IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BOTHERHOOD OF ELECTRICAL WORKERS
SYSTEM COUNCIL NO.11
RE: Appeal of the discharge, effective November 6, 2014, of Mr. Jordan Ashworth for accumulation of demerits as a result of the assessment of 15 demerits for: failure to perform appropriate troubleshooting and to take preventative actions when responding to a block down trouble call on September 24th on the Napadogan sub; 20 demerits for: failure to take adequate preventative measures to maintain track connections and failure to comply with GI 332; 30 demerits for: failure to properly maintain cables and junctions boxes on your territory and 60 demerits for: falsification of test records and failure to perform GI-305.
ARBITRATOR: CHRISTINE SCHMIDT
APPEARANCES FOR THE COMPANY:
D. Laurendeau – Manager Labour Relations
S. Grou - Senior Manager Labour Relations
R. Bateman - Director Labour Relations
R. Karmali - Senior Manager S&C
J. Sorkin - Manager S&C
K. Smolynec - Senior Manager OHS
APPEARANCES FOR THE UNION:
R. Church – Counsel, Caley Wray
J. Ashworth - Grievor
P. Mueller - Regional Representative G.L.D
S. Martin - Senior General Chairman
L. Couture - International Representative IBEW
S. Sime - Regional Representative, Champlain East
A hearing in this matter was held in Montreal on August 28, 2015.
Ad-hoc matter 2015-639.
The nature of the dispute before me is reflected in the statement of dispute and joint statement of issue filed, which reads as follows:
Appeal of the discharge, effective November 6, 2014, of Mr. Jordan Ashworth for accumulation of demerits as a result of the assessment of fifteen demerits for: failure to perform appropriate troubleshooting and to take preventative actions when responding to a block down trouble call on September 24th on the Napadogan sub; twenty demerits for: failure to take adequate preventative measures to maintain track connections and failure to comply with GI 332; thirty demerits for: failure to properly maintain cables and junctions boxes on your territory and sixty demerits for: falsification of test records and failure to perform GI-305.
Joint statement of Issue:
On October 9, 2014, S&C Maintainer Jordan Ashworth was the subject of 4 separate formal investigations. He was also required to provide supplemental statements on October 31, 2014, to 3 of the 4 formal investigations held on October 9, 2014. The assessment of discipline resulted in the discharge of Mr. Ashworth for an accumulation of 125 demerits.
The Brotherhood contends that there was no just cause for discharge and that Mr. Ashworth’s assessed discipline was unjust.
The Brotherhood requests that Mr. Ashworth be reinstated without loss of seniority, seniority rights, benefits, pension and that he be made whole for all lost earnings, with interest. In the alternative, the Brotherhood requests that the penalty be mitigated as the arbitrator sees fit.
The Company disagrees and denies the Brotherhood’s request.
FOR THE COMPANY: FOR THE UNION:
Denis Laurendeau Steve Martin
Manager Labour Relations Senior General Chairman
Jordan Ashworth (the “grievor”) was an S&C Maintainer employed by the Company. He was discharged on November 6, 2014. At the time of his discharge, the grievor had approximately five years’ service and his disciplinary record was clean.
In his capacity as an S&C Maintainer the grievor was assigned to maintain and repair apparatus, and perform electrical and other work including the performance of periodic tests crucial to the safety of train operations and the safe functioning of signal systems. The parties agree that the position held by the grievor is a safety sensitive, self-directed position where he worked largely by himself in the field with little supervision.
The joint statement issue reproduced above reflects a number of disciplinary penalties imposed on the grievor. In respect of the penalties imposed (fifteen demerits, twenty demerits, thirty demerits, and sixty demerits) the Union denies wrongdoing, or in the alternative, submits that the discipline imposed was excessive. In the Union’s submission this is a case of “piling on” where the grievor has been outright terminated for what are “at best” technical violations. The Union argues that the grievor was forthright and honest during the investigative process, taking full responsibility for his actions and demonstrating a full appreciation and understanding of the importance of the General Instructions at issue.
I first turn to the fifteen demerits imposed on the grievor for: “failure to perform appropriate troubleshooting and to take preventative actions when responding to a block down trouble call on September 24, 2014 on the Napadogon Sub”.
This first incident revolves around the grievor’s response to a call related to a track circuit, which generally indicates if there is a train in a block or a potentially broken rail in that block. The grievor attended the site and found that the code transmitter was not coding. The ticket in evidence reflects the grievor having reported that the code transmitter was stuck in the middle (i.e. the contacts inside the code transmitter were not making contact and therefore were unable to transmit the code to the block). The grievor’s report to dispatch also indicates the grievor made the code transmitter free to code by using a raco tool, which is essentially a socket wrench. A raco tool is to open padlocks. It is not a tool to be used for the type of repair to be made on a code transmitter.
At the hearing the Union challenged the accuracy of the grievor’s report to dispatch possibly due to language difficulties experienced by the dispatch person who recorded the grievor’s report. The grievor denies the use of the raco tool in the manner described in the report.
