IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
Canadian Council of Railway Shopcraft Employees and Allied Workers
IN THE MATTER OF THE GRIEVANCE OF G. CLARKE
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
A. Y. de Montigny
And on behalf of the Union:
A hearing in this matter was held at Montreal on April 27, 1982.
The Joint Statement of Fact and Joint Statement of Issue in this matter are as follows:
JOINT STATEMENT OF FACT:
At 2:00 p.m. on April 9, 1981, Ogden Machinist George Clarke left Ogden Shops in view of a dental appointment scheduled for 2:30 p.m. In doing so, he left his work-area without a Form DO 16 (pass out), although he had requested a pass out on two occasions. Mr. Clarke was stopped by the Security Guard and an incident transpired from which Mr. Clarke suffered an injury.
Following investigation, Mr. Clarke was assessed 8 demerit marks for "failure to obtain Watchman’s Order Form DO 16 prior to leaving the premises at 14K April 9, 1981, and failure to produce identification card at Security Office when leaving."
JOINT STATEMENT OF ISSUE:
It is the position of the Union that Mr. Clarke was unjustly dealt with and that the eight (8) demerit marks should be stricken from his personal file.
It is the position of the Company that the assessment of eight (8) demerit marks was justified with regard to Mr. Clarke’s actions.
When the grievor left work early on April 9, 1981, he had not obtained the proper pass-out form, although he knew that one was required. He had, however, advised his foreman on the preceding day that he would need to leave early on the 9th because of a dental appointment, and had been given permission to do so. He had spoken to the foreman about the matter on the morning of the 9th, and had tried to locate him, to obtain the pass, just before leaving at 2:00 p.m. Being unable to locate the foreman, he had punched out and left.
In these circumstances, the imposition of discipline for leaving the work area without receiving a pass is not, I think, justified. At the most, a minor reprimand might be called for. The grievor had in fact obtained permission to leave, and had made efforts, at the time of leaving (which was the time the pass would be issued), to obtain the pass. His appointment was then pressing.
As to the grievor’s failure to produce identification to the security guard, the evidence is, to some extent, in conflict. The grievor says that he gave his name and number to the security guard. The security guard says that he did not, and that while he mentioned the name of his foreman, he did not produce identification when asked. It seems clear that the grievor did not, in fact, produce his identification card, although he had it with him. The request to produce it was a perfectly reasonable one, especially where the grievor had no pass authorizing his leaving. The security guard was, as the Court held in criminal proceedings brought on the complaint of the grievor, justified in detaining him for the purpose of identification. As soon as the grievor was identified by a passing employee, he was released.
From the material before me, I find that the grievor did improperly refuse to produce his identification card when asked to do so by the security guard. That was, as I have said, a proper request in the circumstances, and one with which the grievor could easily have complied, without any significant delay.
I find, therefore, that the grievor was subject to discipline for that offence, but not for the other, that of leaving without a pass. In the result, the penalty should be divided, since it was assessed for two offences, only one of which has been established.
The company raised the preliminary objection that the grievance had not been filed in accordance with the provision of article 28 of the collective agreement. Article 28.6 provides that in the first instance employee grievances are to be presented to the employee’s "immediate supervisor" within a certain time. In the instant case, the grievor did not present the grievance over his discipline to his immediate supervisor (who had not issued the discipline) but rather to the general foreman (who had). The grievance was presented promptly, well within the time limits, upon the issuing of the discipline, which followed an investigation.
I think it is quite unrealistic to consider that the "immediate supervisor" could have "adjusted" the discipline imposed by the general foreman. Having, regard to the whole of article 28, it is my view that article 28.6 should be read as directory and not mandatory – at least with respect to discipline cases – in calling for the presentation of grievances to the immediate supervisor for adjustment. Article 28.11 provides that grievances not progressed within the time limits specified "shall be dropped and shall not be subject to further appeal". The effect of that is that the time limits set out in the grievance procedure are mandatory and not directory. The present case, however, does not involve any violation of time limits. Accordingly, it is my conclusion that this grievance is arbitrable.
For the reasons set out above, it is my award that the grievance is allowed in part. The number of demerits assessed the grievor is reduced from eight to four.
DATED AT TORONTO, this 3rd day of April, 1982.
(signed) J. F. W. Weatherill