AH - 205

IN THE MATTER OF AN ARBITRATION

BETWEEN:

THE CANADIAN TELECOMMUNICATIONS UNION,

DIVISION NO 1 OF THE UNITED TELEGRAPH WORKERS

(the ”Union”)

AND

CANADIAN PACIFIC LIMITED

(TELECOMMUNICATIONS DEPARTMENT)

(the “Company”)

IN THE MATTER OF THE GRIEVANCE OF  M. J. L. Guthrie

Sole Arbitrator:            J. F. W. Weatherill

There appeared on behalf of the Company:

                                                                D. W. Flicker

There appeared on behalf of the Union:

                                                                P. Cavaluzzo

A hearing in this matter was held at Toronto, Ontario, on the 7^th day of July, 1978.

Award

In this grievance, dated July 18, 1977, the grievor protests the imposition of 20 demerit marks assessed against him on July 15, as a result of an incident which occurred on June 28, 1977, when the grievor is alleged to have left work early without permission.

As a consequence of this assessment of demerit marks, the grievor’s record then stood at 60 demerits and he was, in accordance with the company’s policy in that respect, discharged. While the grievor’s employment is thus at stake in this case, the particular issue to be determined is whether he was subject to any discipline at all in respect of the incident in question and , if so, whether the assessment of 20 demerits was appropriate.

The grievor, who was hired by the company in December, 1958, worked at the material times as a Microwave Technician. He worked, usually alone, at the Spencerville Microwave Station, a few miles north of Precott, Ontario. His regularly assigned hours of duty were from 8:00 a.m. to 12:00 noon, and from 1:00 p.m. to 5:00 p.m.. That is, he worked eight hours per days, with an entitlement to coffee breaks. He was responsible for maintaining a range of communication equipment, part of an essential link in a nationwide chain of communications. Information and instructions were passed to him by telephone from Montreal, and there was frequent communication during the day with the Montreal office or with other stations in the chain controlled from Montreal. Although it was not the grievor’s practice to advise the office when he left the station for his regular lunch break, he knew that he was to advise the office of  other occasions when he left during the day (as he might do to work, for example, at some other, perhaps unmanned, station, or for some other reason), and he knew - it having been brought specifically to his attention - that he must have the supervisor’s permission to leave early.

On June 28, 1977, the grievor left the Spencerville station at 3:55p.m.., or shortly thereafter. He advised the Montreal office that he was leaving at that time, but he did not obtain the permission of a supervisor.

The circumstances in which this occurred involve events which occurred on June 27 and 28 at the Spencerville station. Those events are as follows. On June 27 a Power Plant Technician, Mr. D. McLagan, was assigned to repair a no-break unit located in the engine room at the Spencerville station. There are two such units at the station , and they are its power supply. Each unit includes a generator, normally fed by the Hydro system. The unit is designed so that in the event of Hydro failure, an engine starts, to turn the generator and ensure the continued operation of the station. On June 27, Mr. McLagan’s job was to change a bearing on one of the no-break units. For this, he required an assistant. Usually another Power Plant Technician acts as assistant for such work. On June 27, however, when Mr. McLagan requested an assistant he was advised that none was available and that the grievor would have to act in that capacity. The supervisor was advised that the grievor would have to change his clothes to do that work, and the supervisor indicated that he could easily do that.

The grievor, it seems, did not change his clothes at once, as it would appear that no much assistance was required in the early stages of Mr. McLagan’s job, which effectively began that afternoon. The work had to be continued that evening, on overtime. At about 5:00 p.m. the two employees left for supper, the grievor heading for his home and the Mr. McLagan planning to call on a friend or perhaps proceed to his own home. As it happened, Mr. McLagan had an accident, putting his car (a company vehicle) into a ditch when he swerved to avoid another car which was coming over the crest of a hill on the wrong side. The police were called, and a report prepared by them. Mr. McLagan was unable to prepare a completed accident report at the time because the other party to the accident did not have the necessary insurance papers. Whether or not Mr. McLagan should have substantially prepared his accident report at the time is not material to the issue before me.

After the accident the grievor (whose car had been a short distance behind Mr. McLagan’s), took Mr. McLagan to his home for dinner. The grievor changed his clothes, and after supper the two men returned to the Spencerville station where they worked from 7:30 until approximately 10:30 p.m..

The following day, June 28, the grievor reported for wok at 8:00 a.m.. Mr. McLagan arrived at about 10:00, having gone to Smith’s Falls to investigate the damage to his car. Mr. McLagan again called the supervisor, both to report in and explain his delay, and to request assistance with the work he had to do. Again, he was advised to use the grievor as an assistant. Again, there was a question of the grievor’s being properly dressed for the work. As well, the supervisor requested Mr. McLagan to get a copy of the policy report relating to the accident of the previous day.

For a time, the grievor carried on with his regular work while Mr. McLagan did what he could with the repair to the no-break. At about 11:30 a.m. it was clear that he needed assistance, so it was decided that the two men would leave then and go to the grievor’s house where he would change his clothes, then proceed to the police station in Prescott to get the accident report, then have lunch and return to work. They advised the Montreal office that they were leaving for this purpose.

