SHP672

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN

 

CANANDIAN NATIONAL RAILWAY COMPANY

(the “Company”)

 

AND

 

 

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION

AND GENERAL WORKERS UNION OF CANADA

(CAW – CANADA) LOCAL 100

(the “Union”)

 

 

RE: GRIEVANCES OF IAN PICKERING

 

 

 

Sole Arbitrator:                      John M. Moreau QC

 

 

 

Appearing For The Union:

 

Les Lilley                   -           Vice President, Local 100

Brian Stevens           -           National Rep., CAW

Terry McKimm           -           Local Chair, Local 100

Gavin Smith              -           Area Rep., Lodge 550

Ken Hiatt                   -           Location Chair Transcona Main Shop, Lodge 550/100

Ian Pickering            -           Grievor

 

 

Appearing For The Company:

 

Basil Laidlaw                        -           Manager, Labour Relations, Edmonton

Ron Campbell          -           Manager Labour Relations

Ray Mills                    -           Manager Transcona Car.

 

 

 

A hearing in this matter was held in Winnipeg, Manitoba on February 18, 2010.

AWARD

 

The grievor, a 49 year old mechanic, was assessed 10 demerits on May 8, 2008 for failing to meet production standards in the Transcona truck shop from April 10 to 24, 2008. His disciplinary record stood at 45 demerits as a result of the 10 demerit assessment. The grievor was assessed a further 14 demerits on August 15, 2008 for failing to meet expectations when assigned to repair bolsters in the truck shop from June 25 to July 9, 2008, which left his disciplinary record standing at 59 demerits. The grievor was then assessed a further 20 demerits on September 2, 2008 for failing to meet truck side frame production targets from August 19 to 22, 2008. His disciplinary record stood at 79 demerits; consequently, he was terminated on September 2, 2008 as a result of accumulating in excess of 60 demerits. The Union grieved all three disciplinary incidents.  

 

The grievor began his career with the Company in 1983 as a pipefitter. He injured his right knee on November 9, 1988 while at work which left him with permanent restrictions. He experienced a second workplace injury when he hurt his right arm on June 28, 2005. He was diagnosed at that time as having a bicep strain with a possible tear. The grievor’s permanent work restrictions as a result of the right knee injury were assessed by the WCB, in a file report dated October 6, 2005, as follows: no overhead work; no lifting greater than 25 lbs and lifting only from the waist only. His temporary restrictions arising from the bicep injury were: avoid squatting, avoid kneeling, stairs and ladder climbing.  In keeping with those work restrictions, the Company had assigned the grievor to welding duties on trucks that were undergoing reconditioning. The grievor performed this work at the truck shop in the Transcona yard from August 2005 until December 2005.  As a result of an amalgamation between three shop crafts and a shift in workload, the grievor’s position in Transcona was abolished and he was reassigned to the Symington Yard on December 19, 2005.

 

The Company assigned the grievor to performing roll-by inspections of trains from December 20, 2005 to April 21, 2006. This work involves listening to the train go by and ensuring that there are no problems with the brakes. There was no other accommodation work available at the Symington yard after April 21, 2006 that could be modified to suit the grievor’s work restrictions. The only work the grievor could do at that time was as a biller, a position that was already occupied by a more senior mechanic with work restrictions. The grievor therefore remained off work completely on WCB benefits beginning on April 21, 2006.

 

The grievor’s WCB case worker, in the interim, had ordered a Functional Capacity Evaluation on January 20, 2006 on the basis that the grievor’s restrictions from the right arm injury should be “reducing if not ending”. By August 16, 2006, the grievor’s WCB case manager wrote to the Company indicating that the grievor “had made a good functional recovery from his June 28, 2005 workplace injury and no longer requires restrictions related to his right arm injury”.  A work site assessment was performed by the WCB on October 19, 2006. A follow-up letter dated November 14, 2006 from the WCB states “…restrictions for the right arm claim were no longer required”. The letter also noted that the grievor was appealing the WCB decision based on the fact that his physician had indicated the following restrictions: no lifting greater than 30 lbs with right arm and no overhead work with right arm. The WCB letter of November 14, 2006 goes on to recommend modified duties in the car shop including: tag making and installation on cars, applying tape to cars and work at the wheel shop table.

 

The grievor remained off work on WCB benefits from the time the roll-by accommodation ended on April 21, 2006 at the Symington yard through to November 5, 2007, when work that was considered to be within his restrictions was identified in the Transcona truck shop. The work identified for the grievor was repairing truck side frames. The grievor reported to work at the truck shop the following day, November 6, 2007. He was provided with updated training with a peer trainer from November 6 to November 9, 2007. During those three days, the grievor was only able to meet 50% of the Company’s expectations for the number of truck side frames to be completed in a shift. The expectation from the Company was that the grievor would complete between 8 to 10 truck sides per shift.  The grievor was assessed 10 demerits on November 26, 2007 for failing to meet production expectations.

