SHP656
IN
BETWEEN:
CANANDIAN
(the
AND
NATIONAL
AND
(CAW
(the
GRIEVANCES
AWARD
Sole
Appearing
Brian
Bruce Snow - Vice President, CAW Local 100,
Vancouver
Terry Halliday -
Grievor
Paul Caines - Grievor
Appearing
Ron
Basil
Gabriel
Broberg - Manager, Thornton Shops
Anthoni
Hunt - Manager,
Thornton Yard
Heard
AWARD
This case involves the discipline
assessed to the grievors, who work as a two-man crew in the mechanical
department in the Vancouver terminal, for failing to perform their duties on
October 8, 2009. Mr. Halliday was suspended for 30 days while Mr. Caines
received 30 demerits. The Company maintains that the grievors, who were working
the 07:00 to 15:00 shift, did little or no work at the start of the shift
between 07:00 and 07:50 (first incident) and at the end of the shift between 14:15
and 15:00 (second incident). The
The Union proposed, as a preliminary
matter, that the Company did not conduct a fair and impartial investigation
according to Rule 27, Appendix III of the collective agreement because the Notice
to Appear was vague and unclear as to the subject matter of the investigation. The
Notices to Appear for both grievors indicate the following:
You are required to attend an investigation to
provide a formal employee statement in connection with the performance of your
duties in Vancouver Intermodal Terminal on 10/08/09.
It is important that employees of the Company and the
Union be sufficiently informed of the subject matter of any proposed
disciplinary investigation. There was, however, no objection raised immediately
after the notice was served on the grievors, nor at any time prior to the
investigative hearing, that it was vague or unclear. Although both grievors
indicated at the outset of the investigation that they were unclear about the
reasons for the statement, there is no indication in their subsequent responses
that they were taken by surprise or unable to respond to the questions put to
them about their performance on October 8, 2009. The grievors, in that regard,
provided detailed and at times lengthy answers about their conduct while on
duty, including references to specific tasks performed at various times of the
day. That demonstrates some forethought on the part of the grievors and
indicates that they came prepared to answer questions about their performance
for the entire 07:00 to 15:00 shift.
I also disagree with the
I find no violation of rule 27 of
Appendix III in Agreement 12 in this case.
With respect to the first incident, the
Company maintains that Manager Rick Hargreaves looked for the grievors at 07:40
to see how they were progressing with respect to repairs on four bad order cars
in Track PVO4. He found both of the grievors in the Vancouver Intermodal Yard
(VIT) lunchroom and asked them how long it would be before they started work on
the four cars. According to Manager Hargreaves, Mr. Caines responded that there
was no vehicle available when they reported to work and that he expected it to
arrive within 10 minutes. Mr. Caines, in his statement, denied that he
mentioned anything about a 10 minute arrival time because he was not in
communication with the operator of the vehicle.
Mr. Caines version of events was that he
contacted his supervisor at the beginning of his shift in order to obtain a
vehicle and his supervisor indicated that he would send one up right away. He
added that he had not had a vehicle at the beginning of the shift for some two
weeks prior to his incident. Mr. Caines indicated that a vehicle usually
arrives within 5 minutes but, for the last two days, the vehicle had not
arrived until 07:20. Mr. Halliday, for his part, indicated at his investigative
hearing that Mr. Caines, who he referred to as the lead hand, told him at the
beginning of the shift that the vehicle would be up shortly, which he
understood at the time to be between 10 to 20 minutes.
According to the grievors, the vehicle finally
arrived at 07:50 and they left immediately for their yard assignments after
filling out the vehicle inspection sheet and loading their equipment onto the
vehicle. Mr. Caines indicated in his statement that he kept busy during the
period between 07:00 and 07:50 doing office work including running cultists,
checking faxes as well as verifying his wheel, CR and air test sheets. Mr.
Halliday indicated that he waited for the truck and further instructions during
that time from his lead hand, Mr. Caines.
With respect to the second incident, the
evidence is that Assistant Vice-President John Orr and Superintendent Derek
Taylor were conducting a safety blitz on October 8, 2009. According to Mr.