During the investigation, the grievor was directly asked about the corrective action he had reported:
10. Q. can you explain the ticket resolution mentioning that the code transmitter was stuck in the middle and was free by using the raco tool?
A. I had previous crowed transmitters that were stuck in the middle in plaster rock where code transmitters are often solicited. I also had that issue with the NRWS relay that was floating in intermediate position.
11. Q: Why is it mentioned in that ticket?
A: After I took it
out I assumed it was the problem.
Having regard to the above interchange, and particularly the grievor’s obvious evasive answer to question 10, I do not accept the grievor’s denial that he used the raco tool as argued by the Company. Had the grievor not used the raco tool as he had reported and recorded by dispatch, he had every opportunity to correct the record at the time of the Company’s investigation. Instead, he was evasive. In the circumstances I find that the grievor freed the contacts by banging on the code transmitter with the raco tool. He then reinstalled it and continued to work. Though the grievor temporarily resolved the trouble call, his handling of it in no way constituted a proper repair. The grievor’s handling of the call suggests degree of carelessness in his approach to his work. The grievor was less than forthright with the Company during its investigation of this incident.
I turn next to the remaining three disciplinary penalties, as they are all connected to one another. At the end of September 2014 and in the beginning of October 2014, two S&C managers conducted an inspection of the subdivision that included the portion maintained by the grievor between mile 135.94 in mile 175.9 of the Napadogon subdivision. Following three formal investigations the grievor was assessed with twenty demerits for: “Failure to take adequate preventative measures to maintain track connections and failure to comply with GI 332;” thirty demerits for: “Failure to properly maintain cables and junction boxes on your territory;” and sixty demerits for: “Falsification of test records and failure to perform GI-305.”
Very generally, S&C General Instructions govern employees assigned to the installation, maintenance, inspection and testing of signal systems and devices. They must be adhered to to ensure the integrity of the rail system. GIs are in compliance with federal testing and inspection regulations.
GI-332 (a) in particular deals with the inspection and testing of insulated track appliances including bond wires, track connections, insulated joints and other insulated hardware. The interval for inspection and testing for GI-332 (a) is six months. This means a thorough inspection is to be performed to ensure the integrity of all components every six months. Maintainers are expected, however, to regularly inspect their territory and to take appropriate corrective action as required.
The photographic evidence in the record reveals an apparent disregard to the proper maintenance of insulated rail joints, bootleg and bond wires on the grievor’s territory. His lack of explanation for the excessive number of insulated joints, and his denial of his responsibility for his role in their maintenance is troubling. The evidence also reveals unsecured bootleg wires. Many were composed of many sleeves. Further, the evidence reveals that grievor did not take the pins off welded connectors to ensure his welding was solid. The grievor’s explanation for this behaviour was that he was in a hurry to get the bonding done. Also, in his investigation statement, the grievor further suggested that others were not held to the same standard as he was, when it is obvious on a thorough review of the totality of the evidence that the standard to which he was holding himself was far from adequate or acceptable.
GI-302 deals with the inspection of cable housings. The GI test interval is one year for the inspection of the housings and the equipment contained in them. The purpose for their inspection is so that the equipment in the housings is maintained in a condition such that it will not compromise the integrity of the signal system.
Although the grievor stated that he visited the sites more frequently than once a year, and that he had planned to complete some of the problems about which he was aware, I am unable to accept, on the photographic evidence before me that the abysmal condition of the houses and equipment contained in them could be due to anything other than the grievor having, to a significant extent, ignored his responsibilities. To suggest that somehow the conditions as appeared in the photographs could be deemed acceptable is, as asserted by the grievor, in my view, indicative that the grievor failed to take his job seriously.
GI-305 (a) relates to the inspection and testing of storage batteries. Storage batteries ensure the dependability of electrical service for signal systems. They are to be tested when installed and every three months afterward. There grievor was very much aware of his obligations pursuant to GI-305 (a) and the consequences of not being able to depend on a reliable back up system. Yet the state of storage batteries on the grievor’s is consistent with his lack of attention to his basic duties.
When testing is performed pursuant to this GI, the information is to be recorded on the “Signal Storage Track Batteries” and in an on site log book. Maintainers are also expected to electronically record testing information in the Company’s Signal and Communications Inventory System (“SCIS”) computer application. The expectation is that they will record the testing information in their vehicle immediately upon completion.
In the log book at mile 153.40 the last testing entry is recorded as May 8, 2014. However, in the SCIS application the testing is recorded as having been performed on August 14, 2014. In the log book at mile 175.30 the last testing entry is recorded as June 20, 2014; yet in the SCIS application, it is recorded as having been performed on September 29, 2014.
The grievor's explanation for the discrepancy between the log book entries and those in the SCIS system is not compelling:
13. Q. Can you explain why the last date on the battery card (evidence 305 and in the logbook (evidence 305-10) at mile 153.40 was May 8 and is recorded on August 14 in SCIS (evidence SAP-1)?
