SHP615

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

("the Company")

AND:

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND

GENERAL WORKERS OF CANADA (CAW-TCA CANADA), LOCAL 100

("the Union")

IN THE MATTER OF:

GRIEVANCES AND DISCHARGE OF MR. JOE EBEJER

SOLE ARBITRATOR:

Kevin M. Burkett

APPEARANCES FOR THE COMPANY:

Frank O'Neill - Manager, Labour Relations, Toronto

Ron Bowden - Manager, Labour Relations, Toronto

Ross Bateman - Sr. Manager Labour Relations, Toronto

Graham Yeadon - Asst. Superintendent, Mechanical

Lou Lisi - CN Police Constable

Frank Lafarciola - Senior Supervisor, Mechanical

Dalton Pinkerton - Mechanical Supervisor

Jim Cheeseman - Mechanical Supervisor

APPEARANCES FOR THE UNION:

Brian McDonagh - National Representative

John Gouveia - Vice-President Local 100

Drew Ratajewski - Local Chair, Local 100

Joe Ebejer - Grievor

A hearing in this matter was held on November 5 and 6, 2007 in Toronto, Ontario.

I have before me a number of related grievances. The grievor, Mr. J. Ebejer, a car mechanic with some 30 years' service, was terminated effective April 28^th, 2006 for having accumulated in excess of 60 demerit points under the Company's system of demerit-based discipline. The grievor accumulated a total of 70 demerit points related to five separate incidents over the nine-month period ending April 28^th, 2006. The Union grieves in respect of each of these incidents. I have before me these five grievances and, in addition, a grievance that challenges the automatic termination of employment on the basis of the 60-point threshold. Finally, in addition to being terminated for having exceeded 60 demerit points, the grievor was also terminated for a separate and unrelated breach of the Company's drug and alcohol policy. This grievance is also before me for determination. There is no dispute with respect to my authority to hear and determine these matters.

A hearing was convened on November 5^th, 2007 that continued through November 6^th, 2007. The hearings in respect of two of the five demerit point grievances were completed and, in addition, the hearing in respect of the alleged violation of the Company's drug and alcohol policy that was relied upon as separate grounds for termination was completed.

An issue arose at the completion of these hearings as to whether I should issue awards in respect of the grievance hearings that had been completed. The Company argued that it would be best to wait until all the grievances before me had been heard before issuing an award in respect of any of the individual grievances. The Union argued that I should issue awards with respect to the completed matters because, if the Company was successful on the drug and alcohol case and the discharge was upheld, that would be the end of these matters and, conversely, if it was successful in the drug and alcohol case and successful in having the grievor's demerit points reduced below the 60 threshold, the grievor would be returned to work without having to wait for the disposition of the grievances not yet heard. I ruled that because each of these grievances challenges a separate and independently imposed act of discipline, each could be decided separately. I ruled further that I should decide the matters already heard because the effect of so doing could potentially end the need for additional hearing dates or return the grievor to work thereby ending the ongoing liability. However, on reflection, I have decided that, should the grievances be upheld in whole or in part, I should remain seized with respect to compensation until the completion of all the grievances before me.

Safety Boots

Mr. Ebejer was assessed 30 demerit points for being in the workplace on July 9^th, 2005 wearing safety boots that did not meet the Company's personal protective equipment standards as updated April 20^th, 2005. More specifically, it is alleged that Mr. Ebejer was wearing safety boots in the workplace that did not have a defined heel of at least .5 inch and that the laces were not wound to the top and tied. Photographs of the boots worn by Mr. Ebejer on this day, that were placed into evidence, confirm that the boots were substandard, as alleged. There is no dispute with respect to my authority to hear and determine this matter.

Mr. Ebejer was in the management office on July 9^th, 2005 discussing a railcar fire that had occurred while he was welding in the car when the management personnel present noticed the condition of his safety boots. Mr. Ebejer was told that he could not continue working while wearing these boots and was given the opportunity to leave the workplace for the purpose of purchasing a new pair of safety boots. Instead, he borrowed a pair of safety boots that met the Company's safety boot standards and completed his shift. He replaced the substandard safety boots prior to his next scheduled shift. He was asked questions concerning his knowledge of the safety boot requirement while in the management office on July 9^th, 2005. There was no Union representative present at the time. Mr. Ebejer was notified of a formal investigation to be held on July 13^th, 2005 for the stated purpose: "Your being observed wearing safety boots in poor repair on July 7^th, 2005."

