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

 

 

                                                PRELIMINARY AWARD

 

 

Sole Arbitrator:                      John Moreau QC

 

 

Appearing For The Union:

 

Brian Stevens           -           National Representative, CAW

Les Lilley                   -           Vice President, Local 100

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

Ken Hiatt                   -           Local Chair, Transcona Main Shop, Local100

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

 

 

Heard in Winnipeg, Manitoba on February 19, 2010

 

 

 

EX PARTE STATEMENT OF ISSUE

 

On April 29, 2009, CN terminated the employment of Rail Car Mechanics Kevin Graham and Jim McCorry for “submission of fraudulent time claims”

 

The union filed a grievance at contending that:

 

  • CN Rail is in violation of Rule 27.1 as it did not establish responsibility on the part of Car Mechanics Kevin Graham and Jim McCorry sufficient to warrant discharge.
  • The termination notice was not compliant with Rule 27.4 as it did not explain or specify details of the discharge.
  • The investigation was not conducted in a fair and impartial manner as outlined in Rule 27.1.
  • The employees were terminated without having a proper investigation contrary to Rule 23.30 and Rule 27.1, 27.2, 27.4 and appendix III;
  • The employees were denied the procedural fairness provided for in Rule 27, including but not limited to
    • the disclosure of relevant information
    • an opportunity to review the materials presented by the employer
    • an opportunity to participate in the supplemental investigation
  • the evidence does not disclosed any wrongdoing that would justify termination of either of the grievors.

 

The Union requested that the employees be returned to work without loss of wages, benefits, seniority along with all service and pension credits and otherwise made whole.

 

The Company disagrees with the Union’s contention and has declined the Union’s grievance.

 

FOR THE UNION

 

­    “  John Burns”________

President /CAW Local 100

AWARD

 

 

  The Union raised a number of preliminary objections at the outset of the hearing on February 19, 2010. It was agreed at the conclusion of the Union’s submissions, which were lengthy and comprehensive, that the Company would have the opportunity to respond in writing to the preliminary issues raised by the Union. It was also agreed that the Union would be permitted to file a final written reply to the Company’s submissions. The Company filed its written submissions on March 12, 2010 and the Union filed its final written submissions on April 5, 2010. .

 

1) Privacy

 

The Union first contends that that the information gathered by the Company, specifically the hotel check-in and check-out times, and the use of meal receipts submitted for reimbursement, violates the Personal Information Protection and Electronics Document Act (PIPEDA) and the common law. The Union cited the 10 principles that were used as a basis to develop the PIPEDA legislation, including the principle that personal information shall not be used for purposes other than for which it was collected, except with the consent of the affected individual. Another principle is that the purpose for which personal information is collected is to be identified at or before the time it is collected. In this case, the Union alleges that the Company coerced the Best Western Hotel group to disclose private information, including hotel and meal receipts, in violation of PIPEDA as well as the hotel’s own internal privacy policies.

 

The Union submits that the sole purpose for the grievors claim was to have their expenses reimbursed. To solicit and then use unauthorized personal information, in this case hotel and meal receipts, as the Company did here, violates PIPEDA. The Union notes that there are remedies available in the PIPEDA legislation for violation of the privacy legislation through the jurisdiction of the Federal Court of Canada. There is, however, no remedy available within PIPEDA to restore employment as a result of a violation of the legislation as occurred in this case. Accordingly, the Union requests that the hotel and meal receipts obtained by the Company be excluded as evidence in these proceedings, as the arbitrator is entitled to do pursuant to the powers set out under s. 16 of the Canada Labour Code.

 

The Company submits that it is clear from the face of the hotel and meal receipts that the grievors would not have given the Company consent to collect this information given the allegations of fraud over their overtime charges. The Company further maintains that the receipts do not detail any personal information i.e. home addresses; alternatively, the legislation provides a specific exclusion for evidence gathered in an investigation of dishonest or fraudulent behaviour.  The Company also submits that the facts in this case are similar to those involving video surveillance where arbitrators have allowed such evidence if there is a reasonable basis to do, such as investigation into misconduct.

 

The Union cited in reply Re: New Flyer Industries Ltd. and CAW –Canada, Loc. 3003 (2003) 115 LAC (4th) 42. In that case, the arbitrator determined that there was no plausible basis for what he termed the employers invasive actions and thus excluded the evidence on that basis.

 

As the Union submits, my jurisdiction is governed exclusively by the provisions of the Canada Labour Code. The power to admit and exclude evidence, as the Union correctly pointed out in their reply submission, is set out at section 16 of the Code which allows the arbitrator to admit evidence, whether admissible in a court of law or not.  

