General Committee of Adjustment CP West
The Union had six grievances before the Arbitrator for this Grievor and two were dismissal for accumulation of demerits. The Company requested separate decisions for each grievance. The Grievor was dismissed a second time for a rule violation.
"Based on all the evidence before me, I cannot find that the Company provided a fair and impartial investigation in this case. In my view, the frustration of the Union is understandable given the facts and involvement of Mr. Gough and Mr. Harter in this particular case. However, the particular conceptualization of targeting by the Company in general has not been found as a result of this case."
"In view of all of the foregoing, I find the Grievor’s discipline void ab initio due to the failure to provide a fair investigation and the significant procedural errors set out above. I order CP to reinstate Mr. Blackwood in his employment, with compensation of all wages and benefits lost and without loss of seniority."
All six awards are attached below:
Superintendent Harter assessed the discipline following the investigation. He also reviewed and declined that Step One grievance. His assessment and response in grievance process gives rise to concern that a proper review of mitigating factors were not considered before or after accessing the discipline.
In the final analysis, I find the words of Arbitrator M. Picher in CROA 3863 most applicable in these facts:
To put it simply, employees cannot be disciplined or punished for being ill or physically unfit to work.
In view of all of the foregoing, I order that the 15 demerits be removed from the Grievor’s record.
The Grievor also received two positive Performance Tests from Superintendent G. Harter who reviewed this grievance at Step 2 of the process. The Grievor’s file also indicated 42 Rides by other CP managers with the Grievor between 2013 and 2020. No exceptions were recorded by Company managers during the Rides.
The Grievor is a long service employee with no record to indicate a disregard for radio communication rules. Given all of the evidence, I cannot find that the Company has met the burden of proof.
In view of all of the foregoing, I order that the 10 demerits be removed from the Grievor’s record.
This grievance is one of a large backlog of grievances between the parties. Extensive submissions and documentation was provided to me by the parties in an agreed expedited arbitration process. The Union argues that the Company is targeting the Grievor for discipline. I make no finding in this case regarding the Union’s targeting claim. I advised the parties that I would carefully review the evidence. This case is about evidence and process for a proper investigation. I cannot agree with the Company that a fair and impartial investigation was conducted to establish discipline being assessed.
In view of all of the foregoing the 20 demerits will be removed from the Grievor’s record.
In this case, the investigation and the assessment of a 20-day suspension are a significant penalty. While I find that discipline was warranted, it is too severe. Superintendent Harter reviewed the investigation and set a 20-day suspension. He would later review his assessment of the discipline pursuant to the Grievance process. A review by the same officer who assessed it is a concern given the facts. More importantly, it gives rise to claims of targeting by the Union and undermines the credibility of the grievance process. In this case there is no indication that mitigating factors were considered.
In view of all of the foregoing, the grievance is allowed in part. The discipline will be reduced to five days and the Grievor will be compensated accordingly for lost wages and benefits.
In all the significant discipline matters of the eight months before this incident, Superintendent Harter assessed the discipline and responded to the Grievances at Step 1. In this case, there is no indication he considered the mitigating factors against termination. In this most recent book off, there is no indication the Company informed the Grievor or Union of the violation or what it regarded as proper action in the circumstances. I find the discipline assessed was too severe.
In view of all of the forgoing, the grievance is allowed in part. The 20 demerits assessed is to be removed from his record. The Union had six grievances before me for this Grievor and two were dismissal for accumulation of demerits. The Company requested separate decisions for each grievance. The Grievor was dismissed a second time for a rule violation. Remedy will be addressed in my next and final award involving this Grievor.
Based on all the evidence before me, I cannot find that the Company provided a fair and impartial investigation in this case. In my view, the frustration of the Union is understandable given the facts and involvement of Mr. Gough and Mr. Harter in this particular case. However, the particular conceptualization of targeting by the Company in general has not been found as a result of this case.
In view of all of the foregoing, I find the Grievor’s discipline void ab initio due to the failure to provide a fair investigation and the significant procedural errors set out above. I order CP to reinstate Mr. Blackwood in his employment, with compensation of all wages and benefits lost and without loss of seniority.