viewing. In the circumstances, the Company was not entitled to view the video recording when Ms. Bryson did so, and it cannot rely upon them. Accordingly, as was said in CROA 2707 I find it was not reasonable for the Company to have regard to the video tape evidence.

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Appeal of Conductor Dustin Playfair

The Company submitted that the alleged offence placed doubt on his continued employment. In spite of this alleged doubt the Company reinstated the Grievor before the hearing on this matter. In view of all of the foregoing the arbitrator orders that the Company remove the 30 demerits points and resulting dismissal from his record and compensate him for his losses accordingly.

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Grievance re R. Mellquist dismissal

Fourth, Mr. Mellquist’s detailed evidence in his Statement satisfied the arbitrator that he was candid with CP about the incident. He acknowledged his behaviour was inappropriate and expressed remorse. Mr. Mellquist is also a long service employee having been hired in 1986. For the above reasons, the arbitrator orders CP to reinstate Mr. Mellquist, without loss of seniority, but without compensation for lost wages and benefits.

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R. Mellquist 40-day suspension

In the circumstances, and considering the limited information available from the employee Statement in this case, the arbitrator concludes that Mr. Mellquist merited a 5- day suspension for his actions. The arbitrator agrees with the TCRC that this situation did not justify CP holding Mr. Mellquist out of service under article 39.06 of the CA.

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R. Brydge 30-day suspension

Considering the context of this 2015 case when suspensions were the “norm”, rather than demerits, as well as Mr. Brydge’s proper discipline record, the arbitrator has decided to substitute a 3-day suspension for CP’s original 30-day suspension. This determination applies only to Mr. Brydge’s situation and should not be taken as a precedent for future cases. The disciplinary landscape has changed since 2018 with the reintroduction of demerit points in a hybrid system. 

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Preliminary Objections: Chapleau Weekly Placement Process

For the reasons explained above, the arbitrator dismisses CP’s 3 preliminary objections. The TCRC can bring a single grievance contesting a scenario, like the one which allegedly occurred during the week of February 15, 2021 and request remedies on behalf of any affected employees.

The arbitrator further dismisses CP’s objection contesting the TCRC’s request for a “cease and desist” order. The TCRC has advised CP that its remedial requests go beyond what might otherwise be considered routine. The merits of this case will determine whether the TCRC has any entitlement to that type of remedy.

The arbitrator dismisses CP’s objection arising from the TCRC’s request that any affected employees be made whole. The merits of this case will determine whether CP has any liability. The particulars of any compensation for impacted employees would only occur after a decision on liability.

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Dismissal of Conductor Azubike Igbelina

CP remained fully entitled to plead that it still had cause for dismissal, despite Arbitrator Hodges overturning Mr. Igbelina’s 30-day suspension. But its attempt during the hearing to file more ETs into evidence demonstrated Arbitrator Sims’ legitimate concerns. These past ET tests never formed part of Mr. Igbelina’s disciplinary record. He had never had a chance to contest them. They cannot be raised at arbitration to support CP’s case for just cause. 

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Dismissal of a Locomotive Engineer

The arbitrator has raised procedural concerns about the disclosure in this case. Only full disclosure allows the railway model to hear, in a procedurally fair way, multiple cases in a single day.

CP demonstrated that the grievor tested positive while subject to the RPA. The Record discloses no innocent explanation for that result. However, because CP did not follow the RPA’s process, the arbitrator has decided to reinstate the grievor with appropriate conditions.

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Appeal of the 30 Day Suspension issued to Conductor Igbelina

I find the investigating officer established that the collision was avoidable had Conductor Anderson fulfilled the obligations. I also note that Conductor Ward indicated in his incident report that he was specifically calling the east end, recognizing that such permission is safer when given by a crew member in the location where the move would occur.

For the foregoing reasons, I also find that CP’s investigation was not fair or impartial as required by the collective agreement. The discipline is to be removed from the Grievor’s record and he will be compensated for loss of earnings.

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Appeal of the dismissal of Conductor Shawn Arnold 

In view of all of the foregoing, I find the failure to recognize undue delay negatively impacted the Grievor’s right to a fair and impartial investigation. For the reasons I have set out in this award, the evidence did not establish culpability. The evidence necessary or given to the Investigating Officer against the Grievor was at times unavailable, largely unreliable and in some cases not credible.

The Grievor’s dismissal is therefore void ab initio.

