CASE-NO : AH 128
DATE : 19941031
PARTIES : CP CSCU
AD HOC 128
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
THE CANADIAN SIGNAL AND COMMUNICATIONS UNION
AND IN THE MATTER OF THE GRIEVANCE OF D. W. BLACK
SOLE ARBITRATOR: J. F. W. Weatherill
A hearing in this matter was held at Toronto on October 31, 1984.
R. E. McCaughan, J. E. Platt and A. G. Cunningham for the Union
F. R. Shreenan and R. A. Colquhoun, for the Company.
The Joint Statement of Fact and Issue in this matter is as follows:
JOINT STATEMENT OF FACT
1. Signal Maintainer D.W. Black was dismissed from Company service on May 23, 1984, for permitting a Company
vehicle, for which he was responsible, to be operated by a subordinate who was known to have consumed alcohol.
JOINT STATEMENT OF ISSUE
1. The Union contends Mr. Black's dismissal for allowing the operation of a Company vehicle by a subordinate who was well known to have consumed alcohol is excessive and unwarranted.
2. The Company contends that the discipline assessed Mr. Black was just and warranted.
There is no substantial dispute as to the facts. The grievor, who was hired by the company as a Signal Gang Helper on April 29, 1963, has been a Signal Maintainer since January 1, 1969. Since November, 1971, he has occupied the position of Signal Maintainer at South Edmonton.
The grievor's duties include the maintenance of all signal systems on a defined section of the Alberta North Division, and covering some 129 track miles. The work involves the inspection, adjustment and proper maintenance of interlockings, automatic block and highway crossing signals on this territory.
At the time in question, the grievor's regular hours were from 0800 to 1630, Monday to Friday, with thirty minutes for lunch. As well, the grievor was subject to call, pursuant to article 7 of the collective agreement, on his off-duty hours on all work days and on alternate weekends. At all times material to this case, the grievor was so subject to call.
On the day in question, following the completion of his work at 1630, the grievor, together with his Helper, a Mr. Hudyma, drove in the company truck (which was used for access to most work sites, and for which the grievor was responsible), to a hotel, where thee two employees planned to stop for a couple of beers. While it was quite in order for the grievor to take the company vehicle home, it was not proper for him to be drinking at a time when he would be operating a company vehicle.
The grievor, by his own statement, consumed some six or seven bottles of beer at the hotel, between the time of his arrival and about 1830, when the two men left. When they left, it was arranged that Mr. Hudyma would drive the grievor (who lived closer), home first, and would then drive himself home, picking the grievor up in the morning on the way to work. There was nothing improper in this arrangement, in itself. It was, however, wrong for the grievor to allow Mr. Hudyma to operate the company vehicle at that time, since the grievor knew that Mr. Hudyma had consumed a considerable amount of beer in a relatively short time. He ought to have known that Mr. Hudyma's facilities would be impaired, as indeed they were even though, in the grievor's view, Mr. Hudyma was "in good shape". He was not, as events proved. Mr. Hudyma, after leaving the grievor at his home, was involved in an accident, and was charged (and subsequently convicted) with impaired driving and assaulting a police officer.
While the grievor was not responsible for Mr. Hudyma's conduct after he left him, it was wrong of him to have allowed Mr. Hudyma to drive the company, vehicle at all, on leaving the hotel. It would also, it may be noted, have been wrong for the grievor to have driven the vehicle at that time, in view of the amount of beer he had consumed over a relatively short period. The grievor was the Signal Maintainer, and Mr. Hudyma was his helper. The grievor was responsible for the company vehicle. To have allowed Mr. Hudyma to operate the vehicle when he ought to have known that Mr. Hudyma was -or would very shortly be - in an impaired condition, was wrong, and the grievor was properly subject to discipline on that account.
In the case of Mr. Hudyma, heard on the same day as this case, I have held that there was just cause for the discharge of Mr. Hudyma. There are, in my view, substantial differences between that case and this. The grievor did not in fact operate the company, vehicle while impaired, although I would agree that he was guilty of the very similar offence of allowing an impaired employee to operate the vehicle. He was not, however, in any way involved in the accident or in the incident which led to the charge of assault on a police officer, and he cannot, in my view, be said to bear the
responsibility for those events, although he does bear the
responsibility of having allowed Mr. Hudyma to drive the company vehicle in the first place.
The grievor is an employee of some twenty-one years' service, and has a clear record. Although, in my view, he committed a very serious offence, and while there was just cause for the imposition of substantial discipline, I do not consider that there was just cause view, a for the discharge of the grievor. In my substantial period of suspension would have been justified, and in the circumstances of this case I would substitute such a penalty rather than an assessment of demerit marks.
For the foregoing reasons it is my award that the discharge of the grievor be set aside, and that he be reinstated in employment forthwith, without loss of seniority or other benefits, save only that any compensation for loss of earnings shall be for the period from October 1, 1984, until the date of his actual reinstatement.
DATED AT TORONTO, this 5th day of November, 1984.