IN THE MATTER OF AN
CANADIAN NATIONAL RAILWAY COMPANY,
NATIONAL AUTOMOBILE, AEROSPACE,
TRANSPORTATION AND GENERAL WORKERS
UNION OF CANADA (CAW-TCA CANADA)
and its LOCAL 100, the “Union”
RE: Kevin Westwood discharge
Arbitrator: Rod Germaine
Appearing for the Union: Brian Stevens, CAW National Representative
Ken Hiatt, Local 100 President
Zoltan Czippel, Local 100 Vice President
Kevin Will, Local 100 Location Chair
Kevin Westwood, Grievor
Appearing for the Company: Ron Campbell, Manager, Labour Relations
Richard Finley, Manager, Thornton LRC
Rae Sexton, Mechanical Supervisor, Thornton LRC
Daniel Herrick. Hostler, Thornton LRC
Hearing: December 18, 2012;
Award: January 9, 2013
1 On June 19, 2012, the Company discharged the grievor, Kevin Westwood, for harassment and assault of two employees, Daniel Herrick and Sasha Goodwin. The Union grieved, alleging the Company had violated several provisions of Agreement 12, the parties’ collective agreement.
2 The Company maintains it had just cause to discharge the grievor based on two incidents of alleged misconduct on June 7, 2012. It says that, first, the grievor assaulted Mr. Herrick and Ms. Goodwin when he drove his motor vehicle through a stop sign, narrowly missing them as they crossed the intersection. Second, the Company alleges the grievor physically confronted Mr. Herrick and Ms. Goodwin a few minutes later, and engaged in abusive and threatening conduct amounting to harassment.
3 The Union says the Company’s failure to conduct a fair and impartial investigation renders the discharge void ab initio. In the alternative, the Union contends the Company has not met the burden of proof to sustain the discharge, and the grievor should therefore be made whole. In the further alternative, the Union submits discharge was an excessive response in all of the circumstances, particularly in the absence of any progressive discipline, and it seeks the substitution of an appropriately reduced penalty and related remedial relief.
4 At about 6:50 am on June 7, the grievor, a Heavy Duty Mechanic at the Thornton Locomotive Reliably Centre (“LRC”), was driving to work. His route took him in a westerly direction along a Company-owned private access road which runs past the south side of the Diesel Shop and continues westward. There was a stop sign on this east-west road near an intersection at which the grievor had to turn right to go north on another private road, which starts at this intersection and continues along the west side of the Diesel Shop to the employee parking area.
5 As the grievor approached the intersection in his vehicle, Mr. Herrick and Ms. Goodwin were also approaching it on foot from the opposite direction. Mr. Herrick and Ms. Goodwin are Hostlers who were on shift at the time. They had turned a locomotive around, parked it and were walking back to the Shop. To get there, they would turn left at the intersection and, like the grievor, go north on the road alongside the Shop.
6 The grievor slowed down but did not stop at the stop sign and, when he turned right, one or both of Mr. Herrick and Ms. Goodwin were crossing the intersecting road. The grievor turned in front of them without stopping and continued to the parking area.
7 It is not disputed that, as pedestrians crossing at an intersection, Mr. Herrick and Ms. Goodwin enjoyed the right of way. By failing to stop, the grievor violated a basic rule of the road. Further, his vehicle passed close by Mr. Herrick. The speed at which the grievor turned the corner and how close his vehicle came to Mr. Herrick are disputed.
8 The Company contends the grievor used his vehicle to commit “a very serious and potentially lethal assault” of Mr. Herrick.
9 After parking his vehicle, the grievor walked toward the Shop to start his workday. Mr. Herrick and Ms. Goodwin were outside the Shop as he approached. There was an altercation, which the grievor initiated by approaching Mr. Herrick and eventually intruding on Mr. Herrick’s personal space. Words were exchanged, and the grievor admits he made physical contact with Mr. Herrick. Whether the grievor swore at Mr. Herrick, and the extent of his physical contact are disputed. The grievor spoke to Ms. Goodwin as well, and whether he swore at her is also disputed. The Union describes the altercation as a “mutually animated conversation”.
