SHP - 227
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
CANADIAN DIVISION BROTHERHOOD RAILWAY CARMEN OF THE UNITED STATES AND CANADA
RE:GRIEVANCE OF E. CASCEGNA
SOLE ARBITRATOR:J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A. Y. De Montigny
A hearing in this matter was held at Montreal on June 29, 1987.
The Joint Statement of Fact and Issue in this matter is as follows:
JOINT STATEMENT OF FACT
On January 8, 1987, Carman Helper, Mr. E. Cascegna was advised by registered letter that his record was closed for "knowingly and deliberately defrauding the Company in obtaining Company benefits for which not entitled."
In a Grievance Report dated January 19, 1987 and received the same date, the Local Union Representative, Mr. D. Baron, submitted a grievance pursuant to Rule 28.7 to Mr. N. Burke, Assistant Works Manager, on an alleged violation of Rule 28.2 of Wage Agreement No. 52.1.
In a letter dated February 6, 1987 and received on February 11, 1987, Mr. K. Corbett, General Chairman, submitted a grievance to Mr. G.W. Bartley at Step II of the grievance Procedure in accordance with Rule 28.4, alleging unjust dismissal of Mr. Cascegna.
JOINT STATEMENT OF ISSUE
The Brotherhood contends that Mr. E. Cascegna was not given proper notice of investigation under the terms of Rule 28.2 of the collective agreement & that he was unjustly dismissed for closure of his record and therefore he should be reinstated forthwith and reimbursed for all monies and benefits lost.
It is the Company’s position that:
As appears from the above, there are really two grievances before me. One is a grievance relating to the amount of notice given to the grievor in respect of the investigation of the matter for which he was disciplined. The other is with respect to the discipline itself. I shall deal with these matters in turn.
As to the first grievance, that relating to the notice of investigation, the company raises the preliminary objection that the grievance was not filed in timely fashion. The investigation complained of was held on December 16, 1986, the grievor having been notified thereof on the evening of December 15. This grievance was filed on January 19, 1987.
Articles 28.6 and 28.7 of the collective agreement are as follows:
28.6 Should an employee subject to this Agreement believe he has been unjustly dealt with, or that any of the provisions of this Agreement have been violated, he shall present his alleged grievance to his immediate supervisor for adjustment. If not so adjusted, and he wishes to have the matter progressed, he shall present it in writing to the authorized Local Union Representative(s) within 20 calendar days from the date of the alleged grievance, outlining all pertinent details and the date of the alleged grievance.
28.7 The authorized Local Union Representative(s) may within 35 calendar days from the date of the alleged grievance progress the grievance in writing to either the supervisor, foreman or general foreman, or assistant works manager, outlining all pertinent details and the date of the grievance.
In the instant case the grievor did not present the grievance to his immediate supervisor. That, however, was not the ground of the company’s objection to the timeliness of the grievance. The grievor did in fact discuss the matter with his local union representative, who prepared a written statement which the grievor signed on December 23, 1986. This was within 20 calendar days of the alleged grievance, and to that extent there was compliance with article 28.6 which, it should be noted, does not require the grievor actually to file a grievance with the company.
The grievance was progressed by the local union representative to the Assistant Works Manager on January 19, 1981, which was within the 35-day period contemplated by article 28.7.
Having regard to the foregoing, and to the nature of the objection raised, it is my view that the objection is not well taken, and that the matter is arbitrable.
As to the merits of this grievance, article 28.2 requires that "at least one day’s notice of the investigation" be given where an investigation is to be held. In the instant case, the company had unsuccessfully attempted to reach the grievor, who was on layoff and in receipt of job security benefits, during regular working hours. He was called at his home and asked if he would come in for the investigation, and he agreed to do so. The following morning, his union representative was present and the investigation was conducted without objection. To the introductory question, "Have you been properly notified as to the subject matter of this investigation?", the answer given was "yes". The evidence is that had the grievor raised any objection, or had he or the Union sought to defer the investigation, that could easily have been done. The grievor was subjected to no duress, and his acceptance of, and participation in the investigation constitutes, in the circumstances, a clear waiver of his entitlement to longer notice. While it appears that the grievor does not read or write English, the evidence is that his understanding of the spoken language has been sufficient for the purposes of his work, and that he appeared to understand the notice of investigation – he agreed to attend, and did – and the proceedings at the investigation itself, at which he had union representation. This grievance, accordingly, is dismissed.
The second grievance relates to the discharge of the grievor. In this case as well, the company has raised a preliminary objection as to its timeliness. The grievor was discharged on January 8, 1987, the notice of discipline being issued by the Works Manager. A grievance dated February 3, 1987, was sent to the Regional Mechanical Officer, but as the company advised the union, that was not the appropriate person to whom the grievance should be submitted under the provisions of the collective agreement. On February 6, the grievance was submitted to the Chief Mechanical Officer, it being received on February 11. That was thirty-four days after the grievor’s discharge. A grievance, as was said in CROA Case No. 837, is effective as of the time it is communicated.
