SHP643

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: GRIEVANCE OF DOUG SAMIDE

Sole Arbitrator: John M. Moreau QC

Appearing For The Union:

Brian McDonagh - National Representative

Robert Martin - Local Chairman, Edmonton

Bruce Snow - Vice President, Local 100 CAW

Doug Samide - Grievor

Appearing For The Company:

Basil Laidlaw - Manager, Labour Relations, Edmonton

A hearing in this matter was held in Calgary, Alberta on February 25, 2009.

DISPUTE:

On November 4, 2008 Car Mechanic Doug Samide was discharged from Service with CN account: his involvement in an accident which occurred on October 27, 2008 between the vehicle he was driving and a Locomotive resulting in injury to his work mate at the time.

STATEMENT OF FACT:

As a result of an Investigation held on October 30, 2008, Car Mechanic Doug Samide was issued a Company Form 780 dated November 4, 2008 stating that he was discharged from Service on November 4, 2008 for:

“Careless disregard in the operation of a Company Vehicle that resulted in vehicle damage and personal injury to a fellow employee.”

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 Doug Samide sufficient to discharge him from service;

- Car Mechanic Doug Samide was treated in an arbitrary and an excessive manner in regard to his discharge;

Therefore, with regard to the foregoing, it is the position of the Union that Car Mechanic Doug Samide 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

The grievor commenced his employment with the Company on June 25, 1984 and has 24 years of service. He was a car mechanic at the Walker Yard in Edmonton, Alberta at the time of his discharge. There is no real dispute on the facts. The Union, however, raised a preliminary issue that the grievor was not provided with a fair and impartial investigation. That issue will be addressed later in the award.

On October 27, 2008 the grievor was working his regular assignment (18:00 to 06:00) at the Walker Yard along with car mechanic Dale Gardner. Their duties involved freight car inspections, repairs and train air brake tests in and around the Walker Yard. They were driving to the various job sites in a Kubota ATV, which is a small two-seater vehicle that resembles a golf cart. The grievor was driving and Mr. Gardner was seated in the adjacent passenger seat.

At approximately 19:25 they were traveling westward in the Kubota along the roadway between Tracks 61-60. The grievor could not see north while travelling along the roadway because his view was partially obstructed by rail cars. The grievor negotiated a right turn at a crossing in order to cross over Tracks 60, 59 & 57 to the roadway on the north side of the tracks.

While the Kubota was travelling over the crossing, a locomotive headed westward on Track 57 struck the Kubota on the front passenger side of the vehicle. The impact of the collision caused the Kubota to fall over the rails. The locomotive then struck the Kubota a second time causing it to push out from between the tracks. Mr. Gardner’s head was knocked backward into the rear window on impact causing the glass to break. He also hit his leg, face and his left side on the front of the Kubota. Mr. Gardner was taken to the hospital for medical attention.

On October 30, 2008 the Company conducted formal investigations at which time both employees were questioned on the circumstances leading up to the collision with the locomotive. Both employees confirmed at the investigation that Mr. Gardner was the first one to see the approaching locomotive and that he shouted at the grievor to watch out. The grievor reacted at that point by slowing down but he failed to see the locomotive lights in time to avoid the collision.

The grievor estimated that he was traveling about 10 mph and recalled that he looked both ways down the track before proceeding, but did not see the approaching locomotive. He stated that his view to the right was obstructed by his passenger, Mr. Gardner. The grievor also mentioned that he was wearing ear plugs which prevented him from hearing the approaching equipment. He also stated at his investigation that he did not have a clear view as he travelled north along the roadway because there were rail cars obstructing his line of vision.

The Company submits that the grievor was careless in the operation of the Kubota given that he failed to take the necessary steps to avoid endangering himself and his passenger, Mr. Gardner. The Company asserts that employees working in a multi-track area like the Walker Yard must focus at all times on safety and safe work practices. From the Company’s perspective, the accident was entirely preventable and the grievor failed to take the ordinary precautions that would have avoided the collision. In that regard, the grievor did not have a clear view of the other side of Track 60 because there were other rail cars blocking his view. As a result, he was unaware of any potential conflicting movements on the tracks he was about to cross. In addition, the grievor’s view was blocked by his passenger. Further, his inability to hear any approaching equipment should, if anything, have made him more cautious in his driving. Given all the circumstances, including the grievor’s record of numerous vehicle accidents and rules violations, the Company submits that the decision to discharge was appropriate.

