AH585

IN THE MATTER OF A DISPUTE

BETWEEN:

CANADIAN NATIONAL RAILWAY

(the “Company”)

And

TEAMSTERS CANADA RAIL CONFERENCE

(the “Union”)

RE: DISCHARGE OF CONDUCTOR JEAN-RAYMOND AUDET

ARBITRATOR: Michel G. Picher

APPEARANCES FOR THE COMPANY:

Frank O’Neill - Manager, Labour Relations

APPEARANCES FOR THE UNION:

Michael Church - Counsel

James Robbins - General Chairman, TCRC Sarnia

Glen Gower - Vice General Chairman, TCRC

George MacPherson - General Chairperson, Toronto

Ed Page - Local Chairperson, Toronto

Cindy Little - Local Chairman, Belleville

Don Griffin - Vice Local, Belleville

Allan McDavid - Local Chairman, Capreol

Jean-Raymond Audet - Grievor, Capreol

T.L. Smith - Witness, Capreol

C. McMahon - Observer

The hearing in this matter was held in Mississauga, Ontario, on October 9, 2009.

AWARD

This grievance concerns the assessment of 30 demerits to Conductor Jean-Raymond Audet for making incorrect delay entries in the Company’s SRS computer system on or about February 2, 2009 and for the assessment of 20 demerits to Mr. Audet for failing to follow the instructions of his trainmaster, by reason of which certain cars were left standing at Capreol rather than being assembled to a train.

The Union’s statement with respect to the Parties, Dispute and Ex-Parte Statement of Issue, filed at the hearing reads as follows:

A. PARTIES TO THE DISPUTE

1. The parties before the Arbitrator are the Teamsters Canada Rail Conference (the “Union”) and Canadian national Railways (the “Company”).

B. DISPUTE

2. The assessment of discipline to the Record of Capreol employee J. R. Audet and Resultant Dismissal for Accumulation of Demerits.

C. EX PARTE STATEMENT OF ISSUE

3. On February 10, 2009, the Company held two investigations, one for allegedly; “Deliberately inputting incorrect delays in SRS for Trains 31451-30 and 31331031 on February 2^nd, 12009 while employed as Assistant yard Coordinator.”; and the other for an alleged; “Failure to properly follow the instructions of Company Officer resulting in Train M30331-06 not lifting cars at Hornepayne and delays to customer traffic, while employed as Assistant Yard Coordinator on January 6^th, 2009.”

4. On March 03, 2009 the Company delivered a CN Form 780, dated March 02, 2009, to Mr. Audet advising that he was assessed 30 demerits for the incident of February 2^nd, 2009, and another CN Form 780 assessing 20 demerits for the January 6^th, 2009.”

5. An additional CN Form 780 was issued this same date advising that the employee was dismissed for an accumulation of demerits.

6. The Union appealed the discipline through the required steps of the Grievance Procedure and the Company has declined the appeal and the Union’s request for reinstatement.

7. The matter is now properly before the arbitrator.

Union’s Position

8. It is the Union’s position that the Company has violated the discipline and investigation procedures that mandate the holding of a fair and impartial investigation.

9. The Union appealed the discipline protesting that the Company’s actions were in violation of the Collective Agreement, in several aspects, as follows:

1. The employee was not treated [in] a fair and impartial manner.

2. Discipline was assessed in a discriminatory fashion.

3. The Company has violated the Workplace Environment provisions of the Collective Agreement.

4. The Company violated the “Discipline” provisions of Article 30 of the Collective Agreement.

10. It is also the Union’s position that the inappropriate actions, by the Company, render the discipline as null and void.

11. In the alternative, it is the Union’s position that the discipline was excessive, unwarranted and without merit.

Company’s Position

12. The Company disagrees with the position of the Union.

The grievor has been employed the Company for some twenty years. While for many years he worked as a trainperson and yard helper out of Capreol, he incurred a chronic medical condition which, it is not disputed, made it impossible for him to perform safety sensitive work whether in road or yard work. It appears that in late 2002 he was removed from service by reason of that medical condition, but was not offered accommodation into any modified position. In the result, he filed a complaint to the Canadian Human Rights Commission on August 21, 2003, a complaint which resulted in a decision on May 16, 2006, which reinstated him into his employment, with accommodation, and compensation. For a time he occupied work as a Rule 42 foreman in the Greater Toronto area then eventually returned to Capreol in June of 2006, where he was ultimately accommodated in a position of Yard Coordinator Trainee.

The first incident, resulting in the assessment of 20 demerits, involved the grievor’s tour of duty on or about January 6, 2009. The Company alleges that Trainmaster Gilles then instructed the grievor by telephone that Train M30331-06 should pick up cars at Hornepayne to ensure the maximized train length of 6,250 feet. It is not disputed that the pickup did not occur. However, the Union maintains that in fact no such instruction was given to the grievor. To that effect, Trainmaster T.L. Smith, of Capreol, testified without contradiction, that Mr. Gilles had stated to her that he had failed to notify the trainmaster of his request.

