AH595

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN

 

 

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

 

 

AND

 

 

TEAMSTERS CANADA RAIL CONFERENCE

(the “Union”)

 

 

RE: FIVE (5) GRIEVANCES CONCERNING AL McDAVID

 

 

 

Sole Arbitrator:                       Michel G. Picher

 

 

 

Appearing For The Union:

            M. A. Church                     – Counsel, Toronto

            J. Robbins                           – General Chairman, Sarnia

            R. Beatty                            – Transitional Director TCRC-CTY

            A. McDavid                       – Grievor

 

 

Appearing For The Company:

            F. O’Neill                           – Manager, Labour Relations, Toronto

            D. Gagné                            – Sr. Manager, Labour Relations, Montreal

            G. Nadon                           – Assistant Superintendent, Capreol

 

 

 

A hearing in this matter has held in Montreal on Wednesday, November 25, 2009

 

 


AWARD

 

 

            This arbitration concerns five heads of discipline assessed against Conductor Al McDavid of Capreol. Although the total of demerits would normally have resulted in discharge, the parties agreed to hold the grievor’s termination in abeyance pending this award.  Because of the unusual nature of this dispute, the Arbitrator deems it appropriate to deal with all five heads of discipline within a single award. It is also necessary to give some background to certain general issues which relate to virtually all of the heads of discipline assessed against Mr. McDavid and to comment briefly on the extraordinary jurisdiction which the Arbitrator has been given in this matter, by the agreement of the parties, extending to the application of the Canada Labour Code to the facts disclosed, including the allegation that the Company disciplined Mr. McDavid as a reprisal for his activity as the principal Union officer in Capreol .

 

            Mr. McDavid is an extremely long service employee, having been hired some thirty-five years ago. From the time of his hire in June of 1974 until 2008, a period of thirty-four years, he had a near exemplary disciplinary record. Over that time, with the exception of his involvement in an illegal work stoppage in 1989 he received only minor discipline, limited to three written reprimands and one assessment of fifteen demerits. By any assessment, the pattern of his career to that point did not indicate an employee with recurring performance issues or other disciplinary problems. While the precise dates are not before the Arbitrator, over more recent years Mr. McDavid has held the office of Local Chairperson for the Union, being essentially responsible for representing employees in discipline matters, including employee investigations, as well as generally overseeing and administering the terms of the collective agreement, which includes filling grievances.

 

            The instant dispute arises following what the Union characterizes as a flurry of uncharacteristic discipline assessed against Mr. McDavid over a twelve month period commencing July 4, 2008 and concluding on July 8, 2009. The discipline assessed against him during that time is more than sufficient to secure his discharge, should it be sustained, as it totals 110 demerits for five separate incidents in a one year period. The unchallenged evidence before the Arbitrator also indicates that Mr. McDavid was made the subject of efficiency tests, a form of unobserved scrutiny of his work, on 100 occasions during the course of a year, by Capreol Assistant Superintendant Gerald Nadon. That rate of scrutiny is characterized, without substantial dispute, as being close to ten times the average for other employees at the same location.

 

            Based on the foregoing, the Union advised the Company of its intention to file a complaint before the Canadian Industrial Relations Board alleging violations of article 94 of the Canada Labour Code which provides, in part, as follows:

94.  (1)   No employer or person acting on behalf of an employer shall:

 

(a)   participate in or interfere with the formation or administration of a trade union or the representation of an employee by a trade union; or

 

(b)   contribute financial or other support to a trade union.

 

Section 94 (3) (e) of the Code expressly prohibits an employer from imposing discipline or other forms of reprisal to prevent or hinder an employee from exercising rights of union membership or carrying out the duties of a union officer. The Union maintains that Assistant Superintendent Nadon specifically targeted Mr. McDavid with a view to ultimately securing his dismissal because of his activities in the workplace on behalf of the Union, in violation of the Code and asks the Arbitrator to award remedies in respect of that alleged conduct.

