AH – 51
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 Frank Churchill
SOLE ARBITRATOR: Charles O’Connell, Q.C.
There appeared on behalf of the Company:
P.A. McDiarmid – Labour Relations Assistant, Montreal
D. O. McGrath – Labour Relations Assistant, Montreal
Hollett Peet – Employee Relations Supervisor, 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
T. F. Snow – Local Chairman, Lewisporte
W. C. Y. MacGregor – International Vice-President
A hearing in this matter was held at Montreal, Quebec, on the 18th day of September, 1967.
This Board of Arbitration was set up to resolve a dispute between the parties hereto. The said Board was 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, Airline 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 Sydney, N.S. was appointed by the Honourable John. R. Nicholson, Minister of Labour.
The Board held a meeting in Montreal, Quebec, on the 18th day of September, 1967, at which time the representatives of both the Company and the Union were present. The Company was represented by P.A. McDIarmid, Labour Relations Assistant, Montreal, and by D.O. McGrath, Labour Relations Assistant, Montreal, and by Hollett Peet, Employee Relations Supervisor, St. John’s.
The Union was represented by Mr. Esau E. Thoms, General Chairman and by Mr. Michael Walsh, Local Chairman, St. John’s Lodge, and by Mr. George Noseworthy, Local Chairman, Argentia Lodge and by T.F. Snow, Local Chairman, Lewisporte, and by W.C.Y. MacGregor, International Vice-President. At the Montreal meeting both parties were given the 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
Frank Churchill, the Grievor herein, was dismissed by the Company for altering delivery records without authority.
On March 7, 1967, Mr. Frank Churchill was employed as a Checker at the Team Tracks with the Express Freight Department at St. John’s, Newfoundland.
About 11:30 a.m. on that date he was assigned to check the unloading of Car CN 8339 which contained meat products consigned to Swift Canadian Company which was being unloaded into a truck operated by Pelley’s Trucking Limited for transshipment to Swift’s St. John’s plant. Mr. Churchill checked 255 pieces into Pelley’s truck made up of 169 cartons of meats, 17 cartons of shortening, 2 pails of shortening and 10 sacks of powder seasoning. Mr. Churchill then prepared a teamster’s receipt, which set forth that he had checked 255 pieces and Pelley’s driver signed for that amount.
On the afternoon of March 7, the driver of the said Pelley truck returned to the Company team track and informed Mr. Churchill that the truckload which had been checked by Mr. Churchill in the morning was short 6 cartons of meat and one carton of shortening when it was checked at Swift’s plant. The driver asked Mr. Churchill to change the teamster’s receipt and Company office copy to agree with the lower count of 248 pieces and Mr. Churchill complied.
Subsequently, that same day 10 cartons of meat belonging to Swift’s were found on the Southside Road at St. John’s and were eventually delivered to Swift’s.
JURISDICTION OF THE BOARD AND NATURE OF AWARD
At a 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 to the establishment of the Board had been complied with.
As mentioned previously, this Board has 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 dismissal as a result of an incident which occurred on March 7, 1967 at St. John’s. The grounds of his appeal are as follows:
(a) That Article 9.2 of the Collective Agreement was violated because no advance notice of the interview with CNR Policeman Lynch was given Mr. Churchill.
(b) That Article 9.2 of the Collective Agreement was not adhered to since the decision was given after 21 calendar days from the date Mr. Churchill’s statement was taken.
(c) That the Grievor, Mr. Churchill, was dismissed without cause.
FINDING OF BOARD AND BASIS FOR DECISION
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 (nor 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.
Mr. Thoms contended that Article 9.2 of the Collective Agreement had been violated because no advance notice of the interview with CNR Policeman Lynch was given Mr. Churchill.
The CNR Investigation Department is a Company Police Force and works with and supplements the activities of police forces in areas where CNR property is located. The Board finds that the provisions of Clause 9.2 of the Collective Agreement do not apply to investigations carried out by CNR Police - it would be ridiculous to hold otherwise as it would seriously impair their function. For the Board to rule in favor of the Union on this point, Clause 9.2 would have to expressly state that its provisions apply to CNR Police. Clause 9.2 Article 9 does not extend to quasi criminal and/or criminal investigations carried out by any police force, in other words, Clause 9.2 does not prevent the CNR Police from investigating crimes or suspected crimes.