The evidence is that the usual response of the Company in the case of a bargaining unit employee wearing substandard safety boots in the workplace is a direction to the employee to replace the substandard boots. The usual response is not the imposition of demerit points. The evidence is that only one employee from within this 1,800-member bargaining unit has been assessed demerit points for a safety boot violation. In that case, however, the employee refused to comply with his supervisor's instruction to properly lace his safety boots. He was assessed 15 demerit points.

There is a question in this case with respect to the grievor's knowledge of the revised safety boot standards. The grievor had been off work on a lengthy medical leave when the current revisions were made in April 2005. He was not told on his return to work that he should check these standards nor were they posted within the workplace. They were posted on the Company intranet. I am satisfied from a review of the investigative transcript that Mr. Ebejer first became aware of the heel standard when told on July 9^th in the management office. He was unaware of the requirement for a defined heel of at least .5 inch prior to being confronted. As for the lacing requirement, I am satisfied that Mr. Ebejer knew or ought reasonably to have known at all times that his safety boot laces should be wound to the top and tied. Mr. Ebejer should have been aware that a failure to so tie his laces would present an obvious safety risk.

The Union raises a number of threshold issues. Firstly, the Union takes the position that, because the July 13^th investigation was in respect of the grievor's "July 7^th, 2005" safety boot infraction and because there was no July 7^th, 2005 safety boot infraction but rather a July 9^th, 2005 alleged safety boot infraction, the discipline must be rendered null and void because the July 9^th, 2005 alleged safety boot infraction was never investigated. The reference to a July 7^th, 2005 safety boot infraction was an obvious typographical error that had no bearing on the conduct of the investigation. Both the grievor and the Union knew full well that the investigation was in respect of the alleged July 9^th safety boot infraction and conducted themselves accordingly. In the absence of any prejudice, I reject the Union submission.

Secondly, the Union maintains that because the grievor was asked questions pertaining to Company rules while in the management office on July 9^th, 2005, he should have had Union representation. It is the position of the Union that absent such representation, the ensuing discipline should be rendered null and void. I reject the Union submission in this regard on the basis of the line of authority that upholds the Company's right to conduct conversations with persons involved in an incident in a preliminary manner before determining whether a formal investigation should be convened. This is what occurred here and, further, neither the grievor nor the Union suffered any prejudice.

Thirdly, the Union argues that the discipline should be rendered null and void because the grievor, through no fault of his own, had no knowledge of the specifics of the rule. While I do not accept that the grievor's lack of knowledge (that I have accepted in respect of the defined heel requirement) provides him with a complete answer, it is clearly a factor that should be taken into account in assessing the severity of the discipline. More specifically, it should have been taken into account that the grievor was off work on an extended medical leave when the standard was revised, that he was not told to check the standard on his return to work and that the revised standard, although posted on the Company intranet, was not posted within the workplace.

Finally, and most importantly, one of the hallmarks of fair and enforceable discipline is equality of treatment amongst employees within the bargaining unit. On the evidence before me, the usual Company response to the wearing of substandard safety shoes within this bargaining unit is a direction to replace the shoes. The Company was able to point to only one other case within this bargaining unit in which an employee received demerit points for wearing safety shoes that did not conform to the standards but, in that case, in contrast to this, the employee was insubordinate in refusing to properly tie his laces when directed to do so. The employee was assessed 15 demerit points. In this case, the grievor replaced the safety boots in question when directed to do so and completed his shift.

When reference is had to the reasons why the grievor did not have knowledge of the heel requirement, when reference is had to the grievor's compliance when directed to change his safety boots and most importantly when reference is had to the absence of any other bargaining unit employee ever having received demerit points for a first offence of wearing safety shoes in the workplace that did not meet the standards, it is clear that the 20-point assessment against Mr. Ebejer was excessive. In my view, even taking into account Mr. Ebejer’s failure to have properly laced his safety boots, he should have been treated no differently than anyone else; that is he should simply have been directed to replace his safety boots and to lace them to the top. Accordingly, I hereby direct that the 20 demerit points be removed from Mr. Ebejer’s record and a notation substituted that he was warned about the condition of his safety boots and not having them properly laced.

I remain seized.

Car Fire

Mr. Ebejer was assessed 15 demerit points following the July 14^th, 2005 investigation into fires on the wooden decking of the railcar within which he was cutting steel stakes using an oxyacetylene cutting torch. The 15 demerit points were assessed because of his "failure to ensure a safe working environment while performing work on CN6222249 on July 9^th, 2005."