 

            Faced with the prospect of a complaint before the CIRB and the grievances which are now before this Arbitrator, the parties agreed to have all issues placed before this Arbitrator to deal with those allegations as well as the allegations of violations of the collective agreement in the treatment of Mr. McDavid, all within a single proceeding.

 

            It is against that background that I turn to consider the merits of each of the disputes before me, as well as the charge that Mr. Nadon was motivated by anti-union sentiment in his treatment of Mr. McDavid.

 

                                                                            1

                                                FIFTEEN DEMERITS, JULY 4, 2008

 

DISPUTE:

Assessment of 15 demerits to Conductor A. McDavid.

 

EX PARTE STATEMENT OF ISSUE:

On June 30, 2008, Mr. McDavid was employed as a conductor on the Capreol West Pool. The Company issued CN Form 780 on October 2, 2008 assessing

 

the grievor with 15 demerits for “violation of COI Section 8 Item 4.31 while employed as Conductor on Train on June 30th.”

 

The Union contends that the investigation was not conducted in a fair and impartial manner per the requirements of the collective agreement. For this reason the Union contends that the discipline is null and void and ought to be removed in its entirety and that Mr. McDavid be made whole.

 

The Union further contends that there is no cause for discipline in the circumstances or, in the alternative, that the penalty is excessive, inter alia, article 94 of the Canada Labour Code.

 

The Company disagrees with the Union’s contentions.

 

 

            The record discloses that Supervisor Nadon conducted an efficiency test of the grievor’s assignment on July 4, 2008. Mr. Nadon’s notes from that day relate that what he observed involved radio conversations between the crews of two trains, Train 10651-30 and Train 0131-04 which were then meeting. The grievor’s crew, on Train 10651-30, conducted a CROR Rule 110 inspection of the other train on that occasion. Among the infractions which Supervisor Nadon recorded was a certain degree of non-work related banter among the employees concerned. Specifically, Conductor McDavid engaged in a brief exchange with the locomotive engineer of the other train concerning a blue van and, following the inspection, Mr. McDavid had a brief radio discussion with the same engineman concerning the number of personal leave days which he had left. Mr. Nadon noted that proper radio protocols and terminology, such as the use of the terms “over/out” were not used.

 

            The Arbitrator is satisfied that what was observed by Mr. Nadon did involve certain departures from CROR rules 120, 121 and 123. The real issue is the appropriate measure of discipline in that circumstance.

 

            The grievor was then an employee of some thirty-four years’ service with a clear disciplinary record. His prior thirty-four years of service involved no serious discipline for the violation of operating rules save the assessment of fifteen demerits on one occasion in 1982. Against that record the Arbitrator is satisfied that the assessment of fifteen demerits was clearly excessive. On a first offence of this nature, given the length and quality of the grievor’s prior service, I am satisfied that a reprimand would have been more than sufficient to draw his attention to the importance of respecting radio protocols.

 

            However, there is another dimension to this grievance. The Union alleges that the Company failed to provide the grievor with a fair and impartial investigation, in keeping with the provisions of article 82 of the collective agreement. In particular, it alleges that the Company violated article 82.2 in that it did not permit the grievor to have an accredited Union representative and the disciplinary investigation taken in respect of the infraction of July 4, 2008.

 

The Arbitrator is satisfied that that objection is well founded. The record reveals that Mr. McDavid informed the officer conducting the investigation that he was not able to secure Union representation but that his Union representative could be available three days later. Faced with that the investigating officer denied the three day adjournment and proceeded with the investigation.

 

            The Arbitrator has some difficulty understanding what prejudice the Company would have suffered by allowing the grievor to postpone the investigation some three days to ensure that he had Union representation. The Company’s action in that regard is, in my view, plainly inconsistent with its clear obligations under article 82 of the collective agreement. On that basis the discipline must be ruled void ad initio.

 

            The grievance therefore is allowed. The Arbitrator directs the removal, forthwith, of the fifteen demerits from Mr. McDavid’s disciplinary record.

