RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3934
Heard in Wednesday, 15 September 2010
CANADIAN NATIONAL RAILWAY COMPANY
UNITED STEEL WORKERS (LOCAL 2004)
The discharge of John Welch.
JOINT STATEMENT OF ISSUE:
Welch was assessed 40 demerits on
is no dispute that the grievor was operating the Brandt truck that had
derailed, causing the assessment of demerits. The
The Company contends that the discipline and discharge is warranted.
(SGD.) M. PICHÉ (SGD.) S. BLACKMORE
STAFF REPRESENTATIVE MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
S. Blackmore –
Manager, Labour Relations,
A. DeMontigny –
Sr. Manager, Labour Relations,
J. Hishmeh –
Assisstant Track Supervisor,
And on behalf of the
M. Piché –
P. Wills –
Chairman, Unit 23,
J. Welch – Grievor
AWARD OF THE ARBITRATOR
before the Arbitrator confirms that the grievor, while operating a Brandt
Truck, a semi-tractor trailer with hi-rail equipment used for hauling equipment
and rail cars, derailed his vehicle in MacMillan Yard on
Part of the discipline assessed against the grievor, beyond the derailment itself, involves what the Company alleges was Mr. Welch’s failure to remain available when instructed to do so by Supervisor John Hishmeh, who attended at the scene. It seems that after a brief conversation with Mr. Hishmeh, the grievor parked the Brandt truck in the parking lot and left work. Mr. Hishmeh maintains that he gave the grievor a clear instruction to remain available, which the grievor disregarded.
On a review of the material, the Arbitrator is satisfied that the grievor’s negligence did contribute to the derailment, and that on that basis he was deserving of discipline. I am not persuaded, however, on the basis of the evidence, that Supervisor Hishmeh gave a clear directive to Mr. Welch that he should not leave the premises. The grievor’s evidence is to the contrary, and I am inclined to accept it. It is notable that while Mr. Hishmeh’s statement, presumably filed at the disciplinary investigation, relates that the grievor failed to “stick around”, no questions were put to the grievor in respect of that issue by the investigating officer.
It appears that the grievor’s disciplinary record stood at thirty demerits prior to the incident in question. Mr. Welch is a long service employee, hired in 1977, who is four years from retirement after thirty-three years of service. The material before the Arbitrator discloses that he has received discipline on a number of occasions over the years, generally for behavioural problems. Rules violations and negligent work practices are not a big feature of his disciplinary record.
Given the length of the grievor’s service, I am satisfied that a substitution of penalty is appropriate, if only on compassionate grounds, particularly as the Arbitrator is satisfied that the Company has not clearly established that he failed to follow his supervisor’s direction. The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated forthwith into his employment, without compensation for wages and benefits lost and without loss of seniority. The forty demerits shall be removed from his record and the period from his discharge to his reinstatement shall be recorded as a suspension. It is to be hoped that Mr. Welch will appreciate the urgency of avoiding head-strong confrontations with supervisors if he wishes to complete his service towards a normal retirement.