IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
UNITED TRANSPORTATION UNION
RE BOOKING REST – W. McCRATE
Sole Arbitrator: Michel G. Picher
Appearing For The Company:
Barry Hogan – Director, Workforce Strategies
Richard Chorkawy – Senior Manager Commuter Services
Appearing For The Union:
Rex Beatty – General Chairperson, UTU East
Gary Anderson – Vice-General Chairperson, UTU East
Jim Robbins – Vice-General Chairperson, UTU East
Guy Scarrow – Vice-President, UTU Canada
Glen Gower – Local Chairman, UTU, Toronto
Tom Redgrift – Local Chairperson, UTU, London
Bill Namink – Local Chairperson, UTU, Sarnia
Mike Wade – Local President, London, UTU
Rob Terry – Local Chairperson, Toronto, BLE
Walter McCrate – Grievor
A hearing in this matter was held in Toronto on Wednesday, May 7, 2003
This arbitration concerns a grievance against the assessment of thirty demerits for the alleged failure of Conductor Walter McCrate to maintain sufficient attendance at work in his position as a conductor in Go Train commuter service in Toronto. The background to the grievance is reflected in the Dispute and Joint Statement of Issue filed with the Arbitrator at the hearing, which read as follows:
30 Demerits assessed Conductor Walter McCrate for failure to meet employment obligations as Conductor in GO Commuter Service.
JOINT STATEMENT OF ISSUE:
Between January 4th and February 7th, 2003 GO Train Conductor W. McCrate exercised his right to book personal rest under the provisions of Article 51.11 of Agreement 4.16.
As a result of booking rest the Company, effective February 11th, 2003, assessed Mr. McCrate 30 demerits for “Failure to meet work obligations while employed as Conductor in GO Commuter Service between January 4 and February 7, 2003”
It is the Union’s position that Mr. McCrate should be exonerated from any wrongdoing for any or all of the following reasons:
1. The discipline was void ab initio as the Company did not conduct a fair and impartial hearing,
2. The discipline was void ab initio as the Company violated Mr. McCrate’s rights as provided for in Article 82 of Agreement 4.16,
3. Mr. McCrate fulfilled his employment obligations consistent with the terms and conditions of the Collective Agreement 4.16.
The Company has declined the Union’s request.
In the event the Arbitrator finds in favour of the Union with respect to items 1 and/or 2 herein, the Company and the Union, as a separate matter, require the Arbitrator to issue a decision regarding the dispute between the parties concerning the application of Article 51.11.
The facts pertinent to the grievance are not in dispute. For a number of years the Company has provided running crews to operate trains in GO commuter service operating into and out of Toronto. Since 1980 the parties have operated under an agreement, Addendum No. 50, generally governing the particular terms of service in GO train assignments. A significant feature of those assignments is the use of split assignments, whereby employees work two “split” shifts on a given day, in the early morning and late afternoon, to coincide with the peak hours of commuter passenger traffic. In the result, employees on split assignments, like the grievor, operate for some four to five hours during the morning rush, then have some five to six hours off and return to work for an additional four to five hours in the late afternoon rush hour. It appears to be common ground that that division of labour is essential to the smooth operation of commuter train service, said to handle upwards of 100,000 passengers a day in and out of Toronto.
The material before the Arbitrator confirms that Mr. McCrate has availed himself of the right to book rest under the terms of collective agreement 4.16. That collective agreement, whose terms generally govern employees in freight road and yard service as well as employees in passenger service, contemplates the possibility of an employee booking rest upon going off duty. It is not disputed that Mr. McCrate has made a consistent practice of booking rest for the second half of his split assignment every Friday afternoon, and has done so for a period said to be in excess of a year. To put it simply, while the normal shift schedule contemplates a conductor working two split shifts a day for five days, Monday through Friday, with Saturday and Sunday off, Mr. McCrate has invoked the ability to book rest to, in effect, only work nine of ten scheduled split shifts weekly, systematically declining to work each and every Friday afternoon.
