CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3973
CANADIAN PACIFIC RAILWAY COMPANY
(1) 30 demerits assessed for being absent
from the workstation without having a responsible employee monitor the
communications and control devices on desk DS-3
(2) 20 demerits assessed for irregularity in the issuance of TOP Number 5223 to Foreman Stephen Laurin during tour of duty on DS-3, June 6th, 2009.
(3) 29 demerits assessed for violation of
CN’s Drug and Alcohol Policy when attending an employee formal investigation on
JOINT STATEMENT OF ISSUE:
denies the Union’s contentions and declines the
(SGD.) S. BROWNLEE (SGD.) S. BLACKMORE
GENERAL CHAIRWOMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
R. Bateman –
Sr. Manager, Labour Relations,
P. Lavoie –
Officer, RTC Operations,
There appeared on behalf of the
S. Brownlee – General Chairwoman, Stony Plain
M. Boucher –
K. D. Shanahan –
AWARD OF THE ARBITRATOR
The instant arbitration concerns three separate heads of discipline and their related grievances on behalf of Rail Traffic Controller P. Petix.
incident concerns the assessment of thirty demerits for the grievor having
absented himself from his work station, causing delay to a train at
The record reveals that persons in attendance at the investigation smelled alcohol on the grievor’s breath. When he agreed to undertake a breathalyser test he registered at 0.023% BAC. He registered that reading at 12:39 p.m., and had then been on the Company premises for approximately one and a half to two hours. Based on a rough estimate that his BAC count would have been reduced by approximately 0.01% for each passing hour, the Company deduced that at the time he arrived for the disciplinary investigation the grievor would have had, in all probability, a BAC in excess of 0.04%, the permissible cut-off level found in the Company’s Drug and Alcohol Policy. In the result, it concluded that the grievor violated that policy by being on Company premises with an excessive amount of alcohol in his system.
The Arbitrator is satisfied that all three incidents were deserving of discipline. I accept the Company’s analysis of the grievor’s alcohol levels. Given the overall disciplinary record amassed by Mr. Petix I am not inclined to disagree that the levels of demerits assessed by the Company would have been justifiable. However, on a larger view of his employment history, I consider that there are mitigating factors to be taken into account.
Mr. Petix is an employee of twenty-seven years’ service. While he did suffer a discharge in 1997 by reason of a violation of CROR rule G, he was then reinstated into employment subject to the conditions of an ongoing employment contract. Over the years, from 1997 to 2009, Mr. Petix generally registered relatively minor discipline in the form of written reprimands or demerits at the level of ten or fifteen points, generally for procedural errors. In effect, seventy of the one hundred cumulative demerit points which led to his discharge were assessed in May and June of 2009, in relation to the three incidents which are here under review. On the whole, given the length of the grievor’s service and its relative quality at least for a substantial period of years prior to 2009, I am not persuaded that Mr. Petix is beyond rehabilitation. It appears to the Arbitrator that he can be reinstated into employment, subject to conditions fashioned to protect the Company’s interests.
The grievance is therefore allowed, in part. The Arbitrator directs that Mr. Petix be reinstated into his employment forthwith, without loss of seniority and without compensation for any wages or benefits lost. Mr. Petix’ reinstatement shall be conditional on his accepting to honour the terms of a reinstatement agreement which shall include his undertaking to abstain from the consumption of alcohol and drugs for not less than two years, and in that regard to be subject to periodic random testing for drug or alcohol consumption, to be administered in a non-abusive fashion. Any failure on the part of the grievor to honour the conditions of his reinstatement shall be grounds for the termination of his employment.