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:   DISMISSAL OF DJ MARTENS

VIOLATIONS OF THE MECHANICAL SAFETY RULES AND

PRACTICES FOR MECHANICAL EMPLOYEES

JUNE 22, 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 dismissal of David Martens.

Joint Statement of Issue:

On July 6, 2011, the Company conducted an investigation in connection with “his activities while on duty working repair area with J. Rudniski on June 22 2011.”

On June 6, 2012, the Company dismissed Mr. Martens for;

“Your willful violations of the Mechanical Safety Rules and recommended Practices for Mechanical Employees resulting in inappropriate use of tools resulting in an uncontrolled movement of car SOO 115809, and your failure to report an alleged injury on June 22, 2011 at Winnipeg, MB.”

The Union has contended that the termination is unwarranted and without just cause and in any event an excessive response by the Company following their investigation.  The Union requested the re-instatement of Mr. Martens forthwith and that he be made whole in all aspects.

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

This grievance concerns the discharge of Railcar Mechanic David Martens.  As noted above, Mr. Martens was terminated for allegedly engaging in unsafe practices and the inappropriate use of tools as well as the alleged failure to report an injury on June 22, 2011 at Winnipeg, Manitoba.

            The grievor, who has some 33 years of service, was assigned on June 22, 2011 to the IH-02 track in Winnipeg yard, working with Railcar Mechanic Joe Rudniski, working on the pad utilized for rail car repairs.

            During the course of their tour of duty the two employees were to perform repairs on car SOO 115809, a covered hopper rail car, which apparently had a leaking brake cylinder.  As the car in question was coupled to another car, it became evident that it would have to be uncoupled and moved approximately a half car length to the location of rail jacks which allow the repair to be performed.

            It is common ground that the general rule in the Winnipeg yard is to make use of trackmobiles to move rail cars.  At the time in question Mr. Martens spent some time attempting to secure a trackmobile.  According to his unchallenged account, one of the two trackmobiles normally available was being utilized by another crew, while it appears that the keys to the second trackmobile were in the possession of someone else, so that that vehicle could not be used.  Mr. Martens then decided to move the car manually.

            To do so, he utilized a 42 inch pry bar, using it as a lever between the rail and the rear wheel set of the car, essentially wedging or prying the wheel to get the car in motion.  It would appear that historically cars were moved somewhat in that fashion, albeit many years ago.  For that purpose an instrument called a “pump stick” was utilized.  Indeed, it appears that a pump stick was still present and available in the yard at the time of the events here under examination.

            Using his pry bar, the grievor did succeed in causing the hopper car to commence moving.  He then called to Mr. Rudniski to help him push the car.  It appears that both employees then stationed themselves at either side of the car, toward its rear, and successfully pushed it the half car length that needed to be covered.  It appears that the car came to a stop of its own volition at the point of the car jacks, and that the two employees then applied chocks to stabilize it.  It does not appear disputed that during the time he was pushing the car the grievor felt a twinge of pain in his right knee.

            Slightly after this event the grievor had a conversation with Manager Dennis Flynn.  During that exchange Mr. Martens related that he had experienced pain in his leg while performing the task of manually pushing the rail car, as described above.  Manager Flynn apparently advised the grievor that he must file a Marvin Personal Injury Report.  The grievor, however, declined to do so.  Shortly thereafter, at or about the time of his lunch break, the grievor booked off sick, claiming to be suffering from indigestion.  He returned to work without apparent injury or ailment several days later, on June 25, 2011, his next scheduled day of work.  He was then directed to complete the Marvin Personal Injury Report, which he did.  In his initial report he indicated that he and his work mate had manually moved the rail car by using “a car mover”, meaning a pump stick to get the vehicle rolling.  It appears that shortly prior to the investigation, held on July 4, 2011, the grievor amended the Marvin Report to state that in fact he had utilized a pinch rod and not a pump stick.

            Following the investigation the Company terminated the grievor.  As elaborated in its brief at the arbitration hearing, the Company stresses that the grievor did not initiate a job briefing prior to moving the car in question, he used an improper tool, which, the Company alleges, contributed to the leg injury which he experienced.  Additionally, in the Company’s view, the grievor violated the rules governing the movement of a rail car, as neither he nor his work mate were at the point of the movement to observe the track ahead nor in a location where they had a clear view of that area.  The Company alleges that the grievor’s plan, to stop the movement of the rail car by placing wooden chocks in front of the leading wheels, was itself an unauthorized method of proceeding which would place both employees in a degree of unnecessary danger.  Based on all of these considerations the Company decided to terminate the grievor’s employment.