By way of background, Mr. Ebejer was assigned to perform this cutting task on July 9^th, 2005. It is not disputed that the weather had been extremely dry and hot. A process review had identified a requirement for water fire protection and, towards this end, the Company had purchased a number of water fire extinguishers, three of which were located on the east side of the track upon which he was working. However, their location was not posted and Mr. Ebejer was otherwise unaware of their location. Mr. Ebejer, who is a 30-year employee with a great deal of experience doing this type of work, had with him a single water fire extinguisher and a CO₂ extinguisher that he considered to be sufficient in the event the use of the cutting torch caused the wooden decking to catch fire. Mr. Ebejer confirmed in the July 14^th investigation that, given the proximity of the stakes to the wooden floor and because it was a four-way cut, he "expected that the floors could potentially catch fire."

When the decking around the first cut began to smoulder, Mr. Ebejer sprayed the fire with water. When he thought the fire was out, he started the second cut. When he had finished the second cut, Mr. Ebejer noticed that the floor around the first cut was again on fire. He used the water extinguisher to put out that fire. He then noticed that the floor around the second cut was smoking. He began to spray water around the second cut but the water ran out. He left the car to refill the extinguisher and returned to put out the fires. He then started the third cut but realized that the original fires had again broken out. At this juncture, he used his cell phone to call for help and again left to refill the extinguisher. Each time he refilled the extinguisher, he was away from the site for about five minutes. Help arrived in the person of two yard supervisors. The fire was extinguished using both the water extinguisher and the CO₂ extinguisher.

Mr. Ebejer then visited the office because his skin was itchy and his eyes were burning from the CO2. He asked for permission to take a shower. It was at this time that Mr. Ebejer was asked a number of questions concerning this incident by Supervisor Lafarciola.

The Union raises a threshold issue going to the validity of the July 14^th investigation. It is the position of the Union that the Company violated rule 27.1 when it interviewed Mr. Ebejer on July 9^th without Union representation when he was in the management office after the fires had been extinguished and that the fruits of the July 9^th interview tainted the July 14^th investigation. I reject the Union submission in this regard. The Company is entitled to make preliminary inquiries in order to determine if a formal investigation is required and did so in this case. These preliminary inquiries did not taint the July 14^th, 2005 investigation.

Turning to the merits, Mr. Ebejer did not intentionally or deliberately set the fires in question. However, he is a long service car mechanic who must be presumed to understand the risks associated with using an oxyacetylene torch within an inch of a wooden floor deck, especially during a hot, dry summer period. While the CO₂ extinguisher was used in the end to put out the fire, water is the preferred agent of suppression and Mr. Ebejer knew this as evidenced by his refilling of the single water extinguisher he had brought with him. Clearly, the single water extinguisher brought to the site by Mr. Ebejer was inadequate and, in my view, he should also have known this. He, therefore, should have made inquiries as to where additional water extinguishers were located.

While there was an absence of intent and while the Company could have been more proactive in directing the grievor to the other water extinguishers prior to this assignment, Mr. Ebejer, as a 30-year employee, must be presumed to have a realistic understanding of the risk involved in using an oxyacetylene cutting torch in these circumstances. He should have been aware that preplanning and preparation are critical components to creating a safe work environment and that, in this regard, one errs on the side of caution. Accordingly, he must shoulder most of the responsibility for what followed.

While I might have assessed fewer demerit points, I am of the view that 15 demerit points are within the range of what is reasonable in all the circumstances and, therefore, I am not prepared to interfere with the penalty imposed. The 15 demerit points stand as assessed.

Drug and Alcohol Violation

The grievor was terminated for a "violation of CN D&A policy" on April 28^th, 2006. More specifically, Mr. Ebejer was terminated for having registered a blood alcohol level of 0.046 when a breathalyzer test was administered to him at the direction of the Company and on Company premises on April 27^th, 2006. Under the terms of the Company's drug and alcohol policy, "all employees are required to report and remain fit for duty free of the negative effects of alcohol and other drugs (and) it is strictly prohibited to be on duty or in control of a car, vehicle or equipment while under the influence of alcohol or other drugs." It is an offence for there to be "presence in the body of alcohol above a BAC of 0.04." It is to be noted that arbitrator Picher concluded, after an exhaustive review of the Company's drug and alcohol policy in his July 18^th, 2000 award between these parties, that, "the cut off level of .04 BAC as reflecting impairment for risk sensitive employees is reasonably supported by scientific and medical opinion, and is a permissible standard whose application does not violate the proper exercise of management rights." The Company relies on this standard. There is no dispute with respect to my authority to hear and determine this matter.

