Heard in Montreal, Tuesday, 12 January 1999

concerning

and

Dismissal of Locomotive Engineer André Verner, Montreal, Quebec.

On March 24, 1998 Mr. André Verner, locomotive engineer, was issued a Form 104 advising that he had been dismissed from Company service for:

The Union submits that the investigation into this matter clearly established that Mr. Verner submitted claims for a VIA incumbency pursuant to the VIA Special Agreement for periods in which he was performing duties inherent to his position as a Union Representative. The Union submits that the Company has always knowingly paid claims for the VIA incumbency to employees on Union business. It is the position of the union that the practice developed with the inception of the VIA Special Agreement and was continued for a number of years. Accordingly, the union submits that the Company demonstrated a clear acceptance towards applying Clause E.1 of the VIA Special Agreement in the manner that Mr. Verner had claimed.

Additionally, the Union submits that the actions of the Company in disciplining Mr. Verner have been motivated by anti-union animus directed against Mr. Verner in his capacity as a Union member and representative.

Based on the foregoing, the Union has requested that the discipline assessed and noted on the Form 104 be expunged from Mr. Verner's work record. Additionally, that Mr. Verner be immediately reinstated and reimbursed for all lost earnings, including interest, seniority, and benefits that he would have qualified for during the period of his dismissal. In the alternative, the Union submits that the discipline assessed was excessive.

The grievor commenced employment with the Company as a telegrapher in 1963. He thereafter became a conductor and, in 1974, a locomotive engineer. He was promoted into the ranks of management as a trainmaster from 1985 to 1988, returning to the engineer’s trade in November of 1988. In early 1990, at the time of the implementation of the reductions of service in VIA Rail he was employed as a locomotive engineer in passenger service on the Trois Rivières Subdivision. He then bid back into freight service with the Company, with the benefit of a maintenance of earnings incumbency negotiated as part of the VIA Special Agreement.

From 1991 onwards Mr. Verner, who had always been active in the Union, assumed the position of legislative representative for Division 788 of the Brotherhood. Thereafter, from 1992 to November of 1997, he was the local chairman for Division 788. In both capacities he was compelled to devote substantial amount of time to union business involving workers’ compensation matters, municipal and provincial legislation, grievances and general matters concerning collective bargaining.

On March 24, 1998 Mr. Verner was dismissed for what the Company viewed as his improper submission of maintenance of basic rate claims under the VIA Special Agreement. The Company maintains that over a number of years Mr. Verner improperly enhanced his earnings by claiming an MBR incumbency for periods of time he was on union duties, and therefore unavailable for work. It submits that his practice in that regard was fraudulent and severed the bond of trust implicit in his employment relationship, thereby justifying his discharge. The Company’s position is based on the application of article E.1 of the VIA Special Agreement which reads, in part, as follows:

The Company submits that, in keeping with sub-paragraph (b), during such time as he was on union service the grievor was not available for service and should, in consequence, have reduced his incumbency claim for the time in question. It submits that his failure to have done so resulted in an overpayment to him of wages in excess of $14,000.00. The Company notes that where a union officer is required to transact union related business at the request or direction of the Company, such time is considered time worked or time available, and is not applied in reduction of an employee’s maintenance of earnings incumbency. However, where time off for union business is at the initiative of the union the individual is to be treated as unavailable for work and his or her incumbency accordingly reduced.

It appears that the record of the grievor’s handling of his maintenance of earnings incumbency came to the attention of the employer when, in late 1996, a survey of employee earnings on the St. Lawrence and Hudson Railway indicated that Mr. Verner’s wages were unusually high, particularly having regard to the work he had missed by reason of his union duties. Further examination of the records indicated that other employees involved in union duties did not make MBR claims in the same manner as Mr. Verner, with the exception of one individual who held an office similar to the grievor’s in the United Transportation Union.

The allegation made by the Company against Mr. Verner is tantamount to an accusation of theft. In this, as in any disciplinary matter, the burden of proof is upon the Company. To the extent that the charge against him is extremely serious, the proof in support of its case must be relatively clear and compelling. When the entire record is reviewed, however, the Arbitrator is left in considerable doubt as to whether the Company’s burden has been discharged.