His practice in that regard attracted an initial assessment of discipline which is not the subject of this grievance. It does not appear disputed that approximately one month before the discipline which is the subject of this dispute Mr. McCrate was assessed twenty demerits for the same consistent failure to protect his work assignment on Friday afternoons. The Arbitrator is advised that that discipline has been grieved and remains pending. The instant grievance arises by reason of the Company assessing a further thirty demerits against Mr. McCrate for his failure to protect Friday afternoon work which was part of his normal assignment between January 4 and February 7, 2003.
By the agreement of the parties, two issues have been placed before the Arbitrator. The first concerns the Union’s objection to the effect that the Company violated the grievor’s substantive rights in the manner in which it conducted the disciplinary investigation leading to the assessment of thirty demerits against him. The second issue to be determined, even if the Arbitrator should sustain the Union’s position on the issue of whether the Company conducted a fair and impartial investigation, is a determination of the equally fundamental question as to whether the Company can take measures to deal with an employee, whether by way of discipline or administratively, for rendering himself or herself consistently absent by booking rest.
I turn to consider the preliminary issue of whether the grievor received a fair and impartial investigation. The Union’s objection to the Company’s actions in that regard is two-fold: firstly it maintains that the notice of investigation provided to the grievor was insufficient, and secondly that the actual investigation was prematurely ended by the investigating officer, thereby depriving the employee of the right a fair and impartial investigation, as contemplated under the collective agreement.
Article 82 of the collective agreement governs the investigation process. It provides, in part, as follows:
82.1 Employees will not be disciplined or dismissed until the charges against them have been investigated. Employees may, however, be held off for investigation not exceeding 3 days and will be properly notified, in writing and at least 48 hours in advance, of the charges against them.
82.2 Employees may have an accredited representative to appear with them at investigations, will have the right to hear all of the evidence submitted and will be given an opportunity through the presiding officer to ask questions of witnesses whose evidence may have a bearing on the employee’s responsibility. Questions and answers will be recorded and the employee will be furnished with a copy of the statement taken at the investigation.
The material before the Arbitrator discloses that the grievor was provided written notice to attend at a disciplinary investigation scheduled for 2:00 p.m. on February 11, 2003 in the GO Willow Brook Crew Centre. The notice reads, in part, as follows:
You are required to attend an investigation in order to provide a Formal Employee Statement in connection with alleged failure to meet work obligations while employed as Conductor in GO Commuter Service between January 4 and February 7, 2003.
The Union’s representative submits that the phrase “alleged failure to meet work obligations” is excessively broad, and falls short of the notice requirement whereby employees are to be notified, in writing, “… of the charges against them.”
The Arbitrator must agree. Notice is one of the most essential rights and protections available to an employee facing disciplinary charges. It is, needless to say, important for an employee to know in advance the precise conduct or events which will be the subject of the investigation that may result in his or her discipline. The language of article 82.1 is plainly intended to allow employees the ability to know clearly, forty-eight hours in advance, the specific charges against them. The requirement that the charges be written and that at least two days’ notice be provided gives the affected employee a fair opportunity to think about the events or incident which will be the subject of inquiry, review any pertinent documentation and make inquiries of others who may be material witnesses, if necessary. Obviously, it is essential for the employee to have a clear understanding of the precise nature of the conduct which is alleged if he or she is to have a meaningful opportunity to prepare himself or herself to respond to the investigating officer’s questions and offer any rebuttal, if appropriate. It seems to the Arbitrator self-evident that if, for example, an employee receives a notice to attend at an investigation for something as broad as “… failing to meet your obligations as an employee on the following dates …” he or she is placed in the position of having to determine the nature of the offence alleged by surmise or inference, given that an individual’s employment may involve any number of different “work obligations”. That is plainly not the standard of clear notice intended as part of a fair and impartial proceeding within the meaning of article 82.1 of the collective agreement. With respect, the phrase “… alleged failure to meet work obligations …” could encompass a host of possible infractions ranging from absenteeism to insubordination to the use of alcohol or drugs in the workplace. Nor is it any answer for the Company to assert that the same obscure notice was provided to the grievor with respect to the earlier investigation which led to the assessment of twenty demerits for his alleged abuse of booking rest. Each incident must be dealt with on its own merits, and in each and every case an employee is entitled to know with some clarity and precision the nature of the charge against him or her, as contemplated by article 82.1 of the collective agreement. That standard was not met in the case at hand.
