SHP669

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

-and-

THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) AND ITS LOCAL 100

(the “Union”)

RE: INDEFINITE SUSPENSION OF

P. RUMAK AND G. LAW

SOLE ARBITRATOR: MICHEL G. PICHER

APPEARANCES FOR THE COMPANY:

Ron Campbell - Manager, Labour Relations

Sanjay Bahl - Assistant Superintendent

Kevin Kopp - Assistant Track Supervisor

APPEARANCES FOR THE UNION:

Brian Stevens - National Representative

Les Lilley - Vice-President, Local 100 Prairie Region

Peter Rumak - Grievor

Gilbert Law - Grievor

A hearing in this matter was held in Winnipeg, Manitoba on June 23, 2011.

AWARD

This arbitration relates to the indefinite suspension of two employees for having falsely accused a supervisor of smoking marijuana on the job. Both employees, Heavy Duty Mechanics Peter Rumak and Gilbert Law, who had 33 and 34 years respectively of service, remained suspended for a period in excess of 50 days, until they both voluntarily took early retirement. The nature of the dispute is reflected in the Company’s Exparte Statement of Dispute and Statement of Issues, which reads as follows:

DISPUTE:

Violation of Rule 27, 35, Appendix III and XVIII of Agreement 12 as a result of the Company suspending Mr. Rumak and Mr. Law for making false allegations concerning Company Officers smoking marijuana in the workplace on June 23, 2010.

EXPARTE STATEMENT OF ISSUE:

Mr. Rumak and Mr. Law made false allegations regarding Company officers smoking marijuana in the workplace June 23, 2010. The Company conducted an investigation in accordance with Article 27 of Agreement 12 on July 29, 2010. Following the investigation the Company assessed the discipline noted above. The Union alleged that the Company violated Rules 27, 35, Appendix III and Appendix XVIII. The Company denied the Union’s allegations.

The allegation made against the Company officers took the form of a written complaint filed with the Company by the grievors’ Union representative. Those complaints relate to an encounter between the grievors and the two Supervisors in question, an encounter which resulted in disciplinary investigations being conducted by the Company and discipline being assessed against both grievors for conduct unbecoming and insubordination towards Company officers.

I am satisfied that the facts of that encounter are essentially contained in the narrative statements of the two Supervisors concerned, Assistant Superintendent Sanjay Bahl and Assistant Track Supervisor Kevin Kopp. The statement of Mr. Bahl reads as follows:

At approximately 10:15 on Wednesday June 23, 2010, Supervisor Kopp and myself were at the Diesel Shop on the North East side of the Trip Center by the Ladder tracks.

Three shop staff employees were standing outside, Gil Law, Peter Rumak and Kim Johnson. They said something to me along the lines of asking me what I was doing there. I did not hear the employees very clearly, so I walked up to them to introduce myself and explain I was conducting a safety blitz. Supervisor Kopp followed my approach.

Mr. Kopp asked one employee Mr. Law if he was familiar with the company policy on safety boots and how they should be laced up. Mr. Law replied in his own words “I don’t give a fuck, I have 20 days left, go ahead and write me up.” Mr. Kopp pointed out that Mr. Law was conducting himself in an insubordinate manner. Mr. Law disagreed and said he was not. Mr. Kopp pointed out that he was cursing, confrontational and unwilling to follow company policy. Mr. Rumak at this point told us that this was “bullshit”. He said how can we come up and talk to him about laces when I was not wearing a hard hat. We tried to explain that I was from Transportation. He did not want to listen and starting (sic) calling bullshit again. Mr. Rumak said something along the lines that if something falls (from above) is it going to know that I am a Transportation Employee. Both Mr. Law and Mr. Rumak were very loud and aggressive. Mr. Law kept repeating that “you get paid a lot for this” in a derogatory fashion. At one point he explained that it was him that did the work, implying that we as Supervisors did not do any work. Mr. Rumak told us that he had worked here a long time and asked us how much time we had? Mr. Kopp explained he had 25 years to which Mr. Rumak responded in a very sarcastic manner “whoopty doo” and when we have 100 years like the three of them we could come and talk to them. He also told us that this was a “criminal mindset”. Mr. Rumak cursed several times during his tirade. It was explained by myself again that he was being confrontational and insubordinate. Mr. Rumak said go ahead and write me up. I did not know the name of the employee at the time and asked him for his name. He came right up to my nose and less than an inch away, in a very aggressive and threatening manner. He told me his name and repeated his pin # 882814 to me twice and asked if I could understand that.

