AH - 189

 

 

 

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN:

 

 

CANADIAN PACIFIC LIMITED

 

(the “Company”)

 

 

AND

 

 

CANADIAN SIGNAL AND COMMUNICATIONS UNION

 

(the “Union”)

 

 

IN THE MATTER OF THE GRIEVANCE OF G.T. MARTIN

 

 

 

 

SOLE ARBITRATOR:     J.F.W. Weatherill

 

 

There appeared on behalf of the Company:

                                J.D. Champion

                                R.A. Colquhoun

 

 

And on behalf of the Union:

                                R.E. McCaughan

                                A.G. Cunningham

 

 

A hearing in this matter was held at Montreal, Quebec, on the 12th day of February, 1985.

AWARD

 

                The Joint Statement of Fact and Issue in this matter is as follows:

 

JOINT STATEMENT OF FACT

 

1.             Signal Helper G.T. Martin was dismissed from Company service on July 25 1984, for charging to CP Rail a room used for personal reasons at the Majestic Motel, Ignace, Ontario on June 5 1984.

 

JOINT STATEMENT OF ISSUE

 

1.             The Union contends that Mr. Martin’s dismissal for charging a room to CP rail is excessive and unwarranted.

 

2.             The Company contends that the discipline assessed Mr. Martin is just and warranted.

 

 

                The grievor, whose service with the company began on June 3 1983, was working at the material times as a Signal Helper, assigned to the “Undercutting Gang” on the Kaministiquia subdivision.  He worked with two other Signal Helpers.

 

                The Maintenance of Way “Undercutting Gang” had moved to the Kaministiquia subdivision on May 19, 1984, and had commenced work on May 21.  The gang consisted of some 60 Maintenance of Way employees who were accommodated in boarding cars stationed at Niblock, in the area of the work being done.

 

                The grievor and the other two Signal Helpers reported for work with the Undercutting Gang on May 21.  They were at first authorized to take motel accommodation at Ignace, since it was not known what space  was available in the boarding cars.  Ignace is approximately 52 miles form Niblock.

 

                It was soon concluded that it was costly and impractical to have the Signal Helpers accommodated at such distance from the work site.  Thus, on Friday, May 26, the grievor and the other Signal Helpers were instructed that when they returned to work on Monday May 28, they would no longer be accommodated in a motel at Ignace, but rather would stay in the company on-track boarding cars at Niblock.

 

                The grievor and his colleagues objected to that sort of accommodation, and indicated their preference for staying at a motel.  They stated that more acceptable accommodation had been provided for them at other locations.  Their supervisor advised that they would be expected to stay in the accommodation provided, as long as it met the requirements of the collective agreement.  The supervisor did, however indicate that he would look into the situation, and would obtain a separate car for the signal crew and their supplies, if he could.  On the afternoon of May 25, the supervisor, along with the Signal Maintainer and Trainmaster inspected the boarding cars in question and found them to be clean and tidy, and to constitute suitable accommodation.  Following that inspection, the supervisor spoke to the grievor and advised him that he and his colleagues would be expected to stay in the boarding cars upon their return from Winnipeg at the end of the weekend.  The grievor said that he would try it, but that he might send in a grievance.  The supervisor replied that that was his prerogative.

 

                It would appear that the grievor and the others did stay in the boarding cars during the week of May 28, with the exception of the night of May 30 when they stayed in a motel at their own expense.  It is clear that they were unhappy with the boarding car accommodation provided.  The grievor’s evidence is that while the cars were cleaned daily, they became dirty very quickly after the work gang arrived at the end of the day.  While there was no grievance filed complaints were made, and the company did in fact provide a separate boarding car for the signal crew, about the middle of June.

 

                On hearing that the signal crew had gone to a motel on the night of May 30, their supervisor advised them that whenever such arrangements were made without proper company authorization, they would be personally responsible for the cost of the accommodation.  There is no doubt that the grievor understood these instructions.

