THE CANADIAN PACIFIC RAILWAY COMPANY
THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA), LOCAL 101
RE: RAIL CAR MECHANIC MARCEL GAETZ
HELD OUT OF SERVICE FOR 19 DAYS
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.
The Union alleges that the Company improperly held the grievor out of service beyond the time permitted within the collective agreement. Its Ex Parte Statement of Issue, filed at the hearing, reads as follows:
EX PARTE STATEMENT OF ISSUE
Rail Car Mechanic Marcel Gaetz was removed from service on June 8, 2011 pending investigation of an incident which occurred on June 7, 2011.
The Union contends that the grievor was improperly held out of service without pay for 19 days and that this is beyond the limits of Rule 28 of the Collective Agreement. The Union has requested that the grievor be made whole.
The Company disagrees with the Union’s contention and has declined the Union’s grievance.
FOR THE UNION
President, CAW Local 101
The chronology of events here under consideration is not in substantial dispute. The grievor was involved in a work related incident on June 7, 2011. The following day he was removed from service pending an investigation. His own investigation was conducted on June 14 and 16, 2011, while his workmates were made the subject of investigation statements on June 13 and 15, 2011. Finally, on June 27, 2011, the Company advised the grievor that he was assessed 40 demerits for the incident of June 7, 2011 and further, that he was discharged for the accumulation of demerits. In the result, the grievor was effectively held out of service for a total of 19 days, being from June 8 to June 27, 2011, at which point he was discharged. His grievance against discharge has been partially successful, as reflected in the accompanying Award, SHP 706.
The position of the Union is relatively straightforward. It draws to the Arbitrator’s attention the provisions of rule 28.1 of the collective agreement which relate to the conduct of disciplinary investigations and provide as follows:
28.1 No employee shall be disciplined or discharged until he/she has had a fair and impartial investigation and his/her responsibility established. An employee may be held out of service pending investigation up to five working days, which can be extended by agreement with the Regional Union Representative. Employees shall not be held out of service unnecessarily.
The Union’s representative submits that the only contractual right which the Company had to withhold the grievor from service was the possibility of removing him for no more than five days pending the investigation, as provided in rule 28.1. The Union acknowledges that an employee can in fact be held out of service for a longer period, but that kind of extension can only result from an agreement with the Regional Union Representative, as specified within the rule. In the circumstances, therefore, the Union submits that the grievor was wrongfully held out of service and seeks the compensation for wages and benefits lost by the grievor between the period of June 8 and June 27 inclusive.
The Company’s representative stresses the factual context in which this grievance arises. Its representative notes that the grievor was involved in an extremely serious safety infraction during his tour of duty on June 7, 2011, creating the circumstance of a dangerous work arrangement for his crew, which was virtually unprotected by the posting of any Blue Flags or the locking out of the controlling switch to the track on which they were working. She stresses that the grievor had been found responsible for a separate critical safety infraction only two months prior to this incident. On the whole, she argues, the Company was justified in considering that the grievor posed a substantial safety risk and should not be returned to service until such time as the investigation was complete. She notes that as the grievor’s record stood at 50 demerits following the prior incident, he was plainly in a dismissible position at the time.
According to the Company the factors to evaluate as to whether an employee is to be held from service are the following:
a) whether there is a concern regarding employment safety;
b) whether the nature of the offence is dismissible in and of itself;
c) whether the offence, coupled with the employee’s existing discipline, places the employee’s continued employment in jeopardy.
The position of the Company is that all of the above factors obtained in the case at hand. The Company further invokes the comments of Arbitrator Weatherill in CROA 193 as well as the employer’s obligations to ensure a safe workplace as reflected in sections 124 and 125 of the Canada Labour Code Part II.
The Company also draws to the Arbitrator’s attention the provisions of rule 28.3 of the collective agreement which reads as follows:
28.3 An employee will not be held out of service unnecessarily pending the rendering of a decision. The decision will be rendered as soon as possible but not later than 28 calendar days from the date the report of the investigation is referred to the officer(s) designated in the grievance procedure unless otherwise mutually agreed.
The Company notes that the above provision contemplates an extended period during which an employee may well be held out of service, beyond the time of the investigation, through the period pending the rendering of a decision following the investigation. While rule 28.3 obviously seeks to minimize the time during which an employee may be held out, prohibiting the Company from holding an employee out of service “unnecessarily”, the Company’s position is that implicitly the rule recognizes that there are circumstances where the holding of an employee out of service is in fact a necessary option. It may be noted that in the instant case the disciplinary investigation was formally completed on June 16, 2011. The discharge of the grievor on June 27, 2011 was clearly within the 28 day period contemplated within rule 28.3.
