IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
International Brotherhood of Electrical Workers
GRIEVANCE OF ELECTRICIAN APPRENTICE B. STEVENS
SOLE ARBITRATOR: M. G. Picher
There appeared on behalf of the Union:
Harold C. Lehrer – Counsel
Frank Klampf – System General Chairman
There appeared on behalf of the Company:
J. Luciani – Attorney, Law Department, Montreal
S.A MacDougald – Manager, Labour Relations, Montreal
B. Laidlaw – Labour Relations Officer, Montréal
P.N. Nicholson – Coordinator, Special Projects, MP & CE, Montreal
C.R. Peterson – System Electrical Officer, Montreal
S. Connell – Technical Officer, Montreal
There appeared on behalf of the Grievor:
F.A. Schroeder – Counsel
A hearing in this matter was held in Montreal on March 1 and May 28, 1990.
This is a grievance against discharge. The Dispute and Company Statement of Issue filed at the hearing are as follows:
Appeal of Apprentice Electrician B.R. Stevens of Prince George Motive Power Shop, Prince George, B.C.
COMPANY STATEMENT OF ISSUE:
Effective February 17, 1987, Apprentice Electrician Stevens discipline record was assessed 30 demerits for "Alteration of time documents". Effective March 11, 1987, he was discharged from Company service for "Accumulation of demerits in excess of 60 (sixty) and failure to comply with Rule 31.8 of Wage Agreement 12.40".
The Union contends that the discipline assessed to the record of Apprentice Electrician Stevens and consequent discharge was too severe a penalty for the alleged infraction. The Union also contends that the Company has not proven that the employee violated Rule 31.8 of Wage Agreement 12.40. The Union requests that Apprentice Electrician Stevens be reinstated with full seniority rights and with compensation for lost wages and benefits.
The Company disagrees with the Brotherhood's contentions and has declined the Brotherhood's requests.
The grievor denies as having been involved in the alteration of time documents and maintains that there was no just cause to terminate his services, either on that basis or on the basis of the quality of this service under Rule 31.8 of the collective agreement. Rule 31.8, which applies only to the service of apprentices, is as follows:
31.8 An apprentice must throughout his apprenticeship continue to display the desire and aptitude to learn the trade or he will not be retained as an apprentice.
At the hearing the grievor was represented by independent counsel, pursuant to an order of the Canada Labour Relations Board. The Union was represented by separate counsel, whose position was limited to maintaining a watching brief in the event that the Union's interest in the interpretation of the agreement should become an issue. No such issue arose, and no representations of substance were made by the Union's counsel at any time in the hearing.
The grievor was hired as an Electrician Apprentice at Prince George, B.C. on June 25, 1984. He then commenced an apprenticeship period which would have extended over four years normally resulting in his receiving certification as a Journeyman Electrician. The period of Mr. Stevens' employment with the Company involved a substantial number of disciplinary incidents. While it is not necessary to deal with the record in detail, suffice it to say that by January 14, 1987 his discipline record stood at fifty-five demerits, which is only five demerit points short of the total of sixty that would normally justify his discharge under the Brown system of discipline.
The great substance of the discipline assessed against him concerned problems of punctuality and attendance, although his record does include one infraction relating to an incident on January 14, 1987 which involved refusing to do assigned work and leaving work without authorization. It is arguable that Mr. Stevens' record should be viewed as in fact equivalent in weight to forty-five demerits, as it appears from the material before the Arbitrator that ten demerits were assessed effective October 24, 1985 for his alleged "... violation of Rule 31.8". To the extent that the Company now takes the position before the Arbitrator that article 31.8 does not involve discipline but relates strictly to the administrative assessment of employees under probation, it is difficult to ascribe substantial weight to those demerits. In any event, however, a record of forty-five demerits accumulated over a period of only a year and a half of employment must be viewed as clearly negative.
