SHP654

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”)

 

               GRIEVANCES OF KEVIN GRAHAM & JIM McCORRY

 

 

                                                        AWARD

                                                                      (FINAL)

 

Sole Arbitrator:                      John Moreau QC

 

 

Appearing For The Union:

 

Brian Stevens           -           National Representative, CAW

John Burns              -          President, CAW Local 100

Jeff Fehr                  -          Vice Area Representative, Transcona Shop

Les Lilley                   -           Vice President, Local 100

Terry McKimm           -           Location Chair, Line Points Shop, Local 100

Ken Hiatt                   -           Location Chair, Transcona Main Shop

Kevin Graham          -           Grievor

Jim McCorry              -           Grievor

 

Appearing For The Company:

 

Ron Campbell          -           Manager Labour Relations, Winnipeg

Basil Laidlaw                        -           Manager, Labour Relations, Edmonton

Rick Skibinski           -          Assistant Mechanical Superintendent, Winnipeg

Tim Maltais              -         Sr. Manager, CN Mechanical

 

 

Heard in Winnipeg, Manitoba on May 18, 19, 2010

     AWARD

 

The grievors are experienced car mechanics who hold positions on the road repair truck and work out of the Company’s operations at the Symington Yard in Winnipeg. They were dismissed on April 29, 2009 for allegedly submitting false time claims. Both the grievors deny the accusations.   Mr. Graham recently retired after 35 years of service. Mr. McCorry is also due to retire having accumulated the same amount of years of service as Mr. Graham.

 

A preliminary award was issued on April 30, 2010 dismissing several procedural issues raised by the Union. The parties were directed to reconvene May 18, 19, 2010 in Winnipeg to hear further evidence and submissions on the merits. In addition to leading evidence and providing submissions on the merits at the May sittings, the Union raised the issue of the Company’s failure to disclose the RTC tapes for the month of March 2009.

 

The Union noted that it has made numerous requests, beginning in May 2009, for the March 2009 RTC tapes. In correspondence dated February 10, 2010, the Union requested further particulars, including copies of all RTC tapes and transcripts for the month of March 2009. Subsequent to numerous conference calls, the Union indicated on May 6, 2010 that it still had not received all the requested particulars, including copies of the tapes and transcripts for the month of March 2009.  The Company responded on May 8, 2010 that it did not maintain such tapes permanently and that the one tape of March 30, 2009 had been obtained immediately after the incident, a year earlier, and was produced at the investigation of April 14, 2009. The Company also noted, in their May 8, 2010 response, that the Union produced five TOP summaries at the investigation for several dates in March 2009. The Company further noted in their correspondence that it was unclear how the voice recordings of these RTC conversations “…would add anything as these conversations are very deliberate and follow a set script prompted by a work sheet that must be filled out”. The Union repeated their request both prior to and at the arbitration hearing for all communications between the grievors and the RTC for the days the grievors were alleged to have submitted fraudulent time claims, as well as the day prior and day following those target dates. The Company responded at the arbitration hearing by stating that the tapes were not available because the recordings no longer existed.  

 

I agree with the Union’s submissions that pre-hearing production of arguably relevant documents is an important part of the preparatory work required for an arbitration hearing. As the Union points out, pre-hearing disclosure assists the parties in narrowing down the issues and encourages settlement. In this case, the Union was particularly interested in obtaining the voice recordings of the discussions between the RTC and the grievors.

 

There was only the one tape produced by the Company for March 30, 2009. That tape was just over two weeks old when it was produced by the Company at the April 14, 2009 investigation. As the Company pointed out, there are many such conversations that take place between the RTC and employees, like the grievors, who wish to occupy the track throughout the Company’s operational area. In my view, it fell on the Union to make a request for all of the March 2009 TOP recordings at the time of the investigation on April 14, 2010, when the Company produced the single March 30, 2009 recording, or at the final investigative meeting on April 24, 2009. It would have been incumbent on the Company to respond to such a request at that point or risk having an adverse inference being drawn at the arbitration hearing. In this case, however, it was not until May 8, 2009, a few weeks after the last investigative meeting on April 24, 2009, that the Union first requested the actual tape recordings. Given the lapse of time, I am not prepared to infer that the tapes were not produced because of any deliberate or wilful action on the part of the Company to dispose of them prior to the arbitration hearing. As such, there has been no abuse of process leading to a nullity of the discipline as submitted by the Union. In addition,  I note that the Union had access to the March TOP summaries from the outset which, as the Company pointed out, follow a set script prompted by a mandatory work sheet.

