AH – 384




(the “Company”)



(the “Union”)




SOLE ARBITRATOR:                Michel G. Picher



There appeared on behalf of the Company:

M. D. Failes                              - Counsel, Toronto

B. F. Weinert                             - Director, Labour Relations, Toronto

D. Tarsay                                  - Personnel Manager, Obico Terminal

R. Byczyk                                 - Garage Supervisor, Obico Terminal


And on behalf of the Union:

D. Ellickson                               - Counsel

A. Dubois                                  - Divisional Vice-President, Quebec



A hearing in this matter was held in Montreal on Wednesday, 10 August 1994.



The grievor was assessed twenty demerits for having failed to properly conduct an annual safety inspection on one of the Company’s trailers on February 21, 1994. It is not disputed that the trailer in question was found to be defective in a number of particulars following a trip to Ottawa, on February 22, 1994. Visual inspection of the equipment revealed that two front leaf springs contained cracks, and that a boggie rail of the frame of the trailer was also cracked. Further inspection disclosed that a third spring was also cracked.

The Arbitrator accepts the submission of the Company that the defects in question were, by their rusted and coated appearance, not fresh when they were discovered in Ottawa on February 22, 1994. In the result, I am satisfied, on the balance of probabilities, that Mr. Gumiran did fail to properly inspect the underside of the trailer. The only issue of substance, therefore, is the appropriate measure of discipline.

The evidence discloses that Mr. Gumiran had fifty demerits on his disciplinary record at the time of the incident. He is fifty years of age and has some sixteen years’ service with the Company. It may be noted that the fifty demerits outstanding on his record arose out of a single incident of insubordination in January of 1994. Mr. Gumiran’s record, insofar as the Arbitrator can discern, is devoid of any prior discipline for failure to properly carry out work assigned to him. While it is true that his record does contain an unfortunate record of incidents relating to control of his temper, it is noteworthy that Mr. Gumiran’s record remained discipline free for a period of some four and one-half years prior to 1994. In the result, therefore, it is not unfair to view him as an employee of relatively long service with a positive record in the years immediately preceding January and February of 1994. In these circumstances, while I am satisfied that the Company had just cause to assess a serious degree of discipline against Mr. Gumiran, I must agree with counsel for the Union that this is an appropriate case for a substitution of penalty.

The Arbitrator therefore directs that the grievor be reinstated into his employment, without compensation or benefits, and without loss of seniority. The substitution of a suspension shall be in lieu of the demerits assessed against the grievor, and the twenty demerits assessed against Mr. Gumiran shall be expunged from his record. I retain jurisdiction in the event of any dispute respecting the interpretation or implementation of this award.


Dated at Montreal, this 11th day of August, 1994