IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
("Company")
AND:
THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA), LOCAL 100
("Union")
AND IN THE MATTER OF:
GRIEVANCES OF J. YOUNG
SOLE ARBITRATOR:
Kevin M. Burkett
APPEARANCES FOR THE COMPANY:
Ross Bateman - Sr. Manager Labour Relations
Dirk Vennis - Manager Labour Relations
Graham Yeadon - Asst. Superintendent Mechanical
Bruce Dale - Shop Supervisor Mechanical
Donald Eta - Supervisor Mechanical
APPEARANCES FOR THE UNION:
John Moore-Gough - CAW National Representative
Bryon De Baets - President, CAW Local 100
J. Gouveia - Vice President, CAW Local 100
DrewRatajewski - Local Chair, Lodge 110
Bill Mowatt - Local Chair, Lodge 110
John Young - Grievor
Hearing in this matter was held in Toronto, Ontario on March 4, 2005.
A W A R D
Mr. John Young, a car mechanic with some 30 years service, was terminated from his employment effective July 7, 2004 because he had accumulated 65 disciplinary demerit points. Mr. Young is the Union Co-chair of the joint Health and Safety Committee. Termination from employment is warranted where an employee accumulates 60 or more demerit points. Demerit points are assessed for rule infractions and accumulate on an employee's record, except that a 12-month discipline-free period results in the removal of 20 (or fewer) demerit points. Mr. Young accumulated 65 "live" demerit points as a result of three separate incidents in the period September 19, 2002 to June 7, 2004. The first two incidents had been grieved but not arbitrated at the time of the final incident that pushed Mr. Young's demerit point total over the 60-point threshold and resulted in his termination. The parties are agreed that all three incidents are properly before me. There is no dispute with respect to my authority to hear and determine these matters and in doing so to decide whether the Company had just cause to terminate Mr. Young.
Mr. Young's discipline record in the period since September 19, 2002, the date of the first incident that resulted in the placement of "live" demerit points on his record, is as follows:
July 9, 2004 Discharged for an accumulation of sixty (60) demerits or more.
June 7, 2004 Assessed 20 demerits for your failure to follow Supervisor's instructions when directed to perform a task at the south end of track B020, Monday, June 7, 2004.
April 2, 2004 Assessed 20 demerits for being absent from his work area on Friday, April 2, 2004, without proper authority, and when approached by your immediate Supervisor concerning your absence at 13:40, you failed to respond to your Supervisor's inquiries and broke the discussion with him by turning and walking away advising your immediate Supervisor that you felt he was harassing you.
November 24, 2003 Assessed with a 10 day suspension for failure to perform and complete Supervisor's instructions to remove Cleaning Plant track protection and refrained to provide communication to the Supervisor of the incomplete task assigned October 14, October 15, 2003.
October 8, 2003 Assessed with a 3 day suspension for failure to properly line and lock north end track G005, while employees were working on track G005 Wednesday, 17 September, 2003.
October 8, 2003 Demotion/Disqualification from Lead Hand position – Heavy. Your conduct as Lead Hand Car Mechanic at the Cleaning Plant on 10 September, 2003.
September 19, 2002 Assessed 25 demerits for not wearing personal protective equipment, safety eye protection while working the north end of "B" Yard, Heavy Repair Centre.
The most recent discipline prior to September 19, 2002 had been the imposition of 20 demerit points on June 28, 1997.
Mr. Young was assessed 25 demerit points effective September 19, 2002 for not wearing safety eye protection while working the north end of "B" yard, Heavy Repair Centre, MacMillan Yard, Toronto. There is no dispute that, at the time, Mr. Young was working in an area that required the wearing of safety glasses. There is no dispute that the requirement in this regard is well documented and was known to Mr. Young. Finally, there is no dispute that Mr. Young, when approached by Heavy Repair Centre Manager Graham Yeadon, was not wearing safety glasses.
