SHP - 35

IN THE MATTER OF AN ARBITRATION

BETWEEN

Canadian National Railway Company

(the "Company")

AND

RAILWAY EMPLOYEES DEPARTMENT, DIVISION NO. 4

(the "Union")

RE: GRIEVANCE OF J. A. MARCHAND

 

SOLE ARBITRATOR: J. D. OíSHEA, Q.C

 

APPEARING FOR THE UNION:

John H. Clark

Ray Peir

 

APPEARING FOR THE COMPANY:

Brian Nobler

J. Cameron

K. Taylor

 

 

A hearing in this matter was held in Montreal on July 29th, 1975.

 

AWARD OF THE ARBITRATOR

This matter arose and came on for hearing under the provisions of the collective agreement between the parties dated December 11th, 1974.

The parties agree that the dispute could be described thus:

JOINT STATEMENT OF ISSUE

Division No. 4, Railway Employeesí Department alleges that the Canadian National Railways unjustly disciplined Carman J. A. Marchand in assessing him with 20 demerit marks for excessive absenteeism.

JOINT STATEMENT OF FACT

Mr. J. A. Marchand was employed as a Carman at the Companyís Point St. Charles Shops in Montreal. The jointly accepted discipline policy provides for the assessment of demerit marks for disciplinary offences. An accumulation of 60 demerit marks results in the discharge of an employee. On December 19, 1973, Mr. Marchand was assessed 40 demerit marks for excessive and unexplained absenteeism between January 3 and April 12, 1973, for refusing to perform the tasks assigned on November 21, 1973 and for refusing to submit to an investigation on December 4, 1973. On November 12, 1974, Mr. Marchand was assessed an additional 20 demerit marks for excessive absenteeism. The foregoing resulted in an accumulation of 60 demerit marks and Mr. Marchand was accordingly discharged.

 

The grievor, J. A. Marchand, was employed by the Company since June 1950. The parties also agreed that the number of demerit marks assessed for any particular incident are not fixed but are assessed according to the seriousness of the offence and the work and discipline record of the employee involved.

According to the practice over many years, the accumulation of 60 demerit marks results in the discharge of the employee involved. However, if an employee is free from further demerit marks for a period of twelve months, twenty demerit marks are deleted from his record.

Prior to the assessment of discipline, a formal investigation is held whereat the employee is permitted to have his Union representative attend.

On October 28th, 1974 the Company investigated the conduct of the grievor concerning his "excessive lost time during 1974". The grievor and an Union representative attended the meeting that was held to conduct this investigation. As a result of the investigation, the grievor was assessed twenty demerit marks on November 12th, 1974 "for excessive lost time".

The evidence established that the grievor suffered from bursitis or other arthritic condition in his spine, shoulder and elbow which apparently prevented him from performing the usual work which was required of his position. However, there was some conflict in the medical evidence adduced by the grievor concerning the extent of his incapacitation. Some of the medical evidence submitted by the grievor was contradicted by other facts in this case. There was however medical evidence that recommended that the Company assign light duties to the grievor. Because no light duties were available, the work assigned to the grievor was such that the grievor declined to perform the work.

The evidence established that the grievorís condition was unlikely to improve but would likely worsen as he grew older.

The evidence further established that, following the imposition of forty demerit marks in December 1973, which was not successfully challenged, the grievor was absent from work in 1974 as follows:

MONTH DAYS WORKED DAYS ABSENT

January 17 4

February 18 2

March 20 1

April 4 17

May 0 23

June 0 20

July 8 2

August 14 6

September 4 16

October * 9 11

___________ ___________

TOTAL 94 102

*Up to and including October 28th.

NOTE: The foregoing excludes 4 statutory holidays as well as 12 vacation days paid Mr. Marchand.

The evidence also established that a summary of the grievorís attendance at work during the five years preceding his discharge indicated a declining number of days worked and in 1973 he only worked 45 days.

Many of the days during 1974 on which the grievor was absent for alleged sickness were not recognized by the insurer for purposes of weekly indemnity payment. The grievor also failed, on many occasions to notify the Company of his intended absences.

Following the Companyís formal investigation into the reasons far the grievorís absences which was held on October 28th, 1974, at which time the grievor was alerted to the fact that his absenteeism was of concern to the Company, the grievor worked six days and was absent for five days prior to his discharge on November 13th, 1974.

