AH613

AWARD

The Company has discharged the grievor for possessing and using a firearm on Company property while on duty. It submits that his possession of a hunting rifle in an attempt to shoot deer while working in remote areas of Northern Ontario, during on duty hours, constitutes conduct unbecoming an employee and a violation of Safety Rules and Recommended Practices for Engineering Services Employees Item I-K. It submits that his actions did justify his termination in the circumstances.

The Union maintains that the Company failed to provide the grievor with a fair and impartial investigation in compliance with article 12 of the collective agreement and that, in any event, the measure of discipline was excessive in the circumstances and unfair as compared to the discipline assessed to other employees in similar circumstances.

The nature of the dispute is reflected in the Joint Statement of Issue filed before the Arbitrator at the hearing, which reads as follows:

JOINT STATEMENT OF ISSUE:

S&C Maintainer Mr. Kevin Waterson was dismissed from Company service for alleged “conduct unbecoming an employee of the Company as demonstrated By your unauthorized possession of a loaded firearm on Company property and in a Company vehicle, and for engaging in hunting activities on Company property and while on duty, a violation of Safety Rules and Recommended Practices for Engineering Services Employees, Item 1-K, while employed as S&C Signal Maintainer MacKenzie on October 29th, 2010.”

The Union contends that the investigation was not conducted in a fair and impartial manner as 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 Mr. Waterson be made whole.

The Union further contends that there is no cause for discipline in the circumstances or, in the alternative, that the penalty of discharge is excessive and unwarranted.

The Union requests that Mr. Waterson be reinstated without loss of seniority and benefits and that he be made whole for all lost earnings, with interest. In the alternative the Union requests that the penalty be mitigated as the arbitrator sees fit.

The Company disagrees and denies the Union’s request.

The facts in relation to this grievance are not in substantial dispute. Mr. Waterson is an S&C Maintainer who, in October of 2010, was working at MacKenzie on the Nippigon Subdivision of Northern Ontario. On October 29, 2010 he was assigned, along with S&C Apprentice Shayne Ivey, to conduct a pole line patrol on the Nippigon Subdivision between MacKenzie and Current River, identifying and clearing fallen trees after a particularly strong windstorm.

The grievor was in possession of a Company hy-rail vehicle. As he had on the day previous, on October 29th he brought into the Company truck his personal hunting rifle which was apparently unloaded and in its storage case, with ammunition being separately carried on his person. By his own admission, he carried the rifle for the purpose of hunting deer that they might encounter or, as he put it “In case we saw the trophy buck.”

The evidence confirms that during the course of duty on that day on two separate occasions Mr. Waterson and Mr. Ivey did see deer adjacent to the track that they were travelling on. On both occasions Mr. Waterson removed his rifle from its case, exited the vehicle and walked towards the animals. In both incidents, however, the deer removed themselves into the adjacent woods so that in fact no ammunition was loaded and no shots were fired.

There appears to be little doubt but that the employees realized that the grievor’s activities were contrary to Company rules. When they arrived back at MacKenzie shortly before 10:00 a.m. on that day, having removed their hy-rail truck from the tracks, Mr. Ivey exited the truck stating “I want no part of this.” Mr. Ivey then left for home in his personal vehicle. It appears that shortly afterwards the grievor and Mr. Ivey telephoned their supervisor, Mr. Stephen Moore.

It seems that both individuals left messages for Mr. Moore who returned a call to the grievor at approximately 10:30 a.m. Mr. Waterson then advised him of what had occurred and was told to await further instructions. Mr. Waterson then proceeded to his home where he returned his hunting rifle to its normal storage place before returning to the Company tool house. He was there met by S&C Manager Marcel Gauthier, Structures Engineer Paul Zachariasz and CP Police Sergeant Scott Macaskill. The grievor then provided to Sgt. Macaskill documentation to establish that he was in lawful possession of a registered firearm as well as all required hunting permits. He was then removed from service by Mr. Gauthier.

During the course of an ensuing investigation held on November 3, 2010 the grievor, when asked to explain his actions, indicated that he believed that wilderness hunting was a fringe benefit of the S&C Maintainer’s job and also commented that there was considerable theft and vandalism occurring on his territory. During the continuation of the investigation on November 4, 2010, when asked to explain his comment about “fringe benefits” Mr. Waterson responded: “Guns have been in Company motor cars and vehicles since the first day I started working and used to be an accepted practice during hunting season.” He further elaborated that, as regards trespassers and vandals: “I was implying it gave me a peace of mind while I work alone in isolated areas.” In another part of his evidence the grievor recounts being surprised by three thieves while working fixing power lines, though he added: “The thought of ever using a firearm on a trespasser has never crossed my mind.”

On the basis of the material gathered during the course of the investigation the Company made the decision to terminate the grievor’s services. It recognizes that his prior disciplinary record, while not exemplary, does not involve an extensive list of serious offences. However, its representative stresses that the Company considers the incident of October 29, 2010 as being sufficiently grave to call into question the grievor’s continued employment, and on that basis the decision was made to terminate his services.

As a preliminary matter, the Union challenges the quality of the investigation conducted by the Company. It maintains, on two separate grounds, that the grievor was denied a fair and impartial investigation. Firstly, its counsel submits that the Company should have provided to the Union the report completed by Sgt. Macaskill. Secondly, it maintains that the grievor was denied the opportunity to be present during the course of the statement taken from S&C Apprentice Ivey.

In the Arbitrator’s view neither of those challenges can succeed. Firstly, it should be stressed that as a general rule within the administration of investigations under collective agreements in the railway industry the standard of a fair and impartial investigation generally requires that the employee and his Union representative be in possession of all documentation which is the possession of the investigating officer. In the instant case it is not disputed that the Company’s police force operates as an independent entity, and as a general rule does not supply documents, notes or reports to the operational branch of the Company. In the instant case that is what occurred. The Company officials responsible for the investigation of the grievor’s conduct and the assessment of discipline against him had never received or been in possession of any written report from Sgt. Macaskill.

