A VIA Rail worker in Montreal who bought a train ticket under the name of Osama bin Laden to prove a point about lax security had his punishment cut in half by an arbitrator.
Benoît Dulong, a VIA worker who also held office in the local union, bought a train ticket from an automatic ticket machine under bin Laden’s name. He then posted a copy of the ticket on the union board in Central Station.
Dulong also filed a health and safety complaint alleging VIA was in violation of Part II of the
Canada Labour Code
by not implementing an identification procedure as a security measure to identify passengers when they purchased a ticket. A copy of the ticket was also forwarded to his supervisor by internal mail and Dulong subsequently forwarded a complaint to the health and safety committee to address the issue.
On Sept. 29, 2003, Dulong was called to an investigation to explain his alleged misuse of company property with an intent to discredit VIA. The company assessed 30 demerit points against Dulong, which put him halfway to termination. That discipline was grieved.
One-way ticket from Montreal to Ottawa
The material before the arbitrator confirmed, beyond dispute, that Dulong engaged in what the union characterized as a piece of theatre in an attempt to shock VIA into action.
Dulong had concerns about the security of ticket sales in the wake of the Sept. 11 terrorist attacks. Among his concerns was the ease with which an individual might purchase a VIA ticket without being required to prove his identity.
To make his point, he purchased a one-way ticket from Montreal to Ottawa at an automated kiosk in Montreal on Sept. 11, 2003, under bin Laden’s name. He immediately voided the ticket which he then posted on the union’s bulletin board, along with a copy of the draft complaint alleging a violation of workplace safety provisions under the
Canada Labour Code.
‘Stunt’ concerns VIA
Michel Picher, the arbitrator who ruled in this case, said VIA had concerns about “a stunt carried out to the knowledge of up to 200 employees who would have access to the bulletin board, in a manner which could have brought substantial negative publicity to (VIA) had it become known publicly or through the media.”
“The prospect of a national rail carrier issuing a ticket in the name of (Osama bin Laden) would be sensitive, to say the least, and might well cause substantial concern among the traveling public,” said Arbitrator Picher.
Following a disciplinary investigation, Dulong was assessed 30 demerit points.
Was worker a whistle-blower?
The union argued Dulong was acting in furtherance of his obligations as a member of the union executive, with a view to improving safety in VIA’s ticket sales system.
It pointed out the bin Laden ticket was not posted in a location where it could be seen by the public. It was in an area restricted to employees and managers of VIA on a bulletin board that was effectively owned by the union.
It said union representatives have the right of free speech and should be allowed greater latitude than what might be available to rank-and-file employees. The union said Dulong’s actions were intended to, “maximize his chances of getting management’s attention.” It said earlier attempts by Dulong to raise the issue had apparently fallen on deaf ears.
Arbitrator Picher said he was well aware of the need for union representatives to have the ability to speak candidly and sometimes in strong terms to management in the representation of employees.
“It is also legitimate for unions and union representatives to communicate with the media or the public, whether through picketing, through press releases or otherwise in furtherance of their legitimate objectives,” said Arbitrator Picher. “There is, nevertheless, a general balance to be struck in the relationship between an employer and its employees who are members of a union executive.”
An employee owes a degree of fidelity to his employer to not undermine unduly the public image, credibility, reputation or operations of the employer.
“While there may be legitimate circumstances in which an employee, whether or not he or she is a union representative, may assume the role of ‘whistle-blower’ on an improper or unsafe practice, it should seem self-evident that some care and discretion should be taken in the manner in which whistle-blowing takes place,” said Arbitrator Picher.
Story didn’t go public
The arbitrator said VIA had a legitimate concern about Dulong’s actions.
“While fortunately the ticket issued in the name of (Osama bin Laden) on Sept. 11, 2003, never surfaced in the media or the public eye, the posting of the ticket to the attention of as many as 200 employees was perilously close to releasing feathers in the wind, with little ability to control where they might eventually light,” said Arbitrator Picher.
The arbitrator said Dulong’s actions were reckless and it could appreciate VIA’s concern at the prospect of an embarrassing headline or news item which could easily cause undue concern among the traveling public.
The arbitrator said Dulong’s point could have likely been made if he had quietly purchased and voided the ticket and taken it to a properly scheduled meeting of the joint health and safety committee.
“Setting aside the risk of public embarrassment, at a minimum Mr. Dulong’s actions were calculated to embarrass (VIA) in the eyes of its own employees,” said Arbitrator Picher.
The arbitrator ruled Dulong had crossed the line of what is permissible as a form of expression on behalf of a trade union.
“Whatever his intention, Dulong’s actions were calculated to prompt fear, not entirely unlike raising cries of ‘fire’ in a crowded theatre,” said the arbitrator. “Freedom of expression does not extend so far.”
Penalty slashed in half
But the arbitrator thought 30 demerit points, taking the worker halfway to termination, was too steep a penalty.
Dulong had never been subject to any discipline by VIA since he was hired in May 1987. Given his clean record, and the fact his motive was to advance a union interest, the arbitrator said 15 demerit points was appropriate.
For more information see:
VIA Rail Canada Inc. and CAW-Canada
, Case No. 3512 of the Canadian Railway Office of Arbitration and Dispute Resolution, Sept. 19, 2003. CROA&DR 3512.
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