SHP - 92
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO
RE:GRIEVANCE OF R. HARRISON, P. COUTURE AND C. TESSIER
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Montreal on February 12, 1981.
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 Helpers A. Harrison, P. Couture and C. Tessier
were dismissed from the service of CP Rail on July 2,
1980 for drinking and being under the influence of
alcohol and having refused to obey a Supervisor's order
on June 13, 1980, while on duty at Angus Shops, Montreal.
JOINT STATEMENT OF ISSUE
It is the position of the Union that in dismissing Carmen Helpers Harrison, Couture and Tessier the Company treated them unjustly.
It is the position of the Company that in all the circumstances, the discipline was warranted.
There is no very substantial dispute as to the facts. In some cases, the grievors' statements taken at the investigation are in conflict with statements of supervisors which were presented to them. Evidence was presented at the hearing in support of the supervisors' statements, but the grievors, two of whom were present at the hearing, elected not to give evidence, although their rights in that regard and the possible implications of failure to testify were explained to them by their union representatives.
At about 0930 on the morning of June 13, 1980, Assistant Foreman R. Moretti, during a routine inspection, noticed a group of employees sitting down and talking inside boxcar C.P. 56515 located on the west side of track D-3, Angus Shops. Mr. Moretti instructed the employees to return to work, and most of them did so.
About ten minutes later Mr. Moretti returned to the boxcar, where he found four employees sitting on the floor, talking and apparently drinking beer. There were three cases of twelve cans of beer with them. The four employees were Messrs. Harrison, Couture and Tessier (the grievors) and one other. The other employee, who was also discharged, did not grieve. Mr. Moretti instructed the employees to stop drinking and to come with him to the Foreman's office. They did not obey.
Mr. Moretti then reported the matter to Mr. Grilli, the Foreman. He, Moretti, together with Mr. Ratelle, an Assistant Foreman, returned to the boxcar and instructed the four employees to report to the Shop Foreman's office. Again, they refused to comply. Shortly after that, Mr. Grilli arrived, accompanied by the General Car Foreman, Mr. Naylor. The employees then followed instructions and reported to the office.
Cans of beer were seen on the ground outside the boxcar, and on the floor of the car where the men were sitting. At one time or another, each of the grievors was seen holding a can of beer. Their deportment and appearance indicated that they had been drinking (Messrs. Tessier and Couture more heavily than the others, it would seem) and some of them admitted to having been drinking before reporting for work.
Mr. Harrison, in his statement, indicated that he was not in the boxcar at the time in question, having gone to first aid to help another employee, Mr. Millette. Mr. Millette was the fourth employee discharged, but who did not grieve. It is true that Mr. Harrison went to first aid, but, from the records, that would appear to have been before the events in question. Mr. Millette, in his statement, admitted to being present when Mr. Moretti came to the car. Mr. Moretti, as I have noted, gave evidence that all four employees were in the boxcar, drinking. Finally, it may be noted that Mr. Harrison did admit having been drinking before reporting to work.
Having regard to the evidence and to all the material before me, I find that the grievors were in possession of alcoholic beverages on company property, were consuming them during working hours, were not fit for duty and did not follow proper instructions.
Obviously the grievors were guilty of a serious industrial offence. Each of the grievors has between one and two years' seniority. Mr. Tessier, who appears to have been the most forthright when questioned, was warned, in April 1979, with respect to poor timekeeping. Mr. Couture was assessed 5 demerits for poor timekeeping in February 1979, and 10 demerits in February, 1980, for refusing to return to work when ordered to do so by his supervisor. Mr. Harrison was assessed 10 demerits in February 1980, for the offence just mentioned. Each of the grievors had recently received notice of layoff, but it is not clear that they would not have been in line for other work. In any event, that would not excuse misconduct of this sort.
In the case of employees responsible for the operation of trains and subject to the Uniform, Code of Operating Rules, there is little doubt that conduct such as this would subject the employees to discharge. The very high standard of conduct imposed by the Uniform Code of Operating Rules does not, in my view, apply to these shopcraft employees. I do not consider that, for a first offence of this nature, discharge of the grievors was justified of course, the work of shopcraft employees relates ultimately to the safe operation of trains, and while there is a distinction to be drawn in this regard between operating employees and those in the position of the grievors, it remains that the grievors' offence was a very serious one.
In my view, there was not just cause for the discharge of the grievors. In the assessment, of an appropriate penalty, there are only slight distinctions to be drawn as between the three cases. Mr. Tessier, as I have noted, was the most forthright of the grievors, and his disciplinary record contained only a warning. His case may be distinguished from that of the other two grievors, as between whom there is only a slight distinction to be drawn. The appropriate penalty, I think, would be to substitute a lengthy period of suspension for the discharges in these cases. In view of the loss of earnings involved, I would not substitute demerit points, although it might have been appropriate to have assessed a substantial number of demerits at the time. In the circumstances of the instant case, I would leave the grievors' discipline records as they were.
For the foregoing reasons it is my award that each of the grievors be reinstated in employment forthwith, without loss of seniority, but without other compensation save that Mr. Tessier shall be compensated for loss of regular earnings (net of actual earnings) from the date of the hearing of this matter until the date of his actual reinstatement; and that Messrs. Couture and Harrison shall be compensated for loss of regular earnings (net of actual earnings) from the date of this award until the date of their actual reinstatement.
DATED AT TORONTO, this 25th day of February, 1981.
(signed) J.F.W. Weatherill