The record reveals that the grievor resumed his union activities in August of 1991, and thereafter had to deal with time devoted to union business for the purposes of his maintenance of earnings claims. According to his account he was then advised by Mr. Maurice Brisebois, then the local chairman of Division 788, that the practice was to consider union officers as being "available" for service for the purposes of maintenance of earnings calculations under the VIA special agreement when they were engaged in union activities. Based on that advice thereafter Mr. Verner consistently claimed his wage incumbency for all time spent in union business, whether it was Company initiated or not. He relates that he sought confirmation of the position communicated to him by Mr. Brisebois by consulting with a clerical person, Ms. Anna Giannakis, who was responsible for the administration of the MBRs under the VIA agreement. He relates that he stated to Ms. Giannakis what he had been told by Mr. Brisebois, and that she confirmed that the practice so described was in keeping with the manner in which payments were made under the VIA agreement.

The material before me discloses that Mr. Verner was a kept copious records of his wages claims over the years. A review of those documents leaves little doubt that his practice in respect of claiming his incumbency for time spent on union initiated union business was clearly open and consistent. Maintenance of earnings claims forms returned to Mr. Verner clearly reflect notations indicating approval of his claims, and an apparent understanding as to his precise activities. For example, a claim relating to the four week period from November 15, 1996 bears the notation "Okay – acc VIA off union b". Similarly, the same form for the period from January 10, 1997 contains the notation "12 days off union business" apparently approving these days as part of his claim for incumbency. To underscore the openness demonstrated by Mr. Verner in his dealings with maintenance of earnings wage claims, it is noteworthy that in his first submission in that regard, made in relation for the period from September 27, 1991 he added the following note to Ms. Giannakis: "Anna, for your info! October 23rd I was off for union business. Thank you – André".

The record also indicates that on a number of occasions the Company’s officers reviewed and adjusted Mr. Verner’s incumbency claims. For example, on June 16, 1994 a notice was issued from the Administrative Services Department, copied to Mr. Verner, noting that his incumbency claim had been reduced for the period from May 6 to June 2, 1994 by reason of his having failed to bid on the position with the highest earnings available. A similar adjustment was made in the period April 7 to May 4, 1995 and again for the period May 31 to June 27, 1996. It appears to the Arbitrator that based on these records Mr. Verner had every reason to believe that responsible Company officers were examining quite closely the nature of his incumbency claims and must be aware of the basis upon which he was making them.

Perhaps most significantly, for what it reveals of the grievor’s state of mind, in 1996 the Company appeared to give a very clear confirmation of the correctness of the practice being followed by Mr. Verner. By a letter dated September 9, 1996 Mr. Verner received notice from the Company that his claim of availability for periods during which he was on union business was being disallowed. Significantly, however, the same day he was provided with a second letter entitled "Corrector", which informed him that he was in fact considered available for service for eight days that he was engaged in union business, and that his incumbency payment was readjusted upwards accordingly.

The record is even more extensive. It appears that in 1995 Mr. Verner was advised by Ms. Giannakis that she had heard something to the effect that his VIA incumbency might be reduced for time off on union business. Based on that information Mr. Verner contacted Mr. Ross McIntosh, supervisor of the Company’s data centre. Mr. Verner explained to Mr. McIntosh what he had learned from Ms. Giannakis. The latter indicated that he would inquire with the labour relations department and get back to Mr. Verner. Thereafter Mr. McIntosh contacted Mr. Verner and confirmed to him that his VIA incumbency would not be reduced for time off on union business. Understandably, Mr. Verner continued to make his claims in the same manner.

Faced with the foregoing record, the Arbitrator is at a loss to understand the basis for the claim of the Company to the effect that Mr. Verner knowingly attempted to defraud the Company of incumbency payments to which he was not entitled. Accepting the Company’s interpretation of the rules of availability under article E of the VIA Special Agreement, the evidence falls far short of establishing a knowing or deliberate plan of fraud on the part of Mr. Verner. On the contrary, the documentation confirms that he was at all times open with the Company in respect of his practice of claiming his maintenance of earnings incumbency and, significantly, the Company’s own actions in respect of regular approvals and periodic adjustments of his claims gave him reason to believe that the practice he was following was correct. In the result, I cannot find that the Company has established any basis upon which to assess discipline against Mr. Verner.