BETWEEN

(the "Company")

AND

(the "Union")

Sole Arbitrator: Michel G. Picher

A hearing in this matter was held in Montreal on Monday July 21, 1997.

This is the arbitration of two grievances against the assessment of twenty-five demerits for allegedly poor work performance and ten demerits for a violation of flagging rules, coupled with the discharge of the grievor for the accumulation of a total of sixty-nine demerits. The Joint Statements of Facts and Issue files at the hearings read as follows:

The Arbitrator deals firstly with the issue of the grievor’s work performance on May 8, 1993. It is common ground that he was assigned to Hochelaga Yard on the 2300 - 0700 shift on that date. He proceeded to the yard in a Company truck with his work mate, Carman R. Villeneuve. The material before the Arbitrator establishes, beyond dispute, that local Company policy requires that two carmen be utilized to inspect trains in Hochelaga Yard. It appears that upon arriving at the yard office, the two employees were made aware by Yard Coordinator Michel Plante that they would be responsible for the inspection of two trains, train 503, which was being assembled in the Hochelaga yard, and train 509, which was to be inspected at the Montreal Wharf.

There is a discrepancy in the account of what transpired, as between the evidence of Mr. Coady, and that of Mr. Villeneuve. Mr. Villeneuve stated at the investigation that they were instructed by Mr. Plante to proceed to inspect a partial cut of some twenty-eight cars for train 503, which were then ready, although a further cut of twenty-eight more cars was to be added later. Mr. Villeneuve related that he left the yard office to do the inspection, expecting Mr. Coady to accompany him. He stated that Mr. Coady proceeded downstairs, and he therefore assumed that he was going to the bathroom. In that circumstance Mr. Villeneuve proceeded to inspect the twenty-eight cars, apparently anticipating that Mr. Coady would join him. It is common ground that Mr. Coady did not do so, however, and remained seated in a chair in the yard office for a period in excess of an hour and a half.

The grievor’s account of the events is that Mr. Plante gave the employees the choice of performing the partial inspection on train 503, or awaiting the completion of the assembly of the train before doing their inspection of it. On that basis, he submits that he judged it better to await the full assembly of the train, and was unaware that Mr. Villeneuve had gone alone to perform the inspection, until he returned. It does not appear disputed that the timing of events ultimately resulted in something of a work crisis, as later in the shift both trains 503 and 509 needed to be inspected at or about the same time. In the result, as matters eventually developed, Mr. Villeneuve proceeded to complete the inspection of train 503 in the Hochelaga Yard, on his own, while the grievor was dispatched to the Montreal Wharf to single handedly inspect train 509. As noted above, the inspection of a train at either location by a single carman was contrary to normal practice and Company rules. It appears, however, that the grievor’s supervisors were aware of the problem, and no discipline was issued in respect of that irregularity.

Mr. Coady was disciplined, in part, for failing to work in an adequate manner by making no effort to inspect the partial cut of twenty-eight cars for train 503, at the beginning of his shift when Mr. Villeneuve proceeded to do so alone. If, as Mr. Coady claims, he was clearly given the option of inspecting train 503 only after it was finally assembled, the Company’s position on this aspect of the grievance would be doubtful. On a careful review of the evidence, however, the Arbitrator can find no corroborative support for Mr. Coady’s account of these events. There is nothing in the report of Yard Coordinator Plante or in his evidence at the hearing to suggest that he gave the employees a blanket choice as to whether they should await the final assembly of train 503 before performing their inspection. At most he acknowledged that a ten or fifteen minute wait might not be inappropriate. Perhaps most significantly, the statement of Carman Villeneuve, which I take to be fair and candid in the circumstances, is equally devoid of any reference to such a choice, or the discussion of any options whatsoever. In Question and Answer 16 of his statement Mr. Villeneuve states, in part: "Supervisor M. Plante instructed me to inspect twenty-eight cars on train 503 …" A review of Mr. Villeneuve’s statement reflects that he believed that his mate, Mr. Coady, had gone to the bathroom, and that while he was inspecting the engineman’s side of train 503, he was under the impression that Mr. Coady must be inspecting the diesel helper’s side.

The Arbitrator finds it impossible to reconcile the statement of the grievor with that given by Mr. Villeneuve, as well as Mr. Plante. I am satisfied, on balance, that the yard coordinator did not give the employees an unqualified option with respect to the inspection of the twenty-eight cars, and that, as evidenced in Mr. Villeneuve’s statement, they were expected to proceed to work within a reasonable time. In the result, I am satisfied that the Company has established that Mr. Coady loitered unduly for a substantial period of time in the yard office when he knew, or reasonably should have known, that he should be accomplishing productive work in relation to train 503.

The Union submits that the Company failed to abide by the standards of a fair and impartial investigation in respect of this part of the discipline assessed against Mr. Coady. Specifically, its representative submits that Mr. M. Wilken, the grievor’s supervisor, should not have been the individual to take the investigatory statement of the grievor, as he was himself a participant in the events of that evening. In fact the evidence does disclose that the grievor was involved in telephone calls with Mr. Wilken during the course of his shift. The Arbitrator cannot agree, however, that his involvement in those conversations, which related more narrowly to the problem of the grievor being assigned alone to do the inspection of train 509 at the Montreal Wharf, is such as to disqualify Mr. Wilken from conducting the investigation, as it related to Mr. Coady’s loitering in the office and failing to assist in the inspection of train 503, an event which occurred substantially earlier during the course of the shift. To the extent that the failure of the grievor to perform work on train 503 is the basis of discipline against him, there was no material involvement by Mr. Wilken which would disqualify him from acting as the investigating officer. In the Arbitrator’s view the circumstances of this case are substantially distinguishable from those which led to contrary conclusions in such prior awards SHP 432, CROA 1720 and CROA 2041.

