SHP 304

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

International Association of Machinists and Aerospace Workers

GRIEVANCE RE ASSESSMENT OF WRITTEN REPRIMAND TO MACHINIST L.C. WHEELER AT TRANSCONA MAIN SHOPS

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, CCRSU

Loukas Biniaris System General Chairman, IAM & AW

L.C. Wheeler Local Chairman, Local Lodge 484, IAM&AW

 

 

There appeared on behalf of the Company:

S.A. MacDougald Manager, Labour Relations, Montreal

L.F. Caron System Labour Relations Officer, Montreal

P.M. Nicholson Coordinator, Special Projects, MP & CE, Montreal

C.R. Stevens Manager, Motive Power, Transcona, Winnipeg

D. McGinity General Supervisor, Motive Power, Transcona, Winnipeg

K. Cox Senior Technical Foreman, Motive Power, Transcona, Winnipeg

M.L. Gendreau Administrative Assistant, Motive Power Transcona,Winnipeg

G.Gysel Employee Relations Officer, Transcona, Winnipeg

 

A hearing in this matter was held in Montreal on April 5, 1990.

 

AWARD

This grievance is brought against the registering of a written reprimand against the grievor. The parties filed the following Statement of Dispute and Joint Statement of Issue:

DISPUTE

Appeal of discipline on behalf of Machinist L.C. Wheeler of Transcona Main Shop, Winnipeg, Manitoba.

JOINT STATEMENT OF ISSUE

Effective March 16, 1989, Machinist L.C. Wheeler's discipline record was assessed a written reprimand for:

Abandoning investigation before completion on 16 and 28 March 1989.

The Union contends the Company violated Rule 28.2 of Agreement 12.32 and that Machinist Wheeler was unjustly dealt with. The Union requests the removal of the written reprimand from Machinist Wheeler's disciplinary record.

The Company disagrees with the Union's contention and has declined the Union's request.

The facts material to the grievance are not controverted. The grievor, Mr. Len Wheeler is engaged full-time as Local Chairman of Local Lodge 484 of the Union at the Company's Transcona Main Shop in Winnipeg. His duties include handling grievances and representing employees in the course of disciplinary investigations. On March 14, 1989 Machinist D. Derksen was summoned to a disciplinary investigation pursuant to the following notice:

You are herewith notified to attend an investigation to be held in the office of the Administrative Assistant, Motive Power on 16 March, 1989 at 09:00K.

This investigation is in connection with your alleged lack of cooperation and production from 06 March to 10 March, 1989 [emphasis added].

It is common ground that Mr. Wheeler, and other higher placed Union officials with whom he consulted, was left in some uncertainty with respect to the allegation of "lack of cooperation" reflected on the face of the notice. He took the position this was insufficient notice of any allegation of wrongdoing against the grievor. It appears that Mr. Wheeler telephoned Mr. K.W. Cox, the author of the notice to ask what the allegation of lack of cooperation referred to. When Mr. Cox declined to elaborate Mr. Wheeler next telephoned Mr. C. Stevens, Manager of Motive Power. Likewise, Mr. Stevens gave no elaboration, indicating that the charges would be explained at the investigation.

Mr. Derksen attended the investigation scheduled for March 16, 1989 at 09:00 hours in the company of Mr. Wheeler. When Mr. Cox, the investigating officer asked Mr. Derksen whether he had received proper notification to attend the investigation, and whether he was prepared to proceed he responded in the negative. He elaborated that he had not received proper notification of the charges against him and, at approximately 9:14 both he and Mr. Wheeler left the investigation.

A continuation of the investigation was reconvened on March 28, 1989, again at 09:00 hours. The proceedings had the same false start, and Mr. Wheeler elaborated that the Union was prepared to proceed on that part of the investigation concerning the grievor's alleged failure of production, but that it was not prepared to proceed in respect of any "lack of cooperation" on his part until further particulars of that allegation were provided. When the Company took objection to Mr. Wheeler interceding in that fashion on behalf of the employee, both Mr. Derksen and Mr. Wheeler again left the proceedings.

On March 31, 1989 the investigation was again reconvened. The employee and Union were then put on notice in the following terms:

Failure to complete this investigation on this date will result in the determination of the merits of this case based upon the facts and evidence in the possession of the investigating officer.

The investigation of March 31, 1989 was successfully completed. It would seem that a confrontation was averted by the Company avoiding the initial question of whether proper notification had been received, and limiting the questioning of the employee to issues of his productivity, without any apparent reference to any failure of cooperation on his part.

Subsequently, on May 3, 1989 Mr. Wheeler was investigated for his conduct relating to the employee statements provided by Mr. Derksen. He was subsequently issued a written reprimand effective March 16, 1989 for his abandoning of the investigation before completion on March 16 and 28, 1989. It is against that reprimand that this grievance is taken.

The issue to be resolved turns on the application of Rule 28 which provides, in part, as follows:

28.1 Except as otherwise provided herein, no employee shall be disciplined or discharged until he has had a fair and impartial investigation and his responsibility established. When an employee is held out of service pending such investigation, the investigation shall not be unduly delayed.

28.2 Except as otherwise provided in this Rule, when an investigation is to be held, the employee will be given at least one day's notice of the investigation and will be notified of the time, place and subject matter of such investigation. This shall not be construed to mean that the proper officer of the Company, who may be on the ground when the cause for such investigation occurs, shall be prevented from holding an immediate investigation.

When employees are required to make statements on matters affecting the Agreement, Company working rules or compensation, a duly authorized representative of the employee shall be present except that when employees are required to make statements on matters not affecting the Agreement, Company working rules or compensation, the employee may have a fellow employee or an accredited representative of the Union present.