 

I note from the New Flyer decision cited above the useful comments of Arbitrator Pelz who first notes, starting at p. 43, the view attributed to Arbitrator Picher of the “normal aversion of arbitrators to bifurcating or splitting arbitration proceedings” and then states as follows:

It is a serious matter indeed to exclude highly relevant evidence at the outset of a civil proceeding, particularly a proceeding which normally operates with a less rigid and formalistic approach to the admission of evidence (italics added).   

 

The evidence of hotel and meal receipts is unlike surveillance evidence which is the subject of the special admissibility tests set out in the New Flyer case. I note, however, that even such surveillance evidence will only be excluded before hearing the merits of the entire case if there was “no plausible basis” for such surveillance.

 

The fact that the Company obtained the hotel and meal receipts through Best Western in violation of privacy legislation is an insufficient basis for me to exclude those documents for consideration at this stage of the proceedings. As noted, there is certainly no prohibition in the Canada Labour Code, or in the PIPEDA legislation for that matter, for excluding such evidence in disciplinary proceedings under a collective agreement. The investigative methods adopted by the Company to obtain the hotel and meal receipts do not automatically colour that evidence to the point where it should be excluded from consideration at this stage of the proceedings.

 

            Accordingly, in order to determine what evidence is relevant, it is necessary for me to first hear what Arbitrator Pelz describes as “the full flavour of the case presented”. I find that there is no compelling reason for me to deviate from the longstanding practice of first hearing the evidence before deciding whether it is admissible. The Union’s request to have the evidence of the hotel and meal receipts excluded is therefore rejected at this stage of the proceedings.

 

 

 

 

2) Faulty Discipline Notice

 

            The Union contends that the Form 780 does not satisfy the requirements of rule 27 of the collective agreement and thus should be declared null and void. The Union submits that the Company has failed to identify the specifics in support of their decision to terminate the employment of the grievors in the Form 780 and are therefore left in the position of being unable to challenge whether the termination is “unjust”, as set out in rule 27.4. The Union cites the decision of Nova Scotia and Nova Scotia Government and General Employees Union (Veniot) (unreported) which states that the notice of discipline must contain sufficient detail to identify the transaction underlying the discipline. The Union noted that the Company had a full 28 days after the investigation to review all the evidence and yet it is impossible to determine from the Form 780 which of the items covered in the investigation are being relied on by the Company when they advised the grievors in the Form 780 of their decision to terminate.

 

            The Company responded by stating that the notice provision in the Nova Scotia case is distinguishable from the requirements of rule 27. Rule 27 only requires that the employee be advised in writing of the discipline which is different, the Company maintains, from the wording found in the Nova Scotia case which requires the employer to provide “the reasons for the discharge” in the disciplinary notice.  The Company further maintains in that regard that the grievors were provided with enough written information to understand the case against them. Nor is there evidence that the grievors or the Union have been prejudiced in any way.

 

            I agree with the comments cited by the Company in Re Canada Post v. CUPW [1999] C.L.A.D. No. 253 found at paragraph 10 of the decision:

In approaching this issue, however, a certain degree of common sense must prevail. Boards of arbitration have long recognized that documents in relation to discipline, discharge and the grievances related to them are drafted by laymen, and not by lawyers, and that some degree of reasonable latitude must be allowed.

 

This observation about not being in the parties interests to be overly technical in reviewing grievance documents is an important background comment when considering the disciplinary notice provision. Rule 27.3 simply states that an employee will be advised in writing of any recorded discipline. It does not go any further, as the Company pointed out, and specify any additional requirement for reasons as in the Nova Scotia case.  

 

            It is worth noting, however, that the printed Form 780 does contains an area for setting out the basis of the discipline where it reads: “FOR THE FOLLOWING REASON-  Submission of fraudulent time claims”. The reference to “REASON” in the form 780, however, does not require a lengthy or detailed account of the allegations, such as one would find in civil pleadings where the particulars set out in the claim are raised for the first time in writing. The disciplinary notice is preceded by an investigation (rule 27.1) where the materials facts and supporting evidence relating to the allegations are disclosed by the Company. Any reasonable person reviewing the Form 780 would be satisfied that the reference to the fraudulent time claims are linked to the matters dealt with at the investigation.

