SHP 693

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)

RE 10 DEMERITS ASSESSED CAR MECHANIC E. VANDERHEYDEN

SOLE ARBITRATOR:          Michel G. Picher

There appeared on behalf of the Company:

Ross Bateman                               – Director, Labour Relations, Toronto

F. Lafarciola                                   – Mechanical Supervisor, Brampton Intermodal Terminal

D. Laurendeau                               – Manager, Labour Relations, Montreal

And on behalf of the Union:

B. Stevens                                      – National Representative, Toronto

B. Snow                                          – President, Local 100

D. Ratajewski                                 – Regional Vice-President, Great Lakes Region

A hearing in this matter was held in Montreal on Friday, May 11, 2012.

AWARD OF THE ARBITRATOR

            This grievance concerns the assessment of ten demerits against the grievor for his improper use of an articulating ladder placed in the scaffold position. The facts in relation to this grievance are related in SHP 692 and need not be extensively repeated here. The nature of the dispute between the parties concerning the assessment of discipline in the amount of ten demerits is reflected in the Dispute and Joint Statement of Fact and Issue filed at before the Arbitrator which reads as follows:

DISPUTE:

The discipline assessed Car Mechanic E. Vanderheyden for improper use of an articulating ladder on September 10, 2011.

JOINT STATEMENT OF FACT AND ISSUE:

On September 24, 2011, a formal investigation was conducted concerning Mr. Vanderheyden’s alleged improper use of an articulating ladder in the scaffolding position.

Following an investigation, the Company assessed Mr. Vanderheyden with 10 demerits.

The Union contends that the Company violated Appendix III – rule 27.2 of Agreement 12, as well as violations of Section 124, 125, 147 Part II Canada Labour Code, Part XIX of the Canadian Occupational Health and Safety Regulations and that he was punished by being held out of service pending the investigation.

The Union requests that the discipline be expunged and that a sum be paid to him on account of egregious treatment.

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

            The evidence confirms that on September 10, 2011 the grievor was assigned to paint a Company forklift. To do so he used an articulating ladder which can be folded into a position which produces a horizontal scaffold some three feet off the ground. The grievor so arranged the articulating ladder and spent some time on the horizontal surface painting the forklift.

            The material before me confirms that instructions on how to use the articulating ladder were posted in the workplace. The grievor admits that he knew of those instructions but did not consult them. He appears to have simply have followed what he could determine from the picture directions of the ladder itself.

            A significant aspect of the instructions is that a plank should be placed on the horizontal portion of the ladder when it is being used as a scaffold. By his own admission, the grievor did not place any plank on top of the horizontal section of the ladder, and it would appear that he effectively balanced on the rungs and sides of the ladder as he performed his work. Ultimately, he lost his balance and stumbled onto the ground, landing on his feet. That caused an injury which is more extensively discussed in SHP 692. The Company assessed ten demerits against Mr. Vanderhayden.

            The Union raises a number of allegations. Firstly, it stresses that the grievor was never trained in the proper use of the articulating ladder, an assertion which is not in fact denied by Company. What emerges from the Company’s investigation is that Mechanical Supervisor Frank Lafarciola held job briefings with respect to the introduction of the ladders. The supervisor confirms that he did not set up the ladder during the course of his job briefing, and did not specifically, for example, demonstrate the need to use a plank when placing the ladder into a scaffold position. Nor could the Company confirm whether the job briefing in fact occurred on a day when the grievor was at work. In fact, during the course of his own statement the grievor was asked whether he had ever received any training when articulating ladders were introduced, some two months before the incident here under consideration. He replied that he did not receive any training or briefing on the use of the ladder.

            It also appears that during the course of the grievor’s statement the Union made an objection when the investigating officer ruled a question being put to Supervisor Lafarciola as being irrelevant. While the joint statement of fact and issue indicates that the Union contends that the Company violated the provisions of Rule 27.2 of the collective agreement which governs the process of formal investigations, there is in fact no elaboration of that allegation to be found in the Union’s brief to the Arbitrator.

            I cannot find any violation of provisions of rule 27.2 of the collective agreement, or of the general standard of a fair and impartial investigation, disclosed in the instant case. It is obviously incumbent on any officer conducting an investigation to rule upon the admissibility of certain forms of evidence or the relevance of certain questions. As recognized in CROA 1858, there must be some latitude in making rulings in respect of relevance. In that award the following comment appears:

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. …

            Even if I were of the view that the investigating officer was incorrect in his finding that a question put to a supervisor was irrelevant, a matter upon which I make no substantive comment, I would not find that that exercise of the officer’s judgement constituted a violation of the standard of a fair and impartial investigation or a departure from the terms and expectations of rule 27.2 of Appendix III of the collective agreement.

            Nor, on the material before me, can I sustain the Union’s allegation that the Company failed to ensure the protection of employees contrary to section 124 of the Canada Labour Code or failed to provide sufficient instruction or access to information with respect to the use of the articulating ladder, in alleged violation of section 125 of the Code. Nor can I find in any part of the evidence support for the Union’s suggestion that the Company violated section 147 of Code, an article which deals with disciplinary action against employees as a reprisal for the exercise of their rights under Part II of the Canada Labour Code. The Union makes no submission in its brief in that regard. Nor is there any substance in the Union’s brief concerning an alleged violation of Part XIX of the Canadian Occupational Health and Safety Regulations which involves implementing programs to deal with the prevention of hazards.

            The real issue in the case at hand is whether the grievor became properly subject to discipline for his manner of working with the articulating ladder. I am satisfied that he did. As indicated above, the grievor was aware that the instructions for the proper use of the articulating ladder were posted in the workplace. By his own admission he did not consult those instructions and proceeded to work on the horizontal scaffold portion of the ladder without using a plank to facilitate standing and moving as he worked. In my view there can be no conclusion to be drawn other than he obviously placed himself in a perilous position, balancing himself on the rungs and sides of the ladder as he painted the forklift, some three feet off the ground. Not surprisingly, he eventually lost his balance and, as discussed in SHP 692, injured himself.

            The jurisprudence is replete with decisions that confirm actions such as the grievor’s as deserving discipline in the range of ten to fifteen demerits. (See, e.g., SHP 595, SHP 593, CROA 976 and CROA 3396.) If anything, a review of the cases would indicate that the assessment of ten demerits is on the lower end of discipline for such infractions.

            On the whole, I am satisfied that the Company was justified in the assessment of ten demerits for the grievor’s obvious disregard of the posted instructions with respect to the proper use of the articulating ladder and that his negligence in that regard did contribute to the injury which he sustained. In these circumstances I am not inclined to disturb the assessment of ten demerits.

            The grievance is therefore dismissed.

Signed at Ottawa this 18th day of May, 2012.

                                                                                  __________________________________

                                                                                                      MICHEL G. PICHER

                                                                                                           ARBITRATOR