Three other Supervisors, Chris Joachim, Troy Ducharme, and James Moran had approached the situation just prior to me asking for his name, they witnessed Mr. Rumak approach me in an aggressive and threatening manner. At that point Mr. Rumak turned and walked away towards the diesel shop. I spoke to Mr. Joachim a Supervisor at the LRC to have him contact Rudy Boekler, inform him of the situation and to remove the employees from the property. During the discussions with the employees both Mr. Law and Mr. Rumak were very disrespectful, aggressive in nature and completely unprofessional.

The statement of Mr. Kopp reads as follows:

As I remember,

On June/23/2010 at appx. 10:15 Sanjay Bahl and I approached 3 employees at the north east corner of the diesel shops. Sanjay was the first to meet them. When I came up to them I noticed that 2 of the three employees had there (sic) pant legs outside their boots and were not tied up to the top rung. I asked the one employee (who I would soon learn was Gil Law) if he was aware of the policy that states boots will be tied up to the last whole (sic). The employees said “I don’t give a fuck I have 20 days left, go ahead and write me up. I said OK consider it done. He started to “Go Off”. By that I mean he got real angry real fast. He made it clear that he was not happy about this comment with his body language, facial expressions and demeanour. He was using vulgarities and became confrontational. Accusing me of making “Good money to do this”. I took that as though he was trying to insult my duties. He seemed to want to belittle us and the money we make doing our duties, as he said the same thing over and over, sanjay and I were trying to remind him of the policies CN has in place for safety, which only seemed to aggravate him more, we were accused of “Having the nerve” pointing out that Sanjay had no hard hat on. (Keep in mind that Vulgarities were used throughout the entire confrontation). Both men (Later I would learn that the second the second individual was named Peter Rumac) were commenting of the B&*^S*&T of the whole thing. I told Gil that he was being insubordinate. He asked “how do you figure?” I explained that he was showing anger towards us, he was swearing at us and basically being confrontational. At that point Gil seemed to back off a little, mumbling about the money we make for this. I explained that we do allot more than just “This” and was asked by Mr. Rumac in what I would describe as a condescending, Oh, yeah? And how long have you been with the company. I said 25 years. To which he replied “Whoop do doo” with his finger waving in a circle pointed towards the sky. The he said that HE had 35 years!!! I felt as though he was minimizing my service with CN. We were talking safety polices in regards to the laces and the fact that the transportation policy does not require a hard hat. He accused us of having a “Criminal Mind set” twice. I asked him if he was accusing me of being a criminal. He said no. Just that I was thinking like one. Gil made a comment around this time that stated “He was the one that did the work” implying that we did not. Still going on about the money we make “Doing This”. Sanjay told Peter and Gil that they were being insubordinate and confrontational. Peter said I don’t care write me up. Sanjay asked him for his I.D. And that is when Mr. Rumak got right up in his face and with a raised voice and a frown upon his face said PETER RUMAC 882814 CAN YOU UNDERSTAND THAT MUCH, 8812814 CAN YOU UNDERSTAND THAT!!!!!!!!

Both employees were still mad waiving their arms and repeating vulgarities when they walked away. This was witnessed by 3 other managers who happened upon the scene. Troy Ducharme, James Moran and Chris Joachim. The 3^rd employee was Kim Johnson did not partake in the tirade. He was conducting himself in a professional manner.

