SHP641

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANANDIAN NATIONAL RAILWAY COMPANY

(the “Company”)

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION

AND GENERAL WORKERS UNION OF CANADA

(CAW – CANADA) LOCAL 100

(the “Union”)

RE: GRIEVANCES OF DUSTIN EDWARDS

Sole Arbitrator: John M. Moreau QC

Appearing For The Union:

Brian McDonagh - National Representative, CAW Canada

John Burns - President, CAW Local 100

Bruce Snow - Vice President Mountain Region, CAW Local 100

Dustin Edwards - Grievor

Les Lambert - Local Chair, Lodge 280

John Buchanan - Witness

Appearing For The Company:

Steve Owens - Senior Manage Mechanical, Vancouver

Basil Laidlaw - Manager, Labour Relations, Winnipeg

A hearing in this matter was held in New Westminster, B.C. on May 14, 2009.

DISPUTE:

On September 2, 2008, Car Mechanic Apprentice Dustin Edwards’ record was debited with 20 demerits, effective August 28, 2008, account: circumstances surrounding your failure to wear protective eye wear on August 28, 2008.

STATEMENT OF FACT:

As a result of an Investigation held on August 30, 2008, Car Mechanic Apprentice Dustin Edwards was issued a Company Form 780 dated September 2, 2008 stating that his record was debited with 20 Demerits for:

“circumstances surrounding your failure to wear protective eye wear on August 28, 2008.”

STATEMENT OF ISSUE:

It is the contention of the Union that:

- The Company did not conduct a fair and impartial Investigation as required by Rule 27.1, 27.2 and Appendix III, and 27.5 of the Collective Agreement. In the Step I Grievance reply the Company appeared to base its issuance of 20 demerits on an Investigation conducted after the fact;

- The Company did not establish wrong doing by Car Mechanic Apprentice Dustin Edwards sufficient to debit his record with 20 demerits;

- The company violated Appendix XVIII of the Collective Agreement in the issuance of excessive demerits to Car Mechanic Apprentice Dustin Edwards and therefore Car Mechanic Apprentice Dustin Edwards was treated in an excessive manner in regard to the 20 demerits debited against his record;

Therefore, with regard to the foregoing, it is the position of the Union that the 20 demerits debited against Car Mechanic Apprentice Dustin Edwards record should be expunged.

The Company denies the Union’s contentions and claim.

For the Company: For the Union:

”Basil Laidlaw” “John Burns”

Manager President

Labour Relations CAW-TCA Local 100

Canadian National Railway

DISPUTE:

On November 7, 2008, Car Mechanic Apprentice Dustin Edwards’ record was debited with 20 demerits, effective October 23, 2008, account: Driving with undue care and attention.

STATEMENT OF FACT:

As a result of an Investigation held on October 30, 2008, Car Mechanic Apprentice Dustin Edwards was issued a Company Form 780 dated November 7, 2008 stating that his record was debited with 20 Demerits for:

“Driving with undue care and attention.”

STATEMENT OF ISSUE:

It is the contention of the Union that:

- The Company did not conduct a fair and impartial Investigation as required by Rule 27.1, 27.2 and Appendix III, and 27.5 of the Collective Agreement;

- The Company did not establish wrong doing by Car Mechanic Apprentice Dustin Edwards sufficient to debit his record with 20 demerits;

Therefore, with regard to the foregoing, it is the position of the Union that the 20 demerits debited against Car Mechanic Apprentice Dustin Edwards record should be expunged.

The Company denies the Union’s contentions and claim.

For the Company: For the Union:

”Basil Laidlaw” “John Burns”

Manager President

Labour Relations CAW-TCA Local 100

Canadian National Railway

DISPUTE:

On March 2, 2009, Car Mechanic Apprentice Dustin Edwards’ record was debited with 30 demerits, effective February 1, 2009, account: Failure to maintain proper care while operating a Kubota during his shift on February 21, 2009 causing an accident and vehicle damages. On March 3, 2009 Car Mechanic Apprentice Dustin Edwards was dismissed effective March 2, 2009, account: Accumulation of Demerits.

