SHP - 432
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 FIVE (5) 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
This grievance concerns the assessment of five (5) demerits for an alleged failure to complete an assignment. The Ex Parte Statement of Dispute and Statement of Issue, filed by the Union, reads as follows:
DISPUTE:
Appeal of the discipline of five (5) demerit assessed to Carman R. Pratt for his "alleged failure to complete his assignment on May 24 and failure to complete his assignment in a timely manner on May 25, 1995."
UNION’S STATEMENT OF ISSUE:
On May 24, 1995, at 0800 hours Carman R. Pratt reported for work on Track W-113 and at 0930 hours he was assigned repairs on a number of rail cars.
At approximately 1330 hours, Mr. Pratt was given an additional eight cars on Track W-225 for repairs.
On May 25, 1995, at 0800 hours, Carman R. Pratt reported for work and at 0900 hours, he was assigned a number of repairs to rail cars.
On June 15, 1995, Carman R. Pratt was required to attend an investigation into his "failure to complete his assignment on May 24 and failure to complete his assignment in a timely manner on May 25, 1995". Carman R. Pratt was assessed five (5) demerits for "failure to follow the instructions of your Supervisor".
The Form 780 was subsequently altered to remove the reference to "failure to follow the instructions of your Supervisor" and such was replaced with "failure to complete your assignment on May 24 and failure to complete your assignment in a timely manner on May 25, 1995".
The Union appealed this discipline on the basis Carman R. Pratt did not receive a fair and impartial investigation, and the Company has not established responsibility on the part of Carman R. Pratt for any culpable offence and such discipline should be removed.
The Company declined the Union’s appeal.
[page 2]
As a preliminary matter the Union objects to the fact that the disciplinary investigation was conducted by a supervisor, Mr. M. Ingle, who was himself a participant in the events concerning the work performed by the grievor on May 24. In the Arbitrator’s view that objection is well founded. Rule 28.1 of the collective agreement provides, in part:
28.1 Except as otherwise provided herein, no employees shall be disciplined or discharged until they have had a fair and impartial investigation and their responsibility established. When an employee is held out of service pending such investigation, the investigation shall not be unduly delayed.
The record discloses that Mr. Ingle, who conducted the investigation, was himself a participant in the events involving the grievor’s work performance on May 24 and 25, 1995. It is not disputed that a second supervisor was available at Windsor to conduct the investigation. As established in CROA 1720, as a general rule, particularly where issues of fact may be in dispute, a supervisor who is himself or herself a witness to an incident should not conduct the disciplinary investigation in relation to it.
For the foregoing reasons the grievance is allowed. The five (5) demerits assessed against the grievor shall be stricken from his record.
Dated at Toronto this 10th day of March, 1997.
(signed) MICHEL G. PICHER
ARBITRATOR