Article 28.4 of the collective agreement provides as follows:
28.4 When discipline is recorded against an employee he will be advised in writing and will acknowledge receipt. In the event a decision is considered unjust, appeal may be made in accordance with the grievance procedure starting by an appeal to the officer who issued the discipline. Where suspension or dismissal is involved, the appeal may commence at step II of the grievance procedure.
This would appear to give the union or the employee the option of omitting earlier stages of the grievance procedure, and proceeding directly to Step II, in suspension or dismissal cases. Where that option is not invoked, it would seem the regular grievance procedure, and in particular the time limits set out in articles 28.6 and 28.7, would apply. Under those provisions, set out above, it would appear that the union representative might file a grievance within thirty-five days of the action complained of. Under that procedure, then, the instant grievance would have been filed on time.
In its grievance, however, the union stated that it was proceeding at Step II of the grievance procedure. Under that procedure, the grievance, it is said, was late. It has been held in many cases that having regard to article 28.11 of the collective agreement, the provisions with respect to time limits are mandatory and not directory. Arbitrators have no power either under the collective agreement or under the Canada Labour Code to abridge or to extend time limits.
In the instant case, however, while the union may not have filed the grievance in compliance with the requirements of the "accelerated" process for suspension and dismissal cases, it did file the grievance within the general time limit for the filing of grievances. The effect of that, in my view, would be that while the union could not take advantage of the "accelerated" procedure, having failed to comply with its requirements, the grievance need not be dismissed out of hand on that account. The company was, of course, aware within a short time of the grievor’s discharge that the investigation was in question, and that the grievor’s reinstatement was sought.
Quite apart from this, it appears from the statement of the grievor, given to the union Local Chairman, that the notice of discharge was received on January 14, 1987. Again, it is the date of communication (or of sufficient delivery) which should establish the time from which the limits run. If the grievance in this case may be said to have arisen on January 14, then the communication of the grievance on February 11 would have been within the twenty-eight day period contemplated at Step II, and the grievance was timely.
In all of these circumstances, it is my view that the grievance is arbitrable.
As to the merits of this grievance, the evidence is that the grievor, who was on layoff and in receipt of job security benefits, attended at the company’s offices on November 18, 1986, in response to a letter sent to him on November 6 asking him if he had any outside earnings, and requesting his most recent Unemployment Insurance stub. The grievor produced the Unemployment Insurance stub, and was asked if he had worked at all since starting job security. He replied "no". The grievor’s conversation in this respect was with the Assistant Office Manager, who had had dealings with the grievor on several previous occasions, and it was her evidence that he appeared to understand fully her question with respect to his working. The grievor had been in receipt of job security in the past.
At the investigation, the grievor was questioned carefully by the Assistant Works Manager, who repeated his questions, to be sure the grievor understood them. There was, as I have indicated, a union representative present. It was made clear, I find, that the question with respect to his performing any work while in receipt of job security payments was a reference to any work, including outside work. On November 18, the grievor had signed a notation to the effect that he had not worked since he was laid off. At the investigation, he confirmed that statement, it being made clear to him that it referred to any outside earnings.
In fact, the grievor had worked for the City of Winnipeg during the period in question. When that was put to him at the investigation the grievor replied – after considerable hesitation, according to the Assistant Works Manager – "It was my understanding that I was asked if I was working at the present time, and that is why I answered no, that I wasn’t employed and didn’t receive any outside earnings". In a statement apparently made to the union’s Local Chairman on January 17, 1987, the grievor said, in respect of what he had said to the Assistant Office Manager on November 18, that he believed she was referring to "working or receiving money at that time". In a statement made on April 20, 1987, the grievor stated with respect to that occasion that "I thought that she was asking me if I had been back to work for CP Rail".
Having regard to all of the evidence before me in this matter, it is my conclusion that the grievor was familiar with the job security benefit plan, and that he understood the import of the questions put to him in respect of outside work. It was only when he knew that the company had found out that he had indeed had outside work that he began to suggest that he had not understood the questions relating to it. What the grievor puts forward as his understanding of the questions, however, is too naive (the grievor being experienced with the plan), too contradictory and too self-serving to be credible. At the investigation, the questions were repeated and clarified, and I do not believe were misunderstood by the grievor.
On the evidence, then, it is my conclusion that the grievor did fraudulently obtain benefits to which he was not entitled. While there has, it appears, been restitution, that does not affect the offence itself. Discharge is, in general, the penalty appropriate in such cases, and the material in the instant case does not establish the sort of circumstances which might justify some exception.
There was, I find, just cause for the discharge of the grievor, and the grievance is accordingly dismissed.
DATED AT TORONTO, this 14th day of July, 1987.
(signed) J. F. W. Weatherill,