RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3944
Heard in Thursday, 14 October 2010
CANADIAN PACIFIC RAILWAY COMPANY
Appeal of the assessment of forty-five (45) demerits to Rail Traffic Controller Daniel Perrault.
JOINT STATEMENT OF ISSUE:
Company disagrees and denies the
(SGD.) S. BROWNLEE (SGD.) J. DORAIS
GENERAL CHAIRWOMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
B. Deacon – Labour Relations
A. A. Garcia – Director, Labour
R. Hampel – Counsel,
D. Burke – Labour Relations Officer,
P. Couture – Manager,
And on behalf of the
S. Brownlee – General Chairwoman, Stony Plain
F. Zamarria – Vice-Local Chairman,
C. Clark – Local Chairman,
T. Beaver – General Chairman,
AWARD OF THE ARBITRATOR
discloses that following a devastating rail collision in
Any person who is operating or assisting in the operation of any type of mobile equipment on CP property is prohibited from using any communication device while that equipment is in motion.
It is not disputed that employees who assist in the operation of trains, including RTCs, are clearly under the terms of the policy.
discloses that on Friday,
Manager of Operations James Blotsky requested copies of the grievor’s cell
phone records for his tour of duty
The Arbitrator is satisfied that the grievor did violate the Company’s policy. He knew, or reasonably should have known, that using his cell phone while on duty was prohibited for reasons of safety. I am therefore satisfied that RTC Perrault did make himself liable to discipline. The issue of substance is the appropriate measure of discipline to be applied in the circumstances.
in addressing that question there is at least one mitigating factor which I think must be taken into account. The overall rule which applies in the Montreal Operations Centre is that Rail Traffic Controllers are entitled to use the land line phones on their desks to make personal calls, obviously only for reasonable purposes. It appears that each desk has two telephones on it, the second being a back-up phone. It is that phone which employees are instructed to use if they should need to make a personal call while on duty. It appears that all communications on the desk telephones, including the back-up phone, are recorded. The unchallenged representation of the Company’s representative is that those recordings are periodically audited to ensure that there is no abuse of the privilege to make occasional personal telephone calls.
In the Arbitrator’s view the fact that an employee can, with the Company’s approval, make personal telephone calls while on duty tends to undermine the gravity of the offence committed by the grievor in the case at hand. While it is true that the length and content of his cell phone call could not be monitored, the fact remains that the Company appears to tolerate a certain degree of private conversation by Rail Traffic Controllers while they are on duty at their desk. That reality does, in my view, tend to colour the nature of the offence committed by the grievor and should properly be reflected in the assessment of discipline imposed.
Given the foregoing considerations I find that forty-five demerits is substantially excessive in all of the circumstances. It would appear to the Arbitrator that the assessment of a lesser measure of discipline, at the level of twenty demerits, would have been sufficient to bring home to the grievor the importance of respecting the policy not to use his cell phone while on duty. Hired in May of 1978, the grievor has over thirty years service with the Company. While he did receive discipline over his career, the instant case obviously involves a first offence in relation to a relatively new policy. In my view all of these factors justify a reduction in penalty.
cannot, however, sustain the position of the
is therefore allowed, in part. The Arbitrator directs that the grievor’s record
be adjusted by substituting twenty demerits for the forty-five demerits
assessed against him for the incident of