BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

J. A. Cameron

And on behalf of the Union:

S. Horodyski

A hearing in this matter was held at Montreal on December 18, 1985.

The grievor, who was hired by the company as a Warehouseman in July, 1980, and who has worked as a Coach Cleaner since March, 1981 (subject to a layoff from May, 1982 until April, 1984), was discharged on February 1, 1985, for accumulation of demerit marks.

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

Rule 26 and Rule "G" prohibit the possession or use of alcohol by employees when on duty.

At the hearing of this matter, the union raised an issue as to the company’s compliance with Rule 28 of the collective agreement regarding notice of and the conduct of the investigation. The grievor was required to attend an investigation concerning "the events that occurred on January 12, 1985 around 8:33 p.m.". This notice was issued on the day of the events in question. There could be no doubt as to what the "events" were with respect to which the company sought to question the grievor. The investigation dealt with those events and no others. It was argued that it dealt with "a number of separate subjects", but each of these was an aspect of the events in question, and the grievor gave his response In respect of each. The investigation was, in my view, the sort of fair and impartial investigation contemplated by article 28.

On the day in question the grievor had reported for work on his regular 4:00 - 12:00 p.m. shift, and had been assigned certain car cleaning duties. At about 7:45 p.m., the grievor’s foreman, checking on the performance of assigned work, found that the work assigned to the grievor and to others had not been properly performed, and in some cases had not been performed at all. The foreman located some of the employees and directed them to compete their work, or to perform it properly, as appropriate. The foreman had difficulty locating the grievor. Eventually, the grievor, together with three other employees, was found by the CN Police in another passenger car than one in which work had been assigned, located on other tracks in the yard.

The grievor and the others were seated in the lounge of the car, watching a hockey game on a portable television set. There were three empty beer bottles and one full, cold beer as well as four small (50 ml.) empty liquor bottles on the table in front of them. At the investigation, the grievor stated that he had brought the television set; he denied having consumed any alcohol, and stated that he did not even know the beer was there. As to his work, he stated that his intention had been to finish it "between periods and after".

As corroboration of his statement that he did not consume any alcohol that evening, the grievor stated that he was taking medication at the time, and could not take any alcohol with it. There is in evidence a doctor’s certificate, issued shortly before the hearing, certifying that the grievor was, at the material time, undergoing treatment with tetracycline for an infection. I am prepared to assume, although the doctor’s certificate does not so state, that alcohol is "contraindicated" when a person is taking such medication. There is nothing to suggest, however, that a small amount of alcohol would have any disastrous effect or indeed that the grievor would not have consumed a small amount of alcohol (there is no evidence that he evinced any of the symptoms of intoxication), despite what the doctor or pharmacist might have said. I do not in any event accept the grievor’s further explanation that the empty bottles were there because the car in which he had been found, which had been in the yard for some time, had not been cleaned. Nor can I accept his statement that he did not see the beer, which was on the table between the television set and the place where he was sitting. On the balance of probabilities, it is proper to conclude that the grievor was in possession of alcohol on company property while on duty. It may be that the grievor himself did not drink any, although that seems unlikely in the circumstances; I make no finding on that particular point, but I do conclude that the grievor was in possession of alcohol, and in violation of Rule 26 and of Rule "G".

It is undoubted that the grievor was improperly away from his workplace, and that he had not completed his assigned tasks. It was obviously improper for him and the others to have installed themselves with the television set in another car to watch a hockey game while they were being paid to work. These were serious offences, and in themselves would justify an assessment of 30 demerits. Having regard to all of the material relating to the grievor’s conduct on the evening in question, it is my view that there was justification far the imposition of 45 demerits altogether.

The grievor’s discipline record stood at 35 demerits prior to these events. These had been accumulated over some six occasions of discipline (some involved memos only), in slightly over two years’ actual attendance at work. The grievor was disciplined for a number of offences, each indicative of a bad attitude towards work.

As a result of the discipline which I find to have been properly assessed in this case, the grievor had accumulated 80 demerits, well in excess of the 60 points at which an employee becomes subject to discharge. This was a proper case in which to follow the rules of the system, and in my view there was just cause for the discharge of the grievor.

For all of the foregoing reasons, the grievance is dismissed.

DATED AT TORONTO, this 13th day of January, 1986.