SHP - 430
IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN NATIONAL RAILWAY COMPANY
(the "Company")
AND
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA CANADA), LOCAL 100
(the "Union")
RE: ASSESSMENT OF FORTY (40) DEMERITS ISSUED CARMAN R PRATT
SOLE ARBITRATOR:
Michel G. Picher
APPEARING FOR THE UNION:
J. R. Moore-Gough – President Local 100
T. Wood – National Representative
R. Hanlon – Vice President Local 100
Ron Bezaire – Local Chairperson
APPEARING FOR THE COMPANY:
Greg Search – Assistant Manager, Labour Relations
Mario Di Donato – Senior Tech. Supervisor, CAR
Mark Stock – Labour Relations Officer
M.A. Skopyk – Mechanical Officer - Great Lakes District
Mike Ingle – Supervisor - Windsor
Terry Lusk – Supervisor - Windsor
A hearing in this matter was held in Toronto on February 28, 1997.
AWARD
The grievor, Carman R. Pratt, contests the assessment of forty (40) demerits for allegedly breaking the gearshift lever on a truck. The dispute and joint statement of issue, filed at the hearing, read as follows:
DISPUTE:
Appeal for the removal of forty (40) demerits assessed Carman R. Pratt for breaking the gear shift handle on vehicle number CN 074686 and subsequent dismissal for accumulation of demerits.
JOINT STATEMENT OF ISSUE:
On June 27, 1995, Carman R. Pratt notified the Company the gear shift lever was broken on CN vehicle #CN 074686.
On July 11, 1995, Carman Pratt was required to attend an investigation to determine his responsibilities in the matter of the damage to vehicle CN 074686 on June 27, 1995.
As a result of the investigation, Carman Pratt was assessed forty (40) demerits for breaking the gear shift handle on CN 074686. Subsequently, Carman Pratt was discharged for accumulation of more than sixty (60) demerits, effective August 2, 1995.
The Union has appealed the assessment of discipline on the basis that Carman Pratt never wilfixlly or deliberately damaged the gear shift lever and that the assessment of forty (40) demerits was unjust.
There is no dispute that the gearshift lever on a yard repair truck assigned to the grievor was broken of on June 27, 1995. The yard repair truck in question, which was relatively new, had a feature which prevented its being shifted from park into drive without the brake pedal first being applied. It is also not disputed that when the new trucks were brought on stream the grievor complained that they should have running boards installed to assist employees getting in and out of them. Not long before the incident giving rise to this grievance his request was declined.
[page 2]
It is common ground that Mr. Pratt was the only witness to the incident involving the breaking of the gearshift handle. During the course of the disciplinary investigation conducted by the Company Mr. Pratt related that as he was getting into the truck he lost his balance and began to fall outwards. He states that he believes that he must have reached for the gearshift handle and either hit it or pulled it. According to Mr. Pratt he attempted to enter the truck by taking hold of the steering wheel and hopping up onto the seat. As his hip hit the side of the seat, however, he was propelled backwards out of the truck.
His supervisors did not believe him. Firstly, they were perplexed by his assertion, during the course of his statement, that he had also bent the steering wheel. When he was reminded that his reporting of a bent steering wheel had in fact been made on two prior occasions, before the incident in question, he stated "I actually bent it three times, and it is still bent to this day." In fact, the evidence does not suggest that there was any bending or damage to the steering wheel itself.
[page 3]
Because of its concerns, the Company had tests conducted on the broken gearshift handle. The report which it received from the laboratory of a subsidiary company indicated that the handle was broken by being forced upwards. The Company concluded that the grievor’s account of events was inconsistent with that finding. In the belief of its supervisors, Mr. Pratt’s account of the incident would have forced the lever downwards, rather than upwards. Based on previous incidents of deliberate damage to Company property by the grievor, and its view of the uncertainty of his account of the incident, the Company assessed forty (40) demerits against him for damage to the gearshift handle.
The Arbitrator can readily understand the suspicions entertained by the employer. It no doubt believes that Mr. Pratt may have fabricated the incident to justify his previous rejected claim about the need for a running board on the truck in question. The fact remains, however, that a board of arbitration cannot convert suspicion into legal conclusions without reasonably compelling evidence. Deliberate sabotage of company equipment, or its negligent destruction, is a serious charge deserving of a commensurate standard of proof. In the case at hand, given that the only direct evidence is that of the grievor, that standard is not made out. It seems to the Arbitrator that the findings of the laboratory might be consistent with the evidence of Mr. Pratt, depending on the nature of the motion he may have been involved in, assuming that he is truthful about having fallen out of the truck. On the material before me I am not prepared to conclude, as the Company might believe, that Mr. Pratt staged the incident and destroyed the gearshift handle either to get even with his supervisors or to make a point about his earlier request for a running board.
[page 4]
For the foregoing reasons the grievance must be allowed. The Arbitrator directs that the forty (40) demerits assessed against Mr. Pratt be removed from his record forthwith. This conclusion, does not, however, justify the reinstatement of the grievor into his employment, given the disposition of other grievances heard simultaneously, and the overall accumulation of demerits by the grievor.
Dated at Toronto this 10th day of March, 1997.
(signed) MICHEL G. PICHER
ARBITRATOR