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 40 DEMERITS TO RAIL CAR MECHANIC
MARCEL GAETZ – JOB BRIEFING AND BLUE FLAG
INFRACTIONS – JUNE 7TH, 2011
ARBITRATOR: Michel G. Picher
APPEARANCES FOR THE COMPANY:
Brianne Sly - Director, Labour Relations
Elena Tyminski - Labour Relations Officer
Anthony Manconi - Vice President Mechanical
Rob Beech - Supervisor Mechanical
APPEARANCES FOR THE UNION:
Brian Stevens - CAW National Representative
Ray Lawson - Vice President, Local 101, Pacific Region
Marcel Gaetz - Grievor
A hearing in this matter
was held in Calgary, Alberta on March 27, 2013.
AWARD
At the hearing the Company filed the following Ex Parte Statement of Issue:
EX PARTE STATEMENT OF ISSUE
On July 20, 2011, the Union advanced a Step II grievance contesting the Company’s June 27, 2011 disciplinary assessment of 40 demerits and subsequent dismissal of Rail Car Mechanic Marcel Gaetz for:
Failure to attend a crew job briefing after your work conditions had changed; failure to apply the required blue flag protection to drop table track RWCF and failure to confirm with your crew that Blue Flag protection was in place prior to commencing work on drop table track RWCF in Golden, BC on June 7th, 2011, a violation of STOC Module 1-3, Job Briefings and 1-7 Blue Flag/Light Protection.
The Union alleged that the assessment of discipline was too severe in nature and not consistent with discipline assessed across the property concerning 5-Alive violations and on track occurrences. The Union requested that the discipline assessed be greatly reduced or removed.
The Company disagrees with the Union’s contentions and has declined the Union’s grievance.
The Company also raises a preliminary objection with respect to the allegations contained in the Union’s Ex Parte Statement of Issue dated March 18, 2013.
The Company contends that the Union’s Ex Parte statement inappropriately expands the scope of the Union’s grievance. Specifically, the Company contends that:
1) The Union’s Step II grievance did not contend that the discipline assessed was without just cause as cited in their Ex Parte statement.
2) The Union’s Step II grievance did not contend that the discipline was excessive taking into consideration mitigating circumstances as cited in their Ex Parte statement.
3) The inclusion of these additional items was not properly progressed through the last step of the grievance procedure, unfairly prejudices the Company’s position, and should be excluded from arbitration.
FOR THE COMPANY:
Elena Tyminski
Labour Relations Officer
March 20, 2013
The Company raises a preliminary objection. It submits that the Union’s Ex Parte Statement of Issue filed before the Arbitrator improperly expands the scope of the Union’s grievance.
The grievance was initiated by a letter at Step II of the grievance procedure, a document dated July 20, 2011 signed by Local Vice President Jerry Thompson. The gist of the grievance is contained in the following sentences from that document:
The Union firmly believes that this assessment of discipline too severe in nature and is not consistent with discipline assessed across the property concerning 5-Alive violations and on tract occurrences. The Union respectfully requests that the discipline in this case be greatly reduced or removed and the Company adopt a re-education on policies and procedures in its stead, the Union believes in education through training rather than education through discipline would be better served in this case.
Subsequently, the Union’s Ex Parte Statement of Issue contained statements which the Company characterizes as raising contentions not raised in the Step II grievance. Specifically, the Company points to the fact that the Ex Parte Statement of Issue, filed as a final document prior to arbitration, asserts firstly that the discipline assessed was without just cause and, secondly, that the discipline was excessive taking into consideration mitigating circumstances.
The Company’s objection in the instant case is substantially similar to that which it advanced in SHP 705, dealing with a prior discipline involving this same grievor. For the reasons elaborated in that Award, I consider that the Company’s objection is in fact excessively technical and that for the Arbitrator to accede to it would be to depart from the clear directions which the courts have provided to arbitrators, namely that the grievance and arbitration process should not be cramped by an unduly technical approach to the interpretation of grievance documents.
