CANADIAN RAILWAY OFFICE OF ARBITRATION & DISPUTE RESOLUTION
CASE NO. 4022
CANADIAN NATIONAL RAILWAY COMPANY
The suspension and removal of Todd Cotie, the full time Health & Safety representative of USW Local 2004.
UNION’S STATEMENT OF ISSUE:
The Company submits that the grievor is deserving of the discipline and that they have not violated the collective agreement.
(SGD.) M. PICHÉ
There appeared on behalf of the Company:
S. M. Blackmore –
Manager, Labour Relations,
R. Bateman – Director, Labour Relations
S. Grou –
Sr. Manager, Labour Relations,
M. Loureiro – Chief Engineer, Track
D. Morin – Regional Chief Engineer,
D. James – Sr. Manager, Engineering
There appeared on behalf of the
M. Piché –
P. D. Wright –
P. Wills –
Unit 33 Chair,
R. Tompkins – Chief Steward, GLD,
T. Cotie – Grievor
AWARD OF THE ARBITRATOR
before the Arbitrator establishes, to my satisfaction, that the grievor was
deserving of an important sanction. The record discloses that he was given a
special appointment as Health & Safety Coordinator, a position which he
initially held from
one year later the
While there is
some dispute as to whether those postings were in fact made prior to Mr. Cotie
resuming the duties of Health & Safety Coordinator, it is not disputed that
they remained on-line during the time he held that position. Among the comments
on his FaceBook site was one to the effect that flawed statistics are still the
basis for behavioural safety programs such as the SaFe program of CN Rail. The
site was also critical of Company practices. Under the title Myths, Mud and
Behavioural BS (Why SaFe don’t work) Mr. Cotie’s FaceBook site contained the
comment: “A ‘blame the worker’ programs such as SaFe is a good example of the
‘Mud’.” Very simply, the evidence confirms that the grievor did maintain
internet postings on the topic of health and safety which were openly and
directly critical of the Company. Those postings remained in place while he
held the bipartisan position of Health & Safety Coordinator. Becoming aware
of these circumstances, the Company removed the grievor from his position on
has considerable difficulty with much of the
I also have difficulty with respect to the remedies sought in relation to Part II of the Canada Labour Code. Relief in respect of those matters appears to be reserved to the exclusive jurisdiction of the Canada Industrial Relations Board. In that regard section 133 of the Canada Labour Code provides, in part, as follows:
133.(1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.
(4) Notwithstanding any law or agreement to the contrary, a complaint made under this section may not be referred by an employee to arbitration or adjudication.
I do, however, consider that I have proper jurisdiction to deal with the grievor’s suspension. He was plainly suspended as a member of the bargaining unit and had full access to the grievance and arbitration protections of the collective agreement with respect to that aspect of the Company’s disciplinary action. While I am satisfied that the Company is correct in its conclusion that the grievor’s web site postings were inconsistent with the bipartisan duties and responsibilities of the person holding the office of Health & Safety Coordinator, I consider that the assessment of what is effectively a three month suspension is excessive, in all of the circumstances. In my view, having regard to the grievor’s positive prior record and length of service, a thirty day suspension would have been sufficient to bring home to Mr. Cotie the importance of refraining from posting or maintaining web site material which is clearly critical of the Company and negative to its business interests, especially when he held the bipartisan position of Health & Safety Coordinator.
The Arbitrator cannot agree that the grievor was denied a fair and impartial investigation contrary to article 8.2(d) of the collective agreement. There can be no question but that in substance he was well aware that his FaceBook and YouTube postings were the subject of the investigation. The great majority of the questions put to him related to FaceBook entries which were in fact copied to him and his Union representative at the commencement of the investigation hearing. It would appear that one item, which is not in dispute, involving the working of a CN snow jet was not among the documents provided, although there is no denial of it being on the web site. On the whole I do not find in that fact a fundamental deviation from the obligation to provide a fair and impartial investigation.
The grievance is therefore allowed, in part. The Arbitrator directs that the grievor’s record be amended to reflect a thirty day suspension, with compensation to be paid to him for the balance in wages and benefits lost.
(Signed) MICHEL G. PICHER