A. I thought that I was there on-site and once at the office and put the test in SCIS. I do not remember what happened on August 14 specificall. (sic). I presume that I made a mistake on that one on that day.
14. Q: Can you explain why the last date on the battery card (evidence 305- 37) and in the log book (evidence 305-38) at mile 175.30 was June 20 and is recorded on September 29 in SCIS (evidence SAP-2) as being the last visited date?
A: When I went through the block that day, it was my busiest week at CN and thought that I did the test and I put the test in, but I made a mistake again.
In its brief, the Union argued that the grievor had made “a mistake” and that the entry in the SCIS system was made in error – he must not have completed the testing. The Union hypothesized that it was possible that another crew member had entered the testing information into the SCIS system on August 14, 2014 since it was not “unusual for crew members to occasionally take turns entering all of the testing information.” It is unclear to me why that would be had the grievor made the entry in the SCIS on site as expected. In any event, the grievor states that he made “a mistake again” on September 29, 2014.
At the hearing, the Union suggested that the grievor had performed the requisite testing on August 14 and September 29 but that he made a recording error in that he failed to record the testing he had completed those days in the respective log books. For what it is worth, I note the latter position is more consistent with the grievor’s stated recollection of events as articulated in his less than compelling attempt to explain these two discrepancies.
Contrary to the Union’s position that the grievor was being forthright with the Company during the investigation, his answers to questions 13 and 14, as I have already stated, are not compelling on their face. It is difficult to accept that an employee can think he was on site performing tests and presume he is making a mistake when inputting the testing into the SCIS system (which is supposed to be completed on site). In respect of the September 29, 2014 discrepancy, it must be recalled that the grievor was given notice of the investigations only eight days after he asserted being in the block thinking that he had done the testing.
What is clear from the photographic evidence is that the grievor did not do the on-site testing on August 14 or September 29 within the required interval. The photographic evidence is clear and it is entirely inconsistent with his having done the testing as he recorded he had. I find it more likely than not that the grievor was not where he expressed that he thought he was.
The allegation at issue is one of falsification of documents – a very serious allegation. Though I appreciate that the Company had reason to be suspicious of the grievor, the burden of proving falsification, an intentional and deliberate act meant to deceive the Company, is a high one. Falsification of documents must be proven on clear, cogent and convincing evidence. Though I too have my suspicions, I am not prepared to draw a legal conclusion of falsification based on the evidence before me. I am, however, prepared to find, on the evidence submitted, that by entering the testing as having been completed on August 14 and September 29, 2014, the grievor displayed a degree of wanton recklessness that is difficult to reconcile with the level of responsibility that the Company reasonably expects of the position of S&C maintainer. The evidence shows that the grievor did not think or care about the consequences of his actions.
At the hearing the Company sought to enter into evidence of Track Occupancy Permit (TOP and ETOP) for the relevant days. The documents demonstrate that the grievor was not where he thought he was performing the tests he thought he had performed. The Union objected to the admission of the evidence.
The Union’s objection is upheld. The collective agreement between these parties contemplates the Company’s disclosure and the grievor’s opportunity for review of relevant evidence in the Company’s possession prior to the taking of investigative statements. If the Company did not believe the grievor was being honest when he provided his answers to the discrepancies referenced above, it could have sought to confirm that belief by obtaining the TOP and ETOP documentary evidence at the time. Had it done so, the Company would then be in a position to put that evidence to the grievor by taking a supplementary investigation statement. As the Company chose not to do so at that time, it is unable to rely on additional evidence it sought out in preparation for the hearing.
By his conduct in respect of all allegations, the grievor has demonstrated a tendency for unreliability in his position, which is self-directed and safety sensitive.
Having said that, I agree with the Union’s submission that the Company took an opportunity based on its audit results, to issue multiple disciplinary penalties. There is no question in my mind that this is a case of, as the Union put it, “piling on.” To have imposed one-hundred-twenty-five demerit points and outright discharged the grievor for related offenses based on its discovery of the grievor’s negligent work habits was, in my view, an excessive response by the Company.
Progressive discipline is a fundamental tenet of the Brown System. It is meant to provide an opportunity to an employee to correct unacceptable conduct or behaviour. The manner in which the Company responded to its findings as a result of the audit that it conducted deprived the grievor of any opportunity to correct his inattentiveness to the dictates of his job.
In the result, I direct the grievor to be reinstated to employment forthwith without loss of seniority, but without compensation. The grievor’s discipline record should reflect the imposition of ten demerits for the first incident for which the Company assessed fifteen demerits against him and forty demerits for the combined GI infractions, with the word falsification to be replaced with “reckless recording of tests in circumstances of your failure to perform GI-305.”
In issuing this award, I caution the grievor that this represents an opportunity for him to demonstrate an appreciation of his misconduct and the critical nature of his fundamental duties in the role of S&C Maintainer.
September 16, 2015 _________