During the course of the Company’s investigation into the alleged insubordination of the grievors, neither Mr. Law nor Mr. Rumak made any mention of the fact that Mr. Bahl was smoking during the course of their investigation statements concerning their insubordination. The only objectionable conduct that can be found in either of their statements is the suggestion in the statement of Mr. Rumak that it was improper for Mr. Bahl not to be wearing a hard hat. It appears that during the course of the heated discussion Mr. Rumak accused the Supervisors of having a “criminal mindset”. At answer 21 of his statement he elaborates: “I believe this was prompted from my comment about the criminal intent with Kopp standing next to someone without a hard hat when asking me about safety footwear.”, in explanation of his angry response to the Supervisors. The only mention of smoking which I have found anywhere within the investigation statements is from the Union’s representative who, at the conclusion of Mr. Law’s investigation made an extensive statement objecting to the proceedings and commenting, in part: “When Mr. Bahl exited his truck he walked over and lit a cigarette in a hazardous material storage location and was standing in a mandatory area with no hard hat on.”

The Company’s investigation into the alleged insubordination of the grievors resulted in a Form 780 being issued to each of them, with 40 demerits being assessed against Mr. Rumak and 30 demerits against Mr. Law. That form is dated June 30, 2010.

More than two weeks later the Union’s representative, Mr. Les Lilley, forwarded the following letter to the Company’s Assistant Chief Mechanical Officer, Mr. L. Timoteo:

This letter is in regards to circumstances surrounding an incident on June 23, 2010 where three employees namely P Rumak, G Law and K Johnston were approached by Supervisors S Bahl and K Kopp.

As I’m sure you are aware of the outcome of this incident there is no need to explain the details.

However, there is something I’m sure you are not aware of and information that I purposely told the 3 individuals not to bring out their allegation in the statement as I found it very disturbing and I felt compelled to inform you myself.

When Misters Bahl and Kopp approached the employees, Mr. Rumak and G. Law stated there was a strong and distinct smell of marijuana in the air coming from either one or both of these Supervisors but none the less the smell was so strong that it was said that IT SMELLS LIKE MARIGUANA HERE. The third individual K Johnston heard just that being said. Mr. Johnston goes on to say that when it was said Mr. Bahl took a step back.

Please refer to the attached documents from Misters Rumak and Law.

As per the CN’s Drug and Alcohol policy and I quote “any employee who has knowledge or suspicion of any breach of this policy is required to take appropriate action to address the situation. Failure to do so may result in corrective action up to and including dismissal” End quote.

The reason I advised these individual not to say anything either before or during the statement is because Mr. Pulak had no interest in the truth and simply wanted the two individuals dismissed. He readily admitted that he was not fair and impartial as he stated this to myself during the statement. Mr. Pulak who comes from Transportation demonstrated complete and utter distain for mechanical employees.

At the time the two individuals were removed from the property they were correct in assuming no one in management would have done anything and would have put it off as sour grapes. This is evident as no one investigated their allegations or even took them seriously.

Additionally they would of in all likelihood had more disciplined applied to not only the two of them but also the third one as well.

While it is sometime after the incident, at a minimum the Union asks that because of the allegations of the three individuals that both of these Supervisors namely Misters Bahl and Kopp be Drug tested as a scheduled employee would have to in similar circumstances.

The statement of Mr. Law, appended to Mr. Lilley’s letter, states:

San Jay Ball (sic) walked up to me blew smoke directly in my face. The smell was that of maryjauna (sic). The other Guy Kevin Copp smelled of the same odor.

Mr. Law’s statement is noted has having been signed on June 28, 2010.

Mr. Rumak’s note, signed on the same day, reads as follows:

The incident I had on June 23, 2010, with supervisor Sanjay BAll (sic) at Symington Yard (L.R.C.) at the end of our conversation I briefly smelled marijuana (I think) off his breathe (sic).

The record confirms that both Supervisors were drug tested, apparently by urinalysis, on July 28, 2010. Both tests were negative for the presence of marijuana.

Mr. Law’s investigation was conducted on July 27, 2010. He was then investigated for, as reflected in the heading of the investigation: “Failure to Report a Safety Hazard.” Mr. Law’s statement contains the following with respect to his observation of Supervisor Bahl smoking:

Q7. Did you observe Mr. Bahl smoking?

A7. Yes.

Q8. Could you tell us what Mr. Bahl was smoking, i.e. cigarette, cigar, pipe etc?

A8. I could not be sure, something that looked like a cigarette.

Q10. Did you observe any indications of impairment?

