IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
International Association of Machinists and Aerospace Workers
IN THE MATTER OF THE GRIEVANCE of J.S. TUMBER
SOLE ARBITRATOR: M. G. Picher
There appeared on behalf of the Union:
Abe Rosner – Spokesperson
L. Biniaris – System General Chairman
There appeared on behalf of the Company:
S. A. MacDougald – Manager, Labour Relations,Montreal
L.F. Caron – System Labour Relations Officer, Montreal
W. Brown – Assistant Superintendent, Motive Power, B.C. South District, Surrey, B.C.
P. J. Nicholson – Coordinator Special Projects, M.P.& C.E., Montreal
B. Laidlaw – System Labour Relations Officer, Montreal
D. A. Watson – System Labour Relations Officer, Montreal
A hearing in this matter was held in Montreal on February 1,1990.
At the hearing the parties filed the following statement of dispute and joint statement of issue:
Appeal of discharge of Machinist J.S. Tumber of Thornton Yard Motive Power Shop, Port Mann, B.C..
JOINT STATEMENT OF ISSUE:
Effective June 5, 1989, Machinist J.S. Tumber's discipline record was assessed 20 demerits for unauthorized leave of absence between May 8 and 22, 1989. Machinist Tumber was subsequently discharged for accumulation of demerits.
The Union contends that Machinist Tumber was unjustly dealt with because the discipline assessed was not warranted and in any event was too severe for the alleged infraction. The Union requests that Machinist Tumber be reinstated with full compensation for lost wages and benefits and that the demerits be removed from his record.
The Company disagrees with the Union's contention and has declined the Union's request.
The facts are not in dispute. The grievor has been employed as a machinist at the Company's Thornton Yard Motive Power Shop in Port Mann, B.C. since June 1977. In April and May of 1989 he was involved in the preparation and presentation of a civil action in respect of a substantial insurance claim. The action was filed in the Supreme Court of British Columbia against an insurer by Tumber's Video Ltd., a company of which the grievor is a director and minor shareholder. It appears from the material before me that the principal shareholder of the Company is the grievor's brother. It further appears that the claim was in relation to fire damage to the Company's video store, and that the insurance company was refusing payment on the grounds that Mr. Tumber had deliberately caused the fire to be set. It appears to be common ground that he had previously been charged with arson although the charge was later dropped, apparently for want of evidence. For the purposes of this grievance the Arbitrator must accept that, whatever the merits of the insurance company's position, the grievor did have serious personal involvement in a major piece of litigation during the period in question.
The circumstances of the trial were made known to the Company by the grievor well in advance. On Monday, February 13,1989 Mr. Tumber requested a leave of absence from Mr. W. Brown, General Supervisor of the Thornton Yard Motive Power Shop. He then provided to the Company a letter from his lawyer confirming the anticipated trial dates. Subsequently the Company arranged for Mr. Tumber to have twenty working days' leave, from March 27 until April 13, 1989 involving fourteen working days' vacation and unpaid leave of absence for six working days. It does not appear contested that the trial lasted longer than anticipated. On April 20, 1989 the grievor requested a further extension of ten to twenty working days to his leave of absence. The following day he was advised by Mr. Brown that his request for an extension was approved until May 5, 1989. It appears that he was also told at that time that no further extensions would be approved beyond that date. This position appears to have been occasioned by the fact that the person who had been working in relief of the grievor would no longer be available thereafter. Consequently the grievor was instructed to report to his assigned job on May 8, 1989.
This the grievor failed to do. On May 1, 1989 he left a recorded message on the Company's answering machine at the Motive Power Shop, stating that because of the trial he needed a four-week extension of his leave-of-absence. It appears that Mr. Tumber again called the Company on May 5, 1989, speaking to night shift supervisor J. Morgan to again request a three-week extension to his leave-of-absence. He was then advised that Mr. Morgan had no such authority and that he must speak with General Supervisor Brown. It is common ground that the grievor made no attempt to call Mr. Brown, that his trial did continue until on or about May 23, 1989, and that he remained off work until that time. Following receipt of a registered letter sent to his home on May 8, 1989 the grievor attended an investigation at the shop on May 18. He then disclosed to the Company that the trial was still ongoing and it was anticipated that it would continue until May 23, 1989. His statement with respect to the continuation of the trial was substantiated by two letters from his lawyer which he then filed with the Company.
The grievor returned to work on May 23, 1989. Subsequently, however, he was notified of his discharge effective June 5, 1989 as a result of the assessment of twenty demerits for his having taken an unauthorized leave from May 8 to May 22, 1989. The collective agreement contains, in part, the following rules:
15.1 When the requirements of the service will permit employees will be granted leave of absence, not to exceed 90 days, with the privilege of renewal by consent of the Management and Committee.
