IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
(the "Company")
- and -
UNITED TRANSPORTATION UNION (the "Union")
GRIEVANCE RE DISCHARGE OF CONDUCTOR L.S. HINDLE OF KAMLOOPS
ARBITRATOR: Michel g. Picher
APPEARING FOR
THE COMPANY: R. MacDougall - Student at Law
G. C. Blundell - Manager Labour Relations,
Edmonton, Alta.
B. Laidlaw - Labour Relations Officer
APPEARING FOR
THE UNION: D.W. Ellickson - Counsel, Toronto
J.W. Armstrong - General Chairperson, Edmonton
Mel G. Eldridge - Vice-General Chairperson
D. Gagnon - Secretary
K. Armstrong
Larry Hindle - Grievor, Kamloops
A hearing in this matter was held in Edmonton on October 1, 1994.
The facts giving rise to the issues are summarized in a joint statement of issue filed at the hearing, which reads as follows:
Dispute
Appeal of the thirty (30) demerits assessed Conductor L.S. Hindle for poor work record from June 20 - July 10, 1990 and for being absent without leave which resulted in his discharge for accumulation of demerits effective July 31, 1990.
Joint Statement of Issue
On July 24, 1990 the Company conducted a formal investigation into Mr. Hindle’s work record from June 20 - July 10, 1990. The Company records show that he missed two calls; he booked off twice, once for one day and the second time for six days; and he booked unfit twice covering one day each. He was assessed 30 demerits which brought his total discipline to 80 demerits and one Written Reprimand resulting in discharge.
The Union appealed the thirty (30) demerits and resulting discharge on the grounds that it was unwarranted or excessive in all the circumstances and requested that Mr. Hindle be reinstated and made whole in all respects.
The Company denied the Union’s request.
The material before the Arbitrator establishes that, having an extremely negative prior disciplinary record in respect of time keeping, Mr. Hindle again failed in that regard during the period from June 20 to July 10, 1990, as alleged by the Company . On the face of the record, the assessment of 30 demerits and his termination would be appropriate, save for the consideration of certain mitigating factors.
The Union has placed before the arbitrator evidence establishing that at or about the time of discharge, and in the years prior, Mr. Hindle suffered from severe asthma and allergies, largely diet related, which contributed to his poor timekeeping. A letter from his physician, Dr. Ben Anders, filed in evidence before the arbitrator, confirms that beginning in the late fall of 1990 certain dietary changes made a substantial improvement in the grievor’s ability to deal with his allergy-based problems. He has, since that time, been assiduous in his attendance at work, as is indicated in a letter provided by a subsequent employer. In the circumstances, it appears to the arbitrator that this is an appropriate case for reinstatement on conditions fashioned to protect the interests of both the Company and the grievor.
For the foregoing reasons, the grievance shall be reinstated into his employment forthwith, without compensation and without loss of seniority. His disciplinary record shallstand at 50 demerit and his reinstatement shall be conditional upon Mr. Hindle maintaining, for a period of not less than two years, a record of attendance and response to calls equal to the average of the employees in his classification at his terminal, calculated on the basis of any six months. Failure to meet the condition so described shall render Mr. Hindle liable to immediate discharge. The arbitrator retains jurisdiction in the event of any dispute between the parties having regard to the interpretation or implementation of this award.
DATED at Toronto this 6th day of October, 1994.
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Michel G. Picher - Arbitrator