From a practical standpoint the Company submits that it can comply with the requirements of rule 28.1 in the event an employee is held out of service for a period longer than five days and is subsequently found to be blameless. In that circumstance, the Company submits that he/she can then be reimbursed for the days held out of service beyond five days, thereby achieving compliance with rule 28.1.
The Union’s representative has a different view. He submits that the language of rule 28.1 is straightforward. In his view it is only by the agreement of the Regional Union Representative that any employee can be held out of service pending his or her investigation beyond the five days contemplated in rule 28.1.
The Arbitrator has some difficulty with the position advanced by the Company. If the Company’s position is correct, there would virtually be no need to ever consult with the Union, much less to obtain agreement on the extension of the five day period from the Regional Union Representative. In effect, the position of the Company seems tantamount to saying that the limitation of five days being held out of service will apply only to employees who are subsequently found to be deserving of no discipline. In that instance, according to the Company, they can be compensated retroactively. Alternatively, an employee who, like the grievor, is adjudged by the Company to be deserving of discharge, no compensation for being held out of service beyond the five day period is to be realized.
In my view it is important to view rule 28.1 in context. Many industrial infractions will be relatively minor in nature, albeit they do justify the conducting of an investigation. Rarely in such cases will the employer have any valid reason to hold an employee out of service pending the investigation. Admittedly, different considerations arise where an employee has been involved in more serious conduct, such as workplace violence, threats to other employees or supervisors, theft or, as in the instant case, a serious safety infraction. However, rule 28.1 makes no exception for those more serious forms of workplace infraction.
That does not mean the Company is unable to hold an employee out of service beyond the five day period. It simply means that it must in good faith seek to obtain the agreement of the Regional Union Representative. I am satisfied that that agreement could not be unreasonably withheld. In such a circumstance, the Company might well be justified to continue to hold an employee out of service, even if the Regional Union Representative might not necessarily agree.
The difficulty in the instant case is that the rule was administered in such a fashion that there was simply no attempt to discuss an extension of the time during which the grievor might be held out of service beyond the initial five days. With the greatest respect to the Company’s view, if the parties had intended for the rule to simply say that an employee is to be held out of service at the discretion of the Company, and compensated thereafter depending on whether he/she is found to be responsible for any wrongdoing, they could have plainly so provided in the language of the collective agreement. They did not, however, use that formula.
What, then, does the instant grievance disclose? Clearly, the Company continued to hold the grievor out of service beyond five days pending his investigation and it did so without seeking the agreement of the Regional Union Representative. The parties must be presumed to have intended the words of rule 28.1 to have some meaning and some significant operation in the administration of investigations.
I am compelled to the conclusion, in the instant case, that the Company did depart from the intention and restrictions of rule 28.1 of the collective agreement. I am satisfied that the Company was entitled to hold Mr. Gaetz out of service for five working days calculated from and including June 8, 2011. However, for the period beyond beyond June 13, 2011, until such time as the investigation was completed on June 16, 2011 I do not see on what basis the grievor could be held out of service, absent a bona fide attempt on the part of the Company to obtain the agreement of the Regional Union Representative.
As to the time between June 16, 2011 and the grievor’s discharge on June 27, 2011, the provisions of rule 28.3 would govern. At the conclusion of the investigation the Company had in its possession facts which in my view could fairly cause the Company to believe that the grievor posed an undue safety risk in the workplace. That is so given the obviously flagrant violation of his duty to secure Blue Flag Protection to protect himself and his crew-mates, and to enhance that protection by properly locking out the switch accessing their track, all in a manner that called into question Mr. Gaetz’ continued employability. Therefore, having regard to the application of rule 28.3, I am satisfied that the grievor was not, following the conclusion of the investigation, held out of service unnecessarily pending the rendering of the decision in respect of his discipline.
In the result, while I believe that in all likelihood the Union would reasonably have agreed to extend the period of five days pending the investigation upon a reasonable request by the Company, no such request was ever made. I am therefore compelled to conclude that the grievor was in fact improperly held out of service for the period beyond five days, which is to say June 13, 14, 15 and 16, 2011. I therefore direct that the grievor be compensated for all wages and benefits lost in relation to those four days. As noted above, the period following June 16 is governed by rule 28.3 and, in the circumstances, I am satisfied that given the information available to it at the conclusion of the investigation, the Company did not then hold the grievor out of service unnecessarily. That aspect of the Union’s claim for remedy must, therefore, be denied.
The matter is remitted to the parties for the implementation of the remedy. 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