CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3816
CANADIAN NATIONAL RAILWAY COMPANY
The assessment of twenty (20) demerits
resulting in dismissal for accumulation of demerits in excess of sixty to J. Hutchinson
for delay to assignment on
UNION’S STATEMENT OF ISSUE:
It is the
The Union requests that discipline be reduced and the grievor be reinstated and made whole.
The Company disagrees.
(SGD.) B. R. BOECHLER
There appeared on behalf of the Company:
K. Morris –
Sr. Manager, Labour Relations,
B. Laidlaw –
Manager, Labour Relations,
D. Crossan – Manager, Labour Relations, Prince George
And on behalf of the
M. Church –
B. R. Boechler – General Chairman,
R. A. Hackl –
T. Markewich –
Sr. Vice-General Chairman, TCRC-LE,
B. Willows –
General Chairman, TCRC-LE,
J. Holliday –
J. Robbins – General Chairman, Sarnia
AWARD OF THE ARBITRATOR
A preliminary issue has arisen with respect
to the proper count of the grievor’s prior disciplinary record. In particular,
It does not appear disputed that following
the incident giving rise to that discipline the Company’s supervisors
immediately treated the grievor as being disqualified from any further service as
a locomotive engineer. It does not appear disputed that he did not perform any
locomotive engineer’s functions from the time the thirty demerits was assessed
until a joint conference meeting held between the parties on
Evidence of what transpired at that meeting
was given before the Arbitrator by Union representative Terry Markewich. The
Union maintains that what transpired was the negotiation of a settlement which
would see the thirty demerits against Mr. Hutchinson removed from his record in
the event that he should prove unable to re-qualify as a locomotive engineer.
The recollection of Mr. Markewich is that during the course of the meeting that
alternative was discussed and it was finally resolved to have the grievor
reoriented and retested for qualification as a locomotive engineer. It appears
that there was some question as to whether a person could be found to be his
mentor, a hurdle which was in fact overcome. It is not disputed that following
the meeting of
Significantly, the thirty demerits which
were the subject of discussion between the parties seemed to vanish from the
grievor’s record. For example, the form 780 provided to Mr. Hutchinson for the
assessment of fifteen demerits on
The Arbitrator has substantial difficulty
with the position advanced by the Company. Put at its highest, through the
evidence of Mr. Laidlaw which the Arbitrator accepts without qualification, the
status of the thirty demerits was left somewhat “in abeyance” while the grievor
was allowed to attempt to re-qualify as a locomotive engineer following the
joint conference meeting of
On the basis of the material before me, I am satisfied that the Company can no longer rely on the assessment of the thirty demerits which were effectively removed from the grievor’s record for a time, and thereafter reinserted. It should go without saying that it is important that an employee have clear notice of his or her disciplinary status at any given time. In the case at hand the grievor was advised in April of 2008 that his record stood at forty-five demerits. I can see no equitable basis upon which the Company can now assert that in fact the grievor’s true disciplinary record was sixty-five demerits when it in fact conveyed contrary information to him. For the foregoing reasons the Arbitrator is satisfied that the grievor’s prior disciplinary record must be viewed as having stood at forty-five demerits prior to the incident giving rise to the discipline which is the subject of this grievance.
As reflected in the ex parte statement of issue, on
The Arbitrator agrees with the Union’s submission that the discipline assessed against the grievor was not for failing to release the hand brakes, but rather for a delay of his train. The fact remains, however, that the two events are intertwined, as the grievor did not readily admit to not having made any verification of the hand brakes, although he did indicate during the course of his disciplinary investigation that he had “missed” the hand brakes on the car in question.
The Union maintains that the Company failed to conduct a fair and impartial investigation, in part by reason of certain statements made by the investigating officer, General Manager Tom Brown. It appears that at the first scheduling of the investigatory statement the matter was adjourned to a later date at which point Mr. Brown advised the grievor that he was being held from service and apparently uttered words to the effect that he might not work again. The Union also draws to the Arbitrator’s attention a statement made by the investigating officer during the course of the investigation wherein he declared to the Union’s representative, in response to an objection, that a CROR rule had been broken and that it mattered not whether it was committed transportation employee, a mechanical employee or an engineering employee. Whatever the cause, the investigation must proceed.
The Arbitrator cannot accept the Union’s characterization of Mr. Thompson’s statements as being so extreme as to have vitiated the possibility of a fair and impartial investigation. It was a simple matter of fact that given the grievor’s prior disciplinary record, whether it stood at forty-five or fifty-five demerits, he was in jeopardy of losing his job as a result of the incident in question. Nor can the Arbitrator find fault with the fact that the supervisory officer expressed the self-evident proposition that if the hand brakes on the car in question had not been released there must have been a violation the CROR rules with respect to hand brakes and that the role of the investigation was to determine who may have violated the rule. Nothing in those statements, in my view, is sufficient to establish bias or the likelihood of bias on the part of Mr. Thompson.
With respect to the merits of the dispute, the Arbitrator is compelled to come to the conclusion that, on the balance of probabilities, it was the grievor’s failure to release the hand brakes on the car when it was removed from the storage track and coupled to the grievor’s train which ultimately caused delay to the train, at least such delay as could be attributed to the removal of that car. The Company estimates that removing the car, along with another bad order car which had to be removed in any event, would have occupied some thirty minutes. The grievor’s estimate is that it would have taken no more than ten minutes the damaged car from its position on the head end of the train. The Arbitrator considers the precise time in question of less significance than the fact that the grievor did, by his failure to follow the rules, occasion an unscheduled delay of his own train. Whether that delay was for ten, twenty or thirty minutes is immaterial to the failure of vigilance demonstrated on his part to the extent that he did not release the hand brakes on a car for whose movement he became responsible.
In the Arbitrator’s view the assessment of twenty demerits was not, prima facie, unreasonable in the circumstances. The twenty demerits, coupled with the forty-five demerits on the grievor’s record placed him within a dismissable position. However, in the Arbitrator’s view there are mitigating factors to consider. The grievor is sixty-one years of age, will be eligible for an unreduced pension in approximately two years and he has been employed by the Company since 1988. When regard is had to his twenty years of service, and the fact that he has been restricted to conductor service, it appears to the Arbitrator that a substituted penalty in the form of substantial suspension is appropriate in all of the circumstances to communicate the necessary rehabilitative message to Mr. Hutchinson.
For the foregoing reasons the grievance is allowed, in part. The Arbitrator directs that Mr. Hutchinson be reinstated into his employment forthwith, without loss of seniority and without compensation for any wages or benefits lost. His continuing employment shall be subject to the Company’s discretion to restrict him to conductors’ work.
November 6, 2009
(signed) MICHEL G. PICHER