The Union contends that Mr. Young had placed his safety glasses in his pocket when being driven to the work area by a fellow employee and that he had forgotten to put on his safety glasses when he exited the truck and began to work. Mr. Young did not produce a pair of safety glasses from his person when confronted. Mr. Yeadon suspended Mr. Young pending the investigation that preceded the imposition of 25 demerit points.
The Union argues: firstly, that the 25 demerit point penalty was too severe in the circumstances; secondly, that Rule 27.1 of Agreement 12 was violated in that the investigation was neither fair nor impartial as the investigating officer would not permit the Union representative to ask a number of questions nor even record the questions that the grievor's Union representative sought to ask; and, thirdly, the Union maintains that the discipline was assessed in bad faith in retaliation for Mr. Young's activities as a health and safety representative.
Dealing firstly with the investigation. Rule 27.1. requires a "fair and impartial investigation." The Union complains that its representative was not permitted to ask questions "which would show that Mr. Young's infraction was minor compared with the serious violations and problems that the company was cited for by Labour Canada and three Hygenist reports ...." The investigating officer refused to allow this line of questioning.
Arbitrator Picher in re: CR0A 1858 made the following observations with respect to the standard to be applied to the investigating officer's rulings having regard to the requirement under Rule 27.1 for a "fair and impartial investigation."
In the Arbitrator's view it is highly doubtful that the parties intended that the making of an "incorrect" ruling as to the relevance of a particular document or question must vitiate the entire proceeding and nullify any discipline which results from it. Decisions on relevance are judgement calls at the best of times, the correctness of which may well be disputed. The clear thrust of Addendum 41 is that the employees have a right to a fair and impartial investigation. Where rulings as to admissibility or relevance are so egregious as to demonstrate a departure from that minimal standard, it may well be that a violation of the requirements of Addendum 41 will be established.
I am not satisfied that the decision of the investigating officer to disallow a line of questioning directed at the Company's health and safety record constituted an "egregious ... departure from the minimal standard" so as to compromise the fairness and impartiality of a discipline investigation under Rule 27 dealing with a specific alleged infraction against an individual employee. There are separate forums for dealing with alleged health and safety breaches by the Company that, it would appear, have been relied upon by the Union. The extent, if any, of these Company breaches is irrelevant to any assessment of the severity of its response to an individual employee's failure to wear safety eyeglasses where required to do so. The severity of the penalty must be assessed in light of both the seriousness of the misconduct and the Company response to similar misconduct. I reject the contention here that the investigation failed to satisfy the requirements of Rule 27.1.
I turn, secondly, to the claim that the discipline was assessed in bad faith in retaliation for Mr. Young's activities as a Union health and safety representative. It is the Union position that Mr. Young was targeted for harsh treatment because of his aggressive pursuit of health and safety issues. While it may be that Mr. Young aggressively pursues health and safety issues, as he should, I am not satisfied, in circumstances where he was not wearing his safety glasses when he should have been and, indeed (as I will find), did not have his safety glasses on his person when confronted, that he was in any way targeted. The determination that must be made is whether, on a consideration of the relevant factors, the penalty was too severe.
This takes me to that issue. I reject the Union suggestion that only employees who "put their eyes at risk of an injury such as grinding, striking steel with a hammer, chipping welding slag, etc." should be treated as having committed a serious breach. The requirement to wear safety glasses while working applies generally and ought not to be made subject to differentiation by individual employees based upon the specific task being performed. Such differentiation would undermine the general requirement and thereby be counterproductive to safe working practices.
Mr. Young was working without eye protection in an area that required eye protection. Furthermore, it is difficult to accept that Mr. Young had the safety glasses on his person and had simply forgotten to put them on when he emerged from his vehicle. It is inconceivable to me that Mr. Young would not have produced his safety glasses and explained that he had inadvertently forgotten to put them on when exiting the vehicle if this had been the case. His failure in this regard satisfies me that he did not have safety glasses on his person when he was confronted, as is claimed. Mr. Young, therefore, committed a serious breach of the safety rules when he worked without safety glasses on September 19, 2002 without any credible excuse.
