RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3952
VIA RAIL CANADA INC.
assessment of discipline resulting in the discharge of Locomotive Engineer Carl
Pingitore of Winnipeg, MB, “for your conduct unbecoming an employee during a
telephone conversation with the CMC on
The assessment of 40 demerit marks to the discipline record of Mr. Carl Pingitore.
UNION’S STATEMENT OF ISSUE:
The Corporation felt that Mr. Pingitore was intentionally delaying the train and the reference to more men was a threat of job action and was considered as conduct unbecoming. As a result, Mr. Pingitore was subsequently assessed 40 demerits resulting in his discharge.
It is the
Corporation’s responses have been the acknowledgement of the
CORPORATION’S STATEMENT OF ISSUE:
corporation submits that during telephone conversation held on February 12 and
13, 2010, with a company officer, Mr. Pingitore’s conduct was unbecoming. In
addition, Mr. Pingitore deliberately failed to follow a Company officer’s
instructions resulting in a 57 minute delay to the departure of Train No. 1 on
(SGD.) T. MARKEWICH (SGD.) D. STROKA
FOR: GENERAL CHAIRMAN SENIOR ADVISOR, LABOUR RELATIONS
There appeared on behalf of the Corporation:
D. Stroka –
Sr. Advisor, Labour Relations,
B. A. Blair –
Sr. Advisor, Labour Relations,
Wm. Mann – Manager, Train Operations – East
There appeared on behalf of the
M. A. Church –
B. Willows –
T. Markewich –
G. Mensaghi – Local Chairman, Division 854
C. Pingitore – Grievor
AWARD OF THE ARBITRATOR
The grievor was
assessed forty demerits, and discharged for the accumulation of demerits, for
the following stated reasons: “for your conduct unbecoming an employee during a
telephone conversation with the CMC on
Certain of the
background facts relating to this grievance are related in CROA&DR 3950 and 3951.
It is common ground that the grievor arrived in Sioux Lookout at 16:25 hours on
110.1 Locomotive engineers will be called as far as practicable 2 hours in advance of the time required to report for duty, except in cases of emergency. At a home station, final inspection time of the preceding tour of duty will not be included in determining availability for a 2-hour call. Where telephone service is available locomotive engineers will be called by telephone, except that other means may be used in cases of telephone system failure or when locomotive engineers are accommodated in facilities provided by the Corporation. Locomotive engineers assigned to regular runs will be called if request is made.
The record reveals that the grievor was called in his hotel room at 00:25 hours, at the conclusion of his eight hours of rest. He was then effectively told that he must go immediately to the station to prepare for his train’s departure, scheduled for 01:16 hours. During his telephone conversation with the crew officer he indicated that he could not reasonably be on his train in the short time expected. The transcript of the conversation reveals the following exchange between the grievor and the crew officer:
Crew Officer: Ok. So you’re not taking an ASAP call? I instructed you both that I expected you to be there at 00h41 and that I would call you at the expiration of your rest.
After a brief additional exchange the grievor responded:
O, okay. I think you guys need to have the proper amount of men in this terminal.
The grievor then hung up the telephone. It appears that thereafter the crew officer was unable to reach him either on his cell phone or on his hotel room telephone.
The crew officer then interceded by telephone with the grievor’s workmate. Apparently after speaking with his workmate the grievor did call the crew officer back. An exchange occurred between them concerning the delay that might be required in obtaining a taxi and how long it would take the grievor to get to his train. One of the answers Mr. Pingitore made to the officer was: “So are we still on a schedule or are we on a spareboard now?”
In fact the grievor and his mate arrived at their locomotive some fifty minutes after the first telephone call, at 01:15, one minute before the scheduled departure time of their train. It appears that the train was then held, in any event, by reason of the arrival into the terminal of a freight train whose movement blocked the main line. In fact Train no. 1 departed Sioux Lookout at 02:13 hours, which represented a fifty-seven minute delay.
