AH612

AWARD OF THE ARBITRATOR

The Union maintains that the Company has improperly refused to provide to it a copy of the transcript of a disciplinary investigation statement taken from one of its members. The nature of the dispute is outlined in the Dispute and Joint Statement of Issue filed at the hearing which reads as follows:

DISPUTE:

Appeal of the Company’s refusal to provide a copy of the statement taken from and evidence provided S&C Technician Luigi Bernava in Revelstoke, B.C. on or about June 15, 2010.

JOINT STATEMENT OF ISSUE:

On or about June 15, 2010, the Company obtained a formal statement from S&C Technician Luigi Bernava in Revelstoke, B.C. Mr. Bernava is a member of the Union, Mr. Bernava declined Union representation in this statement.

Subsequent to this statement, the Union has requested from both the Revelstoke Office and Labour Relations a copy of Mr. Bernava’s statement and evidence provided to him over the course of the Company’s investigation. The Union’s repeat requests have been denied to date.

CONTENTIONS OF THE UNION:

The Union contends that it is responsible for the representation of all of its members in all aspects of their employment with the Company. Therefore being denied this information will affect the ability of the Union to properly represent all members. The Union contends that this constitutes a violation of Wage Agreement No. 1.

The Union further contends that the Company’s refusal to produce Mr. Bernava’s statement violates the Canada Labour Code as it undermines the Union’s exclusive agency to bargain and arrive at agreements containing provisions respecting terms and conditions of employment and related matters for all employees in their bargaining unit.

UNION’S REQUEST:

The Union further requests that the arbitrator direct the Company to provide a copy of Mr. Bernava’s formal statement and evidence to the Union.

The Company denies the Brotherhood’s contentions and declines the Brotherhood’s request.

The facts pertinent to this grievance are not in substantial dispute. On May 28, 2010 S&C Technician Lou Bernava, who is based in Revelstoke, B.C. was working in conjunction with a contractor in the installation of cable in the Mount MacDonald and Shaughnessy Tunnels. As he was working the grievor’s own hy-rail vehicle was struck on its front end bumper by the hy-rail vehicle being operated by the employees of the contractor. It does not appear disputed that there were no injuries nor any significant damage to the vehicles or equipment. Subsequently the Company conducted an investigation in Revelstoke on June 15, 2010. It appears that the Union representative who would have otherwise been in attendance at the investigation with Mr. Bernava had a conflict, and could not attend. Although the Company was apparently prepared to adjourn the statement, it seems that Mr. Bernava was content that it should proceed, indicating that he did not want Union representation to be present. The employee’s statement was taken and, in due course a copy of his statement was provided to him. He was not found to have been at fault and no discipline was assessed against him.

It is common ground that a copy of the employee statement was not provided to the Union’s representatives. The Union grieves, alleging that the Company’s refusal to provide to it a copy of the statement by Mr. Bernava is contrary both to the intent of the collective agreement and the proper functioning of the Union as bargaining agent within the framework of the Canada Labour Code.

As noted above, Mr. Bernava chose to proceed with the taking of his statement without the benefit of having a Union representative with him. While a copy of his statement was provided to him by the Company, it appears that thereafter he has declined to allow the Union access to his copy of the statement. The Union’s position is that, as bargaining agent, it is entitled to its own copy of any disciplinary statement taken within the framework of the collective agreement.

Article 12 of the collective agreement deals with the conduct of disciplinary investigations. In that regard it provides, in part, as follows:

12.1 An employee shall not be disciplined or dismissed without having had a fair and impartial investigation and his responsibility having been established. An employee may, however, be held off for such investigation for a period not exceeding five days and when so held off shall be given one (1) day’s notice in writing of the charges against him. Notwithstanding the foregoing, an Officer who may be on the ground when the cause of the investigation occurs may hold an immediate investigation.

For matters involving Human Rights (Harassment or Discrimination), Appendix 11 will apply.

12.2 When an investigation is to be held, the employee will be provided twenty-four (24) hours written notice of the time, place and subject matter of such hearing. He may, if he so desires, have a fellow employee and/or an accredited representative of the Union present at the hearing and shall be furnished with a copy of his own statement and, on request, copies of all evidence taken. The employee subject to the investigation will not suffer any loss in regular earnings.

12.3 All material and necessary witnesses must be notified to appear. An employee shall have the right to be present during the examination of any witness whose evidence may have a bearing on his responsibility or be accorded the right to read the evidence of such witness and offer rebuttal thereto.

12.4 A decision shall be rendered with twenty-eight days of the date that the investigation is completed – i.e., the date that the last statement in connection with the investigation is taken except as otherwise mutually agreed.