 

The grievor continued to work on installing truck sides from December 4, 2007 to March 12, 2008. According to the Company, he was able to meet the standard of 8 truck sides per shift over 60 shifts during this time. The grievor was then moved to reconditioning bolsters in a different part of the truck shop. A work site assessment was conducted by the WCB on March 12, 2008 who determined that the grievor could do the bolster work. After three weeks of peer training, the grievor began working on reconditioned bolsters on April 9, 2008.

 

The Company’s production expectation was that the grievor would be able to recondition three bolsters per shift. The grievor was not achieving the target and was called in for an investigation on April 24th for failing to meet production goals for the period from April 10 to 24, 2008. The grievor indicated at the investigation that he was unable to meet the production target of welding three bolsters per day because the plasma cutting on bolsters was different than his experience on truck side frames and that it took more time to gain experience. He also mentioned that he had to work on three different bolster workstations while other employees always stayed at the same workstation. The grievor was assessed 10 demerits on May 8, 2008 for failing to meet production standards in the truck shop from April 10 to 24, 2008.

 

The grievor continued to work reconditioning bolsters in the Transcona truck shop during the months of April, May and June 2008. The grievor, by early June 2008 (according to correspondence from the WCB dated June 23, 2008), felt that he was at a competitive disadvantage due to his right knee difficulties and therefore unable to meet the production expectations. The grievor produced a note from his doctor on June 4, 2008 which stated he “…should remain on current work restrictions working at his own pace with minimal twisting right knee”. Given this new “work at his own pace” restriction, a WCB physical examination was arranged on June 10, 2008 followed by a further WCB work site assessment on June 11, 2008.

 

The WCB concluded in a report to the Company on June 23, 2008 that the grievor’s accommodated duties involving the repair of bolsters were appropriate to his physical restrictions resulting from his permanent right knee disability. The WCB did not accept the “work at your own pace” restriction. The WCB also recommended three work site improvements to assist the grievor’s situation at work and each of those was implemented.   

 

The grievor was requested to attend an investigation on August 11, 2008 for failing to meet production expectations in the truck shop for the period June 25 to July 9, 2008. The grievor disputed the Company’s claim at the investigation that he was only performing at 33% of the expected production level. He maintained that it was higher than 33% because he usually finished one bolster and then started on another which gave him “…the second completed bolster in 10 days or sometimes sooner”. The grievor was then assessed 14 demerits on August 15, 2008 for failing to meet production expectations for the June 25 to July 9, 2008 period.  The grievor met with the Director of the Transcona Shops on August 18, 2008 who advised him that his discipline record had reached 59 demerits. He was also told at that time that he would be discharged from the Company if his record reached 60 demerits.

 

The grievor was then reassigned on August 19, 2008 to reconditioning truck sides in the Transcona truck shop. The grievor was requested to attend an investigation on August 27, 2008 for failing to meet truck side production targets from August 19-22, 2008. The production expectation of the Company was that the grievor would complete 8 to 10 sides per day and the grievor completed the following: six on August 19th, five on August 20th; five on August 21st and five on August 22nd. The grievor stated at his investigation of August 27, 2008 that he was unable to meet the target because his doctor had advised him to work at his own pace. In that regard, a letter from his physician to the Union dated August 26, 2008, which was entered into evidence at the investigation by the Union, confirms that the grievor was unable to lift greater than 30 lbs with his right arm and should avoid overhead work. The letter also confirms that the grievor should avoid twisting and bending with his right knee. His physician concluded that the grievor was unable to work at the production rate of an able-bodied person. 

 

 The grievor was assessed 20 demerits on September 2, 2008 for failing to meet side frame production targets from August 19 to 22, bringing his total disciplinary record to 79 demerits. The grievor was subsequently dismissed for having accumulated in excess of 60 demerits.

 

The Union introduced medical evidence concerning the grievor’s right arm which was obtained after his discharge.  The grievor’s family physician ordered an MRI on June 8, 2009 which confirmed the (as noted in the diagnosis from 2005) that the grievor had actually torn his bicep tendon. The medical report from the attending orthopaedic specialist of December 7, 2009 concludes: “It is certainly possible, and plausible, that he had a partial tear initially, and that complete rupture did not occur until some time later. In any event, there is nothing to be done surgically. Functional deficit should be minimal at this time.”

 

The thrust of the Company’s submission in each of the three disciplinary events is that the grievor was unable to meet reasonable performance expectations in his accommodated positions.  It was determined by the WCB that the work of bolster welding, for example, was not outside the grievor’s physical restrictions. In the case of the 10 demerit assessment, the Company noted that the grievor was unable to come up with a satisfactory explanation for his sub-par performance in April 2008 other than his inexperience and unfamiliarity with the workstation. The grievor simply claimed that he was unable to meet the expectation for repairing bolsters from June 25th to July 9th, which led to the 14 demerit assessment, because of his disabilities. The Company points out, in particular, that the WCB had the grievor’s “work at his own pace” restriction in hand when it conducted the workplace assessment in June 2008 and rejected this restriction. The grievor again relied on his disabilities, and the fact that he had to work on heavily worn side frames, as his reason for only producing roughly 50% of what his coworkers were producing from August 19 to 22, 2008. The Company pointed out that the grievor had met performance expectations for the truck side frames for over 60 working days beginning in December 2007. Overall, the Company maintains that it was the grievor’s unwillingness to do the work, and not his physical restrictions, that led to his termination.

