CANADIAN RAILWAY OFFICE OF ARBITRATION

& DISPUTE RESOLUTION

CASE NO. 4035

Heard in Montreal, Wednesday, 14 September 2011 Concerning

CANADIAN NATIONAL RAILWAY COMPANY

And

THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION

AND GENERAL WORKERS’ UNION OF CANADA (CAW-CANADA)

DISPUTE:

The assessment of 30 demerits to Equipment Operator P. Korchinski for use of his personal cell phone while operating Company equipment CN 49018 on September 8, 2010 and his subsequent discharge for accumulation of demerits. JOINT STATEMENT OF ISSUE: On September 21, 2010 an investigation was conducted with Equipment Operator P. Korchinski for use of his cell phone while operating Company equipment CN 49018 on September 8, 2010. Following an investigation, Equipment Operator P. Korchinski was assessed 30 demerits. The assessment of 30 demerits brought the grievor’s demerit total to 80, which culminated in his discharge for accumulation of demerits in excess of 60. The Union contends that the discipline was excessive and requests that the 30 demerits be expunged from the grievor’s record. The Company disagrees with the Union’s contentions and has declined the Union’s grievance. FOR THE UNION: FOR THE COMPANY: (SGD.) R. FITZGERALD (SGD.) S. PRUDAMES NATIONAL REPRESENTATIVE LABOUR RELATIONS OFFICER There appeared on behalf of the Company: S. Prudames – Labour Relations Officer, Toronto Wm. Perry – Sr. Terminal Coordinator, Brampton G. Robson – Sr. Terminal Coordinator, Brampton There appeared on behalf of the Union: R. Fitzgerald – National Representative, Toronto J. Almdal – Regional Representative, Toronto D. Andru – Regional Representative, Toronto P. Korchinski – Grievor

AWARD OF THE ARBITRATOR

The record confirms that the grievor was observed texting on a personal cell

phone while operating a shunt truck in the Brampton Intermodal Terminal. He was

observed by Supervisor Ged Robson and Terminal Coordinator William Perry, both of

whom saw him driving the vehicle while texting. Both supervisors saw the grievor driving

the shunt vehicle extremely slowly while texting on his cell phone. Both immediately

proceeded to the cab of his vehicle where they observed the phone to be in his hand.

According to both of their reports he then admitted that he had been texting and that it

would not happen again.

However, at the subsequent disciplinary investigation the grievor denied that he

had in fact been texting and simply explained that while he was aware of the rule that

his phone should have been left in his locker, because his single daughter was pregnant

he wanted to have the ability to receive an emergency call if necessary. He explained

that on that basis he had the phone in his possession, admittedly contrary to the rule.

According to his explanation he was intended to use the phone during a washroom

break when the supervisors found it to be in his possession.

The Arbitrator readily appreciates the Company’s scepticism with respect to the

grievor’s explanation. On what basis would the grievor need to have his phone on his

person if he was intending to use it during a washroom break? It is common ground that

he could have then properly used his telephone, which should have been stored in the

locker room which is adjacent to the washroom. The fact that the grievor had his cell

phone in his hand while operating his truck points to the more plausible conclusion that

he was in fact using it or expecting to use it when he was observed by the two

supervisors.

Mr. Korchinski is an employee of some ten years’ service with a less than

impressive disciplinary record. The Arbitrator can readily appreciate the Company’s

perspective that because of his lack of honesty with respect to the cell phone incident,

as well as his prior record, there should be no substitution of disciplinary penalty in this

case and that Mr. Korchinski’s discharge should be sustained.

While as a general matter I would agree with the Company’s view, the hardship

of the grievor’s personal circumstances, and the apparent pressure he was under on the

date in question with respect to his daughter’s condition is, I think, a mitigating factor

which can properly be taken into account. It should, however, be taken into account only

in the context of fashioning a last chance for this employee who, it appears, has yet to

fully understand the importance of candour and the avoidance of game playing in his

relations with his employer. Mr. Korchinski must appreciate that this award represents a

last chance.

The grievance is therefore allowed, in part. The grievor shall be reinstated

without loss of seniority and without compensation for wages and benefits lost. The

Arbitrator directs that the thirty demerits assessed against the grievor be removed from

his record, and that a suspension be recorded for the period between his termination

and reinstatement, both for the cell phone incident there under consideration and for the

infraction reviewed in CROA&DR 4034. He shall therefore be returned to work restored

to the position of having thirty demerits on his record.

September 22, 2 011 (signed) MICHEL G. PICHER

ARBITRATOR