AH – 397

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE J. MCKENZIE – ALCOHOL CONSUMPTION

SOLE ARBITRATOR:                Michel G. Picher

There appeared on behalf of the Company:

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

And on behalf of the Union:

John Crabb                                - Vice General Chairman

John Bechtel                             - Vice General Chairman

Jack Boyce                               - General Chairman

Hal Tryhorn                                - Protective Chairman, Lodge 2302

A hearing in this matter was held in Toronto on November 27, 1989.

AWARD

JOINT STATEMENT OF ISSUE:

On December 22, 1988, employee J. McKenzie was suspended for allegedly being under the influence of intoxicants. An interview was convened on December 28, 1989 at 9:30 a.m. Following the interview, employee J. McKenzie was assessed 45 demerits and also lost 4 days’ pay.

The Union grieved the suspension and the 45 demerits, requesting the demerits be removed from his discipline record and reimbursement for all time lost due to the suspension.

The Company denied the Union’s request.

The Arbitrator is satisfied that Mr. McKenzie was deserving of discipline for drinking on the job on December 22, 1988. From the material before me there appears to be little doubt that he was substantially intoxicated. The only issue to be resolved is the appropriate measure of discipline in the circumstances.

At the arbitration hearing, and apparently in prior communications with the Union, the Company indicated that in its view a four day suspension, without the assessment of demerits, would be an acceptable level of discipline to be applied in the circumstances. The Union asserts that it is contrary to the intention of article 8 of the collective agreement to use the period of suspension for the purposes of punishment. Article 8.4 of the agreement provides as follows:

8.4          An employee may be held out of service for a period of not more than five (5) working days for infractions of a serious nature. If no cause for discipline or discharge exists, the employee shall be reimbursed for loss of pay.

The Arbitrator finds the Union’s argument more compelling than that of the Company. The Brown system of discipline if designed to avoid the unnecessary financial loss to the employee of gainful working time, while saving the employer from the disruption that might be caused by an employee’s absence. The primary thrust of the system is that rehabilitation is to be achieved by the progressive assessment of demerits, with the full knowledge that the accumulation of 60 demerits will result in an employee’s discharge.

Where the Brown system operates, however, it is sometimes necessary for an employer to hold an employee out of service pending an investigation of the facts which may be the basis of discipline. This is generally so where it is believed that maintaining an employee at work will cause an undue risk in respect of safety, theft or otherwise. The 5 day period contemplated in article 8.4 is, I think, implicitly intended for that purpose. The time limit plainly requires the Company to use due dispatch in its investigation. It does not, however, preclude it from continuing its investigation after an employee’s return to work or, subject to article 8.5, from assessing discipline thereafter.

In the instant case there is no practical reason disclosed for holding the grievor out of service for four days. The facts of his drinking at work were fully known to his supervisors and there was little need for an extensive investigation. There is, moreover, no suggestion that his drinking was uncontrolled and that he could not resume his normal duties, some six days later, on December 28th, his next scheduled tour of duty.

In the Arbitrator’s view, the Company acted in a manner inconsistent with article 8.4 by using it for purposes unrelated to the investigation and purely as a measure of punishment. In the alternative, if I am incorrect in my interpretation of article 8.4, I would exercise my discretion to find that the superimposing of four days’ suspension in addition to the 45 demerits is excessive in the circumstances.

For the foregoing reasons the grievance is allowed, in part. The four days’ suspension registered against the grievor shall be removed from his record, with full compensation for all wages and benefits lost. The 45 demerits assessed against him will, however, remain undisturbed, as they are in my view within the appropriate range of discipline for the infraction committed.

I retain jurisdiction in this matter.

DATED at Toronto this 6th day of December, 1989.

(signed) MICHEL G. PICHER

ARBITRATOR