The arbitrator had ruled on the right of the employer to look at cell phone records, and he was asked to apply the ruling to several recent grievances. He found the company could inquire into all calls made over a shift when an accident had occurred, but not where productivity and not safety was at issue.
Sixteen months after an arbitration decision upheld a railway employer’s limited right to review employees’ personal cellphone records pursuant to an investigation into a serious accident or incident, the union grieved again.
The union charged that the employer was inappropriately expanding the scope of its demands for private information in order to investigate non-critical incidents.
The union said that the employer’s improper requests for information exceeded reasonable expectations on limitations to management’s rights in the collective agreement and violated the clear principles identified in the Arbitrator’s earlier decision in CROA&DR 3900.
The union objected to a number of cases where — pursuant to its investigation into an incident — the employer had asked a number of employees to provide their personal electronic device records for the duration of a tour of duty. The union argued that the employer’s access to records should be confined to the time immediately preceding an accident or incident.
The Arbitrator disagreed with the union on this point, saying that employees in these circumstances were in the service of the employer and in an unsupervised environment during the entire period of their tour of duty.
A straightforward understanding that an employer could have access to records for the entire tour of duty to investigate an accident provided a “clear, bright line test,” the Arbitrator said. The parties could disagree about what conclusions to draw from the information, but efficiency was better served if the parties were not bogged down in disagreements and disputes about the appropriate cut-off times for access to pre- and post-incident calls.
The second issue raised by the union concerned the employer’s attempt to secure the cellphone records of an employee it was investigating with respect to a potential disciplinary action related to alleged productivity problems.
Here, the Arbitrator said, the employer crossed the line.
Extraordinary invasion of personal information
The fact that the collective agreement contained no specific prohibition to prevent the company from demanding cellphone records was not a licence for the company to expand management’s rights beyond what could reasonably be understood from the collective agreement.
“The Company’s initial policy [on cellphones] was introduced, defended and ultimately sustained by this Office on the critical basis that although it is an extraordinary invasion of personal information and privacy, it is justified in the extraordinary case of a serious accident or incident in the highly safety sensitive context of the operation of trains.”
Clearly that was not the case here, the Arbitrator said.
“It would appear that the Company simply attempted to avail itself of private and personal communication data in the investigation of what it considered to be slow and inefficient production on the part of the conductor and his crew.”
There was nothing in CROA&DR 3900, or within the scope of management’s rights, to justify such an intrusion into an individual’s personal communication records to deal with a productivity issue, the Arbitrator said.
“Offensive to general societal values”
With respect to the same case, the Arbitrator agreed with the union that the conduct of the company investigator was “offensive.” In particular, the company investigator saw fit to make use of reference to the Conductor’s cellphone record to interrogate him on the substance of a telephone call that the Conductor had made to his wife.
This conduct, the Arbitrator said, was “arguably offensive to general societal values” and clearly beyond the limitations initially acknowledged in the company’s policy. Indeed, this conduct was of “such an abusive nature” that it risked departing from the standards of a fair and impartial investigation according to the terms of the collective agreement and, therefore, voiding any discipline.
The Arbitrator also sided with the union on another case where the employer used discipline as a means of compelling an employee to divulge his cellphone records.
In that case there was no accident or incident involved and the Conductor in question was not even properly the subject of the employer’s investigation. The circumstances arose following an alleged policy infraction committed by the Conductor’s fellow crew member. The Conductor was advised that he had to produce his cell phone records for that tour of duty. The Conductor was held out of service until he provided the records.
“[T]he Company appears to have adopted a position that [the Conductor] would continue to be punished by being denied gainful employment until he complied with the Company’s request,” the Arbitrator said.
These actions were inconsistent with the Company’s own policy and contrary to the ambit of the earlier award.
The issues were remitted back to the parties for review and revision in light of the Arbitrator’s findings.