STATEMENT OF FACT:

As a result of an Investigation held on February 24, 2009, Car Mechanic Apprentice Dustin Edwards was issued a Company Form 780 dated March 2, 2009 stating that his record was debited with 30 Demerits for:

“Failure to maintain proper care while operating a Kubota during your shift on February 21, 2009 causing an accident and vehicle damages.”

Further on March 3, 2009, Car Mechanic Apprentice Dustin Edwards was issued a Company Form 780, advising that he had been discharged for:

“Accumulation of demerits.”

STATEMENT OF ISSUE:

It is the contention of the Union that:

- The Company did not conduct a fair and impartial Investigation as required by Rule 27.1, 27.2 and Appendix III, of the Collective Agreement;

- The Company did not establish wrong doing by Car Mechanic Apprentice Dustin Edwards sufficient to debit his record with 30 demerits;

- The Company did not establish wrong doing by Car Mechanic Apprentice Dustin Edwards sufficient to Discharge him;

- The Company violated the Canada Labour Code Part II Duties of Employers, Sections 124, 125(1) and 125.1(q) in its lack of maintenance of the vehicle involved in this matter;

- The Company violated its own Safety Rules 3.3 by not ensuring a safe work place for this Apprentice. The Company did not replace a badly scratched windshield on the Kubota Tractor;

- The Company is also in violation of Canada Labour Code Part II Section 147, by disciplining Car Mechanic Dustin Edwards for reporting this accident;

Therefore, with regard to the foregoing, it is the position of the Union that Car Mechanic Dustin Edwards should be reinstated to employment forthwith, with full redress for all lost wages, benefits and losses incurred as a result of his discharge, including, but not limited to, interest on any moneys owing.

The Company denies the Union’s contentions and claim.

For the Company: For the Union:

”Basil Laidlaw” “John Burns”

Manager President

Labour Relations CAW-TCA Local 100

Canadian National Railway

A W A R D

INTRODUCTION

The grievor first entered into the service of the Company in Vancouver, B.C. on April 10, 2007 as a conductor trainee but failed to qualify for this position. He transferred several months later into the Mechanical Service as an apprentice car mechanic. This case involves the demerits assessed to the grievor for three separate incidents leading to his dismissal on March 2, 2009 for accumulation of 80 demerits.

The first incident involves an alleged failure of the grievor to wear protective eyewear; the second incident involves a vehicle stuck in a ditch area; and, the final incident involves a driving accident while the grievor was operating a Kubota. This award will deal with all three incidents.

INCIDENTS

a) August 28, 2008

The first incident occurred on August 28, 2008. The grievor was assigned to the drill press area of the Thornton Yard Car Shop with car mechanic John Buchanan, who was showing the grievor how to operate the drill press. Mr. Steve Owens, the Senior Manager, observed that the grievor did not have his safety glasses on while he was watching Mr. Buchanan drill a plate on the drill press. Mr. Owens maintains that the grievor was not wearing his safety glasses for about a minute. Mr. Owens approached the grievor and advised him to put on his safety glasses. Mr. Owens noted that the grievor was positioned directly behind Mr. Buchanan at the time, sitting on a five gallon pale. The grievor stated at the investigation that he had taken his glasses off for just a few moments to scratch his eye and that turned out to be the moment he was observed by Mr. Owens. The Union challenges the propriety of the discipline on the basis that the investigation was not conducted in a fair and impartial manner pursuant to rule 27.1, 27.2 and Appendix III of the collective agreement.

The Company provided a case subsequent to the hearing regarding the conduct of an investigation, SHP 402 (Cox). Arbitrator Weatherill makes the point in SHP 402 that the investigation is not like a trial; the investigating officer‘s primary responsibility is to put questions and obtain recorded answers. In this case, the investigating officer did not call Mr. Buchanan to testify nor was a statement of his observations on August 28, 2008 put to the grievor at the investigative hearing. Mr. Buchanan’s observations were disclosed for the first time in Mr. Owens Step I reply of November 3, 2008, where Mr. Owens mentions that he “recently questioned” Mr. Buchanan about the incident. The Union contends that this discussion between Mr. Owens and Mr. Buchanan amounts to a “second” investigation to which neither the grievor nor his union representative were invited to attend.