 

Turning to the merits, it is worth noting at the outset that the Company’s case is based in large part on discrepancies identified in the grievors time sheets submitted in March 2009, including March 1, 2009. However, I note that the Company never questioned the grievors about the alleged discrepancies for March 1, 2009 either at the investigation held on April 14, 2009 or at the supplemental investigation held on April 24, 2010. In the absence of any questions being put to the grievors over any alleged discrepancies in their time sheets and related receipts for that day, I am not prepared to place any weight on that evidence in determining whether there was just cause for discipline for that day. On the other hand, the Company questioned the grievors at their investigation over a number of other alleged incidents during March 2009, including the following:

 

March 2, 2009

The time sheets read that the grievors were on the job beginning at 07:00 and worked through regular service to 21:00. The time sheet further indicates that the grievors repaired cars between 08:00 and 13:00. The time-stamped restaurant receipt shows a morning meal was paid for at 08:28. The time sheet also indicates that the post-trip and meal took two hours from 21:00 until 23:00. The restaurant receipt for the evening meal is time-stamped at 21:05. The TOP is recorded at 18:18 (Webster) and the record of the hotel check-in time is 19:39. Both the grievors were asked at the initial investigation of April 14, 2009 to explain why they would have checked into the hotel at 19:39 and then not reported off duty until 21:00, for regular service, and 23:00 for the post-trip and meal. Both grievors indicated that they checked in to the hotel at 19:39 in order to turn up the heat and use the bathroom facilities before returning to work in the Sioux Lookout yard. Mr. Graham testified at the arbitration hearing that the 08:28 meal receipt was the time he paid his bill at the Wellington Inn restaurant in Sioux Lookout. He added that he could not recall whether he purchased sandwiches that morning or whether he had a sit-down down breakfast meal. In terms of an explanation for the dinner receipt at 21:05, when the time sheet shows the post-trip beginning at 21:00, Mr. Graham indicated that the times recorded on the sheets were often rounded off and that it was only five minutes to the yard from the restaurant.

 

March 4, 2009

 

The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 20:00. The restaurant receipt for breakfast at Sioux lookout is time-stamped at 08:33 while the time sheets show them travelling to Richan and then back to Sioux Lookout between 08:00 and 15:00. The time sheet further indicates that the grievors repaired cars between 15:00 to 20:00. The time sheet also indicates that the post-trip and meal took two hours from 20:00 to 22:00. The restaurant receipt for the evening meal is time-stamped at 16:36. The motel record check-in time is recorded as 19:34. The grievors were asked at the investigation why the time sheet indicates that they checked into the motel at 19:34 and yet they did not report off duty for regular service until 20:00, and 22:00 for the post-trip. Mr. Graham indicated at the investigation that they checked into the hotel at 19:34 because one of them had to use the washroom. Mr. Graham further testified in that regard at the arbitration hearing that the doors of the washroom at the crew house in Sioux Lookout were locked. He admitted in cross-examination that he never reported that fact to his supervisor.  Mr. Graham testified that he returned to the Sioux Lookout  yard, after checking into the hotel, to change the wheels on the three train cars. Mr. McCorry stated at the investigation that they arrived at the hotel at 19:34 and that it took until 20:00 to check into the hotel and wash up for their meal.  Mr. McCorry also confirmed in his testimony at the arbitration hearing that it was his understanding that the tool house facility, including the washroom, was reserved for track maintenance personnel only and was closed at 16:00.

