AH604

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN

 

 

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

 

 

AND

 

 

TEAMSTERS CANADA RAIL CONFERENCE

(the “Union”)

 

 

RE: GRIEVANCE OF SARDAR NASIR

 

 

 

Sole Arbitrator:                      Michel G. Picher

 

 

 

Appearing For The Union:

            J. M. Robbins                  – General Chairman, Sarnia

 

 

Appearing For The Company:

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

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

 

 

 

 

A hearing in this matter were held in Montreal on Tuesday, April 27, 2010.

 

AWARD

 

            The parties filed the following Dispute and Joint Statement of Issue at the hearing.

 

DISPUTE:

 

The discharge of Conductor Sardar Nasir for the accumulation of demerits effective 4 September 2009.

 

JOINT STATEMENT OF ISSUE:

 

On 4 September 2009, Conductor Nasir was discharged from the Company’s service for his accumulation of demerits in excess of 60.

 

The grievor has been assessed discipline in the following issues which are before the arbitrator:

 

1.    15 demerits for “Attendance Management violation (missed call) on September 29th, 2008 for the 07:00 Side Tower Coordinator’s position.”

 

2.    20 demerits for “Circumstances surrounding your failure to comply with General Rule A(x)(xi) when observed sleeping while working as a Dual Yardmaster on October 4, 2008.”

 

3.    30 demerits for “Circumstances surrounding your involvement in the collision between CN 7500 and a cut of cars on the East Crest while working as Dual Hump Yardmaster on August 14th, 2009.”

 

It is the Union’s position that the discipline assessed, in consideration of all the factors relating to this matter, is unfounded and unwarranted and should be removed in its entirety.

 

Without prejudice to our position or to progress this in other forums, consistent with Addendum 123 and given the preceding, it is the Union’s position that the Company has violated: The Workplace Environment provision contained in the collective agreement; Articles 84 and 85 of the collective agreement; the Grievance Tracking System (GTS); and the Brown System of discipline.

 

As a result of such violations, it is the Union’s position that the grievor be exonerated of any wrongdoing with all the discipline removed and, given the violations of the collective agreement that a remedy is applicable in the circumstances consistent with Addendum 123 of the collective agreement. That the Company and the Union agree to meet within 60 of the date of the Union’s Step 3 grievance and attempt to reach agreement on the appropriate remedy to apply. Failure as to the appropriate remedy (to be determined by either party upon written notice to the other) to be submitted to the arbitrator for resolution within 30 days of such failure.

 

The Company disagrees and deems that the discipline assessed was both warranted and appropriate in the instant case.

 

(signed) J. M. ROBBINS                  (signed) F. O’NEILL

GENERAL CHAIRMAN                    MANAGER, LABOUR RELATIONS

 

 

            Having reviewed the evidence and heard the submissions of the parties, the Arbitrator is satisfied that there are grounds for adjusting the three heads of discipline assessed against Mr. Nasir.

 

            Firstly, the thirty demerits for his involvement in the derailment of August 14, 2009 cannot stand. The record discloses that the Company conducted the investigation of another employee, YOE Sean Clark. However, the Company officer who conducted the investigation of Mr. Clark failed to advise the grievor of his right to attend that investigation in accordance with article 32 of collective agreement 4.2, the collective agreement governing yardmasters. Under the terms of that article Yardmaster Nasir was entitled to have notice of the investigation of the other employee and to ask questions of any witness/employee during the investigation as relates to his own responsibility. The failure of the Company’s officer to provide the grievor notice of the investigation renders the assessment of thirty demerits null and void ab initio, and it is so declared.

 

            The grievor was also assessed twenty demerits for sleeping while on duty. The Arbitrator is satisfied that the infraction is made out, but given the grievor’s prior record and the fact that this was a first offence, I am satisfied that five demerits would be a more appropriate measure of discipline and I therefore direct that his disciplinary record be corrected accordingly.

 

            It is also true that the grievor was responsible for the violation of the Company’s AMS policy, as a result of which he was assessed fifteen demerits. Again, given that the grievor’s record, I am satisfied that a written reprimand would suffice for the corrective effect in relation to that incident.

 

            In the result, the Arbitrator directs the adjustment of the grievor’s record in the terms described above, and orders that he be reinstated into his employment without any compensation for his wages lost and without loss of seniority as well as with no loss of benefits. The time between the grievor’s termination and his reinstatement shall be recorded as a suspension.

 

 

Dated at Ottawa this 30th day of April 2010.

 

 

_________________________________

MICHEL G. PICHER

ARBITRATOR