IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN PACIFIC RAILWAY COMPANY
MECHANICAL SERVICES
(the "Company")
AND
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
(the "Union")
GRIEVANCE RE DISCHARGE OF
ENGINE ATTENDANT ROBERT LOCHRIE
Sole Arbitrator: Michel G. Picher
Appearing For The Company:
John H. Bate – Labour Relations Officer, Calgary
Randy Congdon – Service Area Manager, Poco
Syd Allison – O. C. Supervisor, Port Coquitlam
Dave Milne – Production Manager Mechanical, Port Coquitlam
Appearing For The Union:
Brian McDonagh – National Representative
Vinod Gill – Vice-President, Pacific Region, CAW Local 101
Marc Ross – Local Chair, CAW Local 101, Coquitlam
Tom Murphy – President, CAW Local 101, Calgary
Brian Harding – Financial Secretary
R. Lochrie – Grievor
A hearing in this matter was held in New Westminster, B.C., on May 30, 2003.
AWARD
This arbitration concerns the discharge of Engine Attendant R. Lochrie of the Coquitlam Diesel Shop. The background to the termination of the grievor’s employment is related in the Joint Statement of Fact and Issue filed at the hearing, which reads as follows:
DISPUTE:
Dismissal of Engine Attendant R. Lochrie of Coquitlam Diesel Shop, Coquitlam BC.
STATEMENT OF FACT:
On February 1, 2002 Engine Attendant R. Lochrie’s record was debited 20 demerits for:
“… failure to properly shut off a fuel nozzle resulting in the release of 910 litres of diesel fuel at the Coquitlam diesel facility on December 10, 2201.”
On February 1, 2002 Engine Attendant R. Lochrie’s record was debited a further 20 demerits for:
“… failing to ensure a locomotive was properly secured resulting in damage to a roll-up door at Coquitlam diesel facility on December 13, 2001.”
On February 1, 2002 Engine Attendant R. Lochrie was dismissed from service for:
“… an accumulation of demerit marks under the Brown System of Discipline, Coquitlam, British Columbia, February 1, 2001.”
STATEMENT OF ISSUE:
It is the contention of the Union that:
· The Company did not establish wrong doing on Engine Attendant R. Lochrie’s behalf sufficient to give the Company cause to dismiss him
· Engine Attendant R. Lochrie was treated in an arbitrary, discriminatory and an excessive manner in regard to the demerits issued and to his dismissal.
Therefore, with regards to the foregoing, it is the Union’s position that Engine Attendant R. Lochrie should be returned to duty forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including but not limited to, interest on any monies owing.
The Company denies the Union’s contentions and claim.
It is not disputed that the grievor was liable to some discipline for both of the incidents described in the Joint Statement of Issue. With respect to the first incident, which occurred on December 13, 2001, Mr. Lochrie was the ground person involved in the movement of locomotives in and out of the Coquitlam Diesel Shop. A switcher locomotive with an engine attendant in control, relying on the directions of the grievor, came into the shop to pull out locomotive CP 9661 from the west end of the shop. As the locomotive attempted to couple onto CP 9661 it had the effect of transferring momentum to locomotive CP 9621 which was at the east end of locomotive CP 9661, but was not coupled to it, even though it had that appearance. In the result, because the knuckle pin was not in place holding the two locomotives together, the knuckle opened and CP 9621, which was not properly tied down by hand brakes, rolled free, damaging the east end door of the facility. It is not disputed that Mr. Lochrie was responsible for ensuring that the locomotives were properly coupled, and that they were also properly secured by the application of hand brakes. His failure to verify the condition of the locomotives inside the shop clearly resulted in the bumping and movement of CP 9621 and the ensuing damage to the east end door of the Coquitlam Diesel Shop.
The second incident concerned a fuel spill which occurred when the grievor was working overtime on the 15:00 to 23:00 shift on December 20, 2001. His duties then involved servicing, fuelling and sanding locomotives. It is not disputed that after fuelling a locomotive Mr. Lochrie failed to properly secure the nozzle on the east end fuelling unit. Shortly thereafter, when he restarted the pump and pulled the trigger on the west end nozzle to do another fuelling operation, some 910 litres of diesel fuel escaped through the east end nozzle, spilling onto the floor of the diesel facility. It is not disputed that there was no environmental damage, due in part to the protective design of the facility, and the fact that the grievor was alerted to the spill within minutes and was able to shut down the fuel pumps.
Prior to these incidents the grievor had thirty-five demerits registered against his record. The material before the Arbitrator notes that he had previously been reinstated into his employment following an incident relating to the possession of drugs, but there is no suggestion of any violation of the terms of that reinstatement in the case at hand. In the result, the assessment of twenty demerits for the incident involving damage to the door and a further twenty demerits for the fuel spill caused the grievor’s record to reflect a total of seventy-five demerits, thereby placing him in a dismissible position.
In the Arbitrator’s view it was not unreasonable for the Company to assess demerits in both instances. The real issue is whether it is appropriate in these circumstances for the Arbitrator to exercise his discretion to substitute a form of discipline less serious than discharge.
In considering that issue there are mitigating factors to be considered. Firstly, while the grievor’s record is not without blemish, it appears that he incurred discipline on no more than five occasions in a period of long service. It is common ground that the grievor has been in continuous employment with the Company for some twenty-four years.
Secondly, the Arbitrator notes the submission of the representative of the Union to the effect that notwithstanding that the incident of the damage to the east end shop door occurred on December 13, there was no indication that the Company intended to investigate that incident until after the incident relating to the fuel spill on December 20, 2001. In fact, it was not until January 12, well after the initial investigation of the fuel spill, which commenced on January 8, 2002, that the Company gave notice to the grievor of the investigation of the incident concerning the door. The Arbitrator finds it difficult to dismiss out of hand the suggestion made by the Union’s representative that in fact the Company did not initially consider the door incident to be sufficiently serious to merit an investigation. It would appear that the Company decided to look further into the door incident only after it had commenced its investigation of the subsequent incident concerning the fuel spill. While the Arbitrator is satisfied that that submission does not confirm that the door incident was not deserving of disciplinary attention, it does suggest that it was not viewed with great urgency by the Company, given that the employer took no steps to investigate that matter for more than one month from its occurrence.
On the whole, and having particular regard to the fact that the grievor is an employee of twenty-four years of service, I am satisfied that this is an appropriate case a substitution of penalty, albeit one that is relatively serious, given the admitted carelessness demonstrated by Mr. Lochrie in both incidents.
For the foregoing reasons the grievance is allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for wages and benefits lost, and without loss of seniority. The time for which the grievor has been out of service, including the time of the investigations, shall be recorded against his record as a suspension, attributed in equal halves to each of the two incidents, and his record shall be corrected to return to its prior status of thirty-five demerits.
The Arbitrator retains jurisdiction should there be any dispute concerning the interpretation or implementation of this award.
Dated at Toronto, this 16th day of June 2003
_____________________________________________
MICHEL G. PICHER
ARBITRATOR