SHP - 90
IN THE MATTER OF AN ARBITRATION
Canadian National Railway Company
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO
RE:GRIEVANCE OF F. MELIA
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Ottawa on January 21, 1981.
AWARD OF THE ARBITRATOR
The grievor, an employee of some eight years' service and classified as a Carman, was discharged in May, 1980, as a result of the accumulation of sixty-five demerits, that is, demerits in excess of sixty. The total of sixty-five demerits was reached as a result of the assessment of twenty demerits against the grievor on May 12, 1980, for failure to detect a hot journal on April 30, 1980.
The issue in this case is whether or not the twenty demerits were properly assessed against the grievor. It is my view, however, that where the assessment of demerits leads directly to the discharge of an employee, the extent of the discipline imposed should be considered in the light of that result, and having regard to the nature of the previous disciplinary record, as well as to the usual considerations relating to the severity of a penalty.
The Joint Statement of Dispute and Joint Statement of Issue in this matter are as follows:
Assessment of discipline to Carman F.C. Melia.
JOINT STATEMENT OF ISSUE
Carman F.C. Melia was assigned to service treat train 422 on track R-14 during his tour of duty between the hours of 0001 to 0800 hours on April 30, 1980. In carrying out this assignment, Mr. Melia did not detect a hot journal on car # PC549958. An investigation was held and Mr. Melia was assessed 20 demerit marks for failing to detect the hot journal. The addition of 20 demerit marks to previous demerit marks assessed Mr. Melia resulted in a total of 65, and consequently he was discharged for accumulation of demerit marks.
The Union contends that Mr. Melia was unjustly disciplined and has requested that he be reinstated with compensation for loss of earnings. The Company maintains that the discipline assessed was warranted.
The inspection on which the grievor was engaged was an inbound inspection. While trains are also subject to outbound inspection, the inbound inspection is if anything, more important and carried out more thoroughly. I would add that the presence or absence of hotbox detectors at any particular point before the point of inspection seems to me an irrelevant consideration. Whether or not the journal in question ought to have been detected by some other method as well (an idea which is speculative at best), it remains that it ought to have been detected by the grievor.
There was, there is no doubt, a hot journal on car #PC549958, and that car was part of a train which the grievor was inspecting. He was qualified for and experienced in the work. The condition of the journal was such that it could not have been missed by a qualified employee carrying out his work properly. In the instant case the grievor was working at night, and the proper performance of his work required that the grievor use a lamp. The grievor's evidence is that after he had inspected a certain number of cars his lamp failed. He requested a lamp from his lead hand. Usually the lead hand would provide his own lamp, get one from the crew truck, or send for one. In this case, nothing was done, and the grievor continued his inspection without a proper lamp, procuring one at the tower later in the shift.
The lead hand, however, can recall no such request being made. It is not necessary to determine this particular question of fact, because even if the grievor did request a new lamp, he should not have continued to carry out his inspection until one was available. Perhaps it would be better to say that he simply could not carry out the inspection properly without a functioning lamp. For an experienced employee such as the grievor, it is no excuse to say that proper equipment was not provided. From his testimony, it is clear that the grievor recognized this, but continued to carry out an inadequate inspection for fear of criticism, since he was aware that he already had a record of forty-five demerits, and that his job was in jeopardy. While his anxiety may be understandable, it is not a sufficient excuse for what was really a failure to carry out a vitally important inspection function.
For the foregoing reasons, I have no doubt (and it is, in effect, acknowledged), that the grievor was subject to discipline for failure to carry out a proper inspection. The more difficult question is whether or not twenty demerits was an appropriate penalty. There is no precise scale of demerit points attributable to particular offences. In some cases, a greater number of demerits may be assessed where the same offence is repeated. Again, as I noted at the outset, where assessment of demerits leads to discharge the penalty must be looked at particularly closely.
There is, I think, no analogy to be drawn between this case and the Canadian Pacific (Tucker and Ritchie) case (18 Nov 80.), to which the company referred. There, the grievors did not carry out an inspection at all, and attempted to mislead the company in that respect. Here the grievor, apparently through misplaced anxiety, failed to carry out an aspect of his inspection properly. While there does not appear to be a consistent pattern of discipline for offences of this sort, the union referred to certain instances where employees had been warned, or assessed a small number of demerits. Twenty demerits, it should be noted, is an important penalty.
The evidence is that the grievor had not previously been criticized in respect of his work performance. The discipline record he had acquired was based on attendance problems. These, it is suggested, were related to certain problems which the grievor had been experiencing, and which, it is said, have been resolved.
Bearing all this in mind, it is my view that the assessment of twenty demerits was not justified, and that the penalty imposed on the grievor should properly have been one of ten demerits. As a result, it is my award that the demerits be reassessed at that level, and that the grievor be reinstated in employment without loss of seniority. He is entitled to compensation for loss of regular earnings, (subject to deduction of other earnings in the usual way), but in calculating such compensation the company may reduce the gross amount payable by an amount reflecting the grievor's absenteeism during the six-month period preceding his discharge. I remain siezed of the matter of compensation in the event the parties are unable to agree thereon.
DATED AT TORONTO, this 4th day of February, 1981.
(signed) J.F.W. Weatherill