SHP - 85
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO
RE:GRIEVANCE OF A. TUCKER AND K. RITCHIE
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Montreal, on November 23, 1980.
AWARD OF THE ARBITRATOR
The Joint Statement of Fact and Joint Statement of Issue in this matter are as follows:
JOINT STATEMENT OF FACT
Carman Trainee, A.J. Tucker and Carman Apprentice, K. Ritchie were dismissed from Company service for their failure to perform the required inspection of cars on the Uthoff Turn Train as instructed by the supervisor and intentionally misinforming the supervisor of their whereabouts and work performed, Toronto Yard, April 28, 1980.
JOINT STATEMENT OF ISSUE
It is the position of the Union that the discipline assessed Messrs. Tucker and Ritchie was too severe.
It is the position of the Company that in all the circumstances, the dismissal of Messrs. Tucker and Ritchie was warranted.
The grievors had been instructed to carry out the outbound inspection on a train known as the Uhthoff Turn at 0510. The train was on track A9. It was a train of 44 cars and the grievors were to start their inspection at the west end of the train. They say that they were taken to that point by the inspection truck. The Inspection Control Supervisor, from his tower, did not see the grievors get out of the truck, although there was no obstruction and there was sufficient lighting (although it was raining).
The grievors also say that they completed their inspection of the train at 0530. If this is so, they carried out their work with astonishing rapidity, especially in the rain, since the established average time for such inspections is said to be about two and one-half minutes per car. The evidence, including viva voce evidence, establishes, on the balance of probabilities, that the grievor did not in fact carry out the inspection.
When the Inspection Control Supervisor did not see the grievors proceed to track A9 he asked another supervisor to check on their progress. That supervisor, Mr. Murphy (who testified at the hearing) together with another supervisor, Mr. Stone, went to the track, arriving at the west end of the train at about 0515. They had clear views of the length of the train, but could not see the grievors. They then walked eastward, arriving at the east end at about 0530. They waited, but the grievors did not appear.
At about 0600 Mr. Murphy contacted the Control Office and asked the Control Officer to contact the grievors. They were contacted by radio, and advised that they were on track A9 inspecting the train going east and that they had six cars, left to inspect. This was untrue. As Mr. Ritchie admitted at his investigation, he was at that time having coffee in the truck. In his record book, however, Mr. Ritchie showed his inspection as having taken place between 0515 and 0605. This too was untrue. At about 0610 the grievors reported by radio that they had just finished the inspection. The supervisors, however, were at the very spot where the grievors were pretending to be.
On the evidence, I find, on the balance of probabilities, that the grievors did not carry out their inspection at all. Outbound train inspection is a matter of obvious importance for the safety of operations, crews and the public and, the grievors' delinquence in this regard is a very serious matter. Even if the grievors did carry out an inspection (which I do not believe) there can be no doubt that it was over-hasty and insufficient. On that ground alone they would be subject to discipline. It is quite clear, of course, that they created a false record, and made false reports to the supervisors.
The grievors' conduct was dishonest and dangerous and subjected them to severe discipline. Mr. Ritchie, an employee of some six years' service, had a record of forty-five demerits at the time. There can be no doubt that even lenient treatment for this offence (and severe discipline was justified) would subject him to discharge. Mr. Tucker was an employee of three years' service. His discplinary record stood at fifteen demerits. In this case too, it is my view that a, penalty of at least forty five demerits would be justified.
However the matter might be thought of in terms of demerit points, it may well be that there was just cause for discharge in any event, given the seriousness of the offence and the dishonesty of the grievors. They were engaged in learning a trade, and their conduct was certainly inconsistent with that display of desire and aptitude to learn the trade which articles 31.8 and 58.22(d) of the collective agreement call for. Such persons, it is provided, shall not be retained.
In all of the circumstances, it is my conclusion that there was just cause to discharge the grievors. The grievances must accordingly be dismissed.
DATED AT TORONTO, this 18th day of November, 1980.
(signed) J.F.W. Weatherill