 

                                                                        2

THIRTY DEMERITS, DECEMBER 20, 2008

            At the hearing the parties filed the following dispute and ex parte statement of issue from the Union:

 

DISPUTE:

Assessment of 30 demerits to Conductor A. McDavid.

 

EX PARTE STATEMENT OF ISSUE:

On December 20, 2008, Mr. McDavid was employed as a conductor on the Capreol West Pool. The Company issued CN Form 780 on January 13, 2009 assessing the grievor with 30 demerits for “violation of CROR 111 para (e) while employed as conductor on Train Q11451-16 on December 20, 2008.”

 

 

The Union contends that the investigation was not conducted in a fair and impartial manner per the requirements of the collective agreement. For this reason the Union contends that the discipline is null and void and ought to be removed in its entirety and that Mr. McDavid be made whole.

 

The Union further contends that there is no cause for discipline in the circumstances or, in the alternative, that the penalty is excessive, inter alia, article 94 of the Canada Labour Code.

 

The Company disagrees with the Union’s contentions.

 

            The facts in relation to this grievance are not in dispute. On December 20, 2008 the grievor was the conductor on train Q11451-16 operating from Hornepayne to Capreol. The grievor’s train took the siding at Agate at mileage 186.2 of the Ruel Subdivision to facilitate a meet with train M317. Shortly thereafter, upon resuming its movement on the main line the grievor’s train derailed some eighteen intermodal platform cars near Single Lake at mileage 138.76 of the Ruel Subdivision. It does not appear disputed that the cause of the derailment was a broken wheel.

 

            The Company issued to the grievor a notice to appear for an investigation in relation to the events surrounding the derailment. During the course of the investigation it focused on whether the grievor inspected his train in accordance with CROR 111(e) when it stopped at Agate.

 

            It emerged from the investigation that upon pulling into the siding, having been on duty some five hours, Mr. McDavid quickly prepared and ate some lunch before getting dressed and stepping out into the snow to conduct a visual pull-by inspection of train M317. According to his account, which is essentially unchallenged, in the course of doing so he found himself able to observe some three cars of his own train, on a single side. The Company maintains that the grievor should have performed a more thorough inspection of his own train while in the siding at Agate. However it is not disputed that he would not then have had time to walk back approximately a mile to possibly detect the broken wheel which later caused the derailment.

 

CROR rule 111(e) reads as follows:

 

111 (e)   The Conductor first arriving at a meeting point will arrange for a walking inspection of their freight train or transfer, inspecting as much time as time and conditions permit.

 

            Did the grievor violate the foregoing rule? The grievor recounts that he did heat some spaghetti for lunch upon arriving in the siding and estimates that it would have been five to ten minutes between the time his train stopped and when he detrained to proceed to inspect train M317. He denied the suggestion that he could have used that time to perform any greater inspection of his own train, indicating that because of snow conditions it was difficult to get a secure footing and safe place to conduct the pull-by inspection of train M317. Dealing with his effort at finding an appropriate vantage point, during the course of his investigation statement Conductor McDavid gave the following response:

 

37.Q.   On December 20th, what did you physically do to secure a place, and how long did this take?

 

A.        I crossed the main line, where there was absolutely no embankment. Prior to heading westward I looked towards the switch to see if there was a good place to stand there, but I decided not to stand there because it right at the switch ‘cause you could get ice chunks falling off of a car right at the switch. I started walking westward looking for a place to secure myself to inspect train 317, at the same time inspect the south side of my train. I was not that far back when I realized that I would be between a rock and a hard place knowing that 317 had already called the approach at Agate, not knowing the location of his train. I then turned around and inspected train 317 on the north side by our locomotives as I felt that was the safest location. As I crossed the main line to go by our engines, 317 had broken the curve and called the home signal at Agate. As for the time frame, I do not know.

 

            During the course of the investigation the grievor also indicated that the siding at Agate offered the safest place for him to eat, rather than disrupt the cab while his train was in operation on the main line. He conceded that if he had not been hungry and had not eaten he might have been able to inspect a larger segment of his own train.