The Board would like to point out that as there is no Clause covering the activities of CNR Police in the Collective Agreement, the employer retains all its powers except those which are specifically given up under the said Collective Agreement.
It is suggested that in the future when a special agent of the CNR takes a statement from an employee, that before doing so he should give the employee the statutory warning, since a special agent is a person in authority. If the only evidence before this Board was the statement taken by Special Agent Lynch, it may well have been that the decision of the Board in this matter could well have been different.
Mr. Thoms further contended that the decision on Mr. Churchill’s case was not rendered within 21 calendar days of the interview. The Board rejects this contention as the investigation contemplated by Clause 9.2 of Article 9 was held on March 17, 1967, and the decision rendered within 21 days on April 5, 1967.
The final point to be determined is whether the claimant was dismissed for cause. The Board is of the opinion that where the question of the existence of just cause for dismissal is the matter submitted to the Board that apart from express agreement by the parties the Board has no jurisdiction to determine any question except the specific issue submitted, namely the propriety of the dismissal. This precludes the Board from considering any alternate penalty to that of dismissal.
The Board is further of the opinion that under the terms of the Collective Agreement (particularly Article 10) and in view of the nature of the grievance submitted to it that the sole question which the Board has jurisdiction to determine is whether or not the Company had just cause to dismiss the Grievor.
The principle is stated by Laidlaw J.A. of the Ontario Court of Appeal Re: International Nickel Company of Canada and International Union of Mine, Mill and Smelter Workers (1959) 19 D.L.R. (2n) p. 380, when, after stating what was in his view the proper jurisdiction of the Board, said at page 384:
It appears to me that what the Board did was to decide whether or not this employee should be dismissed in the circumstances; it did not decide whether or not there was just cause for his dismissal. The matters considered and determined by the Board were beyond its jurisdiction. It was not the function of the Board to determine whether or not the Company acted reasonably or in the proper exercise of its discretion in discharging the employee or to determine that the Company should not have discharged him. The Board not only exceeded its power but it omitted to clearly determine the real issues before it. The award cannot be regarded as a proper determination of the issues as clearly defined by the parties in evidence. It is in effect a determination that punishment by suspension was appropriate and sufficient for his last offence. I cannot sever that part of the decision of the Board from the finding of the Board which expressly approved of the action of the superior officer of the employee in discharging the employee.
A review and consideration of the authorities indicate that the distinction between cases involving dismissal and those of other disciplinary action may find its basis in the fact that in Common Law the right of an employer to dismiss for cause has always been recognized. There was, however, no Common Law right of an employer to discipline an employee by suspension or loss of pay or any of the other practices which are now widely established through collective agreements.
The evidence clearly indicates that Mr. Churchill, the Grievor herein, altered official delivery or teamster’s receipt without the permission of his superior. Although there are suspicious circumstances in this case there is no causal connection linking Mr. Churchill’s altering of the said receipt with the finding of some of the missing goods on the Southside Road.
If the Board had jurisdiction, which it has not for reasons outlined above, it would suspend the Grievor herein for a lengthy period of time for his breach of contract and would take into consideration the Grievor’s age and his lengthy service. The Board suggests that the Company should review its decision and in the interest of good industrial relations mitigate or vary the disciplinary measures taken against the Grievor herein. It must, however, be pointed out that the suggestion contained in this paragraph is in no way binding upon the Company.
The Board finds that the altering of an official delivery or teamster’s receipt is a serious matter and is a dismissable offence.
The appeal of the Union on behalf of Mr. Frank Churchill is dismissed on the grounds that the Company had just cause for his dismissal.
I wish to commend the representatives for the Union and 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 7th day of November, A.D., 1967.
Charles O’Connell, Q.C.
COMMENTARY: At the hearings the Arbitrator had asked the parties if they would give him the authority to amend the discipline if he so saw fit. Such agreement was not forthcoming and the Arbitrator was limited to finding whether or not the employee was disciplined for cause and whether the Agreement had been violated. The Arbitrator had found that the provisions of the Agreement had been lived up to by the Company and that the employee was guilty of s dismissable offence and had been discharged for cause.