They went to the grievor’s home, and he changed his clothes. They then proceeded (the grievor driving Mr. McLagan in the grievor’s company vehicle) to the police station. There the grievor simply waited (he looked at mug shots) while Mr. McLagan dealt with the police clerk with respect to the accident report. This took longer than the men had expected, and when they finally left the police station they decided to return directly to Spencerville, where they hoped to complete their work in about an hour and then have lunch. They arrived back at Spencerville at 1:05 p.m.. They called Montreal to report back in, but, according to their evidence got no answer.

The two men then went to the engine room to continue work on the no-break. They were interrupted by a bell from the express wire on various occasions, and the grievor muted the bell so it would not disturb them. As a result, they did not hear Montreal calling on several occasions. The Montreal office, getting no reply, called the police who came to the station at about 2:00 p.m., where the men were working. They then called Montreal to explain the situation. The grievor gave the police report over the telephone.

The men continued work on the no-break, but it took longer than expected. The grievor’s evidence is that the no-break was running at about 3:15, and that they let it run until 3:30 when they called Montreal for clearance to put it back on line. They then went back to the machine and put it in service, and then returned to the radio room to advise Montreal that it was on line. The log from the Montreal office shoe the advice that the no-break was restored on load at 3:45, but does not show the earlier call. During the 3:45 call Mr. McLagan asked to speak to the supervisor, was told he was not available. The grievor then asked Mr. McLagan to call another\ station, Miller Hill, to see if they required his assistance in any tests (they had sought such earlier in the day). Mr. McLagan made that call, and was advised that the tests were no longer required. No further attempt was made to contact the supervisor, and the two men left at about 3:55 p.m..

Later that day it became apparent in the Montreal office that something had gone wrong at the Spencerville station. The first note to that effect appears in the log at 6:00 p.m.. Subsequently, Mr. McLagan was contacted, and went to the station to investigate. He discovered that the bearings had failed, causing the shaft to twist and the fly-wheel to be thrown off. The escaping fly wheel had caused considerable damage to equipment in the engine room. It was only by good luck that it had not damaged communications equipment and caused a break in communications.

The first question to be determined is, as I have noted, whether the grievor was subject to discipline for leaving work early without permission. In considering this question, I do not advert to the bearing failure which occurred later that day. No doubt when a piece of equipment has undergone the repairs which the no-break underwent that day, the repairmen should wait for a period of time to ensure that it is in fact operating properly. It would appear that in fact that was done. Whether or not Mr. McLagan carried out his work properly, or whether or not he should have stayed at the station a longer time to ensure himself that all was well are not questions which are before me in this case. The grievor was not a Power Plant Technician and had no general responsibility for the repair. He is not charged with any misconduct relating to the repair., but simply with leaving work early, without permission.

When the grievor left, he had in fact worked eight hours that day, as I find. It was necessary for him to go home to change his clothes in order to work assisting Mr. McLagan, and it was not improper for him to drive Mr. McLagan to the police station. It was expected that he would take lunch at that time, and the two men were to be working together. It was not the grievor’s fault that they were delayed at the police station. It seemed best simply to delay having lunch. While the grievor normally takes lunch from 12:00 - 1:00 p.m., he is not restricted to those hours.

When the grievor left, then, he had put in his eight hour’s work, and he was entitled to his lunch break. He and Mr. McLagan had tried to contact the supervisor, but were told he was not available. They advised the Montreal office that they were leaving, but made no attempt to ascertain when the supervisor would be available, or to seek any other authorization for leaving. In these circumstances, it would normally  be my view that there was no cause for discipline. In the grievor’s case, however, he had been very specifically warned that he should not leave early without permission. He should have been punctilious about that matter, and since he did in fact leave without permission, it is my view that he was subject to some discipline of that account.

Having regard to the circumstances surrounding the incident itself, I think is I obvious that at most a very minor form of discipline would be appropriate for such an offence. In most industries a written warning might be appropriate or, under a system of discipline such at that maintained by this company, an assessment of perhaps 5 demerit marks.

In assessing discipline, however, regard is to be had not only to the incident giving rise to the discipline, but also to the grievor’s disciplinary record. In the grievor’s case that record shoes that on October 5, 1976, the grievor was assessed 10 demerits and suspended for one and one-half days for refusal to work overtime. On November 10, 1976, he was assessed 15 demerits for claiming overtime not worked. Thus, at the time of the incident in question, the grievor had accumulated 40 demerits. He was, I think, aware of the policy that employees are subject to discharge when 60 demerits are accumulated.

This record demonstrates an irresponsible attitude and behavior on the grievor’s part. It would justify assessing a larger penalty in respect of the offence in question than would otherwise be the case, to justify a heavier penalty than had been imposed previously for more serious offences. In the circumstances, and having regard to my jurisdiction under the Canada Labour Code, it is my view that an assessment of 10 demerits would have been open to the company, but that any more severe penalty would not be justified. It is noteworthy that the evidence is that the company, is assessing the penalty took into consideration conduct for which the grievor had been disciplined, and to which reference could not properly be made at the hearing.

The result, therefore, is that the demerits imposed on the grievor are reduced from 20 to 10. It follows from this that the grievor was not subject to discharge, and that his discharge must be set aside. It is my award that the discipline assessed appear on the grievor’s record as 10 demerits, and that he be reinstated in employment, without a loss of seniority and with compensation for loss of earnings and other benefits. In the event the parties are unable to agree as to the amount of compensation payable to the grievor pursuant to this award, I remain seized of the matter for the purpose of determining that question and completing the award.

DATED at Toronto, this 10^th day of July, 1978.

Weatherill