SHP 346

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

National Automobile Aerospace and Agricultural Implement Workers Union of Canada

IN THE MATTER OF THE GRIEVANCE RE W. NELSON

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

J. R. Moore Gough General Chairman, Great Lakes Region

Tom Wood System General Chairman

 

 

There appeared on behalf of the Company:

D. A. Watson System Labour Relations Officer, Montreal

L. F. Caron System Labour Relations Officer, Montreal

H. R. Hebbourn General Equipment Supervisor, S.O.D., Oshawa

I. E. Ihssen Supervisor Workers' Compensation, Toronto

B. M. Dale Supervisor Car, S.O.D., Oshawa

 

A hearing in this matter was held in Montreal on May 2, 1991.

 

AWARD

This arbitration concerns the claim of Carman W. Nelson of Oshawa that he was unjustly removed from service because of the Company's view that he was physically incapable of performing the work assignments available. The Union contends that, while the grievor suffers a physical disability because of a work related injury, he is nevertheless capable of performing a substantial number of duties, the totality of which would occupy him on a 40 hour a week basis. The Company denies that there is suitable work available to Mr. Nelson. The relative positions of the parties, and the facts giving rise to this grievance, are outlined in the statement of dispute and joint statement of issue filed at the hearing, which are as follows:

Dispute:

Claim on behalf of Carman W. Nelson of Oshawa, Ontario.

Joint Statement of Issue:

On January 27, 1988, Mr. Nelson filed an accident report as a result of an on-duty injury sustained on January 25, 1988.

Mr. Nelson remained on his regular carman assignment in the Oshawa Yard Car Department until March 28, 1988, at which time, because of his medical condition, he was placed on a modified work program which included car inspection and air brake testing in Oshawa Yard, as well as some light duty work at the repair track.

In 1989 Mr. Nelson was assigned to the Repair Track performing light repairs on rolling stock and the repair of ratchet and tie down chain assemblies used on multi-level cars.

On January 19, 1990, Mr. Nelson was issued a letter by Equipment Supervisor H. Hebbourn, and effective the termination of his shift on January 19, 1990, he was no longer allowed to return to work.

The Union contends that Mr. Nelson was unjustly removed from service on January 19,1990, in that he was physically capable of performing the duties to which he was assigned The Union further contends that Mr. Nelson's removal from service was in violation of Rule 17.1 and Appendix XIV of Agreement 12.35.

The Union requests that Mr. Nelson be returned to active service as a Carman at Oshawa covered by Agreement 12.35 and that he be reimbursed all wages and benefits lost.

The Company contends that it has been unable to find a suitable position for Mr. Nelson and has declined the Union's request.

***

The Union's claim is made on the basis of Rule 17.1 of the collective agreement, as well as Appendix XIV. Those provisions are as follows:

RULE 17 Faithful Service

17.1 Employees who have given long and faithful service in the employ of the Company and who have become unable to handle heavy work to advantage will be given preference of such light work in their line as they are able to handle (subject to pension regulation age limits).

(See Appendix XIV)

Appendix XIV is in the form of a letter of understanding signed jointly by the Assistant Vice-President, Labour Relations of the Company and the National President of the Union, which is dated May 24, 1989 and reads, in part, as follows:

This has reference to discussions during contract negotiations in 1982 with respect to the railways' proposal regarding the desirability of undertaking special arrangements for an employee who becomes physically disabled during the course of his employment and is unable to perform the regular duties of his assigned position and is unable to exercise his seniority on a position which he is capable of performing.

This letter will confirm our understanding that, in such circumstances, the proper officer of the Company and the General Chairman concerned will meet to see if arrangements can be made to provide employment to the employee concerned within the existing work force. The parties may by mutual agreement, place a disabled employee on a position that his qualifications and ability allow him to perform, notwithstanding that it may be necessary to displace an able bodied employee so as to provide suitable employment. The permanently assigned employee so displaced will be allowed to exercise seniority onto a position that he is qualified for and has the ability to perform.

A displaced employee placed on a position shall not be displaced by an able bodied employee so long as he remains on that position except when a senior employee is otherwise unable to hold a position within his seniority terminal.

Should the disabled employee subsequently recuperate, he shall be subject to displacement, in which case such employee will exercise seniority rights. When a senior able bodied employee believes that the provisions of this letter will result in undue hardship, the General chairman may discuss the circumstances with the Company.

