SHP674

AWARD

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.

The facts 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 November 1, 2010. That portion of the policy which specifically applies to the shop context reads, in part, as follows:

(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.

The record before the Arbitrator confirms that on February 24, 2010 at approximately 15:30 the grievor was observed by Production Manager Marc Philippot in the shop premises, at the location of a vending supply machine, holding a Blackberry in his right hand. It does not appear disputed that the Blackberry was on and that the grievor was looking at it at that time. Confronted by the supervisor, Mr. Kolisnek responded that as it was close to quitting time he was not using the device to communicate, but was checking the time on the face of his Blackberry screen, as he does not wear a watch. Mr. Philippot then told the grievor that he had fifteen minutes left in his shift, reminded him of the Company policy that cell phones are not to be used during regular working hours or possessed on the shop floor and directed him to return his cell phone to his locker.

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, February 24, 2011, that the grievor received a telephone call at home and was advised by Production Manager Rick Poirier that he was being held out of service pending an investigation. He later received a letter dated the same day from Supervisor John Duncan formally requesting a copy of the activity report from his portable telephone service provider, such copy to be provided to the investigating officer at the commencement of the scheduled investigation. The time of the investigation was not in fact scheduled until some four days later, on February 28, 2011, at which point the grievor was advised that it would be conducted on March 2, 2011. In the interim, it does not appear disputed that he did provide a copy of his cell phone records, as requested, to the Company.

Following 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 March 4, 2011.

The Union raises a number of issues. Firstly, it submits that the Company was not justified in withholding the grievor from service during the period pending his disciplinary investigation. The Union’s representative also submits that the grievor was denied a fair and impartial investigation, as required by the collective agreement, prior to the assessment of any discipline. With respect to the merits of the grievance, the Union also argues that the facts disclosed did not justify the assessment of any discipline. Finally, the Union maintains that the Company was not justified in demanding a copy of the grievor’s cell phone records, as what occurred did not involve an accident or serious workplace incident. In that regard the Union’s representative relies on the principles developed in CROA&DR 3900 and reviewed in CROA&DR 4038.

With 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 Union’s representative also takes exception to the fact that the investigating officer made no reference during the investigation hearing to the telephone records provided by the grievor, records which in fact confirmed that he had made or received no telephone calls, texts or internet communications during his tour of duty.

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.

The 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 February 24, 2011. That information is highly personal and private. It is information which is protected by legislation such as the Personal Information Protection and Electronic Documents Act, S.C. 2000 c.5 (PIPEDA). In initiating its policy with respect to personal communication devices the Company itself recognized the importance of respecting the privacy interests of its employees and balancing those interests against the Company’s own concerns, concerns which it properly limited to the investigation of a significant accident or incident. That is reflected in a letter authored by Mr. Rick Wilson, the Company’s Assistant Vice-President, Industrial Relations. That letter, dated March 22, 2010 addressed to two union representatives concerning the Company’s intention to request personal communication device records from employees includes the following passage, which is quoted in CROA&DR 3900:

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.

(emphasis added)

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 the Union, find and declare that the Company was not justified in asking the grievor to produce his personal telephone records on the facts disclosed in the instant case.

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.

The foregoing comments should not be construed as endorsing the fundamental position of the Union to the effect that the grievor committed no wrong. I am satisfied that he did violate the Company’s policy by having his personal cell phone in his possession while he was on the shop floor. The question is not whether the grievor intended to use his Blackberry to make a call, text or email. The simple fact is that the device could have distracted him, for example if a call or email was sent to him while he was engaged in safety sensitive work in a relatively dangerous workplace. But for the Company’s failure to conduct a fair and impartial investigation, I would have been inclined to sustain the discipline assessed against the grievor. I am also satisfied that the withholding of the grievor from service pending the investigation was not inappropriate, given the legitimate safety issues involved.

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 22^nd day of November, 2011

__________________________

Michel G. Picher

Arbitrator