The position of the Company is relatively straightforward. It stresses that the participation of a Union representative in a disciplinary investigation is not mandatory. Rather, as reflected in article 12.2 of the collective agreement, it is within the discretion of the employee in question to decide whether he or she desires to have either a fellow employee or an accredited Union representative with them at the hearing. Secondly, counsel for the Company notes that the only reference to the providing of copies of the employee’s statement found in article 12.2 indicates that it is the employee who is to be provided with a copy, although he indicates that as a matter of courtesy when a Union representative is involved a copy is also provided to the Union. However, from the standpoint of the collective agreement rights here at issue, the Company stresses that there is nothing within the terms of article 12 which would give to the Union either its own independent access to attend at a disciplinary investigation, apart from the wishes of an employee, or a copy of the employee’s statement in circumstances where the employee has elected not to utilize Union representation during the investigation and has apparently opted not to share a copy of his or her statement with the Union.

The Company’s position extends beyond the bare provisions of the collective agreement. While its first position is that the collective agreement does not contemplate a copy of an unrepresented employee’s statement being provided to the Union, during the course of correspondence between the parties the Company’s Assistant Vice-President, Industrial Relations, Mr. Rick Wilson also communicated the following to the Union:

Based on Privacy legislation we are also precluded from turning the statement to the Union without the employee’s consent.

In that regard counsel for the Company cites to the attention of the Arbitrator certain provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA) which he submits have a bearing on the issue. He notes to the Arbitrator’s attention portions of the Company’s Policy on Privacy of Information, including the following excerpt from the policy statement:

Canadian Pacific Railway Company will protect the privacy of its employees and other individuals with whom it deals by promoting responsible practices in the management of personal information collected in the course of managing its operations, including complying with employment related legislation, in accordance with the provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA).

In support of the above, CPR will ensure that all personal information collected and stored on any media is maintained in a secure manner and protected from unauthorized use and disclosure.

The policy goes on the define personal information as follows:

Personal information refers to any information about an identifiable individual but does not include the name, title, business address or business telephone number of an employee.

Personal information includes, but is not limited to, information in any form such as:

· Age, Social Insurance Number, employee number income, ethnic origin, blood type

· Opinions, evaluations, comments, social status or disciplinary actions

· Employee records, credit records, loan records, medical records, educational records, criminal history

· Correspondence with CPR that is explicitly or implicitly of a private nature.

· Views or opinions concerning an employee/individual, performance evaluations, succession planning information

While the policy makes specific reference to the confidentiality of an employee’s “disciplinary actions” and not to the content of disciplinary investigations the position of the Company is plainly that the information gathered during the course of investigatory statement taken for the purposes of possible discipline is confidential to the employee and not to be released, absent the employee’s consent. The Company obviously deems implicit consent to be given with respect to releasing information to the Union when a Union representative is selected by the employee to represent him or her at such an investigation. However, where the employees opts against Union representation, as in the instant case, the Company submits that the employee’s statement remains confidential and is not to be disclosed without the employee’s consent.

The record confirms that, in accordance with normal procedure, a safety report did issue with respect to the incident, a copy of which was provided to the Union. That report is entitled “Investigation of Safety-Related Occurrences Protocol (ISROP)”. The report, dated June 24, 2010, which was provided to the Union contains an outline of the time, location and nature of the incident. Counsel for the Union points out certain discrepancies and inconsistencies in the dates and data contained in the ISROP, a fact which he submits further justifies the Union’s wish to obtain a copy of Mr. Bernava’s employee statement.

Counsel for the Union submits that the position of the Company, which is to deny the information requested by the Union, is inconsistent with the investigation provisions found within article 12 of the collective agreement, is such as to frustrate the Union’s duty of fair representation under section 37 of the Canada Labour Code and is arguably an interference with the administration of the trade union and its ability to represent it members under section 94 of the Code. Those provisions read, in part, as follows:

DUTY OF FAIR REPRESENTATION

37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.

EMPLOYER INTERFERENCE IN TRADE UNION

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 employees by a trade union;

Counsel for the Union also relies on the decision of the Federal Court of Canada, Trial Division, issued by Pinard, J. on May 13, 2003 and upheld on appeal by the Federal Court of Appeal in L’Ecuyer v. Aeroports de Montreal, 2004 FCA 237. In that case it was found that the Privacy Commissioner did not have jurisdiction with respect to an employee’s allegation that the employer violated her privacy rights by copying certain correspondence which it sent to her to her union. The Court held that the issue was exclusively for an arbitrator under the Canada Labour Code, in accordance with the decision of the Supreme Court of Canada in Weber v. Ontario Hydro

[1995] 2 S. C.R. 929. Alternatively, the Court ruled that there could be no violation of the employee’s privacy rights by the employer as her originating letter to the employer, seeking access to information, had in fact been copied to the union, whose representatives had been actively involved in representing her in respect of her complaint to the employer. In those circumstances the Court found that the employee “…consented, at least by implication, to disclosure of [the letter] to the union representatives.”

