SHP 678

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(The Company)

and

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

(The Union)

CONCERNING DISCHARGE GRIEVANCE OF CAR MECHANIC M. CINI

SOLE ARBITRATOR:          Michel G. Picher

There appeared on behalf of the Company:

Ross Bateman                               – Director, Labour Relations, Toronto

Lou Bartolo                                     – Assistant Superintendent, MacMillan Yard

And on behalf of the Union:

Bruce Snow                                   – President, Local 100, Surrey

Drew Ratajewski                            – Regional Vice-President, Vaughan

Michael Cini                                   – Grievor

A hearing in this matter was held in Montreal on Monday, February 12, 2012.

AWARD OF THE ARBITRATOR

DISPUTE:

The assessment of 30 demerits to Car Mechanic M. Cini for unsafe work procedures and his subsequent discharge for the accumulation of demerits in excess of 60.

JOINT STATEMENT OF ISSUE:

On October 6, 2011, a formal investigation was conducted with Car Mechanic M. Cini concerning a violation of safe work procedures while he was removing ground air from track EO04 on October 3, 2011. In this regard the grievor was observed stepping on the operating lever of railway TBOX 671091, then kneeling on the drawbar between the striker and the coupler horn, and then leaning over and closing the angle cock on the opposite side of the same car while removing the ground air.

Following a review of the investigation Car Mechanic M. Cini was assessed 30 demerits for violation of safe work procedures. The assessment of 30 demerits brought the grievor’s demerit level to 65, which culminated in the grievor’s discharge for accumulation of demerits in excess of 60.

The Union contends that the discipline is excessive and unwarranted in quantum, and seeks in resolution that the discipline be expunged and the grievor be made whole for all lost wages and benefits.

The Company disagrees with the Union’s contentions and has declined the Union’s request.

            It is not disputed that while in the process of removing the ground air from a train consist in MacMillan Yard, Car Mechanic M. Cini was observed by Trainmaster L. Karn. As reflected in a written memorandum filed by Mr. Karn, he observed Mr. Cini “… step on the operating lever of rail car TBOX 671090 and then kneel on the draw bar between the striker and the coupler horn. From that position, he leaned over and closed the angle cock on the same car.” It is not disputed that the grievor’s actions constituted a violation of Rule 4.6.2 of the CN General Safety Rules Yellow Book. That rule reads, in part, as follows:

… crossing over, under or in-between rolling stock is prohibited except as required in the performance of duty and only when proper protection is provided. When requested to do so, use the proper running boards and handholds, where provided. NEVER STEP BETWEEN THE COUPLER HORN AND STRIKER CASTING.

            There is no dispute but that the grievor did violate the rule, as noted above. By explanation, during the course of his disciplinary investigation, Mr. Cini indicated that he believed that the trainmaster was in a hurry to release the train, which prompted him to violate the rule by working more quickly. Following the investigation the Company assessed thirty demerits against the grievor. As his disciplinary record already stood at thirty-five demerits, that penalty resulted in his discharge.

            The sole issue in these proceedings is the quantum of discipline. The Company submits that the grievor’s overall disciplinary record is sufficiently negative as to justify a serious penalty for infraction which occurred. It further stresses that Mr. Cini was previously disciplined, having received a written reprimand for a similar infraction of crossing over and between rolling stock without utilizing the proper safety appliances in August of 2006.

            The Arbitrator can appreciate the Company’s perspective. The grievor’s record reveals that he incurred discipline on an almost annual basis, on at least eight occasions since the year 2000, prior to the culminating incident of October 3, 2011. However, the Union stresses that the bulk of the discipline assessed against Mr. Cini has not been for safety related infractions, but rather for work performance issues.

            The grievor has some thirty-four and a half years’ service, and is said to be within two years of eligibility for an unreduced pension. He has never previously been discharged or suspended. In the Arbitrator’s view, while the Company’s concern is well appreciated, this is an appropriate case for a last chance reduction of penalty. While it is true that long service does not of itself grant a licence to disregard safety rules or operating rules, it is a legitimate factor to be considered in assessing the overall fairness of a penalty. There is also, I accept, some merit to the Union’s argument that transition from a written reprimand to thirty demerits for the same safety infraction is relatively harsh, albeit the grievor’s record might to some extent justify such a difference.

            The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for any wages or benefits lost and without loss of seniority. Mr. Cini must appreciate that this reinstatement is provided to him as a last chance opportunity to demonstrate that he can return to service and complete his career while respecting all safety rules as well as work performance requirements. His record shall be restored to the level of thirty-five demerits.

Dated at Ottawa this 20th day of February, 2012

ARBITRATOR

__________________________________

MICHEL G. PICHER