10 The Company characterizes the altercation as an assault and harassment of both Mr. Herrick and Ms. Goodwin. It says the grievor “physically confronted Mr. Herrick and Ms. Goodwin in a harassing and abusive manner”, and he threatened and verbally abused them both.
11 During the altercation outside the Shop, Mr. Herrick had pressed his radio microphone so that others in the Shop could hear the exchange. One of those who heard it was Mechanical Supervisor Rae Sexton. He spoke to another Mechanical Supervisor, John Lenko, and to Dick Finley, the LRC Manager. As the grievor walked by Mr. Finley’s office, Messrs. Finley and Lenko asked the grievor what had happened. The grievor said he would be making a formal complaint about Mr. Herrick’s smoking. Messrs. Finley and Lenko spoke to Mr. Herrick and Ms. Goodwin a few minutes later as they entered the Shop. Mr. Herrick and Ms. Goodwin were asked to provide written statements. The grievor was then interviewed by Messrs. Finley and Lenko, and asked to make a written statement. Before the grievor had completed his written statement, he was asked to return to Mr. Finley’s office. He was then removed from service by Mr. Finley.
12 On June 13, 2012, the Company conducted an investigation into the incidents on June 7. The investigation consisted of taking a formal statement from the grievor pursuant to Rule 27.1 and Appendix III of Agreement 12. Mr. Lenko conducted the interview.
13 On June 19, 2012, the Company issued a Form 780, signed by Mr. Finley. The document recorded that, as a result of a formal investigation, the grievor was being discharged for “harassing and assaulting fellow employees on June 7th, 2012”.
14 The documents in evidence include the statements of Mr. Herrick and Ms. Goodwin which were given, or at least requested, on June 7th, as well as written statements from both Mr. Finley and Mr. Lenko. The grievor’s formal statement on June 13 is of course central to the evidence.
15 On this evidence, the Company is forced to acknowledge that certain critical facts are in dispute, among them the speed at which the grievor drove through the intersection and how close his vehicle came to striking Mr. Herrick. The Company also concedes there are factual issues related to who was more aggressive and who swore during the subsequent altercation, as well as the core questions of whether the grievor threatened and assaulted Mr. Herrick and whether he swore at and threatened Ms. Goodwin.
16 The Company asserts that key facts are not in dispute but is not entirely correct in this regard. For example, the Company says it is not disputed that the grievor saw Mr. Herrick and Ms. Goodwin as they crossed the road in the intersection. But whether Ms. Goodwin was crossing the road as the grievor turned right is disputed. In answer to question 7 in his interview on June 13, the grievor said that “Sasha stopped and Herrick continued” as he was about to turn right. Also, the Company asserts it is not disputed that the grievor drove straight toward Mr. Herrick and Ms. Goodwin. In answer to question 8, however, the grievor said he was not driving at Mr. Herrick. Further, the Company argues it is not disputed that the grievor “jabbed his fingers in Mr. Herrick’s face”. Not even Mr. Herrick says the grievor touched him with more than one finger.
17 In sum, important elements of the factual foundation of the Company’s case are disputed.
18 Turning to the Union’s complaints about the investigation, I agree with the Company’s submission that Mr. Finley’s inquiries on the morning of June 7th did not constitute an investigation within the meaning of Rule 27 and Appendix III. Mr. Finley spoke to Mr. Herrick and Ms. Goodwin before reverting to the grievor to ask more questions about what happened. As the manager, he was properly seeking enough information to respond to the situation. In the words of Arbitrator Michel G. Picher in the 1988 award in CROA Case No. 1737, Mr. Finley was entitled to “gather preliminary information before proceeding to the formality of an investigation”.
19 However, this is far from the end of the Union’s complaints about the investigation. The written statements requested of Mr. Herrick and Ms. Goodwin on June 7 became part of the formal investigation in the sense that they were disclosed to the grievor and the Union at the beginning of the grievor’s interview on June 13. Moreover, the Company continues to rely on these statements in this arbitration. The real thrust of the Union’s complaint is that, insofar as Mr. Herrick and Ms. Goodwin are concerned, the investigation should have included a formal statement from each of them rather than proceed on the basis of the informal written statements requested on June 7th.