 

March 5, 2009

 

The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 22:00 that evening. The morning restaurant receipt at Sioux Lookout is time-stamped at 08:50 while the time sheets show the grievors loading wheels from 08:00 to 09:00. Mr. Graham testified at the arbitration hearing that he rounded off his time and that he was either eating or loading wheels at 08:50. The time sheet further indicates that the grievors repaired cars between 09:00 to 22:00.The time sheet also indicates that the post-trip and meal took two hours from 22:00 to 24:00. The motel record check-in time is at 21:46. Mr. Graham was asked at the investigation why he would have checked in to the hotel at 21:46 and not gone off duty until 22:00 for regular service and 24:00 for his post-trip. Mr. Graham replied that he had to “burn a wedge out of a five pack and I knew there was none available in Symington so I contacted Gerry Harder in Calder yard to have one sent to us. And that is why I did not go off duty until 22:00”. The cell phone records for the number assigned to the grievor’s road repair truck do not show any call to Mr. Harder at his phone numbers for the month of March 2009. However, Mr. Harder confirmed in an email dated April 23, 2009 to union representative Terry McKimm that the grievors did call him at home on the evening of March 5, 2009.

 

March 10, 2009

 

The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 01:00 on March 11th .The time sheets also indicate that the post-trip and meal took two hours from 01:00 to 03:00. The motel record check-in is time-stamped at 23:43 at the Travelodge Hotel in Kenora. Mr. Graham was asked at the investigation why he checked into the hotel in Kenora at 23:43. Mr. Graham replied that he actually telephoned the hotel to check in on March 10th. He explained that they had been working at Breton Lake and the TOP was only cancelled at 22:53. They then had to drive more than two hours to reach Kenora, arriving at 01:00 on March 11th. Mr. McCorry, for his part, also confirmed at the investigation that they “phoned in the reservation and they checked us in at the same time.” Mr. McCorry also stated that it would take two hours to travel to Kenora from the time they cleared the main line at 22:53 in Breton Lake.  Mr. Graham testified at the arbitration hearing that they were driving a 5 ton truck and the highway conditions were poor.

 

March 13, 2009

 

The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 23:00. The time sheet also indicates that the post-trip and meal took two hours from 23:00 to 01:00 on March 14th. The motel check-in is recorded at 19:07 in Sioux Lookout. The restaurant receipt for dinner that evening is time-stamped at 21:37.  The grievors were asked at their investigation why they checked into the hotel at 19:07 and then not reported off duty until 23:00 for regular service and 01:00 hours on March 14th for the post-trip. The grievors again replied that they checked into the hotel to turn on the heat in their rooms, use the washroom and then returned to the yard in Sioux Lookout to repair cars.  Mr. Graham added in his testimony that they evidently did go back to work after checking into the hotel because they did not eat that evening until 21:37.

 

 

March 16, 2009

 

As noted in the investigation, the time sheets read that the grievors  worked through to 24:00. The time sheets also indicate that the post-trip and meal took two hours from 24: 00 to 02:00 on March 17th.  The hotel check-in is recorded as 19:09 in Dryden. The grievors testified that they reserved the room at 19:09 by telephone. They also noted that the TOP was cancelled at 17:38 at Armstrong and that it took about 8 hours to travel from Armstrong to Dryden. The Employer did not allege any misfeasance on the part of the grievors for this trip in their submissions at the arbitration hearing.

 

March 17, 2009

 

The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 23:00. The time sheets also indicate that the post-trip and meal took two hours from 23:00 to 01:00 on March 18th.  The motel check-in time is recorded at 18:02 in Dryden. The restaurant receipt for dinner that evening is time-stamped at 20:30 in Dryden. The grievors were asked at their investigation why they checked into the hotel at 18:02 and then did not report off duty until 23:00 for regular service and 01:00 hours on March 18th for the post-trip. The grievors replied that the hotel must have checked them in at 18:02 when they made their reservation over the telephone. The grievors testified at the investigation that they travelled between Dryden and Sioux Lookout that day and repaired six cars by 21:00. They then travelled two hours to get back to Dryden. They also noted, in support, that the work documents for that day show the RTC releasing one of the six cars at 21:10. Under cross-examination, Mr. Graham was asked how they ended up at a Dryden restaurant at 20:30. He responded by stating that they had also performed repair work in Richan that day, which was about a two hour travelling distance from Dryden. The Richan trip was not documented on their time sheets nor did Mr. Graham have any recollection of the time of day they made the trip.