A10. Yes.

Q11. Could you describe?

A11. He was unsteady, he smelled of Marijuana and was unsteady.

Q12. Did you observe the drug you alleged was being consumed?

A12. As he approached me the smell of Marijuana was with him and he blew it in my face.

Q13. What form did it take?

A13. It was Marijuana smoke

Q14. How did you see it?

A14. As he walking towards us there was smoke coming and it was Marijuana.

Q15. Did anyone else see it?

A15. They smelled it, I don’t know whether they have seen it.

Q16. When you say they, who is they?

A16. Peter Rumak and Kim Johnston.

Q17. In the attached letter you state that Sanjay Bahl blew smoke directly in your face and the smell was that of marijuana. What led you to conclude he was smoking marijuana?

A17. Because Marijuana has a distinct smell it was Marijuana

Q19. From your point of observation, was only one person physically smoking or both?

A19. Sanjay 100% sure was smoking dope, the other I am not sure but he had the smell on him.

Q22. Who did you advise of your belief that the supervisor (s) were smoking marijuana?

A22. When Sanjay was blowing smoke in my face, Peter Rumak told Kevin Kopp “this smells like Marijuana”. Then Kevin Kopp attacked me about my boot laces

Q34. In reference to question 19 you state “Sanjay 100% sure was smoking dope”. Are you saying he was smoking Marijuana when directly in your presence.

A34. He blew it right into my face.

Mr. Rumak’s investigation was conducted on July 29, 2010. The reason for the investigation noted in that report is: “Violation of the Company’s Policy to Prevent Workplace Alcohol and Drug Problems on June 23, 2010 by failing to report the alleged violation in a timely manner and to the proper authority.” During the course of his statement Mr. Rumak confirms the statement of Mr. Law that Mr. Rumak made the comment “This smells like marijuana”, stating that he believed that his comment was sufficient notification to Supervisor Kopp, who was standing there, that a drug and alcohol policy offence was then being committed by Mr. Bahl. Like Mr. Law, he explained that he did not disclose anything relating to the alleged marijuana consumption during the course of the Company’s earlier investigation because he was advised not to by his Union representative.

The Company also obtained a statement from the third employee who accompanied Mr. Law and Mr. Rumak, Electrician Kim Johnston. Mr. Johnston’s statement, taken on July 28, 2010 does not support the account of events related by the grievors. Mr. Johnston’s statement reads, in part, as follows:

8. Q. How close were you to the incident?

A. somewhere between 5 or 10 feet from Gil

9. Q. Did you see Mr. Bahl questioning Mr. Law?

A. Yes I saw them talking.

10. Q. How close was Mr. Bahl to Mr. Law?

A. About 3 feet

11. Q. Where was Mr. Rumak at the time Mr. Bahl talked

to Mr. Law?

A. Approximately 3 or 4 feet on the other of side of

Gil. They were basically standing together, to the

best of re-collection

12. Q. Where was Mr. Kopp in relation to Mr. Bahl during

the conversation with Mr. Law?

A. When Sanjay First walked up, Kevin Kopp was still

in the vehicle and at some point, several minutes

Kevin got out the truck and walked up to up to be

with Sanjay Bahl. The truck was parked about 20

feet away.

13. Q. Was Mr. Bahl smoking?

A. Yes, when he got out of the vehicle he lit up a

cigarette and after he lit the cigarette he come

towards where we were standing. When he came

to towards us he called for Gil and then got right to

us and did exhale the smoke of his cigarette.

14. Q. Did you hear the context of the conversation

between Mr. Bahl and Mr. Law?

A. Some of it.

15. Q. What did you hear?

A. I don’t remember

16. Q. Did you see anyone else smoking?

A. I don’t remember

17. Q. Did you smell anything abnormal?

A. No I did not

18. Q. Could you determine on what Mr. Bahl was

smoking?

A. No

19. Q. How did Mr. Rumak enter the scene?

A. He was already there standing with Gil and myself

as we were surveying our job site. Pete was

already there he did not show up after Sanjay

showed up.

