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In the Matter of an Arbitration

 

Between

 

Canadian National Railways Police Association

Trade Union

 

- a n d -

 

Canadian National Railways Company

Employer

 

 

Discharge grievance of John J. Carter

 

 

Before : Claude H. Foisy, Q.C.

Appearances :

Ms Hélène LeBel (Castiglio, Rivest & LeBel) for the Union

Mr. John M. Barker, Q.C. (Cox, Downie & Goodfellow) for the Employer

 

Hearing : St. John, Newfoundland, May 29 and 30, 1984

 

Notes and authorities received June 8, 1984

 

 

 

 

I

 

This award deals with the discharge grievance of CN police constable John J. Carter. Carter was discharged on July 6th, 1983 as a result of his involvement in a car accident while operating a company vehicle under the influence of alcohol and his subsequent disclosure of said events to his superiors. The Union does not contest that Carterís actions on June 11, 1983 warranted discipline of some sort. It alleges that the discipline should be voided because the Employer did not follow the requisites of Section 14.7 of the Collective Agreement when it conducted a hearing. Subsidiarily, it argues the discipline is excessive and should be reduced to a suspension. Before we deal with the merit of these contentions, it is essential that we review the pertinent facts.

II

Carter was first employed as a CN police constable in May 1979. He worked at the Port aux Basques Newfoundland detachment until December 31st, 1982 at which date he was laid off. During that period, his superiors agreed he did a good job and they were satisfied of his performance. On September 2nd and 13th, 1981, Carter was arrested twice by local R.C.M.P. officers for speeding and driving while impaired by alcohol. On the second occasion, Carter was driving one hundred and fourteen (114) kilometres per hour in a fifty (50) kilometres zone and was highly intoxicated to a point where the R.C.M.P. could not reason with him. The R.C.M.P. officer gave him a break and did not charge him under the criminal code. He however contacted Carterís superior, Inspector T.J. Gosselin and complained about Carterís conduct. Gosselin interviewed Carter and pointed out to him his misconduct was a very serious matter and that it did not only endangered the lives of innocent people but could severily damage the image of the department. Gosselin, during that interview, asked Carter if he had a drinking problem and needed help to solution it. Carter answered he had no problem and that these mischaps were isolated incidents and that it would never happen again. Following this interview, Carter was assessed a corrective interview which is the mildest form of discipline.

On June 6th, 1983, Carter was recalled to work and met Inspector Gosselin in Port aux Basques. Carter was told he would be working in Corner Brook on unassigned hours. On this type of schedule, the constable must work broken hours and must register an average of fourty (40) hours per week over a period of eight (8) weeks. Carter was the only CNR constable in the Corner Brook area and had to patrol some two hundred (200) miles of territory. He reported by radio and telephone to his immediate supervisor, special constable Shea in Port aux

 

 

 

Basques. Prior to meeting with Gosselin that day, Carter had been met by Shea in Corner Brook and they had driven together to Port aux Basques. On the way, Shea asked Carter if he had a drinking problem. Carter replied he had not had a drink since he had been layed off December 31st, 1982.

Gosselin told Carter he wanted him to reside in Corner Brook but gave him permission to stay in Deer Lake located some twenty (20) miles away for a period of seven (7) to ten (10) days. Gosselin told him he could use the company car to travel back and forth for a period of three (3) days. Carter testified that Gosselin told him he could use the car seven (7) to ten (10) days. I prefer Gosselinís version because I do not believe Carter for reasons which will appear more clearly later on.

On June 10th, Carter left the Corner Brook office at approximately 8h30 and headed home in Deer Lake with the company car. He watched television during the evening and consumed approximately six (6) beers. Around 11h30, he went out with the car and stopped to eat some chicken at a fast-food outlet. He then proceeded to the White Pine Lodge Hotel, where he stayed until approximately 1h00 a.m., June 11th, and he consumed beer and whisky. He then left for a car ride and coming off the Trans-Canada Highway, saw at the last moment a stop sign, braked, but failed to stop in time, crossed the highway and hit a protective ramp on top of which the car immobilized itself, making it impossible for Carter to spring it loose. He radioed a CN dispatcher to report the accident and, as he was so doing, he was approached by a R.C.M.P. police officer. The R.C.M.P. officer noted Carter was impaired and after having administered him an alert test, brought him to the detachment where he was given a breathelizer test which recorded .14 ml. While at the station, Carter was very belligerant when he realized he would be charged and could not convince the R.C.M.P. officers to drop the charges. He was sent home at around 4h30 a.m. and he immediately telephoned his Union representative to find out what he should be doing.

