SHP 366

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

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

IN THE MATTER OF THE GRIEVANCE of W. David

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

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

Ken Porter

 

 

There appeared on behalf of the Company:

J. K Hall Labour Relations Officer, Edmonton

G. C. Blundell Manager, Labour Relations, Edmonton

S. A. MacDougald Manager Labour Relations, Montreal

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

 

A hearing in this matter was held in Montreal on July 13, 1992.

 

AWARD

This is the arbitration of a grievance in respect of discharge. The grievor, Mr. W. David, employed as an electrician at the Company's operations in the Calder Yard Motive Power Shop, Edmonton was discharged effected March 2, 1992 for the accumulation of demerits. The Dispute and Joint Statement of Issue, filed at the hearing, are as follows:

Dispute:

Appeal of 20 demerits assessed the discipline record of Electrician W. David of Calder Yard Motive Power Shop, Edmonton, Alberta and consequent discharge effective 02 March 1992.

Joint Statement of Issue:

On 10 January 1992 Mr. David was instructed to complete a standard maintenance and air brake inspection of Locomotive 5502. Subsequently, an audit of Locomotive 5502 revealed that the recirculating air filter of the cab heater was blocked, thereby impairing normal air intake. The work report of Locomotive 5502 indicated that Mr. David had signed off item 862, which reads "inspect cab heating and defroster system. Renew blower motor brushes. Renew re-circulating and/or fresh air intake filters." After investigation, the discipline record of the grievor was assessed 20 demerits for "poor work performance, specifically for signing off work not completed on unit 5502." The grievor was discharged for "accumulation of demerits'.

The Brotherhood claims that the discipline is unjust because the content of the work report had been changed and the grievor was unaware of the alleged change. Also that the grievor had been subject to poor treatment and harassment by Company management. The Brotherhood also contends that the investigation was in violation of Rule 28.2 of Agreement 12.40 where it is alleged that the grievor was not represented by an authorized union representative. The Brotherhood also contends that the Company is in violation of Rules 28.1 and 28.2 and Agreement 12.40 in general.

The Brotherhood seeks the reinstatement of the grievor with compensation for loss of wages and benefits.

The Company does not agree with the aforementioned allegations and has denied the Brotherhood's request for redress.

***

The Arbitrator can find no basis to sustain the submission of the Brotherhood that there was violation of Rules 28.1 and 28.2 of the collective agreement, in the investigation conducted by the Company. The basis of its objection is that there was no authorized Union representative present with the grievor during the investigation. It is common ground, however, that Mr. David was represented by Mr. W. MacDonald. It appears that Mr. MacDonald was the Local Chairman of the Union at the Calder Yard Diesel Shop. Uncertainty as to his precise status at the time of the investigation arises from the fact that he decided to temporarily leave his position November 4, 1991 for health reasons. He apparently requested other members to replace him temporarily. Notification of his action was contained in a memo to the District Superintendent of the Calder Diesel Shop, Mr. M.W. McMillan, on November 4, 1991.

The investigation of the grievor was conducted on February 5, 1992, with Mr. MacDonald present as his Union representative. A letter signed by Mr. MacDonald dated March 19, 1992 relates that he returned to his function of Local Chairman on January 20, 1992. The Union's representative at the arbitration hearing concedes that there was no knowledge on the part of the national office of the Union with respect to Mr. MacDonald having resigned his position. In the circumstances, it appears to the Arbitrator that what transpired in substance is that Mr. MacDonald appointed a delegate to act in his stead during a temporary withdrawal from his functions, for health reasons. Whether the Local Chairman's actions were in strict keeping with the requirements of the Union's constitution is not, in my view, determinative of the separate question, namely whether he was an "authorized representative of the employee" for the purposes of Rule 28.2 of the collective agreement at the time of the investigation of the grievor. I am satisfied that he was, and that it is not open to the Union's national office to now plead a technical deficiency in the status of a person who, to all outward appearances, and indeed to the best understanding of the national office, did occupy the position of Local Chairman at the time of the investigation. As the Union made no attempt to dispute the status of Mr. MacDonald at any time prior to the investigation, in accordance with equitable principles, it cannot do so now.

I turn to consider the merits of the dispute. The evidence discloses that the grievor admittedly made an error on January 10, 1991 when he signed off a line on a work report for work performed on locomotive 5502, indicating that he had renewed the fresh air intake filters for the heating system for the locomotive's cab. I am satisfied that the error committed by Mr. David was one of inadvertence, prompted, in part, by the fact that the entry on the work report covered a number of functions, two of which he had in fact completed. It reads as follows:

862 Inspect cab heating and defroster system, renew blower motor brushes. Renew re-circulating and/or fresh air intake filters.

