AH – 46
IN THE MATTER OF AN ARBITRATION
Canadian National Railway Company
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES
IN THE MATTER OF THE GRIEVANCE OF Walter Skanes
SOLE ARBITRATOR: Charles O’Connell, Q.C.
There appeared on behalf of the Company:
P.A. McDiarmid – Labour Relations Assistant, Montreal
C. Hollett – Superintendent, Express Freight, St. John’s
G. James – Employee Relations Assistant, St. John’s.
And on behalf of the Union:
Esau E. Thoms – General Chairman
Michael Walsh – Chairman, St. John’s Lodge
George Noseworthy – Local Chairman, Argentia Lodge
A hearing in this matter was held at St. John’s, Newfoundland on the 28th day of July, 1967.
This board of Arbitration was set up to resolve a dispute between the parties hereto. The said Board has established pursuant to Clause 10.4 of Article 10 of the Collective Agreement entered into between the Canadian National Railway Company, hereinafter referred to as the "Company", and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees hereinafter referred to as the "Union" in force at the material time.
The Arbitrator, Charles O’Connell, Q.C., Of Sidney, N.S. was appointed by the Honourable John R. Nicholson, Minister of Labour.
The Board held a meeting at St. John’s, Newfoundland on the 28th day of July, 1967 at which time representatives of both the Company and Union were present. The Company was represented by P.A. McDiarmid, Labour Relations Assistant, Montreal, and C. Hollett, Superintendent, Express Freight, St. John’s, and G. James, Employee Relations Assist, St. John’s.
The Union was represented by Mr. Esau E. Thoms, General Chairman and also by Mr. Michael Walsh, Chairman, St. John’s Lodge, and Mr. George Noseworthy, Local Chairman, Argentia Lodge. At the St. John’s meeting both parties were given a full opportunity to adduce all relevant information concerning the matters in dispute and briefs and oral arguments were submitted to the Board.
STATEMENT OF FACTS
Walter Skanes, the Grievor herein, was suspended by the Company for three months effective February 1st, 1967, on account of reporting for work in an unfit condition to perform his duties and by using abusive language directed against certain of his fellow employees.
The specific charge against the said Grievor is specifically set forth in the briefs submitted by the parties hereto.
On January 31, 1967, Mr. Walter Skanes, Freight Trucker, reported for work at Argentia on the 5:00 p.m. shift. As a result of complaints made to the foreman, Mr. Thomas Kelley concerning the condition of Mr. Skanes, Mr. Kelley ordered Mr. Skanes to leave the premises because he was of the opinion that due to alcohol Mr. Skanes was not in a position to carry out his duties. As a result of Mr. Kelley’s order, Mr. Skanes left the premises at approximately 5:30 p.m. He subsequently returned at approximately 12:30 a.m. and was again ordered out of the shed office at Argentia because of his condition and further because he was using abusive and threatening language.
JURISDICTION OF THE BOARD AND NATURE OF THE AWARD
I n the meeting held by the Board it was agreed between the parties
(1) that the Board was properly constituted and
(2) that the Board had jurisdiction to make a final adjudication of the issues and that all preliminary requirements prior the establishment of the Board had been complied with.
As mentioned previously, this Board had been set up pursuant to Clause 10.4 of Article 10 of the current Collective Agreement between the Company and the Union at page 10.
The Grievor is appealing his suspension as a result of an incident which occurred on January 31, 1967 at Argentia. The grounds of his appeal are as follows:
(a) Article 9.2 of the Collective Agreement was not adhered to since no written notice of the investigation was given to Mr. Skanes.
(b) Article 9.2 of the Collective Agreement was not adhered to since the decision was given after 21 calendar days from the date Mr. Skanes’ statement was taken.
(c) The charge "alleged under the influence of liquor" was not proven.
The Board will now deal with the submission by the Union that certain provisions of Clause 9.2 of Article 9 were not adhered to.
Clause 9.2 reads as follows:
9.2 Investigations in connection with alleged irregularities will be held as quickly as possible. An employee may be held out of service for investigation (not exceeding three days). He will be given at least one day’s notice in writing of the investigation and of the charges against him. This shall not be construed to mean that a proper officer of the Company, who may be on the ground when the cause for investigation occurs, shall be prevented from making an immediate investigation. An employee may, if he so desires, have the assistance of one or two fellow employees or accredited representatives of the Brotherhood at the investigation. Upon request, the employee being investigated shall be furnished with a copy of his own statement, if it is made a matter of record at the investigation. The decision will be rendered within twenty-one calendar days from the date the investigation is completed. An employee will not be held out of service pending the rendering of a decision, except in the case of a dismissable offence.
As noted above the parties hereto agreed that this Board was properly constituted and that the grievance had been properly processed. It must be remembered that the grievance procedure set forth in a Collective Agreement is designed to limit third party or outside intervention in grievance issues. The said grievance procedure is the creature of the parties to the Collective Agreement and should be exhausted before steps are taken to place the dispute in the hands of an Arbitrator. Generally speaking, adherence to the grievance procedure is usually a condition precedent to arbitration. If the grievance machinery had not been complied with strictly, the parties should either be prepared to waive its requirements when the case goes to arbitration (as was done at the outset of this meeting) or refuse to arbitrate the issue or proceed under protest.
