AH - 192












(the “Company”)








(the “Union”)








SOLE ARBITRATOR:     J.F.W. Weatherill



There appeared on behalf of the Company:





And on behalf of the Union:




A hearing in this matter was held at Montreal on October 15, 1986.



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




The Company assessed the following discipline to Mr. Jardine on march 14, 1986 by way of separate Forms 104.


(1)           10 demerits for “taking company vehicle home on February 17, 1986 which is contrary to instructions issued on September 21, 1983.”


(2)           10 demerits for “falsifying details of automobile accident to your immediate supervisor on February 18, 1986.”


(3)           5 demerits for “failure to exercise proper judgment of road conditions resulting in automobile accident with Company vehicle on February 18, 1986, violations of Item 6(d), Safety and Accident Prevention code Form 300.1.”


(4)           10 demerits for “failure to respond to an emergency call on February 21, 1986 on your assigned section within an acceptable time resulting in unnecessary train delays.”


(5)           Dismissal for “accumulation of 60 demerits.”




The Union contends that the discipline assessed was excessive and unwarranted and should be removed from Mr. Jardine’s record.  The Union further contends that the grievor was unjustly dismissed without proper cause on March 14, 1986.


The Company denies the union’s contentions.



                As to the first matter referred to, the fact is that the grievor did take a company vehicle home on occasion in question, knowing that it was contrary to regulations for him to do so.  He did so because it was convenient.  That is simply not a sufficient excuse for a conscious breach of regulations.  While I would not consider that the assessment of more that 10 demerits would be justified for a first offense of this nature, I am unable to say that 10 demerits went beyond the range of reasonable disciplinary responses to the situation.  The grievance in this respect is therefore dismissed.


                The second matter, in my view, is inextricably related to the first.  The grievor lied to his supervisor as to his having taken the company vehicle home.  He did this when he called to report an accident in which he had been involved while driving the vehicle.  This matter had no significant relationship to the accident itself., but was simply a false denial of having taken the vehicle home.  It ought not to be described as a false report of the accident itself, but was simply a false denial of having taken the vehicle home.  It ought not to be described as a false report of the accident.  In my view, while it was of course wrong for the grievor to lie to his supervisor, the offense was really an aspect of the improper taking of the vehicle, and ought not to be treated as a separate head of discipline.  There was not, I consider, just cause for the imposition of discipline as a distinct matter, although this aspect of it would support the reasonableness of the assessment of 10 demerits in the first place.  There was not, I find, just cause for the imposition of 10 further demerits, and the grievance in this aspect is allowed.


                As to the third matter, the fact is that the grievor did lose control of his vehicle, apparently due to the icy condition of the road.  This would also, of course, be due to the fact that the grievor’s vehicle was moving at a certain speed.  However slow that speed might have been, it was clearly too fast for the existing conditions, as the result proved.  It does not follow, however, that the grievor/s miscalculation of the proper speed constituted an offense for which discipline ought to be imposed.  The grievor’s statement (and it is to be considered that at the investigation he made and honest statement), is that he was proceeding very slowly.  There were no charges laid.  On all of the material before me, I do not consider that it has been established that the grievor’s driving of the vehicle was so careless as to amount to disciplinable misconduct.  There was not, I find, just cause for the imposition of discipline in this regard, and the grievance in this respect is accordingly allowed.


                As to the fourth matter, the grievor, who was on standby and entitled to be paid in accordance with the collective agreement for that, was called at 0135 hours on February 21, 1986.  A message was left on his bellboy, but he did not respond to it.  At 0205 (the grievor stated that it was at 0230, but I do not consider his account reliable), the dispatcher called again, and on that occasion the grievor answered.  He was informed that the top aspect of a signal had burned out.  Until this was corrected, trains would be delayed.  The grievor replied that he would take care of it.


                At 0345, having been informed that the light on the signal was still out, the dispatcher called the grievor again.  The grievor, according to his own statement, “was re-awoken” at that time.  Asked if he was going to respond to the call, “I said yes and got out of bed”.  In fact, the grievor did not change the bulb until 0605 hours, after another employee had been called (at 0453), when no action appeared to be forthcoming from the grievor.


                Clearly, when an employee on standby receives an emergency call, accepts it, and then simply rolls over and goes back to sleep, he cannot be said to be responding within a reasonable period of time.  This was very clearly a disciplinable offense, and there was just cause for the assessment of demerits.  In my view, the assessment of ten demerits was well within the range of appropriate disciplinary responses to such an offense.  The grievance in this respect is accordingly dismissed.


                In the result, of the 35 demerits in total assessed against the grievor in the circumstances noted, 15 of these are set aside, and 20 are sustained.  The grievor'’ accumulated demerits at the time stood at 45.  The addition there to of 20 demerits gives the grievor a total of 65 demerits and leaves him subject to discharge under the Brown system.  It is , I think, noteworthy that among the offenses for which the grievor had previously been assessed discipline was sleeping on the job, for which he was assessed 20 demerits in May, 1985.  Having regard to the nature of the offenses (in particular the last dealt with), and the moderate penalty assessed, there is no good reason to grant any special relief from the normal effects of the disciplinary system.  There was, I find, just cause for the discharge of the grievor.  The grievor was properly considered as having accumulated over 60 demerits, and the grievance is accordingly dismissed.


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









J.F.W. Weatherill