20. Q. How close was Mr. Rumak to Mr. Bahl?

A. Off to the side of Gil 4 feet, when Sanjay walked

up that is the way they were situated

21. Q. Did you hear the context of the verbal exchange?

A. Somewhat, but to repeat it verbatim … no.

22. Q. Did you hear at anytime anyone saying “It smells

like Marijuana here”?

A. Yes, I did hear that

23. Q. If so, who made the above statement?

A. To the best of my recollection, Peter Rumak said

it.

24. Q. Was there anything unusual about the Officer’s

behaviour?

A. To the best of my re-collection … no.

25. Q. Did Mr. Bahl or any other Officer appear to be

impaired in any manner?

A. To the best of my re-collection … no

26. Q. How long did the verbal exchange last?

A. Could have been 5 or 10 minutes to the best of my

re-collection

27. Q. Was it a normal exchange of words?

A. To the best of my re-collection it was

confrontational and no need for it. There is better

ways of holding a conversation rather than going

down hill.

28. Q. Could you hear what was said?

A. No. At one point I went back to my job site,

inspecting a pipe to be installed on the sand tower.

Whenn I was doing that a second vehicle

drove up, as it drove up I was already walking

back to the Trip Centre.

Both employees were provided with Form 780 Notices of Discipline dated July 30, 2010. Both forms, with slight grammatical variations, contained the following statement:

Suspended until you apologize and recant your false allegations For making false allegations concerning company officers smoking marijuana in the workplace on June 23, 2010

It is not disputed that subsequently both employees did take early retirement effective September 30, 2010. While one of them may have indicated a wish to retire effective August 30, 2010, it appears that the request was denied on the Company’s view that both employees should suffer the same effective period of suspension which, in the end, apparently totalled some 66 days.

As part of the Union’s submission, objection is taken to the conduct of the disciplinary investigation held by the Company. The Arbitrator can find nothing in the record to sustain the suggestion that the investigation conducted by the Company was improper. I do not consider that the questions put to either of the grievors were abusive nor that they were necessarily presumptive of guilt. The Company’s investigation was a fair inquiry into whether marijuana was being consumed by a supervisor and why, if it was, that fact was not reported earlier by the grievors. The Union’s objection in that regard is therefore dismissed.

The first issue to be addressed with respect to the merits of the grievances is whether it can fairly be concluded, on the balance of probabilities, that Supervisor Bahl was in fact consuming marijuana on the job while speaking to the grievors on June 23, 2010. A related question is whether, if he was not, they nevertheless had a good faith belief that he was.

After an extremely careful review of all of the evidence I am compelled to conclude that there is no responsible basis upon which it can be found that Mr. Bahl was consuming marijuana, as alleged by both grievors. Nor am I persuaded that they can be said to have had any reasonable basis for that belief. In coming to that conclusion I place great reliance on the investigatory statement provided by Electrician Kim Johnston. Mr. Johnson was the third employee present at all times during the exchange between the grievors and the two Supervisors. He did not engage in the heated verbal confrontation which took place between the grievors and the Supervisors and was therefore never investigated nor disciplined as a result of what occurred. The smell of marijuana is a pungent and relatively unmistakable odour, usually detectable from a reasonable distance. Mr. Johnston, who stood a few feet from where the grievors were standing during the confrontation with Mr. Kopp and Mr. Bahl relates that he did not smell the odour of marijuana. He also states that he observed nothing unusual in the demeanour or conduct of the two Supervisors. At most, he confirms that Mr. Rumak made a comment that the smoke smelled like marijuana.