It is common ground that Mr. David did inspect the cab heating and defroster system, and renewed the blower motor brushes. He did not, however, renew the air intake filters, even though he signed off the sheet, which would indicate that he had done so.

Mr. David has been employed by the Company for 16 years. In its brief the Company submits that the error made by Mr. David "... is just another example of the grievor's history of unacceptable work performance.". The grievor's disciplinary record does not, however, sustain the suggestion of a long history of poor work performance. In the seven years between 1985 and 1992, the grievor's record discloses only two incidents of discipline for poor work performance. In May of 1991 Mr. David was discharged following what the Arbitrator subsequently found to be an inadvertent error in signing off work not completed, as a result of which he suffered an effective seven month suspension. The second incident is that of January 10, 1992 giving rise to this grievance.

As noted in the arbitration award respecting the grievor's first discharge, his disciplinary record is not impressive. That, however, is based entirely on demerits accumulated for the unrelated problem of poor timekeeping. This, it appears, relates to Mr. David's activities as a coach involved in Canada's National Team in track and field. The Union's representative suggests that for many years his timekeeping problems were tolerated by the Company, but that with the arrival of Mr. McMillan as a new superintendent, a less tolerant standard was applied, and he quickly accumulated a substantial number of demerits for timekeeping problems. He submits that the superintendent has effectively singled out Mr. David for discriminatory treatment, charging that the motivation for the Company's actions is racial discrimination. He argues that the auditing of the grievor's work in close proximity to his reinstatement to work by the Arbitrator, as well as a number of other incidents which he characterizes as harassment of Mr. David by Mr. McMillan, disclose a singling out of the grievor which cannot be explained on any other basis.

In light of the disposition of the grievance on its merits, the Arbitrator deems it unnecessary to make any comment on the Union's charge of racial discrimination I am satisfied that the issue can be fully disposed of on the basis of whether there was just cause for the termination of Mr. David's services, and whether the Arbitrator's discretion should be exercised in the circumstances, assuming there was cause for discipline, to substitute a lesser penalty. On a careful review of the entire record, I am satisfied that there are grounds to substitute a lesser penalty.

The record discloses that Mr. David quickly accumulated 55 demerits in the period of 18 months between December 16, 1988 and June 26, 1990. All of those demerits were for poor timekeeping, a problem, which to all outward appearances, has since been resolved. There is no sustained record of faulty work performance on the part of Mr. David. What the record of recent years discloses is two incidents, including the case at hand, in which he inadvertently signed off work which was not in fact completed. Clearly that is inappropriate conduct which would make him subject to discipline. However the Arbitrator has some difficulty with the harshness of the penalty assessed, given the grievor's positive record of work performance in the past. As noted above, prior to the two incidents discussed, Mr. David's record contains no adverse notations for poor work performance since September of 1985. When the entire period of his employment is examined his work performance was called into question on only three occasions since 1977, prior to the two incidents which caused his discharge. In March of 1982 he was assessed 15 demerits for work performance, and in May of 1983 and September of 1985 he was spoken to for poor work performance, with no demerits having been assessed.

It is clear from the material before the Arbitrator that the disclosure of an error in an employee's work record report does not automatically result in the assessment of demerits against the individual concerned. In this regard the Union drew to the Arbitrator's attention the case of a machinist who incorrectly signed off a work sheet, received no discipline and was given the opportunity to correct his work. It would seem to the Arbitrator that, given his relatively good work performance record since 1985, and notwithstanding his prior suspension, Mr. David should have been given similar consideration in the circumstances of the case at hand. The fact that he had placed himself in a position of peril because of problems related exclusively to timekeeping should not, in my view, be seized upon as the basis of his discharge for a relatively minor error in work performance, an area in which he has a previously positive record.

The Company's officers knew, or reasonably should have known, that Mr. David did not have an extensive record with respect to the faulty completion of inspection reports. I am satisfied that in the circumstances the Corporation did not have just cause to summarily discharge Mr. David on the occasion of the first recording error which he made following his reinstatement, given the relatively positive record he demonstrated in that regard during 16 years of service. While the grievor was liable to discipline for his error and his accumulation of demerits placed him in obvious peril, I am not satisfied that the termination of his employment was justified in the circumstances. Because I believe the Company should have better appreciated the distinction between his prior record for absenteeism and Mr. David's relatively positive record in respect of work performance, I deem it appropriate to make an order of partial compensation in the circumstances of this case.

For the foregoing reasons the grievance is allowed, in part. Mr. David shall be reinstated into his employment forthwith, with compensation for all wages and benefits lost for one half the period since his discharge. I retain jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this Award.

DATED at Toronto this 27th day of July, 1992.

(sgd) M. G. Picher

Arbitrator