The Union’s objection also concerns the brevity of the investigation itself. The record discloses that at the hearing the fourth question put to Mr. McCrate was: “Were you properly notified of this investigation and are you prepared to proceed?” The grievor responded that he was prepared to proceed under protest on the grounds that the notice violated his rights under article 82 of the collective agreement. Several questions later, the grievor was asked whether he was given forty-eight hours’ advance notice, to which he replied “Yes”. The investigating officer then asked him “… please explain further why you were not properly notified as per article 82.1?” When Mr. McCrate stated that the charges were not specific, the investigating officer stated that the Company had the right to conduct the investigation based on the evidence available, that he would be given the opportunity to offer closing comments and would have the right to appeal any findings through the grievance procedure. He then asked, “Are you now prepared to proceed with this investigation without protest?” When Mr. McCrate responded that he was prepared to proceed, but only under protest, the investigating officer concluded the investigation with the following terse comment: “Mr. McCrate base (sic) on your refusal to proceed with this investigation the statement will now be terminated and a conclusion will be drawn from the evidence presented.”
With respect, the Arbitrator has substantial difficulty understanding the position taken by the investigating officer. Essentially, he appears to have taken the view that if the grievor insisted on protesting the adequacy of the notice provided to him he must effectively forfeit the right to any further investigation. In fact, however, the grievor made it clear that he was prepared to proceed, and that he merely wished to register at the outset that he did reserve the right to object to the adequacy of the notice which he had received. In doing so he was acting in a manner consistent with the recorded jurisprudence of the Canadian Railway Office of Arbitration. The arbitrators of the CROA have repeatedly held in the past that it is in fact incumbent upon a grievor or his or her union officer to raise any procedural objections at the time of a disciplinary investigation, rather than to “lie in the bushes” and raise such objections for the first time only during the grievance procedure and/or at arbitration. Indeed, saying nothing may amount to a waiver of the grievor’s right to object, as was said in CROA 2911:
… It is not disputed that in the case at hand neither the grievor nor his union representative made any clear and formal objection to the lack of meaningful notice at the time of the disciplinary interview. In the circumstances, I am compelled to conclude that by failing to put the Company on notice of its intention to challenge the validity of the proceedings, the Union must now be taken to have waived its right to do so. There is obvious prejudice to the employer if a procedural objection of this kind is first raised at the arbitration stage, months after the assessment of discipline. On that basis the Union’s objection cannot succeed. …
(See CROA 202, 1241, 1557, 1562 and 2911.)
Notwithstanding that the grievor conducted himself in a manner consistent with the jurisprudence, and, if anything, gave the Company fair notice that it would face an objection concerning the adequacy of the written notice provided to him, the investigating officer chose to end the proceedings abruptly, essentially asking no questions of the grievor as to the substance of the allegations against him, or the reasons for his consistent pattern of booking rest on each and every Friday afternoon between January 4 and February 7, 2003.
I am satisfied that the Union’s representative is correct in advancing the summary termination of the investigation process by the investigating officer, without delving into any matters of substance, as constituting a violation of article 82 of the collective agreement. In following the course that he did the investigating officer effectively deprived the employee of being disciplined “until the charges against him against [him] have been investigated.” In the end, there was no investigation of any substance, and the officer’s termination of the proceedings was not justified.
For the foregoing reasons, relating to the insufficiency of the written notice and the fact that no investigation of substance occurred, I am satisfied that the Company’s investigating officer did violate the provisions of article 82 of the collective agreement. In the result, the discipline assessed against the grievor must be found to be null and void. The Arbitrator therefore directs that it be removed from his record forthwith.
