SHP 107
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Canadian National Railway Company
(the "Company")
AND
CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
(the "Union")
IN THE MATTER OF THE GRIEVANCE OF D. BOJKOVIC
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
W.A. McLeish
And on behalf of the Union:
J. W. Asprey
E. Flint
A hearing in this matter was held at Montreal on June 12, 1981.
AWARD
The Dispute and Joint Statement of Issue in this matter are as follows:
DISPUTE:
Assessment of discipline and the loss of one day’s wages for Boiler-maker D. Bojkovic.
JOINT STATEMENT OF ISSUE:
Boilermaker D. Bojkovic was assigned at CN Transcona Shop. His regular tour of duty was between the hours of 1600 to midnight on February 29, 1980. Mr. Bojkovic was assigned to the Erecting Shop for the purpose of repairing Diesel Locomotives. At such time as work assignments were being issued to Mr. Bojkovic two supervisors considered that he was not in a fit condition to safely commence work. Mr. Bojkovic was advised to return to his home and was subsequently requested to attend an investigation. Mr. Bojkovic was assessed 20 demerit marks for violation of Company Rule No. 26(a).
The Union contends that Mr. D. Bojkovic was unjustly disciplined and has requested that the 20 demerits be removed and that he be paid for the lost day. The Company maintains that the discipline assessed was warranted and that the loss of one day’s wages was the result of Mr. Bojkovic’s own actions.
From all of the material before me, I am satisfied that the grievor, who had admittedly been drinking to some extent before reporting to work was, if not very seriously impaired, nevertheless not in a fit condition to perform his work, which involved work on heavy machinery. It was proper that he be sent home and his claim for loss of earnings for that day is dismissed.
As to the assessment of discipline against the grievor, it is my view that this was assessed following an investigation which met the requirements of article 28.1 of the collective agreement. While certain of the questions put to the grievor at the investigation were perhaps confusing, a reading of the statement as a whole does not suggest that the grievor misunderstood the questions put to him, or failed to answer responsively. His representative was given the opportunity to participate, and did make representations.
The company was not obliged to hold a supplementary investigation at the request of the union, and its failure to do so does not invalidate its procedure. Where the matter proceeds to arbitration it is, of course, incumbent on the company to establish just cause.
There were not, in this case, the sort of shortcomings which were found to nullify the investigation held in the Zawoyski case, an arbitration between Canadian Pacific Limited and the Canadian Telecommunications Union and involving, in any event, somewhat different collective agreement provisions than those governing the instant case.
Since as indicated above I consider, from the material before me, that the grievor reported to work in an unfit condition on the day in question, it follows that he was subject to discipline. There is no need to establish actual knowledge of any precise rule in that respect. As to the penalty imposed, the grievor was employed as a tradesman in the inspection and repair of diesel locomotives, and the importance of being in a fit condition – both from the point of view of safety in the workplace and that of quality of work – is obvious. While it has not been shown that the grievor was "drunk", it has been shown that he was not fit for work, and in such circumstances a substantial penalty is justified. I do not consider that circumstances exist which would call for the reduction of the penalty in this case.
Accordingly, the grievor must be dismissed.
DATED AT TORONTO, this 24th day of June, 1981.
(signed) J. F. W. Weatherill
Arbitrator