CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4076
Heard in Montreal,
Wednesday 11 January 2011
Concerning
CANADIAN NATIONAL RAILWAY COMPANY
And
TEAMSTERS CANADA
RAIL CONFERENCE
EX PARTE
DISPUTE:
Assessment
of a thirty (30) day suspension to Employee R for “conduct unbecoming an
employee on March
5, 2011.”
COMPANY’S STATEMENT OF ISSUE:
On March 5, 2011,
the grievor and a locomotive engineer operated train M35551DO5 from McBride to Blue River
and were accommodated at the away from home terminal of Blue River
at the Glacier Mountain Lodge. The grievor and his locomotive engineer were
reordered to return to McBride on train M35451 04 at 22:00 March 5, 2011.
While
travelling into Red Sand siding, the grievor pulled the emergency brake handle,
placing the train into emergency. The incident was reported to the RTC whereby
allegations of conduct and safety were brought into question. Both crew members
were removed from service. Following an investigation the grievor was assessed
a thirty (30) days suspension.
The Union contends: (1) The Company has improperly relied on
evidence that was not properly adduced; (2) The Company failed to provide
a fair and impartial investigation; (3) The grievor was not properly
notified of the locomotive engineer’s investigation. The Union
further contends that it was incumbent on the Company to explain his right to
the grievor as he did not have the benefit of Union representation at the
investigation.
Based on
the foregoing the Union requests that the
thirty day suspension be expunged and that the grievor be made entirely whole.
The Company
denied the request and disagrees with the Union’s
contentions.
FOR THE COMPANY:
(SGD.) P. PAYNE
FOR: DIRECTOR, LABOUR RELATIONS
There appeared on behalf of the Company:
P. Payne –
Manager, Labour Relations, Edmonton
D. VanCauwenbergh –
Director, Labour Relations, Toronto
K. Gilks –
Trainmaster, Edson
K. Smolynec –
Sr. Manager, Occupational Health Services
There appeared on behalf of the Union:
M. Church –
Counsel, Toronto
B. R. Boechler –
General Chairman, Edmonton
R. A. Hackl –
Vice-General Chairman, Edmonton
Employee R –
Grievor
AWARD OF THE ARBITRATOR
The grievor was
assessed a thirty day suspension for conduct unbecoming an employee during the
course of his tour of duty from Blue
River to McBride on March 5, 2011.
The allegation is that the grievor was loud and obstreperous towards his
locomotive engineer before they began their tour of duty in the Glacier
Mountain Lodge, hectoring and berating his locomotive engineer during the
operation of their train and finally making an unnecessary application of the
emergency brake while entering a siding at Red Sand. Having reviewed the
evidence, on the merits of the grievance, the Arbitrator would be inclined to
sustain the position of the Company with respect to all of the charges against
Employee R.
However, the Union raises an issue with respect to whether the grievor
was denied a fair and impartial investigation in respect to the facts which led
to his discipline. The record before the Arbitrator confirms that at
approximately 23:10 hours on March 5, 2010 Trainmaster Kirk Gilks received word from
Chief RTC Paul Capper that the grievor had put his train into emergency while
pulling into Red Sand. Together they decided to withdraw the crew from service
with Mr. Gilks to drive to the location to speak with the locomotive engineer.
In doing so he encountered the grievor walking on the highway and gave him a
ride. Mr. Gilks heard information about what had occurred in the car and also
met Mr. Laporte in the station at McBride. His memo recounting these events
notes, in part: “I met Mr. Laporte at the station in McBride. He was visibly
upset and what I feel was almost to the point of tears.”
A disciplinary
investigation ensued. That investigation was in fact conducted by Trainmaster
Gilks on March 9,
2011. At the outset of the investigation the grievor was provided
with a number of documents, including written statements from the General
Manager of Glacier Mountain Lodge and written statements by both Locomotive
Engineer Laporte and Employee R. Remarkably, the memo prepared by Mr. Gilks
himself, and which was plainly relied upon by the Company, was not placed in
evidence and was not provided to the grievor.
Counsel for the
Union submits that in the circumstances the
investigation cannot be viewed as having been in conformity with the collective
agreement and within the standard of a fair and impartial hearing. I am
compelled to agree. Article 117.2 of the collective agreement provides as
follows:
117.2 Employees
may have an accredited representative appear with them at investigations, they
will also have the right to hear all the evidence submitted and will be given
an opportunity through the presiding officer to ask questions of witnesses
whose evidence may have a bearing on the employee’s responsibility. Questions
and answers will be recorded and the employee will be furnished with a copy of
the statement taken at the investigation. Employees under Company investigation
and/or his/her accredited representative shall have the right to attend any
Company investigation, which may have a bearing on the employee’s
responsibilities. The employee and/or their accredited representative shall
have the right to ask questions of any witness/employee during such
investigation relating to the employee’s responsibilities.
In the
Arbitrator’s view there can be little doubt but that the memo of Trainmaster
Gilks is a form of evidence which was in the possession of the Company and
which would be considered in determining the grievor’s responsibility. That
“evidence submitted” was not provided to
the grievor at the time of his investigation as it should have been, and indeed
was not provided to the Union until such time
as it was quoted during the course of correspondence at Step III of the
grievance procedure. On the foregoing basis alone, the disciplinary
investigation cannot be viewed as having conformed to the requirements of the
collective agreement, and the discipline assessed against Employee R is void ab initio. It might be added that it was
questionable to have Trainmaster Gilks conduct the investigation, given that he
was himself a participant in the events at McBride and registered his own
impression of the state of both the grievor and his locomotive engineer at that
time in a memo which ultimately was not shared with the employee or his Union.
For the
foregoing reasons the Arbitrator is compelled to declare that the Company did
fail to meet the standards of a fair and impartial investigation and that the
thirty-day suspension assessed against the grievor must be viewed as void, ab initio. That suspension is to be
stricken from his record and he shall be compensated forthwith for all wages
and benefits lost form the time he was held out of service until he declined to
undergo a physical and psychiatric evaluation on April 12, 2011.
January 16, 2011
(signed) MICHEL G. PICHER
ARBITRATOR