I turn now to consider the second issue placed before the Arbitrator by the parties, namely whether the Company is entitled to deal with employees, whether administratively or through the assessment of discipline, for booking rest in a manner which results in their not being in regular attendance at work. In approaching this issue the Union’s representative was unequivocal. In his submission the ability to book rest is unqualified, and the Company cannot question an employee’s reasons for booking rest, or the timing and frequency of such booking. Under questioning by the Arbitrator the Union’s representative held to the position that an employee in Go Train service in Toronto could, for example, choose to work only one or two days out of each week, booking rest for the balance of the time within the limits provided under the collective agreement. He submits that booking rest is an essential protection of employees within the running trades. He notes the distinction established under Addendum No. 50 whereby, unlike employees in road service, conductors in Go Train commuter service stand to lose wages for the period in respect of which they book rest. He argues that the disincentive so fashioned, under article 15 of Addendum No. 50, constitutes the trade-off that an employee faces if he or she chooses to book rest. He submits that beyond that there can be no additional sanction imposed by the Company.
The Company’s representative does not challenge the ability of a conductor to absent himself or herself from a tour of duty, including a split assignment, for booking rest when he or she has a need to do so, as may occur from time to time. He submits that this case is not about that scenario, but rather concerns an employee who, for reasons he best appreciates, systematically refuses to work on Friday afternoon tours of duty, thereby consistently rendering himself absent for ten percent of his scheduled work time. He submits that that rate of deliberate absenteeism does interfere with the Company’s operations and can properly be dealt with through discipline. He states that it is no answer, as the Union’s representative argues, that the Company can call upon the spareboard to bring a relief employee to work in the grievor’s place.
Booking rest is an important right of employees under the collective agreement, and has long been recognized as such by boards of arbitration, as well as by boards of inquiry and royal commissions, such as the Foisy Board of Inquiry into the unfortunate collision at Hinton, Alberta in 1986. (See, e.g., CROA 961, 1193, 1519, 2647, and 3275.)
Under the collective agreement booking rest is dealt with for employees in road and yard service under the provisions of article 51. That article provides, in part, as follows:
51.1 If regularly assigned employees book rest on arrival at the home terminal thereby causing the loss of a trip, payment of a basic day at the minimum rate applicable to the class of service to which assigned will be made (less any amount otherwise earned) for each trip or tour of duty so lost, provided that a relieving employee was required to report for duty within 10 hours from the time the regularly assigned employee booked rest.
51.4 Train service employees who have been on duty 10 hours or more will have the right to book rest en route, if they so desire, in accordance with the provisions of paragraphs 51.4 to 51.10. Train service employees are to be the judges of their own condition.
NOTE 1: En route may also include the initial or final terminal.
NOTE 2: The 10 hours referred to in this Article have been modified for crews operating in extended run territory between terminals listed in Article 51.16.
51.5(a) Not less than 3 hours notification of the desire to book rest will be given to the train dispatcher. Such notification shall include the number of hours rest required.
(b) When proper notification of the desire to book rest has been given, and the train dispatcher orders the discontinuance of all work en route, the train may, at the train service employees’ option, be taken through to the objective terminal or location where relief can be provided.
(c) When proper notification of the desire to book rest is given, the Company will communicate the necessary information, including the discontinuance of work en route when applicable, to any other authority having responsibility over the train’s run, such as the proper supervisory officer at the objective terminal, other train dispatchers, etc.
51.6(a) Train Service employees may book a minimum of 4 and a maximum of 8 hours rest on the road. Rest booked must be in whole hours.
(b) When one member of the train crew books rest en route, all other members of the train crew will be considered as on rest and automatically tied up. In such circumstances, train service employees will not be considered as tied up between terminals and article 22 will not apply.
(c) When the locomotive engineer books rest en route, train service employees will, if they require rest, book rest at the same time. If rest is not required at that time, train service employees will complete the tour of duty.
(d) When rest is booked, the maximum number of hours rest booked by any one member of the train of engine crew shall be the number of hours rest for all other members of the train and engine crew.
(e) Except as provided by sub-paragraph 51.8(b), when rest is booked, the rest period shall commence at the time all members of the train and engine crew go off duty.
