AH – 400

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE J. KELLY
TEN DEMERITS ASSESSED FOR FAILURE TO KEEP REAR DOORS LOCKED

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

Brian F. Weinert – Manager, Labour Relations

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

STATEMENT OF ISSUE:

Employee John Kelly, Toronto, Ontario was assessed 10 demerit marks for alleged violation of Rule No. 2 – failing to keep rear doors locked at all times – which allegedly occurred on February 13, 1989.

The Union states that the grievor had told his supervisor on the previous shift that his lock was frozen and the supervisor told him it was okay for him to continue without his trailer padlocked. During the incident interview, Mr. Tarsay indicated the grievor’s explanation justified the incident.

The Union submits there was no just cause for the demerits and requests removal of the demerits. Alternatively, the demerits were excessive.

The Company maintains there was just cause for the demerits.

The facts in this case are neither controverted nor extensive. It is common ground that on February 13, 1989 the grievor did not maintain an operating padlock on the rear doors of his vehicle, as is generally required by the Company rules. According to Mr. Kelly’s account, however, the difficulty arose on the prior working day, when he notified his supervisor that his lock was frozen and therefore inoperable. According to his account, Supervisor Buster Broadhead told him that he could proceed to work, but that he should use a seal on the real doors of his trailer. It is also clear that on the following working day, February 13th, Mr. Kelly did not advise his supervisor that he continued to have a problem, or obtain any further permission to continue to use seals instead of a padlock, as in fact he did.

The importance of locking a vehicle carrying customers’ packages and goods is obvious. It is not suggested that Mr. Kelly did not appreciate the importance of the rule requiring his trailer to be locked at all times. While the Arbitrator accepts his account of obtaining permission to dispense with the padlock when it was frozen on the working day prior to the incident giving rise to discipline, there are reasons for concern over his failure to check further with his supervisor on the following working day, when the problem of his padlock freezing had apparently not corrected itself. I find it difficult to accept that the grievor believed, or had reason to believe, that he was given a general or indefinite dispensation from using a padlock on his vehicle. At a minimum he should have known to bring the matter to his supervisor’s attention again. This would have allowed the Company the opportunity to consider whether a new or different padlock should be provided. On the whole, however, in light of the incident of the prior working day, I am not satisfied that the grievor’s error is as serious as the Company believes, from the standpoint of the appropriate measure of discipline.

For the foregoing reasons, the Arbitrator finds that the Company had just cause to impose some discipline on Mr. Kelly. In my view, however, in all of the circumstances, and bearing in mind the length and quality of the grievor’s service, a written warning would have been sufficient. The Arbitrator therefore orders that the ten demerits be removed from the grievor’s record, and that a note of reprimand, in the terms to be decided by the Company, be substituted in its place. I retain jurisdiction in this matter.

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

(signed) MICHEL G. PICHER

ARBITRATOR