 

38.Q.   Do you not agree that had you detrained immediately after your train stopped, then taken the amount of time to find a secure place to inspect train 317, that you could have inspected additional cars on your train?

 

A.        If I wasn’t hungry and didn’t eat, I could have inspected more if I was not eating.

 

39.Q.   Knowing that you would be at Agate for Train 317 and aware of your responsibilities under Rule 111(e), why would you elect to make a meal upon entering the siding?

 

A.        Because I felt it was the safest time to have a meal rather than disrupting the crew and myself, possibly missing hot box detector, signal indications. The safety place for me to eat was in the siding at Agate.

 

Following the investigation the Company assessed thirty demerits against Conductor McDavid.

 

            The arbitrator is quite frankly at a loss to understand the assessment of so severe a measure of discipline in the face of the facts disclosed. The grievor brought thirty-four years of good quality service to the investigation that day and, as a result of the prior award related above, in effect had a clear disciplinary record. Even if the Company considered that his prior record did stand at fifteen demerits, the assessment of thirty demerits, fully half the distance towards dismissal, is remarkable by any account. It is not suggested that the grievor failed in his obligation to conduct a proper observation of train M317, nor is it argued that he could, in any event, have spotted the broken wheel which later led to the partial derailment of his train, given the twenty-eight minute period of time he was stopped in the siding at Agate, considering that he was also responsible for placing himself in a proper position for inspecting the other train.

 

            The Union asserts that the Company failed to respect the requirements of article 82 of the collective agreement in that it did not specifically give the grievor notice that he was being investigated for a possible violation of CROR rule 111. With that submission the Arbitrator cannot agree. It is entirely appropriate for the Company to conduct an investigation pertaining to the circumstances surrounding a derailment. If in the course of that investigation it should discover what it believes to be a violation of a rule it is clearly at liberty to assess discipline, subject only to having fully observed the requirements of article 82. I am satisfied that the grievor, having notice that the Company was to inquire into the circumstances leading to the derailment did give the grievor sufficient notice of what would be examined.

 

            I am also satisfied that there was, to some degree, a failure on the part of Conductor McDavid to devote sufficient time to the inspection of his own train during the twenty-eight minute period of his stop in the siding at Agate. While I am not persuaded that his decision to eat something at that point in time was necessarily improper, given that he had been on duty some five hours and that it was arguably safer to do so then, a review of the investigation does indicate that he could have taken some steps to give greater attention to his own train on that occasion.

 

            However, the Arbitrator has substantial difficulty with the quantum of discipline assessed by the Company in all of the circumstances. There is no suggestion that the grievor’s failure to be more thorough in the service of rule 111(e) in fact caused the derailment or, more precisely, could have prevented it in any event. It is common ground that the broken wheel which occasioned the subsequent derailment could not have been inspected, given its distant position on the train, during the time of the stop in the siding at Agate. It is also significant to consider the grievor’s record of service, which was effectively without any major rules violations for a period of some twenty-five years prior to the incident here under review.

 

            Having regard to the entirety of the evidence, the Arbitrator is satisfied that this is an appropriate case for a reduction of penalty. It is therefore directed that the grievor’s record be amended to indicate the assessment of ten demerits for the incident of December 20, 2008.

 

3

 

TWENTY-FIVE DEMERITS, JANUARY 2-5, 2009

AMENDED TO A SUSPENSION

            The grievor was assessed twenty-five demerits for failing to following the instructions of a supervisor and booking sick in the period of January 2 to January 5, 2009. The Union’s ex parte dispute and statement of issue reads as follows:

 

DISPUTE:

Assessment of suspension to Conductor McDavid.

 

EX PARTE STATEMENT OF ISSUE:

In January 2009, Mr. McDavid was employed as a conductor on the Capreol West Pool. On January 27, 2009, the Company assessed the grievor with 25 demerits for “your failure to follow the instructions of your supervisor and your removing yourself from work by booking sick January 2 to January 5, 2009.”

The Union contends that the investigation was not conducted in a fair and impartial manner per the requirements of the collective agreement. For this reason the Union contends that the discipline is null and void and ought to be removed in its entirety and that Mr. McDavid be made whole.