 

The Union’s claim would be well-founded if the basis for the allegation of fraud was disclosed for the first time to the Union and the grievors in the Form 780. They would have a legitimate complaint in such circumstances of not knowing the case that has to be met. The grievors in this case, however, were supplied with supporting investigative documents at the time they were questioned about the incidents during both the initial and supplementary investigations. There was also an exchange of positions during the grievance procedure, as noted in the Step II correspondence between the parties. There is therefore no reason to suggest that the grievors or the Union were left in the dark to speculate about the circumstances surrounding the Company’s reference to “fraudulent time claims”.  Accordingly, for these reasons, the Union’s submission that the discipline should be declared null and void as a result of submitting a discipline notice in breach of rule 27.4 is rejected.

 

 3) Fair and Impartial Investigation

 

The Union submits that the grievors did not receive a fair and impartial investigation pursuant to rule 27.1 of the collective agreement.  The Union’s pivotal submission in that regard is that Supervisor Skibinski was involved in every aspect of the investigation and, as such, his involvement has tainted the entire process. The Union, in that regard, notes that Mr. Skibinksi was the catalyst for the audit, the receptor of all information, the person who prepared all the investigation questions and the individual who decided to terminate the grievors. As a result, the Union takes the position that the Company has failed to meet the test of conducting a fair and impartial investigation and seeks an Order that the discipline be declared null and void.

 

            In the alternative, the Union submits that the investigation was flawed because the Union was not given a reasonable opportunity at the Supplementary Investigation to peruse the initial investigation report and the additional evidence  provided by the Company dealing with the allegations of time fraud. In addition, the Union submits that the Company further contravened rule 27.1 when it advised the Employer at 4:40 p.m. on the date of the supplementary investigation that the Union was prepared to resume the investigation and respond to all questions and inquiries of the Company. The Union notes that the Company refused the Union’s request and in so doing breached its obligations for a fair and impartial investigation.

 

            The Company first notes that the Union’s submission with respect to a fair and impartial investigation is not arbitrable because the Union did not raise this substantive argument in a timely manner, as required by the collective agreement. At no time during the course of the investigation did the Union register a concern with respect to the fairness of the investigation. By trying to do so now, the Company submits that the Union is attempting to expand the scope of the grievance without first raising the issue within the grievance procedure as required by rules 27.7 and 28.1 of the collective agreement.

 

            The Company further submits that Mr. Skibinski was the supervisor to whom both of the grievors reported and the person responsible for managing the investigation. The Company submits that Mr. Skibinski was not so intimately involved in the investigation to compromise his own objectivity or lead to an inference of bias. In that regard, he did not personally interview either of the grievors during their statements. The fact that he gathered and compiled the evidence and completed various administrative functions that are part of the overall investigative process did not violate the collective agreement. The Company also denies that Mr. Skibinski had a hand in preparing questions for the investigator at either the initial or supplementary investigations.

 

            The Company also notes that new evidence was uncovered after the initial investigation and which was presented at the supplemental investigative hearing. The Union, in the Company’s view, tried to unreasonably delay the proceedings when they requested a recess during the supplemental investigation.  The Union, in that regard, requested a recess until early evening “at the earliest” at the supplemental hearing. The Company properly considered the statement of Mr. Graham to be closed at 12:40 p.m. when the Union would not agree to provide a more specific time to reconvene the hearing. When the Union requested that the investigation be reconvened later that afternoon, their request was denied because the investigation was closed.. The Union, in the Company`s view, proceeded at their own peril when they refused to be more definite about the time they needed to examine the materials before reconvening the hearing for both of the grievors.  The Union, in reply on this point, submits that it was not seeking an undefined recess but simply a reasonable amount of time to peruse the materials and the Company would have suffered no prejudice in doing so.

 

The arbitrator notes at the outset the very detailed procedural language that the parties bargained in rule 27.2 of the Memorandum of Understanding found at Appendix III. The relevant portions of that provision for purposes of deciding the issue at hand reads as follows:

 

At or prior to the commencement of the hearing, the employee (and the authorized representative if present) will be provided with a copy of all the written evidence as well as any oral evidence which has been recorded  and which may have a bearing on their involvement. Sufficient time will be allowed the parties to peruse the evidence. However it is not the intent of this to delay the investigation process due to an unreasonable amount of time taken to peruse the evidence.  The employee and the authorized representative will have the right to hear all of the evidence submitted and will be given an opportunity through the presiding officer to ask questions of the witnesses (including Company officers where necessary) whose evidence may have bearing on their involvement.  Where witnesses cannot be present, arrangements will be made to permit them to be questioned upon request, where practicable.  The questions and answers will be recorded and the employee and the authorized representative will be furnished with a copy of statements and all other evidence taken.  In the event the Company obtains new evidence having a bearing on the employee’s responsibility, and prior to the assessment of discipline, a copy of such evidence will be provided to the employee, and to the duly authorized union representative (emphasis added).