(f) All time off duty for rest shall be deducted in computing time for the continuous trip.
At Terminals – Road Service
51.11 Employees will have the right, upon going off duty, to take rest as follows:
(a) at the home terminal – 6 hours minimum
– 24 hours maximum
(b) at the away-from-home terminal – 1 hour minimum
– 8 hours maximum
51.12 Employees will not be required to report for duty until they have had 8 hours’ rest if desired. Such rest must be booked on completion of a shift or tour of duty and in no case shall be less than 3 hours nor more than 14 hours excluding the call time. The period of rest booked shall be in even hours and once booked may not be changed or cancelled.
51.13 Employees may book rest 11 hours on duty and must give two hours’ notice of their desire to book rest to the designated officer or his delegate.
The gist of the dispute before the Arbitrator concerns the application of article 51.11 in the circumstance of employees working split assignments on a five day week basis in GO train commuter service, with Saturday and Sunday off. That is the situation of the grievor. The Union submits that the grievor is entitled, without qualification, to invoke the entitlement to take rest as provided under article 51.11, and that he can do so, as he has, regularly and systematically, so as to make himself unavailable for work every Friday afternoon.
The Arbitrator has substantial difficulty with the interpretation of the agreement so asserted by the Union. It is trite to say that collective agreement provisions must be interpreted having regard to the context in which they arise and the purpose for which they were designed. At the outset, it would appear clear that the language of article 51.11 was fashioned in contemplation of employees operating in road service between two terminals, as evidenced by reference to the “home terminal” and the “away from home terminal”. The language so framed arises, understandably, from the situation of employees in road service who work from a home terminal to an away from home terminal, and who must therefore have an ability to book rest at either location, whether at the turnaround point or at the conclusion of their tour of duty at the home terminal. For example, without the benefit of those protections in freight service, employees could be called without time enough between trips to be adequately rested, as the time for the next call cannot be known with certainty.
There is obviously a limit to the extent to which these concepts can be said to apply to running trades employees who, in contrast, work on a daily basis to and from a single terminal in commuter passenger service, such as the GO train service which is the subject of this grievance. It is clear, as evidenced by the provisions of paragraph 15 of Addendum No. 50, that the parties have themselves recognized that distinction, to some degree. That article effectively provides that employees booking rest in GO train service will not have the protections of article 51.1, and therefore stand to lose their wages for the period they booked rest. In considering that provision, the Arbitrator is inclined to agree with the Company’s representative who characterizes it as a disincentive to booking rest. In my view, however, having regard to the purposes underlying that exception, it does not effectively address the real issue in the case at hand.
That issue is whether the employees who have, by the exercise of their seniority, chosen to have the benefit of the advantages of GO train service, can be expected to work under a general obligation to make themselves available for service on the split assignments, 5 days a week, as scheduled. In other words, is there a fundamental bargain whereby the terms and conditions of employment are made available to the conductors so engaged by the Company, in exchange for the expectation that conductors will provide regular and assiduous service? Or, alternatively, is the arrangement between the parties such that employees in GO train service can tailor their working lives, like hiring hall employees, by booking rest, either regularly or sporadically, to effectively work part time on a regular and systematic basis, as was done by Conductor McCrate? A related issue is whether, as the Company asserts, if there is an obligation of regular attendance at work, the Company can invoke disciplinary or administrative measures to enforce that obligation.