 

The Union further contends that there is no cause for discipline in the circumstances or, in the alternative, that the penalty is excessive, inter alia, article 94 of the Canada Labour Code.

 

The Company disagrees with the Union’s contentions.

 

            The record confirms that the grievor booked off sick at 22:31 hours on January 3, 2009. His supervisor, Assistant Superintendent Gerald Nadon, called him at home on January 4. It appears that that call was prompted in part by the fact that the grievor might be absent from a scheduled investigation or investigations on January 5, 2009. During the course of that conversation, during which the grievor admittedly became upset at what he viewed as a harassing telephone call from his supervisor, Mr. Nadon asked Mr. McDavid to bring a doctor’s note or some other documentation to substantiate his illness when he returned to work. It appears that that request was again repeated by Mr. Nadon on a later occasion, following the grievor’s return to work. It is the grievor’s refusal to comply with that request which the Company asserts was deserving of discipline, as well as his booking sick.

 

            The Arbitrator can see no merit the Company’s position in this grievance. Mr. Nadon’s request to Mr. McDavid was clearly in violation of the collective agreement which contains clear directives as to the limitations on the Company’s ability to ask for medical documentation in respect of an employee’s absence due to illness. Article 53.2 of the collective agreement provides as follows:

53.2   Employees, on resuming duty after sick leave, will not be required to produce a doctor’s certificate except employees who are considered continual offenders book sick when called or while on duty after being called may be required to produce a medical certificate within 48 hours of resuming duty and /or submit to an examination form a Company medical officer. Payment for taking such required examination will not accrue to employees governed by the provisions of this paragraph.

 

NOTE: The 48-hour requirement in paragraph 53.2 will exclude weekends and general holidays.

 

            There is no suggestion before the Arbitrator that the grievor has any significant record of attendance problems. He could not, in my view, be fairly characterized as an employee considered a “continual offender” within the meaning of article 53.2 of the collective agreement. Very simply, Mr. Nadon had no right or authority to direct the grievor to provide medical certification for his absence by reason of illness in the period January 2 – 5, 2009, much less to discipline him for failing to do so.

 

            It appears that, in any event,  the grievor did obtain a medical certificate later, on or about January 20th, 2009 when he visited his family physician. While it may be, as indicated by the Company, that he sought a note at that time because he had received notice of the Company’s intention to conduct a disciplinary investigation into his absence earlier in the month, and the Company questions the utility of an after-the-fact certificate, the fact remains that the point is moot for the purposes of the discipline herein assessed. Very simply, the Company did not have the right to demand that the grievor provide medical certification on the occasion of his illness and it has not offered any evidence in support of the burden of proof which it bears to establish that the grievor was not in fact ill.

 

            On the foregoing basis, and quite apart from the Union’s separate allegation that the grievor was denied a fair and impartial investigation, a matter which need not be determined given the outcome, the Arbitrator is compelled to sustain the grievance on its merits. The Arbitrator therefore directs that the twenty-five demerits, amended to a suspension, for the events of January 2 to 5, 2009 be stricken from his record, and that he be compensated for the wages and benefits lost by reason of his suspension.

 

                                                                            4

TWENTY-FIVE DEMERITS, MAY 26, 2009

 

DISPUTE:

Assessment of 25 demerits to Conductor A. McDavid and subsequent dismissal from the Company for accumulation of demerits in excess of sixty (60).

 

EX PARTE STATEMENT OF ISSUE:

On May 26, 2009, Mr. McDavid was employed as a conductor on the Capreol West Pool. The Company issued CN Form 780 on July 8, 2009 assessing the grievor with 25 demerits for “Violation of CROR 120 and 157 while employed as Conductor on Train 31331-25 on May 26, 2009.”

 

The Union contends that the investigation was not conducted in a fair and impartial manner per the requirements of the collective agreement. For this reason the Union contends that the discipline is null and void and ought to be removed in its entirety and that Mr. McDavid be made whole.

