AD HOC 383:

AWARD

This matter involves three grievances before the Arbitrator. The Union’s statement of issue in respect of the first matter is as follows:

DISPUTE:

The one (1) month suspension of Obico linehaul employee, Len Handy, for the July 23, 1993 incident involving the fire on unit # 7782.

UNION’S STATEMENT OF ISSUE:

On July 23, 1993, Mr. Handy was driving his regularly assigned route from Long Lac, Ontario to the Company’s Obico Terminal.

Approximately 85 kilometres from Long Lac, Mr. Handy noticed that the rear trailer appeared to be on fire. He promptly stopped his tractor trailer, detached the rear trailer from the forward trailer, and attempted to extinguish the fire. He was unsuccessful.

As a consequence of this incident, Mr. Handy was suspended for one (1) month.

The Company contends that the incident was a consequence of Mr. Handy’s negligent performance of his duties, and therefore was properly subject to discipline.

The Union contends that the incident was an unforeseeable accident and was not a result of Mr. Handy’s negligence. Thus the imposition of the one (1) month suspension was unwarranted.

Finally, the Union contends that even if there were grounds for discipline, the penalty imposed was too severe in light of all the circumstances including Mr. Handy’s long service to the Company.

The Union requests that Mr. Handy be fully compensated for all lost benefits and wages, without loss of seniority.

The Company denied the Union’s request.

The position advanced by the Union is that there was no just cause for the assessment of discipline. Counsel for the Union submits that the circumstances of the fire in the trailer unit being hauled by Mr. Handy on July 23, 1993 are consistent with the air lines of the brake system having been extended or constricted by virtue of a breakage of a bracket which caused an air tank to break free on one of the two trailers he was pulling. The Arbitrator is satisfied, having regard to the evidence adduced by the Company, that, on the balance of probabilities, the defect which caused the fire in fact related to a full application of the braking system, and not a partial application, as reflected by the fact that the air hose was observed to be broken upon a subsequent inspection.

There are, however, mitigating factors in the facts as disclosed. Firstly, it is not disputed that the grievor did not hear any warning buzzer or see any signal light in the cab which would have alerted him to the problem. Secondly, the incident occurred after dark, when it would have been difficult, if not impossible, for Mr. Handy to observe smoke from the wheels in question. Lastly, the loss of the trailer ) and its contents was, in part, a result of circumstances beyond Mr. Handy’s control , as he was in a remote location out of the range of the services of any local fire department.

Mr. Handy is an employee of thirty-four years’ service. Prior to 1992 he had received only minor discipline from the Company and had performed his driving duties in a manner satisfactory to his employer. While his record deteriorated somewhat commencing in 1992, in relation to his driving performance, it is not clear to the Arbitrator that a one month suspension without pay was an appropriate disciplinary response in the case at hand, having particular regard to the mitigating factors reflected above. However, in light of the fact that his disciplinary record stood at fifty demerits, a suspension of some duration was not inappropriate. In the Arbitrator’s view a five-day suspension would have served to put the grievor on notice as to the need to be more vigilant in respect of the possible braking of his equipment so as to avoid the risk of damage of the kind sustained on July 23, 1993, which was found by the accident committee to have been a preventable accident.

The Arbitrator therefore directs that the one month suspension assessed against the grievor be reduced to a five day suspension, with the grievor to be compensated for all wages and benefits lost.

The second grievance before the Arbitrator is based upon an incident in November of 1993 described in the Union’s statement of issue as follows:

DISPUTE:

The one (1) week suspension of Obico linehaul employee Len Handy for the November 1993 incident involving the blow-out of two tires.

UNION’S STATEMENT OF ISSUE:

On or around November 25, 1993, Mr. Handy was driving his regularly assigned route from Long Lac, Ontario to the Company’s Obico Terminal. While enroute, two of Mr. Handy’s tires blew out. He was subsequently held out of service for one week pending an investigation.

The Company contends that Mr. Handy was at fault, and that he was responsible for the blow-out. The week he was held out of service was thus treated as a suspension.

The Union contends that the Company has failed to demonstrate that Mr. Handy was at fault, and thus has failed to establish grounds for the imposition of discipline.

Finally, the Union contends that even if there were grounds for discipline, the penalty imposed was too severe in light of all of the circumstances including Mr. Handy’s long service to the Company.

The Union requests that Mr. Handy be fully compensated for all lost wages and benefits.

The Company denied the Union’s request.

The material before the Arbitrator discloses that two of the grievor’s tires did blow out as described in the above statement. It seems that Mr. Handy was not disciplined for the failure to safeguard his equipment, or the blow-out of the tires. Rather, during the course of the Company’s disciplinary investigation it was disclosed that there were deficiencies in the manner in which Mr. Handy had made entries in his log book. The substance of the dispute before the Arbitrator is the fact that the Company held Mr. Handy out of service for five days pending its decision on discipline. At the conclusion of that time it assessed five demerits against him for having failed to keep proper log book records. With respect to the five days out of service, the Company relies of articles 8.5 and 8.9 of the collective agreement which provide as follows:

8.5 An employee may be held out of service for a period of not more than five (5) days for infractions of a serious nature. If no cause for discipline or discharge exists, the employee shall be reimbursed for loss of pay.