From a practical standpoint, the position of the Company would drive the Union, and arguably the entire process, into an overly technical and arguably petty-fogging place. In virtually all arbitrations dealing with discipline arbitrators, who are mandated by the Canada Labour Code to consider whether they should or should not exercise their discretion to reduce a disciplinary penalty, generally take into consideration any relevant mitigating factors or aggravating factors which may be on the record. It is true, as the Company’s representative points out, that the originating grievance letter makes no reference to mitigating factors. Is a board of arbitration to conclude that the union is thereby precluded from raising mitigation during the course of the arbitration and that the arbitrator is equally precluded from taking that traditional factor into account? I think not. This is not a case where the Union’s Ex Parte Statement of Issue effectively raises entirely new provisions of the collective agreement or different sets of rights or obligations. Effectively, from the outset the Union has taken the position that there should be either a reduced form or discipline or no discipline whatsoever on the facts of the instant case. That, in my view, has not changed as between the drafting of the original grievance and the deposit of the Union’s Ex Parte Statement of Issue. Nor, in my view, would it serve the labour relations process well to develop arbitral jurisprudence which would compel the drafters of grievances to expressly address each and every possible legal contingency which might arise in the presentation of a grievance. The system of collective bargaining and grievance arbitration in Canada has evolved well beyond that kind of pleading technicality. It has done so with the blessing of the courts (see, eg., Blouin Drywall Contractors Ltd. v. Brotherhood of Carpenters and Joiners of America, Local 2486, [1975] O.J. No. 31(QL)). For these reasons the Company’s objection is dismissed.
I turn to consider the merits of the grievance. There can be no dispute but that the grievor was in violation of important safety rules during the course of his tour of duty on the drop table track in the yard at Golden, British Columbia on June 7, 2011. On that day, as part of a three person crew, Mr. Gaetz performed the functions and responsibilities of groundman. It is common ground that one of his responsibilities in that regard was to secure Blue Flag protection for his crew’s operations. In effect, once they had switched the necessary bad order cars onto the drop table track it was incumbent upon Mr. Gaetz to place blue flags at the switches at both extremities of the track upon which they were operating. He was also to place the switch at the entry to the drop table track in a locked out position so that no other yard movement could enter the track. In fact, he failed to do those things.
At the commencement of their tour of duty the grievor and his crew were required to switch out and gather a number of bad order cars from tracks adjacent to the drop table track where the ensuing wheel repairs would be performed. The record reveals that the grievor worked in tandem with fellow employee Ray Munroe who was the operator of the crew’s locomotive, while the third employee was occupied elsewhere gathering materials with a forklift. The grievor was utilizing a mule or four wheeled gas cart as he and Mr. Munroe moved the cars which they had switched out and gathered from the lead into the drop table track where the repairs would be performed. It appears that Mr. Gaetz opened the switch to the drop table track and then rode along beside the movement on his gas cart, as a point protection, until such time as the consist came to a stop, with the lead car having substantially passed the location of the drop table. When the cars were at a stop the grievor then proceeded to the Planner’s office to provide lineup information and to obtain the necessary worksheets for each car to be repaired. He then proceeded from the Planner’s office directly back to the drop table area where he and his fellow crew members proceeded to repair cars by changing out wheels. At that point it is significant to note that the grievor had entirely failed to place Blue Flag protection at the switches located at both ends of the drop table track, as he was required to do by the rules. Additionally, he failed to close and lock out the switch from the lead into the drop table track. In the result, other cars or movements could have entered that track, eventually colliding with the cars being repaired and causing a potentially fatal disturbance of the railcar situated at the drop table which might then be in elevated or jacked position with employees working at or near that location.
The record confirms that the situation eventually became discovered. After the crew had changed out and repaired the wheels on some four cars, at or about 18:15 hours, Mr. Munroe, who was the operator in the locomotive cab, stated over the radio that from his position he could see that the blue flag was not up at the switch location entrance to the drop table track. He then left his locomotive and walked back to that location where he raised the blue flag into position and attempted to secure the switch. In fact he locked the switch into the improper position, leaving the track open to the entry of other traffic. At that point, albeit in error, the grievor believed that their work location was properly secured.
