Arbitrator denies CPC bid to delay hearing regarding two bundle delivery method

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADA POST CORPORATION
(“the Employer”)

AND:

CANADIAN UNION OF POSTAL WORKERS
(“the Union”)

IN THE MATTER OF:

NATIONAL POLICY GRIEVANCE N-00-07-00032
SUPPLEMENTARY AWARD II

ARBITRATOR:

Kevin M. Burkett

FOR THE EMPLOYER:

Rolland Forget – Counsel
Louise Beauchamp – Counsel
Claude Marcil – Manager, Labour Relations

FOR THE UNION:

Gaston Nadeau – Counsel
Philippe Arbour – National Grievance Officer
Jim Crowell – CUPW Representative

SUPPLEMENTARY AWARD II

I am required to decide whether this hearing should reconvene on December 23, 2013 or at some later date. The arbitrator is available on that date and the Union seeks to proceed. The Company objects.
In deciding whether to proceed on December 23, 2013 I have taken account of the following:
Article 9.44 stipulates that in respect of the prearranged hearing dates “no hearings shall be held between December 10 and January 3”. The scheduling of this continuation has nothing to do with the scheduling of pre-arranged dates. Accordingly, this article does not apply. Rather, this request falls within the ambit of article 9.46.
Given the Christmas break and my January schedule my next available date for this matter would be January 31, 2014; a pre-arranged Canada Post hearing date.
At the outset the parties directed that if I found Canada Post to be in breach of its contractual/statutory obligations I should make no remedial orders but remain seized should the parties be unable to agree upon an appropriate remedy. The remedial question was the subject of a hearing on November 6, 2013 and a Supplementary Award dated November 8, 2013. In that award I found that “as an interim measure the removal of the mail held horizontally across the forearm, thereby restoring the field of vision and the letter carrier’s balance as it existed under the one bundle delivery method, addresses the (October 17, 2013) finding of increased risk of slips, trips and falls”. I was not aware at the time that in addition to these three options (only one of which the Union acknowledges to be safe) letter carriers would continue to be permitted to use the two bundle delivery method that had been found unsafe.
A proposed December 5, 2013 hearing date was adjourned because in the face of confusion over which matter was to proceed on the date I was satisfied that the Company had not had sufficient time to prepare. The hearing was to be rescheduled to a mutually agreed but expeditiously scheduled date. It was the expectation of the arbitrator that the parties would move to have this matter heard at the earliest time.
The Company has now been aware since before December 5, 2013 that the continued use of the two bundle delivery method and the reassessment of that delivery method through a risk assessment are issues in dispute.
In its many emails the Company has not provided a compelling reason for its unavailability on December 23, 2013. Rather, it asserts that under article 9.44 hearing dates are not pre-arranged between December 10 – January 3. I have found that article 9.44 does not apply.
I have the power under article 9.46 to determine a day or days upon which to pursue the hearing.
Given that it has already been found that the two bundle delivery method, with the “long and shorts held horizontally across the forearm”, is unsafe, the continued use of this delivery method, even if not required, is a matter of some urgency.
Having regard to all of the foregoing I hereby notify the parties that I am convening a hearing in Ottawa on December 23, 2013 to commence at 10:00 am at a location to be confirmed by the Company failing which the hearing will take place at Gillespie Reporting Services, at 130 Slater Street, Suite 200, Ottawa. The purpose of the hearing is to consider the concern raised by the Union with respect to the continued use of the two bundle delivery method and the reassessment of the safety of that delivery method through a risk assessment.

DATED in Toronto, Ontario on this 16th day of December, 2013.

Kevin Burkett
___________________
Kevin M. Burkett