BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

J.W. Asprey

E. Tandy

M. M. Yorston

A hearing in this matter was held at Montreal on July 16, 1982.

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

The grievor was hired by the company in May, 1977. He was discharged on October 21, 1980, on the grounds above set out. The issue is whether or not he was discharged for just cause.

On the morning of October 3, 1980, the grievor was assigned by the Assistant Foreman, Mr. Minotti, to perform the work of breaking up an old box car top which was situated a short distance from the Foreman’s office. He could be seen performing this work from the window of the office. The Foreman states that one reason for his assigning the grievor to work there was that he could keep an eye on him.

At about 12:30, shortly after the lunch break, the Foreman did not see the grievor at work, and went to look for him. He found him a short while later in a lean-to situated about five hundred feet from the office, in an area where a diesel crane was working. The Foreman stated that when he saw the grievor, he was drinking from a can of beer. There was, it seems, another can of beer (of another brand), on the floor. The Foreman, according to his statement, told the grievor to put the beer down, but he did not do so, and continued drinking. He then asked the grievor to come to the office, but he refused to do so. The Foreman then went to get the Shop Foreman.

While the grievor does not deny that he was in the lean-to, he denies drinking any beer, and denies a refusal to follow instructions. He asserts that he had been directed to work as a helper on the diesel crane that afternoon.

The Shop Foreman met the grievor in the shop. He stated that the grievor’s eyes were slightly bloodshot and that his breath smelled of alcohol. That the grievor showed some of the symptoms of drinking is also confirmed by the evidence of the General Foreman, who was one of those who accompanied the grievor to his locker, prior to his being escorted off the premises by the police.

It should be said, however, that while it does appear that the grievor was drinking from a can of beer, it does not appear that he was intoxicated, or that he had more than one beer.

There is a conflict in the evidence as to whether the grievor was drinking or not. As indicated above, it is my view that the evidence establishes that he was drinking, although not that he was drinking or had drunk heavily. There is also a conflict as to the assignment given the grievor for the afternoon. The grievor says he was assigned to assist on the diesel crane, while the Assistant Foreman (who would have made the assignment) says he was not. The work assigned for the morning was, it appears, a good day’s work; moreover, a carman helper would not normally be assigned to assist in diesel crane operations. There was no evidence (and the onus would be on the union to produce it) from any others actually involved in the crane operation. The grievor, in his grievance, refers to witnesses, but there are no statements from them, and the Assistant Foreman stated that there had been no one else present when he instructed the grievor as to his day’s work. From the material before me, I conclude that the grievor had not been instructed to work on the diesel crane.

Accordingly, it must be concluded that there was just cause for imposing discipline on the grievor. I am, however, not persuaded that discharge was justified. While the grievor had accumulated some 20 demerits at the time, his offence was, I think, not quite as flagrant as that of the grievors in the case of Harrison, Couture and Tessier (February 25, 1981), and he has slightly more seniority than did the employees there. Of course, drinking in any industrial environment is a serious offence, but there is nevertheless a distinction to be drawn between jobs such as the grievor’s and those of employees engaged in train operations. A suspension, or the assessment of substantial demerits, would be justified for a first offence in these circumstances, but discharge would not, in most cases, be appropriate.

Accordingly, it is my award that the grievor be reinstated in employment forthwith, without loss of seniority, but without compensation for loss of earnings or other benefits. His discipline record should be as it was at the time of discharge.

DATED AT TORONTO, this 23rd day of July, 1982.