shp 580

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC RAILWAY
MECHANICAL SERVICES

(the "Company")

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
LOCAL 101

(the "Union")

GRIEVANCE RE 10 DEMERITS ASSESSED KEN HEWITT

SOLE ARBITRATOR:                                Michel G. Picher

APPEARING FOR THE COMPANY:

Gilles Pepin                           – Labour Relations Officer, Calgary

John H. Bate                          – Labour Relations Officer, Calgary

John Dubreuil                        – Employee Resources Specialist, Scarborough

Chris Bartley                          – Process Manager, Scarborough

George Anderson                 – Process Coordinator, Scarborough

APPEARING FOR THE UNION:

B. R. McDonagh                    – National Representative, New Westminster

Ron Laughlin                          – Regional Vice-President, Oshawa

Christopher Y. Senior           – Local Representative, Uxbridge

Ken Hewitt                             – Grievor

Hearings in this matter were held in Toronto on March 4 and 5, 2004

AWARD OF THE ARBITRATOR

            This grievance concerns the assessment of 10 demerits to the record of Carman K. Hewitt of Toronto. The outline of the issues in dispute is contained in the Joint Statement of Fact and Issue filed with the Arbitrator at the hearing which reads as follows:

DISPUTE:

Discipline – 10 demerits debited against Carman Ken Hewitt’s Record in April 2002.

STATEMENT OF FACT:

In April 2002, Carman Ken Hewitt’s Record was debited 10 demerits for:

“… causing damage to Company vehicle on March 7, 2002 at Toronto.”

STATEMENT OF ISSUE:

It is the contention of the Union that:

· The Company did not establish wrong doing on Carman Ken Hewitt’s behalf sufficient to give the Company cause to discipline him by debiting his record with 10 demerits.

· Carman Ken Hewitt was treated in an arbitrary, discriminatory and an excessive manner in regard to the 10 demerits debited against his record.

Therefore, with regard to the foregoing, it is the position of the Union that the discipline of 10 demerits debited against Carman Ken Hewitt should be removed from his record.

The Company denies the Union’s contentions and claim.

            The facts in relation to the grievance are not in dispute. The grievor commenced his tour of duty in the Toronto Yard Mechanical Department at or about 15:00 hours on March 7, 2002. Some forty-five minutes into his shift Mr. Hewitt drove a Company truck across a level crossing. In doing so he cut the corner too sharply so that that the passenger side wheels of his vehicle did not cross the boarded section of the crossing, but rather struck against the rails. In the result, both tires on the passenger side of the inspection vehicle were flat, and it does not appear disputed, were damaged beyond repair.

            Following an investigation held on March 21, 2002 the Company assessed ten demerits against the grievor’s record. The Union alleges that the grievor was treated in an arbitrary, discriminatory and excessive manner and that the ten demerits assessed against the grievor were not justified in the circumstances.

            The Arbitrator cannot agree. The evidence indicates that following a morning briefing the grievor was in a state of some agitation. As he drove the vehicle through the yard he was still angry as a result of a verbal exchange with a supervisor, the details of which form the basis of discipline for insubordination and are dealt with in greater detail within a companion arbitration award, following a concurrent hearing of the grievances. Suffice it to say, the evidence leaves no doubt but that the grievor did not exert the degree of care and attention which he owed to the Company in the operation of its vehicle on Company premises on the afternoon of March 7, 2002. The Arbitrator does not deem it necessary to estimate the speed at which the vehicle may have been travelling, or whether, as the Company alleges, the grievor failed to observe a stop sign at the location of the level crossing within the yard. The irrefutable fact is that grievor demonstrated carelessness in the operation of the Company’s vehicle resulting in irreparable damage to two tires on the inspection truck.

            Was the assessment of ten demerits appropriate in the circumstances? In addressing that question regard must be had to the grievor’s prior disciplinary record. Remarkably, the record before the Arbitrator confirms that on three previous occasions the grievor was disciplined for the unsafe operation of a Company vehicle. Hired in 1987, the grievor cannot claim a substantial longevity of Company service. Assessments of five demerits had previously been made against Mr. Hewitt for the unsafe operation of an ATV vehicle in December of 1988, December of 1989 and November of 1990. The material before the Arbitrator confirms that the assessment of ten demerits has been applied to other employees involved in vehicle accidents resulting in damage to Company equipment. On the whole I am satisfied that ten demerits was well within the appropriate range of discipline, and that the Company’s decision in that regard should not be disturbed. The Arbitrator can see nothing within the material which would justify a conclusion that that the Company’s actions were discriminatory, arbitrary or in bad faith.

            The grievance must therefore be dismissed.

Dated at Toronto, this 15th day of March 2004

                                                                               (original signed by) MICHEL G. PICHER

                                                                                                      ARBITRATOR