CANADIAN NATIONAL RAILWAY COMPANY
UNIFOR, LOCAL 100
RE: RELEASE OF R. BULLOUGH
FROM THE CAR MECHANIC
IN ACCORDANCE WITH RULE 30.8
ARBITRATOR: MICHEL G. PICHER
APPEARANCES FOR THE COMPANY:
J. Darby – Labour Relations Associate
R. Bateman – Director Labour Relations
S. Saleem – Mechanical Supervisor
APPEARANCES FOR THE UNION:
B. Stevens – National Representative
R. Davis – Local Chair
D. Ratajewski – Regional Vice President
R. Bullough – Grievor
A hearing in this matter was held in Montreal on February 14, 2014.
The Union grieves the termination of the apprenticeship of car mechanic R. Bullough. Mr. Bullough was released from his employment on November 2, 2012. The nature of the dispute before the Arbitrator is reflected in the statement of dispute and joint statement of issue filed with the Arbitrator which reads as follows:
The release of R. Bullough from the Car Mechanic Apprenticeship program in accordance with Rule 30.8.
Joint statement of Issue:
On November 2, 2012, Mr. Bullough was released from the Car Mechanic Apprenticeship program at CN for not demonstrating the “desire and aptitude” required to be retained in his apprenticeship and the employment relationship was immediately severed.
The Union contends that Mr. Bullough was treated unfairly and wrongly by the Company and that the Company violated Rules 23.1, 23.30, 27.6, 30.4, 30.5, 30.6, and 30.9. The Union requests that the grievor be reinstated immediately, and made whole for all lost wages and benefits, including interest payments.
The Company disagrees with the Union’s contentions and has declined the Union’s grievance.
FOR THE COMPANY: FOR THE UNION:
J. Darby B. Stevens
Labour Relations National Staff
The grievor entered service on June 6, 2011 with the goal of eventually training as a qualified car mechanic. Successful qualification as a journeyman generally involves a three to four year period of apprenticeship. As an apprentice in training the grievor was subject to the provisions of Rule 30.8 of the collective agreement which provides as follows:
Apprentices must throughout the apprenticeship continue to display the desire and aptitude to learn the trade or they will not be retained in the service except as may be otherwise mutually agreed.
The Company raises some three separate heads of concern with respect to the grievor's performance as an apprentice. It should be stressed that it takes no issue with his technical ability or work performance. Firstly, the Company notes that the grievor failed to report damage to a CN vehicle which he was using, as confirmed in an employee statement taken on December 14, 2011. Secondly, in June of 2012 the grievor was met to discuss what the Company viewed as his attendance management issues. It notes that the grievor’s absenteeism rate was then 2.56%, being greater than the overall average for the GTA mechanical department which was 0.75%. It does not appear disputed that the grievor had missed several days of work, generally for reasons related to his parenting obligations and babysitter problems.
The record confirms that the grievor’s attendance caused an investigation to be conducted on July 25, 2012. That resulted in a letter of caution, indicating that a regular review of his attendance record would be maintained, although that communication includes the notation “This is not a disciplinary letter.” The letter is dated July 26, 2012 and appears to follow on an incident in relation to the grievor’s absence on July 19, 2012.
What the Company describes as the “culminating incident” occurred on Sunday, October 28, 2012. Assigned to work in the Company’s Oshawa Mechanical Yard on that day, during the course of his duty period Mr. Bullough was found to be asleep in his personal vehicle in the Company parking lot.
Following the foregoing incident the Company came to the view that the grievor was not displaying the requisite desire and aptitude to learn the car mechanics trade. On that basis it decided to release him from service under the provisions of rule 30.8. Mr. Bullough was advised of the Company’s decision on November 2, 2012. He was then provided a letter of termination which contains, in part, the following comment:
It is clear that your attendance, adherence to the ABC process and your ability to work safely did not meet the expectations of the Company while employed here as a Car Mechanic apprentice.
Having reviewed the evidence, while I am satisfied that the Company did have some basis for the measure that it took, I am persuaded that it is appropriate to give the grievor a second and last chance to demonstrate his ability to work productively, as well as to maintain satisfactory attendance. In my view a remedial order can be fashioned to protect the Company’s legitimate interests in that regard. In coming to that conclusion I consider it significant that in fact the grievor’s rate of attendance, which admittedly had been problematic in the past, was clearly improving in the time period leading up to the termination of his employment. While the sleeping incident is obviously not without concern, it occurred as an isolated incident in the employment of an otherwise qualified and productive employee.
The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for any wages and benefits lost, and without loss of seniority. As a condition of his reinstatement the grievor must accept to be subject to the following conditions: for a period of not less than two years from the date of his reinstatement Mr. Bullough shall maintain a rate of attendance equal to or better than the average of his peers in the GTA Mechanical Department. Should he register a more negative rate of performance during any consecutive four month period during that time, for whatever reason, he shall be subject to termination.
I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Dated at Ottawa, Ontario this 18th day of February, 2014.
Michel G. Picher