The above understanding is to provide guidelines for assisting disabled employees to continue to be employed.

Mr. Nelson commenced service with the Company in January of 1973. He had some fifteen years of service when, on January 25, 1988 he suffered an on the job injury to his left shoulder and neck area while attempting to move a locking handle which controls the moveable deck of a multi-level railway car utilized for transporting automobiles. Although the damage was not immediately apparent, it soon became difficult for the grievor to continue in his normal duties. On March 28, 1988 his physician recommended that he be restricted from heavy lifting or pushing and from raising his arms above shoulder height. In August of 1988 a second physician confirmed that diagnosis, and further disclosed that the grievor suffered a herniated disc in the cervical spine.

On the basis of the grievor's family physician's recommendations that Mr. Nelson be restricted from heavy lifting, the Company assigned him to lighter duties, principally in the form of doing the inspection and air brake testing of two trains departing Oshawa as well as the inspection of loads being received from the automobile plants. It appears to be common ground that the work there involved was visual inspection as well as coupling air brake hoses between cars.

It appears to the Arbitrator that a misunderstanding arose on or about May 15, 1989. According to the Union's account of events, on that day the Company gave to Mr. Nelson the additional duties of also performing certified car inspections of empty multi-level automobile carriers destined to the auto plants, as well as certain minor repairs of that equipment. It relates that on that date Mr. Nelson complained to equipment supervisor H. Hebbourn that the entirety of the work assigned to him was too much for one person, having particular regard to the fact that he had no vehicle at his disposal to obtain the parts and equipment necessary for the minor repairs.

The Company's characterization of the May 15 incident differs. It states that on that day Mr. Nelson complained to Mr. Hebbourn that he continued to experience pain while performing the certified car inspection duties. Whatever may have been the nature of the grievor's complaint, it is common ground that Mr. Hebbourn immediately requested that the grievor undergo a medical examination at the Company's medical department. That examination, conducted on May 17, 1989, resulted in a medical certificate stating that the grievor was restricted from lifting weights greater than 25 pounds above his shoulder. Following the grievor's return to work on May 23, 1989 he was assigned modified work of a different type, consisting principally in the repair of ratchet tie-down chain assemblies used on multi-level automobile carrying cars, as well as certain other light repairs. The Company maintains that the grievor's productivity in this assignment decreased steadily, although there is no evidence before the Arbitrator to establish an acceptable standard in respect of that work, the degree to which the grievor deviated from that standard or that Mr. Nelson was ever advised that he was not meeting the requirements of the job.

The record reveals a substantial number of medical examinations of the grievor by his own physicians, by Company doctors as well as by doctors from the Workers' Compensation Board. While there are certain variations in the medical reports, a common theme emerges. The preponderance of medical opinion is that the grievor is restricted to modified duties, should not lift objects above his shoulders, or lift and pull objects greater than 25 pounds, and should not perform work involving awkward or repetitive neck movements or in tightly confined spaces. By the latter part of 1990, it became clear that Mr. Nelson's condition was, for all practical purposes, permanent.

In December of 1989 the grievor advised Mr. Hebbourn that he would, in all likelihood, never be physically fit to perform all of the normal duties of a carman. According to the Company's evidence at or about the same time the volume of work available in the repair of ratchet and chain assemblies declined substantially because of a change in the nature of the equipment being used. In the result, on January 19, 1990 Mr. Hebbourn advised the grievor that he was being removed from active service. That communication reads, in part, as follows:

The Oshawa Equipment Department does not have a specific light duty or modified work job, but has created a specific task to aid in your recovery while you still remain actively employed. The intent of this modified work program is to assist workers' recovery when the injury is minor or a steady progress of recovery is forthcoming.

During our last conversation in December, 1989 you conveyed to me that you thought as a result of your last tests you may never be able to perform your assigned duties again. You have, since this time, not advised us of any changes to this statement. Therefore, since you are not able to perform your bid duties and for reasons previously mentioned, we will be filing the appropriate forms through our Claims Department to place you in a position to work with your own doctor and the Workmen's Compensation Board to hopefully reach a speedy recovery from your problem. If while working with these people it is determined that you have become physically disabled, your Wage Agreement 12.35 contains Appendix XIV which allows you to displace an able bodied employee on a position which you are capable of performing, through consultation with your General Chairman and an Officer of the Company.

It is with regret that I inform you this action will take place with the completion of your shift Friday, January 19, 1990.

