AH – 407

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE J. EDWARDS

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 Bechtel – Vice General Chairman

John Crabb – Vice General Chairman

A hearing in this matter was held in Toronto on February 13, 1989.

AWARD

DISPUTE:

The suspension and assessment of 60 demerits for violation of General Rule 11A by employee James Edwards, Obico Terminal.

JOINT STATEMENT OF ISSUE:

Employee James Edwards was involved with two other employees in an incident on Saturday, August 11, 1987, where it is alleged the employees were in possession of or consuming intoxicants on Company property and Company time.

The Union contends that any drinking that took place was not on Company time and was in a parking lot and, therefore, the employee was not subject to discipline.

The Union also contends that there was unequal treatment with respect to the discipline imposed on the three employees and further that the penalty was too severe.

The Company contends that inasmuch as the offence was a dismissable offence, the penalty was proper.

The relief requested is for the removal of the 60 demerits from Mr. Edwards’ record and for compensation or any other relief considered appropriate.

The material establishes beyond dispute that the grievor did consume beer during his lunch break in the Company’s parking lot. The Arbitrator is satisfied that the action in question constituted a violation of General Rule 11A. Article 11 of that rule clearly states that the possession and consumption of intoxicants while on duty or on the Company’s property is a dismissable offence.

The material establishes that two other employees were disciplined along with the grievor, each of them receiving 60 demerits. In the case of one employee, however, by inadvertent error, the Company failed to process his discipline in a timely manner, as a result of which the discipline against him was voided. The Union argues, in part, that the discipline now assessed against the grievor, which was progressed in a timely manner, is discriminatory and unfair. The Arbitrator cannot accept that submission. The material reveals that the Company in fact treated the severity of the conduct of all three grievors equally. It is not disputed that by the inadvertent failure of a supervisory officer, who was apparently absent for a period of time, the Company failed to notify one of the employees of the discipline against him in a timely fashion, as required by the collective agreement. The fact that one employee has had the benefit of an administrative error on the part of the Company may disclose a windfall advantage to that individual, but cannot be construed as amounting to invidious or discriminatory treatment of the employees whose discipline was processed without error.

On the whole the Arbitrator must conclude that the discipline assessed against the grievor was within the range of appropriate employer response, was not determined in a discriminatory fashion and was imposed for just cause. For these reasons the grievance is dismissed.

DATED at Toronto this 22nd day of February, 1989.

(signed) MICHEL G. PICHER

ARBITRATOR