Taylor, they arrived at the VIT yard at 14:15 for the purpose of conducting an
efficiency test but did not find the grievors, who should have been working on
the pad track. Mr. Taylor indicated that the grievors were found in the VIT
building at 14:30, thirty minutes before the end of their shift. Mr. Halliday
was cleaning up in the bathroom and Mr. Caines was in the VIT office.
Mr. Halliday indicated during his
statement that he was inspecting some cars in PVO3 that afternoon and that he
and Mr. Caines accomplished as much as they could before Mr. Caines was
required to go back to the VIT building to perform his lead hand paper work duties
at 14:30. Mr. Halliday indicated that they arrived back at the VIT building 14:35.
He responded in great detail about what he was doing in the VIT building from 14:35
until he met up with Mr. Orr in the washroom some 15 minutes later. He stated that
he was in the washroom for just six and a half minutes when Mr. Orr walked in.
Mr. Caines also provided a detailed response at the investigation regarding his
work activities after 14:35, when he arrived back at the VIT building, until
15:05 when his shift ended.
The Company pointed out in its
submissions that a 15 point notice was issued on March 24, 2008 regarding the
Company’s expectations regarding workplace behaviour. The notice confirms,
amongst other rules, that employees are to remain engaged in productive work until
the start of their break time and return directly to their assigned work after
the break. The notice also specifies that a reasonable amount of time, not to
exceed five minutes, will be allowed for cleanup prior to the end of the shift.
These are examples, in my view, of rules that are found in a number of
workplaces employing shift workers like the grievors. The clear expectation is
that employees are to be engaged in productive work during their shift
assignment.
I accept that the grievors were not
ignoring their duties when they started their shift together on the morning of
October 8, 2009. Indeed, some preparatory work was undertaken by Mr. Caines, as
noted by the time-stamped cutlist at 6:57:59 showing two wheels, two beams and wheels
to be repaired that day. I also accept that the grievors had been unable to
secure a vehicle at the beginning of their shift for a number of consecutive
work days and that a call was made to the supervisor at the beginning of the
shift by Mr. Caines, in his capacity as lead hand, requesting a vehicle.
Mr. Hargraves stated that he observed the
grievors in the VIT lunchroom at 07:50. Mr. Caines recalled that it was 07:35
when he first met up with Mr. Hargraves. Even at 07:35, the two grievors were
well over a half hour into their shift and yet were unable to start their
assigned work in the yard because of the vehicle delay. Mr. Caines indicated
that the truck had been delayed until 07:20 for the previous two days. There is
no indication, however, that he called his supervisor a second time after 07:20
on October 8, 2009, or at any other time to inquire about the vehicle that
morning before the vehicle finally arrived at 07:50.
In my view, it was not enough for Mr.
Hargraves to simply defer to Mr. Caines that morning and wait for things to
happen. He should have taken more initiative under the circumstances. In that
regard, he could have suggested that Mr. Caines make further inquiries about
the whereabouts of the vehicle, or indicate to Mr. Caines that he would take on
that task of checking with the supervisor for the whereabouts of the vehicle while
Mr. Caines was busy with other paperwork and faxes.
Mr. Caines, as the lead hand, clearly had
the primary responsibility to follow up on the whereabouts of the vehicle. It
was simply unacceptable for Mr. Caines, even though he had paper work to occupy
himself, to wait some 50 minutes for the vehicle to arrive when there was work
to be done in the yard. As the lead hand
in charge, he should have shown more initiative under the circumstances.
I find that both grievors were deserving
of discipline for the first incident on the morning of October 8, 2009.
Turning to the second incident, it is
worth noting that both Mr. Orr and Mr. Taylor were on a safety blitz on October
8, 2009 and both grievors were aware of the blitz. Mr. Orr and Mr. Taylor were
unable to see any carmen when they drove from the east end to the west end of
the VIT at 14:15. The time of 14:15 is confirmed in Mr. Taylor’s email of
10/10/ 2009 to Mr. Broberg. Mr. Owens himself noted that he got a call from Mr.
