SHP - 386
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA
GRIEVANCE OF MR. DANIEL GRATTON, DECEMBER 15, 1992
SOLE ARBITRATOR:Harvey Frumkin
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held at Montreal on November 18, 1993.
By his grievance, which was presented at the second stage of the grievance procedure on December 15, 1992, the Grievor contests a decision of the Corporation to assess twenty demerit marks against his record for unauthorized absences from work on November 11, 12 and 13, 1992. He insists that the assessment was unjustified and he seeks, in consequence, its annulment and removal from his record.
The joint statement of issue presented by the parties is to the following effect:
EXPOSE CONJOINT DES FAITS :
2. Le 3 Novembre 1992, M. Gratton a demande l'autorisation de prendre conge les 11, 12 et 13 Novembre 1992 pour assister a un seminaire sur la sante et la securite.
3. Sa demande a ete rejete le 6 Novembre 1992 a cause d'un retard dans la chaine de production A laquelle il etait affecte .
4. Le 10 Novembre 1992, malgre qu'on lui ait refuse un conge, M.Gratton a informe son superieur qu'il ne se presenterait pas au travail les trois (3) jours suivants, ce qu'il a fait.
5. Apres enquete, vingt points de penalisation ont ete attribues a M. Gratton pour avoir pris conge sans l'autorisation.
6. Le syndicat demande l'annulation de la sanction.
7. La Societe rejette la requete du syndicat.
The facts giving rise to the grievance are straightforward and not in dispute. The Grievor occupies the post of carman (wagonnier) and is assigned at the Montreal Maintenance Centre of the Corporation. His employment dates back to March 4, 1974.
On November 3, 1992, the Grievor presented a formal written request for a leave of absence without pay for the days of November 11, 12 and 13, 1992. The purpose of the leave sought by the Grievor was to attend a "session de formation de santé et sécurité" scheduled for those days. It is to be noted that the Grievor at the relevant time occupied a position of Union representative "au Comité principal de santé et sécurité " at the Montreal Maintenance Centre, a position which he had assumed in the month of June of the same year.
The Grievor's request for unpaid leave for the days in question was denied and the decision of the Corporation to such effect was communicated to him on November 6, 1992 by Mr. R. Beland, the Grievor's supervisor. The reason given the Grievor for the Corporation's position at the time was that the project upon which the Grievor was working, namely "un projet de renovation des voitures LRC", was already behind schedule so that the Corporation required all of the manpower available if it were to meet delivery deadlines to which it was committed.
The Grievor, notwithstanding the refusal of his request for leave, advised the Corporation on November 10, 1992, that he would not be attending work over the three days following and in point of fact absented himself from work on November 11, 12 and 13, 1992 for the purposes indicated in his request. The Corporation's response was assessment of twenty demerit marks against the Grievor's record for what it considered as an unauthorized leave of absence and insubordination on his part.
The Collective Agreement envisages the prospect of unpaid leaves of absence. The operative provision in this regard is contained in Article 21.1 which reads as follows:
21.1 Lorsque les imperatifs du service le permettent, un conge non remunere peut etre accorde pour affaires personnelles, education, etc., jusqu'a concurrence de quatre-vingt-dix (90) jours civils, ledit conge pouvant etre prolonges moyennant un accord regional.
The manner of application of this provision is circumscribed in the Collective Agreement by Article 21.6 which is to the following effect:
21.6 Le refus arbitraire d'accorder un conge d'une duree raisonnable alors que les conditions d'exploitation le permettraient, ou la lenteur a traiter les cas ou il s'agit de maladies ou d'affaires d'importance pour l'employe sont des pratiques a proscrire et a considerer comme traitement injuste aux termes de la presente convention.
In effect therefore, the possibility for a leave of absence without pay is envisaged in the Collective Agreement . The request for leave may be "pour affaires personnelles, education, etc." Such requests must be duly considered by the Corporation who in so doing will be entitled to take into account its own operational needs. In this latter regard the Collective Agreement employs the terms "les imperatifs du service" and "les conditions d'exploitations".
Furthermore as Article 21.6 indicates, the reason motivating the request will also be a factor which the Corporation must consider for purposes of the determination which it must make. Thus, the discretion accorded the Corporation when called upon to consider a request for an unpaid leave of absence will not be unfettered. Rather its discretion must be exercised reasonably taking into account the Corporation's own operational needs and the nature of the reasons for which the leave is being sought. In the final analysis the directive in the Collective Agreement is that a request for an unpaid leave of absence upon reasonable grounds should receive favourable consideration unless circumstances dictate otherwise.
In the present case the Grievor, at the time of his request, had been assigned to a project involving the renovation of rail cars. The evidence is that the projet was significantly behind schedule. He worked as part of a team together with five other employees similarly classified. All available staff had been assigned to the project. It is in evidence that the prospect of deploying employees on lay-off or resorting to over-time was not available to the Corporation and that it had gone so far as to assign employees from other units to the project in order to meet delivery deadlines. All indications are that the Grievor's services were indeed required and that his request for unpaid leave of absence could simply not be accommodated through deployment of available staff.
