AH692
IN THE MATTER OF AN ARBITRATION
BETWEEN:
TEAMSTERS CANADA RAILWAY CONFERENCE
(the “Union”)
- and -
CANADIAN PACIFIC RAILWAY COMPANY
(the “Company”)
JOINT STATEMENT OF ISSUE
DISPUTE:
Appeal regarding the dismissal of Conductor Lucas Frost of Thunder Bay, ON.
JOINT STATEMENT OF ISSUE:
On September 28, 2017 Mr. Frost was required to attend an investigation in connection with “Your missed call at 0520 on September 8th, 2017 as an Engineer for the XYRES in Thunder Bay, Ontario.”
Following the investigation Mr. Frost was dismissed from Company service as follows:
“Please be advised that you have been dismissed from Company Service effective October 22, 2017 for failing to fulfill your contractual obligation of the Canadian Pacific Attendance Management Policy. Outlined below are the violations and escalation of occurrences.
10 Day Deferred Suspension Unauthorized absence from work April 17, 2017 to June 2, 2017
20 Day Deferred Suspension & Last Chance Agreement Missed call June 25, 2017
30 Day Deferred Suspension Not being available for work when properly called on July 15, 2017
Missed call September 8, 2017
The above mentioned incidents constitute a culminating violation of CP Policy and warrants your immediate dismissal.” UNION’S POSITION:
On September 8, 2017, the Grievor’s was unavailable to take a call for an ad hoc call as a Locomotive Engineer. The Union submits Mr. Frost’s regular position at the time of the alleged missed call was not scheduled for work as described above. Further, Mr. Frost did not miss a call but rather was unavailable due to a medical appointment.
The Union further contends the Company has failed to meet the burden of proof required to sustain formal discipline as described on the employee notification letter and the further allegations of a missed call. The Grievor was previously disciplined for the incidents referenced on the letter and the Company cannot discipline him again. The notification letter references a last chance agreement which the Union denies existing. As a result, the discipline assessed to Mr. Frost is unjustified, unwarranted and excessive in all the circumstances, including mitigating factors evident. The discipline is also contrary to the Collective Agreement and arbitral jurisprudence.
The Union requests that the discipline be removed in its entirety, that Mr. Frost be reinstated without loss of seniority and benefits, and that he be made whole for all lost earnings with interest. In the alternative, the Union requests that the penalty be mitigated as the Arbitrator sees fit.
COMPANY’S POSITION:
The Company has denied the Union’s request.
The Company maintains the Grievor’s culpability was established during the fair and impartial investigation and the discipline was properly assessed in line with both the Collective Agreement and arbitral jurisprudence.
The Grievor contends he missed the call as a result of having attended a doctor’s appointment; however, he failed to notify the Company or take proactive action to obtain the required time off. Nor, did he attempt to rectify the situation once his absence was recorded as a missed call.
In assessing dismissal, the Company relied on the culminating incident doctrine, considering the whole record of discipline in determining what penalty was appropriate for the final act on September 8, 2017.
The Company’s position is that the discipline assessed was just, appropriate and warranted in all the circumstances. Accordingly, the Company cannot see a reason to disturb the discipline assessed.
2 FOR THE UNION: FOR THE COMPANY:
Dave Fulton Sharney Oliver General Chairman Labour Relations Manager TCRC CTY West CP Rail
August 19, 2019
There appeared on behalf of the Company:
Sharney Oliver -Manager, Labour Relations, Calgary Lauren McGinley -Assistant Director, Labour Relations, Calgary
There appeared on behalf of the Union:
K. Stuebing -Counsel, Caley Wray, Toronto D. Fulton -General Chairman, Calgary D. Edward -Senior Vice-Chairman, Calgary E. Johnson -Local Chairman, Thunder Bay W. Pitts -Vice General Chairman, Moose Jaw L. Frost -Grievor, Thunder Bay
AWARD OF THE ARBITRATOR
The grievor entered the service of the Company on March 14, 2011 and qualified
as a Locomotive Engineer in July 2015. He was discharged on October 22, 2017.
The grievor was working on the Yard Spareboard in Thunder Bay. His regular
position as a Spare employee on the Yard Spareboard was to relieve Yard Foremen and
Yardmen in the Thunder Bay Yard.
3 He was rested and available to be called into the Yard Service on September 8,
The grievor, as a qualified Locomotive Engineer, was also eligible for Engineer
Service Brakemen (“ESB”) assignments. This was not part of the grievor’s regularly
assigned work.
The grievor had checked with the Crew Management Centre on the evening of
September 7, 2017 and it appeared that he would not be receiving a call for his regular
Yard Service work until the afternoon of September 8, 2017. There was also no indication
when he checked with the Crew Management Centre that there were any ESB
assignments scheduled for September 8, 2017. Given his seniority, the grievor was the
first call-out for any potential ESB assignment on September 8, 2017.
The grievor did in fact get called by the Crew Dispatcher for an ESB assignment
at 5:00 a.m. on September 8, 2017. He answered the call and advised the Crew
Dispatcher that he had previously arranged for a medical appointment that day and was
not in a position to take the call for the ESB assignment. The Crew Dispatcher told him
that he would be shown in the system as a “missed call”. The grievor then requested that
he be conferenced in with his immediate Supervisor, Trainmaster Tim Ray, to discuss
being excused from attending work due to his medical appointment. The Crew Dispatcher
then contacted Mr. Ray. Mr. Ray advised the Crew Dispatcher that he could not provide
the necessary time off authorization and that the grievor would have to request permission
4 from the Acting Superintendent, Mr. Plummer, for a leave of absence. The grievor
decided not to disturb Mr. Plummer. He stated in that regard at the investigation:
Q 36: Did you contact Troy Plummer?
