SHP688
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY
(the “Employer”)
AND:
CAW – CANADA AND ITS LOCAL 101
(the “Union”)
(Donald Duffy – 40 Demerits – SHP688)
ARBITRATOR: Vincent L. Ready
COUNSEL: Shelley Smith
for the Employer
Brian Stevens
for the Union
HEARING: April 18, 2012
Moose Jaw, Saskatchewan
DECISION: June 5, 2012
32697.4
The parties agree that I am properly constituted as an arbitration board with jurisdiction to determine the matter in dispute.
DISPUTE
In this case, the Union challenges the imposition of 40 demerit points assessed to Mr. Donald Duffy, the grievor, for failing to apply proper Blue Flag Protection and for failing to apply Lockout/Tagout protection, a violation of 5 Alive Rule 1 and 5 Alive Rule 4, during the inspection of a train in the Moose Jaw Yard on April 24, 2011.
JOINT STATEMENT OF ISSUE
On April 24, 2011, Rail Car Mechanic Donald Duffy was assigned the task of inspecting train 289-22 in track MF03. Supervisor Ian Burns was in the Train Yard performing audits and observed Mr. Duffy performing a train inspection. Upon closer observation, Supervisor Burns noted that the live locomotive did not have a lock-it device in place and that the Blue Flag and Light was only applied to one end of track MF03.
Following the disciplinary investigation, the grievor was issued 40 demerits for “failing to apply proper blue flag protection and for failing to apply Lockout/Tagout protection, a violation of the 5 Alive Rule 1 and Five Alive Rule 4 during your inspection of train 298-22 in Moose Jaw, SK.”
The Union contends that the discipline assessed was without just cause and in any event was excessive. Additionally the Company cannot resort to restricting or limiting work location(s) thereby negatively impacting the seniority rights of the grievor for disciplinary purposes. The Union is requesting that the 40 demerits assessed to Mr. Duffy be removed from his record.
The Company disagrees with the Union’s contention and has declined the grievance.
AWARD OF THE ARBITRATOR
It is not disputed that the grievor failed to apply blue flags on one end of the track and that the locomotive did not have a lock-it device in place at the time of the grievor’s inspection. What is disputed is the seriousness of this offense.
The Company argues that the grievor’s failures in this inspection were so serious as to warrant assessing him 40 demerits and a restriction for working in the yard. The Company argued that such violations of safety procedures and practices cannot be tolerated and must be met with a significant disciplinary response.
The Union, on the other hand, submits that the Company overreacted given the nature of the safety infractions, the length of service of Mr. Duffy and, importantly, the fact that his actions were condoned by a supervisor, who did not identify any safety hazard or risk and, in fact, climbed the ladder into a locomotive thereby knowingly putting himself in the “line of fire”. The Union contends that no discipline is warranted and, in the alternative, the assessment of 40 demerit points in combination with a restriction from performing Yard work is excessive and punitive.
I will first deal with the issue of the assessment of 40 demerit points. Although I recognize that the grievor works in a safety sensitive environment and I laud the Company for its concern for safety issues, it is my opinion that the penalty imposed in this case was too harsh. While it is true that Mr. Duffy is guilty of a technical violation of the blue flag rule at the west of the train, it must be remembered that he was only doing a drive by inspection. At no time did Mr. Duffy go into the cab of the engine nor did he “foul the plane of the rail” so as to put himself at risk. I further find that a supervisor obviously did not consider Mr. Duffy’s actions to be hazardous as no action was taken pursuant to s.125 of the Canada Labour Code. Further, the supervisor did not advise the grievor that there were any safety hazards or concerns at the time of the inspection. I confirm that the Company has grounds to discipline Mr. Duffy, however, I substitute the 40 demerit points issued with 15 demerit points, in recognition that the grievor works in a safety sensitive environment, he was aware of the safety protocols, and he decided to short cut the procedures in these circumstances.
The next issue becomes whether the assessment of the demerit points coupled with a restriction from performing Yard work was justified. I concur with the findings of Arbitrator Picher in CROA 2875, which states:
The purpose of industrial relations discipline is not to punish or inflict hardship for its own sake. Discipline is to be fashioned so as to protect the legitimate interests of the employer and to rehabilitate the employee by bringing to his or her attention the need to take corrective action by avoiding the conduct or errors of judgement which prompted the discipline.
Although the restriction was not a demotion in position or wage, nor was Mr. Duffy’s seniority affected in any way, the restriction did have the potential of Mr. Duffy losing overtime opportunities. In the case at hand, I find that issuing both the restriction and demerits to be excessive and contrary to the above purposes of industrial relations discipline. I therefore find that the indefinite restriction to repair the track was not appropriate when coupled with the demerit points issued and that the grievor should be compensated for lost overtime opportunities, if any, as a result of the restriction.
For the foregoing reasons, the grievance is allowed in part. I confirm that the 40 demerit points shall be substituted with 15 demerit points and that the grievor shall be compensated for lost overtime, if any, for the period that he was restricted from performing Yard work.
I refer any remedial issues arising out of this award, as to whether Mr. Duffy lost any overtime, back to the parties and retain the necessary jurisdiction to resolve any issues arising out of the implementation of this award.
Dated at the City of Vancouver in the Province of British Columbia this 5th day of June, 2012.
_____________________________
Vincent L. Ready