BETWEEN:

(the "Company")

AND

(The "Association")

SOLE ARBITRATOR: J. A. Hanrahan – Chairman

J. W. Healy, Q.C. – Company Nominee

R. F. Donnely, Q.C.– Association Nominee

There appeared on behalf of the Company:

N. A. McLean – Labour Relations Assistant

A. W. McCulloch – Assistant Director, Investigation

And on behalf of the Association:

J. P. Lapointe – Consultant

A. Leger – President

A hearing in this matter was held at Toronto, Ontario, on January 8, 1966.

On May 19, 1965, Emile Vaillancourt, a railway constable stationed at North Bay, Ontario, filed this grievance:

On the date in question the grievor was assigned to the 5:00 p.m. to 1:00 a.m. shift, to protect express freight shipments in the Express Freight Shed in North Bay, as well as trucks and transport trailers and freight cars at the shed platform.

The contention of the Company was that the grievor neglected his duty on that shift; that he absented himself from duty without permission and watched a television program in what was called the Warm Room at the express freight shed.

The position taken by the Association was that there was insufficient evidence to warrant a charge of Dereliction of Duty, and even if a small dereliction had occurred, the punishment of three months’ suspension was out of all proportion to what had occurred.

The grievor testified that his wife owned a portable television set: that on the night in question, the sixth game of a playoff series was being played between the Montreal Canadiens and the Chicago Black Hawks and was televised. He was approached by an employee of the CNR, requesting that he bring the television set to the shed that evening. The grievor claimed he stated he would have no part of it; that because of a previous suspension of three days imposed upon him recently, for having absented himself from his place of duty to attend a hockey game at an arena in North Bay, he believed "they had a knife in his back". He said to the employee that he could ask his wife for a loan of the television set if he cared to do so.

The grievor told that when he came on duty he saw the television set sitting on a cold drink cooler in the ‘warm room’. He said that throughout the evening he had performed his ordinary duties of patrolling; that on perhaps three occasions he had watched the television game for five to ten minutes at a time. He estimated that thirty minutes would be the maximum time spent for this purpose on the three occasions.

The charge came about through the efforts of a Special Officer named Fougere, who had reported to his superior officer he believed the grievor was bringing the television set to work on various occasions. He was given instructions to proceed from Capreol, where he had been, and investigate the matter. This he proceeded to do, concealing himself in an empty van on the platform, that he claimed gave him an opportunity to see through two rooms in the shed into the warm room. He said that for a period from 8:30 to 9:50 the grievor did not leave the warm room, continuing throughout that period to observe the televised hockey game. Under cross-examination by Mr. Lapointe, he modified this evidence somewhat by saying that on two occasions he had left the van to answer the call of nature, and on one occasion he left to move about to assist his circulation. He said the absences were of short duration. On each occasion, he claimed, the grievor was in the same position when he returned.

Two employees of the Company testified on behalf of the grievor; one stating that between 8;00 p.m. and 9;00 p.m. he had talked to the grievor at the back of the express shed; another that on at least three occasions during the period in question he had seen the grievor absent himself for varying periods.

There was a suggestion by the grievor that while once Special Agent Fougere had been very friendly towards him, often visiting with him at his home, since the occasion of the previous charge, strained relations had existed between them. He explained his expression ‘they had a knife in his back’ had reference to Fougere.

The grievor admitted that on previous occasions employees of the railway had obtained use of the television set from his wife. He claimed, however, he had not participated in watching it on those occasions.

Mr. Lapointe questioned Special Agent Fougere why he had not obtained the evidence of another witness when gathering evidence against the grievor. He suggested this would have seemed wise when because of the previous charge the result could be so serious. Mr. Fougere replied he did not consider it necessary.

As to the first question to be answered, whether the grievor did in fact abandon his duty for a period of an hour and twenty minutes to watch the hockey game, we are in agreement with Mr. Lapointe’s suggestion that it would have been better police practice to have had another witness with Fougere during his period of observation. We believe his superior officer, had he any inclination of a personal feud between the two, would have insisted upon such a procedure.

The grievor’s sworn testimony, supported by the two witnesses he produced, creates a doubt in our minds as to the accuracy of that given by Fougere. We therefore find the special agent’s unsupported evidence insufficient in convincing value to permit its acceptance.

We accept the grievor’s testimony as to the total period he watched the hockey game. We find, however, that this was contrary to what was expected of him while on duty.

In the Company’s brief it was stated that the elapsed time that Constable Vaillancourt watched the hockey game was of little importance; the important fact is there was ample opportunity for a theft to be perpetrated or for a fire to reach unmanageable size before detection.

The grievor admitted to Mr. McLean that he was conscious that the main duties of a constable working as he was on the night in question were to protect the property of the company against theft, carelessness, negligence, mischief, depredation and fire; to guard express freight and mail traffic from theft or loss of damage; to protect passengers and preserve order upon the premises of the company; to enforce and uphold the law insofar as the interests of the Company may be involved.