However, there are three factors that mitigate in favour of a finding that the imposition of a 25 demerit point penalty was too severe in all the circumstances. Firstly, as is clear from a reading of the Company brief, the Company relied in part upon the fact that Mr. Young was a Union health and safety representative at the time. To the extent that the Company relied upon Mr. Young's position as a Union health and safety representative who should have known better in assessing the seriousness of the offence and determining an appropriate penalty, its reliance was misplaced. Mr. Young was working in the capacity of a rank and file employee at the time and as such his conduct must be held to the same standard as any other rank and file employee. To increase the severity of the penalty because an individual holds a union health and safety representative position is tantamount to penalizing that individual for holding the position and, therefore, must be discounted. Secondly, the fact that Mr. Young had been discipline-free for some five years at the time must weigh in his favour. Finally, the evidence with respect to the level of disciplinary response in other similar cases establishes that the response in this case was at the high end of the spectrum.
Having regard to all of the foregoing, I hereby substitute a 15 demerit point penalty for the 25 demerit point penalty that was imposed and direct that Mr. Young's disciplinary record be amended accordingly. This penalty, in my view, better reflects the seriousness of the misconduct and the absence of a credible excuse while also reflecting the mitigating factors.
I remain seized in the event of any difficulty with the implementation of this award.
Mr. Young was assessed twenty (20) demerit points on May 10, 2004 because of an alleged unauthorized absence from his work area on Friday, April 2, 2004, his failure to respond to his supervisor's enquiries and his decision to break off the discussion with his supervisor by turning his back and walking away when confronted.
Mr. Young, who at the time occupied the position of Car Mechanic, Heavy Repair Centre Cleaning Plant, MacMillan Yard on the 07:00 to 15:00 shift, had advised his supervisor (Mr. Donald Eta) on Friday, April 2, 2004 that he had to leave work at 14:00 hours because of a medical appointment. Mr. Eta had no objection. Although there is a dispute as to whether he left his work area at 13:25 or 13:30, at the very least he left the work area at 13:30 in order to use the closest washroom facilities located within the adjacent heavy repair centre (HRC). He then entered the foreman/biller's office next to the washroom in order to use the telephone to call his wife. Mr. Young then exchanged greetings with Mr. Barry Bisanti, a biller, before approaching Supervisor Bruce Dale and speaking with him at his workstation. It was at this point in time (approximately 13:45) that Mr. Young was confronted by Supervisor Eta and told that he was away from his work area and spending too much time in the HRC. In the course of that discussion, Mr. Young turned and walked away while being addressed by Mr. Eta. Mr. Young maintains that he was being harassed and, consistent with a Company directive, he walked away in order to avoid a confrontation with his supervisor. He was assessed the 20 demit points for being out of his work area without permission and for being insubordinate.
The Union challenges the discipline on three grounds: firstly, that Mr. Young adequately explained the reasons for his absence from the work area and his walking away from Supervisor Eta such that no discipline is warranted; secondly, that the investigation was not fair and impartial as the investigating officer denied the Union's request to call a witness to testify on behalf of Mr. Young and limited the Union representative's right to ask certain questions; and, thirdly, that the discipline was imposed in bad faith as the President and CEO of Canadian National Railways, Mr. H. Harrison, had made it known that he wished to have Mr. Young fired.
I turn firstly to the allegation of bad faith. I have given careful consideration to the evidence tendered by the Union in support of its claim in this regard. Having done so, I am unable to find the necessary connection between the comments and managerial directives of Mr. Harrison and the discipline imposed upon Mr. Young in this case.
There is a conflict in the evidence with respect to the exact time that Mr. Young left his work area and the exact time as of which he was confronted. I do not find the discrepancies to be material in that, at the very least, Mr. Young, who had advised his supervisor that he would be leaving that day at 14:00, left the work area at or about 13:30. He did so in order to visit the washroom as he was entitled to do. However, he did not return to his work area but, rather, went to the biller's office in order to phone his wife and then visited Supervisor Bruce Dale prior to being approached by Supervisor Eta at or about 13:45. Whatever might be said about the relationship between Mr. Eta and Mr. Young, Mr. Young was clearly out of his work area without permission and Mr. Eta was clearly within his supervisory right to question him in this regard. The difficulty here is in respect of the decision of Mr. Young to walk away while being addressed by his supervisor. On its face, his action constituted an act of insubordination.
