SHP591

IN THE MATTER OF AN ARBITRATION

 

BETWEEN:

 

††††††††††††††††††††††† CANADIAN NATIONAL RAILWAY COMPANY

††††††††††††††††††††††††††††††† (hereinafter referred to as the "Railway")

 

AND:

 

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW- CANADA), LOCAL 100

††††††††††††††††††††††††††††††††† (hereinafter referred to as the "Union")

 

 

††††††††††††††††††††††††††††††††††††††† (Memorandum of Resolution)

 

 

Arbitrator:††††††††††††††††††††††††††††††††††††††††† H. Allan Hope, Q.C.

 

Counsel for the Railway:†††††††††††††††††††† Donald N. Kruk

Counsel for the Union:††††††††††††††††††††††† Brian R. McDonagh

 

Place of Hearing:††††††††††††††††††††††††††††††† Prince George, B.C.

Date of Hearing:†††††††††††††††††††††††††††††††† February 25, 2003

 


Memorandum of Resolution

 

Preamble

 

[1]†††††††††††††† This dispute involved two grievances brought forward on behalf of the Grievor, J.S. Olaksew.† The first was filed on April 2, 2002 and challenged the imposition of 20 demerits for incidents occurring on October 16 and October 18, 2001 respectively.† The second was filed on March 22 with respect to the imposition of 30 demerits on the Grievor for a similar incident occurring on February 18, 2002.

 

[2]†††††††††††††† In all three instances the incidents involved what the Railway perceived as a refusal to perform a work assignment given to the Grievor in his capacity as a car mechanic in the Prince George Shop.† The assignment in each case was to change wheels on a Coal Train in the yard.

 

[3]†††††††††††††† The Railway completed its submission and the Union completed its Reply to the Railway and its submission.† During a brief adjournment prior to the Railway presenting its Reply, a proposal was initiated for the resolution of the dispute pro tempore.† The proposal was based upon a perception that a resolution of the dispute between the parties would serve their interests better than the adjudication of the dispute.† The substance of the pro tempore resolution are as follows:

 

[a]†††††††††††††† The proceedings are adjourned sine die, subject to recall by either party giving notice of the intention to have them resume.

 

[b]†††††††††††††† The Grievor is to receive accumulated disability benefits as of the date he left active employment.

 

[c]†††††††††††††† The parties differ with respect to the effect the Grievorís current medical restrictions have on whether his resulting disability can be accommodated in Prince George.† The Union position is that the Grievor can be accommodated.† The Railway position is that he cannot be accommodated in Prince George but can be in Edmonton.

 

[d]†††††††††††††† In recognition of the fact that the parties have a different understanding of the medical limitations on the Grievor, the Railway will forthwith deliver particulars of its understanding of his limitations to the Union, including its position with respect to whether those limitations permit him to perform the duties of his classification in Prince George.

 

[e]†††††††††††††† The Union, upon receipt of the particulars from the Railway, will provide a response in which it will outline the Grievorís medical limitations and its position with respect to whether they affect his capacity to perform the work of his classification in Prince George.† The response should include any medical opinions upon which the Union relies.

 

[f]††††††††††††††† The parties will appoint a qualified medical specialist to determine the nature and extent of the Grievorís medical limitations, including the potential for a remedial operation to resolve his knee problem.

 

[g]†††††††††††††† In the event the parties are unable to agree on an independent medical specialist, each party will provide a list of acceptable specialists, not to exceed three, and the Arbitrator will appoint a specialist from the list.

 

[h]†††††††††††††† Upon receipt of the independent medical evaluation, the parties will appoint a qualified occupational expert to perform an on site evaluation in Prince George to determine whether the Grievor is able to perform the duties of his classification in Prince George with whatever accommodation is available that meets the statutory and arbitral test of reasonable accommodation short of undue hardship.

 

[i]††††††††††††††† In the event the parties are unable to agree on the application of the opinion of the occupational expert, the issue will be referred to the Arbitrator for determination

 

[j]††††††††††††††† In the event the occupational expert concludes that the Grievor could have performed the duties of his classification in Prince George at the time the dispute arose, he will be compensated for the wage loss he incurred thereafter to the point of his resumption of active employment.

 

[k]†††††††††††††† In the event it is determined that the Grievor was not able to perform the duties of his classification in Prince George at that time, with or without accommodation, he will be seen as limited to compensation in the form of his entitlement to disability benefits.

 

[l]††††††††††††††† In the event the medical specialist concludes that surgical intervention is unlikely to have a positive effect on the Grievorís medical limitations, the status of the Grievor with respect to his ability to perform the duties of his position in Prince George will be as determined by the occupational expert.

 

[m]††††††††††††† In the event the medical specialist offers an opinion that surgery on the Grievorís knee or knees will have a positive impact on the extent of his medical limitations, the parties will cooperate in an effort to have the necessary surgery made available at the earliest possible time, following which his fitness to perform his duties in Prince George, with or without accommodation, will be assessed by the occupational expert.

 

[n]†††††††††††††† In the event of a disagreement with respect to the occupational expertís report, the issue will be referred to the Arbitrator.

 

[o]†††††††††††††† Both parties agree that time is of the essence in the implementation of the Memorandum.† They further agree that they will permit the other party to obtain expert evaluation over and above that outlined for the purpose of addressing the underlying question of the ability of the Grievor to perform the duties of his classification in Prince George, with or without surgical intervention and with or without accommodation, and they will cooperate to facilitate whatever access is required to either the Grievor or the Prince George Shop.

 

[p]†††††††††††††† Any dispute between the parties with respect to any of the components of this pro tempore resolution agreement will be determined by application to the Arbitrator.

