AH - 190












(the “Company”)








(the “Union”)








SOLE ARBITRATOR:     J.F.W. Weatherill



There appeared on behalf of the Company:

                                H.B. Butterworth

                                R.A. Colquhoun

                                J.H. Blotsky



And on behalf of the Union:

                                J.E. Platt

                                K.E. Peters



A hearing in this matter was held at Toronto, Ontario, on February 19, 1986.



                The grievor, who was hired by a related predecessor employer in august, 1948, was discharged by the company on May 23, 1985, for consumption of alcohol while on duty on May 7, 1985.  The issue is whether or not the grievor was discharged for just cause.


                There is no substantial dispute as to the facts.  On May 7, 1985, the grievor, a Signal Maintainer Helper, was working as a Relieving Signal Maintainer on the day in question.  He went for lunch to a restaurant near the point at which he was working, and with his lunch had a beer and a shot of rye whiskey.  As he was returning to work, he was spoken to by a police officer (who was inquiring as to how he might purchase some railway ties), who noted that the grievor had been drinking, and who then advised some fellow employees that the grievor should not be driving his company vehicle.  That led to the discovery by supervision that the grievor had consumed alcohol with his lunch.


                It is not suggested that the grievor was intoxicated, nor that the grievor consumed alcohol on company property, or while in the actual course of his duties.  While those would have been more serious offenses, it is nevertheless the case, not denied by the grievor, that the grievor did consume alcohol while subject to duty.  That is a violation of rule “G” of the Uniform Code of Operating rules, as is acknowledged, and such violation is a serious offense.


                In his previous employment, with CP Telecommunications, the grievor had not been subject to the Uniform Code.  The grievor was, however, aware of the provisions of Rule “G”, and that it now applied to him.  In any event, even while in his previous employment the grievor had, in October, 1982, been warned that the employer could not tolerate him reporting for duty under the influence of alcohol, or using alcohol during working hours.


                That warning, however, appears to be the only disciplinary mark on the grievor’s record.  Form the material before me, this is not a case of an employee with a continuing drinking problem, or of an employee who has refused, or has not responded to treatment for any alcoholic condition.  It is a case of a very long-service employee, whose record shows one warning over two years before for a similar offense, who committed a rule “G” infraction by taking two drinks during his lunch hour.  The offense is, I think, somewhat compounded by the fact that the grievor, who has a diabetic condition controlled by medication, had been advised by his doctor not to take alcohol.


                As I have noted, any rule “G” infraction is a serious offense.  The importance of proper installation and maintenance of the railway’s signal system need scarcely be underlined, and rule “G” must be respected as much by signal employees as by others, whether or not the particular work on which they may be engaged at any given time is particularly sensitive.


                Clearly, then , the offense was serious, and some severe disciplinary measure was called for.  In this particular case, however, particularly in view of the grievor’s very lengthy service and virtually clear record, I do not consider that the penalty of discharge was justified.  In the Thompson case between the same parties (April 25, 1983), rule “G” had been more flagrantly violated, but while it was held that while there was, as a general matter, just cause for discharge in that case, the penalty was set aside so as to allow the grievor to apply for a disability pension.


                I do not disagree with what was said in C.R.O.A. cases nos. 1385 and 1386, nor with the awards in the Consolidated Truck Lines, 3 L.A.C. 964 (Hanrahan) or Brewer’s Warehousing 14 L.A.C. 57 9Croos) cases.  In the latter cases, discharge was upheld in cases of truck drivers who were impaired or under the influence of alcohol while driving company vehicles.  The present case differs somewhat in respect of the work being performed and in respect of the grievor’s condition.  In C.R.O.A. case no. 1385, the following appears:


Within weeks of a facility that most likely related to the deceased’s consumption of alcohol while subject to duty and notwithstanding the company’s efforts to impress upon employees the risks of a violation of rule “G”, these grievors admittedly in a deliberate fashion regularly packed their lunch boxes with alcohol for consumption in direct contravention of the employer’s concerns.  I have absolutely no sympathy for these grievors who have knowingly and irresponsibly flouted a rule that is designed to secure their safety as well as the safety of the colleagues with whom they must work.


                The circumstances of the instant case are, I think, clearly distinguishable from those of the above cases.  While, as I have said, I do not consider that discharge was justified in the circumstances of the present case, it is clear that the offense was serious and that a severe penalty is called for.  While I am of the view that the grievor should be reinstated, I do not consider that such reinstatement could reasonably be interpreted as somehow “licensing” violations of rule “G”, in view of the heavy penalty the grievor will have suffered.  In any event, each such case must be considered on its own merits.


                Having regard to all of the circumstances of the instant case, it is my award that the grievor be reinstated in employment forthwith, without loss of seniority, but without compensation for loss of earnings or for loss of other benefits during the period of his suspension.


DATED AT TORONTO, this 4th day of March, 1986.







J.F.W. Weatherill