CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3985
CANADIAN NATIONAL RAILWAY COMPANY
assessment of twenty (20) demerits to Conductor L. Adams of Sioux Lookout for
“failure to follow instructions as prescribed in GOI, Section 8, Item 12.4
while working as conductor on
UNION’S STATEMENT OF ISSUE:
An employee investigation was held with respect to this matter following which Conductor Adams was assessed twenty demerits.
The Company has not responded to this grievance.
(SGD.) B. R. BOECHLER
There appeared on behalf of the Company:
D. Gagné –
Sr. Manager, Labour Relations,
D. VanCauwenbergh –
Director, Labour Relations,
R. Baker – Superintendent, Capreol
K. Morris –
Sr. Manager, Labour Relations,
There appeared on behalf of the
M. A. Church –
B. R. Boechler –
R. A. Hackl –
A. W. Franko –
L. Adams – Grievor
AWARD OF THE ARBITRATOR
facts in relation to these grievances are not substantially disputed. An urgent
situation involving a derailment required a work train to be dispatched to a
wreck site in the early morning hours of
As the train was to be pushed for the entire distance, through the darkness of the early morning hours, running rules required that an employee be stationed at the point of the movement. That role was to be performed by the grievor. He refused to do it, invoking his right to refuse dangerous work under Part II of the Canada Labour Code. Mr. Adams maintained that the assignment to ride the point was excessively hazardous, given the dark and wintery conditions which then prevailed. He also had concern with respect to riding the side ladder of the leading car as the movement would be required to go through several narrow rock cuts with close clearance. As conductor of the movement he also took the position that the work should not be performed by his assistant conductor, Damien Swanson.
Upon hearing of the grievor’s work refusal two supervisors who were at the site of the derailment proceeded to his train by hy-rail truck, General Manager Dennis Broshko and Superintendent Rick Baker. When Mr. Broshko and Mr. Baker entered the locomotive cab there ensued a discussion with the work train’s crew. Mr. Adams reiterated that he considered it unsafe to ride the point of the train in the extreme winter conditions and darkness that then prevailed. He stated that he would, however, be willing to walk at the point of the movement. When they were asked whether they were willing to perform the work, Assistant Conductor Swanson and Locomotive Engineer Shawn Gaudry responded that they were prepared to do so. The Arbitrator accepts the evidence of Mr. Baker that it was not then practicable to use the hy-rail as a lead vehicle because the circumstances at the wreck site did not then allow for the removal of the hy-rail from the track and required the lead end of the work train to move into extremely close proximity to the derailment site to facilitate the unloading of rail panels. The alternative of walking was impracticably slow given the urgency of the situation. Mr. Broshko and Mr. Baker then instructed Assistant Conductor Swanson to take his position on the lead, with the apparent understanding that he could be relieved if he found the task too tiring or difficult. With Mr. Swanson riding on the point the train then began to proceed towards the site of the derailment.
After a short time Mr. Swanson radioed that he was too tired to maintain his position on the ladder of the leading car. At that point Mr. Baker relieved him and stayed on the point of the movement until its arrival at the site of the derailment. According to his evidence, which the Arbitrator accepts, the night visibility, enhanced to some degree by snow on the ground, allowed him to instruct the engineman to increase his speed to fifteen miles per hour. During his evidence he specifically related that he knew the territory over which they were travelling to be clear, as he had specifically ensured that it would be by an arrangement with the officer responsible for the territory, and he had himself travelled the length of the distance in the hy-rail vehicle before boarding the work train. It does not appear disputed that once the train reached the work site the grievor continued on duty, doing his part to assist in cleaning up the derailment and restoring the track.
before the Arbitrator appears to confirm that following the incident the
Company’s Risk Manager, Rick Theberge, initiated a report of the grievor’s work
refusal with Transport
following the incident, apparently after the Company was advised that there was
no dangerous condition according to the Transport Canada officer, an
investigation was convened by the Company with respect to the actions of Mr.
Adams. Following that investigation he was assessed twenty demerits for
“failure to follow instructions outlined in GOI section 8, item 12.4, while
working as conductor on
152.1 Management agrees it must exercise its rights reasonably. Management maintains it ensures a harassment free workplace environment. An employee alleging harassment and intimidation by management may submit a grievance to the General Chairperson to be progressed by the General Chairperson at his or her discretion. An employee subject to this agreement may, without prejudice, elect to submit a complaint under CN’s Harassment Free Environment Policy.
Counsel for the
With respect to
the merits of the grievance, the Union submits that at all times the grievor
acted in good faith, based on his personal belief that it was unduly hazardous
to operate the work train using a point observer over a distance of some seven
miles in extremely dark and cold conditions, and that there was no just cause
in the circumstances to impose any discipline upon him for what he fairly
believed was the exercise of his rights under the Canada Labour Code. He also submits that it was not proper for the
Company to conduct a disciplinary investigation in relation to the incident
which occurred given that, at least in the Union’s perspective, the process of
investigation and a report by Transport
With respect to the merits of the dispute the Arbitrator is satisfied that Mr. Adams did act in good faith when he declined to ride the point of the movement, believing it to be an unsafe situation. I am equally satisfied, however, that the contrary view held by Mr. Baker, who eventually did ride the point himself, was equally held in good faith. While it is not for this tribunal to determine whether the condition was in fact safe or unsafe, it is fair to comment that the circumstances were such that honest persons might well differ on that question. If it were necessary to do so I would be compelled to the conclusion that in fact the grievor should not have been disciplined, as I accept that he did honestly believe that his refusal to perform the work was made in good faith and in compliance with his rights under the Canada Labour Code, whether he might or might not have eventually been vindicated in that regard by a report of Transport Canada.
fundamentally, however, quite apart from the merits of the grievance, I am
compelled to find that the
With the greatest of respect, those two arguments cannot succeed. It is trite to say that ignorance of the law is no excuse. It is likewise no excuse for the Company to argue that officer who violated the collective agreement was simply not aware of its terms. Secondly, and perhaps more importantly, the issue of whether prejudice did or did not result form the violation of the grievor’s right is not one that becomes debateable in these circumstances. As noted in prior awards of this Office (CROA 3362, 3322, 1734, 2073) the expedited form of arbitration conducted in this Office relies heavily on the integrity of the disciplinary investigation process conducted by the Company. The following was stated in CROA 1734:
In the Arbitrator’s view this case raises issues fundamental to the integrity of the process of expedited hearings that is vital to the operation of the Canadian Railway Office of Arbitration. By long established practice, this Office relies on written briefs, including the transcript of investigations conducted by the Company the content of which forms the basis of the decision to assess discipline against an employee. If the credibility of the expedited hearing process in this Office is to be preserved both the parties and the Arbitrator must be able to rely, without qualification, on a fair adherence to the minimal procedural requirements which the parties have placed into the Collective Agreement to facilitate the grievance and arbitration process in discipline cases. Needless to say, irregularities at the investigation stage, particularly those which depart from the standard of full and fair disclosure reflected in Article 18.2(d) have the inevitable effect of undermining the integrity of the entire grievance and arbitration process so vital to the interests of both parties.
In that context
it is paramount to recall that justice must not only be done, but must
manifestly be seen to be done. I must therefore conclude that the refusal of
the investigating officer to allow the
What of the allegation of the violation of
article 152 of the collective agreement? Upon a close examination of the
evidence I find that the
The grievance is therefore allowed, in part. The Arbitrator finds and declares that the Company did fail to respect the requirements of article 117 of the collective agreement in its investigation of the grievor. On that basis the discipline against him cannot stand. I therefore direct that the twenty demerits assessed against his record be removed from his record forthwith.