AH – 467

IN THE MATTER OF AN ARBITRATION

BETWEEN

ST. LAWRENCE & HUDSON RAILWAY COMPANY

(the “Company”)

AND

CANADIAN COUNCIL OF RAILWAY OPERATING UNIONS
(UNITED TRANSPORTATION UNION)

(the “Council”)

RE: GRIEVANCE OF N. DENEAULT

SOLE ARBITRATOR: Michel G. Picher

APPEARING FOR THE COUNCIL:

Donald A. Warren – General Chairperson, Scarborough

David A. Colasimone – Vice-General Chairperson, Capreol

Ray Gallop – General Secretary, GO-153, Scarborough

Daniel Généreux – Vice-General Chairperson, Oka

Bruce Hiller – Local Chairman, Local 416, Oshawa

APPEARING FOR THE COMPANY:

George Chehowy – Manager, Labour Relations, Toronto

Jim Blotsky – Manager, Operations, Quebec

A hearing in this matter was held in Toronto on Wednesday, 22 September 1999

AWARD OF THE ARBITRATOR

This arbitration concerns the discipline assessed to Mr. N. Deneault of Montreal. The nature of the conflict between the parties is reflected in the Dispute and Joint Statement of Issue filed at the hearing which reads as follows:

DISPUTE:

Mr. N. Deneault of Montreal, Quebec, was issued thirty (30) demerit marks as a result of service problems experienced at the Lafarge Cement plant in St. Constant, Quebec, between March 1 and August 21, 1996.

JOINT STATEMENT OF ISSUE:

Mr. N. Deneault was issued 30 demerit marks by Form 104. The discipline was issued after the Company conducted an investigation into complaints from Lafarge Cement Inc.

The Union further contends that his seniority rights to work as a conductor on the NJ Roadswitcher were restricted. This restriction was not noted on the Form 104.

In view of this, the Union contests the quantum of discipline, thirty (30) demerits, as being excessive.

Additionally, the Union requests that Mr. N. Deneault be reimbursed for loss of earnings suffered as a result of his restricted seniority rights.

The Company declined the request.

FOR THE COUNCIL: FOR THE COMPANY:

(signed) D. A. WARREN (signed) G. CHEHOWY

GENERAL CHAIRPERSON FOR: DISTRICT GENERAL MANAGER

The evidence before the Arbitrator establishes that Mr. Deneault has worked as the Conductor on the NJ roadswitcher which services the Lafarge Cement plant at St. Constant, Quebec. For many years he did the work as the employee of a predecessor railroad until the subdivision, which runs between Rousses Pointe, New York and Delson was taken over by the Company. With the acquisition of the Delaware and Hudson Railway in or about 1989, the Napierville Junction Railway became the property of the Company. When the Company’s roads were integrated with the NJR the grievor was provided an August 1, 1993 seniority date, but retained preferential rights of employment on assignments on the former NJR trackage, including the Lacolle Subdivision where the Lafarge Plant is located.

On August 12, 1996 the general manager of the Lafarge Plant, Mr. S. Faucher, sent a letter of complaint to Customer Services Representative V. Dominico complaining of the quality of service being provided by the Company to the St. Constant plant. The letter included two appended memoranda which cited a number of specific dates when inadequate service was provided for a variety of reasons. It does not appear disputed that the concerns of the customer were two-fold: errors committed by the Winnipeg Transportation Service Centre (TSC) as well as errors or delays in service occasioned by Conductor Deneault. The first memorandum concluded with the following statement by Lafarge Cement Supervisor Serge Branchaud:

Conclusion

As CPR or NJR were never able to solve our mutual problem regarding Mr. Denaud (sic), I see no other alternative than to require from CP that he be forbidden to come inside our plant to perform daily switches.

This is a drastic move, but, unfortunately, it is the only way to settle this situation once and for all. We are a multi-million dollar account to CPR and we do not believe that this matter has been taken care of adequately, therefore, affecting customer service. Lafarge Canada Inc. has been more than patient in all this matter.

The Company conducted investigations of all three members of the grievor’s crew, with Mr. Deneault being interviewed on August 26, 1996. Following the investigation, based on the record before it and the complaint of the customer the Company assessed thirty demerits against Conductor Deneault, with no discipline being assessed against the other two members of his crew. It further appears that initially Mr. Deneault was told that he could not return to work in any capacity in the roadswitcher servicing the Lafarge Plant. Thereafter, on or about September 12, 1996, Supervisor G. Deciccio advised that he had succeed in interceding with Mr. Faucher to obtain permission for Mr. Deneault to work on the NJ roadswitcher in the reduced capacity of brakeperson. It appears that that situation continued until January of 1999, at which time Mr. Deneault resumed the position of conductor, apparently after a change of supervision in the Lafarge Plant.

The position of the Council is, in effect, that the grievor was subjected to double jeopardy by the imposition of thirty demerits coupled with an effective demotion to brakeperson which reduced his earnings by an amount of approximately $21.30 per day. It maintains that he should not have suffered a reduction in wages and that the grievor should be compensated accordingly. Its representative also notes that on a number of the specific occasions of complaint raised in the letter of Lafarge Canada Inc. dated August 12, 1996 Mr. Deneault was in fact not at work.

The Company stresses that, as itemized in the memoranda of the customer, in March and April of 1996 complaints were made with respect to the quality of service and Company supervisors, including Mr. J.H. Blotsky and Manager G. Deciccio spent time either speaking with the crew or riding with them in an attempt to sensitize them to the customer’s concerns. The Company further stresses that the admittedly hard position taken by the customer was one which was beyond its control, noting that its very contract with Lafarge Canada was in jeopardy if the customer’s wishes were not respected as regards the removal of Mr. Deneault.

Upon a review of the evidence, I am satisfied that the grievor was deserving of a degree of discipline. It is clear that there were errors committed by the TSC in Winnipeg in the compiling of switching lists and instructions to the crew for the spotting and switching of cars at the Canada Lafarge Plant. As the Company’s representative submits, however, errors of that kind are not uncommon, and it falls to the conductor of a roadswitcher to identify and adjust for such errors insofar as possible, to better service the customer. I am satisfied that to some degree Mr. Deneault was deficient in that regard.

In my view, however, some punishment was visited upon Mr. Deneault for the shortcomings of the Company itself in the manner in which the Lafarge Plant is serviced. It does not appear disputed that the trackage available at the Plant is extremely restricted, making the switching and spotting of cars more difficult. It is acknowledged that Mr. Deneault has demonstrated a degree of efficiency in that demanding assignment not exhibited by others to date. In the result, I am satisfied that there should be an equal sharing of responsibility for the conditions which led to the customer’s complaints, as between the Company and Mr. Deneault. In the circumstances I am satisfied that the assessment of twenty demerits would be more appropriate, and although it is now academic, the grievor’s record should nevertheless be adjusted accordingly. Further, I am satisfied that Mr. Deneault should be compensated for one-half of the loss of his wages and benefits suffered by reason of his lengthy removal from his conductor’s duties, as an equitable adjustment for the shared responsibility discussed above.

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor’s record be amended to reflect the assessment of twenty demerits for errors in service to Canada Lafarge Inc. attributable to Mr. Deneault, and that he be compensated for one-half the wages and benefits lost by reason of his removal from conductor’s work. I retain jurisdiction in the event of any dispute between the parties regarding the interpretation or implementation of this award.

Dated at Toronto, this 27th day of September 1999

(signed) MICHEL G. PICHER

ARBITRATOR