IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL
WORKERS UNION OF
RE: ASSESSMENT OF 45 DEMERITS TO N. KOLISNEK
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
Jennifer Love –
Labour Relations Officer,
Len Wormsbecker –
Manager, Labour Relations,
Shelly Smith –
Labour Relations Officer,
Owen Jones – Manager, Human Resources, Quality Safety, Progress Rail
There appeared on behalf of the
Brian Stevens –
R. Broszeit – Local Vice-President
T. Murphy – Local President,
N. Kolisnek – Grievor
A hearing in this matter was held in
This arbitration concerns the assessment of discipline for a violation of the Company’s policy with respect to the possession and use of personal communication devices, in particular cell phones, in the workplace. The facts and issues are succinctly related in the joint statement of issue, filed before the Arbitrator at the hearing, which reads as follows:
JOINT STATEMENT OF ISSUE:
On February 24, 2011, near the conclusion of the Diesel Mechanic Apprentice Kolisnek’s (the grievor) assigned shift, the grievor was observed by CP Production Manager Marc Philippot, leaning against a vending machine holding a Blackberry in his right hand looking at the screen which was lit.
Several hours after the shift had ended, the grievor received a telephone call on his cell phone from CP Manager Rick Poirier advising that he was being held out of service pending a formal investigation.
Following an investigation, the grievor was issued discipline on March 4, 2011 in the form of 45 demerits for “unauthorized use of a Personal Communication Device while on duty in violation of the Company Policy RM1002, on February 24, 2011, Winnipeg Locomotive Reliability Centre.
The Union contends that: (1) the grievor was unnecessarily held out of service; (2) there was no just cause to issue any discipline; (3) the investigation was not “fair and impartial”.
The Union is requesting that the Form 104 and all materials related to the instant grievance be removed from the employee’s file, that the grievor be paid for the time he was improperly held out of service and that he be made otherwise whole forthwith.
The Company disagrees with the Union’s contention and has declined the Union’s grievance.
are not in substantial dispute. As related in CROA&DR 3900, the Company has developed concerns with respect
to the safety implications raised by the presence and use of cell phones and
personal portable computers and entertainment devices in the workplace. It
introduced its Policy On Use of Electronic Devices in June of 2009, a policy
which it revised on
(iv) The use of personal communication devices is prohibited at all times except:
● During a recognized break or meal period in a location that is safe to do so.
Note: when not in use, personal communication devices must be turned off with any ear pieces removed and stored out of sight in a location designated by the supervisor, but as a minimum not on the person.
As mandated above, employees in the Company’s shops, including the grievor, who was a diesel mechanic apprentice at the Winnipeg Locomotive Reliability Centre, are prohibited from possessing or using personal cell phones or similar devices within the workplace. While at work, they are required to store such devices in their locker or in a personal bag or lunch box in a place removed from the shop floor.
before the Arbitrator confirms that on
Shortly following the incident the grievor was notified that he was being held out of service pending a disciplinary investigation concerning the incident. During that investigation Mr. Kolisnek explained that his cell phone had been stored in his lunch box which was in the lunch room. It appears that just prior to his encounter with Mr. Philippot he had taken a break in the lunch room and had carried the cell phone back onto the shop floor. He says he felt justified in doing so as it was close to quitting time, and he used the face of the Blackberry to tell the time, as he does not wear a watch.
It was on
the evening of the same day,
the disciplinary investigation conducted on March 2, the grievor was assessed
forty-five demerits for his violation of the Company’s Policy On Use of
Electronic Devices. He returned to work on
respect to the allegation that the grievor was denied a fair and impartial
investigation the Union’s representative points to what he characterized as the
accusatory tone of questions put to the grievor by the investigating officer.
He submits that the tone of the questions would indicate that the investigating
officer prejudged the matter. The
On behalf of the Company it is argued that in fact it was not inappropriate to hold the grievor out of service pending the conclusion of the disciplinary investigation. Its representatives submit that the grievor’s possession of his Blackberry on the shop floor was, in itself, a serious safety infraction, and that it is common practice for the Company to withhold from service employees charged with serious safety infractions, precisely for safety reasons. They also submit that the disciplinary investigation was conducted in a manner consistent with the expectations of the collective agreement, and involved no departure from the basic standard of fairness and impartiality. On behalf of the Company, it is noted that in fact the grievor’s cell phone records, which had been provided to the investigating officer, were entered as an exhibit to the investigation and formed part of the record which would have been forwarded to the supervisory persons responsible for making the decision as to the appropriate measure of discipline.
Arbitrator has substantial concern with respect to the position argued by the
Company concerning its demand that the grievor provide his personal telephone
records for the period of his tour of duty on
While the Union may have privacy concerns, the Company has been clear that the detailed information surrounding the phone numbers called, or the contents of the text message may be blacked out. Our legitimate interest is in knowing when and where the communication devices were used in the context of investigating a significant accident or incident. When an employee is asked to produce these records, and does not, the Company can only draw a negative inference.
In the case
at hand there is no suggestion of a serious accident or incident having
occurred. At best, the Company would describe the incident as the grievor’s own
possession of his cell phone while on the shop floor. With respect, I do not
believe that that fact alone can or should trigger the Company’s intrusion into
the personal and private records of an employee. This is not a case where the
Company was investigating the cause of a serious shop accident or near miss. In
fact, the only way that the Arbitrator can understand the Company’s request is
that it was seeking to determine whether in fact the grievor had used his cell
phone while at work and it was attempting to gain access to his personal
records for self-incriminating purposes to that end, entirely unrelated to
investigating any “significant accident or incident.” That, with respect, is
not a proper purpose consistent with the balancing of legitimate employer
concerns and the equally legitimate personal privacy concerns of employees in a
fair and enlightened labour relations system. I must therefore, as requested by
Unfortunately, the Company’s request was an integral part of its disciplinary investigation. The request was made prior to the conduct of the investigation hearing and the document which the grievor produced was attached to the investigation report as an exhibit. For the reasons touched upon above, that is a document which I am satisfied the Company did not have a right to demand, much less to append as part of the investigation. While it is not necessary for me to make a definitive finding, it is arguably a request which was itself contrary to PIPEDA. Indeed, it appears to have been contrary to the Company’s own policy on the disclosure of personal telephone information to the extent that that policy was explained by Mr. Wilson as being confined to “a significant accident or incident.”
On the whole of the material before me I am compelled to conclude that the Company’s demand that the grievor produce his personal and private telephone records was not only unjustified, but that in fact tainted the investigation, as the requirement that he produce the records was an intrinsic part of the investigation itself. On that basis I am compelled to conclude that the grievor was denied a fair and impartial investigation.
foregoing comments should not be construed as endorsing the fundamental
position of the
For the foregoing reasons the Arbitrator has no alternative but to find and declare that the grievor was denied a fair and impartial investigation, as a result of which the discipline against is void, ab initio. The Arbitrator directs that the forty-five demerits assessed against Mr. Kolisnek be expunged from his record forthwith.
Dated at Ottawa, Ontario this 22nd day of November, 2011
Michel G. Picher