In that Mr. Young claims he was being harassed and, therefore, entitled to walk away, the onus is upon the Union to establish its claim. The evidence does not establish that Mr. Young was being harassed in any manner that would have justified his decision to walk away from his supervisor in the course of being addressed concerning his unauthorized absence from the workplace. The work to be done or lack thereof in the work area did not somehow entitle Mr. Young to leave and then "take his time" in returning to the work area. Mr. Young was both absent from the work area without permission and then insubordinate when confronted by his supervisor.
The issues raised with respect to the investigation go to the heart of what is a fair and impartial investigation in the context of this expedited arbitration process. The award of arbitrator Picher in re: CR0A 3322 is especially instructive. Arbitrator Picher endorses the conclusion that the investigation is not a trial or a hearing that must conform in all respects with judicial or quasi-judicial standards but rather an "information gathering process ... to give the employee the opportunity to know the information gathered and to add to that information before any decision is taken with respect to the assessment of discipline." He quotes with approval from CR0A 1858 as follows:
What is contemplated is an informal and expeditious process by which an opportunity is afforded to the employee to know the accusation against him, the identity of his accusers, as well as the content of their evidence or statements, and to be given a fair opportunity to provide rebuttal evidence in his own defence. Those requirements, coupled with the requirement that the investigating officer meet minimal standards of impartiality, are the essential elements of the "fair and impartial hearing" to which the employee is entitled prior to the imposition of discipline.
Arbitrator Picher reasons that these straightforward requirements are necessary to satisfy the employee right to a fair and impartial investigation and, as well, to allow the arbitrator to rely on the record thus produced in the absence of viva voce evidence. Arbitrator Picher is careful to point out that a failure to satisfy these basic requirements amounts to a denial of a substantive right, the consequence of which is to render the discipline void ab initio.
The Union submits, firstly, that the refusal of the investigating officer to allow the Union representative to call Mr. Drew Ratajewski, Local Chairperson, as a witness breached the requirement for a fair and impartial investigation. The Union submits that:
Mr. Ratajewski would have been able to testify to the emotional state of Mr. Eta, as well as recount Mr. Eta's version of the events at that time. Further Mr. Ratajewski had information concerning previous complaints by Mr. Young concerning his treatment by Mr. Eta.
It is my opinion that Mr. Ratajewski's evidence, as described, would have been relevant to the issue and, even though the investigating officer is not to be held to the standard of a judge or arbitrator, he should have understood this. If it was not for the fact that Mr. Ratajewski was permitted to file a written statement, dated April 2004, that forms part of the record, I would have been inclined to find that the basic requirements of a fair and impartial investigation had not been met. However, the filing of the written statement on the same date as the discipline was imposed satisfied the grievor's right to have this evidence put before me and cures what would otherwise have been a defect in the process.
The Union also challenges the quality of the investigation on the grounds that the Union representative was not permitted to ask Mr. Young a question with respect to whether or not he had been provided by the Company with written instructions to walk away in order to avoid confrontation. While, in the circumstances here, this is a relevant question, it is also a redundant question. Common sense dictates that an employee walk away from a threatening confrontation in the workplace. A written instruction in this regard is not required. The question is whether or not there was a confrontation of the type that would have justified Mr. Young's decision to walk away. I have found that there was not. The refusal to allow the question to be asked, therefore, did not prejudice Mr. Young's entitlement to a fair and impartial investigation.
Having regard to all of the foregoing, I must uphold the discipline of 20 demerit points as just and reasonable in all the circumstances.
