Heard at Montreal, Monday, January 9th, 1967

Concerning

and

Request of the Brotherhood for removal of the discipline assessed Locomotive Fireman (Helper) Morgan effective February 13th, 1964, and full payment for all time lost.

Locomotive Fireman (Helper) R.E. Morgan, S.R.B. 1713, submitted time-return No. 9 relative to service rendered on Train 1st and 15 out of North Vancouver on February 13th, 1964. An entry on time-return No. 9 made reference to a 40-minute delay encountered by Train 1st 15. Mr. Morgan was notified, in accordance with the provisions of Article 18(a) of the Agreement, that his Time Return No. 9 had been altered "account no provision in Collective Agreement to provide for time as claimed"

On February 21st, 1964, Mr. Morgan attended an investigation relevant to said submission, conducted by Assistant Superintendent Mr. E. L. McNamee.

On February 24th, 1964, Mr. Morgan was notified that, effective February 13th, 1964, his record had been assessed twenty (20) demerit marks:-

On February 24th, 1964, Mr. Morgan was advised by letter that:-

The Company's contention is that demerit marks assessed were justified, and has declined removal of discipline and payment for time lost.

There appeared on behalf of the Company:

R. E. Richmond – Personnel Officer, Vancouver

R. Nielsen – Personnel Supervisor, Vancouver

And on behalf of the Brotherhood:

K. G. Mason – General Chairman, Vancouver

H. L. May – Assistant Grand Chief Engineer, Winnipeg

R. E. Morgan – Grievor

As indicated in the Joint Statement of Issue, following an investigation conducted on February 21, 1964, by the Assistant Superintendent Mr. E. L. McNamee, the claimant was notified on February 24th that effective February 13, 1964, his record had been assessed twenty demerit marks "for submitting time return claiming time to which you were not entitled under the collective agreement."

On February 24, 1964, Mr. Morgan was advised by letter that "Due to your services being unsatisfactory, account accumulation of demerit marks, you are dismissed from the service of the Railway effective February 24, 1964.

During the previous twelve months Mr. Morgan had been assessed forty demerit marks in connection with one incident. Under the Brown system of discipline, used by this Company, he was thus placed at the limit of sixty demerit marks with the additional twenty demerits. The accumulation of sixty demerit marks in a one year period results in discharge.

The trip that gave rise to this claim was made by Mr. Morgan on February 13 from North Vancouver to Lillooet, and took twelve hours and forty minutes. While other delays occurred on the trip, the forty minutes above twelve hours coincided with the time spent at Garibaldi waiting on a side for Train No. 16 to pass.

On return to North Vancouver Mr. Morgan submitted Trip Ticket No 9, the one in question, covering the northward leg of the round-trip. On that ticket this appeared:

The explanation offered the Arbitrator concerning the manner in which this ticket had been prepared was that the claimant desired to bring to management's attention what he claimed was a general dissatisfaction existing among crews operating on the line from which passing tracks formerly in service had been removed. They had been capable of holding trains. This had resulted, it was claimed, in crews being subjected to unwarranted delays in reaching destinations, with resultant increased time spent on duty.

The claimant maintained the explanation offered on the ticket itself "Claim account unnecessary lack of passing tracks" would immediately stamp it to the accounting staff as an invalid claim; one that could not reasonably have been submitted with any expectancy of payment, because no provision is contained in the collective agreement upon which it could be based.

As Mr. Morgan expected, the Accounting Department returned the ticket in accordance with the provisions of Article 18 (a) of the agreement, advising the ticket had been altered "account no provision in collective agreement to provide for time as claimed."

With the explanation offered on the face of the ticket, Mr. Morgan stated he was astounded at the Company's judgement characterizing the ticket as "a fraudulent attempt to obtain a sum to which he was not entitled."

The claimant stated that if the matter had to be defended on that basis, which he maintained should not be required, he could well urge discrimination against him by the penalty imposed, in the limit of the manner in which "irregularities occurring in the presentation of wage tickets" had been treated by management in the past. Eleven examples were produced.

One example was Ticket No. 13:

In none of the eleven examples produced had disciplinary action been taken.

Reliance for the action taken by management was placed by the representative for the Company on certain questions and answers in the official investigation. This portion of the Company's brief stated:

From this the representative for the Company claimed the basis for the investigation, as it appeared under the heading, "This appears to be a claim for time to which you were not entitled" had been clearly established; that from these answers it could be reasonably determined "that Mr. Morgan had deliberately initiated a fraudulent claim for wages."

This reasoning, of course, fails to consider that at the time of the investigation, in making these answers, Mr. Morgan had in mind that a prepared statement he had produced to Mr. McNamee would amplify the terse answers he gave to the questions asked and fully explain them.

It was stated Mr. McNamee received and read the prepared statement.

A copy of that prepared statement was produced to the Arbitrator and parts of it, as set out below, are of determining importance in considering the explanation offered by the claimant, that in fact he had no intention of requiring payment for the overtime asked; that the ticket was made out in that manner for the purpose of underlining to the Company the unrest caused by the removal of passing tracks on this line and the feeling among the employees concerned that they should not be required to supply an appreciable amount of free time to the Company.

The prepared statement commences:

With this document in the hands of the investigating official, it is difficult to comprehend how a conclusion could have been reached that would support the reasoning expressed in the Company's brief:

It was disclosed that the claimant had for at least ten months held the office of General Chairman of this branch of the Brotherhood. This added to the Company's conclusion that he was aware of the serious view taken of "fraudulent time tickets". It also warrants a conclusion, as mentioned in the Company's brief:

In summary the Company urged, in part:

The Arbitrator places no stamp of approval on the method taken by Mr. Morgan to place management upon notice as to what he and, as he claimed, others believed, namely, that the removal of the passing tracks had resulted in an unwarranted burden being placed upon their employment.

This was not a matter, as he well knew, that could be corrected by the individual grievance of an employee when the pattern for payment for his time had been negotiated by his authorized bargaining agents – a pattern that would continue to apply to him and others until possibly changed by negotiation at the appropriate time. There was, of course, nothing in the collective agreement restricting the right of the Company, in the interest of what they considered greater efficiency, to eliminate passing tracks.

Understandably managerial officials could well look upon this effort by the claimant as a presumptuous invasion of their area of control. But as a fraudulent attempt to obtain more money than coming to him, how could that conclusion be reached in the circumstances outlined? Here was no deceitful pretence. There was an ill-conceived method to correct what was considered improper working conditions, as was plainly disclosed in the prepared statement presented and accepted at the official investigation. The ticket itself bore the banner of protest in the explanation noted upon it. It was patently not a claim that could be taken seriously and was therefore far removed from what I am convinced was the wholly improper assessment made, namely, an attempt to defraud.

I do not know what action the Company could or would have taken had the obvious conclusion been reached, that this was an improper method for filing a personal grievance. I have no hesitation, however, in finding that the penalty of twenty demerit marks was improperly imposed because of the complete lack of the factors that ordinarily justify the imposition of a penalty for a fraudulent time ticket.

I therefore find that the imposition of twenty demerit marks made on February 13, 1964, should be removed from the claimant's work record; that he should be forthwith returned to his former occupation with the Company with no loss in seniority; that he should be paid what he would have earned in that employment in the interval from February 24, 1964, less any sum received from other employment during that period. If required, an affidavit from the claimant setting forth his earnings in that period will suffice.