20 As the Union submits, the form of the two informal statements raises questions. Mr. Herrick’s, dated June 7, is typed and signed. The Union points out that there is no explanation of how the statement came to be typed. Does it signify that Mr. Herrick was assisted by Company personnel? Or, perhaps, it was printed by Mr. Herrick later in the day at his home, which would have given him an extended opportunity to frame the content. Ms. Goodwin’s statement is handwritten and dated June 7 at the top. But the Union draws attention to the fact it is dated June 11 at the bottom, beside her signature. Does it follow that she was provided four days to compose the statement? Was she assisted during those four days by Mr. Herrick or anyone else?
21 Although these are valid questions about the informal written statements, there is a more important problem with the Company’s reliance on them. Any reasonable scrutiny of these written statements would have disclosed the probability of a history between Mr. Herrick and the grievor. First, Mr. Herrick’s statement attributes this remark to the grievor during the altercation outside the Shop: “Mr. Westwood then said he is tired of my Bull S***, and is going to make a formal complaint about my F***ing smoking”. Second, Mr. Herrick could have proceeded into the Shop and made his complaint about the grievor’s driving but he chose instead to wait for the grievor to park his car and walk to the Shop. In the words of Ms. Goodwin in her statement, “Dan waited for him”. Third, Mr. Lenko’s undated statement suggests the grievor’s attitude toward Mr. Herrick’s smoking was not new: “I asked Kevin what had happened outside and he said that he had a problem with Dan Herrick and his smoking, and that he would be making an official complaint about Dan”. Fourth, Mr. Lenko’s statement also disclosed that Mr. Herrick had a continuing complaint about the grievor’s driving: “Dan said that Kevin Westwood had again driven through the stop sign at the south end of the shop, as he often does, and that Dan had made gestures at him in the past expressing his displeasure in Kevin’s not stopping” (emphasis added).
22 In short, the written statements requested on June 7 reveal two existing and continuing irritants between the grievor and Mr. Herrick. They also raise the real possibility that Mr. Herrick, who admitted he swore and gestured at the grievor when the grievor drove through the intersection, invited the altercation by making himself available for a confrontation after the grievor parked his car.
23 These indications of a pre-existing enmity between Mr. Herrick and the grievor should have given management pause to consider whether their relationship was a factor in the events of June 7. The question which should have surfaced was whether the history between these two contributed in any way to the two incidents which form the basis of Mr. Herrick’s complaints. Several aspects of the conflicting versions of events begged further exploration.
24 Since Mr. Herrick and Ms. Goodwin walked toward the intersection safely facing oncoming traffic on the left side of the road, the Union asks why they did not simply turn left at the intersecting road and continue toward the Shop entrance on the left side of that road. Why did they opt instead to cross at the intersection to the less safe, right side of the road to finish their walk? Did Ms. Goodwin actually stop walking at or in the intersection, while Mr. Herrick continued to walk (across the intersection, I infer). Was his decision to cross the road a protest against the grievor’s practice of not stopping at the stop sign? Was it intended to force the grievor to stop?
25 In a sense, a formal statement from Ms. Goodwin would have been more important than one from Mr. Herrick. She was the only third party witness to both incidents. Although her written statement appears to be supportive of Mr. Herrick, she was nevertheless the best prospect for relatively neutral information, less influenced by the relationship between the grievor and Mr. Herrick. The observation in her written statement that Mr. Herrick had waited for the grievor outside the Shop is probably an example of such relatively neutral information. Therefore, it would have been potentially useful to explore the level of consistency between her information and Mr. Herrick’s. Did she stop before crossing the intersection and, if so, why? What exactly did the grievor say to her? And so on.