            The Union’s representative submits that the discipline assessed against the grievor was excessive in the circumstances, stressing that the grievor did not feel that he had suffered a reportable injury and that by manually moving the rail car Mr. Martens was in fact following a practice which he had observed others doing earlier in his long railway career.  The Union’s representative additionally emphasizes that the Company points to no rule which prohibits the use of either a pry bar or a pump stick to move a rail car, nor to any rule which expressly prohibits the moving of any car without the use of a trackmobile.  He draws to the Arbitrator’s attention a relatively recent incident, apparently in the locomotive repair facility, when a supervisor in fact himself made use of a pump stick to advance a locomotive within the locomotive repair shop, stopping the forward movement of the locomotive by applying a chain chock.

            Upon a review of the evidence the Arbitrator has concern with the positions of both parties.  As has been well established in the KVP decision, an employer which wishes to allege the violation of a given rule by an employee must generally establish that a rule existed and that it was published or promulgated in clear and unambiguous language.  As stressed by the Union’s representative, the Company could not draw to the Arbitrator’s attention any written rule within the Winnipeg yard to the effect that the movement of rail cars by manual means was necessarily prohibited.  There is, moreover, a degree of inconsistency in the Company’s position to the extent that it decries the fact the grievor used a pry bar to move the rail car, stressing that he should have used a pump stick for that purpose.  Additionally, the mere fact that a pump stick remained available in the yard tends, at the least, to call into question the Company’s assertion that the clear and well understood rule was that it should never be used and only trackmobiles could be utilized to move rail cars.  The arguably ambiguous state of the yard rules is also not assisted by the unchallenged representation of the Union to the effect that a supervisor himself moved a locomotive a short distance without recourse to a trackmobile, apparently by means of a pump stick.

            Nor do I find the Company’s position compelling as regards the alleged failure of the grievor to report an injury.  Upon a close examination of the facts, it appears to the Arbitrator that what in fact occurred is that the grievor, somewhat exasperated at not having access to a trackmobile, related to his supervisor what he had done, embellishing his complaining account by the fact that he felt a twinge of pain his right knee as pushed the rail car.  I agree that if the grievor had suffered an injury of any significance, he was then under an obligation to report it, making proper use of the Marvin form for that purpose.  I am not, however, persuaded that in fact the grievor did suffer an injury that would require that kind of report, albeit he may have had some temporary discomfort in his leg during the manual movement the hopper car.

            That is not to say that I find that the grievor was not liable to a serious degree of discipline.  Firstly, there is no suggestion before me that a pry bar or pinch bar is the proper tool to use when effecting the manual movement of a rail car.  The pump stick, at least one of which was present in the yard, appears to be the instrument that is properly to be used when a rail car is to be moved manually.  I cannot reject out of hand the Company’s suggestion that by having recourse to the pry bar the grievor made use of an improper tool and arguably placed himself at some risk.

            Nor can I reject the Company’s concern with the fact that when the rail car was placed into motion there was no point protection and neither of the employees could in fact clearly see what was ahead of the rail car as it moved forward.  That method of proceeding was plainly in violation of the most fundamental rules, and that is so even if distance of travel was relatively short.

            In the Arbitrator’s view the instant case discloses errors of judgement on the part of both the grievor and the Company.  It is far from clear to the Arbitrator that the rule which the Company invokes to terminate the employment of a 33 year employee was in fact clear or properly promulgated in the workplace, albeit I accept that the general practice in moving rail cars was to make use of trackmobiles.  Nor, in my view, did the Company properly judge the situation by concluding that in fact the grievor wrongfully failed to report an injury.  As for the grievor, he clearly exhibited poor judgement in making use of the incorrect tool, a pinch bar, to manually move the hopper car he and his work mate were about to repair.  Additionally, as noted above, the movement of the car itself, without point protection, was a separate and important violation of the rules.

            While it is true, as the Company stresses, that the grievor does not have an exemplary disciplinary record, he was essentially without any safety violation since a prior reinstatement in April of 2003.  Between then and the incident reviewed in SHP 703, which occurred in April 2011, he was assessed demerits on two occasions:  5 demerits for the failure to report a workplace injury in 2004 and 20 demerits in 2006 for inappropriate and unacceptable behaviour toward a fellow employee.  His record was not, in my opinion, such as to merit his termination although a lengthy suspension would be appropriate.

            In the result, the grievance is allowed, in part.  The Arbitrator directs that the grievor be reinstated into his employment forthwith.  The period between his termination and reinstatement shall be recorded as a suspension, and Mr. Martens shall be compensated for one-half of his wages and benefits lost.  He must nevertheless appreciate that in light of his prior disciplinary record, this Award is rendered in the spirit of giving him another chance, an opportunity which he should undertake and pursue with great care.

            I retain jurisdiction in the event of any dispute concerning the interpretation or implementation of this Award.

Dated this 2^nd day of May, 2013 at Ottawa, Ontario.

________________________________

Michel G. Picher

      Arbitrator