The Arbitrator can readily appreciate the perspective of the Union. It submits that it has reason to believe that the contractor vehicle which was involved in the collision in the Shaughnessy Tunnel was operating in violation of what it considers was the Company’s obligation to ensure that a bargaining unit employee or other pilot was aboard the contractor’s hy-rail vehicle. Its general position is that it should have full access to the facts of the incident, as part of its obligation to properly represent all employees in the workplace and to ensure that they work in a safe environment. However it does not ground its primary position before the Arbitrator on the narrow basis of safety. Its fundamental position is that as the bargaining agent of the employees the Union is entitled to have a copy of any statement which is taken in accordance with the investigation provisions of article 12 of the collective agreement. In the submission of its counsel, the denial to the Union of any employee’s statement taken under that article is tantamount to an interference with the administration of the bargaining unit by the Union itself, contrary to the general intent of Canada Labour Code and the collective agreement. As reflected in the correspondence between the parties, the Union also takes the position that it is entitled to have access to the employee statement of Mr. Bernava for the purposes of being able to compare his treatment with that of other employees in similar circumstances. That, indeed, appears to have been the primary basis for the Union’s request. Finally, counsel for the Union submits that there is nothing in PIPEDA which would prevent the release of the information sought. He submits that the information which would be released to the bargaining agent would be entirely for “appropriate purposes”, an exception to the withholding of personal information as contemplated under section 5(3) of PIPEDA.

Counsel for the Union also notes that under Part II of the Canada Labour Code, section 125(1)(c) places an obligation on the employer to “investigate, record and report in the manner and to the authorities as prescribed all accidents, occupational diseases and other hazardous occurrences known to the employer.” In the Union’s submission the employer’s obligation to investigate and report as mandated by statute is “meaningless” if the investigation is not in fact shared with the Union which bears an equal responsibility for health and safety in the workplace.

I turn to consider the merits of the dispute. In doing so, I consider it important to focus on the Union’s primary position, namely that as bargaining agent it is entitled to have access to any employee statement taken under article 12 of the collective agreement, regardless of whether the employee under investigation declined Union representation and has not consented to release his or her statement to the Union. In approaching that issue it is obviously paramount to have close regard to the language of the collective agreement which was fashioned by the parties themselves. As is evident from the text of article 12.2 of the collective agreement, it is undeniable that an investigation can proceed without an accredited representative of the Union being present. Whether a Union representative is present or not is a matter, in the clear terms of article 12.2, within the discretion of the employee concerned. That individual may have another fellow employee or a Union representative at the investigative hearing “… if he so desires, …”. It is not disputed that in the case at hand the grievor waived the presence of a Union representative and wished to proceed without either a fellow employee or an accredited representative of the Union when his statement was taken concerning the events of May 28, 2010 in the Shaughnessy Tunnel.

Does article 12 contemplate that notwithstanding the employee’s choice that the Union not participate in the hearing, that it is nevertheless entitled to a copy of the employee’s statement? Again, with the greatest respect to the argument of the Union, article 12.2 is plainly bereft of any reference of a copy of the employee statement being provided independently to his or her Union. On the contrary, as article 12.2 clearly states, it is the employee who “shall be furnished with a copy of his own statement …”. There is, very simply, no equivalent reference to a copy of the statement being provided to the Union. It should be stressed that the Arbitrator sees nothing irregular in the fact that the Company deems that an employee consents to a release of his or her statement to the Union in circumstances where that employee has consented to the Union participating in the investigative hearing as his or her representative. However the thrust of the language of article 12.2 is plainly to the effect that the Union has no independent right to a copy of the employee’s statement taken. In my view, in the face of such explicit language, an arbitrator cannot lightly infer that the parties intended the Union to have an independent right to a copy of an employee’s statement.

Nor does the foregoing analysis suggest that an employee statement is for all purposes inaccessible to the Union. Obviously, if another employee who accepted Union representation was being investigated in relation to the same incident, that employee, and his Union representative, would be entitled to see the statement of an employee who declined Union representation, in accordance with the natural justice protections of article 12.3 of the collective agreement, reproduced above. For the foregoing reasons, on the basis of the provisions of article 12, the Arbitrator would be compelled to dismiss the grievance.