The grievor failed to notify the Company concerning the reasons for his absence for the five days referred to above. Although the grievor notified the Company on occasion in the past concerning the fact of his absence, there were may occasions when he failed to notify the Company of his intended absence.

Having considered all the evidence and the representations of the parties, I find that the Company conducted a formal investigation of the grievorís conduct, as it was required to do, and that the grievor was represented by the Union at such investigation. Although, after the discipline was imposed, the, grievor complained about a challenge to the extent of the authority of the Union representative at the investigation meeting, it is evident from the report of the meeting that the grievor and the Union representative had "no comment" to the concluding question which asked "do you believe that this statement had been conducted in a fair and impartial manner and in accordance with the wage agreement?".

I therefore find that the investigation was conducted by the Company in accordance with the provisions of the collective agreement. However, it should be noted that the presence of the Union representative at such investigation meetings is not that of a mere observer. The Union representative has the right to insure that all the relevant facts are presented for the Companyís consideration and also has a right to endeavour to mediate any potential dispute with a view to avoiding the imposition of a penalty. This right is not only implicit in the provisions of the collective agreement but is also inherent in the Unionís position as the sole bargaining agent of the employees it represents.

I further find that the report signed by the grievorís doctor which indicates that he was under treatment, failed to establish that he was sufficiently disabled to prevent him from performing his normal duties during a substantial portion of his absence. Again, even though light duties may have been recommended at one stage, there was no obligation on the Company to assign light duties if no such light duties were available. In this regard the Union failed to prove that light duties were available which the Company failed to assign to the grievor.

I further find that the grievor appeared to rely on his seniority as a reason for refusing to perform the duties assigned to him. I also find that he was not as diligent in protecting his rights to continued employment as the Union attempted to be. This was clearly evident from the fact that even after the grievor was alerted to the fact that the Company was, on October 28th, 1974, investigating the validity of the reasons for his repeated and continuous absenteeism, the grievor failed to contact the Company concerning the reasons for and the fact of his absences for the five days which followed the investigation on October 28th, 1974. In this regard, the Union subsequent attempt to justify his absence has not rectified the grievorís obvious lack of concern for his obligation as an employee to provide regular attendance.

On all the evidence before me and after considering the grievorís long service with the Company I find that even though the grievor was alerted to the fact that his conduct and his attendance left much to be desired when the Company assessed forty demerit marks against him in December 1973, his attendance failed to show any reasonable improvement. In 1973 he only worked forty-five days.

Up to October he worked only ninety-four days. The Union acknowledged that because of his physical condition his attendance would likely decline in the future.

I therefore find on the evidence that the grievor has failed to prove that his physical condition prevented him from attending work on all the days he was absent. I further find that, in view of the prior discipline imposed on the grievor in December 1973 that the Company has established, just cause for imposing a penalty on the grievor. Having regard to the number of demerit marks imposed on the grievor on December 1973 for the offences committed by him, I further find that there is nothing before me which would establish that the twenty demerit marks imposed by the Company in October 1974 was either unjust or unreasonable. Indeed, the twenty demerit marks were in the range of penalties imposed by the Company on other employees for similar offences.

However that may be, the grievorís failure to attend work regularly during the past several years and having accepted the fact, as alleged by the Union, that he is unlikely to attend work regularly in the future because of his physical condition, I further find that the facts of this case fall within the principle enunciated by Bora Laskin Q.C. (as he then was) Re United Automobile Workers, Local 112, and DeHavilland Aircraft of Canada Ltd. 15 L.A.C. 41 and J.F.W. Weatherill Allied Chemical Canada, Ltd. and United Automobile Workers, Local 89 3 L.A.C. (2d) 267 wherein those learned arbitrators held that an employer is entitled to rely on the probability of reasonable futures attendance of an employee. The facts of this case clearly indicate that the Company is not able to rely upon the reasonable future attendance of the grievor in this case. I accordingly find that the Company has established that it had just cause to terminate the grievorís employment.

My award therefore is that the grievance is dismissed.

Dated at Toronto this 8th day of August, 1975.

J.D. OíSHEA, Q.C

SOLE ARBITRATOR