IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY
AND INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS SYSTEM COUNCIL NO. 11
AND IN THE MATTER OF THE GRIEVANCE OF L. BELANGER
SOLE ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Toronto on November 7, 2003.
M.A. Church, L. Couture and others for the union.
J.C. McDonnell, M. Tector and others for the company.
This dispute involves the dismissal of the grievor. The Joint Statement of Issue is as follows:
S&C Maintainer Mr. Laval Belanger was dismissed from Company service subsequent to his operation of a hi-rail vehicle outside the limits of a Track Occupancy Permit issued to him by Rail Traffic Control on 27 March 2003. That Rule violation represented the second instance of his violation of the Canadian Rail Operating Rules. The previous violation occurred on 10 May 2002 and also involved occupancy of track by Mr. Belanger without the authority of a Track Occupancy Permit. His termination was effective 21 April 2003.
The Union contends that the discipline assessed is unwarranted and excessive.
The Company asserts that Mr. Belanger’s dismissal was warranted and appropriate, as a consequence of the two significant and similar Operating Rules violations within a twelve month period.
The Union contends that the Company did not provide Mr. Belanger with a fair and impartial investigation. The Union also contends that the Company violated the provisions of Article 12, Appendix “M” and Appendix “N” of the collective agreement. For example, and without limiting the facts to be relied upon by the Union, the Union asserts that the Grievor’s supervisor (C. Bigland) engaged in the following conduct: he conducted what amounted to an informal investigation of the Grievor within hours of the incident; the Grievor was not advised or permitted Union representation; the Supervisor improperly initiated a formal investigation, the Supervisor was involved in Notices to Appear, subsequent formal investigations, the letter of discharge and Form 780.
As a result of any and all of the above, the Union maintains that the discipline issued to the Grievor is null and void. The Union also requests that the Grievor to be reinstated without loss of seniority, compensation or benefits.
In all of the circumstances, the Union, in the alternative, requests that the discipline (discharge) be mitigated upon such terms as the Arbitrator may see fit.
The Company denies the Union’s contentions and denies its request on behalf of the Grievor. The Company asks the Arbitrator to dismiss the preliminary and procedural objections raised by the Union and proceed with the hearing of the merits of the case.
The circumstances which led to the imposition of discipline in this matter are not in dispute. The grievor is a Signal Maintainer whose service with the company began in May, 1998. His work location at the material time was Gogama, in Northern Ontario, although his home was in Cornwall. As a Signal Maintainer the grievor is responsible for maintenance of and repairs to signal equipment, which provides controlling signals to crews operating trains, engines or rail track units.
On March 27, 2003, the grievor was working on the Ruel subdivision. At 14:30 he was issued a track occupancy permit by rail traffic control which permitted him to operate between signal 1248D and signal 1164 Gladwick. The grievor was operating a hi-rail vehicle on the track, and was following behind a train operating in the same direction. The track occupancy permit was to expire at 14:55, and the grievor advised rail traffic control that he would be in the clear by then. He was to contact rail traffic control at that time.
The grievor performed various tasks along the track, including, it appears, some work on the switch at Gladwick. In his conversation with rail traffic control at 14:30, the grievor stated that he would be “OK for the switch on hand at Gladwick” and the controller replied that he was “OK for the switch at Gladwick”. Shortly before 14:55 the grievor passed the switch with his hi-rail, and pulled into a nearby siding. He then called rail traffic control at 14:54 to advise that he was in the siding and clear. When the controller realized the grievor’s position, he advised him that he had had permission up to, but not past signal 1164. There is no doubt that the grievor had gone beyond the limits of the track occupancy permit that had been issued. That is, as the company states, a “cardinal rule violation”.
While the union does not deny that the grievor committed a rule violation, its contention is that the matter was not properly investigated and that the discipline imposed is void on that account. It is also argued that the discipline imposed was excessive, and that the grievor ought not to have been discharged. While the union seeks the reinstatement of the grievor, without loss of seniority or other benefits, it does not seek compensation for loss of earnings. It is recognized that the grievor’s record includes a fifteen-day suspension imposed for a similar rule violation, and that the rule in question is a very serious one.
I will deal first with the matter of the investigation. Article 13.1 of the collective agreement provides as follows:
Except as otherwise provided herein, an employee who has 125 working days’ service will not be disciplined or discharged until he has had a fair and impartial investigation. Investigations will be held as quickly as possible.