The Arbitrator has some difficulty with the Union’s assertion that in fact no call was made to Mr. Audet by Mr. Gilles. While the statement Mr. Gilles made to the Trainmaster would indicate that he did not specifically relay the information to a trainmaster, there is nothing within the content of that statement dealing with whether he may or may not have given the information to Mr. Audet. It would appear that his memo of January 10, 2009, specifically states that he did so. More significantly, during the course of the grievor’s disciplinary interview conducted on February 10, 2009, when presented with that memo Mr. Audet stated, “Yes. I acknowledge that I received this call around 23:00 and I think I wrote it down in my notes. At that time, I received other calls from the RTC and CN employees. If it was important and Mr. Gilles wanted it done, all he had to do was send a fax or email.”

On balance, I am satisfied that in fact Mr. Gilles did give the instruction to Mr. Audet and that he failed to carry it out.

The Union, however, raises a separate and relatively important issue. It challenges the quality of the disciplinary investigation conducted by the Company. Specifically, it submits that the investigating officer, Mr. Stephane Arbour, expressly stated to the grievor words to the effect that “… none of this would have happened if he had not gone to Human Rights”. In other words, as counsel for the Union characterizes it, the investigating officer communicated to Mr. Audet words which would suggest that the investigation of his failure to follow the instructions of Mr. Gilles was in effect a reprisal for having pursued the Company in his prior Human Rights complaint, the complaint which ultimately led to his reinstatement with compensation. Counsel submits that such a statement by the investigating officer is incompatible with the appearance of a reasonably impartial investigation process.

In response to the Union’s allegation the Company has filed a written statement by Mr. Arbour. It appears that the allegation initially put by the Union was to the effect that Mr. Arbour had made the statement about the grievor’s Human Rights case before the commencement of the investigation. In fact, Mr. Arbour provides the following statement:

Frank, as additional information. I could not have made such a comment PRIOR to the investigation. The fact is, and can be verified when reading the investigation, that Mr. Audet asked for his arbitration case be added as evidence during the investigation. That is when I became aware of his arbitration case. Therefore, I could not have made a comment about his arbitration prior to the investigation, as stated, when in fact I had access to the document only during the investigation.

Stephane Arbour

Atlantic Division

In Arbitrator’s view it is of little moment whether Mr. Arbour made the statement before the commencement of the investigation or, as he appears to suggest, during the course of the investigation. There is no categorical denial in the statement of Mr. Arbour that he did in fact make a statement to the grievor to the effect that he should not have pursued his Human Rights complaint.

In the Arbitrator’s view such a statement is entirely incompatible with the appearance of an impartial investigation. I must agree with counsel for the Union that the statement, whether it was made before or during the course of the investigation procedure, is clearly incompatible with the minimal standards of fairness and impartiality required under the terms of the collective agreement. On that basis, I must conclude that the discipline assessed against Mr. Audet for the incident of January 6, 2009, is void ab initio.

Regrettably, the same conclusion must be drawn with respect to the second investigation, which was held concurrently with the first. The second investigation concerned the separate allegation that the grievor failed to enter the correct codes into the SRS with respect to two separate train delays on or about February 2, 2009. For the record, the investigation of that incident was conducted concurrently on the same date as investigation for the failure to carry out instructions. Both investigations were held on February 10, 2009, and conducted by Operations Manager Stephane Arbour. The Arbitrator has grave concerns with the process, apart from the merits of the alleged actions of Mr. Audet. A statement by Mr. Arbour during the course of either those investigations to the effect that the grievor should not have pursued the Company in respect to his Human Rights complaint would have the effect of destroying any meaningful appearance of impartiality on the part of the investigating officer, and indeed can fairly be seen as suggesting the possibility of a reprisal. Whatever may have been in Mr. Arbour’s mind at the time of his statement, the Canadian Human Rights Act is clear in Article 14.1, which deals the issue of possible retaliation in the following terms:

14.1 It is discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim.

On the whole, the Arbitrator finds that the investigation cannot be viewed as having met the standard of fairness and impartiality required by the collective agreement and that the 30 demerits assessed the grievor for the alleged failure of improperly coding two train delays cannot stand.

Alternatively, even if the Arbitrator were to find that there was merit to the Company’s allegation concerning the coding errors, apart from the issue of the failure of an impartial investigation, I would not conclude that the accumulation of both events reviewed in this Award would have been such as to justify the termination from employment of an individual of some twenty years’ service.

For the foregoing reasons the grievance is allowed. The Arbitrator directs that the grievor be reinstated into his employment forthwith, with full compensation for all wages and benefits lost and without loss of seniority.

I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this Award.

Dated at Ottawa, this 3^rd day of November, 2009.

___________________________________

Michel G. Picher

Arbitrator