SHP – 637

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 DAVID HOWIE

Sole Arbitrator: Michel G. Picher

Appearing For The Union:

Doug Olshewski – National Representative, Winnipeg

Les Lilley – Regional Vice-President, Winnipeg

Dave Howie – Grievor

Appearing For The Company:

R. Campbell – Manager, Labour Relations, Winnipeg

D. S. Fisher – Director, Labour Relations, Montreal

Bill Crichton – Assistant Superintendent, Mechanical, Saskatoon

A hearing in this matter were held in Montreal on January 12, 2009.

SHP – 637

AWARD

Union’s statement of issue filed at hearing:

DISPUTE:

The assessment of 15 demerits to Mr. Dave Howie, a car mechanic in Melville, Saskatchewan, for failure to removed hand brake on train M30131-04 during #1 brake test on September 06, 2008 and his subsequent discharge for an accumulation of demerits in excess of sixty.

UNION’S STATEMENT OF ISSUE:

Mr. Howie was assessed 15 demerits for failing to remove a handbrake on a car on train M30131 when performing an air brake test on September 06, 2008. The 15 demerits brought Mr. Howie’s total active discipline to 74 demerits which resulted in him being discharged from Canadian National Railway.

It is the Union’s contention that the discipline assessed to Mr. Howie was too severe, excessive and in violation of Appendix XVIII of Agreement 12. The Union maintains that the missed handbrake was a minor incident which did not justify the discharge of Mr. Howie. Further, it is the Union’s position that the decision to discharge Mr. Howie was made in bad faith and was based upon a false and inaccurate discipline record. The Union requests that the 15 demerits be reduced to a written reprimand and that Mr. Howie be reinstated into service and made whole for all wages and benefits lost.

The Company maintains that the 15 demerits assessed Mr. Howie and his subsequent discharge were fully justified as a result of his failure to release a handbrake on a car on train M30131 while performing a #1 brake test on September 06, 2008. The Company requests that the Arbitrator dismiss the grievance.

FOR THE UNION:

DOUG OLSHEWSKI

NATIONAL REPRESENTATIVE

Company’s statement of issue filed prior to the hearing:

DISPUTE:

Fifteen (15) demerits assessed David Howie for failing to remove a hand brake and subsequently discharged for accumulation of demerits.

COMPANY’S STATEMENT OF ISSUE:

Mr. Howie failed to remove a hand brake on train M30131-04 during a #1 brake test on September 6, 2008. The Company conducted an investigation in accordance with article 27 of agreement 12 on September 18, 2008 and a supplemental investigation was held on September 25, 2008. Following the investigations the Company assessed Mr. Howie fifteen (15) demerits. The Union alleged that the Company violated Rules 27, 35 and Appendix XVII. They also allege the investigation was not fair and impartial. The Company denied the Union’s allegations.

FOR THE COMPANY:

R. CAMPBELL

MANAGER, LABOUR RELATIONS

This is a grievance against discharge. The Company alleges that on September 6, 2008, the grievor failed to release a handbrake on a car which was part of train M30131 during the course of a train inspection prior to its departure from Melville. The condition of the handbrake on the car in question caused the train to be stopped during the course of its trip, with the position of the brake being corrected by the conductor of the train after detection of the problem by a hot wheel detector. In the result the Company assessed fifteen demerits against the grievor, as well as against his workmate, Car Mechanic Apprentice Murray Khadiken.

The Company raises a preliminary objection to the scope of issues as identified in the ex parte statement of issue filed by the Union. Specifically, it submits that it was not open to the Union, at the late date of the ex parte statement, to first raise the issue of alleged bad faith in the discharge of Mr. Howie, and secondly that the Union could not at that point raise the issue of the Company proceeding on the basis of an inaccurate discipline record.

The Arbitrator is satisfied that the preliminary objection must be sustained, but only in part. There is nothing in arbitral jurisprudence which would prevent the Union from raising, on the face of its ex parte statement, that the Company proceeded on the basis of an inaccurate discipline record. To raise that issue is not to expand the grounds of the grievance, but to raise a matter going to the issue of just cause and the appropriate quantum of discipline. There is nothing, in the Arbitrator’s view, that can be said to be objectionable about that. Nor is there any element of surprise as the parties appear to have had discussions about the status of the grievor’s record.

