CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3742
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL
WORKERS UNION OF
The assessment of 20 demerits to Heavy Equipment Operator P.
Myhaluk for his alleged failure to follow safe operating practices on
UNION’S STATEMENT OF ISSUE:
On November 7th, 2008, Mr Myhaluk was confronted by Supervisor Azim Abdul, who accused Mr. Myhaluk of booming out with a container over another, an improper method. Mr. Myhaluk thanked Mr. Abdul for educating him on this matter and agreed that it would never happen again. Mr. Myhaluk was suspended from service.
Following the investigation, the Company assessed 20 demerits bringing the grievor’s total to 75, which culminated in Mr. Myhaluk’s discharge for accumulation of demerits in excess of 60.
The Company maintains that the grievor’s responsibility has
been determined and that the assessment of 20 demerits and his subsequent
discharge for accumulation of demerits in excess of 60 was warranted. The
Company additionally maintains that the allegations raised in the
(SGD.) D. OLSHEWSKI
There appeared on behalf of the Company:
R. Bateman –
Sr. Manager, Labour Relations,
D. S. Fisher –
Director, Labour Relations,
D. Cater –
And on behalf of the
D. Olshewski –
P. Myhaluk – Grievor
AWARD OF THE ARBITRATOR
The grievor was observed to move a first container and place it on the ground in his assigned L7 area. He then picked up another container and travelled to the extreme north end of block 7. The grievor then stopped at M7, boomed out and reached over the front container on the ground and placed the container from L7 behind that same front container. The grievor was told by a supervisor that he was not allowed to perform such a manoeuvre and would be written up as failing an efficiency test. The grievor asked the supervisor at the time if he could reach over another container to place another one in the middle row on the ground and was told that this was not permissible either. According to the statement of the supervisor, the grievor thanked the supervisor, in his words “… for educating him and said that it will not happen again”. A second supervisor on the scene also provided feedback and the grievor thanked him “… for educating him in this matter and said it will never happen again”.
The placement of the container directly behind another container by the grievor could have resulted in serious property damage or injury. The Company took appropriate action and there is cause to discipline the grievor. There are, nevertheless, important considerations in this case on the appropriateness of the 20 demerit penalty which resulted in the grievor’s termination for accumulation of demerits.