IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
THE CANADIAN DIVISION BROTHERHOOD RAILWAY CARMEN OF THE UNITED STATES AND CANADA
IN THE MATTER OF THE GRIEVANCE of G. L. JOHANSON
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Union:
S. A. Horodyski
There appeared on behalf of the Company:
S. A. MacDougald
J. A. Cameron
A hearing in this matter was held at Montreal on October 15, 1986.
The Dispute and Joint Statement of Issue in this matter is as follows:
Appeal of twenty demerits assessed the personal record of Carman Trainee G. L. Johanson of Calder Yard, Edmonton, Alberta resulting in his discharge for accumulation of demerits.
JOINT STATEMENT OF ISSUE:
On March 10, 1986 Carman Trainee Johanson attended an investigation concerning his timekeeping. On April 4, 1986 his personal record was assessed twenty demerits effective January 30, 1986 for continued poor timekeeping. This increased his current discipline record to seventy demerits. On April 7, 1986 he was advised that he was discharged for accumulation of demerits.
The Brotherhood contends that the discipline assessed was unwarranted and that Carman Trainee Johanson should not have been discharged. The Brotherhood contends that the investigation indicates the absences were unavoidable and should not be considered as a basis for discipline in accordance with Rule 16.1 of Agreement 12.35. The Brotherhood requests that the twenty demerits be removed and that Carman Trainee Johanson be returned to service with full seniority rights and payment of all wages and benefits lost. The Company denies the Brotherhood’s contentions and has declined the Brotherhood’s request.
At the investigation on March 10, 1986, the grievor was questioned with respect to lateness or absence from work on some nine occasions from November 23, 1985, to February 8, 1986. Instances when the grievor had been late, or absent without leave were discussed first, in chronological order, and the grievor was then questioned with respect to absences due to reported illness, again in chronological order. This was not a confusing method of conducting the interview, and it appears clear to me from a reading of the statement that the investigation was conducted in a fair and impartial manner.
The investigation dealt with five occasions on which the grievor was late for work, or absent without notice. The first of these was December 20, 1985. The grievor acknowledged that he was late on that occasion, and explained that it was "I imagine because I had missed my bus", which is not in itself a satisfactory explanation. On January 10, 1986, the grievor acknowledges that he was absent from work without notice, but he could not recall the reason for that.
On Monday, January 27, 1986, the grievor was expected at work but did not report or call in. The grievor, whose days off were Tuesday and Wednesday, had been given the preceding Saturday and Sunday off to travel to Vancouver to visit his sick father. The supervisor understood that the grievor would return "on Monday", which he took to mean Monday, January 27. Indeed, realizing that that would not give the grievor much time to visit his father and return, he enquired as to that, and the grievor replied that he would be flying, and would be back Monday. The supervisor told the grievor to call him if there was difficulty. The grievor maintains that he told the supervisor that he would return to work on "my Monday", by which he meant the day after his rest days, that is, Thursday. Such a usage may sometimes be used to describe the start of an employee’s work week, but it would not make reasonably clear to the supervisor – especially after the latter had enquired as to the sufficiency of the time off – that the grievor would not return until the Thursday. Having regard to all of the circumstances, I consider the most probable case to be that the grievor knew that the supervisor expected him to return on the Monday. Certainly he did not make it clear that he sought any longer period of leave.
On February 1, 1986, the grievor failed to punch out. This is a minor offence, but it is to be noted that the grievor had previously been disciplined for a similar offence, and had undertaken to advise his supervisor of any discrepancies in his time card.
On February 8, the grievor was absent from work without notice. His explanation was that he was returning from an ice-fishing expedition, and that his car went off the road. While that might excuse his failure to report to work on time, there was no explanation, and no justification for the grievor’s failure to contact the Company when he did return to Edmonton.
With respect to each of the foregoing instances there was, I consider, ground for the imposition of some discipline, and while some of the instances were in themselves of a minor nature, when they are considered together, and in the light of the grievor’s record of discipline for related offences and of his admittedly atrocious attendance record, there can be no doubt that they gave just cause for the imposition of discipline.
As has been noted, the grievor was also questioned with respect to certain absences due to illness. These occurred on four occasions during the period from November 23, 1985 to January 30, 1986. With respect to the first three of these, the grievor could not, at the investigation, recall the nature of the illness involved. Those were short absences some period of time prior to the investigation, and nothing indicates that the Company had queried their propriety at the time. There is nothing to support the conclusion now that those absences were improper, and there was, I find, no cause for discipline in respect of them. As to his absence on January 30, that was the day when, on his own account, the grievor planned to return to work after the leave which had been granted him to visit his father. It is understandable that the grievor would be fatigued after the long bus ride home, although it is clear that, on his own account of the matter, the grievor had planned that, but it is not understandable that the grievor would not advise the Company that he could not work, especially after the supervisor had requested him to advise if he had any difficulties. Clearly, there was ground for discipline in this respect.
Having regard to all of the foregoing, there were certainly grounds for the imposition of discipline on the grievor. It may be that since, as I have found, discipline was not justified in respect of three occasions on which the grievor was absent due to illness, the penalty of twenty demerits assessed against him should be reduced. Having regard to the nature of the offences and the record of the grievor, it would be my view that the assessment of fifteen demerits would not have been excessive in the circumstances. In any event, there would have been ample justification for the assessment of ten demerits, and that would have meant an accumulation of sixty demerits, leaving the grievor subject to discharge in any event. Even at sixty demerits it is, as has been held in other cases, open to the arbitrator to consider whether or not in all of the circumstances there is just cause for the discharge of an employee. In the instant case however, having regard to the grievor’s discipline and attendance records, and noting that the grievor falsified his employment application, failing to note a period of previous employment with the Company (at the end of which he resigned from the Company with an unsatisfactory record due to absenteeism), it is clear that there are no special considerations which should affect the normal application of the Brown system of discipline.
For all of the foregoing reasons, it is my conclusion that while the assessment of demerits against the grievor might be reduced from twenty to fifteen, the result is nevertheless an accumulation of more than sixty demerits, and that there was just cause for discharge. The grievance is accordingly dismissed.
DATED AT TORONTO, this 28th day of October, 1986.
(signed) J. F. W. Weatherill