Mr. Young was assessed 20 demerit points for a "failure to follow supervisor's instructions when directed to perform a task at the south end of track B020 on Monday, June 7, 2004." I refer to the foregoing as the notice of discipline. Having already been assessed a total of 45 live demerit points in response to incidents #1 and #2, as dealt with herein, Mr. Young's demerit point total exceeded 60, thereby resulting in his termination from employment.
The factual context of this incident is as follows. Without being specific as to precise times (as the evidence is in conflict in this regard), Mr. Young was requested by Mr. Gordon Eta, his supervisor, to strip cars on track B020 in the early afternoon of Monday, June 7, 2004. Mr. Young proceeded to the work area, was briefed upon his arrival and then noticed that there was no track protection in place on track B020. As has been noted, Mr. Young is a Union health and safety representative. Mr. Young then returned to Mr. Eta's office to inquire about the absence of track protection. A discussion ensued with respect to whether in the circumstances track protection was required. Without resolving that debate, Mr. Eta provided Mr. Young with a lock and instructed him to take a vehicle and proceed to the south end, lock the switch at B020/B019, erect the flag and then continue with the task that had already been assigned. After failing to secure a vehicle, Mr. Young returned to Mr. Eta's office to advise him that he was going to have to walk to the south end of track B020. There was a discussion as to who would remove the track protection and at what time. Mr. Eta instructed Mr. Young to remove the track protection at 14:35 hours. Mr. Young responded that he thought that 14:35 was too late; presumably because he would not have time to walk back and wash up before his shift ended at 15:00. Mr. Young then walked to the south end of track B010 and applied the flag protection. Then, for some unexplained reason, instead of proceeding to the work area, he returned to Mr. Eta's office to inform him that the track protection had been applied and that it had taken him 20 minutes. He then walked back to the work area where he was again briefed. By the time he returned, the stripping had been completed and the clean-up was under way.
There is a dispute on the evidence as to when Mr. Young removed the flag protection at the south end of track B020. Mr. Young asserts that he left the work area at about 14:30 in order to remove the flag protection. Mr. Eta asserts that he saw Mr. Young removing the flag protection at 14:25 in direct contravention of his direction to remove the protection at 14:35.
The Company takes the position: that "Mr. Young wilfully misrepresented track protection procedures for B020 in an effort to avoid the work assignment of stripping cars on B020"; that Mr. Young "performed no meaningful work on the afternoon of June 7, 2004"; and finally, that he removed the track protection prior to the time directed by Supervisor Eta. The Company maintains that the above, coupled with the failure of Mr. Young to "provide a reasonable explanation for his unproductive activity on June 7, 2004," warranted the imposition of 20 demerit points and hence his termination from employment. The Company argues that in the absence of any mitigating factors, the discipline must be allowed to stand. The Company takes issue with the Union claim of a violation of Rule 27.1, arguing that no such allegation was raised at either step 1 or step 2 of the grievance procedure. It is the position of the Company that the investigation was conducted in a fair and impartial manner.
The Union asks me to accept Mr. Young's version of events as more credible than that of Mr. Eta and find that Mr. Young did not engage in any misconduct. The Union argues in the alternative that the Company has improperly expanded the grounds for discipline. It is the position of the Union, relying on the evidence of Mr. Eta, that the "task" in respect of which the discipline was imposed was the alleged removal of the track protection at 14:25 when Mr. Young had been instructed to remove it at 14:35. Accordingly, the Union submits that the investigation of the expanded grounds, i.e. the wilful misrepresentation of track protection procedures and the failure to have done other meaningful work, constitutes a breach of Rule 27.1 but that, in any event, Mr. Young cannot be disciplined on these grounds. Finally, it is the position of the Union that the discipline was imposed in bad faith because the Company's CEO had made it known at the conclusion of a four-week strike on March 20, 2004 that he wished to see Mr. Young terminated and, further, that his managerial style made it likely that his comment would be acted upon.
Firstly, I reject the claim that Mr. Young was dealt with in bad faith. Simply put, the evidence does not permit me to find that Mr. Young was disciplined in order to comply with the wishes of the Company's CEO as allegedly expressed at the conclusion of the four-week strike in March 2004.