However, the Arbitrator must sustain the objection of the Company as regards the allegation, made for the first time in Union’s ex parte statement of issue, with respect to the Company having allegedly proceeded in bad faith. The allegation of bad faith is, in and of itself, a serious charge of which the Company would understandably be desirous of obtaining particulars in order to provide itself the fullest defence. More substantively, to allege bad faith in the discharge of the grievor is, in the Arbitrator’s view, effectively to raise a new and separate issue not signalled in any of the prior grievance material. While it is true, as the Union’s representative notes, that the Union’s letter of grievance does question the legitimacy of imposing a discharge upon a thirty year employee for a relatively minor infraction, the fact remains that the grievor’s record stood at fifty-nine demerits at the time of the missed handbrake and that the assessment of fifteen demerits appears to be within the general pattern of discipline for such an offence, particularly on a second occasion. With respect, I cannot see in the prior disciplinary correspondence and grievance material any suggestion on the part of the Union, prior to its ex parte statement itself, that it would be alleging bad faith. On that basis this aspect of the Company’s objection must be sustained.

Having reviewed the evidence, the Arbitrator is satisfied that the grievor and his workmate did, contrary to their obligation as employees, fail to identify and correct a handbrake on a car within the body of train M30131-04 during the course of their inspection. The fact that the handbrake on the car was not released did, it cannot be disputed, create a circumstance of some peril, as overheating of the wheel could have led to a collapse of the equipment and a possible derailment. Fortunately that was avoided by the vigilance of the Company’s hot box detector system. During the course of the trip the train was stopped following a warning signal and the brake was released by the conductor of the train, allowing the wheel to cool so that the train was able to proceed without further incident.

The Arbitrator cannot accept the submission of the Union that the grievor was discriminated against as compared to the treatment given to Mr. Khadiken. The record discloses that Mr. Khadiken was also assessed fifteen demerits, but that he had no discipline on his record at the time. There is no evidence of any discrimination in the treatment of these two employees. Nor am I satisfied that the Company did not have the right to assess fifteen demerits. While it is true that a written reprimand appears to be the presumptive discipline for the failure to release handbrakes, in Mr. Howie’s case this was a second occurrence within a period of two years, which would justify the greater level of discipline. There is no violation of Appendix XVIII of the collective agreement disclosed on these facts.

The real issue in the case at hand is the appropriate measure of discipline, in all of the circumstances. When that issue is addressed the Arbitrator is compelled to conclude that there are mitigating circumstances to be taken into account. The mitigating factors go to the length and quality of the grievor’s prior service. The record discloses that Mr. Howie had thirty-one years of service at the time of his termination, having been hired in September of 1977. In May of 2006 a written reprimand was registered against his disciplinary record for the failure to remove a handbrake on another train during the course of an inspection and brake test on May 15, 2006. Significantly, however, that was the first discipline assessed against Mr. Howie for a period of fourteen or fifteen years. His record discloses the assessment of relatively minor amounts of discipline on some four occasions between 1988 and 1991 for timekeeping problems. Those appear not to have recurred since. However, there was a rules violation assessed against him in October of 1992. The parties are in disagreement as to whether that did or did not result in forty demerits being placed upon his record. I find it unnecessary to resolve that dispute, as those events are, in any event, sufficiently distant from the incident of the instant grievance as to be of relatively little weight. In the Arbitrator’s view more significant weight must be given to the fact that the grievor worked discipline free for a period of at least fourteen years prior to the incident of May 16, 2006.

It appears that the grievor achieved the status of fifty-nine demerits by reason of a settlement reached between the parties following the discharge of Mr. Howie for having refused to undergo a workplace alcohol and drug test following a workplace accident. At the time of that incident his discipline record stood at twenty demerits and, by a settlement made between the parties, he was returned to work without compensation, with a substitution of a four and one-half month suspension and the assessment of thirty-nine demerits, which brought his disciplinary record to fifty-nine points.

While the Arbitrator does not diminish the seriousness of the grievor’s disciplinary record, upon close examination it does not reveal the grievor to be a frequent offender, particularly when his record is assessed over a period of thirty-one years of service. While it is true that there was something of a Damoclean sword hanging over Mr. Howie at the time of this incident, and that the normal operation of the Brown System should have put him on notice that he could not survive any further discipline in the form of demerits, the overall length and quality of his prior service does, in the Arbitrator’s view, justify a last chance alternative, through the substitution of a suspension for his period out of work, coupled with his reinstatement without compensation.

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without loss of seniority and without compensation for any wages and benefits lost, with his record to once again stand at fifty-nine demerits. The period between his termination and reinstatement shall be recorded as a suspension for the incident of September 6, 2008.

Dated at Ottawa this 16th day of January, 2009.

________________________________

Michel G. Picher

Arbitrator