AH – 511

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

CANADIAN COUNCIL OF RAILWAY OPERATING UNIONS
(BROTHERHOOD OF LOCOMOTIVE ENGINEERS)

(the "Council")

RE GRIEVANCE OF LOCOMOTIVE ENGINEER R. E. LEE

Sole Arbitrator:                                                   Michel G. Picher

Appearing For The Company:

J. A. Coleman                                        – Counsel, Montreal

G. Séguin                                               – General Supervisor

S. Michaud                                            – Business Partner

R. Reny                                                  – Human Resources Associate

R. Eisenman                                          – Terminal Trasnportation Supervisor

Appearing For The Council:

B. W. McHolm                                      – Legal Counsel, Saskatoon

D. J. Shewchuk                                     – General Chairman, Saskatoon

D. E. Brummund                                   – Sr. Vice-General Chairman

B. Willows                                             – Vice-General Chairman

G. A. Broda                                           – General Secretary/Treasurer

R. Dyon                                                 – General Chairperson, Montreal

B. J. Henry                                             – General Chairperson – UTU, Edmonton

B. R. Boechler                                       – Vice-General Chairperson – UTU, Edmonton

Robt. E. Lee                                           – Grievor

A hearing in this matter was held in Montreal on Friday, March 16, 2001.

AWARD

This arbitration concerns the grievance of Locomotive Engineer Robert E. Lee, of the Greater Vancouver Terminal, against the assessment of thirty demerits for the inappropriate submission of a time claim and his alleged failure to comply with Company instructions with respect to the procedure for processing a doubtful claim. In fact the initial position of the Company was that the actions of the grievor were sufficient to merit his discharge. Following discussions between the parties, that penalty was reduced to thirty demerits and the matter was progressed on an expedited basis to ad hoc arbitration for final resolution. The Council takes the position that the grievor did not knowingly seek to submit a false or unmeritorious time claim, and that in fact he proceeded on the basis of his own honest belief that he was entitled to the payment which he claimed. The Council seeks the removal of the discipline assessed against the grievor, and his compensation for the two week period for which he was held out of service, as well as payment of the $23.00 time claim in question.

As a preliminary matter the Arbitrator cannot sustain the suggestion of the Council that the grievor is entitled to the payment of the $23.00 of his time claim by reason of the fact that the Company acted out of time, in accordance with the provisions of the collective agreement. The Council seeks to rely on articles 69.5 and 91.5 of the collective agreement. Those articles provide as follows:

69.5        Where there is a question of regarding the time or mileage to be paid for, any portion not in dispute will be allowed and the locomotive engineer will be promptly advised regarding the portion which is not allowed, together with reason why not allowed. In cases where all time or mileage claimed on any time return is disallowed such time return will be promptly returned to the locomotive engineer through the proper officer of the Company.

91.5        In the application of paragraph 91.1 of this article to a grievance concerning an alleged violation which involves a disputed time claim, if a decision is not rendered by the appropriate officer of the Company within the time limits specified, such time claim will be paid. Payment of time claims in such circumstances will not constitute a precedent or waiver of the contentions of the Company in that case or in respect of other similar claims.

As is evident from the foregoing provisions, the collective agreement contemplates that an employee is entitled to grieve the cutting of his or her time claim. It is only the failure of the Company to properly respond to the grievance against the disallowance of the time claim which invokes the right to payment by default. In the instant case the grievor’s claim for payment was rejected by notice from the Crew Assignment and Timekeeping System (CATS) broadcast facility on February 13, 2001. There is no documentation or other material before the Arbitrator to suggest that a specific grievance was filed by Mr. Lee with respect to the cutting of his time claim, nor obviously any failure on the part of the Company in making a timely reply to any such grievance. The circumstances of the grievor are to be distinguished from those of the conductor with whom he worked, Mr. Less Einfeld, who may have been entitled to the payment of his claim under the terms of collective agreement 4.3 between the Company and the United Transportation Union, as appears to result where the employer fails to act within sixty days of the submission of the claim.

