BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

J. A. Cameron

And on behalf of the Union:

F. Klamph

A hearing in this matter was held at Montreal on January 11, 1986.

The Dispute and Joint Statement of Issue in this matter are as follows:

There are, then, four sets of particular issues in this case, namely, whether or not there was just cause for discipline on each of the occasions referred to and if so, whether or not the penalty assessed was appropriate; and a more general issue, whether or not there was, in view of the grievor’s record (if just cause for the assessment of twenty demerits or more his been shown), just cause for discharge.

At the hearing of this matter, reference was made to a number of previous occasions on which the grievor had been disciplined on various grounds (many relating to poor workmanship). In most of these cases it would appear that the discipline was not made the subject of a grievance, although in at least one case there was a grievance. That grievance was not conceded by the company and the union did not proceed to arbitration with it. At one point (in January, 1982), the grievor’s record was shown as clear of demerits. He was subsequently assessed discipline, first in the form of reprimands and then by way of demerits, in December, 1982, May, September and October, 1983, and February, March and April, 1984 and as a result his discipline record at the time of the first of the incidents in issue here stood at 40 demerits.

Reference was made, to a greater or less extent, to the merits of the previous disciplinary incidents, that is, to those which had led to the accumulation of 40 demerits by the grievor, prior to January, 1985. Indeed, there was some discussion of the merits of earlier disciplinary incidents whose effects had been expunged from the grievor’s record by January, 1982. None of those matters is proper to be considered in the instant case. Conceivably, matters of that sort would be relevant to an allegation such as one that an employee had been subjected to systematic improper discrimination over a period of years. That is not the allegation in this case, and there is no such issue before me. The evidence, in any event, would give no support whatever to such an allegation.

Where a disciplinary record is established, then it is not proper at arbitration to seek to go behind the record in an attempt to show, for instance, that it was not deserved. By the same token, of course, it is not open to the company to show that discipline in past cases ought to have been more severe than it was, or that there were other instances in which discipline ought to have been imposed. The rights or wrongs of any disciplinary instances which occurred prior to January, 1985 (that is, prior to the incidents in issue in this case), are not, therefore, proper to be considered. The fact is that at the times material to this grievance, the grievor’s disciplinary record stood at 40 demerits, those demerits having been assessed at the times and on the grounds referred to.

The first issue properly before me is as to the assessment of 5 demerits on the grievor effective January 31, 1985, for "poor workmanship on Unit 5032". The grievor had carried out a #1 mileage inspection on that unit. The unit was subsequently inspected by two quality control inspectors, and it was found that a locking bolt on a traction motor brush holder was loose. It is important that the traction motor brushes be secure, or the locomotive will fail to develop sufficient power to operate the train properly. The grievor stated that he had made a visual inspection of the bolt, that it was not discoloured (which would indicate looseness), and that he concluded from that that it was not loose. It was the company’s position that the brush holders must be physically tested for tightness. It is not suggested that the bolt was discoloured (that is, the grievor’s account of what he did is not doubted), but it seems clear from the material before me that the procedure the grievor followed was not an adequate one, and that the grievor ought to have known it was not.

In my view, there was proper cause for the imposition of some discipline on the grievor on account of this instance of poor workmanship. No very substantial penalty would have been justified, but 5 demerits was not excessive. The grievance in respect of the penalty is, therefore, dismissed. It may be considered that at this point the grievor’s accumulated discipline record stands at 45 demerits.

The second issue before me (I deal with the issues in the order in which they were treated in the parties’ presentations), is as to the assessment of 10 demerits effective November 4, 1985 for "insufficient quantity of work as well as bad quality of work on locomotive 5037". As to the quantity of work done, it is clear that the grievor did not complete all of the work which was assigned to him on that day; it appears, however, that he did perform a substantial amount of work, and that the amount required will vary with the condition of the locomotive. The grievor has given a plausible explanation for his failure to complete as much work as had been hoped, and there is no substantial evidence to show that he failed to meet any criteria which might properly be applied in the circumstances. There is no evidence of any immediate supervision of the work he was doing.

As to the quality of the grievor’s work, there is a conflict in the evidence, particularly in respect of the condition of one of the traction motors the grievor was to inspect, found on later inspection to be "dirty and full of oil". The evidence before me is really as to different individuals’ conclusions on the matter, and is not descriptive to any significant degree of the actual condition of the motor following the grievor’s work. While it seems clear that the motor was not immaculate, it has not been shown that that was what was required following that sort of inspection. There may have been some scope for dissatisfaction with the grievor, but it has not been established that there was just cause for discipline in this instance.

Accordingly, the grievance in respect of the assessment of 10 demerits is allowed. It is my award in this respect that the 10 demerits be removed from the grievor’s record. At this point then, the grievor’s accumulated record still stands at 45 demerits.

