BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

R. P. Egan – Assistant Supervisor, Labour Relations, IFS

H. B. Butterworth – Assistant Supervisor, Labour Relations, IFS

J. J. Worrall – Assistant Supervisor, Labour Relations, IFS

L. G. Winslow – Labour Relations Officer, Montreal

And on behalf of the Union:

A. G. Cunningham – Representative

John E. Platt – National President

A hearing in this matter was held in Toronto on October 26, 1990.

The joint Dispute and Joint Statement of Issue filed in this matter is as follows:

The first issue advanced by the Union is the alleged failure of the Company to comply with the requirements of article 12.4 of the collective agreement. At the hearing the Union further submitted that the Company’s actions were in contravention of article 12.3.

The following provisions are pertinent to the resolution of this aspect of this dispute:

The facts pertinent to the Union’s procedural objection are not in dispute. On March 19, 1989 the grievor, Signal and Communication Maintainer J. H. Shields, was involved in locating and effecting repairs to damaged track on the Parry Sound subdivision. Following a long tour of duty he returned homeward, travelling south across the subdivision on a track motor car. It is common ground that he exceeded the limits of a track occupancy permit and proceeded southward without being in possession of a proper train line-up. After proceeding some six and a half miles beyond the southern limit of the track occupancy permit the grievor’s motor car collided head-on with oncoming train 403, resulting in the demolition of the vehicle. Mr. Shields, who jumped clear, was not injured in the accident. There is no dispute on the part of the Union that the grievor was deserving of some discipline, subject to the procedural objections raised, but it argues that the assessment of 30 demerits was excessive in the circumstances.

The Company conducted an investigation pursuant to article 12. A statement was taken from the grievor on March 19, 1989. It is not disputed that that investigation clearly established the actions of Mr. Shields, described above, in respect of which some discipline would be appropriate. During the course of the grievor’s investigation it was revealed that the track occupancy permit which he utilized was taken out by another employee, Mr. J. Tureene. It was further disclosed that earlier during his tour of duty Mr. Shields had travelled northward from Parry Sound along with track maintenance foreman R.A. Watkinson. As the Company had concerns that the northward movement of the grievor as well as these two employees may have been in contravention of rules, it conducted further investigations, obtaining statements from Mr. Tureene and Mr. Watkinson on April 11, 1989. Subsequently, a notice of discipline dated May 5, 1989 was delivered to the grievor, being received by him on May 8, 1989.

It is common ground that neither the grievor nor his Union representatives were advised of the subsequent statements taken from Mr. Tureene and Mr. Watkinson, and that copies of those statements were not provided to Mr. Shields, although they were requested by the Union. The position of the Company is that since the statements of Mr. Tureene and Mr. Watkinson added nothing adverse to the grievor’s interests beyond what was registered in his own statement of March 22, 1989, Mr. Shields was not entitled to receive copies of it. At the arbitration hearing the Union submitted that the failure of the Company either to allow the grievor or his Union representative to be present during the examination of Mr. Tureene and Mr. Watkinson, or to be given the right to read their evidence and offer rebuttal, was in violation of article 12.3 of the collective agreement.

In the Arbitrator’s view, as a matter of principle, there is greater merit to the position advanced by the Union. By taking the position which it does in respect of the application of article 12.4, namely that the notice sent to Mr. Shields on May 5, 1989 was within 28 days of the completion of the investigation, the Company is implicitly accepting that the investigation which applied to Mr. Shields included the gathering of the statements of Mr. Tureene and Mr. Watkinson on April 11, 1989. If it were otherwise, and the Company viewed the investigation as having been completed on March 22, 1989, the notice would plainly be out of time. In these circumstances, if the matter were properly before me, I would be compelled to conclude that the Company did fail to observe the requirements of article 12.3 by denying to the grievor access to the statements of Mr. Tureene and Mr. Watkinson. It is clear that at the time their statements were taken they were being examined, at least in part, in relation to the Company’s investigation of Mr. Shields. Indeed, the Company submits in its own brief that the facts disclosed in the examination of Mr. Tureene and Mr. Watkinson, which lead to their discipline, could have been applied to impose further discipline upon Mr. Shields. I cannot, in these circumstances, conclude that the proceedings were other than the examination of witnesses whose evidence might have a bearing on the grievor’s responsibility. The Company could, if it chose, have concluded the investigation of the grievor as of March 22, 1989 and have imposed discipline upon him within 28 days of the taking of his statement. It chose not to, however, and the inescapable conclusion is that it pursued its investigation in relation to his conduct. Having done so, it could not, thereafter, deny him access to the evidence disclosed in that investigation merely on the basis of its own assertion, which neither the Union nor the grievor could test, that the Company was making no use of that evidence against him.

In the circumstances of this case, however, I cannot allow the objection advanced by the Union on the basis of the failure to comply with article 12.3 of the collective agreement. As is apparent from the terms of article 13.4 of the collective agreement the parties have established a particular form of arbitration procedure which, it may be noted, is generally consistent with the practice of the Canadian Railway Office of Arbitration. They have agreed that a joint statement of issue is to be filed, and that that statement must make reference to the specific provision or provisions of the collective agreement which it is alleged has been violated. For reasons which it may best appreciate, the Union has not included an allegation of any violation of article 12.3 as part of the joint statement of the dispute submitted to this Arbitrator. As is apparent from the restrictive terms of article 13.7, I am without jurisdiction to amend or disregard the requirements of article 13.4. In all of the circumstances, therefore, I am compelled on these grounds to dismiss the objection of the Union in respect of the alleged violation of article 12.3 of the collective agreement.

In light of the above findings with respect to the procedure which unfolded, the Arbitrator is likewise unable to conclude that there has been a violation of article 12.4. For the purposes of this aspect of the dispute I must agree with the Company that the investigation in respect of Mr. Shields was not terminated for the purposes of article 12.4 until the last statement in connection with the investigation was taken. That date, as revealed in the facts, was April 11 when the Company obtained statements from Mr. Tureene and Mr. Watkinson. It is from that time that the investigation of Mr. Shields was completed and that the 28 day period found in article 12.4 began to run. The notice to Mr. Shields dated May 5 and delivered on May 8, 1989 was, therefore, in compliance with the requirements of that article.

The only issue remaining is the appropriate measure of discipline. In the Arbitrator’s view disregard of rules and instructions governing track occupancy must be considered as falling among the most serious of disciplinary infractions. In the instant case, the grievor knew, or reasonably should have known, that he was proceeding in prohibited territory, contrary to the rules, in a manner which placed both Company equipment and his own personal safety in great jeopardy. The fact that he had the good fortune to escape serious personal injury, and that the damages were limited to the demolishing of the track motor car, does little to mitigate the gravity of his error. In light of the prior treatment of similar cases (See CROA 1638), 1 cannot conclude that the assessment of 30 demerits was inappropriate in the circumstances.

For the foregoing reasons the grievance must be dismissed. t

DATED AT TORONTO, this 29th day of October, 1990.