The material further establishes that some of the grievor's difficulties with timekeeping were attributable to a medical condition. As a rheumatoid arthritic, the grievor was prescribed strong medication which, according to a letter provided by his own physician, was likely to produce morning drowsiness. However, once that medical documentation was provided to the Company some adjustment in Mr. Stevens' record was made by the removal of ten demerits, in recognition of that part of punctuality problems which may have been caused by his medication. At about the same time, in early January of 1986, he was re-assigned to the afternoon shift, as a means of reducing his morning attendance problems, at the suggestion of the Company's own doctor. As the record indicates, however, the move to the afternoon shift did not result in any lasting improvement in Mr. Stevens' timekeeping performance. It appears, in fact, that his lowest performance overall in respect of timekeeping was recorded in the period between June and October of 1986, when he was working on afternoon shifts.
The material and evidence before the Arbitrator further discloses that Mr. Stevens had some difficulty relating to other employees. Periodic on-job evaluation reports filed by his supervisors relate ongoing concern about his day-to-day demeanour as an employee. These reflect comments such as "tends to wander ... appears to have a know-it-all attitude ... spends too much time socializing ... displays an immature attitude longer breaks than norm". A job evaluation report for the period ending October 2, 1986 contains the following observations of his supervisor:
Mr. Stevens' ability appears to be above average. However his initiative, dependability, attitude and timekeeping are far below that expected of an apprentice ... Mr. Stevens' initiative is not consistent, Mr. Stevens does not always follow instructions from his journey. All journeymen have complaints regarding Mr. Stevens' attitude and would prefer not to work with him Mr. Stevens has no initiative to work on his own and complains constantly when he is not assigned a journeyman. It is my opinion that unless Mr. Stevens' attitude changes drastically very soon his employment should be terminated.
One of the journeymen assigned to work with Mr. Stevens on the afternoon shift was Norman Inness. Giving evidence at the hearing Mr. Inness, who has since left the Company and is employed elsewhere, related that the grievor demonstrated a poor working attitude, was not responsive to directions and did not show sufficient respect for other people. According to Mr. Inness the grievor did not take work seriously, as demonstrated by an incident which he recounted in which the grievor deliberately "blew" a Meggar – a valuable piece of equipment used to measure electrical resistance.
Mr. Inness relates that one day when the grievor arrived at work late he told him that he had gotten into trouble at the punch clock. According to Mr. Inness Mr. Stevens told him that he had been trying to rig his time card, got overexcited and made a mess of it. The grievor told his fellow worker that while he was trying to erase the marks he had made on the card he was seen by a foreman with both the card and the eraser in his hand. He then expressed the fear that, in light of his prior disciplinary record of fifty-five points, he faced imminent discharge. It appears that he then told his foreman that he was only erasing pencil marks which he had found on his card, an explanation which was not questioned. As the record reveals, on that occasion the Company conducted an investigation and ultimately issued the grievor a written reprimand for "... defacing his time card and failure to report to a Supervisor at the start of his shift" on October 18, 1986.
Mr. Inness gave further evidence with respect to Mr. Stevens' timekeeping practices. According to Mr. Inness, one day Mr. Stevens explained to him that he had devised a way to cheat on his time card by covering the minute portion of the punching-in area of the card with tape whenever he punched in late. As a result the clock would print only the hour digit. Later, he would return to the clock at the beginning of a subsequent hour, cover the hour digit with tape and insert the card to allow for the printing of two zeros, thereby leaving the impression that he had punched in on time originally. According to Mr.Inness the grievor also related to him that he had sometimes been able to conceal a late punch-in by double punching his card, which resulted in obscurity in the numbers registered.
In December of 1986, when he was being laid off, Mr. Inness finally related to General Foreman Clayton R. Peterson what Mr. Stevens had told him of his false timekeeping practices. This caused Mr. Peterson to carefully examine all of the time cards available for Mr. Stevens from the time of his employment Mr. Peterson relates that he found five cards which appeared to him to be irregular. On the basis of the information received from Mr. Inness, and the cards themselves, Mr. Peterson conducted a formal disciplinary investigation on February 17, 1987. As a result of that investigation the grievor was assessed thirty demerits for having altered his time documents, which resulted in a total accumulation of eighty-five demerits. He was then notified that effective March 11, 1987 he was "discharged for accumulation of demerits in excess of 60 (sixty) and failure to comply with Rule 31.8 of Wage Agreement 12.40".