 

The Union further contends that there is no cause for discipline in the circumstances or, in the alternative, that the penalty is excessive, inter alia, article 94 of the Canada Labour Code.

 

The Union requests that Conductor McDavid be ordered reinstated and made whole for all of his losses.

 

The Company disagrees with the Union’s contentions.

 

            The Company has assessed twenty-five demerits against the grievor for his alleged violation of CROR 120 and CROR 157 during the course of his assignment on May 26, 2009. On that day the grievor was the conductor on train 31331-25 which, during the course of its assignment, was going to be required to enter into TGBO territory. The statement taken from the grievor at a disciplinary investigation confirms that during the job briefing on that day he and his locomotive engineer, Mr. Labovitch, compared and checked off their respective GBOs, initialling each page. The unchallenged evidence of the grievor is that he verified the number of pages and signed the last page and verified the proper train ID which he also initialled. He relates that the final check, the “applicable on” his pen ran short of ink and the most he could do was indent the paper with his initials. As it happens, Assistant Superintendant Gerald Nadon boarded the train before it left the yard to verify that the employees had the proper documentation. He then noted that of the many signatures and initials on the GBO documents, Mr. McDavid had apparently omitted to properly initial the “applicable on” portion.

 

            During the same tour of duty, as part of an ongoing efficiency test, Mr. Nadon overheard radio communications made by Mr. McDavid during switching. According to Mr. Nadon the grievor then failed to use radio terms such “over and out” and was relatively conversational in his communications with his workmate on the radio, Yard Coordinator Lachance. Following an investigation the Company assessed 25 demerits against the grievor for his alleged violation of radio protocols and his failure to initial one entry on his GBO.

 

            The Union submits that there was no rule violation by the grievor in either instance. Firstly, it submits that there was no obligation on the part of the grievor to fill out, much less properly fill out, the GBO forms before leaving the yard at the commencement of his assignment on May 26, 2009. The rules obligation, as the Union submits, is only that the GBOS be properly signed and initialled at some point prior to entering the TGBO limits. Secondly, the Union maintains that to the extent that the radio communications which were monitored by Mr. Nadon took place during switching, the requirements of CROR 120 did not apply.

 

            The Arbitrator is satisfied that the Union is correct on both counts. Dealing firstly with the issue of radio communication, CROR rule 120 provides as follows:

120.   RADIO TERMS

 

(a)     In radio communication the following terms when used will denote:

          “STAND BY” – Monitor this channel for my next transmission. “OVER” – Transmission is ended and a response is expected. “OUT” – Transmission is ended and no response is expected.

 

(b)     Except when radio communication relates to switching operations, when a transmission is complete and a response is expected or required, the transmitting employee must end each transmission with the spoken word “over”.

                                                                        (emphasis added)

 

            As is evident from the foregoing, the rules contemplate that when a train crew is in the process of switching it is not improper to maintain an open channel, in effect pursuing an on-going conversation, as moves are being made. In that context the protocol of using words such “over and out” does not apply. The comments which Mr. Nadon reproaches Mr. McDavid for having made in fact involved visual observations which he was making of his workmate and a person near him at the time of a switching move, communications which I am satisfied where made entirely for the purposes of safety. There was nothing in the radio communication conducted by Mr. McDavid to merit any discipline.

 

            The same conclusion must be drawn with respect to the TGBO. At most what the evidence discloses is the apparent failure to initial one part of a fairly extensive document which had been heavily initialled by Mr. McDavid in the process of checking his GBO with his locomotive engineer. While technically that might be viewed as a violation, as I accept the grievor’s explanation that he did initial the GBO as required when his pen ran out of ink, I find that on balance this is not a proper case for discipline or any action beyond possible counselling.

 

            In light of the foregoing observations the Arbitrator finds it unnecessary to deal with the alternative submission of the Union to the effect that the Company failed to provide a fair and impartial investigation prior to the assessment of the twenty-five demerits.

 

            The grievance is therefore allowed. The Arbitrator directs that the twenty-five demerits assessed against Mr. McDavid be removed forthwith.