Moreover, while the Grievor had assumed the post of Union representative on the "Comite Principal de Sante et Securite", and while it was important that he attend a course of instruction such as the one offered on the days of November 11, 12 and 13, 1992, it was established that this same course is available at other times of the year. In point of fact it is offered three times annually and there is nothing to suggest that the Grievor's attendance at the particular session scheduled for November 11, 12 and 13, 1992, was a matter of any great urgency. To be sure it was important that the Grievor receive the instruction that he sought but it does not follow that it was imperative that he receive such instruction at a time when his absence from work would prove prejudicial to the Corporation and its operational requirements.
This is not a case where the Grievor had submitted his request for an unpaid leave of absence well in advance of the intended absence. Rather his request was made only one week prior to the commencement of the period of intended absence and at a time when his services could not be spared. Given the Corporation's operational requirements at the time, as these have been demonstrated by evidence, and the reasons presented for absence, the conclusion of the Tribunal must be that the Corporation acted reasonably and in accordance with its rights under the Collective Agreement in refusing the Grievor's request. This being the case the issue which presents itself is whether there could have existed any justification for the Grievor's actions following the rejection of his request for leave.
As the Tribunal has stated the position adopted by the Corporation was without any doubt a reasonable one. The Grievor knew that his services were required because of the Corporation's need to meet delivery deadlines under the project on which he was working. He acknowledges that the position of the Corporation was made clear to him on November 6, 1992. Furthermore he knew that the course of instruction for which the unpaid leave was being sought was available at other times as well.
It follows that the Grievor knew or must be deemed to have known that the Corporation's rejection of his request was not clearly arbitrary or clearly in violation of his rights under the Collective Agreement. Under such a circumstance it would have been incumbent upon him to have accepted the Corporation's refusal of his request at the time and take issue with same through resort to the grievance and arbitration procedure. A well established principle of grievance arbitration enunciated by Professor Palmer in his work Collective Agreement Arbitration in Canada dictated as much. It is described by Professor Palmer in the following terms:
Several cases have held that the taking of a leave of absence after permission to take one has been withheld amounts to insubordination. One arbitrator explains:
Is it trite law that a conscious refusal to carry out a company order mounts to insubordination and has, in countless cases, been found to warrant discharge as an appropriate penalty. It is perhaps appropriate to recite once again the oft quoted dictum from Re U.S.W. and Lake Ontario Steel Co. Ltd., (1968), 19 L.A.C. 103 (Weiler) (at pp. 107-8, quoting from Ford Motor Co. 3 L.A. 779):
But an industrial plant is not a debating society. Its object is production. When a controversy arises, production cannot wait for exhaustion of the grievance procedure. While that procedure is being pursued, production must go on. And someone must have the authority to direct the manner in which it is to go on until the controversy is settled. That authority is vested in supervision.
It must be vested there because the responsibility for production is also vested there; and responsibility must be accompanied by authority. It is fairly vested there because the grievance procedure is capable of adequately recompensing employees for abuse of authority by supervision.
The result must be that the Grievor's actions amount not only to the taking of an unauthorized leave of absence but to insubordination as well and this being the case the Tribunal is unable to take issue with the Corporation's assessment of twenty demerit marks against the Grievor's record. In this latter regard it was shown that the Corporation has assessed twenty demerit marks for similar misconduct in the past so that the penalty, from all appearances, would not appear to be disproportionate to the misconduct which it was intended to address.
In coming to the conclusion which it has, the Tribunal has not ignored the Grievor's argument that the investigative process to which he was subjected following the incident was unfair because the manager of the project to which he was assigned, whose testimony may have been relevant to the Corporation's ultimate decision, played a significant role both in the investigation and in the decision that followed.
While in particular circumstances it may be inappropriate for an investigation to be conducted by a superior who may possess, as well, relevant information in regard to the incident under investigation, the facts in this case are clear and the manager's involvement in no way impacts upon the manner in which the Grievor's actions have been characterized nor can it raise any issue of fairness. Indeed, there is virtually no contradiction in the evidence on any material issue of fact. Accordingly the comments of the arbitrator in the decision of Ontario Northland Railway and Transportation Communications' Union (BACFC No. 2323) would find application to the circumstances of the present case.
As a matter of general principle there is nothing inconsistent with the concept of a fair and impartial investigation merely by virtue of the fact that the investigation is conducted by an employee's immediate supervisor, even where that supervisor has prior information about the incident under investigation, provided by other individuals.
Nor has the Tribunal ignored the Grievor's argument that the provisions of Sections 136 to 147 of the Canada Labour Code obligate employers to facilitate the attendance of courses of instruction by employees occupying positions such as the one held by the Grievor. The Tribunal takes no issue with the importance and desirability of the attendance by the Grievor at such a course. What it does take issue with is the attendance at such a course where such attendance conflicts with his clear obligation under the collective agreement to attend at his work. The obligation of the Grievor here was to attend at his work on the days of November 11, 12 and 13, 1992, because operational requirements were such that his services could not be spared and because it would have been open to him to enroll in the very course of instruction which he sought at some other time. In short the Tribunal regards this final argument of the Grievor as being entirely without merit.
For the foregoing reasons the Tribunal sees no basis for intervention so that the grievance is dismissed.
Montreal, November 30, 1993
(signed) HARMEY FRUMKIN