Turning to the Union claim that the Company has expanded the grounds upon which it acted, I am satisfied on a reading of Mr. Eta's statement that he acted to discipline Mr. Young in response to what he believed was Mr. Young's disregard of his directive to remove the flag protection at 14:35. This was the "task" referred to in the notice of discipline reproduced in the first paragraph of this award (incident #3). Mr. Eta was asked a question concerning "rules and content pertaining to blue flag and locking procedures contained within appendix 1 of Agreement 12." Mr. Eta replied:
I do not see the relevance of this question insofar as my giving John Young an instruction that he did not follow, more specifically, my instruction to him as to when he was to drop the protection on the south end of track B020.
Investigating Officer: The question of Supervisor Donald Eta's awareness and contents of Company Rules and Regulations, or that of Agreement 12, are not relevant or pertain directly to this statement and pertaining to the performance of Mr. Young, he will not answer the question.
Q4: Mr. Eta, can you please tell me at what times on this day in question was track B020 not locked and flagged at the south end?
A: I will answer the question as it is relevant to Item 1, I noted John Young dropping the protection at 14:25.
Q5: Mr. Eta, are you refusing to answer my question as I put it to you?
A: My instructions are that you are to question me on the matter of this investigation as it relates to Item 1. (emphasis added)
I am satisfied that the "task" referred to in the notice of discipline is the task of removing the flag protection. It is trite arbitral law that an employer decides upon the basis for discipline but once having decided, absent evidence that could not reasonably have been available at the time, it is restricted to the grounds upon which it has decided to act as described in the notice of discipline. (See re: Aerocide Dispensers Ltd. and USUA (1965) 17 LAC 416 (Laskin), York City Board of Education and CUPE (1993) 17 Lac (4th) 253 (Burkett) and Brown and Beatty (3rd) at 7.22 O).) Accordingly, I am restricted to the ground set out in the notice of discipline as I have found it to be; that is, the failure of Mr. Young to have removed the flag protection from track B020 at the time directed to do so. The notice of discipline does not encompass the allegation that Mr. Young wilfully misrepresented track protection procedures nor that he failed to perform meaningful work on the afternoon of June 7, 2004. However, had the notice of discipline encompassed the subsequent allegation of a failure to perform productive work during the afternoon in question, the decision of Mr. Young to walk back to Supervisor Eta's office after installing the flag protection instead of proceeding to the work area, which was close by, would have weighed against him.
By way of an aside, the issues that might otherwise have arisen in connection with Mr. Young's insistence that flag protection was required at the time on track B020 are moot, given the fact that Supervisor Eta directed Mr. Young to apply the flag protection.
This takes me to the question of whether Mr. Young removed the said flag protection earlier than he had been directed to and, if so, whether the penalty of 20 demerit points was just and reasonable in all the circumstances. The onus is upon the Company to establish on the balance of probabilities that Mr. Young removed the flag protection at 14:25 when he had been directed to do so at 14:35. I have before me on this point the conflicting statements of Mr. Eta and Mr. Young. There is no other firsthand evidence on this point. While Mr. Young had voiced his displeasure when told to wait until 14:35 to remove the flag protection, this is not enough to resolve the conflict in the evidence against Mr. Young. Simply put, on a full review of the evidence before me, I am unable to find on the balance of probabilities that Mr. Young removed the flag protection 10 minutes before he was supposed to. Accordingly, I am unable to make a finding that Mr. Young removed the said flag protection at 14:25 as alleged by the Company. It follows that the discipline imposed must be struck down. The 20 demerit points that were assessed are to be removed from Mr. Young's record.
Having regard to all of the foregoing, Mr. Young is to be reinstated to his employment with full compensation and his record is to be amended to reflect the findings made herein.
I remain seized in the event of any difficulty with the implementation of my award in this matter.
Dated this 24th day of March 2005 in the City of Toronto.
Kevin Burkett
Kevin Burkett