Consideration of the purpose of booking rest is helpful in resolving this dispute. The ability to book rest has evolved within the railroading context as a right inextricably connected to safe operations in an industry that is highly safety-sensitive. That running trades employees should the judges of their own fitness to work, that they should not be pressed to work over distances and periods of hours or in conditions which imperil their own safety as well as the safety of others and that they should be allowed to book rest to avoid situations of peril are well established values in the railroad industry. It is against that background that reasonable rules with respect to the booking of rest in road and yard service have evolved under this and other collective agreements. With respect, however, the right of a running trades employee to book rest was never intended, and can not fairly be construed, as a licence to convert a full time job into a part time or piecemeal job tailored to suit the personal whims of the individual employee. There is nothing in the context of the collective agreement provisions presented to the Arbitrator to materially qualify or override the most fundamental aspect of any employer-employee contract, namely that the employer undertakes to provide work on a regular basis to the employee and he or she, in turn, undertakes to be available on a regular basis to perform that work. That is the understanding which underlies the contractual arrangement by which employee in GO train service are employed. Employees have the advantage of knowing that they can go to work and be paid when scheduled to do so. The Company has the correlative entitlement to know that, barring exceptional circumstances, they will appear for work when scheduled. It is also in that context that running trades employees in freight service render themselves liable to discipline for refusing a call. (See, e.g., CROA 3330)
What then of the employees’ ability to book rest in the context of passenger commuter train service? In the Arbitrator’s view the ability to book rest remains available to conductors and assistant conductors in passenger service, on the understanding that it is to be exercised generally for the purposes intended, namely to ensure the continuity of safe rail operations. As the Company’s representative stresses, the employer takes no issue with the ability of an employee to book rest where, for example, whether by reason of illness, a problem in the home or the inability to obtain a good night’s sleep, an individual in good faith judges that he or she is unfit to safely perform his or her obligations in overseeing the movement of a train in passenger service. That, however, is not what the instant case is about. This grievance concerns the decision of the grievor to organize his life in such a way as to never work as scheduled on Friday afternoons. While his decision in that regard may have been taken in good faith, and in a belief that his ability to book rest permits him to alter the basic bargain between himself and the Company, he is wrong. The ability to book rest was not intended as an instrument to refashion the fundamental contract of employment. While the Arbitrator accepts, as the Company appears to accept, that an employee may from time to time book rest if he or she is unfit to work, or indeed if some other intervening personal or family circumstance demands it, that is an entirely different matter from an employee effectively refusing to come to work for a fixed percentage of his or her scheduled time on a regular, continual basis. The rest provisions of the collective agreement do not extend so far.
The issue then becomes how an employer might deal with such a situation of deliberate absenteeism. In the Arbitrator’s view there are two possibilities. If it could be shown that the employee’s chronic absence from work is for reasons beyond his or her control, it would then be open to the employer to deal with the matter on the basis of well-established principles governing innocent absenteeism. If it can be shown that an employee, albeit for reasons beyond his or her control, is unable to provide regular attendance at work, and that there is no prognosis for any change in that deficiency, the employer may, subject to conducting a proper inquiry, consider the employment contract to be at an end. Alternatively, where it can be shown that an employee’s absence is culpable, in the sense that it is within his or her control and results from a conscious refusal to provide assiduous services to the employer on the basis of the regular schedule of work implicit in the employment contract, it is then open to the employer to use progressive discipline, up to and including discharge, to deal with that failure of conduct on the part of the employee. As in any matter of discipline, the measure of penalty appropriate to any individual circumstance will vary having regard to a number of factors, including such elements as the length of an employee’s service and his or her discipline record.
For the reasons given, therefore, with respect to the second issue concerning the application of article 51.11 of the collective agreement, the Arbitrator finds and declares that it is within the rights of the Company to resort to discipline to deal with the deliberate and avoidable conduct of an employee which results in his or her chronic absence from the workplace, or alternatively to have recourse to an administrative termination of employment in the case of an employee who is unable to fulfill his or her work obligations by reason of an excessive rate of innocent absenteeism, where there is little or no reason to believe that that chronic problem will be resolved in the future. With respect to the latter category of absenteeism, however, regard must be had to the duty of accommodation in those cases where it can shown that an employee’s inability to attend at work at a rate of frequency comparable to his or her peers in the workplace is by reason of some medical disability. In that situation special considerations may apply, although not beyond the point of undue hardship to the employer.
Subject to the foregoing observations, for the reasons related above, the Company is directed to remove the assessment of thirty demerits from the grievor’s record. Mr. McCrate must appreciate, however, that a continuation of his refusal to attend at work when scheduled on Friday afternoons will render him liable to discipline. I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Dated at Toronto, this 16th day of May 2003
(original signed by) MICHEL G. PICHER