SHP 115

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the "Company")

AND

Canadian Council of Railway Shopcraft Employees and Allied Workers

(the "Union")

 

AND IN THE MATTER OF THE GRIEVANCE OF E. J. MAJCHER

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

M. M. Yorston

 

 

And on behalf of the Union:

J. W. Asprey

E. Tandy

 

 

A hearing in this matter was held at Montreal on January 14, 1982.

 

 

AWARD

The Joint Statement of Fact and Issue in this matter is as follows:

JOINT STATEMENT OF FACT:

Carman E. A. Majcher, Winnipeg, was held out of service pending investigation effective 1215 March 30, 1981, and was returned to service April 1, 1981. Following the investigation he was assessed 40 demerit marks and barred from road repair service account unauthorized departure from road work assignment for personal reasons; unauthorized use of a Company vehicle in order to conduct personal business at a distant location, together with inflated claim for on duty hours, March 25, 1981.

JOINT STATEMENT OF ISSUE:

It is the position of the Union that the discipline assessed Carman Majcher was unwarranted and that the bias treated unjustly, and request that, he be reimbursed for time lost, be reinstated in road repair service and that the forty (40) demerit marks be reduced.

The company contends that the discipline was warranted and that in all the circumstances the appeal should be declined.

There is no doubt that the offences with which the grievor is charged in fact occurred. On the day in question the grievor, during his working hours, drove a considerable distance in a company vehicle from his work location to Winnipeg, to attend to some personal business. He returned to the work location and carried on his work, but put in a time claim which included the several hours devoted to his own affairs.

The grievor claims he was distraught because he had just received news that his son had had a serious automobile accident the night before. That might relate to his failure to seek permission to make the trip he did, but I do not think really accounts for what was a substantial claim for work not performed Ė a claim which includes overtime, and which it would require a reasonable amount of attention to fill out.

The grievor has very substantial seniority, and had a clear record. This was, the company asserts, taken into consideration when the penalty was assessed. While I am not sure that any greater number of demerits would have been justified in this particular case, I do not consider that the number assessed should be interfered with. Neither do I consider that the grievor is entitled to reimbursement for time lost. The investigation was conducted promptly, and the charges against the grievor were made out.

The changing of the grievorís assignment was not, I think, appropriate. While the grievorís classification was not affected, his working conditions and, earning ability were, and these were matters in respect of which he was entitled to enjoy the benefits of his seniority. His entitlement to a particular assignment depends on competence and seniority. This one instance of improper conduct does not establish the grievorís "incompetence" to behave responsibly. Further, the loss which the grievor may suffer is really an "open-ended" loss of income, whereas a disciplinary measure should, in general, be precise.

For all of the foregoing reasons, it is my view, having regard to the circumstances of the instant case, that while there were, grounds for imposing discipline on the grievor, the total penalty was not justified. The grievance, therefore, is allowed in part. It is my award that the grievor be reassigned forthwith to his road work assignment. In all other respects the grievance is dismissed.

DATED AT TORONTO, this 8th day of February, 1982.

(signed) J. F. W. Weatherill

Arbitrator