There are two issues before the Arbitrator. The first is whether the grievor did manipulate his time cards as alleged, thereby justifying the assessment of demerits and his subsequent discharge for an accumulation in excess of sixty demerits. The second, and alternative issue, is whether the Company had just cause to terminate the grievor's services by virtue of his alleged failure to comply with the performance standards required of an apprentice as reflected in Rule 31.8 of the collective agreement.
I deal with the issue of falsification of time records first. It is true, as counsel for the grievor submits, that a disciplinary charge that is tantamount to deliberate fraud should be proved by clear and compelling evidence. (See Canada Post, (1988) 3 I-A-C. (4d) 162 (Bird); Indusmin Limited, (1978) 20 I-A-C. (2d) 87 (M.G.Picher)). Counsel for the Complainant argued that the evidence of tampering with time cards is not sufficient to sustain the assessment of any discipline against Mr. Stevens and, on that basis, he maintains that the Company has failed to establish a prima facie case and should, in effect, be non-suited.
With that argument the Arbitrator has substantial difficulty. It is true that the original time cards relied upon by Mr. Peterson were not available for scrutiny at the hearing. For reasons which are not seriously challenged, it appears that the five time cards used in the investigation of Mr. Stevens have been lost or misplaced. That does not deprive the Arbitrator of some documentary evidence, however. Following the investigation Mr. Peterson took the precaution of having the five time cards photographed, partly with the intention of seeing whether photographic images would produce any more clear indication of tampering. Three of the original photographs were preserved and were tendered in evidence at the arbitration hearing. They were fully identified by Mr. Peterson as photographs made and preserved under his direction. I am satisfied that the time cards so adduced in evidence by way of photographic reproduction accurately represent the cards utilized by the grievor on three separate occasions in 1985. On their face these cards do disclose obvious irregularities, including one instance where the minute digits appear to be entirely missing from a punch-in time or another where the minute digits seem to have been smudged over, and where the median line next to them has been partly erased, and a third where there appears to have been an obvious double punching that obscured the digits shown on the face of the card.
To these evidentiary indicators must be added the incident, which is not denied where the grievor was discovered to be making erasures from his time card by a foreman in October 1986. While at the time the Company seemed prepared to accept Mr. Stevens' innocent explanation of what he was doing, that event bears closer scrutiny in light of the subsequent disclosures and evidence in these proceedings brought by Mr.Inness. In my view, in light of that more recent evidence, the Arbitrator is not constrained by the previous findings and discipline issued by the Company in relation to that incident.
The Arbitrator judges Mr. Inness to be a credible witness. No longer employed by the Company, he appears to have nothing to gain by way of favour in exchange for evidence given against Mr. Stevens. While his past negative relations with the grievor are a matter of undisputed record, the reports of supervisors also tendered in evidence would suggest that Mr. Inness's negative feelings towards the grievor were not, in the end, very different from those of other employees who also registered complaints about him with management. When the totality of the evidence is assessed, with due regard to the interest of the two conflicting witnesses, Mr. Inness and Mr. Stevens, as well as their demeanour in the witness box, I am compelled to prefer the account of events related by Mr. Inness to that of Mr. Stevens.
In the result, therefore, I accept that Mr. Inness was told by the grievor that he had been tampering with his time card when he was apprehended with an eraser in his band at the time clock, and that more generally he had devised a practice of rigging his card by the use of tape to mask digits, and by double punching. The fact that he might have said these things to Mr. Inness does not, of course, of itself prove that he did them. Nor is it apparent to the Arbitrator that the statements of Mr. Stevens to Mr. Inness, a fellow employee, can be taken as an admission against interest for the purposes of ascribing admissibility or weight to what would otherwise be heresay evidence. However, on the whole, I am satisfied that the statements made by the grievor to Mr. Inness, coupled with the objective evidence of both the eraser incident and the three photographic reproductions of the time cards which are in evidence before me do represent a sufficient evidentiary base to conclude by inference, on the balance of probabilities, that Mr. Stevens was involved in the practice of falsifying his time card at or about the time and in the manner he related to Mr. Inness.
