SHP 582

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 25 DEMERITS ASSESSED KEN HEWITT
AND HIS SUBSEQUENT DISCHARGE FOR ACCUMULATION OF DEMERITS

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 twenty-five demerits against the record of Carman Ken Hewitt for conducting the inspection of a train in a manner contrary to Company policies and Transport Canada regulations. That assessment resulted in the grievor’s discharge for the accumulation of demerits in excess of sixty, to the level of eighty demerits. The Statement of Fact and Issue filed before the Arbitrator at the hearing in relation to the issues in the case at hand reads as follows:

DISPUTE:

Discipline – Carman Ken Hewitt’s Record being debited 25 demerits and his subsequent dismissal on August 14, 2002.

STATEMENT OF FACT:

On August 14, 2002, Carman Ken Hewitt’s Record was debited 25 demerits for:

“… performing an inbound safety train inspection while operating an ATV on May 2nd, 2002, contrary to and in violation of Company policies and Transport Canada Regulations, at Toronto Terminal.”

On August 14, 2002, Carman Ken Hewitt was advised that:

“… you have been dismissed from the Company serviced for the accumulation of demerit marks in accordance with the Brown System of Discipline.”

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.

· Carman Ken Hewitt was treated in an arbitrary, discriminatory and an excessive manner in regard to the 25 demerits debited against his record.

· Carman Ken Hewitt was treated in an arbitrary, discriminatory and an excessive manner in regard to his dismissal

Therefore, with regard to the foregoing, it is the position of the Union that the discipline of 25 demerits debited against Carman Ken Hewitt should be removed from his record and he 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 money owing.

The Company denies the Union’s contentions and claim.

            The evidence confirms, beyond controversy, that the grievor was observed performing an inbound safety train inspection on May 2, 2002 while riding alongside of the train on an all-terrain vehicle.

            Considerable evidence was addressed to the issue of the performance of inbound train inspections at Toronto while riding an ATV to perform the visual inspection. It does not appear disputed that at one time such inspections were authorized, it being understood that employees would dismount from the vehicle to inspect car couplings and to more closely examine any irregularities which might be apparent in the undercarriage of a rail car. Indeed, it does not appear disputed that the grievor was originally trained to inspect trains using an ATV.

            The Arbitrator heard extensive evidence from a number of witnesses concerning the use of ATVs in train inspections by carmen. As noted, such inspections were at one time permitted. It does not appear disputed, however, that in or about the mid-1990s the Company received a citation from Transport Canada which essentially directed that inbound train inspections were not to be performed by employees riding ATVs. To that effect the Company presented in evidence a number of bulletins addressed to Mechanical Department employees which clearly state that train inspections are to be performed on foot, and not on a vehicle. In that regard, for example, a bulletin dated February 1, 2001 addressed to all staff by Manager R.E. Degnan states, under the heading “Work Instructions”, in relation to train inspections:

Note that this MUST be a walking inspection of the train. Motorized inspections are NOT permitted.

(original emphasis)

            The grievor claims that to have had no knowledge of the rule referred to in the bulletin, and asserts that he and other employees were consistently assigned to perform ATV inspections of trains with the full knowledge and consent of yard supervisors. A number of supervisors gave evidence to the contrary. On the whole, the Arbitrator is satisfied that there was a degree of laxity in the work place with respect to the enforcement of the regulation that inbound train inspections are to be performed on foot, and not by the use of an ATV. I have some difficulty, however, accepting the evidence of the grievor to the effect that he had no knowledge whatsoever of the rule.

            A witness called on behalf of the grievor, whom the Arbitrator judges to have given candid and honest testimony, acknowledged his own understanding  that ATVs are not to be used in the performance of train inspections. Mr. Gord Bullock, employed since 1987, who has performed relief supervisor duties, testified that ATVs are frequently used to perform train inspections. He relates, however, that it was understood that ATV inspections were contrary to Transport Canada directives and, according to his evidence, whenever he was aware of the presence of Transport Canada inspectors in the yard he would not perform a train inspection utilizing an all-terrain vehicle. His evidence, which the Arbitrator accepts, is that to some degree the rule against using ATVs in train inspections has not been rigorously enforced. Mr. Bullock made it clear that his testimony was prompted by what he viewed as the unfairness of the discipline assessed against the grievor, and another employee, Mr. C. Sawchuck, as a result of their being observed inspecting a train while on ATVs in the Toronto Yard on May 2, 2002.