15.3 The arbitrary refusal of a reasonable amount of leave to employees when they can be spared, or failure to handle promptly cases involving sickness or business matters of serious importance to the employee, is an improper practice and may be handled as unjust treatment under this Agreement.
On the basis of the foregoing provision it appears to the Arbitrator that where to do so does not prejudice the operations of the Company, it should not refuse to grant to its employees a reasonable period of leave, particularly where they can be spared, and in the case of "... business matters of serious importance to the employee ". The material before me reveals that, objectively speaking in light of the full evidence available at the arbitration hearing, Mr. Tumber was involved in a civil trial of some substance in which he had a serious personal involvement. I cannot reject the Union's submission that it was necessary for him to attend at the trial. In my view that is so quite apart from any doubt which the Company may have entertained as to his directorship, shareholding or otherwise in the company in question. It does not appear disputed that the central focus of the civil action was whether the plaintiff's company as disentitled from its insurance claim because the grievor had allegedly been involved in arson. On the whole I am satisfied that if the Company had been provided with full information concerning the nature of the trial, and the pivotal involvement of the grievor, it could not reasonably have refused to grant him leave under the terms of rule 15 of the collective agreement. In coming to that conclusion I bear in mind the unrebutted statement of the Brotherhood that there were at the time laid-off employees who could have replaced Mr. Tumber without serious inconvenience to the Company.
Unfortunately the grievor did not provide to the Company, at least until the investigation held on May 18, 1989, any substantial information with respect to the nature of the litigation and his need to be in attendance in Court at all times. Putting the grievor's case at its highest, it appears that, with full knowledge that the Company did not intend to extend his leave beyond May 5, 1989, and notwithstanding direct advice that he must speak with Mr. Brown, he took it upon himself to extend his own leave of absence without the approval of the Company, and indeed without giving its officers an opportunity to discuss with him the merits of any such extension. In these circumstances the Arbitrator is compelled to find that at least for the period between May 5 and May 18, 1989 the grievor did pursue an authorized leave of absence. For this he was liable to be disciplined.
The issue becomes the appropriate measure of discipline in the circumstances. The Arbitrator readily understands the degree of frustration which the Company has in respect of the conduct of Mr. Tumber as revealed in the instant case, as well as his negative prior record. It appears that he was previously reprieved from discharge for sleeping on the job by a prior award of Arbitrator Weatherill. His attendance over the past few years has been decidedly negative, although it does not appear that the Company has cautioned him in respect of innocent absenteeism, choosing instead to deal with the incident of May 1989 on the basis of culpable discipline. The Company's spokesperson candidly suggests that much of the difficulties which the employer has had with Mr. Tumber stem from his commitments to outside business endeavours, the extent of which have left the impression that he is less than committed to his full-time obligations to the Company. As understandable as the employer's concerns may be, the grievor, like any employee, is entitled to have this grievance decided on its own merits, having regard to the provisions of the collective agreement and accepted arbitral principles.
Given the provisions of rule 15, and the Company's knowledge that the grievor was in fact involved in some form of serious civil litigation, I am not persuaded that his unilateral continuation of his absence, particularly in light of the Company's own ultimatum that he would not be extended beyond May 5, 1989, should be viewed as justifying his discharge. Having regard to Mr. Tumber's own failure of candor with his employer, however, this does not appear to me to be a case in which an order for compensation is appropriate. In addition, given the grievor's apparent chronic difficulties with attendance and fidelity to his obligation of proper notice of his employer in circumstances when he is absent, I am satisfied that any order of reinstatement should be strongly conditional, so as to protect the legitimate interests of the Company in respect of Mr. Tumber's obligation of faithful attendance at work in the future.
For the foregoing reasons, the grievance is allowed, in part. The Arbitrator orders that Mr. Tumber be reinstated into his employment, without compensation, and without loss of seniority, with the twenty demerits assessed against him to be removed from his record. His record shall, however, reflect the time from his termination to the date of his reinstatement as a period of suspension for his unauthorized leave of absence between May 5 and May 18, 1989. The grievor's reinstatement shall, however, be conditional upon his maintaining a rate of attendance at work that is not less than the average for other employees of his bargaining unit (machinists) at the Thornton Yard Shop over a period of two years, calculated on any three month period following his reinstatement. Should he for any reason register a rate of absenteeism higher than the average the Company shall be justified in terminating his employment. The Arbitrator retains jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this Award, or relating to any question which may arise in respect of compliance with the conditions established.
DATED at Toronto this 8th day of February, 1990.
(sgd) M. G. Picher