Taylor and Mr. Orr at 14:15 and that they were looking for the two carmen at
the time.
Mr. Caine’s testified at the investigative
hearing that they began their inspections at 14:15 and that he and Mr. Halliday
inspected 16 and 15 cars respectively on PVO4 and PVO3. Mr. Halliday, for his
part, indicated at the investigation that the repair truck was parked at the
north side of the PVO3 when they began their inspections at 14:15. Mr. Halliday
stated that it would have been difficult for Mr. Taylor and Mr. Orr to see the
two of them given the presence of the containers and rail cars.
On balance, Mr. Taylor’s version of events
is the most persuasive. There were specific calls made to Mr. Owens about the
whereabouts of the two carmen. The time of the call at 14:15 is confirmed by
both Mr. Taylor and Mr. Owens. In addition, neither Mr. Taylor nor Mr. Orr
could see the grievors at the point in time when the grievors claimed they were
inspecting cars on PV03 and PV04. However, Mr. Orr and Mr. Taylor were given
precise instructions as to the two grievors location on PVO3 and PVO4 when Mr.
Taylor called in at 14:15 looking for the two carmen.
I therefore conclude that the grievors had
already reached the VIT building by 14:30, a half hour before the end of their
shift. Mr. Halliday was found to be washing up and Mr. Caines was in the
office. The grievors were in the VIT building some 30 minutes before the end of
their shift rather than performing their yard duties. In my view, discipline is
warranted for the second incident in the case of both grievors.
Turning to the quantum of discipline, an
aggravating factor in this case is that the grievors knew there was a safety
blitz on that day and that supervisors were more likely to be in the area.
Despite that knowledge, the grievors left the yard almost a half hour earlier
than they should have under the circumstances. Mr. Caines, the lead hand, had just received 20
demerits as a result of a derailment that occurred a few months earlier in June
2009. Mr. Caines was also the person with the primary responsibility to contact
the supervisor about the absent vehicle in the morning and make sure that he
and Mr. Halliday stayed on task in the yard within the guidelines of the
Company’s 15 point expectations document (released by the Company in March 2008).
The principle of progressive discipline would therefore suggest that escalating
the penalty to 30 demerits is an appropriate disciplinary response under the
circumstances.
I note, however, the comments of
Arbitrator Weatherill in SHP-256
that the Brown system “…is a flexible system and arbitrators have exercised
what I consider to be the appropriate review power with respect to its
application”. One of the cases submitted by the Company states that 15 demerits
was found to be within the range of penalties for inadequate work performance,
even allowing for delays that were not the fault of the employee. See: CROA 1705. After a careful review of the facts, and
noting in particular the grievor’s 35 years of service, it is my view that an appropriate
disciplinary response, which respects both the flexibility of the Brown system
and at the same time the principle of progressive discipline, is 20
demerits.
Mr. Halliday also failed to complete his
duties in the manner set out in the 15 point expectation. Despite his unenviable work record of 50
demerits-all accumulated in 2009 which placed him on the precipice of discharge-I
find that that the 30 day suspension to be excessive under the circumstances.
Besides his lengthy service of 32 years, I accept as an important mitigating factor
that he was under the direction of his lead hand Mr. Caines for both the first
and second incident. This does not excuse him for failing to perform his
assignment in a productive manner but does acknowledge that he was working
under the direction of Mr. Caines who had primary responsibility for completion
of the day’s assignment. I therefore find that an appropriate penalty under the
circumstances in the case of Mr. Halliday is a 3 day suspension.
In summary, the two grievances are allowed
in part. Mr. Caines record shall show a disciplinary penalty of 20 demerits
instead of the current 30 demerits for the incidents of October 8, 2009. Mr.
Halliday’s record shall be changed to reflect a 3 day suspension in lieu of a 30
day suspension for the October 8, 2009 incidents. Mr. Halliday shall be
compensated for the difference in lost wages and benefits resulting from the
change in the disciplinary penalty.
________________________________
JOHN M. MOREAU QC
August 11, 2010