The Union submits that the incident can best be characterized as an unfortunate accident. The grievor did not purposely intend to damage Company property nor did he intend to hurt Mr. Gardner. The accident was caused by difficult working circumstances including the fact that the grievor was wearing earplugs because of the loud noise emanating from the Kubota. The penalty of discharge, in the Union’s view, is a completely disproportionate response to the gravity of the incident. The Union cites CROA & DR 2034 in support of the assertion that the test in such circumstances in determining whether there is just cause for discipline is whether the Company has met the onus of establishing that the grievor demonstrated a deliberate disregard for his duties:

The material establishes to the satisfaction of the Arbitrator that the grievor did exhibit a degree of carelessness and negligence in the performance of his work. It is not disputed that he failed to remove the spigot of a fuel oil pump from the tank of his truck before pulling out. This resulted in costly damage to the pump’s rack mechanism, which belonged to another company which is an important source of supply to the Employer. However the evidence falls short of establishing any deliberate disregard for the duty of care expected of the grievor, or even recklessness. Moreover, the Arbitrator cannot agree with Counsel for the Employer that the evidence discloses "gross" negligence. What occurred was an act of inadvertence deserving of some discipline.

The arbitrator will first address the issue of whether the grievor received a fair and impartial investigation in contravention of rules 27.1, 27.2 and 27.5 of the collective agreement. I accept the Company’s submissions in that regard that rule 27.1 is currently suspended and has been replaced by Appendix III. I also find that rule 27.2 was not breached because the grievor’s supervisor did not conduct an “investigation” of the grievor within the context of article 27.2, which would trigger the formalities for notice and other requirements set out in that provision. All that occurred in this case is that the grievor’s immediate supervisor conducted a site investigation into the specifics of the incident. That is permissible under article 27.2, which explicitly allows the Company officer on the premises to hold an immediate investigation into the events surrounding the incident. Further, article 27.5 cannot be interpreted to mean that a finding of unjust dismissal requires the arbitrator to reinstate the employee with full back pay and benefits. The arbitrator retains the final authority, both pursuant to the applicable legislation and the collective agreement, to adjust the discipline imposed on such terms that he or she determines to be appropriate under the circumstances.

Turning to the facts, the grievor should have been more vigilant when he was driving the Kubota that evening. As the Company points out, his view was blocked as he travelled north towards the crossing. That fact alone should have alerted the grievor that he needed to pay more attention because it was dark, and he evidently did not have a clear view of the equipment on the other tracks. The grievor indicated in his statement that he recalled looking both ways but it is unlikely that he did a proper directional check, particularly given that his view would have been obstructed on one side by Mr. Gardiner within the small quarters of the Kubota cab. Further, the fact that the grievor was wearing ear- plugs is not a mitigating factor. If anything, the grievor should have been more prudent in driving the Kuboto over the tracks given his limited ability to hear the movement in the yard. The evidence, in my view, clearly supports a case for discipline. The next question is whether it was appropriate for the Company to terminate the grievor’s employment.

The Union submits that, although the grievor has a record of property damage incidents, many of those were minor in nature and are insufficient to demonstrate a pattern of recklessness to support a case for the application of the doctrine of the culminating incident. The Company does not rest its case on the doctrine of the culminating incident but nevertheless submits that the grievor has been disciplined on seven occasions in the past five years, four of which involved rule violations as well as three incidents of damage to property. The Company also notes that the grievor had 20 active demerits at the time of the incident.

The authorities cited by the Company include two cases where a period of suspension was imposed for similar workplace violations involving property damage. In CROA & DR 420, for example, a five day suspension was imposed for a warehouse accident. The grievor in that case had received escalating discipline in the eight months prior to the incident, including a three day suspension. The arbitrator upheld a five day suspension. In CROA & DR 2655, the grievor had two clearance accidents with his vehicle within 10 days, and 13 separate accidents over his 14 years of service. The arbitrator, in upholding the termination, noted that the grievor had been removed from service for six months during his career and concluded from the evidence that all previous efforts over the years “…had failed to improve the degree of care that he brings to his driving work…”

In my view, the grievor demonstrated on October 27, 2008, as well as on several prior occasions over the years, a pattern of inattentiveness that has resulted in several rule violations and property damage. His carelessness in this case could have resulted in far more serious property damage or severe injury to his co-worker. In that regard, Mr. Gardner was lucky to walk away from the incident with relatively minor injuries.

On the other side of the ledger, the grievor is a long-service employee and the prior incidents of property damage are not of the same scale found in the CROA & DR 2655, where the arbitrator was satisfied that there was little likelihood that the grievor would improve the degree of care required to properly perform his duties. That kind of evidence is simply not before me in this case. The grievor, who currently has a record of 20 recorded demerits, however, is on notice that continued workplace incidents of this kind could mean the end of his career. He must simply resolve to be more careful in carrying out his duties in this work area where there is constant movement of rail traffic in all directions. The employer cannot risk the safety of the grievor or his coworkers if accidents of this kind continue to occur in the future.

The arbitrator finds that an appropriate penalty in this case to be a period of suspension. The grievor shall be reinstated to his employment without compensation, but with his seniority credits restored to the date of the incident.

Dated at Calgary, this 6^th day of March, 2009.

_____________________

JOHN M. MOREAU, Q.C.

ARBITRATOR