 

March 30, 2009

 

The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 22:00. The time sheet also indicates that the post-trip and meal took two hours from 22:00 to 24:00.  The hotel check-in is time-stamped at the Super 8 hotel in Kenora at 19:25:00 hours for Mr. McCorry and 19:25:54 for Mr. Graham. The RTC Log presented at the investigation shows the grievors clearing their TOP at 19:39 central time. The grievors claimed work time (highrailing) between 18:00 and 21:00. The grievors were asked at the investigation why they claimed highrailing between 18:00 and 21:00 when they gave up track protection at 19:39. The grievors replied that they still had to guage the wheel and secure it for travel, which took until 21:00. Mr. McCorry testified that they would have been checked in at the Super 8 hotel by calling in to reserve a room because their TOP was not cancelled until 14 minutes later.

 

March 31, 2009

 

The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 22:00. The time sheets also indicate that the post-trip and meal took two hours from 22:00 to 24:00.  The motel check-in time is recorded at 18:17 in Sioux Lookout. The restaurant receipt for dinner that evening is time-stamped at 20:53 in Sioux Lookout. The grievors were asked at their investigation why they checked into the hotel at 18:17 and then not reported off-duty until 22:00 for regular service and 24:00 for the post-trip. The grievors replied that once again they would have checked in to their rooms in order to turn up the heat and use the washrooms. They then returned to work repairing three cars in two different locations within the yard between 16:00 and 22:00.

 

 In its submissions, the Union noted that the burden of proof was on the Company to prove culpable behaviour on the basis of clear and cogent evidence, as noted by Arbitrator Picher in CROA 3822:

 

Bearing in mind that the Company has the onus of proof in this matter, and that an allegation as serious as fraud requires a high standard of clear and cogent evidence, what the case at hand presents is evidence which is equivocal at best. While the Arbitrator can appreciate the suspicions of the Company, particularly in light of the fact that the grievor’s stated limitations appeared, at least for a time, to increase as he was under the care of his chiropractor, the employer is nevertheless under an obligation to present evidence which compellingly establishes, on the balance of probabilities, that the grievor falsified his injury. That is not confirmed on the evidence before the Arbitrator[1].

 

 

The Union has a valid point when it submits that the handwritten check-out times on the hotel receipts is not the kind of cogent proof that provides the necessary evidentiary foundation confirming the hotel check-in times. The Union maintains in that regard that there was no direct evidence from anybody connected with the hotels on the significance of the handwritten times on the invoices. The grievors, however, did confirm those handwritten check-in times when those times were put to them at the initial investigative meeting on April 14, 2010. The response provided by the grievors was that they checked into the motels, turned up the heat and used the washroom facilities.  I therefore accept that those handwritten times on the hotel invoices are accurate records of the grievors check-in times on the basis of the grievors admissions at the April 14, 2009 investigation.

 

The grievors consistently claimed two hours of “post-trip and meal” at the end of their work day. This is the time the grievors were typically supposed to be checking into hotels and eating their evening meals, as they both claimed they were doing in their daily time sheets. It may happen on occasion that the grievors were required to check in to the hotel to use the washroom facilities. It was simply unacceptable for them, however, to be checking into hotels on a consistent basis when they were supposed to be working. If there was an issue with accessing the washroom facilities in Sioux Lookout, for example, the grievors should have reported their concerns to their supervisor.

 

Unlike some of the other hotel receipts entered in evidence, the Travelodge hotel receipt for March 10th and the Super 8 hotel receipt for March 30th show the actual printed check-in times of the grievors.  I note, by way of example, that the Travelodge receipt for Mr. McCorry is time-stamped at 23:41 and that Mr. Graham’s receipt is time-stamped at 23:43. This indicates to me that Mr. McCorry checked in first, in person, at 23:41 and that Mr. Graham then checked in second, in person as well, two minutes later at 23:43.

