IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC RAILWAY
AND
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF
CANADA (CAW/TCA), LOCAL 101
AND IN THE MATTER OF THE GRIEVANCE
OF J.D. MARTENS (9 DEMERITS)
SOLE
ARBITRATOR:
J.F.W. Weatherill
A hearing in this matter was held at
Winnipeg on April 30, 2003.
B. McDonagh, for the union.
J. Bate, for the company.
AWARD
The Statement of Fact and Issue in
this matter is as follows:
Dispute:
Discipline - 9 demerits debited against Carman James D. Martens’ record on
August 30, 2001.
Statement of Fact:
On August 30, 2001 Carman James D.
Martens’ record was debited 9 demerits for:
“ - - your failing to operate a forklift
with due care and attention, resulting in an accident that caused significant
damage to the Winnipeg Car Facility on July 30, 2001.”
Statement of Issue:
It is the contention of the Union
that:
-
the Company did not establish wrong doing on Carman James Martens’ behalf
sufficient to give the Company cause to discipline him by debiting his record
with 9 demerits.
-
Carman James Martens was treated in an arbitrary, discriminatory and an
excessive manner in regard to the 9 demerits debited against his record.
Therefore, with regard to the
foregoing, it is the
position of the Union that the
discipline of 9
demerits debited against
Carman James
D. Martens should be removed
from his
and claim.
The substantial question is whether
or not the grievor was careless in the operation of the machine. It was a
heavy forklift Loadlifter, some 82 inches in width and 16 feet in length.
It was being operated along a narrow lane, with about two feet of clearance on
either side. The lane was paved for a certain distance, and then became
gravel. The lane was not a “designated roadway” but was frequently
used by employees, and that fact that the grievor was using that laneway is not
a ground of discipline. In the personal injury report which he completed,
the grievor stated:
At 17:15 I was operating forklift
Loadlifter 2400 and on my way to the car repair lunchroom to enter my time on
the computer. As I drove along the Northside of the Car Shop and left
pavement and drove onto gravel I entered a large dip in the road and lost
control of forklift striking the old north material shed. This happened
approximately 18 yards from end of pavement. When I struck the building I
jarred my wrist in the steering wheel and struck my head on the windshield.
The supervisor’s report of the
accident states as its cause:
striking building
with out of control forklift,
and notes as “Rules violated”,
Operating a vehicle
must be done at a safe speed, to maintain control.
At the grievor’s investigation, he
stated that he had used the laneway on a daily basis, and that he had driven
the loadlifter there many times. The weather and visibility were good and
the vehicle, he stated, was in good operating condition. The immediate
investigation following the accident revealed that the pressures were
correct. Some time later, it is said that the lug nuts had to be
tightened, and at the hearing, a worn lug bolt was produced. On the
material before me, however, it cannot properly be concluded that the accident
was the result of a mechanical defect.
The grievor stated that the accident
occurred because of a large dip in the path of travel, a short distance after
the pavement had ended. He stated that he was traveling at approximately
five kilometers per hour. When the machine hit the building, it ripped
the corrugated steel siding along a length of some seventeen feet.
The nature of the machine and of the
terrain along which it was operated clearly called for a reduced speed and
considerable caution, particularly at the point at which the paved roadway
ended. The grievor was familiar with the laneway. Mechanical
failure has not been shown to have contributed to the accident, and in my view
it must be concluded, on the balance of probabilities, that the grievor was not
exercising the degree of care required by the particular circumstances to
maintain control of the machine when it left the paved portion of the lane.
The grievor was, I find, careless,
and was subject to discipline on that account. It may be that a penalty
of as much as fifteen demerits would not have been excessive, given the
grievor’s discipline record, but it is not necessary to decide that
point. It was considered that the grievor’s record stood at fifty
demerits, and the assessment of fifteen would have led to his discharge.
The company determined on the assessment of nine demerits in order to avoid
that outcome. In fact, the grievor’s record has been adjusted as a result
of arbitration. The nine demerits imposed on this occasion is not
affected by that.
For all of the foregoing reasons,
the grievance is dismissed.
DATED AT OTTAWA, this 26th
day of May, 2003.
,
Arbitrator.