The third issue before me is as to the assessment of 10 demerits effective October 24, 1985, for "poor quality of work on locomotive 5271". On that day the grievor had been assigned to perform a # 8E mileage inspection on the locomotive in question. That inspection included the following: "Remove covers from traction motors. Visually inspect and renew brushes as required". A subsequent quality control inspection revealed two major defects: the locking bolts of the brush shunts on one of the brush holders of one of the motors were loose; and one of the spring loaded hammers on a brush holder of another motor was lifted. The first detect would indicate that the grievor may not have inspected the brush shunts adequately (although the inspection in question calls only for visual inspection). The second defect suggests that while the grievor may have inspected the brushes, he failed to complete the work by ensuring the hammer was in the down position. Each of these defects could involve serious consequences.

There was, in my view, ground for discipline in these circumstances. It was contended that the matter was not fairly investigated, and that the grievor was singled out for unfair treatment. The material before me simply does not support those contentions. There does, however, appear to have been a delay in investigating the matter, and as the sort of tasks involved are frequently performed, it would be difficult for the grievor to give an adequate account of his work on a particular day without being given timely notice that it was in question. While the grievor was subject to discipline, I consider that the assessment of 10 demerits was, in these particular circumstances, excessive. It is my award that the grievance in this respect is allowed in part, and that the penalty assessed be reduced to one of 5 demerits. At this point, the grievor’s accumulated record stands at 50 demerits.

The fourth issue before me is as to the assessment of 15 demerits, effective November 1, 1985, for "poor quality of work on locomotive 5042". In this case the investigation was conducted one week after the work in question was done, which involved the electrical portion of the bottom deck work of a #4 mileage inspection. Here again the work required was "Remove covers from traction motors. Visually inspect and renew brushes as required". Subsequent quality control inspection revealed a number of defects related to the grievor’s portion of the work. In particular, four sorts of defects were noted: 1) the brush loaded hammers on two brushes on one of the traction motors were lifted so that the brushes were not making contact with the armature collector (a similar defect was dealt with in the preceding issue); 2) the collector string band on traction motor 3 was dirty; 3) the felt gaskets on the bottom covers of two motors were unglued: 4) a metallic clip holding the interior cables of traction motor #5 was broken and out of place.

As to 1), the grievor suggested that since the brushes in question were worn, the hammers must have been applied. No doubt they had been applied previously, but I accept the inspector’s report that they had been left in the raised position after the grievor’s inspection. In my view, this was an instance of negligent work on the grievor’s part. As to 2), the evidence as to the condition of the string band is in conflict. The material before me does not establish that its condition was such as to call for disciplinary action against the grievor, although it may well be that he could have been spoken to with respect to it. As to 3), it is possible that the gaskets lost adhesion after the grievor had replaced the cover; I think it cannot be said to have been established as more probable than not that the grievor was at fault in this respect. As to 4), I think it is clear that the grievor failed to observe that the clip was broken and out of place, and that he ought to have taken steps to correct that. This was an example of poor workmanship on the grievor’s part for which some discipline could be imposed.

With respect to this fourth issue, it has been shown that there were grounds for the imposition of discipline on the grievor for careless performance of work, but these grounds have not been made out with respect to each of the instances for which he was disciplined. The grounds established do not, in my view, justify the assessment of fifteen demerits, although I consider that there would have been justification for the assessment of 10 demerits, if this issue were regarded in isolation. The grievor’s accumulated demerits would then total 60.

Under the Brown system of discipline, an employee becomes subject to discharge upon accumulating 60 demerits or more. Even where it may be held that there has been just cause for the imposition of a penalty whose effect is to bring the employee’s record to the 60-demerit level, however, it is open to an arbitrator, in considering all of the, circumstances, to assess the propriety of discharge, where the company has determined on that ultimate penalty. In the instant case, it is significant that the last 35 demerits imposed (in respect of October 24, November 1 and November 4, 1985), were all assessed after investigations which followed the last of the incidents for which discipline was imposed. That is, it is not the case that the grievor repeated his offences immediately after having been disciplined for them.

The grievor is an employee of some eleven years’ service, and is a skilled tradesman. The errors in his work are indicative of carelessness rather than of incompetence. In these circumstances, and given that the demerits which I have found to be properly assessed do not exceed 60, it is my view that discharge was not an appropriate disciplinary response to this particular situation and that the grievor should be reinstated in employment.

For all of the foregoing reasons, and having regard to the circumstances of this particular case, my award in this matter is as follows: that the grievor be reinstated in employment forthwith, without loss of seniority or other benefits, save only that he shall receive no compensation for lack of earnings; and that his discipline record shall stand it 55 demerits as of the date of his reinstatement.

DATED AT TORONTO, this 14th day of February, 1986.