 

The Union maintains that the grievor was not properly accommodated by the Company in positions that met his work restrictions as a result of his physical disabilities. The Union maintains, for example, that the grievor should have been placed on the Bolster 2 machine where the amount of physical work, such as grinding, was far less onerous. Alternatively, the Company could have asked the grievor to perform work suggested by the Union on August 26, 2008 such as the door bench, which was a box car program running in the car shop, or roll-by inspections which the grievor had previously performed. The Union also noted that the medical evidence indicates that the torn bicep tendon would compromise the grievor’s endurance. In the end, the Union submits that the grievor was discharged for his inability to reach an arbitrary standard proposed by the Company. The grievor was able to meet the door sides standard in late 2007 but was unable to maintain the numbers and properly relied on his physician’s advice to work at his own pace. The Union requests that the grievor be reinstated to his position with his seniority, lost wages and benefits restored.

 

            The issue in this case boils down to whether the grievor was truly compromised in his ability to perform his duties at a pace prescribed by the Company.

 

The Company has evidently worked hand-in-hand with the WCB over the years to try and accommodate the grievor. The WCB, in particular, conducted a physical examination of the grievor and reviewed his duties once again in June 2008 after the grievor presented a note from his doctor indicating that he should work at his own pace repairing bolsters. The WCB, by failing to add to the list of the grievor’s physical restrictions, rejected the grievor’s assertion that he was incapable of keeping pace with other employees in the shop.

 

It is clear from the evidence that the grievor’s physician based his conclusions primarily on the grievor’s subjective complaints. Those complaints, however, did not convince the WCB that the grievor was incapable of keeping pace. Given the thorough physical and workplace assessments that took place on June 10/11, 2008 by the WCB, I accept the WCB recommendations as being a reliable evidentiary basis to conclude that the grievor was in fact capable of performing the bolster duties and that the grievor has been properly accommodated in this position. The logical inference is that the grievor failed to keep pace in the bolster shop because of his unwillingness to do so rather than due to any new physical restrictions. Accordingly, I find there were grounds for discipline for both incidents in the bolster shop for which the grievor received 10 demerits and 14 demerits respectively.

 

The grievor was transferred back to repairing truck side frames on August 19, 2008 after being told the day before that his job was on the line because he had reached 59 demerits. As the Company pointed out, this was a job that the grievor demonstrated he was capable of performing before having hit the production targets for some two months, beginning in December 2007. The grievor claimed at his investigation that he was only following his physician’s orders to work at his own pace. Having demonstrated that he was capable of doing this work before, and given the recent review of his physical restrictions by the WCB which did not accept any new restrictions, I am again of the view that the grievor was capable of performing the truck side frame duties and that he was properly accommodated in this position. His unwillingness to do so was grounds for discipline.

 

Turning to the issue of penalty, I find that the discipline imposed for the two bolster shop incidents were within the range of discipline for similar workplace offences and in keeping with the principles of progressive discipline. The grievor was told explicitly on August 18, 2008 that he could lose his job of 25 years if he accumulated another single demerit point. The grievor, unfortunately, did not heed the advice of the Company and continued to fall back on the reference to his doctor’s note when he failed to keep pace with the expected production targets during his first week back performing truck side frame repairs. The issue, nevertheless, remains as to whether termination was appropriate, even with the grievor’s disciplinary record having reached 59 demerits.

 

There are mitigating circumstances here which must be considered. The grievor has lengthy service with the Company going back 25 years. I would also observe that the grievor was assessed 20 demerits, and subsequently terminated, for events that took place during his first week repairing truck side frames after working on the bolsters for some five months.  The grievor knew his assignment and was deserving of some discipline for his lack of production. It was simply not appropriate, however, that he should lose his job for his lack of performance during his first week back in the truck shop repairing side frames.

 

The grievance over the 20 demerits imposed for failing to meet side frame production targets in August 2008 is allowed in part. The 20 demerits, and subsequent termination for having accumulated in excess of 60 demerits, is to be substituted with a period of suspension without compensation or loss of seniority. The grievor is to be reinstated to his accommodated positions of performing side frames or bolster repairs. On the basis of the evidence before me, I find that he is capable of performing both of these jobs at the standard production rate set by the Company if he chooses to do so.

The grievor’s disciplinary record will continue to stand at 59 demerits. He is effectively being allowed one last opportunity to prove himself and it is entirely up to him to demonstrate that he is willing to work in a productive manner as he has shown he is capable of doing in the past.

 

I will retain jurisdiction should any issue arise with respect to the implementation of this award.  

 

 

                                                                                    _____________________

                                                                                    JOHN M. MOREAU, QC

                                                                                     April 13, 2010