 

 

 

 

                        5

FIFTEEN DEMERITS, JUNE 30, 2009

 

  This grievance effectively involves the termination of an employee of thirty-five years service for having not fully laced his work boots to the top eyelets. At the hearing the Union filed the following dispute and ex parte statement of issue:

 

 

DISPUTE:

Assessment of 15 demerits to Conductor A. McDavid and subsequent dismissal from the Company for accumulation of demerits in excess of sixty (60).

 

EX PARTE STATEMENT OF ISSUE:

ON June 30, 2009, Mr. McDavid was employed as conductor on the Capreol West Pool. 21. The Company issued CN form 780 on July 8, 2009 assessing the grievor with 15 demerits for “Violation of GOI Section 8, Item 4.31 while employed as conductor on train on June 30th.”

 

The Union contends that there is no cause for discipline in the circumstances or, in the alternative, that the penalty is excessive, inter alia, article 94 of the Canada Labour Code.

 

The Company disagrees with the Union’s contentions.

 

            The Company assessed fifteen demerits against Conductor A. McDavid, and effectively discharged him after thirty-five years’ service, for an alleged violation of Section 8, Item 4.31 of the GOI Safety Rules. That section of the rules reads as follows:

 

4.3.1  In general, everyone on CN property is required to wear personal protective equipment (PPE) appropriate to the work location and the job being done. Please refer to the personal protective equipment standard. The following personal protective equipment applies to employees and contractors, as required by their work activities:

–   Hard hats

–   Protective eyewear including side shields)

–   Protective footwear (minimum 6 inches high, laced to top, defined heel)

–   Reflective apparel

 

 

 

            On June 30, 2009, the grievor was returning by taxi from the completion of his assignment, in the process of going off duty at the yard office in Capreol. As he was exiting the taxi he was observed by Superintendent Baker to be wearing work boots which were tied, but not fully laced to the top eyelets. He was then issued a notice to attend at a disciplinary investigation on July 5 in relation to his alleged violation of the GOI safety rules. Following that investigation the grievor was assessed fifteen demerits which, by reason of the accumulation of demerits, as it was then viewed by the Company, resulted in his termination.

 

            In the Arbitrator’s view the assessment of fifteen demerits against Mr. McDavid, an employee of thirty-five years’ service, for the infraction disclosed is grossly excessive. Firstly, it does not appear disputed that the grievor had finished his active duty when he exited the taxi on public property in front of the Company’s yard office in Capreol. The office stands between the public roadway and the working segments of the yard, in which the grievor had no duties to perform at that point in his day. He was simply entering the office to book off and leave.

 

            The unchallenged representations of the Union’s representatives are to the effect that in fact the terminal’s employees have lockers within the office building where they keep their boots and that it is not uncommon for them to enter the office from the street without work boots prior to commencing work, although it can be technically argued that they are not then on duty, as the grievor was.

 

            With respect to the application of article 4.3.1 of section 8 of the rule, the Arbitrator has some difficulty with the Company’s strict, if not draconian, approach. As is evident from the wording of the rule itself, the article in respect of safety equipment is not cast in absolute and unqualified terms. The wearing of hard hats, protective eyewear, safety boots and reflective apparel is conditioned upon such equipment being “appropriate to the work location and the job being done.” As the text of the rule indicates is to be worn by employees “…as required by their work activities.”

 

            What work activity was the grievor involved in as he walked from a taxi into the booking off office at the end of his tour of duty? While the Arbitrator well understands the importance of safety in the workplace, a concept repeatedly enforced in the decisions of this Office, it does not appear disputed that there was no immediate activity that the grievor was engaging in which would, of itself, require the use of a hard hat, safety eye wear, reflective apparel or, arguably, protective footwear as contemplated by the rule. I can understand the argument of the Union’s representatives who suggest that the grievor would not have been in violation of the spirit of the rule if in fact he had exited the cab wearing street shoes, having removed his safety boots before re-entering the yard office to end his day’s work.