 

I simply do not agree with the Union that it was necessary to call evidence on what the time-stamped receipts represent, both at the hotels and in the restaurants. These receipts fall squarely within the category of business records and speak for themselves. It is a matter of accepted practice, for example, for hotels to “check-in” customers to their rooms when the customer arrives at the front desk. The customer provides a credit card, or some other form of identification, and is then handed the keys to their room. I know of no instance where a customer has ever been “checked into” their rooms without actually being physically present at the hotel check-in desk. There is always somebody at any hotel operating 24 hours to check in customers as they arrive and then hand them the keys to their rooms.

 

Given that the hotel check-in times evidence establishes a clear case against the grievors on its face, it falls on the grievors to provide a satisfactory explanation that the accepted business practices of the hotel industry were not followed. Specifically, it falls on the grievors, using the Travelodge example, to explain that they were in fact checked in by telephone at 23:41 and 23:43 on March 10, 2009. No corroborating evidence has been adduced by the grievors to support their explanation, including any supporting documents from the hotel, to show that the two reservations were actually called in by telephone at that those times. I find that the explanation of the grievors that they phoned in their reservations on the evening of March 10 and March 30, 2009, as well as on other occasions that month, do not stand up to scrutiny and seriously undermines their  credibility.

 

I also have difficulty with the grievors explanations that they checked into the hotels to simply “turn up the heat and use the washroom”. By way of example, I note that the time sheets for March 13th show the grievors repairing cars from 13:00 to 23:00 (a post-trip and meal from 23:00 to 01:00). The hotel check-in occurs at 19:07 and a restaurant receipt was produced for Dick and Nellie’s Bar a half hour later at 21:37. The time sheet for March 31st, to cite another example, shows the grievors repairing cars at Sioux Lookout between 16:00 to 22:00 (a post-trip and meal between 22:00 to 24:00) while the hotel check-in occurs during the same time period at 18:17 and a restaurant receipt indicates a meal being paid for at 20:53. 

 

The grievors consistently claimed at the investigation that they returned to work after checking into their rooms but there is no documentary evidence presented to back-up their claims such as clocked yard records or eyewitness testimony showing they were actually in the yard working. Given the clear evidence before me in the form of the hotel and restaurant receipts, and in the absence of any verified explanation to the contrary, I find that the grievors have attempted to cover up their actual whereabouts in order to justify their work hours, including overtime. This lack of honesty over their actual work time in the month of March 2009 seriously affects their credibility and ability to be trusted, particularly given that they are self-supervised employees who spend most of their working time on the road.

 

In the end, after a careful review of the evidence, I have come to the conclusion that these two long-term employees were submitting improper time claims. There are legions of cases which support the proposition that dishonest conduct breaks the bond of trust and causes irreparable harm to an employment relationship. The fact that the grievors are long-term employees with years of dedicated service is an insufficient basis to consider reinstatement under the circumstances. I note in that regard the comments of the arbitrator in CROA 1835 where the grievor was found to have falsified trip tickets and, as in the present case, did so knowingly for the purpose of enhancing earnings:

In the instant case, the conduct of the grievor is a form of theft. It is trite to say that such conduct, particularly in a position where a relationship of full trust is essential to the nature of the job, the most serious measure of discipline is justified. Decisions resulting in dismissal have consistently been upheld by this Office in such circumstances (see CROA 461, 478, 899, 1472, 1474)

 

            It is also important to note in this case that the Union has gone to great lengths on behalf of both grievors to present a thorough and determined defence to the Company’s allegations, including raising several procedural issues which were dealt with in the preliminary award. Comprehensive briefs, conference call submissions and supporting materials were presented throughout the arbitration proceedings on their behalf.  In the end, however, I find that the Company, on balance, has presented a convincing case of falsification of time sheets by the grievors during the month of March 2009.

 

             For all the above reasons, the grievances are dismissed.

                                                                                               

                                                            ________________________________                                                                                                           JOHN  MOREAU QC

                                                                                                     July 21, 2010      

 

 

 

 

 


1  It is worth noting that the Supreme Court of Canada has recently confirmed a single balance of probabilities test in the case of F.H. v. McDougall [2008] 3 S.C.R. 41. The Court emphasizes the need to scrutinize the evidence with care”  at paragraph 49: “In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities.  In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred”.