CANADIAN RAILWAY OFFICE OF ARBITRATION
CASE NO. 3677
Heard in Edmonton, Tuesday, 10 June 2008
CANADIAN PACIFIC RAILWAY COMPANY
TEAMSTERS CANADA RAIL
MAINTENANCE OF WAY EMPLOYEES DIVISION
Dispute concerning the assessment of thirty
demerits to R. Slobodian.
JOINT STATEMENT OF ISSUE:
The grievor, Mr. Ron Slobodian, is the
Secretary/Treasurer of his local lodge. As a Union officer the grievor was involved with the charge and
trial of members alleged to have worked for the Company during the strike of
May-June 2007. Prior to the trial the Union
provided the grievor with evidence it collected for use at the trial. This
included copies of putative expense sheets that indicated where and when the
accused members worked during the strike. The evidence was introduced and used
at trial. As a result of the use of this evidence the grievor was assessed with
30 demerits for the alleged improper and unauthorized use and disclosure of
personal information. A grievance was filed.
contends that: (1.) the
grievor, a Union officer, was obligated to act pursuant to the provisions of the
IBT Constitution; (2.) the
grievor’s receipt of the expense sheets was entirely unsolicited. He did not
collect them or distribute them to the public. They were forwarded to him by the
Union and used only for purposes related to the
conduct of formal trial proceedings under the IBT Constitution; (3.) the grievor was not aware of
any Company rule or policy that prohibited him from using the information in the
manner that he did. Indeed, the Company habitually uses private information for
disciplinary purposes without the express consent of the workers involved; (4.) the grievor broke no privacy
law. Section 7(1)(b) of the Personal Information Protection and Electronic
Documents Act provides that an organization may collect personal information
without the individual’s consent where it is reasonable to expect that the
collection with the knowledge or consent of the individual would compromise the
availability or the accuracy of the information and the collection is reasonable
for purposes related to the investigating of a breach of an agreement or a
contravention of the laws of Canada or a province. (5.) the assessment of discipline
was undeserved and inappropriate in the circumstances.
The Union requests that the 30 demerits
assessed against the grievor be rescinded and removed from his record
The Company denies the Union’s contentions and declines its request.
FOR THE UNION:
FOR THE COMPANY:
(SGD.) Wm BREHL
(SGD.) D. FREEBORN
MANAGER, LABOUR RELATIONS
There appeared on behalf of the
– Counsel, Calgary
– Director, Labour Relations, Calgary
– Manager, Labour Relations , Calgary
– Labour Relations Officer, Calgary
There appeared on behalf of the Union:
– President, Ottawa
AWARD OF THE ARBITRATOR
The Union went
on strike on May 15, 2007 and the parties reached a settlement on June 7, 2007.
A number of the bargaining unit members were accused of having violated the
Union’s constitution by working for the Company
during the strike. Those who were alleged to have violated the constitution
included Mr. Darryl Dolph and Clifford Knoll who, like the grievor, were members
of the same Local in Regina.
In accordance with Article XIX of the Union’s constitution, the grievor, in his capacity as
Secretary-Treasurer of the Local, forwarded copies of the alleged violations to
Mr. Dolph and Mr. Knoll by registered mail. The grievor included a letter to
each individual indicating that their union trial on the charges would take
place in Regina.
Mr. Dolph’s trial was to take place on November 5, 2007 while Mr. Knoll’s was to
take place on November 6, 2007. Also included in the registered mail packages
were the affected employees’ Travel Expense Statements, which recorded the meal
and travel expenses submitted to the Company by each of the two employees during
the strike. The grievor received copies of the Travel Expense Statements from
Mr. Gary Doherty, TCRC/MWED Director of the Prairie Region.
According to the Union, the Travel Expense
Statements were given to the grievor by Mr. Doherty because the grievor’s
duties, as Secretary-Treasurer for the Union,
included the responsibility of serving the two employees with copies of the
charges as well as notice of the date and place of the trial. Copies of the
Travel Expense Statements were leaked to the Union by a Company Timekeeper, who was then a member of
the bargaining unit (now retired), and received 55 demerits for his actions.
According to the Union, the Timekeeper has
filed a grievance and is challenging the discipline.
The grievor sat as a member of the executive
panel which conducted the trials. He chaired the trial of Mr. Knoll held on
November 6, 2007. According to a summary of the trial prepared by Mr. Knoll on
November 13, 2007, he received a copy of his strike ballot and Travel Expense
Statements at the outset of the meeting from the presiding union executive
members. His summary further indicates that he requested to know how the
Union had obtained his expenses but was never
given an answer. According to the grievor’s testimony at the arbitration
hearing, he asked Mr. Knoll if it was all right to pass around his Travel
Expense Statements and that Mr. Knoll replied “whatever”. According to Mr.
