2018 04 24 – CROA4621 – Zahariuk
Brothers and Sisters,
Attached is a recent CROA case involved an employee with 5 separate heads of discipline including a 7 day suspension, 14 day suspension and 3 dismissals,. All three dismissals were completely set aside with the Arbitrator agreeing with the employee’s comments that he felt he was targeted. I suggest that everyone has a good reading of this informative and well-reasoned award. There are numerous takeaways with respect to fair and impartial investigations and efficiency testing as it related to discipline.
These cases are good examples of the necessity to have the proper objections and questioning of the Company’s evidence and witnesses. The Local Chairmen involved did an excellent job.
Some of the comments on the respective issues and the discipline.
Efficiency testing page 5
“To the extent it might be assumed that this licenses formal discipline any time an efficiency test is failed, any such assumption would be wrong. The exception should not replace the rule, and not every efficiency test failure should be considered a candidate of discipline. Were that to be the case, there would be too great an opportunity for arbitrary, discriminatory, or targeted discipline. Concerns in this respect are heightened by the Employer’s seeking to introduce efficiency testing records as part of a grievor’s record, as more particularly addressed below.”
The Employees discipline record page 7 – The Arbitrator called the Company on clearly misrepresented the Grievor’s discipline record at the hearing.
“This indicates, in making its disciplinary decisions, the Employer relied upon the Brown system of demerits that had been forgiven, and upon his involvement in fourteen accidents as detailed in its comprehensive record. However, many of these accidents indicated no responsibility by the grievor. Only four attracted any discipline (3, points each, and one, with a caution). This is in addition to additional references to derailments and switches being improperly alleged without any indication of disciplinary consequences that might have been contested through grievances.
This indicates that, in assessing discipline, the Employer considered matters well beyond “the grievor’s record”.
Seven (7) Day Suspension – not checking the points and not returning the keeper on the NC08 switch. The discipline arose from “efficiency testing”.
“Having received a fuller explanation of the workings of the NC08 switch, in contrast to the simpler hand operated switch, I am also left with doubt about just what error it was Mr. Ross (Manager) observed.
“I set aside the seven day suspension which I find excessive and unjustified, and replace it with a written warning.”
Fourteen Day Suspension – stepping on a rail between two cars, while standing on the ground, applying a wheel type hand brake on a hopper car that was allegedly moving.
“I find the 14 day suspension to be excessive based on the authorities above, of which CROA 4381 is the most analogous and the grievor’s seniority and record, (subject to the change to the prior incident) and my earlier comments. In its place I substitute a 3 day suspension, and a direction that the grievor otherwise be made whole.”
37 Day Suspension – Run Through Switch – Run through switch where the Grievor was told by a manager that he was lined locked and checked for the route to be used. The manager was fired by Guido but so was the employee. He was reinstated unilaterally after not accepting the Company’s offer. There was absolutely nothing entered into the investigation for evidence regardless of the fact the LC asked for disclosure. During the actual CROA hearing the Arbitrator characterized the investigating officer’s lack of disclosure untruth and dishonest and immediately demanded the parties resolve the matter. The Company agreed and expunged the discipline on the spot. Regardless, the Arbitrator made a ruling on the case and commented.
“I have serious concerns about these submissions (Company). It appears to draw on alleged and unproven violations not even relied upon for the termination. It asserts that the investigation revealed he was “responsible and in control of the movement” of his train. This totally ignores that, on the only information declared to be before the investigator, Trainmaster Lebowicky had injected himself into the work being done, and given instructions and answers that indicated that he, as a manager, had essentially taken control of the movement, misaligned the switch and communicated misleading information to the crew. He was a manager; whose instructions they were obliged to follow. This is not a situation where a crew might be thought to share the responsibility from whatever happens. They were effectively under the Trainmaster’s direction, and he had, from the outset, proceeded in a way they advised against.”
“The submission speaks of a “thorough review of all the facts and circumstances” surrounding the matter. This implies there were considerations beyond the grievor’s exculpatory explanation and his evidence that the Trainmaster had spontaneously admitted full responsibility. What else was considered? Were the assertions of pre-investigation production untrue, or was there some additional information obtained and relied upon without the required disclosure under Article 23.01 or 23.02? In any event, I fail to see how the Investigating Officer paid any attention to the last sentence in Article 23.02 which requires new facts to be investigated and placed in evidence.”
Termination for not Sounding a Whistle at a Crossing – during an efficiency test, the employee was alleged to have not sounded the whistle though the entire crossing during a switching move. The dismissal was removed account the failure to provide a fair and impartial investigation by not allowing the question of the witness and again not disclosing evidence.
“Right after this objection, the Union asked whether the grievor was retested. The Investigating Officer, apparently without material on the record before him, was able to answer “yes he was”.
“I agree with the Union’s submission that “the arbitrary denial of [the] basic right to question the Company’s keystone witness is an unjustifiable departure from the essential requirements of a fair and impartial investigation.”
“However, the grievor’s evidence, which the investigator had no [disclosed] reason to doubt, was that it was G.M. Jared who spoke to him about the event and also said he videotaped the incident. The Company did not disclose a tape. It argues that the Union has not proved that it exists. The first and most obvious point is that an impartial investigator under Article 23.02 had a duty to investigate the proposition. However, even if that were not the case, the grievor’s unrebutted statement that Mr. Jared told him there was a tape is itself proof. Mr. Jared is a manager and his statement can be taken as an admission of the fact. The grievor’s evidence is sufficient, even aside from the requirements of Article 23.01, for an arbitrator to draw the adverse inference that neither the tape nor the evidence of G.M. Jared, would assist the Company’s case.”
“The discipline is set aside entirely and the grievor is to be made whole in every respect as a result of a breach of Article 23.04.”
“Had I not found such a breach, I would have in any event found that, by failing to disclose, or place before this Board, evidence of G.M. Jared’s involvement and any tape he possessed, an adverse inference was justified, and the onus of proof not met. Further, this is a case of the type alluded to above, whose efficiency testing is apparently being used beyond its purpose.
Termination for Use of the Dynamic Brake The Grievor’s train was downloaded account a warm wheel report and the Company observed that the transitions from throttle to dynamic was not the prescribed 10 secs. The discipline was removed for a failure to allow the questioning of manager.
“In my view this was a case that could have been and should have been dealt with under the efficiency testing process. This is true particularly as the grievor had been working for two years in the yard where the locomotives generally do not have dynamic brakes.”
“However, the Company chose to proceed with a formal inquiry. My concerns with that inquiry, while not quite as severe as the whistle blowing issue, are essentially the same.
“For the reasons given in the last case, I find this investigation failed to meet the standards required by Article 23.04 and I hold the discipline to be void. It is set aside and the grievor is to be reinstated and made whole in all respects.
Near the end of the statement on the dynamic brake, the grievor states “I feel as if I’m being targeted because of my past experience of unjustly being dismissed. I did not purposely try to not comply with the 10 second transition from idle to dynamic. I simply was trying to be cautious in handling the train as smooth as possible. The Arbitrator commented “From the totality of these five cases, I cannot discount the grievor’s feelings. The discharge penalty applied three times in a row are now all set aside and the grievor is to be reinstated as directed above.
Again, please read the entire case and if you have any questions, feel free to contact me directly.
Dave