At 7h00 a.m., he reported the accident to his superior Shea. Shea in turn, reported Carterís version to inspector Gosselin. On that same day, June 11th, Carter was summoned to meet Gosselin in order to give his version of the accident. Carter gave Gosselin in writing a fabricated story of the events in which he said that the accident occurred at midnight and he subsequently got a ride to a hotel where he had five (5) to six (6) drinks. He then got another ride back to the accident scene where he was arrested by the R.C.M.P. Carter then inquired as to what would happen to him. Gosselin told him that if the facts were proven, he would recommend his dismissal. On this point, Carter said Gosselin stated he would endeavour with all his power to have him dismissed. On this, I prefer Gosselinís testimony over that of Carter for reasons I will refer to later.

 

 

In the following days, Gosselin inquired into the circumstances of the accident, met witnesses and exchanged information with the R.C.M.P. officer who had charged Carter.

On June 27th, Gosselin requested Carter to appear to a hearing called under the provisions of section 14.7 of the Collective Agreement. The notice advised Carter he was charged under section 4.1.3, paragraphs 1, 14 and 19 and section 10.1.9 of the CN Police Manual. These sections read as follows :

4.1.3 Discipline When the need for discipline arises, it is System policy that it be correction-oriented and a system of assessing Demerit Marks for violations is used by this Department.

A CN Police Officer is subject to disciplinary action ranging from a Corrective Interview to Dismissal when Management and/or employee efforts fail to produce an acceptable level of performance.

Unacceptable actions include :

1) Violation of any criminal law.

14) Any act or omission contrary to good order and discipline, or conduct likely to bring discredit to the Department.

19) Negligence or improper use and care of equipment and material.

10.1.9 Intoxicants Officers must not operate a patrol car if they have partaken of any intoxicants of any kind even if prescribed for medicinal purposes. Beer, wine or liquor must not be carried in a patrol car unless it is connected with an arrest or forms part of a pilfered shipment or seizure, in which case it must be carried in the trunk, if there is room.

The hearing took place on July 4. Carter was assisted by the Newfoundland Union Local Chairman and the Atlantic Region Local Chairman. The Company was represented by Gosselin who asked the questions and who was assisted by a stenographer who took verbatim notes. The Union representatives

 

 

 

 

also asked questions to Carter and to Gosselin. The hearing lasted from 10:30 a.m. to 3:40 p.m. and was interrupted frequently by breaks during which Carter consulted his representatives before answering certain questions. Carter repeated the same fabricated story of the events leading to his accident of June 11. Gosselin said he found Carterís answers to be evasive and non committal. After the hearing, Carter requested to meet Gosselin privately and told him he had an alcohol problem. Carter promised Gosselin he would state that in writing. Carter did not keep his promise. Gosselin, following the investigation, recommended to his superior Carter be dismissed. This was done on July 6, 1983. It is only at the arbitration hearing that Carter admitted he had made false statements to his employer in regards to the circumstances of the accident. Carter was trialed in October 1983 on the criminal charges and was acquitted on the grounds the Crown had not proven beyond reasonable doubts that he had the care and control of the car.

III

At the end of the hearing held July 4, 1983, Gosselin asked Ray Harnum, president of the Newfoundland local if he had comments regarding the way the hearing was conducted. Harnum replied :

"Under the Agreement 14.7, the officer conducting the hearing on the Companyís behalf shall not be the same officer who was instrumental in reporting the employee for alleging breaking the rules. I feel throughout the whole investigation from the time it was initiated after the accident and through the hearing, there was once any questions put on the constable regarding whether he sustained any injury which leads me to believe that the investigation was handled in a bias manner . . ."

The same argument was raised by Council for the Union at the arbitration hearing. Section 14.7 reads as follows :

14.7 Whenever an employee is requested to appear at a hearing or requests a hearing on his own behalf for the purpose of answering to his alleged breaking of rules, he may be accompanied by one or two fellow employees who may be accredited representatives of the Association with the exception of any fellow employee who has notice or was a witness of the alleged breaking of rules. The employee or his representatives shall have the right to question attending witnesses in an orderly manner and they shall also be

 

 

shown sufficient evidence related to the case. The employee shall be given at least three daysí notice of such hearing and the

reason(s) therefor. The officer conducting the hearing on the Companyís behalf shall not be the same officer who was instrumental in reporting the employee for allegedly breaking the rules. In the application of this paragraph the Local President will be provided with a simultaneous copy of all notices for hearings.

