SHP 294

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

Brotherhood Railway Carmen of Canda

IN THE MATTER OF THE GRIEVANCE of R. HANLON

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

J. Moore-Gough General Chairman, Great Lakes Region

T. Wood System General Chairman

 

 

There appeared on behalf of the Company:

D. A Watson System Labour Relations Office, Montreal

S. A MacDougald Manager, Labour Relations, Montreal

W. Armstrong Equipment Officer, MacMillan Yard, Toronto

R. Bateman Labour Relations Officer, Toronto

P. J. NicholsonCoordinator,Special Projects, Montreal

 

A hearing in this matter was held in Montreal on February 1, 1990.

 

AWARD

At the hearing the parties filed the following statement of dispute and joint statement of issue:

DISPUTE:

Claim of Carman R. Hanlon of MacMillan Yard, Toronto, Ontario, when he was allegedly held out of service from September 1 to 15, 1988, inclusive.

JOINT STATEMENT OF ISSUE:

On Thursday, August 25, 1988, Carman Hanlon reported that his prescription safety glasses had slipped from his face and broken while on duty that day. On Wednesday, August 31, 1988, Carman Hanlon reported for work at 0800 hours and informed his Supervisor that the absence of his prescription glasses rendered him unsafe to work in the environment of moving equipment on the light repairs, and requested to be assigned to another work location.

Administration Officer W. Armstrong informed Carman Hanlon that in such circumstances he could not return to work until he had obtained his new prescription glasses and was properly equipped to perform his duties.

Carman Hanlon was allegedly held out of service from September 1 to 15, 1988. He was not paid for those days. Carman Hanlon returned to work on Friday September 16, 1988, having obtained his new prescription glasses.

The Brotherhood alleges that Carman Hanlon was suspended without an investigation in violation of Rule 28.1 of Agreement 12.35 and that he was treated in an unjust and discriminatory manner when the Company declined to assign him to another work area. The Brotherhood requests that Carman Hanlon be compensated for all lost wages and benefits from September 1 to 15, 1988 inclusive.

The Company has declined the Brotherhood's claim.

The facts are not in dispute. Mr. Hanlon is a long service employee who works as a carman at the MacMillan Yard, Toronto. It is common ground that he requires strong prescription glasses both for general vision and for reading.

On Sunday August 21, 1988 Mr. Hanlon broke his prescription eyeglasses while at home. He then began to wear a second pair of back-up glasses. On August 23, 1988, he took his broken glasses to the Bay Optical for replacement. He was advised that because of the strength of the prescription his new glasses would not be available until approximately September 15, 1988. Two days later, while at work, he broke his second pair of glasses as he was working on track 18 of the MacMillan Yard Car Shop. It appears that when he advised his immediate supervisor, Mr. B. Neagle, of what had happened he was instructed to stay out of the way in order to avoid any accident while at work.

The following day, August 26, Mr. Hanlon did not perform any work in the Car Shop. In the morning he was required to attend a disciplinary investigation into an unrelated matter. Following that he told Mr. Neagle that his eyes were bothering him, and he booked off work. On the following Monday he returned to work. Towards the end of his shift he nearly walked into the forks of a forklift being operated in the MacMillan Yard Car Shop. Fortunately no serious accident occurred. The following day, August 30, he was not at work because of a previously arranged appointment with his ophthalmologist, for the purpose of updating his eye prescription, since he was in any event required to order new glasses. When he returned to work on the morning of Wednesday, August 31, 1988 the grievor advised his immediate supervisor that he did not feel safe without his glasses working in the MacMillan Yard Car Shop. He asked that he be assigned to another work area with less vehicular traffic. It is common ground that he spent the balance of the morning sitting in the lunchroom awaiting some decision on the part of equipment officer W. Armstrong.

Following the lunch period, Mr. Hanlon was required to represent another employee, on behalf of the Union, during a disciplinary investigation being conducted by Mr. Armstrong. At the conclusion of the investigation Mr. Armstrong advised Mr. Hanlon that in his opinion the grievor had effectively removed himself from service by not having adequate prescription glasses available. He therefore remained out-of-service from that time until he returned to work on Friday, September 16, 1988 after obtaining his new glasses on September 15.

