CANADA

PROVINCE OF QUEBEC

CANADIAN NATIONAL RAILWAY COMPANY

-and-

CANADIAN NATIONAL RAILWAY POLICE ASSOCIATION

ATTORNEYS:

J. Edmond Gagnon, Attorney

Counsel for Canadian National

Room 930

800 Dorchester

Montreal, Quebec

H3B 1R4

SOLE ARBITRATOR:

Pierre N. Dufresne

50 Place Crémazie, Suite 406

Montréal, Quebec

H2P 2T1

Montreal, Quebec 20 May, 1976

The undersigned sole arbitrator was appointed on or about 18th March 1976 by the Honorable John Monro, under the provisions of the Canada Labour Code and the Collective Agreement entered into by both parties.

An arbitral session was held at Montreal on 17th May 1976 when representatives of both parties declared themselves in accord to recognize the mandate of the undersigned and, for all practical purposes, the grievance procedures covered by the Collective Agreement had been respected and consequently, the grievance could be heard on its own merit.

The parties, moreover, declared themselves in accord to recognize that the undersigned had the power to maintain, reject or modify the disciplinary action taken against the plaintiff.

The grievance presented in a letter dated 12 December 1975, and introduced as Ehxibit P.2, reads as follows:

"91 McComber Street

Châteauguay, P.Q.

12 December 1975

Mr. W.C. Skelly

Chief, CN Police

Canadian National

935 De la Gauchetiere St.

Montreal, P.Q.

Yours truly,

(Signed) André Léger - President

National Executive.

The notice of discharge dated 3 December 1975 bringing forth this grievance has been deposited under Exhibit P.1 and reads as follows:

"DISCHARGED -

For having feigned illness by reporting sick during hours of work on 1st November 1975 at 2000 hours, on 16th November 1975 at 0030 hours, and on 22nd November 1975 at 2030 hours. Having worked for another employer during the balance of your normal assigned working hours. Having accepted sick pay knowing that you were gainfully employed somewhere else".

(Signed) P. Danylewich

Superintendant, CN Police

THE FACTS

During the arbitral session held on May 17th 1976, the following facts were admitted or submitted as evidence.

1. On November 1, 1975, the plaintiff was scheduled by this employer (CN)to work

between 1500 hours and 2300 hours. Around 2030 hours, under the pretext of

illfeeling due to influenza, the plaintiff left his work and, the same night, went to work

for the Queen Elizabeth Hotel (Place Ville Marie) from 2300 to 0300 hours the

following morning.

Evidence submitted established that the plaintiff received his full salary for the period

scheduled to work by his employer in addition to wages earned at the Queen Elizabeth.

2. On November 15th, 1975, the plaintiff was scheduled to work by his employer (CN)

from 2300 to 0700 hours on 16 November 1975. He worked no more than half an

hour then asked his superior officers, Messrs. Cornford and Rivet, to absent himself to

go to the Royal Victoria Hospital because he was in pain as a result of a boil on his leg.

Around 0230 hours this 16th of November, he proceeded to the Hotel (Place Ville

Marie) to assist other policemen on duty until 0345 hours.

Evidence submitted established that he was remunerated by his employer for all time

scheduled to work (2300 hours the 15th of November till 0700 hours the 16th of

November) that is, paid sick time in addition to remuneration by the Hotel for services

rendered between 1900 hours the 15th of November till 0315 hours the same night.

3. On November 22, 1975, when the plaintiff was scheduled to work from 1500 to 2300

hours at his Employer’s place (CN) he left work between 2100 and 2200 hours,

pretending "he was not feeling well" in order to go to work at the Hotel (Place Ville

Marie) and be remunerated from 2300 hours and 0330 hours the same night of 22 to

23 November 1975.

4. The type of work the plaintiff was performing at Hotel Queen Elizabeth consisted of

recruiting and scheduling some fifteen (15) policemen from his Employer (CN) outside

of their normal hours of work.

5. There is no rule or regulation prohibiting the plaintiff from working elsewhere during

his off-duty hours "moonlighting".

6. The disciplinary record of the plaintiff consisted of, at the time of the grievance, ten

(10) Demerit Marks for his responsability in a patrol car accident and a verbal

reprimand concerning his department on duty when dealing with a suspect at Central

Station.

7. There is no provision or penalty provided in the Collective Agreement concerning the

case under review.

8. Article 157 of the Canada Labour Code states as follows:

"157. An arbitrator appointed pursuant to a collective agreement or an arbitration

board:

a) shall determine his or its own procedure, but shall give full opportunity to the

parties to the proceeding to present evidence and make submissions to him or

it;

b) has, in relation to any proceeding before him or it, the powers conferred on

the Board, by paragraphs 118(a), (b) and (c);

c) has power to determine any question as to whether a matter referred to him

or it is arbitrable; and

d) where

(i) he or it determines that an employee has been discharged or

disciplined by an employer for cause, and

(ii) the collective agreement does not contain a specific penalty for the

infraction that is the subject of the arbitration.

has power to substitute for the discharge or discipline such other penalty as

to the arbitrator or arbitration board seems just and reasonable in the

circumstances. R.S., c.L-1, s. 157; 1972, c.18, s.1."

IN CONSIDERATION OF THE ABOVE, the undersigned Arbitrator concludes that the Employer, under the circumstances, had sufficient grounds to discharge the plaintiff, moreso due to the nature of his work as a policeman who is employed for the preservation and maintenance of the public peace or for the service or execution of civil process.

FOR THE REASONS CITED ABOVE, the Arbitrator declines the grievance on all grounds.

Sentence rendered this twentieth (20th) day of May 1976.