Mr. McLean claimed that the efficiency of a police force is not measured by the number of offenders caught, but rather, by the absence and prevention of crime; that the successful execution of these requirements made it mandatory that the constable constantly patrol the area of his responsibility. As an example of the rigid adherence to this pattern of duty required, an officer is not permitted to leave the company’s premises to eat his lunch.

The grievor admitted to Mr. McLean that he was familiar with the Educational Manual provided all constables.

On Page 15 of the Manual, under the heading Duties in Freight and Transfer Sheds and Shops, this appears:

As to the distraction of a television set, Mr. McLean obtained from the grievor an acknowledgment of his awareness of a departmental circular issued in November, 1964, to this effect:

While no specific instructions had been issued concerning television sets, it seems reasonable that the prohibitive rule concerning radios should be recognized by those concerned as having similar application. It is basic that while a police officer is watching a television program, he cannot be as alert and vigilant or live up to the requirements of a police officer as set forth in the educational manual.

We are in agreement with the company’s submission that discipline is most essential in any police force; that if one is to see that rules and regulations are to be obeyed he himself must be able to take orders and carry them out.

The general rules of the department as outlined in the educational manual provide:

Mr. A.W. McCulloch, Assistant Director of the Investigation Department of the Railway, described a general practice that had not been reduced to writing and circularize among the constables, whereby if an employee suffered certain demerit marks and within a period of twelve months was again found guilty of a breach of the rules, the original number of demerit marks imposed would be doubled for the subsequent offence. If the total reached sixty, dismissal was possible.

For his previous breach of duty the grievor had twenty-five demerit marks registered against him. This would make fifty for his present difficulty. the total of seventy-five, it was said , would ordinarily have resulted in dismissal.

Mr. Mcculloch stated that because of the lenght of service of the grievor (nineteen years) his age and family responsibilities, the inspector had decided to impose three months suspension.

The conclusion as to the penalty to be thus imposed was of course reached by full acceptance of the special agent’s evidence. We have no doubt that had it been considered on the basis of the grievor’s version, a different result would have followed.

On the one hand, a complete lack of interest in his patrol duties for a period of an hour and twenty minutes, would be willful misconduct, showing a blameworthy attitude towards his responsibilities. The total area to be patrolled was not too extensive. To pause for periods of from five to ten minutes on three occasions while otherwise carrying out his duties, and with those breaks occurring in a area where most of the value stock was kept, in our opinion is not of the same character. Undoubtedly, however, considering the firm language in the educational manual, to which the grievor must submit if he desires to remain a constable, his absorption in what was described as a highly exciting hockey game even for the periods described, reduced that constant alertness required.

It is to be remembered the penalty originally imposed represents a loss of income of approximately $1,320. A heavy fine!

In deciding as to the penalty that should be imposed, we are conscious of the fact that just in March of this year the grievor suffered a three-day suspension. That was for willful misconduct. While he explained he had asked his immediate superior for permission , the extent granted at the time was ‘I think that can be arranged’. Final permission had not been received.

For a man fifty years of age, we believe that penalty so recently imposed should have deterred him from his lapse from duty on this occasion.

Our conclusion on all the facts is that the grievor’s suspension should be changed from three months to one month; that he should be paid a sum representing two months salary, less any sum he may have received during the second or third month of his suspension from other sources of employment.

Dated at Brampton, Ontario, This 18th day of January, 1966.

The majority Award of the arbitration board sets out the facts which were put before the board. The conclusions I would raw from these facts differ in part from those drawn by the majority of the board. I do not see that we are justified in concluding that special officer Fougere’s evidence was other than objective and reliable. He is a trained investigator and I think it should be assumed that his investigation was unaffected by any personal relationship he had with the grievor. Fougere made his investigation on instructions from his superior. Since the grievor was the culpable object of Fougere’s investigation I think we should not attribute significance to any of the grievor’s views in this respect.

Fougere did not assert that Vaillancourt sat for a period from 8:30 to 9:50 in front of the TV set. He merely reported what he had seen and it appeared to him that Fougere was there throughout that time. The evidence of the two employees who testified on behalf of the grievor was by no means as detailed and the fact that Vaillancourt did some coming and going during the period in question is not necessarily in conflict with Fougere’s evidence.

I would find on the evidence that Vaillancourt was watching the hockey game on TV at least throughout the period 8.40 to 9.40 with some brief interruptions when he went into other parts of the warehouse.

As to the penalty imposed by the company, I am satisfied that in ordinary circumstances and in accordance with the demerit system uniformly in effect in the company, Vaillancourt would have been dismissed from employment had it not been for the consideration given by Mr. McCulloch to his length of service, his age and family responsibilities. In the light of this alternative, I cannot agree that a three months suspension was inappropriate. Accordingly, while I agree with the majority of the board in finding adequate grounds for discipline, I would have upheld the company also in the degree of discipline imposed on Vaillancourt.

DATED at Toronto this 21st day of January, 1966.