8.9 If, in the final decision, the charges against an employee are not sustained, his/her record shall be cleared of the charges; if suspended or dismissed, he/she shall be returned to his/her former position and reimbursed for wages lost, less any earnings derived from outside employment during the period so compensated; if the investigation was away from home, he/she shall be reimbursed for reasonable travel expenses upon presenting receipts.

The Arbitrator cannot sustain the position of the Company with respect to the application of article 8 in the case at hand. It is common ground that the grievor was “charged” with having carelessly caused the blow-out of his tires. That charge was not sustained as a result of the disciplinary investigation. Even if it could be said that the Company was entitled to deal with the issue of the grievor’s faulty record keeping, which arose incidentally during the course of the investigation, without the formality of a further notice to him and a separate investigation, (a matter upon which I make no comment) I am not satisfied that the minor error in record keeping would constitute an infraction “of a serious nature” within the contemplation of article 8.5 so as to justify his being held out of service, on that account, for five days. It is common ground that the five demerits assessed against Mr. Handy were not grieved.

In the result, the Arbitrator accepts the position of the Union that the holding out of service of Mr. Handy for five days, without subsequent compensation to him when he was cleared of the charges relating to the blow-out of his tires, was in violation of the intention of the collective agreement. The grievor shall therefore be compensated for all wages and benefits lost and the time held out of service shall not be considered to be part of his disciplinary record.

The third issue relates to eighty demerits assessed as a result of a jack-knifing incident. The dispute and Union’s statement of issue is as follows:

DISPUTE:

The imposition of eighty (80) demerits on December 20, 1993, to Obico linehaul employee Len Handy for a motor vehicle accident on December 11, 1993, and his subsequent dismissal for accumulation of demerits.

UNION’S STATEMENT OF ISSUE:

On December 11, 1993, Mr. Handy was driving his regularly assigned route from Long Lac, Ontario to the Company’s Obico Terminal.

While enroute, Mr. Handy was involved in a single vehicle accident, and was subsequently held out of service pending an investigation. He was assessed eighty (80) demerits for the incident and was thereby dismissed from employment.

The Company contends that Mr. Handy was driving too quickly for the road conditions, and thus that the accident was preventable. The Company contends that in light of Mr. Handy’s driving record that his discharge was warranted.

The Union contends that there were significant irregularities with the investigative procedure. The consequence of which was the Company’s violation of article 8 of the collective agreement. The discipline assessed is thus null and void.

The Union further contends that the Company has failed to demonstrate that the accident was in fact preventable, and thus has failed to establish any grounds for the imposition of discipline.

The Union requests that Mr. Handy be reinstated immediately, with no loss of seniority, and that he be fully compensated for all lost wages and benefits.

The Arbitrator is satisfied that in the case at hand there was no violation of article 8 of the collective agreement by the Company. Mr. Handy came to the disciplinary investigation without a written notice, upon the agreement of his bargaining agent, and was shown all documents which were relied upon in its decision. No copies of the documents were requested by Mr. Handy or by his Union representatives. There is therefore no violation of articles 8.1 or 8.8 of the collective agreement disclosed.

The Arbitrator is satisfied, on the basis of the material filed, that Mr. Handy was responsible for the accident of December 11, 1993. I must, however, agree with the Union that the outright discharge of Mr. Handy, after thirty-four years’ service, on the basis of that incident, without any apparent consideration of the assignment of alternative employment to Mr. Handy is an excessive measure of discipline in the circumstances, and should have been seen to be so by the Company at the time. However, I am also of the view that the Company is correct in its judgement that the grievor’s overall driving record, as reflected in a number of incidents in the period 1992-1993, justifies its view that he should no longer be assigned to vehicle driving duties. It seems to the Arbitrator, however, that in light of the grievor’s age, being only a few years from retirement, and the quality and length of his service to the Company, he should have been transferred to a warehouse position, at least pending the outcome of this grievance.

The Arbitrator therefore directs that the grievor be reinstated into employment, to a suitable position in warehouse service to be determined by the Company after consultation with the Union, subject to the providing of appropriate training to Mr. Handy. The grievor shall be compensated for all wages and benefits lost, and shall return to his employment without loss of seniority, subject only to the restriction of his employment to warehouse or other non-driving duties. I retain jurisdiction in the event of any dispute between the parties having regard to the interpretation or implementation of this award.

Dated at Montreal, this 11th day of August, 1994

(signed) MICHEL G. PICHER

ARBITRATOR