This is an unusual case because Mr. Ebejer was not reporting for duty or on duty at the time that he was found to have a BAC in excess of 0.04. This is because he was being held out of service pending termination for having exceeded 60 demerit points.

The Company applies the Brown demerit point system under which employees are assigned demerit points for violations of Company rules and regulations. Company policy provides that accumulation of 60 demerit points or more without a 12 months demerit free period of time results in automatic dismissal from the Company service. Mr. Ebejer had accumulated 50 points in the previous nine months (all subject to grievance) when it was alleged that he had failed to comply with CN PPE policy by not wearing a grinding shield while operating a power grinder. An investigation in respect of this allegation was conducted on April 20^th, 2006. Following the investigation, Mr. Ebejer was told that he was being held out of service, with pay, pending a Company decision and to contact the Company at 11 a.m. on April 27^th, 2006. When Mr. Ebejer contacted the Company at 11 a.m. on April 27^th, 2006, he was directed to report to a meeting on Company premises at 1530 hours that afternoon. He was also told not to dress for work. Mr. Ebejer had been advised by his Union representative that he would be terminated at the meeting that afternoon and that he should accept the Form 780 and leave without making a scene. It was at this meeting that alcohol was detected on his breath by the Company officials present and the breathalyzer ordered. Mr. Ebejer acknowledged that he had had a couple of drinks at lunch that day.

The Form 780, in respect of the demerit point violation, dated April 26^th, 2006 confirming Mr. Ebejer's termination from employment to be effective April 28^th, 2006, was not given to him at the meeting. Rather, the breathalyzer was administered by a CN police officer acting in his capacity not as a peace officer, but as an agent of the Company. The first test did not register because, according to the CN officer who administered it, Mr. Ebejer did not blow hard enough. The second test showed the 0.046 BAC level. At this point, a taxi was called and Mr. Ebejer was sent home. The investigation that resulted in his termination from employment for this alleged violation of the Company's drug and alcohol policy took place on April 28^th, 2006.

The Union raises a number of threshold issues. Firstly, the Union maintains that the CN police officer misrepresented himself and did not accord Mr. Ebejer his Charter rights before administering the breathalyzer. On the evidence, I find no merit in this position.

Secondly, the Union challenges the validity of the breathalyzer given the non-reading for the first test, the failure to conduct a third test and the absence of any evidence confirming that the breathalyzer had been checked and was in good working order. I find nothing untoward in the Company's reliance upon the second breathalyzer test. However, the onus is on the Company to establish that the breathalyzer equipment was in good working order at the time so that it could provide an accurate reading. I ruled at the hearing, and hereby confirm, that the written statement of the CN police officer responsible for checking the breathalyzer tendered by the Company in this regard was insufficient and that, if the reliability of the equipment became material to the ultimate determination in this matter, the Company could call viva voce evidence that would be subject to cross-examination. I confirmed further that at this point I was prepared to assume, without finding, that the breathalyzer had provided an accurate reading.

Thirdly, the Union challenged the right of the Company to terminate Mr. Ebejer for a drug and alcohol violation when, in its submission, he had already been terminated for having exceeded 60 demerit points and concomitantly the Union challenged the right of the Company to conduct an investigation of the Drug and Alcohol Violation on April 28^th after the subject had already been terminated. Mr. Ebejer was called to the April 27^th, 2006 meeting for the purpose of giving him a Form 780 that terminated his employment effective April 28^th, 2006. The fact is, therefore, that at the time of the April 27^th meeting he had not as yet been terminated and was being paid by the Company and subject to its direction. Indeed, it was at the direction of the Company that he attended the April 27^th meeting. Clearly, he remained an employee at the time of the April 27^th meeting. It follows that, when on Company property, he remained subject to the reasonable application of the Company's rules and policies and subject to discipline for any breach thereof.

Having identified what it considered to be culpable behaviour by the grievor on April 27^th, 2006 while an employee, although unrelated to the accumulation of demerit points in respect of which Mr. Ebejer was to be terminated on April 28^th, the Company was entitled, indeed required, to conduct an investigation of his April 27^th behaviour before imposing discipline. It cannot be that an employee who is about to be terminated can no longer be held accountable for his actions and is somehow immune from the imposition of discipline even though still an employee with the right to challenge the original grounds for termination and seek reinstatement.