A 36: I did not at the time as he marked me down as a missed call.
Q 37: Why didn’t you make an attempt to call him and clarify the situation?
A 37: Because it was 5 o’clock in the morning.
The grievor did attend for his medical appointment on September 8, 2017. He
produced a medical certificate from a walk-in clinic dated September 8, 2017 which states
that he was unable to attend work that day due to a medical concern. He was asked the
following about the medical appointment at his investigation:
Q 29: How long did you know that you had a doctor’s appointment?
A 29: I had forgotten about it and remembered the night before.
Q 30: Did you call anybody when you realized you had an appointment?
A 30: No
Q 31: Why didn’t you call anybody?
A 31: The last time I checked the board it didn’t look like I was going to work and thought I could still make the appointment.
The grievor was subsequently called by the Company on September 8, 2017 to
work in Road Service on an unassigned freight train beginning at 2:00 p.m. on September
8, 2017.
5 The Company, in argument, cited the often-quoted tripartite test set out in Wm.
Scott & Co v. C.F.A.W., Local P-162 [1977] 1 C.L. R.B. R. 1 of Chair Paul Weiler
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Instead arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss the employee an excessive response in all of the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?
The Company notes that the grievor was assessed a 30-day deferred suspension
on August 11, 2017 for not being available to work when called on July 15, 2017. His form
104 clearly indicated that his job was in jeopardy if he committed another offence which
warranted discipline, particularly an offence of this kind which the Company considers to
be a serious offense. Further, the Company submits that the grievor had a number of
legitimate avenues available to him to secure time off if needed. It is the Company’s view
that the grievor, at the very least, should have immediately contacted the Crew Dispatcher
on the evening of September 7, 2017 to book time off when he remembered that his
medical appointment was scheduled for the following day. Instead, the grievor waited until
he was called by the Company for an ESB assignment and then told the Crew Dispatcher
that he had a prior medical appointment.
I agree with the Company that the issue of attendance is of serious concern and
must be viewed within the context of the occupational requirements of a Conductor to
work on an on-call basis. This reflects the nature of railway operations as a business
which runs 24 hours a day, 7 days a week from coast to coast. The Company, it is also
6 worth noting, considers certain absence categories as serious offences. At the top of the
list in Information Bulletin on Availability to T & E Employees is missed calls:
The following categories will be handled as more serious offenses separate from this calendar month review:
• Miss calls (including missing calls as an ESB).
The importance of attendance and the need for timely notice to the Company of a
request for time off is referenced in CROA 3902 where Arbitrator Picher found that a
Conductor should have booked off sick for his sore back:
I deal firstly with the issue of the grievor’s refusing a call. His explanation is that on the night prior to the call, which he received at approximately 8:00 a.m. Halifax time, he had been involved in moving his girlfriend from one apartment to another, as a result of which he awoke with serious back pain. While the precise times do not emerge from the investigation, it is unclear to the Arbitrator that the grievor could not have communicated with the Company before it made its call to him, in order to book off sick as would have been his obligation. Rather, he simply awaited the call which came, and at that point declined the call. It does not appear disputed that having taken some muscle relaxants he did book back on later the same day.
The grievor did not contact the Company and book off on the night of September
7, 2017 when he remembered that he had a medical appointment the following day.
Similar to CROA 3902, I find the grievor’s failure to call in once he remembered his
medical appointment merits discipline.
What is the appropriate penalty under the circumstances?
The grievor’s discipline record does not contain any alleged operating infractions
but rather involves attendance issues. A significant mitigating factor in my view is that the
grievor’s attendance issues were related, at least in part, to addiction issues which he
7 has taken steps to address in a positive fashion since his dismissal. An additional
mitigating factor is that Mr. Ray, the grievor’s immediate supervisor, left it to the grievor
to wake up the Assistant Superintendent at 5:00 a.m. rather than deal with a routine
request for time off for a medical appointment himself.
The Union submits that the negotiated penalty for the grievor, given his status as
a volunteer LEEB employee, is the loss of chance to be called as a Locomotive Engineer,
as per the analysis of Arbitrator Clarke in CROA 46311. The only reference to this issue
during the course of the grievance procedure was a short bullet point reference, amongst
ten other bullet points, in the Union’s Step 2 grievance. The Company, understandably,
did not provide any written submissions on this point in their Step 2 Reply, nor in their
brief, given the single cursory reference to the issue in the grievance. In the absence of
further and complete submissions by the Company on this point, I accept the Company’s
argument that to deal with this point at this juncture in the proceedings would be contrary
to Rule 9 of the “Memorandum of Agreement Establishing the CROA & DR” that: “No
Dispute of the nature set forth in section (A) of clause 6 may be referred through to the
last step of the grievance procedure provided in the applicable collective agreement”.
See: CROA 4623.
Having considered all the facts, I find that the grievor’s dismissal, despite his
escalating record for similar violations of Company policy, should be set aside. To award
compensation, however, would send the wrong message. The grievor’s continuing
1 Condition #3 reads: “A qualified Locomotive Engineer who is first out on the LEEB and not available for service when called will not be subject to a call as a Locomotive Engineer for 12 hours”. 8 pattern of failing to call in advance for a leave of absence, as his record demonstrates,
still merits a strong disciplinary response. A written warning, a penalty that has been
imposed in a number of cases cited by the Union involving a missed call, would not be
an appropriate disciplinary response in this case.
The grievor shall be reinstated forthwith with a period of suspension to be
substituted from the date of his dismissal to the day of his reinstatement. His
reinstatement shall be without compensation, and without loss of seniority.
John Moreau QC
October 2, 2019
9