CANADIAN RAILWAY OFFICE OF ARBITRATION

& DISPUTE RESOLUTION

CASE NO. 3785

Heard in Montreal, Tuesday, 14 July 2009 Concerning

CANADIAN NATIONAL RAILWAY COMPANY

and

TEAMSTERS CANADA RAIL CONFERENCE

DISPUTE: Discharge of Brakeman James Noake. JOINT STATEMENT OF ISSUE: On November 06, 2007, the grievor, James Noake, was required to attend a Company investigation in connection with circumstances surrounding; “the delay to assignment RS L56531-31 on October 31, 2007”. Subsequent to the investigation Mr. Noake was assessed 30 demerits. Further; On December 11th, 2007, the grievor, James Noake, was required to attend a Company investigation in connection with circumstances surrounding; “Your actions surrounding the reversal of the siding switch resulting in the switch being run through and damaged by oncoming CP Train”. Subsequent to the investigation Mr. Noake was issued 30 demerits. As a result of the demerits received, Mr. Noake was dismissed from Company service due to accumulation of demerits. The Union grieves the discipline assessed and the subsequent discharge of the grievor. The Union submits that the discipline assessed was unwarranted but in any event too severe. The Union, in addition, submits that the Company blatantly violated; Article 82 of the Collective Agreement 4.16; The “Workplace Environment” provision of the 4.16 Collective Agreement The Company disagrees with the Union. FOR THE UNION: FOR THE COMPANY: (SGD.) J. R. ROBBINS (SGD.) F. O’NEILL GENERAL CHAIRMAN MANAGER, LABOUR RELATIONS There appeared on behalf of the Company: F. O’Neill – Manager, Labour Relations, Toronto Wm. Lindsay – Trainmaster, Niagara Falls

And on behalf of the Union: J. R. Robbins – General Chairman, Sarnia J. Lennie – Local Chairman, Niagara Falls N. Serieska – Alternate Legislative Representative, Niagara Falls R. Archibald – Vice-Local Chairman, Niagara Falls B. R. Boechler – General Chairman, Edmonton R. A. Hackl – Vice-General Chairman, Edmonton J. Noake – Grievor AWARD OF THE ARBITRATOR

This grievance concerns two heads of discipline assessed against the grievor,

each for thirty demerits. The first involves a delay to his assignment on October 31,

2007 and the second the improper handling of a siding switch on December 7, 2007. As

a result of the accumulation of sixty demerits the grievor was dismissed.

The grievor has over twenty-seven years of service. Prior to the incident of

October 31, 2007, he had been disciplined on only three occasions over his entire

career, having received a written reprimand in 1989 and demerit points on two

occasions in 1997.

With respect to the first incident the Arbitrator is satisfied that the grievor’s crew

was involved in an unnecessary delay of their assignment, substantially occasioned by

their desire to take lunch other than on their locomotive, contrary to the order of their

supervisor.

Article 29 of the collective agreement governs the taking of meals in road service,

including work on a road switcher. It provides as follows:

29.1 Train Service Employees performing road switcher (including road switcher runs operating in turn-around service beyond a 50-mile radius), work train, snow plow, or snow spreader service, and on regular wayfreight assignments, will have an opportunity of having a meal at a reasonable hour by previously advising the train dispatcher sufficient time in advance. While so occupied, for 20 minutes or less, no deduction will be made; if over 20 minutes, all time will be deducted in computing overtime. NOTE: This paragraph 29.1 shall not apply to train service employees in any other class of service who qualify for and are paid wayfreight rates for a tour of duty pursuant to Article 15. Trains will not be delayed nor train operations disrupted solely as a result of stopping train to eat. Employees will report for work suitably prepared for a tour of duty recognizing that the opportunity to take a meal will be governed by the practicality of train operations. (emphasis added)

On the basis of the record before me, I am satisfied that the locomotive on which

the grievor and his crew were working on October 31, 2007 was properly equipped with

water and a microwave oven, even though it may not have been upgraded to the full

standard contemplated as the ideal in Addendum No. 86E of the collective agreement.

The Arbitrator would have been inclined to find that there was a degree of delay by the

grievor and his crew which was deserving of a measure of discipline. I am in some

doubt, however, that thirty demerits would have been appropriate with respect to the

grievor, given his longevity of service and his disciplinary record prior to this incident. It

is, however, unnecessary to comment further on the appropriate number of demerits

which might have been assessed given the procedural objection which is made by the

Union.

The Union notes that the Company conducted a separate investigation of the

locomotive engineer on the grievor’s crew, but failed to give notification to the grievor or

to his Union representative of that investigation, thereby denying them an opportunity to

be present and to hear what would be said and to put questions to witnesses during the

course of that investigation. Article 82.2 of the collective agreement has been amended

since 2005 in the following terms:

Add new provision to Article 82 of Agreement 4.16, Article 30 of Agreement 4.2 and Article 117 of Agreement 4.3 to reflect than an Employee under Company investigation or his/her accredited representative shall have the right to attend any Company investigation, which may have a bearing on the employee’s responsibilities. The employee or their accredited representative shall have a right to ask any questions of any witness/employee during such investigation relating to the employee’s responsibilities.

In the result, the Arbitrator is compelled to conclude that in fact the Company did

fail to provide to the grievor a fair and impartial investigation with respect to the

assessment of the incident of October 31, 2007 (see e.g. CROA 1937 ).

The Arbitrator also heard an objection from the Union with respect to the same

article, based on the fact that the investigation was conducted by the same supervisor

who gave the employees their assignment. While I would not be inclined to sustain that

objection, as the investigating officer had no real involvement in the actual incident

itself, it is unnecessary to comment any further upon it. In light of the established

jurisprudence, the failure to give to the grievor notice of the disciplinary investigation

and statement of the locomotive engineer is, in and of itself, a substantial violation of

article 82 of the collective agreement such as to make the discipline void ab initio. On

that basis this aspect of the grievance must succeed and the thirty demerits must be

removed from the grievor’s record.

The next issue becomes the assessment of thirty demerits for the improper

handling of the siding switch, which resulted in damage to a CP train. I am satisfied, on

the whole of the evidence, that in fact the grievor was responsible for that incident and

that there are no mitigating factors which can be called in his defence. While the

Arbitrator would tend to agree that the assessment of thirty demerits is on the high side,

it is not excessive when consideration is given to the fact that twenty-five demerits were

assessed against the same employee in 1997 for a violation of CROR 115 in relation to

a derailment. In the circumstances, therefore, the Arbitrator is not inclined to disturb the

assessment of thirty demerits.

For all of the foregoing reasons the grievance is allowed, in part. The Arbitrator

directs that the thirty demerits assessed against the grievor for the incident of October

31, 2007 be struck from his record. The assessment of thirty demerits for the

mishandling of a switch on December 7, 2007 must stand.

The Arbitrator therefore directs that the grievor be reinstated into his employment

forthwith, with compensation for all wages and benefits lost, and without loss of

seniority.

July 20, 2009 ___________________________________ MICHEL G. PICHER ARBITRATOR