Finally, the Union challenges the conduct of the investigation, arguing that the investigating officer demonstrated that he was not impartial by preventing the Union representative from pursuing a line of questioning related to the status of Mr. Ebejer at the time. While I consider this to have been a relevant line of investigative questioning in this case, I am not prepared to find that the investigating officer, by refusing to allow the Union representative to pursue it, thereby tainted the investigation to the point of rendering it null and void.

This takes me to the central issue; that is, whether the Company had just cause to discipline Mr. Ebejer and whether, in all the circumstances, termination of employment was a just and reasonable response. In this regard, it is useful to point out that under Company policy "dismissal is warranted for a first time consumption of beverage alcohol on company premises" and that "the appropriate corrective action in all cases depends on the nature of the violation and the circumstances surrounding the situation." The policy does not call for automatic termination of employment. I read this policy, therefore, as confirming that while consumption of alcohol is a very serious offence, each case must be decided on its own merits.

It is not difficult to understand why dismissal may be warranted for a first offence of being intoxicated while on duty or reporting for duty in this work setting. However, as noted, this is a very unusual case. This is not a case where an employee was reporting for duty within the meaning of the Company's drug and alcohol policy nor is it a case where there was any possibility of being called to duty. Rather, Mr. Ebejer was being held out of service and had been told by the Company, when directed to attend the April 27^th meeting, not to dress for work. Indeed, he had been told by his Union that his termination was to be confirmed by the Company at this meeting. Although he remained subject to Company rules and although he was required to attend the April 27^th meeting on Company premises, Mr. Ebejer was not in charge of a company vehicle nor was he in charge of equipment nor was he even in the workplace where, in carrying out his usual duties and responsibilities, he might have posed a safety threat to himself and his fellow workers. Indeed, there was no possibility that Mr. Ebejer would be in the workplace that afternoon and he knew this to be the case when he attended the 1530 meeting on that day.

There is, in my view, a significant difference between reporting for duty and/or being on duty with a BAC of 0.046 and attending at a meeting called for the purpose of terminating one's employment with a BAC of 0.046. The Company drug and alcohol policy, that makes specific reference to remaining fit for duty and casts an absolute prohibition against being under the influence when "on duty or in control of a CN vehicle or equipment," implicitly recognizes this distinction. Even assuming that the .04 threshold that was confirmed by arbitrator Picher as reasonable in respect of safety/risk sensitive positions would also apply to a car mechanic (a non-safety/risk sensitive position) in attending to his normal duties and responsibilities, I am not convinced that, in the circumstances of this case, exceeding the threshold should result in the automatic termination from employment of a 30-year employee. While I accept that the Company must be vigilant in preventing and /or responding to drug and alcohol use in the workplace and while I accept that Mr. Ebejer violated the Company drug and alcohol policy in attending at the April 27^th, 2006 meeting with a BAC of 0.046, I have not been satisfied that the termination of his employment was a just and reasonable response in the case of a 30-year employee called to a meeting to confirm his termination on other grounds, while being held out of service (emphasis added).

When reference is had to all of the circumstances, as required under the Company policy, I am satisfied that a one-month suspension would have constituted a reasonable response that, at one and the same time, would have underscored the Company's vigilance in respect of drugs and alcohol on its premises but at the same time would have reflected the unique circumstances of this case. Accordingly, assuming without finding that the calibration of the breathalyzer was accurate, I reduce the penalty to a one-month suspension without pay but with no loss of service/seniority.

It follows from the foregoing and from my rulings in respect of the demerit points assessed against Mr. Ebejer that reduce his total demerit point accumulation below the 60-point threshold that Mr. Ebejer must be reinstated into his employment. His reinstatement is to take place forthwith and I hereby so direct.

It is open to the Union to challenge the one-month suspension on the basis that the Company failed to establish that the breathalyzer was accurately calibrated. If the Union challenges the suspension on this basis, it is open to the Company to call viva voce evidence to establish the accuracy of the breathalyzer and/or rely on the admission of the grievor that he had a few drinks at lunch and/or the viva voce evidence of the managers who were in attendance at the April 27^th, 2006 meeting who observed Mr. Ebejer and called for the taking of the breathalyzer test.

I remain seized to deal with any issues arising from the implementation of these awards. I also remain seized to hear and determine the remaining grievances involving Mr. Ebejer that are before me and to deal with the matter of compensation.

Dated this 5^th day of December 2007 in the City of Toronto.

Kevin Burkett

Kevin Burkett