IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN NATIONAL RAILWAY COMPANY
(the Company)
AND
NATIONAL AUTOMOBILE, AEROSPACE,
TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
(the Union)
RE: GRIEVANCE OF DENNIS RUDNEY UNSAFE
WORK PRACTICES
Sole
Arbitrator: Michel G. Picher
Appearing For The Union:
D. Olshewski
National Representative
L. Lilley
Regional Vice-President, Local 100
B. DeBaets President,
Local 100
J. P. Vanderkoog
Area Representative, Local 100
K. Hiott Local
Chair
D. Rudney Grievor
Appearing For The Company:
R. Campbell Manager, Labour
Relations, Winnipeg
B. Laidlaw Manager,
Labour Relations, Winnipeg
J. Martynuk Superintendent
Car Shops, Transcona
R. Joss Supervisor,
Transcona
A hearing in this matter was
held in Winnipeg on Tuesday, November 15, 2005.
AWARD
This
arbitration concerns a grievance against the assessment of twenty demerits for
allegedly unsafe work practices resulting in an injury. The Union maintains
that the Company had no just cause for the assessment of any discipline and
seeks the removal of the twenty demerits from the grievor's record.
Certain
background facts are not in dispute. The grievor has been employed by the
Company since September of 1979, initially as a pipe fitter and since 1996 as a
car mechanic. A workplace injury in 2000 resulted in certain physical
limitations on the work which the grievor could perform. Among those, was that
he should lift weights of no greater than fifty pounds and should, in any
event, do no repetitive bending or lifting.
It appears
that in June of 2003 the Workers' Compensation Board authorities expressed
concern that the work being done by the grievor could cause him to suffer a
re-injury. As a result, commencing August 7, 2003 Mr. Rudney was assigned to
work in the Air Brake Shop. The work in that location involves overhauling and
cleaning air brake components used in both locomotives and freight cars. A
significant part of Mr. Rudney's work included overhauling and assembling air
brake valves, some of which can weigh up to forty-eight pounds. To that end,
his work bench was outfitted with a light jib crane which could assist in
lifting or manipulating any heavy valve.
It seems
that on occasion management had concerns as to whether Mr. Rudney was making
effective use of the jib crane. This appears to have arisen particularly in
March of 2004 when, in addition to his back problem, he was also complaining of
pain in his right shoulder. Although he indicated to Acting Superintendent John
Martynuk that the shoulder injury was not work related, Mr. Martynuk reiterated
the importance of working in such a way as to avoid aggravating his condition,
and in particular to use the jib crane. It also does not appear disputed that
similar advice was provided to the grievor by the Company's occupational
therapist, Mr. Mike Terpenning, on a number of
occasion between August of 2003 and May of 2005.
The injury
giving rise to the instant discipline occurred on May 12, 2005. On that day
there were some five heavy valves on the grievor's work bench. Because they
were bunched together, he attempted to lift the valve he was attempting to work
on so as to have proper access to it. In so doing, while lifting the valve with
both hands, he felt a severe aggravation of pain in his right shoulder, and a
"pop" in that location. It does not appear that any significant loss
of work time resulted, insofar as can be gleaned from the interim report. What
the report states is that the grievor was given a treatment of icing for some
15 minutes as a result of the incident.
Following an
investigation the Company assessed twenty demerits against Mr. Rudney's record.
It argues that his prior discipline with respect to unsafe work justified that
penalty. The record discloses that the grievor was in fact disciplined on some
five occasions between August of 2002 and March of 2005 for safety related
offences, including the failure to follow safe work practices, failing to
report an injury and, on one occasion, the failure to wear safety eye glasses.
The issue
before the Arbitrator is twofold. Firstly, did the grievor in fact perform an
unsafe act and, if so, what is the appropriate measure of discipline?
In the
Arbitrator's experience, it is unusual to see an employee disciplined for
simply sustaining or aggravating an injury. As reflected in the jurisprudence,
it is generally where an accident discloses some inattention or negligence on
the part of the employee that an employer will take the steps, through
discipline, to bring some correction to an employee's conduct. While an
employer, particularly an employer in heavy industry which is by nature safety
sensitive, has a legitimate interest in resorting to discipline to enforce safe
work practices, it is not every injury, in and of itself, which can fairly
justify discipline.
How do the
facts at hand resolve themselves with respect to whether the grievor can be
said to have engaged in culpable conduct? The evidence before the Arbitrator confirms
that the act of lifting the air valve did not involve any disregard by Mr.
Rudney of the limitations placed upon him. It is not disputed that he used both
hands to lift an air valve weighing approximately forty-five pounds. His
limitations allowed him to lift objects up to fifty pounds, although not
repetitively. Moreover, the material before the Arbitrator confirms that during
the course of his normal work day, when he handles air brake parts at locations
other than his workbench, Mr. Rudney is called upon and expected to use both
hands to lift air valves weighing between forty-five and fifty pounds. This, by
his estimate, might happen some fifteen times during a tour of duty during
which he is called upon to handle five separate air valves. He explains that he
has to move air valves manually from a cart onto an adjacent table, or into a
cleaning bay, on each occasion lifting them with both hands, albeit only over a
very short distance.
How can the
gesture which is held against Mr. Rudney be said to differ from those kinds of
moves? The Arbitrator cannot see how. As noted above, the restrictions placed
upon him do allow him to lift air valves of less than fifty pounds, a task he
is in fact required and expected to do as part of his modified duties. The
movement of the air valve which was jammed in place on his work bench was, to
all appearances, little different from the kinds of moves he is expected to
make during the course of his regular modified duties. What he did was not
unusual or reckless, in and of itself. While it is true that Mr. Rudney suffers
the vulnerability of an injured worker, particularly because of his shoulder
injury, that does not of itself make his conduct culpable.
If the
position of the Company were to be sustained in the case at hand the grievor
would be placed in a position of absolute liability for any injury, including
an injury which occurs during the normal course of his approved modified
duties. With respect, the Arbitrator cannot endorse nor enforce such a
draconian standard. If discipline is to be justified, it is incumbent upon the
Company to demonstrate that the grievor stepped outside the norms and
expectations of his modified duties in such a way as to negligently or
recklessly cause himself injury. While it may be that using the jib crane would
have avoided the injury, the grievor's actions were nevertheless within his
approved limitations. After a careful review of the evidence the Arbitrator is
satisfied that, on the balance of probabilities, the Company has not discharged
the onus of demonstrating any culpable conduct in the case at hand. There was,
very simply, no basis to assess any discipline against Mr. Rudney.
For the
foregoing reasons the grievance is allowed. The Arbitrator directs that the
twenty demerits assessed against the grievor be stricken from his record.
Dated at Ottawa this 30th day of November 2005.
_________________________________
MICHEL G. PICHER
ARBITRATOR