While I accept that Mr. Rumak may have made a gratuitous comment about the smell of the smoke, a review of all of the facts leaves me in substantial doubt as to the credibility of either Mr. Rumak or Mr. Law with respect to their allegation. If nothing else, their very heated verbal altercation with Mr. Kopp and Mr. Bahl revealed that they are fearless with respect to confronting their Supervisors on any issue of safety. How is it to be concluded that, during the course of a conversation that extended between five and ten minutes, during which Mr. Law and Mr. Rumak pointedly accused Mr. Bahl of improperly being without a hard hat, which would be a safety infraction, they would nevertheless say nothing to either Supervisor about the arguably greater safety infraction of a Supervisor openly smoking marijuana on the job? I find it implausible in the extreme that the grievors would not have jumped at the opportunity to criticize their Supervisors, given their aggressive attitude towards them, and would certainly have mentioned that they were smoking marijuana. I also have difficulty with Mr. Law’s description of Supervisor Bahl as being “unsteady”. While that qualifier may well apply to the description of a person impaired by alcohol, it is not commonly applied to a person who is under the effects of marijuana. Most importantly, I find it highly implausible, and indeed incredible, that neither Mr. Law nor Mr. Rumak would have registered any more than a passing comment about the smell of Supervisor Bahl’s smoke if they were convinced that he was in fact consuming marijuana openly on the job. It is also most significant that their allegation is not corroborated by Mr. Johnston who was himself in no way involved in the confrontation with the Supervisors.

In the result, I am compelled to conclude that neither Mr. Law nor Mr. Rumak truly believed or had any reasonable grounds to believe that Mr. Bahl was smoking marijuana at work in their presence on June 23, 2010. I am therefore drawn to the unfortunate conclusion that they put that allegation forward either falsely or recklessly in a manner which was highly inappropriate and which was deserving of a serious measure of discipline.

What, then, would the appropriate discipline have been? In my view a range of sanctions might well have been possible, up to and including the discharge of the employees in question. The Arbitrator has a fundamental concern, however, with the penalty which the Company opted to impose. In effect, it imposed an open ended, indefinite period of suspension. The grievors were effectively told that they would remain suspended until such time as they recanted their statements and apologized. That form of discipline is, insofar as I am aware, unknown to Canadian labour law or arbitral jurisprudence. Nor should that be surprising, as it is fundamentally contrary to the well established rules of adversarial conflict which underlie our accepted system of industrial discipline.

It is fundamental that union and management may disagree, and disagree strongly, on the facts of a given incident. The grievance and arbitration process is the proper venue for resolving their disagreements. It is, in my view, therefore highly problematic for an employer to take the position that a particular disciplinary sanction, such as a suspension, will remain in place until such time as the employees concerned or their union fully accept and agree with the employer’s view of the facts. The position of the employer is close to the questionable course of suspending an employee indefinitely, until such time as he or she waives or withdraws any grievance against the suspension. With respect, I do not believe that the concept of discipline for just cause can be said to allow that approach, which is perilously close to the dubious belief that torture, applied long enough, will reliably elicit the truth. I am therefore compelled to the conclusion that the Company exceeded its discretion by subjecting the grievors to an indefinite suspension which would continue until such time as they recanted their allegations and agreed with the Company’s view of the facts.

On the foregoing basis, while I accept that the grievors committed a serious and regrettable offence, as the employer opted for a form of suspension rather than discharge, I am compelled to conclude that the grievance must be allowed, in part. Under their indefinite suspension the grievors suffered what appears to have amounted to 66 days of suspension until such time as they voluntarily took their early retirement. That extensive suspension is more burdensome still as it does have a negative effect on their pension entitlement, a fact that would continue to penalize them to some degree for the rest of their lives. While the Arbitrator does not excuse the abusive actions of Mr. Law and Mr. Rumak, they do have 34 and 33 years service to the Company, respectively. It appears that neither has incurred any serious discipline for some 20 years, and that both of their disciplinary records were clear prior to the events of June 23, 2010. In my view the assessment of a suspension of 10 working days would have been amply sufficient to convey to them the seriousness of their conduct with respect to the allegations made against Assistant Superintendent Bahl and, indirectly, against Assistant Track Supervisor Kopp.

The grievances are therefore allowed, in part. The Arbitrator directs that the disciplinary records of Mr. Law and Mr. Rumak be amended to reflect a two week suspension for their false and irresponsible allegations made against their Supervisors in relation to the incident of June 23, 2010. They shall be compensated for the balance of all wages and benefits lost and their pension entitlements shall be correspondingly adjusted.

I retain jurisdiction in the event of any dispute concerning the interpretation or implementation of this Award.

Dated at Ottawa, Ontario this 29^th day of June, 2011.

_____________________________

Michel G. Picher

Arbitrator