 

                The following week, on returning from Winnipeg on Sunday, June 3, the grievor and the others stayed at a motel in Ignace, proceeding on to the work site on the Monday morning.  It would appear that the bill for that accommodation was sent to the company and was paid for.  No issue as to that has been raised in this case.  On the night of Tuesday, June 5, however, the grievor and one of his colleagues drove into Ignace to cash a cheque and to stay the night “because we couldn’t put up with the conditions”.  The third employee had been given an early assignment the following morning.  The grievor and the other employee checked into a motel at Ignace, indicating that the account was to be sent to the company.  There is some suggestion that the grievor took money from his colleague as representing his share of the cost of the room, but the grievor states that the money was given as the other’s share of the gasoline expenses.

 

                In any event the case is that the two employees stayed in the motel, knowing that they had no prior authorization to do so, and knowing that the account was to be sent to the company.

 

                Following receipt by the company of the motel’s invoice, an investigation was held on July 3, 1984, a statement having been taken from the other employee on June 26.  At that time the grievor had a clear record.  Indeed, it would appear that the grievor’s record was good, he having made steady progress form Signal Helper “C” to Signal Helper “A” and having been appointed earlier in 1984 to act as Temporary Signal Foreman.

 

                In his statement the grievor acknowledges (and it is quite clear from the motel registration form) having arranged to have the motel bill sent to the company.  He also acknowledged that that was wrong, and that he ought to have paid the bill and then submitted it to the company in the hope of payment.  Indeed, on June 8, the grievor had asked his supervisor if he might charge certain other accommodation to the company and subsequently repay it, and was refused.  The grievor did not at that time give and indication of what he had done on June 5.

 

                It is the company’s position that what the grievor did was fraudulent.  In my view, having regard to all of the material before me in this particular case, it was not.  It was indeed contrary to explicit instructions which the grievor had been given, and was insubordinate.  It may be that given the grievor’s view of the quality of the accommodations provided, it was understandable, although the evidence does not permit the conclusion that it was justified.  Such considerations, however, go to the character of the insubordination.  There was not, in my view, an attempt to steal from the company as there was, for example, in C.R.O.A. case no.461, where an employee submitted a claim for expenses not in fact incurred; in case no. 899, where an employee submitted two claims for the same work; in the Audette case, where an employee gave false information as to the time and place an accident occurred, in order to obtain compensation; or in C.R.O.A. case 1298, where an employee forged his foreman’s signature in order to obtain free travel.

 

                In the instant case there was nothing surreptitious about what the grievor did.  While the claim which he was asserting was in the circumstances, not justified, it was a claim in respect of accommodation actually obtained and for which the grievor appears to have thought he had some justification.  There was no false statement nor any attempt to cover up.  There was, clearly, the advancement of a claim in circumstances in which the grievor knew it was not proper to advance a claim.  He had been instructed not to advance such a claim, and yet he did so.  This while not fraud was insubordination.

 

                The grievor was, accordingly, guilty of a serious offense, as the union and the grievor himself acknowledge.  On July 19, 1984, the grievor was advised that the penalty for that offense was a discharge.  At that time, the grievor had been assessed five demerits, on July 6, for being absent from duty on June 18 without proper authorization.  He was also, on July 19, assessed thirty demerits for an act of insubordination alleged to have occurred on June 20.  These latter items, however, would not constitute part of a “prior record” which would bear on the assessment of the penalty in respect of the incident now before me, which occurred on June 5.  It would appear that these matters are, as well, the subject of grievance not yet resolved.  The instant case, I think, is to be concerned as the first disciplinary measure taken with respect to the grievor.

 

                Having regard to the whole context in which the grievor’s misconduct occurred, it is my view that while the grievor was clearly subject to discipline on grounds of insubordination he was not liable to discharge for attempted fraud, as he was not in fact guilty of that offense.  Insubordination is itself a serious offense and may call for a substantial penalty.  Having regard to all of the circumstances, however, it is my view that in this case the penalty imposed would properly have been one of twenty demerits.

 

                It is accordingly my award that the discharge of the grievor be set aside and that a penalty of twenty demerits, to be effective as of the date of the grievor’s reinstatement in employment, be substituted therefor.  The grievor is entitled to be reinstated in employment without loss of seniority or other benefits, with compensation for loss of regular earnings.  Reinstatement shall, however, be conditional on the grievor’s paying the motel account question.

 

DATED AT TORONTO, this 25th day of February, 1985.

 

 

 

 

 

_____________________________

J.F.W. Weatherill

Arbitrator