 

In my view there is nothing in the incident which, by any reasonable and responsible exercise of management discretion, could be viewed as conduct deserving of discipline. At most, in my view, what the incident would suggest is the possibility of counselling or a written reprimand, although even the latter would seem questionable.

 

            On the basis of the material before me, even accepting that there may have been a technical violation of the rule by the grievor, I am satisfied that this is not an appropriate case for the assessment of any discipline against him. The Arbitrator therefore directs that the fifteen demerits assessed against Mr. McDavid be removed from his record forthwith.

 

6

 

GENERAL REMEDY, INCLUDING SECTION 94 OF THE    CANADA LABOUR CODE

 

            The material before the Arbitrator confirms that the grievor suffered two periods of suspension between February 5 and March 17, 2009 as well as between July 8 and November 2 of 2009. As the treatment of the individual grievances above makes clear, Mr. McDavid was not deserving of 100 of the 110 demerits assessed against him during the period July 4, 2008 to June 30, 2009. In the result, I am satisfied that he should have suffered no period of suspension and I direct that the Company compensate him forthwith for all wages and benefits, with interest, for the period of time relating to the two suspensions which he suffered. Although it appears that he is currently working by the agreement of the parties, it should be evident from the foregoing that he is to continue to work with his record to stand at 10 demerits, with no reference whatsoever to those parts of the discipline which have been stricken from his record by the Arbitrator.

 

            I turn to consider the disturbing question of whether there has been a violation of section 94 of the Canada Labour Code in the treatment of Mr. McDavid. The Arbitrator can understand the Union’s perspective with respect to the allegation of anti-union animus directed at Mr. McDavid. In its view it is difficult to understand how an employee who has given thirty-five years’ service, with little or no serious discipline for the violation of operating rules, codes of conduct or attendance issues before 2008, can have an accumulation of 110 demerits in the space of a year, to be rushed to the point of discharge. In the Union’s submission only anti-union sentiment can explain what it characterizes as the incredible treatment of Mr. McDavid: his being subjected to surreptitious observation by his supervisor 100 times over the course of a year and the assessment of large measures of discipline against him for relatively minor infractions and, in one case, a violation of the collective agreement by his supervisor in demanding him to produce medical documentation.

 

            A finding by this tribunal that the Company has violated the Canada Labour Code through the repeated excessive actions of Assistant Superintendent Gerald Nadon is an extremely serious matter. It could, if found, give rise to remedial measures well beyond the norm for mere violations of the collective agreement.

 

The decisions of labour relations boards in Canada have long recognized that employers or supervisors who violate the Code by punishing union activists or officers in the workplace seldom admit to doing so. Such illegal conduct is generally to be established by compelling inference, based on a pattern of actions which are so unusual as to suggest no other credible motive. Given the repeatedly excessive measures of discipline visited upon Mr. McDavid by Mr. Nadon, coupled with management’s own repeated violations of certain substantive and procedural employee protections in the collective agreement, in stark contrast to the grievor’s excellent record over thirty five years of service, the Arbitrator can readily appreciate the Union’s perspective of these unfortunate events.  

 

 

However, In the Arbitrator’s view, in the instant case, it is most appropriate and hopefully most constructive to place in abeyance the unfair labour practice charge, reserving my full jurisdiction under the provisions of the Code, making no determination on that question at this point in time, and referring this matter back to the parties in light of the collective agreement rulings made in the five grievances dealt with herein. It is to be hoped that, in light of the findings and directions made, the parties may be able to resolve all aspects of their dispute so that no further consideration is necessary. Should they be unable to do so, however, the Arbitrator retains jurisdiction and will engage in an analysis of the evidence and a determination of whether there was a violation of section 94 of the Canada Labour Code by the Company, and if so what remedy should be ordered, should it become necessary to do so.

 

            On the foregoing basis, therefore, the matter is remitted to the parties, and the Arbitrator retains jurisdiction in the event of their inability to agree on a final resolution.

 

 

Dated at Ottawa this 3rd  day of December 2009.

 

 

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MICHEL G. PICHER

ARBITRATOR