(the “Company”)







(the “Union”)







Sole Arbitrator:                      Michel G. Picher




Appearing For The Union:

            J. M. Robbins                  – General Chairman, Sarnia

            J. Kendall                        – Grievor



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 Wednesday, April 28, 2010.




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




The discharge from service of Conductor J.R. Kendall for his accumulation of demerits in excess of 60.




On 27 October 2009, Conductor Kendall was issued a Form 780 indicating that he was discharged from the Company’s service for his accumulation of demerits in excess of 60. The grievor was assessed discipline in the following issues before the arbitrator.


1.    20 demerits for “your violation of Eastern Division Notice No. 019 “Attendance Management Guidelines” as a result of your missed call on January 24, 2009.”


2.    25 demerits for your “missed call on May 1, 2009.”


3.    14 demerits for “Circumstances surrounding your failure to be dressed and ready while working as the 04:00 Dual YOE on May 22, 2009.”


4.    25 for “Your work history for the month of September 2009.”


5.    40 demerits for “Circumstances surrounding involvement in collision between yard engine CN 7274 and railcar CN 137275, while working as foreman on 16:00 Extra East on October 15th, 2009 at CN Macmillan Yard.”


In view of the above it is the Union’s position, however not limited thereto, that the Company has violated the following: Article 82 of Agreement 4.16; The Workplace Environment provisions contained in the collective agreement; CROA&DR jurisprudence; and the Canadian Human Rights Act.


Further, and without prejudice to the foregoing settlement, and as a result of the collective agreement violations, it is the Union’s position that: 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 days 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



            The instant grievance concerns five heads of discipline assessed against Mr. Kendall, as reflected in the joint statement of issue. Having reviewed all of the submissions as well as the evidence in the record, the Arbitrator is satisfied that in each of the five incidents the grievor did make himself liable to discipline.


            In the Arbitrator’s view the more important issue is the appropriate measure of discipline to be applied, cumulatively, to Mr. Kendall in all of the circumstances. The record discloses that Mr. Kendall has some fourteen years of service with the Company. His disciplinary record would indicate that in terms of job performance he has been a relatively good employee. Prior to the collision causing minor damage which occurred on October 15, 2009, he only had two previous rules violations, dating back to March and December of 2004. What is most obvious from the record, however, is that the grievor has had an unacceptable performance with respect to attendance at work, a problem which plagues his record in a consistent way between 2004 and 2009, the time of his discharge.


            While the Union has sought to introduce evidence to suggest that the grievor was the victim of singling out and harassment, the Arbitrator cannot see that allegation as sustained on the evidence. Whatever the relationship the grievor might have had with a particular supervisor, the objective fact remains that he did make himself liable to discipline, repeatedly, by the infractions which are all found to have incurred in the record in this arbitration.


            However, the Arbitrator is not persuaded that the grievor should not be given a last chance, subject to certain clear conditions fashioned to protect the Company’s legitimate interests with respect to his attendance at work and his respect of the need to receive and accept calls. The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, his record shall reflect an assessment of forty-five demerits, based on the missed calls of January 24 and May 1, 2009. The balance of the discipline assessed against the grievor shall be treated as a suspension, from the time of his termination to the time of his reinstatement. He shall therefore return to work with forty-five demerits on his record. His reinstatement shall, however, be without compensation for wages and benefits lost and without loss of seniority. However, his reinstatement is conditioned upon the grievor accepting to work under the following conditions, to be in place for a period of two years: during the first two years following his reinstatement Mr. Kendall shall maintain an attendance record and a record in respect of calls that is better than or at least equal to the average of his peers for the two year period. Should he fail to maintain that average in any continuous three month period during the two years he shall be subject to immediate discharge, with access to arbitration only for the purposes of determining the grievor’s data and the data for the average of his peers for the period in question.


Dated at Ottawa this 30th day of April 2010.