            While the Arbitrator appreciates the view expressed through the testimony of Mr. Bullock, the focus of this award must be the issue of whether the Company was justified in assessing demerits, at whatever appropriate level, against the grievor in the circumstances disclosed. The evidence before the Arbitrator confirms that Process Manager Chris Bartley, who observed the grievor and Mr. Sawchuk on the day in question, had conducted a job briefing at the start of their shift during which he indicated to them that Transport Canada would be on the premises doing an audit on that day, and reminding the six carmen, including Mr. Sawchuck and Mr. Hewitt, that ATVs were not to be used during inspections and brake tests.

            I am satisfied, on the balance of probabilities, that the prohibition against the use of ATVs in train inspections, being contrary to Transport Canada directives, was well known among all employees in the workplace, including the grievor. While there may have been some extensive disregard of that rule, the evidence is far from clear to what degree local supervisors were aware of it, having regard to the visibility and sight lines in and around train inspection locations, and to the fact that ATV vehicles were often assigned to carmen to access the trains they were directed to inspect. On the whole, therefore, I am satisfied that employees in the workplace knew, or reasonably should have known, that they rendered themselves liable to discipline for performing inbound train inspections from ATVs, rather than on foot, as required by the bulletins referred to above, and in compliance with the directives of Transport Canada.

            Would a violation of the rule, in and of itself, constitute just cause for discharge? Probably not. That is not the issue in the case at hand, however. For reasons reviewed in companion arbitrations issued on the same date at this award, the fact is that the grievor had an extremely negative disciplinary record over the some fifteen years of his service, and stood at fifty-five demerits on the day of the events leading to the assessment of twenty-five demerits against him, and his resulting termination from employment. The position argued by the Union on behalf of Mr. Hewitt, in a thorough and considered presentation by the bargaining agent, would effectively ask the Arbitrator to conclude that the grievor should have been subject to no discipline whatsoever on the day in question. I cannot sustain that view. Even accepting that there had been a degree of tolerance which would mitigate against the severity of the penalty for a violation of the rule against performing inspections from an ATV, the totality of the evidence leads to the inevitable conclusion that all employees knew, or reasonably should have known, that that practice was not permitted, even though it might have been tolerated or ignored by some supervisors. The ultimate fact is that an employee conducting a train inspection from an ATV did so at his or her peril.

            Unfortunately the grievor, by reason of his prior discipline, was in a situation of extreme peril, as the assessment of only five demerits would suffice to place him in the dismissible position of having accumulated sixty demerits. More importantly, he came to that dubious position after recording an extremely negative discipline record over the entire period of his employment. The record discloses that the grievor was disciplined on some sixteen separate occasions over the years of his service, having been the recipient of a total of some 194 demerit marks. Nor were the incidents in which he was involved trivial, as many of them concerned either unsafe practices or gross disrespect for supervisors and other employees. To put it simply, the grievor was in an extremely precarious disciplinary position, and not well positioned to invoke principles of equity in his favour should he run afoul of Company rules or supervisory instructions. Unfortunately that is what he did on the day in question.

            On the whole, the Arbitrator is satisfied that the grievor did make himself liable to discipline. Given that the assessment of as few as five demerits would have resulted in his discharge, the Arbitrator does not consider it appropriate to reduce the twenty-five demerits assessed against Mr. Hewitt on this occasion. As noted in the companion awards issuing on the same date as this award, the efforts of the Company over a substantial number of years to correct the grievor’s workplace conduct through progressive discipline have not led to his rehabilitation. In the circumstances, the Arbitrator can see no basis upon which to reverse the decision of the Company in the case at hand.

            For all of these reasons the grievance must be dismissed.

Dated at Toronto, this 15th day of March 2004

                                                                               (original signed by) MICHEL G. PICHER

                                                                                                      ARBITRATOR