RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3785
CANADIAN NATIONAL RAILWAY COMPANY
Discharge of Brakeman James Noake.
JOINT STATEMENT OF ISSUE:
Further; On December 11th, 2007, the grievor, James Noake, was required to attend a Company investigation in connection with circumstances surrounding; “Your actions surrounding the reversal of the siding switch resulting in the switch being run through and damaged by oncoming CP Train”. Subsequent to the investigation Mr. Noake was issued 30 demerits.
As a result of the demerits received, Mr. Noake was dismissed from Company service due to accumulation of demerits.
disagrees with the
(SGD.) J. R. ROBBINS (SGD.) F. O’NEILL
GENERAL CHAIRMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
F. O’Neill –
Manager, Labour Relations,
Wm. Lindsay –
And on behalf of the
J. R. Robbins –
J. Lennie –
N. Serieska –
Alternate Legislative Representative,
R. Archibald –
B. R. Boechler –
R. A. Hackl –
J. Noake – Grievor
AWARD OF THE ARBITRATOR
This grievance concerns two heads of
discipline assessed against the grievor, each for thirty demerits. The first
involves a delay to his assignment on
The grievor has over twenty-seven
years of service. Prior to the incident of
With respect to the first incident the Arbitrator is satisfied that the grievor’s crew was involved in an unnecessary delay of their assignment, substantially occasioned by their desire to take lunch other than on their locomotive, contrary to the order of their supervisor.
Article 29 of the collective agreement governs the taking of meals in road service, including work on a road switcher. It provides as follows:
29.1 Train Service Employees performing road switcher (including road switcher runs operating in turn-around service beyond a 50-mile radius), work train, snow plow, or snow spreader service, and on regular wayfreight assignments, will have an opportunity of having a meal at a reasonable hour by previously advising the train dispatcher sufficient time in advance. While so occupied, for 20 minutes or less, no deduction will be made; if over 20 minutes, all time will be deducted in computing overtime.
NOTE: This paragraph 29.1 shall not apply to train service employees in any other class of service who qualify for and are paid wayfreight rates for a tour of duty pursuant to Article 15.
Trains will not be delayed nor train operations disrupted solely as a result of stopping train to eat. Employees will report for work suitably prepared for a tour of duty recognizing that the opportunity to take a meal will be governed by the practicality of train operations.
On the basis of the record before
me, I am satisfied that the locomotive on which the grievor and his crew were
The Union notes that the Company conducted a separate investigation of the locomotive engineer on the grievor’s crew, but failed to give notification to the grievor or to his Union representative of that investigation, thereby denying them an opportunity to be present and to hear what would be said and to put questions to witnesses during the course of that investigation. Article 82.2 of the collective agreement has been amended since 2005 in the following terms:
Add new provision to Article 82 of Agreement 4.16, Article 30 of Agreement 4.2 and Article 117 of Agreement 4.3 to reflect than an Employee under Company investigation or his/her accredited representative shall have the right to attend any Company investigation, which may have a bearing on the employee’s responsibilities. The employee or their accredited representative shall have a right to ask any questions of any witness/employee during such investigation relating to the employee’s responsibilities.
In the result, the Arbitrator is
compelled to conclude that in fact the Company did fail to provide to the
grievor a fair and impartial investigation with respect to the assessment of
the incident of
The Arbitrator also heard an
objection from the
The next issue becomes the assessment of thirty demerits for the improper handling of the siding switch, which resulted in damage to a CP train. I am satisfied, on the whole of the evidence, that in fact the grievor was responsible for that incident and that there are no mitigating factors which can be called in his defence. While the Arbitrator would tend to agree that the assessment of thirty demerits is on the high side, it is not excessive when consideration is given to the fact that twenty-five demerits were assessed against the same employee in 1997 for a violation of CROR 115 in relation to a derailment. In the circumstances, therefore, the Arbitrator is not inclined to disturb the assessment of thirty demerits.
For all of the foregoing reasons the
grievance is allowed, in part. The Arbitrator directs that the thirty demerits
assessed against the grievor for the incident of
The Arbitrator therefore directs that the grievor be reinstated into his employment forthwith, with compensation for all wages and benefits lost, and without loss of seniority.
(signed) MICHEL G. PICHER