AH – 419

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE E. HANNON

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

Brian F. Weinert – Representative

And on behalf of the Union:

John Bechtel – Representative

A hearing in this matter was held in Toronto on December 12, 1988.

AWARD

The parties filed the following joint statement of issue:

JOINT STATEMENT OF ISSUE:

On or about August 12, 1987, Vehicleman E. Hannon was assessed 60 demerit marks and an 8-day suspension without pay for alleged “failure to adhere to Rule 11F; deliberate falsification of time cards, trip reports or other Company documents.”

It is the position of the Union that there was no just cause for the imposition of any discipline, and even if the Arbitrator should find that there was some cause, the discipline assessed was far too severe under the circumstances.

The facts are not in dispute. It appears that it is not uncommon for employee to punch in well in advance of their starting time. In some cases they do so to be available for possible overtime work should it become available. In the grievor’s case. it appears that he occasionally punches in early to deal with union business.

The material reveals that on July 27, 28 & 29 the grievor was observed coming to work at a time when his time card had already been punched, in some cases as much as two hours earlier. There is, however, no evidence of any attempt on the part of the grievor to mislead the Company or to be paid for overtime on the basis of a falsified time claim. It is also common ground that in any case of overtime a supervisor must approve the employee’s claim by signing the back of his or her time card at the end of the shift. It is common ground that the grievor did not claim overtime on July 27, 28 or 29, 1987. It appears that on July 27 Mr. Hannon left work after punching in at approximately 1:35 p.m. in order to get his car fixed. He returned to the plant at approximately 3:30 p.m. and worked his regular shift, being paid eight hours. Similarly, on July 28 he punched in at 1:27 p.m., apparently coming to work early to check certain past grievances which related to a law suit. He left for a time to attend to personal business and return to begin work at the commencement of his shift, again making no claim for overtime.

The circumstances are slightly different, however, with respect to July 29, 1987. The grievor appeared for work on that date shortly after 4 p.m. It does not appear disputed that his card had been punched previously that afternoon by another employee, in clear violation of plant rules. While some dispute exists as to whether the other employee, Mr. Lashley, acted on Mr. Hannon’s instructions when he punched his time card, I am satisfied on the balance of probabilities that he did. It is not disputed that the grievor spoke to Mr. Lashley on the telephone prior to coming to work and that by Mr. Lashley’s own account, “I thought I heard ( Mr. Hannon ) ask me to punch him in at 1:30 …”.

While it is not always possible to know the whole truth, certain events tend to speak for themselves. In the Arbitrator’s view it is difficult to understand why, absent some instruction or indication from Mr. Hannon, Mr. Lashley would have proceeded to punch his co-worker’s time card, in clear violation of established rules. On the whole I am satisfied, on the balance of probabilities, that Mr. Lashley acted on the basis of some instruction or indication of approval from the grievor, and that the circumstances disclose a degree of culpability on Mr. Hannon’s part deserving of some discipline.

In summary, the Arbitrator is satisfied that there is no basis for discipline with respect of the events of July 27 and 28, 1987. The grievor did violate Company rules, however, by knowingly having his time card punched by Mr. Lashley on July 29, 1987. There was no actual theft of time or wages of any substance. That disregard of the Company’s rule was, in the circumstances, more technical than substantial and I can find no basis for the imposition of sixty demerit marks and the effective suspension of the grievor for five working days.

The material reveals that the grievor is an employee of fourteen years seniority whose disciplinary record stood at a positive thirty merits at the time of these incidents. In the Arbitrator’s view Mr. Hannon’s conduct is deserving of no more than the imposition of ten demerits. The grievor’s disciplinary record shall therefore be amended to reflect a balance of twenty merits to his credit as at the date of the discipline imposed, and he shall be compensated for all wages and benefits lost as a result of the five days for which he was suspended. I retain jurisdiction in the event of any dispute between the parties respecting the interpretation or implementation of this Award.

DATED this 16th day of December, 1988.

(signed) MICHEL G. PICHER

ARBITRATOR