As the above letter indicates, Mr. Hebbourn was not unaware of the protections available to Mr. Nelson under Appendix XIV of the collective agreement, as he specifically advised him in that regard. It appears that from January of 1990 through January of 1991 Mr. Nelson received full benefits from the Workers' Compensation Board. As of January 1991 those benefits were discontinued and the Board assessed Mr. Nelson at an 8% permanent partial disability, in respect of which he currently receives monthly payments.

The record reveals that following his removal from service in January of 1990 Mr. Nelson was given extensive consideration for rehabilitation and for his ability to perform a modified work assignment through the Workers' Compensation Board. In July of 1990 the Company sought the opinion of the Workers' Compensation Board Section Medical Advisor with respect to the ability of Mr. Nelson to perform certain modified carman's duties, including such tasks as certified car inspections, air brake testing and repair, welding, fork lift operation and bench work. By letter from the Workers' Compensation Board dated July 11, 1990 the Company was advised that the Section Medical Advisor, Dr. Mead, concluded that the modified carman's duties so described were unsuitable for Mr. Nelson, citing two factors of concern, namely the need to perform certain awkward neck movements and the heavy lifting that might be involved in certain of the tasks.

The Union's representative submits that the conclusion drawn by the Workers' Compensation Board must be substantially discounted because, he argues, the list of "modified" duties submitted by the Company was misleading, particularly as regards the requirement for heavy lifting. Specifically, he points to the fact that the light duties described by the Company included the handling of components in the air brake system which could weigh from 40 to 60 pounds. The Union's representative stresses that the Company was aware that such lifting was beyond the grievor's capacity. Moreover, as was acknowledged by the Company's spokesperson at the hearing, it was agreed that any light duty assignment would involve providing assistance to Mr. Nelson to relieve him from the lifting of any heavy air brake components. On the whole, in the light of this evidence, the Arbitrator is compelled to agree with the Union's representative that the conclusion drawn by the Section Medical Advisor of the Workers' Compensation Board is of doubtful value. Being incorrectly advised that the modified duties would require the grievor to lift objects of 40 to 60 pounds would, quite naturally, cause the Board's doctor to have concerns about the heavy lifting involved.

What conclusions are suggested by the totality of the evidence before the Arbitrator? In my view there is one significant and telling piece of evidence. The record discloses, beyond dispute, that for a period of over one year, from March of 1988 through May of 1989 Mr. Nelson satisfactorily performed the modified work duties of outbound inspection and air brake testing, as well as the inspections of loads coming from the automobile plants without any apparent difficulty, and without any degeneration in his medical condition. On balance, I am inclined to accept the Union's explanation of the complaint made to Mr. Nelson on May 15, 1989, namely that he did not say that his medical condition made it impossible for him to perform the work, but rather that he expressed his view that the additional light repair duties assigned to him could not be done, along with his other tasks, by one person without a vehicle. That event, however, appears to have been the beginning of the end for him, as he was reassigned to the ratchet and chain assembly repairs which eventually declined substantially in volume.

On the whole of the evidence, and having particular regard to the fact that Mr. Nelson was able to perform carman inspection functions as well as light repairs without difficulty for a period of over one year, functions which generally continue to be available, I am compelled to conclude that the Union's case is well founded. I am satisfied, on the balance of probabilities, that there are sufficient light or modified duties available in the Oshawa equipment department to sustain the ongoing and regular employment of Mr. Nelson, in compliance with the intention of Rule 7.1 of the collective agreement. Needless to say, this conclusion does not derogate from such rights as the Company may have in the event that future performance by the grievor discloses that his condition has deteriorated and he is no longer able to perform the light or modified duties. In my view, however, any conclusion in that regard by the Company should be substantiated by properly informed medical opinion which would include a more detailed appreciation and analysis of the facts by medical experts than was disclosed in the instant case.

For the foregoing reasons the grievance is allowed. The grievor shall be reinstated forthwith into his employment, with compensation for all wages and benefits lost, and without loss of seniority. Mr. Nelson shall be assigned to such light duty or modified tasks as deemed appropriate by the Company, in consultation with the Union, so as to occupy a full work week. I retain jurisdiction in the event of any dispute between the parties having regard to the interpretation or implementation of this Award.

DATED at Toronto this 29th day of May, 1991.

(sgd) M. G. Picher

Arbitrator