It was not until some two hours later that the grievor and his crew were contacted by radio by a yard crew seeking permission to enter the area of the lead. It appears that they contacted the crew to ask whether they were in fact under Blue Flag protection. To that end the grievor was contacted by Supervisor Zajsek. Mr. Gaetz advised Mr. Zajsek that the drop table track was in fact lined, locked and under Blue Flag protection as he then believed had been confirmed by Mr. Munroe earlier. However, as the yard crew proceeded they saw that the target on switch number 87 leading to the drop table track was in fact lined into that track. They stopped their movement and contacted the supervisor to arrange to have the situation corrected. The grievor then proceeded on his gas cart to the location of the switch and finally lined it away and reapplied the lock. The crew then worked the balance of the shift without further incident.
Subsequently, on June 8, 2011, the day after the incident, all three employees, Mr. Gaetz, Mr. Munroe and Mr. Juneau were advised that they were held out of service pending an investigation in respect of their alleged failure to establish proper protection of the drop table track on their tour of duty the day prior. Following that investigation the Company assessed 40 demerits against the grievor. As his record then stood at 50 demerits for discipline described at further length in SHP 705, he was also provided a Form 104 advising that his services were terminated for the accumulation of demerits.
The position of the Company is that the grievor found himself engaged in another serious safety violation not long after the incident considered in SHP 705. Its representative submits that the failure to provide Blue Flag Protection and to lock out the switch leading to the drop table track where the grievor and his crew were working was an extremely serious safety violation deserving of a substantial level of discipline. It submits that an error so grave, and in such proximity to an earlier serious incident, calls into question the relationship of trust and the Company’s ability to rely on the grievor to work safely in the future.
The Union’s representative draws to the Arbitrator’s attention a number of prior awards where boards of arbitration have been called upon to consider the appropriate measure of discipline for Blue Flag violations. He cites cases where Blue Flag violations attracted discipline ranging from 10 demerits to 20 demerits, making specific reference to SHP 445, SHP 684 and SHP 688.
The Union’s representative also argues that the Company was, in his view, not compliant with its obligations to ensure a safe work environment in keeping with the Canada Labour Code, noting that the job procedures which governed the grievor were in fact amended and improved after the incident here under examination. He also draws a comparison to more stringent rules which appear to govern the involvement of supervisors in the securing of tracks in wheel pit operations in Toronto. Additionally, he questions on what basis the grievor was in fact assigned to work as groundman, citing physical limitations recorded for Mr. Gaetz, apparently since 2001, the nature of which would not be consistent with his performing the duties of a groundman. He asks how the Company could have allowed the grievor to be performing groundman’s functions in the first place.
I have some difficulty with the latter submission of the Union. The evidence confirms that by his own volition Mr. Gaetz has worked almost consistently as a groundman for many years. It appears that he has been able to perform those functions without apparent difficulty. No objection to that has been taken by either himself or his Union and I consider it to be less than persuasive to hear those protestations at this point in time.
I am also compelled to agree with the Company’s representative that the grievor did engage in what can only be described as a high degree of negligence. Firstly, as recorded above, he simply failed to fulfill his obligations to lock out the switch to the drop table track and place the necessary Blue Flag protection at either extremity of his movement. It also appears that the situation was arguably aggravated by the fact that the grievor and his crew did not engage in a proper job briefing, either before they undertook their switching operations or before they commenced repair work in the drop table track. I must agree with the Company’s representative that a proper job briefing would in all likelihood have alerted the grievor to the need to comply with the Blue Flag requirements.
The real issue in this matter is the appropriate measure of discipline. As noted in SHP 705, Mr. Gaetz has provided 24 years of service to the Company, recording no difficulties with safety violations for virtually all of that time, until the relatively proximate incidents reviewed in both SHP 705 and in this grievance. He was in fact without discipline of any kind for a period of 11 years prior to the incident reviewed in SHP 705.
Upon a review of all of the facts, I am not persuaded that a substitution of penalty is not possible in the instant case. The grievor must understand that given the seriousness of the safety infractions which he did commit in 2011, this Award must be understood as providing him with a second chance to prove himself.
The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation of any wages or benefits lost, and without loss of seniority. The 40 demerits shall be removed from his record and the period between his termination and reinstatement shall be recorded as a suspension.
I retain jurisdiction in the event of any dispute concerning the interpretation or implementation of this Award.
Dated this 2nd day of May, 2013 at Ottawa, Ontario.
________________________________
Michel G. Picher
Arbitrator