CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3782
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND GENERAL WORKERS UNION OF
Concerning the assessment of 20 demerits to
the record of Heavy Equipment Operator, K. Bonnett, for “intentionally
double-stacking containers in rail cars without IBC’s [sic] in place, in
contravention of proper procedure and safe work practices on
JOINT STATEMENT OF ISSUE:
The griever was called for an investigative
It is the
The Company denies the grievance and the
(SGD.) D. OLSHEWSKI (SGD.) B. LAIDLAW
NATIONAL REPRESENTATIVE MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
B. Laidlaw – Manager, Labour Relations,
R. Hargreaves – Supervisor, Vancouver
And on behalf of
B. Kennedy – Staff Represantative,
R. Shore – Represantative, Vancouver
K. Bonnett – Grievor
AWARD OF THE ARBITRATOR
You are required to attend an investigation to provide a formal employee statement in connection with events of August 19th during your shift.
noted by the Company, neither the grievor nor the
The operative principle, however, is not unlike the obligation to “work now-grieve later”. If an employee, or a union representative, is of the view that he or she has not received adequate notice of the subject matter of the disciplinary proceeding or investigation being conducted under Rule 28 it is incumbent on the employee or representative to register that concern with the Company, either in advance of the investigation or at its outset.
See also: CROA&DR 3610.
the lack of timely objection to the Notice, either prior to or at the outset of
the investigation, leads to the inference that the both the grievor and the
union representative were sufficiently informed of the nature of the
allegations in order to provide answers to those allegations. There is no
indication that there was any ambiguity in their minds concerning the nature of
the incident under investigation; that is the placement and pinning of
containers during his shift on the day set out in the Notice,
The second procedural point raised by the Union concerns the allegation that the hearing officer would not accept nor record the objections of the Union representative at the investigation. This issue must be resolved by assessing which of the parties has provided the more plausible version of events based on the evidence adduced before the arbitrator. The most reliable and persuasive evidence of what occurred at the investigation in my view is the transcript of the proceedings. As the Company points out, there is no indication in the transcript that procedural objections were raised at any time either prior to or during the investigation itself. Of most significance in that regard is the final Q and A 33 where the following question was put to the grievor:
Q 33: Are you satisfied with the manner in which the investigation has been conducted?
A 33: Yes.
Further, although the Union officer, Mr. Shore, did not sign the investigative statement, the grievor himself did initial each page and sign the statement on the signature page along with the Company representative. There is no indication by Mr. Shore on the face of the document that he was dissatisfied in any way with the recording of the proceedings or otherwise. It was certainly open to Mr. Shore to indicate in his own handwriting why he refused to sign but there is no such acknowledgement to that effect on the signature page. It is incumbent on the parties, in the end, to raise procedural objections in a timely manner, failing which they will be deemed to have acquiesced in the description of events set out in the investigation record.
I agree with the Company that the rights of the grievor were not compromised and that he was provided with a fair and impartial investigation.
to the merits, the evidence clearly supports the allegation set out in the
joint statement that the grievor intentionally stacked containers in the rail
cars without IBCs in place, in contravention of the safe work practices. The
grievor indicated at the investigation that he behaved the way he did to “make
a point”. The grievor further admitted that double-stacking without pins contravened
the safety procedures and could result in a safety hazard. I share the
Company’s view that the grievor’s deliberate actions in double stacking the
containers without pins was a dangerous manoeuvre which compromised the safety
of the work area. The grievor is deserving of discipline for his behaviour on
The grievor has some twenty-eight years of service. Unfortunately, his disciplinary record is replete with offences, including damage to Company equipment, insubordination and issues of anger management. The assessment of twenty demerits is consistent with similar cases of this kind where workplace safety has been compromised as a result of the deliberate actions of an employee. Those twenty demerits added to the existing fifty demerits have resulted in the grievor’s termination.
Given that the current discipline is a culminating incident which resulted in the dismissal of the grievor, it is important to consider whether the employment relationship has any potential for rehabilitation. I have regrettably arrived at the conclusion that the employment relationship is no longer viable. The grievor has been given numerous opportunities over the years to learn from his mistakes. He has elected instead to continue to defy his employer, even when he was on the edge of dismissal with his disciplinary record sitting at fifty demerits. Given the grievor’s disciplinary history, there is no real basis for any optimism that the his career will take a positive turn if he is reinstated.
After considering all the circumstances, I must deny the grievance.
June 25, 2009
(signed) JOHN M. MOREAU, Q.C.