26 Had these matters been pursued, it would have been very difficult for the investigation to avoid the two sources of conflict between the grievor and Mr. Herrick. The Company was aware of the smoking issue before June 7th. In answer to questions from the grievor’s representative during the grievor’s formal statement interview, Mr. Lenko recalled that sometime within the previous six months the grievor had complained about Mr. Herrick smoking, and Mr. Lenko had spoken to Mr. Herrick about a City of Surrey bylaw prohibiting smoking within 7.5 meters of a building entrance. But the source of the grievor’s annoyance in this regard was not merely the smoking itself. The Union called the grievor as a witness to briefly describe Mr. Herrick’s antics in relation to smoking. He testified that Mr. Herrick often engaged in exaggerated gestures of smoking when he had the grievor’s attention, waving a cigarette around at the end of his outstretched arms and puffing on it in an embellished manner. The grievor was apparently offended by this juvenile conduct and considered himself a victim of harassment on this account. In fairness to Mr. Herrick, although he was smoking as he crossed the road at the intersection on June 7th, the grievor acknowledged in cross-examination that he did not engage in any antics at that time.
27 The grievor’s description of Mr. Herrick’s smoking-related antics echoes Mr. Herrick’s disclosure to Mr. Lenko that he – Mr. Herrick – had expressed his displeasure to the grievor about running the stop sign by making gestures at him. But it also begs this question: Why did Mr. Herrick’s antics so annoy the grievor? It is painfully obvious that both men reacted and over-reacted rather childishly; both needed to grow up and behave accordingly.
28 This reality only serves to reinforce the risk that, to some extent at least, Mr. Herrick’s complaints about the grievor on June 7th were products of their relationship. The risk is illustrated by Mr. Herrick’s complaint was that the grievor’s car was “coming right for me”. Although this allegation was denied by the grievor, the fact is that Mr. Herrick was crossing the intersection as the grievor turned right in front of him. At some moment during the turn, the grievor’s vehicle was therefore pointed at Mr. Herrick. This does not transform the grievor’s passage through the intersection into an assault by vehicle. Whether it was reckless and, if so, how reckless, depends on the speed with which the grievor turned the corner (as opposed to the speed with which he passed the stop sign, which was unusually distant from the intersection) and the proximity of his car to Mr. Herrick when he passed. Given the nature of their relationship, the truth of what actually happened in this and other factual disputes probably lies somewhere between the extremes of complaint and denial.
29 The Union relies on Rule 27.1, which provides that no employee “shall be disciplined or discharged until they have had a fair and impartial investigation and their responsibility established”. Mr. Herrick and Ms. Goodwin are employed in a separate bargaining unit represented by a sister local of the Union, and subject to a collective agreement different than Agreement 12. But this does not erode the protection afforded by Rule 27.1. Mr. Herrick and Ms. Goodwin were employees and they could have been interviewed in the manner contemplated by Appendix III as part of the Company’s investigation.
30 As the Union contends, this right to a fair and impartial investigation is substantive, as is demonstrated by the 2011 award in SHP674. In that case, Arbitrator Picher concluded the grievor had been denied a fair and impartial investigation because the employer had demanded that he produce his personal and private cellular telephone records as part of its investigation into his use of his Blackberry during working hours. The demand was contrary to both the employer’s own policy and, possibly, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5. Despite Arbitrator Picher’s expressed disapproval of the grievor’s conduct leading to the investigation, he declared the discipline imposed by the employer was void ab initio because of the denial of a fair and impartial investigation.
31 Since the facts here do not include any unwarranted intrusion into the grievor’s privacy, the question is whether the grievor was denied a fair and impartial investigation because the Company did not interview Mr. Herrick or Ms. Goodwin in a manner similar or parallel to the investigation interview contemplated by Appendix III?
32 The Union cites the recent award in Canadian Pacific Railway and CAW-Canada, Local 101 (December 12, 2012), unreported (Hodges), because of facts which are closer to this case. The grievor was discharged for assaulting and threatening a fellow employee, and threatening more violence if the victim did not pay a debt owed to a third employee. The factual issues were extensive, and the employer’s investigation consisted of four formal interviews, followed by two supplemental formal interviews. But, despite the extensive investigation, Arbitrator Hodges lamented the absence of “independent evidence… to either contradict or corroborate” either the grievor or the victim.