Although the Company is correct that the role of the investigating officer is not like that of a judge, nor for that matter is the investigation itself supposed to be conducted like a court case, it is nevertheless incumbent on the Company to summon all the material testimony in a timely manner in order that it can be properly put to the grievor at the time he or she is called on to answer to the charges. To do so after the fact, as occurred in this case, is a violation of the minimum standards of a fair and impartial investigation and a violation of the collective agreement, as noted in numerous other awards including CROA 2073 where the arbitrator states:

What is contemplated is an informal and expeditious process by which an opportunity is afforded to the employee to know the accusation against him, the identity of his accusers, as well as the content of their evidence or statements, and to be given a fair opportunity to provide rebuttal evidence in his own defence. Those requirements, coupled with the requirement that the investigating officer meet minimal standards of impartiality, are the essential elements of the “fair and impartial hearing” to which the employee is entitled to the imposition of discipline.

It was simply not appropriate for the Company to rely on the answers provided by Mr. Buchanan to Mr. Owens subsequent to the investigation to support its case for imposing discipline (as set out in the Step I grievance response), without first making Mr. Buchanan, a key witness, available to the Union for questioning at the investigation. The result is that the discipline must be declared to be null and void ab initio. Given the ruling on the preliminary objection, it is not necessary in this case to comment on the merits. The grievance is upheld and the 20 demerits are expunged from the grievor’s record.

b) Incident of October 23, 2008

Turning to the second incident of October 23, 2008, the grievor was operating a Company truck west of the dyke road along track PF44 on his way to performing a car inspection. While backing up the truck, the grievor slid off the road and into the ditch area. The grievor tried several times to maneuver the truck back on to the road. He was unsuccessful in his attempts and the vehicle soon reached the point where it was hovering at the edge of the ditch. The grievor indicated at the investigation that he vacated the truck and called his supervisor when he realized that the truck was a tipping hazard. A tow truck was called to remove the truck from the ditch.

The Company maintains that the grievor was careless in his handling of the vehicle. His recklessness from the Company’s perspective caused needless delay to the yard operations and added expense to the Company. The Company submits that the prudent thing would have been for the grievor to back up to a wider area not far from where the truck ended up in the ditch. The Union maintains, in response, that the incident was nothing more than an accident and that the grievor should not have been the subject of discipline. In the alternative, the Union submits that the discipline was excessive, particularly given that the grievor was only an apprentice. The Union also maintains that the presiding officer was biased and did not conduct a fair and impartial investigation. In that regard, the Union submits that the Company breached the time limits by failing to respond to the grievance within the prescribed 28 days.

Dealing first with the preliminary objection, the Company properly points out that the Union did not refer in the joint statement to any breach of time limits. In the absence of such an averment, it is my view that an inference can be drawn that the parties reached an understanding with respect to the extension of time limits. Otherwise, the Union would have addressed the issue in the joint statement in the same manner it did in the Step II response. In addition, my review of the investigation does not suggest any bias on the part of the investigative officer. I do not read in the questions and answers put to the grievor any suggestion that the Company was out to target the grievor in order to issue discipline, as alleged by the Union. The questions all relate to the manner in which the grievor drove the vehicle and the parking alternatives that were open to him at the time. The scope and manner of questioning as recorded in the transcript do not support a finding of bias. Accordingly, I do not find a breach of the provisions of the collective agreement concerning the fairness and impartiality of the investigative meeting.

Turning to the merits, it is my view that the Company has made out a case for discipline. The grievor admitted at the investigation that he could see the work machinery traveling towards him from the west. I accept from a review of the photographs presented into evidence that there was indeed a wider area not far from where the grievor entered the ditch where he could have maneuvered the vehicle to allow the machinery to pass.