The key words in section 14.7 are the officer conducting the hearing on the Companyís behalf shall not be the same officer who was instrumental in reporting the employee for allegedly breaking the rules.

On the facts of this case, it is clear to me that Gosselin who personally conducted the investigation into the circumstances of the accident, who obtained a version of Carter on June 11th, who met witnesses and exchanged information with the R.C.M.P., was instrumental in reporting Carter. It is after his investigation and his strong suspicion that Carter had broken the rules that he served notice on Carter to appear at the hearing and advised him that he had allegedly violated the specific rules we have referred to above.

That being the case, does the fact Gosselin conducted the hearing on behalf of the Company, results in invalidating the disciplinary measure which was subsequently taken by superintendent Trainer against Carter ?

The Union contends the provisions of section 14.7 are mandatory because the word shall is used. It refers by analogy to the well-established principle that where time limitations in a Collective Agreement are mandatory, as usually indicated by the words shall or must, a failure to respect such limitation is fatal. It has also referred to Re C.I.P. Containers Limited, 2 L.A.C. 2nd, 308 (H.D. Brown), where the Board found that the failure by the Employer to give an employee the reasons for her dismissal and to give her a fair and impartial hearing was fatal in the context where the parties had stipulated :

16c) In case of an employee dismissed for cause, the Company shall state such cause in writing to the employee within a period of fourty-eight (48) hours after dismissal.

d) Employees will not be disciplined in a manner involving suspension or dismissal without a fair and impartial hearing. At an investigation, an employee may have assistance of one or two members of the Union Grievance Committee if so desired who shall be allowed to offer such argument as they desire in defence of such employee.

 

 

The question of whether a provision is mandatory or directory is resolved on the specific language of the provisions to be interpreted in each Collective Agreement. In the instant case, the Collective Agreement does not impose on the Employer the obligation to hold a hearing before disciplining an employee. The word whenever found at the beginning of section 14.7 clearly indicates the procedure is optional. Section 14.8 is also indicative of the non-mandatory use of the hearing procedure.

14.8 When an employee(s) is required to attend a hearing for the purpose of answering his alleged breaking of rules, notes may be taken and recorded during such hearings. The employee(s) will not be asked to sign such documents (emphasis added)

The provisions of section 14.7 are designed to provide the Employer, at his option, the opportunity to oblige an employee suspected of violating company rules to be interrogated. The same option is given to the employee to force the Employer to receive his version. It also provides for the procedure to be followed when such a hearing takes place. In the context where the procedure is optional, the word shall which relates to the manner in which the hearing is to be conducted, if at all requested, cannot be interpreted as rendering the hearing mandatory and constituting a pre-condition to imposing discipline as was the case in Re C.I.P. supra. The language of section 14.7 in the present case resembles that in Re Williams and Treasury Board, 22 L.A.C. 2nd 95 (Abbott) where the Board found that the failure by an employer to give a mandatory twenty-four (24) hour notice of a disciplinary interview did not necessarily invalidate the disciplinary measure where the disciplinary interview was not a pre-condition to the imposition of such disciplinary measure. At page 102, the Arbitrator said :

" . . . there is no requirement imposed by the Collective Agreement that a disciplinary interview preceed the imposition of discipline. It is not a condition precedent to the imposition of discipline and it would appear discipline could well have been imposed sommarily. Hence, if a disciplinary interview does preceed the imposition of discipline, any factor which might invalidate the interview cannot affect the validity of the eventual disciplinary penalty. The two events are quite separate, distinct and independent".

In this context, a violation of the procedural requirement setting the manner in which the optional hearing is to be conducted, cannot result in

 

 

 

 

rendering void the disciplinary measure. At most it could be said to void the hearing procedure itself and not the disciplinary meaasure. Because of the optional nature of the hearing procedure, I am of the opinion that even in the presence of the word "shall", a violation of the procedural requirements of section 14.7 does not automatically void the hearing procedure where no prejudice is caused to the grievor.

In this case, the hearing was called by the Employer. Carter was given the opportunity to answer the questions put to him. Gosselin even indicated he had witnesses that contradicted his story. Gosselin himself on occasions, was interrogated by the Union representatives. The evidence is that Carter was given the opportunity to give freely his version and to be assisted by his Union representatives. He was permitted to caucus frequently before answering questions.

