AH – 401
IN THE MATTER OF AN ARBITRATION
CP EXPRESS & TRANSPORT
TRANSPORTATION COMMUNICATIONS UNION
GRIEVANCE RE J. KELLY - TWENTY DEMERITS FOR ALLEGED FALSIFICATION OF RUN SHEET; AND TEN DEMERITS FOR ALLEGED LOITERING
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.
JOINT STATEMENT OF ISSUE:
Employee John Kelly, Toronto, Ontario, was assessed 20 demerit marks for alleged falsification of his run sheet and 10 demerit marks for alleged loitering which allegedly occurred on February 13, 1989.
The Union states that on the day in question, the grievor did not have a watch that was in proper working order and, therefore, he estimated his times as he was instructed to do and as other employees do. Indeed, he did not sign his 266.
With respect to loitering, the Union states that the grievor was either at coffee or was performing work as required.
Further, the Union states that the Company attempted to entrap the grievor and at no time spoke to him about his conduct.
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 that there was just cause for the demerits.
In the Arbitrator’s view the material filed does not establish, on the balance of probabilities, that the grievor was guilty of “loitering” as alleged by the Company. While there are discrepancies in the times registered on his run sheet, these are explained to the Arbitrator’s satisfaction in his account of the delays that he encountered, as well as the times which he took for meal and coffee breaks. I must therefore find that the Company did not have just cause for the imposition of ten demerits for loitering.
The same conclusion is not merited as regards the allegation that Mr. Kelly entered false information on his run sheet. By his own admission, he did not have an accurate watch on the day in question, and made rough estimates of times at which he arrived and departed locations, which he logged onto his run sheet. As a result, in some instances, there was a discrepancy as great as 19 minutes. I am satisfied, on the whole, that the grievor did not deliberately attempt to falsify these records. With respect to one delay of some thirty minutes, I accept his explanation that he was delayed by the customer, who told him to wait, in circumstances which might not have been observed by the Company’s supervisors who were following him.
What, then, is the appropriate measure of discipline? There can be little doubt that the grievor was under an obligation to his employer to maintain accurate records for the purposes of his run sheet. Although no fraud was intended, he plainly failed to do so. Having regard to the long service of Mr. Kelly and his prior positive discipline record, I am satisfied that ten demerits would be within the range of appropriate discipline. The grievance is therefore allowed, in part. The ten demerits assessed against the grievor for loitering shall be removed from his record. The twenty demerits for logging incorrect information on his run sheet shall be reduced to ten demerits. I remain seized of this matter.
DATED at Toronto this 6th day of December, 1989.
(signed) MICHEL G. PICHER