In the Arbitrators view the deliberate falsification of timekeeping records is among the most serious of disciplinary deviations which, standing alone, might merit an employee's discharge. Given the prior disciplinary record of Mr. Stevens, I cannot find that the assessment of thirty demerits was inappropriate in the circumstances. On this basis, therefore, the grievance must be dismissed.
In the Arbitrator's view even if the grievance had succeeded on the first head relating to the falsification of documents, the second ground of discharge is also justified on the evidence before me. The evidence adduced by the Company discloses that over the entire period of his employment the evaluations of Mr. Stevens for initiative, dependability, attitude and timekeeping fell well below the standard of other apprentices, and what could fairly be expected of an employee in his circumstances. It is not disputed that Mr. Stevens has the intelligence and ability to perform well as an Electrical Apprentice. However, when the aspect of ability is disregarded, the other heads of performance left him in a position where he did not meet the expected performance rating more than sixteen percent of the time. Other Electrical Apprentices similarly situated scored at rates of ninety-five percent, seventy-five percent, seventy-one percent and fifty-so percent when assessed by the same standard.
The language of Rule 31.8 of the collective agreement was considered by Arbitrator Weatherill in an award between the Company and the Canadian Council of Railway Shopcraft Employees and Allied Workers dated March 6, 1984. At page five of that award the arbitrator made the following observation:
Whether or not the grievor's conduct might have subjected him to some discipline in the past, no discipline in the past, no discipline was imposed, and any past "misconduct" certainly does not appear to have been such as to make discipline compelling. This is not a case in which "just cause" need be shown, in the usual sense. To the extent that progressive discipline" should be looked for as justification for such a drastic "penalty" of discharge, it is to be found, in the circumstances of the instant case (where the termination of the grievor's employment is not a "penalty" in the disciplinary sense), in the series of Apprentice Shop Reports which were discussed with the grievor in the hope that he would realize the necessity of Improvement in his performance.
The grievor did not, from the material before me, continue to display the desire and aptitude to learn his trade and so was not to be retained as an apprentice. In terminating the grievor's employment, the company properly gave effect to the provisions of article 31.8 of the collective agreement.
The foregoing passage indicates that Rule 38.1 of the collective agreement is not conceived as a purely disciplinary provision, but rather one which reserves to the Company the discretion to assess, on an ongoing basis, whether an apprentice continues to demonstrate the desire and aptitude to learn that justify his or her being retained. The Arbitrator cannot accept the submission of counsel for the Grievor that Rule 31.8 relates only to an employee's technical knowledge, skill and ability. In my view the broader concepts of "desire and aptitude to learn" must also be interpreted in light of such other attributes as reliability in attendance, the abilIty to accept and carry out directions in a team work setting, personal integrity, and, to some extent, the ability to work satisfactorily with other employees. The material reviewed above discloses that Mr. Stevens did not meet acceptable standards under these heads of performance. It is obviously a matter of critical concern to an employer when an apprentice demonstrates a chronic inability to correct bad timekeeping habits even after adjustments are made in his or her scheduling to assist with personal problems, or raises antagonism in other employees to the point that they refuse to work with the apprentice. That is the unfortunate situation which eventually obtained in the case of Mr. Stevens. In the circumstances the Arbitrator cannot find that the Company did not have grounds to conclude, as it did, that he did not sufficiently display the desire and aptitude to learn the trade, thereby justifying his removal from service as an apprentice under the terms of Rule 31.8 of the collective agreement. On this separate ground, therefore, I find that the Company was justified in terminating the services of Mr. Stevens effective March 11, 1987.
For all of the foregoing reasons the grievance must be dismissed.
DATED at Toronto this 8th day of June, 1990.
(sgd) M. G. Picher