The real substance of the dispute concerns the assessment of thirty demerits against Mr. Lee. The facts in relation to that issue are not in dispute. On November 2, 2000 Mr. Lee was assigned with Yard Conductor Einfeld to the 07:55 Extra Thornton Yard Transfer. The assignment involved a transfer movement from Thornton Yard to Vancouver Main Yard. The position of the Company, which the Arbitrator accepts upon a review of the material filed, is that Vancouver Main Yard includes the CN Main Yard, Glen Yard and the VIA coach yard.

It is common ground that after spotting cars in the Glen Yard portion of Vancouver Main Yard Mr. Lee and his conductor were instructed to deliver their locomotive to the VIA coach yard, which is within Vancouver Main Yard and adjacent to Glen Yard, within a distance of less than one mile from CN Junction, described as the end of the main track.

At the conclusion of their tour of duty Locomotive Engineer Lee entered a time claim for payment on the basis of a two way transfer, rather than a one way transfer. The Company takes the position that the assignment of the grievor and his conductor was clearly a one way transfer, and that his claim for payment on the basis of a two way transfer was a deliberate attempt on his part to receive monies to which he was not entitled.

The matter came to the Company’s attention by a rather extraordinary turn of events. It appears that during the course of the assignment Mr. Lee inadvertently engaged his cell phone, which automatically recalled the office of Superintendent J. Vena. In the result, unbeknownst to Mr. Lee and Conductor Einfeld, their conversation was recorded on the telephone voice mail of Superintendent Vena. During that conversation, a tape of which was entered in evidence, and which the Arbitrator is satisfied is reliable and admissible, Mr. Lee is overheard to say:

“… Not as far as I’m concerned. I mean, they’ll say that VIA is part of the Main Yard, but as far as I’m concerned what I’m doing here … for the ticket, say we go down into Main Yard and run this to VIA; I’ll be putting in for a two way transfer because I’ve gone from Thornton Yard to the Main Yard to the VIA Yard. I’ve gone two separate ways and I’ll claim the premium.”

When asked by Yard Conductor Einfeld whether the Company would cut his claim he responded “Well … first of off that’s a trick question, because you get everything. They automatically pay it until the auditors look at it. …” When asked further whether the Company would attempt to cut the ticket later Mr. Lee responded “Don’t know. Don’t care.”

The payment for conductor-only transfer movements in yard service is governed by article 36.4 of the collective agreement. It provides as follows:

36.4        Locomotive Engineers on yard transfers with a yard crew consist of a conductor (yard) only will be compensated the following for successful completion of Conductor (Yard) only transfer movements:

                one way - $13.00

                two way transfer - $23.00

In the application of the foregoing a transfer is defined as handling railway equipment from an originating yard or interchange to the destination yard or interchange. The allowances shall be paid once per shift or tour of duty. The incidental use of another employee to assist a Conductor (Yard) Only transfer will not preclude premium payment under this Clause.

Upon a review of the evidence, the Arbitrator is compelled to agree with the Company’s perception of the grievor’s course of conduct. Firstly, it should be stressed that there is a substantial basis to conclude that as a general matter employees do not, and have not, made the claim for a two way transfer asserted by Mr. Lee in the circumstances of this case. As a general rule it has been the practice of the parties to treat the transfer of a movement from one yard to another, as in the instant case from Thornton Yard to Vancouver Main Yard, as a one way transfer. That, moreover, is consistent with a question and answer inserted into the memorandum of agreement of the parties as part of the Conductor/Yard Foreman Only Agreement executed January 15, 1992. Question 20 of that document, cited in a letter of General Chairman M.W. Simpson dated September 5, 2000 addressed to Superintendent Vena, quotes the provision as follows:

Q.20       The Memorandum of Agreement refers to one way or two way transfers, may it be assumed that transfers will not be required to go more than two ways.

A.            Yes. A two way transfer in Greater Vancouver is considered a transfer which proceeds from point “A” to “B” and returns to “A”.

In the Arbitrator’s view, while article 36.4 of collective agreement 4.2 may be said to be less than precise with respect to the definition of a two way transfer, when its language is read in conjunction with the Conductor/Yard Foreman Only Agreement, including the appended questions and answers, there can be little doubt but that a two way transfer is intended, as a general matter, to involve movement from the point of origination to a point of destination and then back to the originating point. The movement executed by Locomotive Engineer Lee on November 2, 2000 was clearly not within that category of operation.

