IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE CANADIAN PACIFIC RAILWAY COMPANY
(the “Company”)
-and-
THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA), LOCAL 101
RE: ASSESSMENT OF 15 DEMERITS TO DJ MARTENS
FAILURE TO REPORT DAMAGE TO COMPANY VEHICLE
APRIL 12, 2011 – WINNIPEG, MANITOBA
ARBITRATOR: Michel G. Picher
APPEARANCES FOR THE COMPANY:
Brianne Sly - Director, Labour Relations
Shelley Smith - Labour Relations Officer
Dennis Flynn - Manager Mechanical
APPEARANCES FOR THE UNION:
Brian Stevens - CAW National Representative
Tom Murphy - President, Local 101
Rick Broszeit - Vice-President, Local 101, Pacific Region
A hearing in this matter
was held in Calgary, Alberta on March 26, 2013.
AWARD
Dispute:
The assessment of fifteen (15) demerits to David Martens for failure to report damage to Company vehicle MO1051 on April 12, 2011 at Winnipeg Yard.
Joint Statement of Issue:
On April 27, 2011 the Company conducted an investigation in connection with “Damage to CP vehicle MO1051, license plate number ccb-326. This was discovered and reported on April 13, 2011.
On June 6, 2012, the Company assessed fifteen (15) demerits to Mr. Martens for;
“Failure to report damage to CP vehicle MO1051 on April 12, 2011 at Winnipeg, MB.”
The Union has contended that Mr. Martens that (sic) the discipline is unwarranted and without just cause. The Union asks that the fifteen (15) demerits be removed from Mr. Marten’s discipline record.
The Company has disagreed with the Union’s contention and has declined the Union’s grievance.
FOR THE COMPANY FOR THE UNION
Shelley Smith Tom Murphy
Labour Relations Officer President, CAW Local 101
The grievor, Railcar Mechanic DJ Martens, commenced employment with the Company in February 1978. He had 33 years of service at the time of the incident here under consideration.
The record confirms that on Tuesday, April 12, 2011 Mr. Martens was assigned to perform rail car repairs on H4 track in Winnipeg yard. He was then assigned to work in a team which included Railcar Mechanic Ron Arjoon and Apprentice S. O’Reilly-Towle.
One of the repairs they were required to do involved making use of the oxyacetylene torch located in the rear of the truck. That meant that it became necessary to manoeuvre the truck into a narrow space close to the bad order car. It appears that Mr. Arjoon drove the pickup truck assigned to the crew, reversing it into its position under the instructions of Apprentice O’Reilly-Towle. Once the task was done, the crew boarded the truck and Mr. Arjoon drove it out of the narrow space into which it had been backed. As Mr. Arjoon drove forward the driver’s side of his truck came into contact with an uncoupling lever in a scrap bin located beside the track. Upon the contact having occurred Mr. Arjoon stopped and all three employees exited the vehicle to examine what had occurred.
According to a vehicle inspection form which was drafted upon the subsequent discovery of the damage, it is properly described as follows:
Damage to the driver’s side of the truck. The damage found was to the rear driver’s door – a 22 inch long crease beginning in the middle of the door extending rear ward into the door post. Lower box side panel, driver’s side – beginning at the front of the panel extending to the rear wheel opening measuring approximately 39 inches.
It is not disputed that neither the grievor nor either of his crew mates reported the incident or filed any accident form with the Company. It appears that they all formed the opinion, apparently first expressed by Mr. Arjoon, that the damage to the truck was slight, and merely cosmetic, therefore not requiring any further attention. Photographs tabled in evidence confirm that the truck was itself relatively worn and somewhat scarred from a number of years of service, having some 144,587 kilometres of mileage registered, being a 2002 Silverado 2500 model.
When the routine vehicle inspection performed on April 13, 2011 revealed the damage to the side of the pickup truck, all three employees were summoned to an investigation to determine what had occurred. There is no dispute as to the facts which that investigation disclosed, each of the grievors admitting that they observed the damage to the truck and shared the opinion, apparently first expressed by Mr. Arjoon, that the damage was merely cosmetic and need not have been reported. The Company took the view that in fact the grievors were under an obligation to report the damage, regardless of its severity, in keeping with their fundamental obligation to the Company. As it happens, the eventual repair of the 22 inch long crease commencing in the middle of the rear driver’s side door, and a further crease on the lower box side panel extending apparently 39 inches, required repairs costing some $976.41.
Following the investigation 15 demerits were assessed as the disciplinary penalty of the failure of the employees to report the damage to the vehicle.
Upon a review of the evidence I am compelled to agree with the Company that the damage to the truck was more than “cosmetic” and that the proper care of the vehicle, however old it might be, would have necessitated some degree of repair to its body following the incident in the Winnipeg yard on April 12, 2011. I am compelled to agree with the Company’s representatives that the employees were indeed under an obligation to report what had occurred to allow the Company to make the appropriate decision as to the repairs to be done, or indeed whether the damage was merely cosmetic and would not require any repairs. That decision clearly resided with the vehicle’s owner, the Company, and was not for the grievor or his crew mates to make.
The record confirms that the driver of the vehicle, Mr. Arjoon, was in fact assessed 40 demerits for failing to report the damage. His grievance against that discipline was subsequently heard by Arbitrator Vince Ready in June of 2012. Mr. Ready found that some additional allegations made against Mr. Arjoon were not in fact proven, and that he could only be held responsible for failing to report the damage. On that basis his discipline was reduced to 15 demerits.
In the Arbitrator’s view the same measure of discipline should attach to Mr. Martens. Along with Mr. Arjoon, he was among the senior members of the crew and should have been well aware of the importance of properly reporting damage to a Company vehicle occasioned during the course of his tour of duty. Upon a review of all of the facts, I am satisfied that the assessment of 15 demerits is well within the appropriate range of discipline. In my view it should not, in all of the circumstances of the instant case, be disturbed.
For all of the foregoing reasons the grievance is dismissed.
Dated this 2nd day of May, 2013 at Ottawa, Ontario.
________________________________
Michel G. Picher
Arbitrator