Most important of all, I fail to see what prejudice Carter could claim from the procedural violation by Gosselin of section 14.7 when he was himself blatently and voluntarily lying on the circumstances surrounding the accident he was involved in. No wonder he was suspicious of the questions put to him by Gosselin and needed to caucus. I find it preposterous for Carter in such a context to claim that Gosselin was bias in the way he conducted the hearing. If Carter was having difficulties in answering Gossleinís questions and was finding himself in a very uncomfortable position, it is not because the hearing was conducted by Gosselin instead of another officer of the Company or in a bias manner directed at proving a case, but because he was deliberately lying to save his job and had trouble convincing Gosselin. In the circumstances, I find the Companyís violation of the procedural requisites of section 14.7 not to have resulted in any prejudice or unfairness to Carter and such violation does not void the hearing procedure. In any event, Carter had given the same fabricated story on June 11, 1983 to both Shea and Gosselin and Gosselin did not require the content of the July 4th hearing to make his recommendations. I consider the July 4 hearing as an opportunity given to Carter to set the facts straight. He did not take it.

In short, I find the hearing under section 14.7 is not a pre-requisite for the Employer to impose discipline. On the facts of this case, I find that Carter, by lying, has put himself in a position where he cannot claim the Employerís violation of the procedural requisites of section 14.7 has caused him any prejudice. Therefore the preliminary objection that the discipline imposed on Carter should be voided is dismissed.

 

 

 

 

IV

As mentioned previously, the grievor admits his actions of June 11, 1983 warranted discipline. He claims however that the discharge should be reduced to a suspension. He invokes the following mitigating factors : he had a problem with alcohol which he now has controled as evidenced by his testimony and that of one of his friend that he has not consumed any alcohol since June 11, 1983 ; he was truthful at the hearing admitting he had lied to Gosselin and is Union because he wanted to protect his job and his position in the pending crimical Court case relating to the impaired driving charges and, in the circumstances, cannot be blamed as such behaviour is understandable.

Counsels for both the Employer and the Union have referred me to a number of arbitral awards where the discharge of employees for reasons of alcoholism was upheld or reduced and to other cases where the discharge was warranted in cases where employees were found to be untrustworthy as a result of their actions. In each of these cases the Arbitrators arrived at a specific conclusion based on the particular facts they had before them. I must do the same exercise.

After having reviewed the facts in the present case, I have come to the conclusion not to interfere with the Employerís decision to dismiss Carter for the reasons I will now expend upon.

Carter is a relatively junior employee with only 3.5 years of employment.

Carter was disciplined for driving while being intoxicated in September 1981. On that occasion, he was reminded of the seriousness of the offence and the consequence such action had on the credibility of the Force. He was also asked if he had a drinking problem and required help. He said he had no problem and he considered himself fortunate to get off the hook so lightly. He knew at that time he had a drinking problem and that there existed a company assistance program for those employees having alcohol or drug related problems.

On June 10th, he drank at home duirng the evening. He then took the company car to a take-out restaurant and then to a bar while his apartment was well within walking distance of both those places. He stayed at the bar over an hour and he drank two to three whiskys and some beer. He then went for a drive around town because he likes to drive and more particularily when he drinks. Carter knew his problem was drinking and driving. His consumption of alcohol on June 10 and 11, 1983 was the result of deliberate action and cannot be said to be impulsive. He not only drank home but further continued at the White Pine Lodge.

 

 

 

Driving while impaired is a serious offence. This criminal offence in itself does not necessarily warrant the dismissal of an employee more particularily when it occurs during off-duty hours. One must appreciate the grievorís actions in the context in which they occured. Carter is a police officer working in an isolated area and he requires the cooperation of the local R.C.M.P. officers. This entails he must have their respect and credibility. In September 1981, although Carter was arrested twice during off-duty hours while driving his private car, he was not charged although he was intoxicated at the times. R.C.M.P. officers however viewed the matter seriously enough to report it to Carterís superior who followed through with a disciplinary measure. Furthermore when Carter was arrested on June 11, 1983, he was quite belligerant toward the three R.C.M.P. officers who were present at the time the breathelizer test was taken. I am of the opinion that Carterís actions on June 11, 1983 added to those of September 1981 have greatly impaired his ability to bank on R.C.M.P. officers cooperation and respect.