Copies of statements, stenographic reports and all other evidence taken shall, if requested, be furnished to the employee and, if present, to his authorized representative.

The position pleaded by the Union in the instant case is that Mr. Derksen was not given notice of the "subject matter of [his] investigation ..." within the meaning of Rule 28.2 of the collective agreement. It submits that in the circumstances the employee was justified in not responding to the questions put to him by the Company, and in leaving the investigation when he did. Alternatively the Union submits that the action of abandoning the investigation, if it is to have any consequence, may only justify action against the employee in question, and not against his Union representative.

It goes without saying that great caution should be exercised in assessing the conduct of a union representative which is said to justify discipline at the hand of his or her employer, particularly where the actions of the union officer arise from the exercise of his or her responsibilities as a representative of the union. By the same token, however, an employee who is a union officer who engages in conduct unduly disruptive of the employer's interests, for example organizing an unlawful work stoppage, cannot claim privilege or immunity from discipline simply by virtue of his or her union office. In determining whether the actions of a union representative are deserving of discipline regard must be had to the particular facts of each case, giving due allowance for the fact that union officers must be allowed some latitude to engage in a degree of confrontation with the employer for the furtherance of the legitimate interests of the employees they are required to represent.

When those general standards are applied to the facts of the instant case, however, the Arbitrator does not find the Union's case to be compelling. Rule 28 of the collective agreement plainly contemplates, indeed requires, that the Company conduct an investigation prior to the assessment of discipline. Unless it can demonstrate that it has conducted a fair and impartial investigation beforehand, it cannot discipline or discharge an employee. Moreover, if the Union can subsequently prove that an investigation was not fair and impartial any resulting discipline will be deemed to be a nullity.

As a general matter the requirement of adequate notice in advance of an investigation goes to the fairness of the proceedings. In any given case, if it can be demonstrated that the Company has failed to give adequate notice to an employee of the subject matter of his or her investigation, and that the failure of such notice has materially prejudiced the employee's ability to prepare and participate in the investigation, it may be found that the investigation was not conducted in a fair and impartial way, which would result in the nullifying of the discipline imposed against the employee in question. That is the normal course and consequence of a failure of proper notice.

What this case raises, however, is a different aspect of the problem, namely whether an employee may simply withdraw from an investigation on the advice of his or her union representative when it is alleged that the notice provided has been inadequate. I can find no basis to sustain the view of the Union that such a withdrawal is permissible. Needless to say honest persons may often differ as to what does or does not constitute adequate notice of the subject matter of an investigation. It can be expected that disputes of the kind which arose in this case will, from time to time, surface in the give and take between Company and Union that is inevitable in the context of disciplinary investigations. If the position of the Union is correct, it is the Union itself which becomes the ultimate arbiter of whether notice is adequate. Plainly, neither the Union nor the Company are to be the arbiter of that question if there is a dispute between them. Nor, in my view, does the collective agreement, or any underlying principle of collective bargaining with which I am familiar, contemplate that the Union may unilaterally bring a disciplinary investigation to an end by simply asserting its own view that the notice received is inadequate.

The inadequacy of notice to an employee, like any other procedural aspect of the disciplinary investigation, is a matter which may be raised at arbitration subsequent to the issuing of discipline by way of a plea of a violation of Rule 28 of the collective agreement. If the Union's position is sustained, and the inadequacy of notice affects the fairness of the proceedings, it may succeed in having the discipline entirely struck. The operative principle, however, is not unlike the obligation to "work now grieve later". If an employee, or a union representative, is of the view that he or she has not received adequate notice of the subject matter of the disciplinary proceeding or investigation being conducted under Rule 28 it is incumbent on the employee or representative to register that concern with the Company, either in advance of the investigation or at its outset. Should the Company refuse to give further particulars or information, however, it is not open to the employee or union representative to frustrate the process of the investigation by refusing to attend. Rather, he or she, having registered the objection, should participate in the investigation, without prejudice to any right to object subsequently with respect to the fairness or adequacy of the procedure. A refusal to participate in the investigation can leave an employee, or an employee who is a union officer, liable to discipline for frustration or abuse of the process (see CROA 1706).

In the Arbitrator's view the actions of Mr. Wheeler disclosed in the instant case were not justified in all of the circumstances. His legalistic posture in refusing to attend at the investigations on two separate occasions because of his objection to the adequacy of notice clearly frustrated and delayed the Company's ability and obligation to conduct an investigation prior to imposing any discipline in the case of Mr. Derksen. In the Arbitrator's view the process contemplated under Rule 28 is such as to give the Company a reasonable expectation that both employees and Union representatives involved in investigations will be reasonably cooperative, even while fully defending their own interests. It is not open to either side to abort the agreed process by pressing technical or procedural objections to the point of a boycott.

In my view Mr. Wheeler knew, or reasonably should have known, these things. Prior arbitral awards which have struck down discipline for want of a fair and impartial investigation are well known to the parties. Union representatives should be taken to know that the means of redress for procedural irregularities that cause genuine prejudice to an employee is the ultimate ruling of a board of arbitration, and not the unilateral assertion of right of one or other of the parties. By knowingly withdrawing from the process, and counselling Mr. Derksen to do so as well, Mr. Wheeler departed from the standard of conduct contemplated under the collective agreement and deliberately frustrated the ability of the Company to deal with the employee under investigation. The Arbitrator is compelled to conclude that in so conducting himself Mr. Wheeler did abuse the process and became liable to discipline therefor. In the circumstances I am not convinced that a written reprimand was not within the appropriate range of disciplinary response.

For the foregoing reasons the grievance must be dismissed.

DATED at Toronto this 17th day of April, 1990.

(sgd) M. G. Picher

Arbitrator