The theory of
the Corporation is that the grievor deliberately conducted himself in such a
manner as to ensure the late departure of Train no. 1 from Sioux Lookout on the
By notice dated
Q.13 Mr. Pingitore, the actions that you took are
perceived as threatening job action as demonstrated by your pre meditated [sic]
delays that took place right from the time you were called to dead head from
These instances appear to the company that your actions were in fact a pre-meditated actions [sic] to force the corporation to place more men on the working board which would then allow you to work less than your current schedule provides.
Is this correct?
Counsel for the
20.2 A locomotive engineer will not be disciplined or dismissed without having had a fair and impartial hearing and his responsibility established.
He brings to the Arbitrator’s attention the following comments from CROA 2934 with respect to the standard of a fair and impartial investigation:
Secondly, it is difficult to view the comments made by the investigating officer, who by his own account on at least one occasion accused the grievor of lying, and threatened to continue the investigation until if necessary, to get the facts, as complying with the standards of a fair and impartial investigation. Obviously, an investigating officer may well have an opinion about the answers provided by an employee, and should be given some latitude to probe unclear answers. However, as a general rule the process of questions and answers must be open-minded and conducted in such a manner as to reflect general impartiality and a withholding of judgement. Unfortunately that did not occur in the case at hand. The Arbitrator accepts the evidence of Mr. Lorman that Mr. Edgar’s accusations and threat caused him considerable discomfort and uncertainty.
Counsel submits that the investigating officer failed utterly in maintaining the standard of a fair and impartial inquiry, clearly expressing that he had already drawn conclusions that the grievor was involved in a personal form of job action or slowdown. On that basis counsel submits that the discipline assessed against the grievor should be viewed as void, ab initio, in keeping with the prior awards of this Office.
With respect to
the merits of the Corporation’s position, the Arbitrator has substantial
difficulty, bearing in mind that the employer bears the onus of proof. The
grievor was discharged, in part, for having “threatened job action against the
Corporation.” With respect, I cannot find that allegation sustained in the
evidence before me. It appears to be drawn from the Corporation’s reading of
the grievor’s comment to the crew officer with respect to what he perceived as
questionable manpower management on the part of the employer, an observation
made in a single comment over the telephone. That, coupled with the fact that
the grievor booked rest as he was entitled to do is seen by the Corporation as
compelling evidence of a one man slowdown deserving of forty-five demerits and
termination. It couples the events at Sioux Lookout with the delays incurred on
the previous day by the grievor having failed to report the late arrival of a
taxi and having taken a thirty minute break during his deadhead trip to Sioux
A different conclusion, however, must be drawn with respect to the allegation that the grievor did conduct himself in a manner unbecoming. By his own admission at the arbitration hearing, it was not appropriate for him to hang up on the crew officer as he did. I am satisfied that that, standing alone, does constitute insubordination which, but for the issue of the conduct of the investigating officer, would in my view have justified the assessment of twenty demerits. The grievor knew, or reasonably should have known, that the crew officer was attempting desperately to have Mr. Pingitore and his crew mate get to their train as quickly as possible, to minimize any delay in its departure. It was clearly not appropriate for the grievor to summarily end their conversation by hanging up and, as I am satisfied, thereafter refuse to answer his hotel room telephone. I do not find the grievor’s explanation that he was in the shower at that time to be convincing.
However, in the
Arbitrator’s view, the
of equal importance, is the fact that the grievor was given no advance notice
whatsoever that he would be accused or investigated in relation to a deliberate
plan to delay Train no. 1 on
For the foregoing reasons the Arbitrator is compelled to the conclusion that the Union is correct in its view that the discipline in the instant grievance must be viewed as void ab initio. The grievance must therefore be allowed. The Arbitrator directs that the forty demerits assessed against the grievor be struck from his record, that he be reinstated into his employment forthwith with no loss of seniority and with compensation for all wages and benefits lost.