The Grievor will be reinstated without loss of seniority or benefits and with compensation of all wages in accordance with his original RTW Plan. The RTW Plan will be reviewed and updated accordingly within 30 days of this award.

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Buffalo ESR – Order Time for Toronto Return

The arbitrator has considered the parties’ competing interpretations of the CA. For the reasons expressed above, the CA does not contemplate CP’s ESR Toronto-Buffalo employees receiving their “calls” while still on their Toronto-Buffalo tour of duty. The negotiated language fits far more comfortably within the scenario, which appears to have been the status quo for years, of CP calling crews after the expiration of the FRA’s 10- hour rest period.

While this may result in employees receiving “held away pay” under article 8 of the CA, that result alone is not sufficient to discount the parties’ existing negotiated wording. A change to that scenario must come from collective bargaining rather than from a rights arbitrator.

The arbitrator declares that the Bulletin violates the collective agreement. The TCRC has requested various resulting remedies. The arbitrator retains jurisdiction to hear the parties’ arguments in that regard should they be unable to agree on the appropriate remedies.

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Grievance Of Conductor Willard Calibaba

Not surprisingly, as CP has proved in the past in an impairment case involving cocaine, severe consequences follow for employees who work in safety sensitive positions when impaired. But in the absence of evidence showing impairment at work, CP had no grounds to discipline Ms. Daniher.

For the above reasons, the arbitrator concludes that CP had no reasonable grounds to test Mr. Calibaba. Consequently, it had no grounds to impose any discipline. The arbitrator grants the TCRC’s remedial request that Mr. Calibaba be reinstated to his position with no loss of seniority and full compensation for all lost wages and benefits. Mr. Calibaba is entitled to interest on these amounts.

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Implementation of CROA Awards 4806 & 4807

In 2020, the Grievor was discharged from her position as a Conductor. The Union grieved the discharge and, on January 24, 2022, this Office issued CROA 4806 & 4807 (the “Award”), ordering the Company to reinstate the Grievor and make her whole in all respects. I retained jurisdiction regarding the implementation of the Award.

In the decisions relied upon by the Company, the grievors took no steps or provided no evidence to show that they applied for other work: CROA 4355S, CROA 4505S. In the circumstances of this case, including the short period of time at issue, I am not persuaded that the Grievor failed to take steps to mitigate her losses between January 1 and January 24, 2022. Accordingly, there is no basis to reduce her compensation for the Relevant Period for failing to mitigate. The Grievor is entitled to be compensated at the agreed-upon comparator rate from January 1, 2022 to August 18, 2022.

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CP and Teamsters Award (FAF 1804)

To the extent, as asserted by the union, that “union members who are required to attend disciplinary investigations have found that their personal health information beyond functional limitations are relied on as Appendixes in such proceedings,” that practice must come to an immediate end. An employee who provides consent on a FAF to disclosure of medical information does so for one purpose only: to provide the necessary information for accommodation. Any other use of the information is completely improper (not including, of course, when necessary to respond to an accommodation grievance or some other legal proceeding or as required by law).

In the aftermath of the award, the FAF disclosure provision should have been revised to comply with the award. The Company is directed to immediately amend the FAF consent provision to eliminate reference to Policy 1804 and to promptly inform that union that it has done so. To the extent that Policy 1804 continues to allow disclosure of medical information beyond functional abilities and restrictions for accommodation purposes (or for use in an accommodation grievance or as required by law) it is of no force and effect.

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Grievance re- Personal Health Information

This case concerns an employer revision to the employee consent provision of the FAF. It proceeded to a hearing in Toronto on October 31, 2018. At that time, and with the explicit consent of counsel, an effort was made to resolve the outstanding issues in dispute. It was agreed that the parties would continue those discussions following the hearing, but that if they were unable to resolve the outstanding matters, I would, as was discussed at the hearing, issue a direction. Unfortunately, the parties were unable to reach an agreement. Accordingly, I direct as follows with respect to the consent provision of the FAF: Except as required by law, supervisors and managers are only entitled to information about functional limitations.

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Appeal of the dismissal of Tyler Beitz

In this case, I find there was no concern for false claims or inability to trust the Grievor during his employment prior to the June 12, 2018 collision. There is no dispute regarding the impact on the Grievor. He did not attempt to hide his absences and no concerns were raised by the Company. Unlike the Grievor in Ad Hoc 700, I can find no reason to believe he cannot return to that trusted status.