In terms of penalty considerations, the aggravating factors here include the fact that a tow truck had to be called and that delays occurred directly as a result of the grievor’s carelessness. The fact the grievor is an inexperienced apprentice, on the other hand, is both a mitigating and aggravating factor: he must be given an opportunity to acquire the skills to perform his duties and yet at the same time understand that diligence and attention is required in performing those duties at all times. Under the circumstances, after considering all the evidence in this case and the authorities provided by the parties, it is my view that a penalty of 15 demerits would be an appropriate disciplinary response. The grievance is therefore upheld to the extent that the 20 demerits recorded as discipline for this incident will be replaced with a penalty of 15 demerits.

c) Incident of February 21, 2009

The grievor was assigned to work on the repair tracks (RIP) at the Thornton Yard on the midnight shift. He was operating the Kubota, a small pick-up truck, between both ends of the RIP track area to spot the cars. At 0215, the grievor, while performing his assigned duties, hit a snow pile that was left near the end of the roadway and tipped over on the passenger side beside the track. The Kubota actually climbed a portion of the snow bank before tipping over, causing damage to the Kubota but no physical injuries to the grievor. The grievor maintained at his investigative statement that he was unable to see the pile of snow “…because the snow was black and dirty, there was poor lighting on the RIP’s as well as from the Kubota. There were three BO’s in PS54 right beside the snow pile that cast a shadow over the area, poor visibility due to dirty and scratched windows and I was particularly blinded by the lights from the track mobile. It was then that I hit the snow bank”.

The Company submits that the grievor should have cleaned the windshield beforehand-if indeed there was a problem with it as he suggests-in order to have a clear view of his surroundings, particularly because he was working at night. The Company also maintains that there was adequate lighting from the RIP tracks and that the Kubota was equipped with functioning headlights. There were no scratches on the windshield reported by the grievor prior to the accident. Overall, the Company submits that the grievor should have exercised greater attention and that this was by no means a freak accident as the grievor asserts in his statement.

The Union submits that the whole incident was nothing more than an unfortunate accident and that there was no cause for discipline. The Union cited in support several CROA awards as well as Brown and Beatty, Canadian Labour Arbitration (3^rd) 7:3520 and 7:4000. The Union also asserts that the Company has violated several health and safety provisions of the Canada Labour Code. The Union submits in that regard that the Company required the grievor to operate an unsafe vehicle because the front windshield was scratched to the point where the grievor’s vision was impaired during his assignment. In addition, the Union claims the Company violated its own Safety Rule 3.3 which requires management to rectify unsafe working conditions as soon as they become aware of those conditions. The Union, in that regard, claims that the managers did not ensure that the vehicle the grievor was operating was in a proper and safe condition. The obstruction on the roadway and lack of maintenance also contributed significantly to the accident while the grievor was on night duty.

The evidence in my view simply does not support the Union’s assertion of safety violations. There is no documentation before me to confirm the allegation that the windshield was scratched to the extent that the grievor’s view was compromised. Nor is there support for the allegation that the lighting from the RIP tracks affected the grievor’s ability to see the pile of snow. Operating vehicles safely at night requires a driver to pay close attention to what lies ahead, particularly in a narrow roadway where the grievor was assigned to switching operations. The Kubota’s headlights were working and, as with any driver at night, there was a need on the part of the grievor to proceed with caution and to be fully attentive to what was in front of him as he was driving slowly between the tracks. The snow pile, which in itself was of a significant size, should have been obvious to the grievor from some distance away. I can only conclude from the evidence before me that the grievor was distracted from his duties and simply was not paying attention when he ran into the snow pile before tipping over sideways. Accordingly, there are grounds for discipline.

The grievor’s short tenure with the Company has demonstrated that the he is easily distracted from his assigned duties. Of more concern in this particular case is the fact that the grievor did not accept responsibility for his behaviour, but rather resorted to trying to blame the surrounding conditions for the incident. That is an aggravating factor when considering the appropriate penalty disposition. In the end, it is my view that the 30 demerits imposed by the Company for this incident should stand. The grievance is therefore dismissed.

Conclusion

The result of my review of the three incidents is that the grievor’s disciplinary record falls below the 60 demerits required for termination by accumulation of demerit points under the Brown system. The grievor is therefore to be reinstated immediately to his Car Mechanic Apprentice position with full back pay and benefits. The grievor’s disciplinary record shall stand at 45 demerits. The grievor should understand going forward that any future acts of negligence such as occurred here could permanently jeopardize his career with the Company.

_______________________________

JOHN M. MOREAU QC