CANADIAN RAILWAY OFFICE OF ARBITRATION

CASE NO. 1535

Heard at Montreal, Thursday, June 12, 1986

Concerning

CANADIAN PACIFIC LIMITED

and

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES

DISPUTE:

Withdrawal of 30 demerit marks assessed to R. Dubé's disciplinary record and reinstatement of the employee with full restitution of lost salary and benefits since June 21, 1985.

JOINT STATEMENT OF ISSUE:

On June 3, 1985 R. Dubé was summoned to a disciplinary investigation to clarify the facts about his alleged receiving errors between May 10, 1985 and May 27, 1985. On June 21, 1985, 30 demerit marks were assessed to the employee's discipline record and he was informed of his dismissal from Company service account accumulation of demerit marks.

The Brotherhood contends that the disciplinary measure of 30 demerit marks was disproportionate with the alleged conduct and that the Employer did not establish the employee's responsibility.

The Brotherhood further contends that the severity of the sanctions was excessive because it was based on previously assessed discipline which is at present being contested. The resultant dismissal was based upon the inappropriate application of the "Brown System" of discipline.

Therefore the Brotherhood is requesting the withdrawal of the 30 demerit marks and the reinstatement of R. Dubé with full restitution of lost salary and benefits since June 21, 1985.

The Company maintains that the 30 demerit marks issued were appropriate based upon the results of the June 3, 1985 investigation coupled with R. Dubé's past disciplinary record for similar and other offences. The Company therefore denied the claim and request for reinstatement.

FOR THE BROTHERHOOD: FOR THE COMPANY:

(SGD.) J. Manchip (SGD.) R. L. BENNER

General Chairman Director of Materials

There appeared on behalf of the Company:

P. P. Macarone Supervisor of Training and Accident Prevention, Montreal

J. P. Deighan Assistant Director of Materials, Montreal

A. Bourassa General Stores Supervisor, Montreal

C. Denis Supervisor Materials, Montreal

P. E. Timpson Labour Relations Officer, Montreal

D. J. David Labour Relations Officer, Montreal

And on behalf of the Brotherhood:

D. J. Bujold General Chairman, Montreal

J. Manchip General Secretary & Treasurer, Montreal

J. Germain Vice-General Chairman, Montreal

C. Pinard Local Chairman

R. Locas Observer

R. Dubé Grievor

AWARD OF THE ARBITRATOR

Because of the similarity of each of the incidents contained in the parties' briefs with respect to the allegations of misconduct that culminated in the grievor's discharge I have decided to consolidate CROA 1532, 1534 and 1535.

The grievor has been employed with the Company since April 25, 1980. During this period the Company apparently encountered no serious difficulty with respect to the grievor's discharge of his duties and responsibilities. Indeed, his assessment report dated July 12, 1984 when the grievor was employed as a maintenance worker indicated a rather flattering description of his qualities.

The grievor's difficulties began when he was transferred to the position of Storeman at the Company's materials department, Angus Main Stores. In that capacity the grievor's principal duty was to verify the Company's inventory of products. That required him to engage in the "counting" procedure of determining the amount of a particular item against various purchase orders. There is no dispute that a high degree of precision is necessary in order to make the exercise a useful and viable means of inventory control.

It is not my intention to review the numerous incidents relating to the grievor's aberrations in discharging his Storeman's duties in a proper and professional manner. It suffices to say, that in light of the frequency and nature of the infractions committed by the grievor the Company had cause to resort to discipline for purposes of correcting the grievor's mistakes. And, in this regard there was no suggestion by the Trade Union that the grievor did not have the skill, ability or aptitude to perform the rather straightforward functions that were entailed in the performance of that job.

Moreover, the Company is seen to apply the policy of progressive discipline by assessing the grievor verbal warnings, ten, twenty and ultimately thirty demerit marks for the infractions committed by the grievor in each of the time frames encompassed by CROA 1532, 1534 and 1535. As a result I am satisfied that the Company established a prima facie case for removing the grievor from the Storeman's position.

The only issue raised before me (that appeared to be of any cogency) is whether the discharge penalty was the only recourse available to the Company in the circumstances.

In this regard it is important to note that the grievor was transferred to the Storeman's position in January, 1985. It appears from the material before me he immediately began to encounter difficulty in performing the storeman's functions. Indeed, after his first disciplinary investigation he requested a transfer out of the storeman's position to his former position or a position he could more adequately discharge. The Company did not accede to that request.

It appears that the grievor, although equipped with the skill and ability to perform the storeman's functions, simply could not adjust to that new position. From my appreciation of the job in this and other cases its duties entail routine work of a most boring and trivial nature. And, arising out of the nature of the work the grievor developed an attitudinal problem that the Company has successfully described in each of its briefs. Indeed, the Company could not be seen to condone the grievor's misconduct as the work, albeit without stimulation, represented a necessary exercise with respect to the operation of its enterprise.

But in that light was the grievor's discharge the only answer to the dilemma? It is to be noted that the grievor's record suggests no attitudinal problem until he was transferred to the stores position.

His attitudinal difficulties lasted a period of approximately six months while employed in the storeman's position. His last assessment report prior to his transfer suggests that the grievor, while employed in a position whose duties he can cope with, does not have an attitudinal problem in providing the Company with proper service.

I have considered the pronouncements made in Re United Automobile Workers, Local 35, and Libby McNeil and Libby of Canada Ltd. 23 LAC 287 (Palmer) as pertinent to this case. In that decision the Arbitrator wrote:

From their point of view, although she was a willing worker, her work was not satisfactory in that she made too many errors of a repetitive nature, even after having these pointed out to her.

Although she demurred on the point it seems that Ms. Kitchnaugh did not have the skills to carry out the duties assigned to her in a satisfactory manner.

The Company must, therefore, prove that it had "just cause, not only for removing the grievor from the job in question (as I have already found it had), but also for discharging her from their employment altogether.

In my opinion, therefore, the appropriate action in such a case as this is that the grievor be offered alternative employment in so far as such can be consistent with other provisions of the agreement.

In a like manner I am satisfied that the Company, in the grievor's circumstance, might have avoided the necessity for recourse to the discharge penalty had it made an effort to secure another job for the grievor to perform. His record of five years of service where he apparently had not caused the Company difficulty warranted that effort. And, indeed, had he been placed in another position, the probability of cause for securing his discharge would most likely have been eliminated.

As a result I direct the grievor's reinstatement to the employment of the Company without compensation for the period of his separation between the date of his discharge and the date of his reinstatement to the Company's employ. This period is to be treated as a suspension for the culminating incident.

Accordingly, in order to comply with the niceties of the Brown System, the 30 demerit marks for the grievor's last infraction is to be removed.

I shall remain seized.

(signed) DAVID H. KATES

ARBITRATOR