33 The reason the Union relies on the Canadian Pacific award, however, is that the Arbitrator also criticized the failure of the employer to interview the employee to whom the debt was allegedly owed, describing him as “…a significant participant in the circumstances that led to the alleged assault”. The point was that, had the third employee been asked to give a formal statement, he “…may have been able to confirm if he was indeed owed money… and would have been extended the opportunity to truthfully shed some probative light on the alleged conflict” between the grievor and the victim. Even so, there was no suggestion that, as a result of this omission, the grievor was denied a fair and impartial hearing. In the result, a suspension was substituted for the discharge because of “clear and unexplained contradictions” in the evidence.
34 Like the third employee in Canadian Pacific, Mr. Herrick and Ms. Goodwin were potential sources of information about the background to the events of June 7th. But their role was not confined to background information. Since their informal written statements constituted the case against the grievor, one would have thought the statements would have been carefully scrutinized, and both of them questioned closely about the events of June 7th before the Company decided it was safe to rely on them to discharge the grievor. The history between the grievor and Mr. Herrick, and the likelihood that it influenced the complaints against the grievor, simply multiplied the imperative necessity of such an investigation.
35 In view of the Company’s reliance on the informal written statements of Mr. Herrick and Ms. Goodwin, the grievor and the Union were entitled to the opportunity to question them through the Company’s investigating manager, in accordance with the language in Appendix III governing formal investigations:
The employee and the authorized representative will have the right to hear all of the evidence submitted, and will be given an opportunity through the presiding officer to ask questions of the witnesses (including Company officers where necessary) whose evidence may have a bearing on their involvement. Where witnesses cannot be present, arrangements will be made to permit them to be questioned upon request, where practicable. The questions and answers will be recorded and the employee and the authorized representative will be furnished with a copy of the statements and all other evidence taken. (emphasis added).
But the grievor and the Union did not have the opportunity to peruse an appropriate record of evidence taken orally by means of a formal interview of either Mr. Herrick or Ms. Goodwin because no such interview occurred. In spite of the importance of their evidence to the Company’s assessment of the events and its conclusions regarding the conduct of the grievor, the Company ignored the indications of a history between the grievor and Mr. Herrick, and took the informal written statements by Mr. Herrick and Ms. Goodwin at face value.
36 In its reply submission, the Company cautioned against getting “too caught up in the way the investigation was conducted”. The Company emphasized that the informal written statements of Mr. Herrick and Ms. Goodwin were provided to the grievor and the Union at the outset of the grievor’s formal interview on June 13 and the Union could have asked questions about the statements at that time. Implicit in this submission is the proposition that the Union also bears responsibility for the process of preparing a case for arbitration. The Union acknowledged as much; it agreed that if the Company’s investigation does not include a witness the Union wishes to question, it is for the Union to introduce the evidence in some other manner. I also agree with the Company that the Union in this case could have asked questions about the written statements of Mr. Herrick and Ms. Goodwin during the grievor’s formal interview. But the failure to ask such questions does not erase the grievor’s entitlement to a fair and impartial investigation.
37 The Company also referred to the 2008 case leading to the CROA Case No. 3666 award, and the Company introduced the record of the interviews of the grievor in that case in preparation for arbitration. The grievor was discharged on grounds similar to the grounds advanced by the Company here: “conduct unbecoming an employee: violation of CN’s harassment free work place policy and uttering threats to another individual”. According to the record, the evidence given to the trade union and grievor at the beginning of the grievor’s interview included the “written narrative” of the victim of the alleged harassment and the “written narrative” of an Assistant Superintendent. I accept that these written narratives were probably the equivalent of the informal written statements of Mr. Herrick and Ms. Goodwin in this case. But in CROA Case No. 3666, the Company interviewed the grievor a second time. The grievor and his representative were given a follow-up “narrative” from the victim at the outset of the second interview. In other words, the investigation returned to the other employee involved in the incident for more information after the first interview of the grievor. No such additional inquiry was made in this case.
38 Another distinction between the case at hand and CROA Case No. 3666 is that the grievor in that case admitted making offensive statements to the other employee. The other allegations against the grievor were disputed and, it was held, the proof in that regard was not conclusive. However, the admitted misconduct was “deserving of a high degree of discipline”. The grievor was reinstated without compensation, which effectively substituted a lengthy suspension for the discharge.
