Link to CROA&DR 3673 original award
CANADIAN RAILWAY OFFICE OF ARBITRATION & DISPUTE RESOLUTION
SUPPLEMENTARY AWARD TO
CASE NO. 3673
CANADIAN NATIONAL RAILWAY COMPANY
Dispute with respect to the application of certain benefits to the grievor.
UNION’S STATEMENT OF ISSUE:
Upon her reinstatement into employment the Company did not remove twenty demerits from the grievor’s discipline record as is done for employees who have been discipline free for a period of 12 months. The Company takes the position that the grievor is not entitled to the benefit of having discipline removed every 12 months as her service during this time is not “active” service.
COMPANY’S STATEMENT OF ISSUE
The Company submits the Company discipline policy in these circumstances is not arbitrable and the administration of the discipline records by the Company in this manner is not discriminatory nor is it contrary to the Arbitrator’s award or collective agreement 4.3.
(SGD.) B. R. BOECHLER (SGD.)K. MORRIS
GENERAL CHAIRMAN FOR: DIRECTOR, LABOUR RELATIONS
There appeared on behalf of the Company:
K. Morris – Manager, Labour Relations, Edmonton
D. Gagné – Manager, Labour Relations, Montreal
D. S. Fisher – Director, Labour Relations,
And on behalf of the
M. Church – Counsel,
R. A. Hackl – Vice-General
B. R. Boechler – General Chairman,
AWARD OF THE ARBITRATOR
The issue in this supplementary award is whether the grievor is entitled to have twenty demerits removed from her disciplinary record as a result of an order that she be reinstated to her employment and compensated for all wages and lost benefits. The basis for the grievor’s claim is found in the Company disciplinary policy, the relevant portion of which reads as follows:
Company Discipline policy
3. Demerit Marks
A system of marks to be assessed against an employee’s record according to the circumstances in each case. …
For every twelve consecutive months of active service, free from discipline, an employee will have 20 demerits marks deducted from any that may stand against the employee’s record.
The Company maintains that the policy has been consistently administered in the past to exclude numerous types of absences from the calculation of the twelve month discipline free period. They include absences for personal leaves, absences for illness and injury, absence for sickness and absences due to disciplinary suspensions. In these instances, the Company points out that an employee is not considered to be on “active” service and therefore would not accumulate time towards the reduction of demerits under the policy. The Company also maintains that the discipline policy is not a matter which is dealt with in the Collective Agreement and should therefore not be subject to a challenge in arbitration proceedings.
The term “benefits”, in my view, commonly refers to those negotiated collective agreement items carrying a monetary value such as health care plans or pension credits. The term “benefits”, again in my view, was not intended to cover any other non-negotiated subject matter, such as the right to have demerits expunged from a work record in the event of twelve months of discipline-free active service. Such a “benefit” would have to be clearly articulated in the collective agreement and there is no such provision before me or any other evidence which suggests the parties have ever agreed to such a term.
I also note that the grievor did not provide continuous active service over a period of twelve months, as other active service employees are required to do in order to receive the twenty demerit deduction. Those employees who provide active service are, unlike the grievor, in a position where they are exposed to being disciplined for work-related infractions while on the job. If the Union’s submission was upheld, the grievor would be in a position of receiving credit for a period of “active” service, which is ultimately to be used in the calculation of the required twelve months of continuous active service, without having to step her foot in the workplace during the period between her termination and reinstatement. That would, in my view, not only be an unreasonable application of the policy but also particularly unfair to those employees on continuous active service who, it should be said, risk being disciplined on an ongoing basis.
For all the above reasons, the grievor’s request for a reduction of demerits is denied.