Driving while being impaired is a criminal offence and is more particularily serious when the person involved is a police constable who knows about his problem and of the consequences that can result from it. On this point, Carter testified he had stopped drinking in March 1983 following the death of one of his friend who was involved in an accident while being impaired. It seems that warning was not clear enough. Carter should also have been more cautious as he was using the company car without authorization.

On the facts before me, it is clear that the company has applied progressive discipline in regards to Carterís problems related to driving while being impaired and they had no reasons to believe his attitude would change. More particularly in view of the strong suspicion they had that he had lied to them on the circumstances of the accident. In short on the evidence before me, I find there is no reason to mitigate Carterís action of driving while being impaired and attenuating his responsibility in that regard.

Carter has further argued that the Employerís decision to dismiss him should be mitigated because he has now reformed and does not drink anymore. The problem with this is that I cannot take Carterís word because the facts presented to me clearly indicate it cannot be relied upon.

Carter said he lied because he was placed between a rock and a hard place and that in such circumstances it was natural to so react. I cannot deny that Carter was in a difficult position following the accident and his being charged with

 

 

 

impaired driving. I cannot for that reason condone his lying because it was the most convenient thing to do at the time to save his job. Carterís problems take their source not only in his drinking but also in his being untruthful. I have reviewed Carterís testimony and I am left with the clear impression that he will lie to suit the circumstances which will best favour his immediate interests.

In September 1981, he lied to Gosselin about not having a drinking problem. On June 6th, 1983, he lied to Shea when he said he did not have a drink since December 31st, 1982. He testified that in March 1983, he had a shock when one of his friend killed himself driving while being impaired and that this event caused him to stop drinking (except on two occasions) and drive at the same time. Yet on June 10 and 11, without any special reasons, he drank and drove the company car while being impaired. As related previously, he lied on three different occasions to the company while relating the circumstances of the accident. It is clear to me he tried to save his job which was very much a preoccupation to him at that time as evidenced by Sheaís testimony and Carterís inquiring to the R.C.M.P. officer and to Gosselin. During his testimony at the Arbitration hearing he admitted he lied and said the version he was now giving was the truthful one because he had to live with himself. When asked why he did not approach the company after his acquittal in Court in October, to give the real story, he answered because I thought it would not be beneficial to me. At the arbitration hearing, he said he was being truthful yet his testimony was still not completely opened and unreserved. For example, he stated that he did not necessarily lie to keep his job which he later admitted was the case when confronted with Sheaís version. In short, I am of the opinion that his decision to tell the truth at the Arbitration hearing was motivated not to enable him to live with himself as suggested but resulted from the cold calculation that it was the best thing to do in the circumstances to get his job back. As I have said previously I understand Carter is fighting for his survival but he must also realize that the manner in which he does so does not enhance his credibility, quite to the contrary.

Carter has testified he has not had a drink since June 11, 1983 and that this incident he was involved in, has given him a lesson. A good friend of his with whom he socializes has testified she has not seen him drink during that period. The problem is, that while I am sure that Carterís friend was telling the truth, I am not at all sure of Carterís word. His friend does not see him every day. He testified he had his lesson in September 1981 but he continued to drink and drive. He said the death of his friend in March 1983 made him realize he had to stop drinking and driving. Yet he continued the same pattern in June 1983. The problem of Carter stems not only from his drinking but from the fact he has

 

 

 

 

destroyed his credibility. In this context, it is difficult to say Gosselin was bias and did not answer his cry for help when he met him privately on July 4, 1983. It was obvious at that time to Gosselin that Carter was not being open about the events surrounding his accident : it was difficult in that context for Gosselin to take Carterís intention to reform seriously. Gosselin requested Carter to put in writing that he had a problem. Carter promised but never followed through. Carter joined Alcoholic Anonymous in St. John but went to only two meetings as it was too expensive to drive the 26 miles from his home to St. John.

In short, I have the same problem as Gosselin had in June 1983, I do not believe Carter.

For these reasons, the grievance is dismissed.

I wish to add that my decision and perhaps that of Gosselin at the time may have been different if Carter had told the truth in June or July 1983. But not doing so, Carter has not only lost his credibility but has also induced his Union and the Employer in taking positions in regard to his grievance which they may not have taken if the truth had been known to them at the time. His untruthfulness has also led to the incuring of expenses to the detriment of his fellow Union members.

 

GIVEN IN MOUNT-ROYAL, June 20th, 1984.

 

 

 

 

 

______________________________

Claude H. Foisy, Q.C., Arbitrator