39 With regard to the Company’s concerns about undue emphasis on the investigation, I find the three awards to which I have referred – SHP674, Canadian Pacific Railway and CROA Case No. 3666 – to be instructive. In every case, it is for the Company to conduct the fair and impartial investigation it considers necessary to support its decision to discipline. In CROA Case No. 3666, the Company relied on the written statements of the victim of the grievor’s harassment and alleged threats. It was not suggested that the investigation failed to comply with Rule 27.1 on this account but the evidence was insufficient to sustain a discharge because, although the Company obtained a second statement from the victim, the evidence did not prove an important element of the alleged harassment. A suspension was substituted for the discharge. In Canadian Pacific Railway, the failure of the investigation to include an interview of an employee who could have provided independent background evidence was not treated as a denial of the grievor’s entitlement to a fair and impartial investigation. Instead, it was a factor in the arbitrator’s conclusion that, absent corroborative evidence supportive of either of the contradictory versions of the relevant events, an important aspect of the alleged misconduct was not proven. Again, a suspension was substituted for the discharge. In SHP674, on the other hand, the discipline is declared void ab initio because the investigation included an unwarranted invasion of the grievor’s privacy.
40 Where does this case fall on the spectrum represented by these three awards? For reasons I have already canvassed – the complete reliance on the informal written statements of Mr. Herrick and Ms. Goodwin as the evidence of the grievor’s misconduct despite the indications of a history of animosity between the grievor and Mr. Herrick, plus the possibility that Mr. Herrick effectively invited the altercation – I consider the failure to conduct a formal interview of Mr. Herrick and Ms. Goodwin to be more than merely a matter of the adequacy of their written statements as evidence. I conclude that it is a failure which goes to the grievor’s entitlement to a fair and impartial investigation establishing his responsibility before the Company decides upon its disciplinary response.
41 I hasten to add that the Company probably remedied its failure to take a formal statement from Mr. Herrick by arranging for him to be present at the arbitration hearing on December 18, 2012. Because he was present, the Union was not denied the opportunity to elicit evidence from him with regard to the issues identified above and any other issue which might bear on the validity of his complaints against the grievor. Indeed, I assume the Company would have made Mr. Herrick available for cross-examination had the Union so requested. That being so, the Union was in a position to rectify the omission of a formal interview of Mr. Herrick. But, as I have already said, a fair and impartial investigation would have included a formal interview of Ms. Goodwin as well. She was not present at the arbitration hearing and the potential for her to shed more objective light on the events of June 7th renders this a fatal omission. Furthermore, the failure of the Union to ask questions about the informal written statements and the history between the grievor and Mr. Herrick during the investigation does not alleviate the process defect which flows from the Company’s failure to conduct a fair and impartial investigation.
42 Like Arbitrator Picher in SHP674, I would not want this conclusion to be regarded as condonation of the grievor’s conduct on June 7. At the very least, he failed to follow the rules of the road when he drove his vehicle on Company property and he appears to have been the aggressor in the altercation with the grievor. It is entirely possible that his conduct crossed the line into harassment during the altercation. Indeed, his misconduct may have been more serious than that, although, as I have said, the history between the grievor and Mr. Herrick dictates that neither version of any disputed facts should be wholly accepted. In the absence of a full inquiry into that history and its impact on the events of June 7th, there is a risk of inequitable treatment of the grievor when compared with the acceptance of Mr. Herrick’s complaint at face value. When this is considered in the context of no previous discipline on the grievor’s record over the course of 14 years’ service, it would have been unsafe to sustain the discharge. If this matter were to be decided on the material presented at the arbitration, a suspension of not more than two weeks would have been substituted for the discharge.
43 I find the grievor’s responsibility for the misconduct for which he was discharged was not established by a fair and impartial investigation and, for this reason, the discharge must be declared void ab initio. The discharge is to be removed from the grievor’s employment record and he is to be reinstated and made whole. I retain jurisdiction to determine any issue arising from this award.
Dated at Vancouver, British Columbia this 9th day of January 2013.
Rod Germaine, Arbitrator