The Union submits that the Company violated its obligation to consider the merits of assigning Mr. Hanlon to light duties elsewhere in the plant while his vision was impaired because of his lack of prescription glasses. It maintains that in fact the Company made no genuine effort in that regard, and that the treatment of Mr. Hanlon by Mr. Armstrong was prompted, at least in part, by a degree of tension between them during the course of the investigation held on the afternoon of August 31 when Mr. Armstrong was the investigating officer and the grievor represented the interests of the employee being investigated. The Company denies any such ulterior motive, and submits that work in any part of the plant which might have been assigned to the grievor involved an unacceptable degree of genuine risk to him, in light of his vision impairment. In its spokesperson's view any assignment which might have been given to Mr. Hanlon outside the Car Shop, including the Tool Crib, Console, Bulk Head Door Repair Room and the Reefer Shop would all involve exposure to danger, either at or near the grievor's work location or by the fact that he would be required to move to and from his work station across areas of moving traffic.

This is not a case of discipline. At the hearing, quite appropriately in the Arbitrator's view, the Union withdrew its position with respect to an allegation of non-compliance with the disciplinary procedures under rule 28.1 of the collective agreement. In the result, therefore, the burden of proof is upon the Union to establish, on the balance of probabilities, that the Company violated a collective agreement obligation to Mr. Hanlon by holding him out-of-service without reasonable cause.

On the whole I am unable to find that the Union's case is made out on the evidence before me. A number of factors lead me to that conclusion. Firstly, by the grievor's own candid account, he can neither see at any distance nor can he see well enough at close distance to read without his prescription glasses. These are, by all accounts, an extraordinarily strong prescription. When his own immediate supervisor became aware of his difficulties, he immediately ordered Mr. Hanlon to remove himself from the work area and to stay out of harm's way for the balance of his tour of duty. In the Arbitrator's view there is substantial doubt as to whether the grievor could perform repair and maintenance work in any part of the Company's plant if his loss of visual acuity was as severe as it appears to have been. There is, moreover, insufficient evidence before me to establish, on the balance of probabilities, that a vacancy existed which reasonably could have been filled by Mr. Hanlon during the period in question.

It is beyond dispute that it is among the first obligations of the Company to provide a safe workplace and to ensure that its employees are themselves in a state of fitness to perform safely the duties assigned to them. In heavy industry and a workplace that involves the movement of vehicles and heavy machinery, including rail cars, motor vehicles and overhead cranes, proper vision is a reasonable occupational requirement. I am satisfied that in the instant case the Company was motivated by legitimate concerns of safety, and not out of any ulterior motive aimed at Mr. Hanlon. In particular, it is noteworthy that his difficulty with vision on the job did not come into focus until August 31, 1988, when Mr. Hanlon advised his immediate supervisor that he did not feel safe working on the light repairs in the MacMillan Yard Car Shop. Prior to that time the Company was not alerted in any categorical way to such a problem, and in fact Mr. Hanlon was absent from the shop floor for substantial periods of time for various reasons. As soon as the gravity of his condition became known on the 31st, the decision was taken by Mr. Armstrong that he should not be permitted to work without appropriate eyewear. Whatever suspicions Mr. Hanlon may entertain about Mr. Armstrong's motives, I can find nothing in the objective evidence before me to substantiate the suggestion of bad faith or that the Company's officers did not appropriately address their minds to the merits of Mr. Hanlon's circumstances. There is, moreover, one aspect of the grievor's own conduct which raises some question. By his own admission, when he was advised on August 23, 1988 that his first pair of broken glasses could not be replaced by the Bay Optical before September 15, 1988 Mr. Hanlon made no effort to inquire as to whether another optician could provide faster service. While there is no evidence before me that his glasses could have been replaced more quickly, there is at least a lingering question as to whether the grievor made every reasonable effort to shorten the period from which he was precluded from attending at work.

On the whole of the material before me I am satisfied that the grievance must be dismissed. The Union has not discharged the onus of proof to establish that the grievor's rights, either under the general terms of the collective agreement or under the specific terms of Appendix XIV respecting reassignment for disabled employees have been violated in the circumstances of this case. For all of these reasons the grievance must be dismissed.

DATED at Toronto this 8th day of February, 1990.

(sgd) M. G. Picher

Arbitrator