A further aspect of the discipline against the grievor arises from the events of the following day, March 9, 1993. The Arbitrator is satisfied, on the balance of probabilities, that upon the completion of the inspection of cars on trains 503 and 509, Mr. Coady, and his work mate on that shift, Mr. W. Caroline, returned to the yard office to fill out forms. While they were doing so it appears that Mr. Caroline asked the grievor if he had applied tie wraps on the head end. Mr. Caroline’s account includes the following:

It is not denied that the grievor broke the pencil which was being held by Mr. Caroline, and that they had an exchange of words with respect to the question put to the grievor by his work mate about the tie wraps. While there is some difference between the parties as to whether Mr. Coady grabbed the pencil from Mr. Caroline’s hand and broke it, or broke it while it was still being held by Mr. Caroline, I find the distinction between the two possible events to be insignificant, if not immaterial. The evidence establishes, beyond controversy, that the grievor engaged in what could only be characterized as an intimidating gesture during the course of a strong verbal disagreement with a fellow employee. When regard is had to the grievor’s record, the Arbitrator is satisfied that it was appropriate for the Company to take some disciplinary action in relation to that incident. The evidence discloses that on two other occasions the grievor has been disciplined for unacceptable comments. On February 27, 1987 Mr. Coady was assessed ten demerits for "indecent conduct towards a supervisor." Further, albeit in an incident subsequent to the case under study, the grievor was assessed twenty demerits, which were not grieved to arbitration, for an incident on April 18, 1995, which involved "… inappropriate comments towards an fellow employee and the physically grabbing this employee by the collar and throwing him to [the] ground resulting in injury to the employee …". While the latter incident occurred subsequent to the incident of March 8, 1993, it is not inappropriate for the Arbitrator to have regard to all events in the grievor’s record for the purposes of assessing the appropriateness of discipline. At a minimum, it would appear that the Company’s disciplinary response to the pencil breaking incident did not have an overwhelming deterrent effect on the grievor for the purposes of the subsequent assault of a fellow employee some two years later.

For the reasons related, I am satisfied that the Company has discharged the onus of establishing that the grievor failed to discharge his work obligations on March 8, 1993, and engaged in unacceptable behaviour towards another employee on the following day. Notwithstanding the length of the grievor’s service, his prior record would suggest that the assessment of twenty-five demerits was within the appropriate range of discipline for the grievor’s conduct, taken as a whole. The Arbitrator is not, therefore, inclined to disturb that result.

I turn to consider the next head of discipline, involving the failure of Mr. Coady to provide proper blue flag and blue light protection on or about June 4, 1996 at St-Luc Yard. The evidence discloses that on that occasion the grievor and fellow carman R. Benoit were assigned to inspect cars on track D-15. They proceeded to that location in an all-terrain vehicle, which they eventually located between tracks D-14 and D-15. As that was an extremely narrow space, they effectively fouled the tracks. Train 125 then entered track D-14, which was not flagged, and stopped only upon seeing the light of the carmen’s vehicle, some 100 feet away.

It is not disputed that the grievor should have applied blue flag or blue light protection on track D-14, and should not have located their "mule" vehicle where they did. The sole issue is whether the assessment of ten demerits, resulting in the discharge of the grievor for the accumulation of sixty-nine demerits was an appropriate disciplinary response in the circumstances. Upon a careful review of the material filed the Arbitrator is satisfied that there are mitigating factors which would suggest that the Arbitrator’s discretion to reduce the penalty can fairly and properly be exercised in the circumstances of this case. Firstly, it does not appear substantially disputed that for a number of years the failure to properly provide a blue flag for track protection, while treated seriously, was not normally dealt with by the assessment of ten demerits in all cases. It seems, however, that commencing in 1994, prior to the incident giving rise to this grievance, that at least two employees received demerits for a similar infraction. Of more importance, I think, is the length of the grievor’s service, and the fact that his record is devoid of any prior infraction involving the failure to properly protect his work area with blue flags or blue lights. This is, in other words, a first offence by the grievor with respect to the flagging obligation found within rule 42 of the collective agreement. Significant, as well, is the fact that the grievor had almost twenty-five years of service at the time he was assessed the demerits which led to his discharge for accumulation. While the Arbitrator has no difficulty accepting that it is appropriate for the Company to assesses demerits for the failure to provide flagging protection vital to the safety of carmen’s operations, it is less than clear that the incident in question could not, in light of the grievor’s long service, have been adequately dealt with otherwise, and in particular by the assessment of a lengthy suspension to bring home to the grievor the precariousness of his record and the importance of working safely. In light of the rather negative quality of the grievor’s record, however, the Arbitrator is not persuaded that this is an appropriate case for compensation.

For all of the above reasons the grievance is allowed, in part. The Arbitrator directs that Mr. Coady be reinstated into his employment, without compensation for wages or benefits lost, and without loss of seniority. His disciplinary record shall stand at fifty-nine demerits with the period of time between his termination and his reinstatement into employment to be recorded as a suspension for his failure to provide blue flag protection on June 4, 1996 at St-Luc Yard.

I retain jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this award.

Signed at Toronto, 24 day of July, 1997