FINDING OF BOARD AND BASIS FOR DECISION
Mr. Thoms argued strongly on behalf of the Union that Mr. Skanes, the Grievor herein, was placed in a compromising position because he was not given at least one day’s notice in writing of the investigation and of the charges against him.
Clause 9.2 of Article 9 is a procedural clause which the Collective Agreement provides for its enforcement. The interpretation of said Clause 9.2 is not without difficulty because as Mr. Thoms so well points out, it provides on the one hand that an employee will be given one day’s notice in writing of the investigation and of the charges against him - on the other hand , it permits a proper officer of the Company who may be on the ground when the cause for investigation occurs to make an immediate investigation. If the said officer of the Company was to carry out any type of investigation, by inference, it is submitted that he would have the power to question the employee who is being investigated. I am of the opinion that this matter should be clarified in the next Collective Agreement entered into between the parties hereto.
Assuming that the Union’s contention is correct and that there was a technical defect in the processing of Mr. Skanes’ grievance, the question to be determined by this Board is because of that defect whether there was any substantial miscarriage of justice done to the Grievor which would go to mitigation of the penalty imposed upon him.
The Company’s position on this point is that the grievor agreed to forego the written notice set forth in Clause 9.2 when advised verbally of the investigation by Mr. G.M. Camp, Agent at Argentia. The Union disputes this contention of the Company and in support has filed an Affidavit by the Grievor in which he swears that he did not agree to waive the provisions of Clause 9.2. On this question of waiver, we have contradictory evidence but the Board finds that there was no duress directed against the Grievor by the Company because there was a five or six hour interval from the time the Grievor was asked to make a statement by the Company and the time he actually made the said statement.
The Board further finds that even if the provisions of Clause 9.2 were not strictly adhered to there resulted no substantial miscarriage of justice. If Clause 9.2 was violated it was because a statement was taken from the Grievor without giving him one day’s notice. the Board has examined the statement made by the Grievor herein in Argentia. On February 2 and standing by itself, the statement is not incriminating. In other words, if the only evidence the Company had in this matter was the statement of the Grievor herein. It would not warrant the penalty imposed. However, it is quite clear that the evidence reveals that the Company suspended the Grievor herein on the evidence given by the foreman and fellow employees of the Grievor.
The Board finds on this point that even if there was a technical violation of Clause 9.2, it is not necessary for our purposes to decide this, that Mr. Skanes’ rights were not infringed on in any way.
The Union also raised the question that Clause 9.2 was not adhered to since the decision was given after 21 calendar days from the date Mr. Skanes’ statement was given. The Board, despite the able argument raised by the Union, is of the opinion that Clause 9.2 clearly states that the decision in any investigation will be rendered within 21 calendar days from the date the investigation is completed - not from the date a statement is taken from the Grievor. This offence occurred on January 31. A statement was taken from the Grievor on February 2 and statements were taken from other employees up to and including February 15. The Company’s decision was rendered on February 27, 1967. The Board is of the opinion that there was no violation of the grievance procedure by the Company on this point.
With reference to the technical objections raised by the Union, I wish to add the following comments as I regard part of my function as one to improve Industrial Relations. These comments of course are beyond the terms of reference of this Board and they are made with the hope that in a small way they may assist in maintaining the excellent relations which currently exist between the parties hereto.
In the future, it is suggested that the parties agree that an employee who is under investigation be given at least one day’s notice in writing of the investigation and of the charges against him before he is asked to make a statement. A proper Company officer as before, would be permitted to make an immediate investigation, the only restriction being that he could not question employees under investigation until he has given them notice as set out above.
It is further suggested that there be no change in the provision in Clause 9.2 that a decision be rendered within 21 calendar days after the investigation is completed. The Board is of the opinion that because of communication and transportation problems in Newfoundland, that this provision is an excellent one and works to the advantage of both parties hereto.
The Union further contented that there was not sufficient evidence to justify the suspension of Walter Skanes.
The evidence presented before the Board clearly indicates that on January 31, 1967 when Mr. Skanes reported for work on the 5:00 p.m. shift, that due to alcohol he was not in a condition to carry out his normal duties. No evidence has been submitted by the Union to support their contention that Mr. Skanes had the ability to perform his duties on January 31. Although I agree with the contention of Mr. Thoms that there were leading questions asked and hearsay information given in the statements taken from different employees by the Company, the evidence taken as a whole clearly indicates that on January 31, because of his impaired condition, caused by alcohol, Mr. Skanes was not in a position to carry out his duties and that further he used abusive and threatening language against his fellow employees.
The appeal of the Union on behalf of Mr. Skanes is dismissed on the grounds that the Company had just cause for his suspension.
I wish to commend the representatives for the Union and the Company for the able manner in which they presented their arguments and evidence to the Board.
DATED at Sydney, in the County of Cape Breton, Province of Nova Scotia, this 28th day of August, A.D., 1967.
Charles O’Connell, Q.C.
COMMENTARY: The employee appeared at work under the influence of liquor and was sent home by his supervisor. He threatened a fellow employee with bodily harm before leaving. The Union attempted to have the suspension lifted on the basis that the investigation was not in conformity with the provisions of Article 9.2 of the Agreement but the Arbitrator did not accept this argument. On the basis of the evidence presented by the Company which included statements of fellow employees the Arbitrator denied the appeal against the suspension.