Since the territory involved here is one where the “discipline trial project” is in effect, articles 13.1 to 13.6 of the collective agreement have been suspended. It is clear from the provisions of Appendices “M” and “N”, however, that their provisions are intended to provide fair and impartial investigations. Appendices “M” and “N” provide for two forms of investigation, “formal”and “informal”. Informal investigations are to be undertaken in cases of “minor” incidents, unless the employee requests a formal investigation. It is sufficient to say that the incident here could not be considered “minor”, and that an informal investigation would not have been appropriate.
It is the union’s contention that the company did conduct an informal investigation. When the General Supervisor Engineering for the Northern Ontario Zone was advised of the matter, the grievor was instructed to remain on the siding with his vehicle, and a supervisor was dispatched to return with him to Gogama. When he arrived, he was met by supervisor Bigland who ensured that the grievor was all right, and asked him to provide a narrative of what had occurred. The grievor did provide such a narrative, which was not inconsistent with what is set out above. The grievor was advised that he would be held out of service pending a formal investigation. That was consistent with clause (f) of Appendix “M”.
I do not consider that that constituted an informal investigation as contemplated by Appendix “M”. These were not circumstances that would call for such an investigation under the provisions of Appendix “M”, and the grievor was not led to believe that that was what was happening. It was quite natural for the supervisor to enquire of the employee in such circumstances, “what happened?” and for the employee to explain. The company was, of course, “investigating”, in the sense of inquiring what had happened, and it was doing so without any particular formality, but it would be an unfair insistence on words out of their context to conclude that what occurred was an “informal investigation” of the sort contemplated by Appendix “M”.
The company did carry out a formal investigation, at which no objection was raised. The investigation was conducted by supervisor Bigland, and the union argues that because of this, the investigation could not be fair and impartial. Clause 5(g) of Appendix “M” provides that:
Except as otherwise mutually agreed, the investigating officer shall be an individual who is in the best position to develop all of the relevant facts, provided such individual is not emotionally involved with the incident.
Supervisor Bigland had asked the grievor to describe what had happened, and he had advised him he would be held out of service. Both of those would appear to me to be normal procedures in a case such as this. They do not establish that Mr. Bigland was somehow prejudiced against the grievor, and there is nothing before me to establish that he was in any way “emotionally involved” with the incident. It was not improper for him to conduct the investigation in the circumstances of this case. This case is quite different from CROA cases 1561, 1720, 2041, 3061 and 3167, where there were questions of credibility and the investigating officer either had a preformed opinion about them, or was a witness with respect to such questions. The grievor here did not protest innocence, but admitted his error. The grievor’s right to representation was respected. This was not a case, as in CROA case no. 1597, where the company acted on the basis of information not put forward at the hearing. That is, with respect to the incident of March 27, 2003, the investigation was fair and impartial and in accordance with Appendices “M”and “N”.
It is clear that these were circumstances in which the imposition of discipline was called
for. I will now deal with the question of the discipline imposed. There is no doubt that to proceed beyond the limit of a track occupancy permit is a very serious offence, comparable in some ways to running a stop signal. In the instant case, the grievor worked on the very signal which was at the geographic limit of his permit, and then moved onto a siding shortly beyond the signal. While this does not appear to have created any immediate risk, it is clear that it was contrary to the Operating Rules, and the grievor realized that when he called the controller. In
June, 2002, the grievor had been given a fifteen-day suspension for a similar offence, although the circumstances were not identical. In the circumstances of the instant case while the grievor’s error appears not to have created an immediate danger, the penalty may be expected to be greater since it is a repeat offence involving violation of a cardinal rule.
Nevertheless, it does not appear that there was just cause for the discharge of the grievor in all of the circumstances. Although I have noted that while as far as any determination of fact with respect to the incident in question is concerned, the company did not act on the basis of “information not put forward at the hearing”, it is the case that the grievor was, prior to the imposition of discipline for the incident here in question, made the subject of another investigation relating to an unrelated matter arising over a year previously. While the company decided to impose not to impose discipline in respect of that matter (the merits of which are not before me), the grievor was advised of that decision at the same time as he was advised of his discharge. Whatever the effect of this consideration may have been on the company’s determination, it is my view that given the particular circumstances of this case, the discharge of the grievor went beyond the range of reasonable disciplinary responses to the situation. Obviously, a very substantial penalty was called for, and while the Brown system of discipline appears not to have been used, a lengthy suspension was not inappropriate. The union has not requested compensation for loss of earnings, and in my view that position is proper.
For all of the foregoing reasons, it is my award that the grievor be reinstated in employment forthwith, without loss of seniority or other benefits (including maintenance of pension rights and payment of pension benefits) but without compensation for loss of earnings. I remain seised of the matter for the purpose of determining any question relating to the reinstatement of and the benefits payable to the grievor and completing the award.
DATED AT OTTAWA, this 27th day of November, 2003,