 

[q]†††††††††††††† The demerits assessed against the Grievor will be withdrawn from his record subject to his cooperation in the pro tempore resolution process and will be substituted by a disciplinary warning to be prepared by the Arbitrator.

 

[4]†††††††††††††† In administering the Memorandum of Resolution it should be noted that the letter dated June 7, 1999 from J.T. McBain, the Railwayís Senior Vice-President of Operations to other management officials was ruled inadmissible on the basis that it was prejudicial and, in any event, was irrelevant because it was never implemented.† Hence, the documents at Exhibit 32 do not form part of the Record.

 

†††††††††††††††††† DATED at the City of Prince George, in the Province of British Columbia, this __ day of ________, 2003.

 

 

††††††††††††††††††††††††††††††††††††† _____________________________________

††††††††††††††††††††††††††††††††††††† † H. ALLAN HOPE, Q.C. Ė Arbitrator


IN THE MATTER OF AN ARBITRATION

 

BETWEEN:

 

††††††††††††††††††††††† CANADIAN NATIONAL RAILWAY COMPANY

††††††††††††††††††††††††††††††† (hereinafter referred to as the "Railway")

 

AND:

 

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW- CANADA), LOCAL 100

††††††††††††††††††††††††††††††††† (hereinafter referred to as the "Union")

 

 

†††††††††††††††††††††††††††††††††††††††††††††† (Letter of Discipline)

 

 

Arbitrator:††††††††††††††††††††††††††††††††††††††††† H. Allan Hope, Q.C.

 

Counsel for the Railway:†††††††††††††††††††† Donald N. Kruk

Counsel for the Union:††††††††††††††††††††††† Brian R. McDonagh

 

Place of Hearing:††††††††††††††††††††††††††††††† Prince George, B.C.

Date of Hearing:†††††††††††††††††††††††††††††††† February 25, 2003

 


Letter of Discipline

 

[1]†††††††††††††† The Union challenged the imposition of 20 demerits with respect to incidents occurring on October 16 and 18, 2001 respectively, and the imposition of a further 30 demerits on February 18, 2002.† The position of the Railway was that those demerits were properly assessed against the Grievor in response to acts of insubordination consisting of a refusal to perform the role of Groundsperson in wheel changes on coal trains to be conducted in the yard on the days in question.† Its position was that the refusals amounted to insubordination and thus constituted conduct deserving of the discipline imposed.†

 

[2]†††††††††††††† The position of the Grievor and the Union has been that the Grievorís alleged refusal to accept the workplace instructions was not insubordination, it was an assertion that existing medical limitations known to his supervisors prevented him from performing the assignments involved.

 

[3]†††††††††††††† The positions of the parties are set out in detail in the submissions presented in this process on February 25, 2003.† The Railwayís position was marked as Exhibit 2 and the Unionís submission was marked as Exhibit 3.† The submissions are available if necessary to augment the positions as described in this Letter of Discipline.

 

[4]†††††††††††††† The facts as developed in the proceedings raised the possibility that there was a degree of misunderstanding on the part of the Grievor with respect to his response to his supervisors in the incidents in question.† It was the understanding of his supervisors that he was refusing to accept work assignments on the basis that his seniority entitled him to refuse, not that he had a medical limitation that prevented him from performing the assignments.

 

[5]†††††††††††††† The understanding of the supervisors in that regard was guided to a significant degree by the fact that the Grievor had participated as a Groundsperson in the performance of the changing of wheels on coal trains on prior occasions during the time when his medical limitations remained unchanged from those in place when the disputed assignments were made.

 

[6]†††††††††††††† The Grievor and the Union asserted that there is a distinction between changing coal train wheels in the shop and changing them in the yard and that the distinction has an impact on the medical limitations recorded with the Employer at the material time.† It was also pointed out that prior wheel change assignments in which the Grievor functioned as Groundsperson involved wheel changes in the shop.† On the facts, however, the Grievor was less articulate in expressing that distinction at the time.†

 

[7]†††††††††††††† It is clear in the arbitral authorities that insubordination in the form of refusing a direct order, particularly a refusal to perform work as directed, is extremely serious because it is seen as going to the heart of the employer-employee relationship.† An employee who wishes to challenge an order must take care to define the basis upon which the order is refused.† The onus is upon the employee, not the Railway, when a belated explanation is offered.

 

[8]†††††††††††††† The facts in this dispute invite the inference that the Grievor was less than clear in distinguishing between his ability to change wheels on a coal train despite his medical limitations in the shop and his inability to perform the same function in the yard.† Leaving aside the question of the legitimacy of his explanation, which is moot by reason of an agreement between the parties to adjourn the proceedings pro tempore, the fact is that the Grievorís conduct at the time invited a disciplinary response.† However, in light of the possibility, and perhaps the likelihood, that there was a misunderstanding, a moderation of the penalty is appropriate.

 

[9]†††††††††††††† This letter of discipline is imposed for the purpose of making it clear to the Grievor and the bargaining unit that refusing to follow an order is a serious matter deserving of a disciplinary response.† Where, as here, the reason for the refusal is based upon a concern for individual safety, that explanation should be advanced in clear terms at the time the refusal occurs with the understanding that the explanation may be rejected if it is subsequently seen as lacking merit.

 

†††††††††††††††††† DATED at the City of Prince George, in the Province of British Columbia, this __ day of March, 2003.

 

 

††††††††††††††††††††††††††††††††††††† _____________________________________

††††††††††††††††††††††††††††††††††††††††††††††† H. ALLAN HOPE, Q.C. Ė Arbitrator