During the course of his disciplinary investigation the grievor sought to rely on the content of Company General Notice No. 066, dated April 15, 1992. It reads as follows:

For purposes of this agreement, a tour of duty from Thornton to Sapperton, then to Lynn Creek is considered a two way transfer. Any portion of the tour of duty in transfer service by taxi is not considered part of the transfer for Yard Foreman/Conductor only payment purposes. Railway equipment (on wheels) must be handled to be eligible for additional payment.

The Arbitrator is satisfied that the foregoing provision is a one time exception specifically allowed for the singular circumstance of movements from Thornton to Sapperton then onward to Lynn Creek, for reasons best appreciated by the parties. It can only be understood as a specific exception to the more general understanding of a two way transfer reflected in the Q&A portion of the memorandum referred to above. Nor is the Arbitrator persuaded by the suggestion of the Council that Mr. Simpson’s letter generally asserted an interpretation of the collective agreement which would justify the treatment of the grievor as having completed a two way transfer. At most what the letter appears to do is to concern itself with ensuring that an engineer not be required to perform more than one two way transfer during a tour of duty, and affirming that a two way transfer is payable specifically when equipment is handled from Thornton Yard to Sapperton, then onwards to North Vancouver.

Most critically to the merits of this grievance, it appears clear to the Arbitrator that Mr. Lee fully understood that his claim was one which was contrary to the Company’s view. That is obvious from his comment to his conductor “… they’ll say that VIA is part of the Main Yard …”. The evidence before the Arbitrator establishes that when an employee is in doubt about the nature of a claim which he or she is making, the proper course to follow is to enter stand alone claim code “IP”, which signifies “interpretation process”, when the claim is submitted through the computer system. That entry ensures that the claim is routed for interpretation and response within the CATS system. A negative response gives the employee notice of the interpretation, subject of course to the individual’s right to proceed with a grievance. It appears that a negative CATS interpretation is deemed to constitute handling at step one of the grievance procedure, and the matter then proceeds for further review at step two. There is no dispute that the grievor was advised of the IP process, as were all employees, by personal receipt of a letter dated June 5, 1998 from the Company’s Vice-President of Transportation.

The Arbitrator is not impressed with the argument of the Council, to the effect that in the circumstances disclosed the grievor was not in any doubt, and therefore had no need to have recourse to the IP process. To sustain that argument would be tantamount to condoning sharp practice of the most doubtful kind. The grievor knew, or reasonably should have known, that if his claim was categorically opposed to what he knew to be the Company’s position, it was not appropriate to merely submit it on the chance that it might not be caught by the Company’s auditors. Such an attitude in the submission of time claims by employees whose work and claims for payment are not directly supervised is cause for concern. At the risk of oversimplification, the grievor’s attitude appears to have been to simply claim a payment which he knew the Company believed he was not entitled to, with total indifference as to whether the claim might or might not be allowed by a random audit, and obviously without any intention of having the matter clarified either through discussion with the Company or through the grievance procedure, should the claim ultimately be disallowed. For reasons which he best appreciates, Mr. Lee was quite prepared to make a highly irregular claim, knowing the Company would not agree with it, on the chance that it might not get detected. The Company is entitled to a higher degree of integrity than was demonstrated by Mr. Lee on the occasion in question.

Although the grievor is a long service employee with a positive disciplinary record, the facts disclosed, and the posture assumed by the grievor in the face of the discovery of his actions, leave the Arbitrator little basis to mitigate the penalty assessed. While thirty demerits, and two weeks held out of service, is admittedly a severe measure of discipline, there is reason to believe that it is amply justified as a means of bringing home to Mr. Lee that it is wrong to make a time claim which he knows, or reasonably should know, would depart from the general understanding with respect to two way transfers, and would not be allowed by the Company. An employee seeking to advance his or her own interpretation in the face of such a circumstance is clearly under an obligation to disclose their position and, if necessary, to seek its vindication through the open processes of the grievance procedure.

For all of the foregoing reasons the grievance must be dismissed.

Dated at Toronto, this 12th day of April 2001

(signed) MICHEL G. PICHER

ARBITRATOR