 

 

 

It is worth repeating that investigative hearings are not intended to follow the legalistic format of a courtroom trial. The idea is to present the documentary evidence to the employee and for the employee to give direct answers to the questions posed. The employee and the Union then have the same opportunity to question the Company witnesses involved in the investigation.

 

            The grievors had already been through a preliminary investigation on April 15, 2009 before the Company decided to call a supplementary investigation hearing on April 24, 2009. The record of the April 24, 2009 interview shows that the hearing for Mr. Graham recessed at 10:47 until 12:00 to allow the Union the opportunity to review the evidence. The Union then returned at 12:00 indicating that it required more time and was offered an extension by the presiding officer until 12:30. The Union then indicated that a half hour was not enough time and that the Union would require a recess until the following morning “at least”. The presiding officer responded that the adjournment request was unacceptable and that the Union and Mr. Graham were to return at 12:30, failing which the Company would make its decision based on the evidence presented. The record further indicates that the Local Chairperson, Mr. McKimm, indicated that he would not return until he had reviewed the evidence thoroughly, which would not be until that same evening “at the earliest”. The record further indicates that it was then explained to Mr. McKimm that the statement would be closed if he failed to appear by 12:40. Mr. McKimm did not appear with Mr. Graham at 12:40 and Mr. Graham’s statement was closed.

 

A similar procedure was followed for Mr. McCorry when he appeared for his supplemental investigation at 12:45. Meal receipts for the period under investigation were presented to the Union and Mr. McKimm. The record shows that Mr. McKimm indicated that he would need until the following morning to review the evidence. The presiding officer responded that he would not wait until the following morning but would allow Mr. McKimm and Mr. McCorry until 15:00 to review the documents. According to the record, Mr. McKimm responded that he would not be returning until the following day and that the presiding officer should close the statement which he did at 13:02.   

 

            The arbitrator finds that the subject matter for the supplementary investigation was not complicated. It appears from the transcripts of both the Graham and McCorry interviews that it had to do with the meal receipts for the period of time under investigation as well as some follow-up questions from the April 15, 2009 investigative hearing concerning the hotel check-in times. The grievors had already answered detailed questions about the hotel receipts for that same period of time at the first investigative hearing on April 15, 2009. Mr. McKimm was initially allowed over an hour to review the documents in the case of Mr. Graham, and then offered a further half hour until 12:30. Mr. McKimm was offered two hours to review the meal receipts for Mr. McCorry and declined.

 

The purpose of disclosing the time-stamped meal receipts was the same as the time-stamped hotel receipts: to seek the grievors explanation for the time the meal was taken when compared to their log in and log out times. In the absence of any contradictory evidence, I find that the time allotted by the presiding officer for both of the grievor’s supplementary interviews was reasonable and in keeping with the spirit and intent of rule 27.2 of the Memorandum of Agreement. In that regard, the two hours offered to Mr. McCorry appears on its face to be a reasonable amount of time to review and answer questions relating to time-stamped meal receipts, particularly given that he had already answered similar questions about the hotel receipts for the time period in question.  In the case of Mr. Graham’s supplementary interview, I might have a different opinion if the Union had indicated the reasons they required more time to examine the documents outside the time already allotted, or a specific time they were prepared to resume proceedings that same day. But the onus was on the Union to be more specific and the response of “at least until” was not acceptable or reasonable under the circumstances.

 

 I would also add that the nature of the investigation involved allegations of misuse of Company time against two employees working together. It was important that the integrity of the investigation process be maintained. The only way to assure the integrity of the investigative process was to question each employee independently and obtain their individual version of events. By doing so, any suspicion of collusion over their testimony was removed. It was simply too late in the day when the Union emailed the presiding officer at 4:40 p.m. to say that the Union was now in a position to continue with the statements. Had the Union staked out its ground earlier with a fixed time for resuming the statement, beginning with Mr. Graham, it would have been incumbent on the Company to consider a further period of time.  But no such request was made and the Union was told at 12:40 (Graham) and 1:02 (McCorry) that the investigations were closed. Once closed, they could not be revived.

 

Having determined that the investigation was conducted in a fair and impartial manner, it is unnecessary for me to deal with the Company’s submission concerning the Union’s failure to raise the issue of the fairness of the investigation when the statements were taken, or at Step II of the grievance procedure.

 

            For all the above reasons, the Union’s preliminary objections are dismissed. The hearing into the merits will take place as previously scheduled on May 18, 19, 2010 in Winnipeg.

                                                 ____________________________________

 

                                                                                   JOHN MOREAU QC

 April 30, 2010