In view of all of the forgoing, the Grievor will be reinstated without compensation or loss of seniority.

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Appeal of the 20 day suspension assessed to Conductor Colin Commodore of Red Deer, AB.    

Given all of the foregoing, I find the assessment of a 20-day suspension excessive. The discipline will be reduced to 15 demerits. The Grievor will be compensated accordingly.

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The dismissal of Colin Commodore

The Company was aware of the mitigating factor of this case as it was held in the back log of grievance until the back log cases were referred to me for arbitration in October of 2021. In view of all of the foregoing, the grievance is allowed in part. The time from dismissal to October 31, 2021 will serve as suspension without pay.

The Grievor will be reinstated effective October 31, 2021 with compensation for lost wages and benefits from that date.

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Appeal of the dismissal Jeff Reid   

The Grievor is not a long service employee. He has a discipline record with two previous suspensions. His failure to be accountable for his actions are inconsistent with his returning to a safety critical position.

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Appeals of Wade Blackwood 

The Union had six grievances before the Arbitrator for this Grievor and two were dismissal for accumulation of demerits. The Company requested separate decisions for each grievance. The Grievor was dismissed a second time for a rule violation.

"Based on all the evidence before me, I cannot find that the Company provided a fair and impartial investigation in this case. In my view, the frustration of the Union is understandable given the facts and involvement of Mr. Gough and Mr. Harter in this particular case. However, the particular conceptualization of targeting by the Company in general has not been found as a result of this case."

"In view of all of the foregoing, I find the Grievor’s discipline void ab initio due to the failure to provide a fair investigation and the significant procedural errors set out above. I order CP to reinstate Mr. Blackwood in his employment, with compensation of all wages and benefits lost and without loss of seniority."

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Appeal of the dismissal of Trainperson D. Demaray

In these circumstances, there was no basis to discipline the Grievor. His behaviour was not prohibited by any rule and it was not unsafe. It might have been open to the Company to discuss the situation with the Grievor and provide guidance about when to avoid riding on the ladder. However, there was no basis for discipline and this incident should not have led to the Grievor’s discharge.

Given my conclusion that discipline was unwarranted, it is not necessary to address the Union’s allegations that the investigation was unfair and impartial.

The Grievor is reinstated forthwith with full compensation and without loss of seniority.

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Appeal on behalf of Engineer Wade Delmage of Moose Jaw, SK. regarding him being assessed with a forty-five-day suspension 

I find the Company chose to assess discipline of a 40 day suspension for this incident as a Major Violation. However, it returned the Grievor to work without restrictions after 28 days. In so doing, I find the Company actually chose to address this matter as less than a Major Violation. After the Grievor had been held out of service for 28 days the decision was made to return him to service without any requirement for training or restrictions. I find that decision is understandable given his previous good record. However, the Company failed to properly consider all the same mitigating factors when assessing the original discipline.  

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Appeal of the dismissal of Conductor Woodhouse 

After consideration of all of the foregoing the grievance is allowed in part. The Grievor Troy Woodhouse will be reinstated in accordance with the following. The period from August 5, 2019 to July 5, 2021 will be counted as time out of service without compensation. Upon return to work at CP Rail, he will be compensated for lost time and benefits for the time from August 5, 2020 to December 3, 2020 when he refused reinstatement.

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Appeal of the 40 day suspension to Conductor Aaron Korthuis   

Based on all of the forgoing I cannot find that the Grievor received a fair and impartial hearing. The evidence produced did not justify the discipline. I find the discipline imposed is null and void. The Grievor be made whole for lost wages and benefits.

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Appeal of the 30 day suspension to Conductor Aaron Korthuis    

In view of all of the foregoing I find the discipline assessed is excessive. It will be reduced to a five day suspension and the Grievor will be compensated accordingly. 

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Appeal of the dismissal of Conductor Aaron Korthuis    

In view of all of the foregoing dismissal will be replaced with time served as suspension without pay. The Grievor will be reinstated without compensation for lost time or benefits within 60 days of this award.

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Appeal of the 15-demerits, 20-demerits, and 30-day suspension of Conductor & Appeal of the 30-demerits/dismissal of Conductor Lesley Hanna

The Employer argued that the discipline imposed on the Grievor was reasonable and in keeping with its Hybrid Discipline and Accountability Guidelines. The Union objected to the Guidelines because they were introduced unilaterally by the Employer and are the subject of outstanding Union grievances. These issues are beyond the scope of my jurisdiction. Having assessed the discipline based on existing CROA jurisprudence and principles, I am satisfied that the discipline imposed was excessive and must either be rescinded or reduced, as described above. The grievances are allowed, in part.

