SHP - 433
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA CANADA), LOCAL 100
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.
This arbitration concerns a grievance against the assessment of forty (40) demerits for abuse of Company property. The dispute and joint statement of issue, filed at the hearing, read as follows:
Appeal of forty (40) demerits assessed Carman R. Pratt for the alleged misuse and negligent handling of Company property on April 25, 1995.
JOINT STATEMENT OF ISSUE:
At approximately 1350 hours on April 25, 1995, Relief Supervisor D. Carrie claims he observed Carman R. Pratt tossing a K.D.T. out of the yard repair truck’s window.
On June 29, 1995, Carman R. Pratt was required to attend an investigation concerning his alleged misuse and negligent handling of Company property on April 25, 1995.
As a result of the investigation, Carman R. Pratt was assessed forty (40) demerits on August 2, 1995, for misuse and negligent handling of Company property on April 25, 1995.
The Union appealed the discipline on the basis the investigation was not conducted in a fair, impartial and timely manner thus the assessment of forty (40) demerits was unjust and should be removed and that Carman R. Pratt be returned to service without loss of seniority, and he be made whole for all lost compensation, benefits and overtime.
The Company declined the Union’s appeal.
The material before the Arbitrator establishes that a K.D.T. is a portable hand-held computer utilized for mobile billing. It is not disputed that the K.D.T. unit which is the subject of this grievance has a value of $8,500.
The record discloses that on April 25, 1995 Carman Pratt was observed seated in his Company truck in the Van de Water yard in Windsor, at approximately 13h50, by Temporary Supervisor D. Carrie. Unobserved by the grievor, the supervisor saw him throw the hand-held computer out of the side window of his truck onto the adjacent paved roadway, some five feet distant from the vehicle. When questioned by the supervisor as to the reasons for his actions, Carman Pratt simply drove away.
The supervisor retrieved the computer and found that it was not damaged. Upon the grievor’s return to the shop, he explained to the supervisor that he had been frustrated because of his inability to get the computer to function.
Some two months later, on June 29, 1995 the Company conducted a disciplinary investigation into the grievor’s negligent handling of Company property. As a preliminary matter the Union objects to the time lapse between the event and the investigation. It cites, in support of its position, CROA 1588, a decision dated December 9, 1986 involving a grievance between the Canadian National Railway Company and the Brotherhood of Locomotive Engineers. In that case the Arbitrator found that the grievor was deprived of a fair and impartial investigation when a lapse of one month occurred between the time he was recorded exceeding a speed limit by his supervisor using radar.
In that case, however, the employee was never advised of his over-speed until the date of the investigation. The Arbitrator therefore found that, with no reason to advert the incident while it was still fresh, the grievor was virtually deprived of any ability to make a defence.
In my view the instant case is substantially different. As the record discloses, Carman Pratt was immediately confronted by Supervisor Carrie at the very time of the incident which became the subject of the investigation several weeks later. Mr. Carrie spoke to Mr. Pratt both at the moment he threw the computer onto the ground, and shortly thereafter, when he returned to the yard. This is not a case, like CROA 1588, therefore, where the employee could conceivably have no reason to remember the events which become the subject of a disciplinary investigation some time later. On the contrary, as Mr. Pratt admitted during the course of the investigation, he took no issue whatsoever with the account of events related in a written report by Mr. Carrie.
Nor can the Arbitrator sustain the Union’s objection relating to the fact that some three separate incident reports were obtained from Mr. Carrie before the investigation was held. A review of the supervisor’s statements sustains the Company’s position that the initial versions of his account were insuficiently detailed to provide the basis for a proper investigation. The Company was, I think, fully entitled to require that the supervisor prepare a suficiently detailed and accurate report prior to giving notice to the employee of the investigation. It also appears that part of the delay was occasioned by Supervisor Carrie being away from work, on vacation. This is not a circumstance, in my view, where the Company can be said to have abused or unduly delayed the investigation process. Nor can there be said to be any prejudice to the grievor by reason of the timing of the investigation.
As noted above, the grievor does not dispute that he threw a valuable computer out of his truck onto a paved surface, apparently out of frustration. In the Arbitrator’s view the Company is correct in its assessment of the grievor’s actions as being extremely serious, given the value of the computer and the general indifference to the employer’s property and equipment shown by Carman Pratt. He was, in the circumstances, plainly deserving of discipline. The issue then becomes the appropriate measure of discipline for the abusive conduct in question. An aggravating factor in the case at hand is the apparent lack of remorse, or even concern, shown by Mr. Pratt during the course of the disciplinary interview. When asked whether he felt that throwing out of the truck window was a responsible act he replied: "I’ve discussed this with my Supervisor which was discussed with Mr. Carrie according to his statement. He told me they were worth $8,000.00. According to me they are worth $0.50 cents." He was next asked if he thought it was unreasonable for the Company to view his conduct as misuse of Company property, to which he answered "Definitely." Finally, when asked what his intentions were in the future he stated "I don’t know. I know a computer is worth $8,500 and not $0.50 cents like I thought."
The indifference displayed by Mr. Pratt during the course of the investigation is close to startling. Unfortunately, it appears to be of a pattern with his prior conduct. The record discloses that on two previous occasions he was disciplined for damage to Company property. On October 11, 1990 he was assessed five (5) demerits for having destroyed a lock, rather than obtaining the key to gain access through a locked door. Further, in August of 1991, when Mr. Pratt received a shock from a welding machine, he proceeded to destroy it, or at least to render it inoperative, by cutting a number its lines. For that he was assessed ten (10) demerits.
Notwithstanding that the grievor is a long-term employee, having been hired initially in March of 1971 by the Penn Central Railway, whose Windsor operation was acquired by CN in 1986, his conduct in the case at hand, and the virtual absence of any mitigating factors, do not give the Arbitrator any meaningful basis upon which to reduce the discipline assessed by the Company. If the grievor is to be taken at his word, as reflected in the disciplinary investigation, he learned nothing from this incident, and appears to remain of the view that the computer was more at fault than he was.
In the result, the grievance is dismissed.
Dated at Toronto this 10th day of March, 1997.
(signed) MICHEL G. PICHER