BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Michel G. Picher

A hearing in this matter was held in Toronto on February 28, 1997.

This grievance concerns the assessment of fifteen demerits for the alleged failure of the grievor to complete his work assignment. The dispute and joint statement of issue read as follows:

The evidence before the Arbitrator confirms that on June 19, 1995 Carman Pratt was assigned to repair an uncoupling lever on a rail car situated on Track W-114 in the Van de Water yard at Windsor. Some thirty minutes following the assignment he indicated to the yard coordinator that he was unable to perform the repairs, asking that the car be moved. Shortly thereafter he sought to Bad Order the car in question, informing Supervisor D. Carrie that the torch hose on his repair truck would not reach the car at its location on Track W-114.

[page 2]

Shortly thereafter, at 13h55 the grievor’s supervisor, Mr. Mike Ingle, dispatched two other carmen to perform the repair at the same location. Using the same yard repair truck which the grievor had previously utilized, the two carmen were able to repair the uncoupling lever with no difficulty. Specifically, the torch hose apparently had no difficulty reaching the car in question.

The grievor, whose evidence the Arbitrator finds implausible, states that the hose was able to reach the car when the other two carmen performed the work only because he was also present, and stood in a ditch between the truck and the track, holding the torch hose above his head. The Arbitrator has substantial difficulty with that explanation. Firstly, Mr. Ingle, who was also present, states that the grievor was not so positioned, and that there was no difficulty reaching the car to be repaired. Further, photographs placed in evidence by the Company, indicating a simulation of the repair of a car at the same location, plainly indicate that there is no difficulty for a normally equipped truck to service the track in question.

When the disciplinary investigation conducted by the Company is reviewed closely, there is substantial doubt raised by the explanations given by the grievor. Firstly, he asserts that the repair truck which succeeded in getting the job done was in fact parked in the ditch, a fact which he subsequently modifies in later answers. Still later in the interview he indicates that he was reluctant to work alone using the cutting torch without someone standing watch in case a fire should start. There is nothing, however, in the record to suggest that he gave that explanation to his supervisor, or anyone else, when he indicated that the car could not be repaired and that it should be Bad Ordered. On the whole, I am compelled to conclude that the grievor’s answers to the Company’s inquiries were improvised, and are highly unreliable, in light of the preponderance of the evidence adduced.

[page 3]

Notwithstanding the above conclusions, the Arbitrator must consider whether the discipline assessed against the grievor in the instant case is null and void. The Union objects that the grievor was denied a fair and impartial investigation, in keeping with rule 28.1 of the collective agreement which provides as follows:

It is not disputed that the disciplinary investigation was chaired by Supervisor Ingle. As noted above, Mr. Ingle was himself present at the time the work was finally performed by the two carmen dispatched after the grievor’s claim that he could not do the work because the torch hoses were too short. Unfortunately, at the stage of the arbitration hearing there is a clear dispute between Mr. Ingle and the grievor as to whether he was himself involved in holding the hoses so as to allow them to reach the point of repair when one of the other two carmen was doing the work. As the length of the hoses and their ability to reach the repair point was at the heart of the issue, it is difficult to understand how Mr. Ingle, who was a witness and had an obviously different recollection than the grievor, could himself be charged with conducting the investigation in a fair and impartial manner. As reflected in CROA 1781, the standard of a fair and impartial investigation is violated when the investigating officer is a participant in the events in question, absent unusual or mitigating circumstances. Moreover, this is not a case, as was found in CROA 1720, where the facts critical to the dispute were not in question. I must therefore conclude that the discipline is null and void.

[page 4]

For the foregoing reasons the grievance must be allowed. The Arbitrator directs that the fifteen (15) demerits assessed against Carman Pratt be removed from his record. In light of the disposition of other grievances, however, the outcome in this award provides no basis for the reinstatement of the grievor.

Dated at Toronto this 10th day of March, 1997.