The Grievor’s disciplinary record should reflect a total of 25 demerits points for the incidents reviewed in this award. This would have brought her active discipline record to 45 demerit points at the time of her termination, which is below the threshold for termination under the Brown system. Therefore, the termination is set aside and the Grievor is to be reinstated and made whole in all respects. 

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Appeal of the dismissal of Conductor C. Hoyt

For the reasons set out above, I find that the Company did not discharge its burden of proving that the Grievor was impaired while on duty or subject to duty, or otherwise violated Rule G, the Policy or Procedure, nor that the June 10, 2019 incident was caused, in whole or in part, by his alleged impairment. In the absence of impairment, there is no cause for discipline. In the circumstances, I find that the Grievor’s dismissal due to his drug consumption and test result of June 2019 was not warranted.

I order that the Grievor be reinstated without loss of service and that he be made whole for all compensation and benefits lost.

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Appeal of the Company's layoff of Hamilton based employees

Article 5.7 of the ESR Agreement states that, for the purposes of employees’ annual vacation (referred to in Article 5.7 as “AV”), Hamilton will be treated as an independent terminal. Contrary to the Company’s submission, Article 5.7 does not state that Hamilton will be treated as an independent terminal “only” for employees’ annual vacation purposes. Therefore, Article 5.7 is not inconsistent with the finding that Article 5.8 also creates a special regime for the staffing of assignments.

For these reasons, the grievance is allowed. I order that the Grievors be compensated for all lost wages for the layoff period at issue and that they be made whole, notably regarding pension, vacation, benefits, earned days off and vacation, without loss of seniority.

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Appeal of the dismissal of M. Warner

In the circumstances, I find that the Grievor’s dismissal was not warranted. I order that the Grievor be reinstated without loss of service and that he be made whole for all compensation and benefits lost. I remain seized with respect to the implementation of this decision.

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Supplemental – AV & GH

As noted before we had to go back to Arbitrator Kaplan for a supplementary hearing on AV-GH (March 21, 2021 Award attached) which we have received his decision today. We were further successful in the ongoing years after 2017/2018 for any grievances filed as well as the original award where the company was limiting when those affected could take their 2 days.

"The Company is directed to allow employees to use their remedial vacation days in conjunction with their scheduled vacation, in the summer months and December. Lost prime time should be replaced by prime time, if the affected employee wishes. Any other outcome would not be a real remedy."

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Suspension of Conductor Training 

This issue revolved around the Company arbitrarily choosing to suspend a number of Conductor Training classes that were already in session in both the East and the West in the fall off 2019 and without any prior notice (10-days) being given to the employees as per the CCBA. To be clear, the Company did not lay these employees off. The involved Conductor Trainees were merely informed that their training was temporarily suspended. All of the employees were subsequently returned to complete their training at the beginning of October, 2019 and approximately 10 days later. The employees that chose to return to service following the 10-day hiatus and completed their training as originally scheduled were addressed in a number of grievances from multiple TCRC Divisions nationwide. Arbitrator Kaplan ruled that the Company is not at liberty to merely suspend a Conductor Training Program at whim and following his review. Each Member involved in this dispute will now receive their compensation as if they were continually employed with the Company for all time held out. This award represents approximately $150,000 to our Members. Should any issues arise in the future regarding our Members training being improperly suspended and/or not receiving requisite 10-day-notice for lay-off; the appropriate Local Chairman should be immediately advised.

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Lethbridge Non-Compliant Locomotive

This was an Award achieved regarding numerous grievances advanced regarding the Company continuously utilizing foreign railway locomotives in the lead position and that do not comply with Collective Agreement provisions / past jurisprudence as well as Canadian Regulations. Specifically, the issue and grievances in connection with foreign locomotives was directed toward locomotives unequipped with proper fridges, hot plates, and vinyl seats. The Award in itself is self-explanatory, and clearly, Arbitrator Kaplan agreed with the Union position in this matter. Our focus now must be to ensure our Membership immediately notify the Company when we receive a train/assignment with a non-compliant locomotive leading to ensure it is swapped properly and to ensure that subsequent crews do not have to work under substandard conditions.

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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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2014 Letter of Understanding - Vaughan EC Payments

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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