CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4037
VIA RAIL CANADA INC.
THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND GENERAL WORKERS’ UNION OF
Rejection of candidacy of Benoit Dulong for locomotive engineer training.
UNION’S STATEMENT OF ISSUE:
submitted an application in response to a Locomotive Engineer Pilot Training
Program bulletin, issued
The Union requests a declaration to the above effect and that the grievor be made whole in all respects including, where appropriate, the payment of compensation with interest.
Corporation denies the
(SGD.) A. ROSNER
There appeared on behalf of the Corporation:
E. J. Houlihan –
Director, Labour Relations,
B. A. Blair –
Sr. Officer, Labour Relations,
J. Gough –
Director, Customer Experience,
There appeared on behalf of the
A. Rosner –
S. Auger –
D. Andru –
F. Sauvé –
President for grievances,
M. Laframboise –
B. Dulong – Grievor
AWARD OF THE ARBITRATOR
It is common
ground that the parties entered into a Memorandum of Agreement in March of 2010
to establish a selection process and training as locomotive engineers for
employees working outside the running trades under collective agreements no. 1,
2 and 3 between the Corporation and the
who works as a hostler in
discipline, discussed in CROA&DR
3512, involved the grievor issuing a voided ticket in the name of Osama Bin
Laden and posting it on the
It is not disputed that by the operation of the Brown System the grievor still had residual discipline on his record within the five year period preceding his application for selection in the pilot program of locomotive engineer training. In his case the entire removal of discipline from his record had not occurred at the time of his application, as he had been discipline free for some four years and ten months.
The Corporation takes a two-fold position. Firstly it notes that Mr. Dulong did not clear the five year period of being discipline free. Alternatively, its representative argues that the Corporation nevertheless at all times reserved the right to go behind the five year period where the nature of the conduct which attracted discipline was sufficiently serious as to disqualify an individual from selection.
Arbitrator appreciates the perspective of the
… While it is not improper for the Corporation to scan the grievor’s record over a greater number of years, particularly with a view to identifying recidivism in a particular area, no significant recidivism in elements critical to the grievor’s qualifications as a candidate for training as a locomotive engineer emerge from the record. …
As is evident from the foregoing passage, it is appropriate for the Corporation to scan an employee’s disciplinary record, and to do so over a relatively long period, to determine whether there are recidivist tendencies or traits which would militate against the selection of that individual.
Regrettably, in my view, this is such a case. While it is true that the grievor has been disciplined only twice, both instances involved what can be fairly characterized as gross errors of judgement calculated to cause scandal or embarrassment to the Corporation. The most recent of those instances was adjudicated in 2008, albeit the event occurred in 2004.
The establishing of a pilot project for the training of locomotive engineers is a project of considerable importance and cost to the Corporation. In judging the fitness for selection of candidates, in my view, the employer must be allowed a substantial degree of discretion. If it is shown that it has taken pertinent factors into consideration and has avoided arbitrariness, discrimination or bad faith in its treatment of an applicant, a board of arbitration should not interfere with that judgement, even though it might have itself decided otherwise.
What does the instant case disclose? The record confirms that on two separate occasions in the past Mr. Dulong engaged in deliberate behaviour which was clearly provocative, hurtful to supervisors and scandalous to the point of risking public embarrassment for the Corporation. Unfortunately his penchant for recklessness and indifference to the impact of his actions did have a recidivist quality. The Corporation’s judgement of the grievor’s character based on those events, and his suitability for locomotive engineer training did, in my view, allow it to carefully weigh the history of those incidents in the grievor’s disciplinary record and to come to the conclusion that these incidents demonstrated an incompatibility on the grievor’s part with respect to the attribute that would justify his selection for locomotive engineer training. Given that the Corporation’s decision was in fact based on examining discipline beyond the five year window, I find it unnecessary to deal with the dispute between the parties concerning the meaning of an employee’s record being free of discipline for the purposes of the selection process. As indicated above, I am satisfied that the recidivism exhibited by the grievor in matters of serious misconduct justified the Corporation’s decision.
For these reasons the grievance must be dismissed.