IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
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.
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