Knoll’s account in his summary, a fine was imposed by the Union at the conclusion of the trial.
In advancing the grievance at Step 1, the
Union asserted that the grievor was unaware of
any provisions of the Company’s Policy 1804, Privacy of Information, or the Personal Information Protection and
Electronics Documents Act
(PIPEDA), until the date he provided his statement on November 27, 2007. As
noted in the Joint Statement of Issue, one of the Union’s submissions is that it
is permissible for the Union, under
s. 7(1)(b) of the Act, to
collect information on an individual if the “… collection is reasonable for
purposes related to investigating a breach of an agreement …” ( i.e. the
International Brotherhood of Teamsters constitution). The Union also submits that the Act is aimed at the collection, use and
disclosure of personal information in the course of commercial activity. The
Union asserts that it is not engaged in any
commercial activity, nor that of an employer/employee, and therefore the Act does not apply.
The Union noted
in its submissions at arbitration, however, that the main issue is not whether
there has been a technical violation of the Act (which is a sufficient basis to
lodge a complaint before the Privacy Commissioner) but rather whether the
grievor’s actions merit discipline under the circumstances. I agree. In my view,
The Act is only relevant to the extent that it
is mentioned in the context of Policy 1804, whose purpose is set out as
Canadian Pacific Railways will protect the privacy of its employees
and other individuals with whom it deals by promoting responsible practices in
the management of personal information collected in the course of managing its
operations, including complying with employment-related legislation, in
accordance with the provisions of the
Personal Information Protection and Electronic Documents Act
In support of the above, CPR will ensure that all personal
information collected and stored on any media is maintained in a secure manner
and protected from unauthorized use and disclosure.
As noted, the policy states that it will ensure
that personal information is protected from unauthorized use and disclosure.
This is an important commitment to all employees, one that both the Union and
Company must equally guard and respect. The information that was leaked to the
Union was obviously valuable information to the Union to make its case against the employees being tried
for breaching the Union constitution. However, it was also private information
which was inappropriately obtained by a Company timekeeper.
In hindsight, the chain of command from the
Union side should not have supported the dissemination of private documents like
the Travel Expense Statements, even if those documents support allegations of a
violation of their constitution. To borrow a phrase, the prejudice caused to the
individual employees being tried outweighed their probative value to the
Union’s discipline proceedings. Employees have
the right to expect that their private information will be kept private. Mr.
Knoll’s rights in that regard were clearly violated when his Travel Expense
Statements were disclosed to the panel hearing his trial on November 6, 2007.
The Union had other options open to it to prove
its case, including the calling of witnesses who could have provided direct
evidence on the issues to be tried. To resort to private information to buttress
its case was clearly inappropriate.
Returning to the grievor’s role in this matter,
I note that he was asked at his investigation whether he understood that the
Travel Expense Statements were personal information. The grievor replied that he
was unaware that it was an official Company document. He further stated at his
investigation that he had “…never seen documents like that before and did not
realize that it might be a Company document as there was no signature on the
The Travel Expense Statements appear on their
face to be a Company form. In that regard, it is a printed form which
identifies, at the top of the document, that it is from CPR Engineering. It also
shows the itinerary, the per diem settlement, and other costs. I simply cannot
accept that a long-term employee like the grievor would not have immediately
recognized the document as Company-generated information on both Mr. Dolph and
Mr. Knoll whose names, personnel numbers and trip numbers also appear at the top
of the page.
The grievor played a part in the process of the
conveyance of the personal employee documents. He had an opportunity to set
those Travel Expense Statements aside and follow the Union’s own constitutional requirements under article XIX
Section 1(c); that is, to simply serve the affected employees personally or by
mail with a written copy of the charges specifying the nature of the offence and
provide notice of the trial date. Further, his comments at the investigation
that he did not recognize the documents as being Company information do not
stand up to scrutiny and undermines his overall credibility. After considering
all the evidence before me, I find there to be just cause for
To reiterate, the Company, by its own policy is
held to a high standard of protecting private employee information and union
executive members, like the grievor, must be held to an equally high standard.
The grievor violated that important right of privacy by distributing a document
at the trial of Mr. Knoll containing the private information of Mr. Knoll. That
out of range for such an offence. The grievor also displayed a lack of candour
at the investigative meeting on the matter of whether he recognized the Travel
Expense Statements to be company documents. I do, nevertheless, recognize that
the actions of the grievor took place as a consequence of a legal strike and in
his capacity as a union executive officer in the performance of his duties. In
addition, I note in mitigation that the grievor is a long-service employee of 22
years with, commendably, no prior disciplinary record. Under the circumstances,
I believe a lesser penalty is appropriate and substitute the thirty demerits on
his record for this incident with a penalty of ten demerits.
June 18, 2008
(signed) JOHN M. MOREAU,