What the record discloses is that the investigating officer received an oral statement from Sgt. Macaskill to the effect that there was no conduct discovered on the part of the grievor that would involve any violation of the criminal law. That verbal statement by Sgt. Macaskill was duly and fully related by the investigating officer to the grievor and his Union representative during the course of the investigation, as recorded in the Q&A document placed before the Arbitrator. In essence, the CP Police concluded that the grievor had done nothing wrong and conveyed that information verbally to management who immediately shared it fully with the Union. On what basis can that sequence of events be said to involve a deprivation of due process to the grievor? I can see none. What the record confirms is that in the end the Union was in possession of all of the same information and knowledge as was in the hands of management responsible for the disciplinary assessment of Mr. Waterson. I must therefore conclude that there was no violation of the obligation to provide a fair and impartial investigation, on that basis.

The second allegation of the Union is that the grievor was improperly denied the ability to attend during the course of the investigative statement given by Mr Ivey. Again, the Arbitrator cannot accept that a violation of the collective agreement is disclosed. Article 12.3 of the collective agreement speaks directly to the issue and provides as follows:

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.

As is evident from the foregoing, the obligation of the Company under article 12.3 can be discharged on an alternative basis. On the one hand it can allow the grievor to be present during the examination of a witness. On the other hand, as an alternative, it can equally discharge its obligation by according to the grievor the opportunity to read the evidence of that witness and offer rebuttal to it. The latter option is what occurred in the case at hand. There is no dispute that the investigative statement of Mr. Ivey was fully provided to the grievor and his Union representative at the outset of his investigation. Mr. Waterson and the Union therefore had every opportunity to know the content of Mr. Ivey’s statement with full precision and also had the opportunity to rebut it through their investigatory statement and submissions. Again, I can find no violation of the collective agreement, nor any failure to provide a fair and impartial investigation. I must therefore reject the second procedural objection raised by counsel for the Union.

I turn to consider the merits of the dispute. Viewed from a certain perspective the Arbitrator can understand how the grievor’s actions and words gave considerable concern to the Company. Following an unfortunate shooting fatality in the late 1980s where hunting firearms were present on Company property, the Company promulgated a prohibition against the unauthorized possession of firearms or ammunition on Company property by employees, in the terms of Rule I-K. It does not appear disputed that firearms and ammunition are sometimes permitted, with the proper authorization of CP Police, where it becomes necessary to do so, as for example in the eradication of beavers or other pests whose activities might threaten the integrity of the Company’s roadbed and operations. In the case at hand, however, there was no such justification, much less authorization, and to all outward appearances the grievor proceeded in flagrant disregard of a well promulgated rule. If anything, his circumstance was aggravated by his unfortunate comment about the value of a firearm in a Company vehicle in light of ongoing theft and vandalism.

There are, however, substantial mitigating factors to be considered in this case. Firstly, as stressed by counsel for the Union, the grievor, an employee of some twenty-six years of service, has had a relatively positive disciplinary record. As counsel notes, since 1993 the grievor received only a caution, with his earlier discipline being relatively light.

Of equal concern is what appears to have been the treatment of other employees charged with similar infractions by the Company. Three such examples are offered by the Union. In 2002 a B&B Foreman working in the Sudbury area used a registered hunting rifle to kill a beaver without any authorization. That incident occurred on Company property with the weapon being carried without authorization in a Company vehicle. As discipline, a caution was registered against the foreman in question.

In 2005 an S&C Maintainer was investigated for carrying a firearm in his vehicle while on duty. The employee admitted that he used his gun to shoot injured trap animals and suggested that he had permission from the Company to trap and hunt on a certain section of the Winchester Subdivision. When it was revealed that he did not in fact have proper authorization to do so, he was assessed ten demerits for his violation of rule I-K. Finally, the Union refers to a third incident, the timing of which does not appear clear, which involved an S&C Maintainer who used an unauthorized firearm to shoot moose on Company property, as a result of which he was prosecuted by the Ministry of Natural Resources. While the employee in question was investigated and disciplined by the Company, he was not discharged.

While it is trite to say that each case must turn on its own facts, I am compelled to agree with the Union that the Company’s historic treatment of firearms infractions committed by employees working in wilderness areas, generally in relation to hunting, must at the very least be seen as a mitigating element to be taken into account in the case at hand. It is also significant, I think, that the grievor was at all times forthcoming with his supervisors. In fact, when Mr. Ivey left the workplace Mr. Waterson independently called his supervisor to fully disclose what had occurred and also recorded what I judge to be a sincere expression of regret and remorse during the course of his investigation. At the arbitration hearing he explained the unfortunate reference to trespassers and vandals as emerging from the context of a conversation which occurred during a brief adjournment of the investigation. I accept his explanation that that was more of an ill-advised comment than a true reflection of his personal judgement.

Having regard to the totality of the evidence, I am satisfied that while a serious degree of discipline was appropriate, the discharge of the grievor was excessive, and errors of judgement were committed on both sides, particularly having regard to the treatment of other employees in similar circumstances in the past. The grievance is therefore allowed, in part. I direct that the grievor be reinstated into his employment forthwith, without loss of seniority and with compensation for one-half the wages and benefits he has lost. Half the period between his discharge and reinstatement shall be recorded as a suspension for the violation of Item I-K on October 29, 2010.

Dated at Edmonton, Alberta this 16^th day of June, 2011

__________________________

MICHEL G. PICHER

ARBITRATOR