SHP 355

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

International Brotherhood of Electrical Workers (System Council No.33)

Grievance re Discharge of D.W. David, Calder Yard Motive Power Shop

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

Frank Klamph System General Chairman. S.C. #33, IBEW

John J. Honer General Chairman, Prairie & Mountain Regions. S.C #33, I.B.E.W.

 

There appeared on behalf of the Company:

G. C. Blundell Manager, Labour Relations, Edmonton

S. MacDougald Manager Labour Relations, Montreal

J. K. Hall Labour Relations Officer, Edmonton

O. S. Cheladyn Equipment Officer, Motive Power, Edmonton

G.E. Gower Supervisor, Motive Power, Edmonton

E. Otto Technical Officer, Motive Power, Montreal

D.A. Watson System Labour Relations Officer, Montreal

 

A hearing in this matter was held in Montreal on December 5, 1991.

 

AWARD

This arbitration concerns the appeal of 20 demerits assessed for poor workmanship, and the resulting discharge of Electrician W. David of Calder Yard Motive Power Shop for accumulation of demerits. The dispute and joint statement of issue are as follows:

Dispute:

Appeal of 20 demerits assessed to the discipline record of Electrician W. David of Calder Yard .Motive Power Shop, Edmonton. Alberta. and consequent discharge effective May 21, 1991.

Joint Statement of Issue:

On April 19, 1991, Mr. David performed a mileage inspection on Locomotive #5090 at the Calder Yard Motive Power Shop. On April 20, 1991, Locomotive #5090 was released to service. On April 1-4, 1991, Locomotive #5090's auxiliary generator failed. On April 30, 1991, Mr. David provided an employee statement regarding his "work performance on unit 5090 on Friday April 19, 1991". As a result of the investigation Mr. David's discipline record was assessed 20 demerits for "poor work performance, specifically for signing off work not completed on unit 5090 on April 19, 1991." Mr. David was discharged on May 21, 1991 for "accumulation of demerits".

The Brotherhood contends that Mr. David made an honest mistake when he signed off work which he had not actually performed. The Brotherhood also contends that the Company violated Rules 28.1 and 28.2 of Agreement 12.40 in that "the investigation and statement was not handled in a fair and impartial manner". The Brotherhood requests the removal of the discipline assessed and the reinstatement of Mr. David with full seniority and with compensation for lost wages and benefits.

The Company denies the Brotherhood's contentions and has declined its request.

***

The Union takes a preliminary position with respect to the discipline assessed against Mr. David on the basis that the Company failed to comply with the procedural requirements of Rules 28.1 and 28.2 of the collective agreement. As regards the disciplinary investigation of the grievor. Those rules read, in part, as follows:

28.1 Except as otherwise provided herein, no employee shall be disciplined or discharged until the employee has had a fair and impartial investigation and the employee's responsibility established. If 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 ...

It is common ground that on April 26, 1991 Mr. David was given a letter advising him to appear for an investigation to be held on April 30. The subject matter and place of the investigation were noted in that document, although the precise time of the meeting was not. The second letter, dated April 29, 1991, was provided to the grievor, advising him that the investigation was to take place at 10:00 hours, on April 30, 1991.

The Arbitrator cannot sustain the position of the Union. Firstly, it would appear that there was substantial compliance with the requirements of article 28.2 in that the grievor was fully notified one day in advance of the time, place and subject matter of the investigation. There is nothing in the language of article 28.2 with respect to the precise form of the notice, and clearly no prohibition which would preclude the possibility of the notice taking the form of two separate letters. For this reason the preliminary position of the Union must be denied.

The record discloses that on April 19, 1991 Mr. David was responsible for performing and documenting a mileage inspection on locomotive no. 5090 at the Calder Yard Motive Shop. It is common ground that during the course of that tour of duty Mr. David was scheduled to inspect and service the locomotive auxiliary generator. He failed to do so, however, and the auxiliary generator failed on April 24, 1991, while the locomotive was in service. This occasioned substantial cost to the Company in respect of the replacement of the generator and the delay incurred to its operations.

Part of the grievor's responsibilities in respect of the 90-day inspection of locomotive 5090 was the completion of a standard inspection record form. That form contains entries for each of the repair and maintenance functions to be accomplished, with space indicating the work crew and employee responsible for the operation in question. The record reveals, to the satisfaction of the Arbitrator, that Mr. David signed as complete the inspection of the auxiliary generator, as provided on the fourth page of the standard inspection report. It would seem that he did so inadvertently, having signed all of the entries at the conclusion of his work day, in a manner which is apparently common practice in the shop.

There is some dispute in the evidence before the Arbitrator as to whether Mr. David gave some verbal indication to his supervisor that he had not in fact completed the auxiliary generator inspection because he and another employee had been delayed in another aspect of their work. Having regard to the evidence, I am satisfied, on the balance of probabilities, that no such communication was made by Mr. David, or by any other employee, to the supervisor. I am nevertheless satisfied that the error committed by Mr. David was one of oversight, and not a deliberate falsification of Company records.

The issue of substance in this case is the appropriate measure of discipline, and whether the Arbitrator's discretion should be exercised in the circumstances to reduce the severity of the penalty. While Mr. David has 15 years service, his record is not impressive. At the time of his discharge he had 55 demerits registered against him apparently as of June, 1990. The unchallenged representation of the Company is that the grievor was subject to 10 separate interviews for unsatisfactory work behaviour and had, in the past, been disciplined for unsatisfactory work performance.

In considering whether it would be appropriate to give Mr. David a "second chance", one aspect of the record gives the arbitrator pause. As noted in a letter of the Company's senior vice-president for Western Canada, dated July 11, 1991, notwithstanding that the grievor's record stood at 55 demerits, the threshold of discharge, as of June, 1990, he nevertheless made himself subject to discipline on two further occasions in December of 1990, when he was assessed two written reprimands, one for being away from his work area without authorization and a second for poor timekeeping, a problem which reveals itself extensively in his record. In these circumstances the Arbitrator is compelled to conclude that the Company showed consideration for Mr. David.

Are there reasons for the Arbitrator to exercise his discretion to reduce the penalty in this case? In mitigation there are three factors which must be considered. The first is the length of the grievor's service, which is fifteen years. The second is the fact that his error was inadvertent, and was committed in circumstances where a lapse of attention, while not excusable, was made more possible by following a common shop practice of filling out maintenance documentation at the end of his tour of duty. Lastly, the bulk of the grievor's discipline appears to have been acquired for poor timekeeping, a problem which appears to have improved over time. In the circumstances the arbitrator is satisfied that a lengthy suspension is appropriate as an alternative to the severance of Mr. David's employment.

The grievance is therefore allowed, in part. Mr. David shall be reinstated in his employment, without compensation or benefits, and without loss of seniority, with his disciplinary record to stand unchanged at 55 demerits.

DATED at Toronto this 17th day of December, 1991.

(sgd) M. G. Picher

Arbitrator