Nor can I find support for the Union’s position in the Court’s decision in the Aéroports de Montréal case. That case concerned a finding that there was consent by the employee to her union being provided a copy of correspondence to her from her employer and that on the basis of that consent there was no violation of her privacy right. In coming to that conclusion the Court stressed that the union had acted for her in dealing with the employer on her complaint. In the instant case the opposite is true. The employee chose not to be represented by the Union, as was his right under the collective agreement, refusing to consent to the sharing of his statement with the Union. In my view the Aéroports de Montréal case cannot be taken as authority for the proposition that the Union’s status as bargaining agent under the Canada Labour Code gives it an inherent right to copies of documents or statements in an employee’s record generated in an employment relationship governed by a collective agreement, including documents in relation to possible discipline. As noted by the Court of Appeal, the employer’s “duty” to share the correspondence with the union “in this particular case” was narrowly predicated on the employee’s implied consent. In my view, as a matter of law, should the Union wish to have access to copies of all statements taken in employee investigations, it must negotiate clear language to that effect in the collective agreement, something it has not yet done.

The issue then becomes whether there are broader concerns with respect to health and safety which come to bear in the instant case, which might separately justify disclosure of the statement. In approaching that issue I deem it important to repeat that the Union did not, in its communications with the Company requesting copies of Mr. Bernava’s statement, express or indicate that it was doing so out of a concern for issues of health and safety. Rather, the thrust of the communications from the Union appear to have centred more on the Union’s ability to ensure that employees are treated alike in similar situations, bearing in mind that there had been other events involving discipline comparable to those which occurred with Mr. Bernava. It is also, I think, critical to respect the framework in which the Union may deal with health and safety concerns. Appendix 24 of the collective agreement provides for the appointment of one full time Health & Safety Representative “… to assist the System Health & Safety Committee address Health & Safety issues in the workplace.” The workplace is obviously subject to the provisions Canada Labour Code, and in particular Part II which relates to occupational safety and health. The workplace Health & Safety Committee established under the terms of section 135 of the Code deals extensively with the duties and rights of the workplace committee, which is comprised of both employer and employee representatives. Of particular interest are the provisions of section 135(8) and (9) which are as follows:

(8) Information – A work place committee, in respect of the work place for which it is established, may request from an employer any information that the committee considers necessary to identify existing or potential hazards with respect to materials, processes, equipment or activities.

(9) Access – A work place committee, in respect of the work place for which it is established, shall have full access to all of the government and employer reports, studies and tests relating to the health and safety of the employees, or to the parts of those reports, studies and tests that relate to the health and safety of employees, but shall not have access to the medical records of any person except with the person’s consent.

As the foregoing provisions indicate, in the event of a genuine concern about health and safety, it is open to the workplace Health & Safety Committee to request and obtain from the employer such information and reports in its possession as relate to the health and safety of employees. While I make no ruling on the matter, it is at the very least arguable that the workplace Health & Safety Committee could have requested the very information which the Union seeks in the instant case, if only as a means of better understanding the circumstances which apparently led to a minor head on collision between two hy-rail vehicles within the Shaughnessy Tunnel. That avenue, however, has obviously not been followed in the case at hand. As indicated above, the position of the Union, one which I am compelled on the language of the collective agreement to reject, is that it is absolutely entitled to a copy of an employee’s statement, even though the employee opted not to be represented by the Union, has not consented to the release of his statement and was not made the subject of any discipline as a result of what occurred. To be clear, there is nothing in the collective agreement which would give the Union independent access to the employee’s statement for the sole purposes of comparing the treatment of Mr. Bernava to the treatment of other employees in similar circumstances, for purposes entirely unrelated to safety.

For all of the above reasons, the Arbitrator has substantial difficulty allowing the instant grievance. As is evident, the Union has not negotiated language within the terms of article 12, nor any other part of the collective agreement, which clearly give to it a right to receive a copy of an employee’s statement at a disciplinary investigation in circumstances where that employee has chosen not to have a Union representative assist him and has expressly not consented to the release of his statement. There is, therefore, no basis within the terms of the collective agreement upon which the grievance can be allowed.

Nor can the Arbitrator accept the submission of the Union that the Company’s approach, which is to respect the private nature of the statement provided by the employee, can be fairly qualified as interference with the Union’s ability to represent its members. As is evident from the record, for reasons he best appreciates, Mr. Bernava declined Union representation and, as stressed above, article 12 of the collective agreement contemplates the release of his statement to him and to him alone. Additionally, while the Canada Labour Code does contain important provisions which would allow access to certain health and safety information in response to a properly made request of a workplace Health & Safety Committee, no such request has in fact been formulated in the case at hand. For the reasons it best appreciates, the Union based its unilateral request entirely on its view that as certified bargaining agent of the employees it is entitled to the information to ensure the equal treatment of its members. In the Arbitrator’s view, that is a right which it is entitled to bargain within the terms of the collective agreement, but which is plainly absent from the current provisions of that document.

For all of the foregoing reasons the grievance must be dismissed.

Dated at Ottawa, this 6th day of May, 2011

__________________________________

MICHEL G. PICHER

ARBITRATOR