SHP Ė 198

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

CANADIAN DIVISION, BROTHERHOOD RAILWAY CARMEN OF US & CANADA

(The "Union")

IN THE MATTER OF THE GRIEVANCE OF R. NADEAU

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

J. Cameron

S. MacDougald

 

 

And on behalf of the Union:

S. A. Horodyski

B. Paradis

 

 

A hearing in this matter was held at Montreal on April 29, 1986.

 

 

AWARD

The grievor, an employee with some six yearsí service and classified as a Carman, was discharged by the company on September 17, 1985. The Joint Statement of Issue is as follows:

On 30 July 1985 Carman Nadeau was driving Company truck EO 71031 from Drummondville to Richmond, Quebec. Carman Nadeau fell asleep while driving, causing the truck to run off the road resulting in damage to the truck and personal injury to Carman Nadeau.

During the companyís investigation of the incident, Carman Nadeau admitted to drinking two beers with his lunch in a licensed establishment off Company property while on duty and admitted to exceeding the posted speed limit at the location of the accident.

On 17 September 1985 the Company discharged Carman Nadeau for having driven a Company vehicle after having consumed alcoholic beverages and having exceeded the permissible speed limits.

The Brotherhood contends that the discharge of Carman Nadeau was too severe and requests that he be reinstated to service. The Company disagrees with the Brotherhoodís contention and has denied the Brotherhoodís request.

One contention made on behalf of the grievor was that the company was estopped from imposing any discipline on him because at the investigation (conducted, of necessity, at the grievorís home), the grievor had been induced to tell the truth by the promise of leniency and the assurance that he would not lose his job. There is evidence that in one investigation, for the purpose of preparing an accident report, a company officer did say to the grievor, "donít be afraid to lose your job". That, however, was not the disciplinary investigation, nor is anything said by the grievor at that time relied on in these proceedings. At the disciplinary investigation, it is clear that no promise was made, and while the possibility of discharge may have been played down, the investigating officer made it clear ha had no authority to give any assurances, and the possibility of some sort of discipline was referred to. There was, I find, no representation made to the grievor, nor any bargain with him in return for his answering proper questions as to his conduct, questions which it was his duty to answer in any event. This is not a case in which any estoppel arises.

The grievor did drive the company vehicle at a speed in excess of the speed limit, and he did fall asleep at the wheel. A very serious accident occurred as a result of the grievorís carelessness. Clearly, he would be subject to discipline on that account. It is also the case that the grievor consumed alcohol while on duty. That too to an offence, and a serious one. Given the commission of such offences there would, in many cases, appear to be just cause for the discharge of the employee.

As to the grievorís carelessness there appears to be no doubt. One can only speculate as to any relationship between the grievorís having fallen asleep at the wheel and his having consumed alcohol. He had been on duty for a considerable time that day, and had worked considerable overtime in the preceding period. He ought, of course, to have reduced his speed, and it is clear, with the benefit of hindsight, that he ought either to have stopped driving to clear his head, or to have asked the other employee who was with him to do the driving. The situation is, however, quite different from that in the Canadian Pacific (Boan and Gibson) case, (29 May 1981), where the grievors were intoxicated, and drove a company vehicle in a "wild and clearly dangerous manner".

The grievor did drink while on duty, but not while in the actual performance of his duties - that is, he drank two beers with his lunch. He was on a paid lunch period, and so was on duty in that sense, but this is not a case in which he could be laid to have brought liquor onto company premises or to nave been drinking while at work in the usual sense. Further, it appears that what the grievor was drinking was a very low-alcohol beer. He did not become intoxicated, and the situation is very different from those in CROA cases 426, 1028 and 1084, which were referred to. The case would appear to be more closely analogous to the recent Canadian Pacific (Scott) case, (4 March 1986), where the grievor, a Signal Maintainer Helper, had consumed a beer and a shot of rye whiskey with his lunch, in violation of Rule "G" of the Uniform Code of Operating Rules.

In the instant case, the grievor was in violation of Safety Rule "G" and of Company Rule 26(a). while any violation of those rules is a serious matter, each case must be determined in the light of its particular circumstances. In the instant case, I do not consider that the grievorís light consumption of alcohol with his lunch constituted just cause for discharge, although it would justify the imposition of a severe disciplinary penalty. The grievorís carelessness in driving would also, as I have said, justify the imposition of discipline. The two offences are not entirely separate in the circumstances, and the dayís events should be regarded as a whole, as the company did. The grievor did have a disciplinary record of ten demerits, and he had had a number of disciplinary interviews over the years, chiefly for excessive absences. He was considered by the foreman to be "not a bad employee".

Having regard to all of the circumstances, it is my view that there was not just cause for the discharge of the grievor, although there was cause for the imposition of severe discipline. It is my award that the discharge of the grievor be set aside, and that he

be reinstated in employment forthwith, without loss of seniority, but without compensation for loss of earnings or other benefits. The grievorís discipline record is to stand at fifty demerits as of the date of his return to work.

 

DATED AT TORONTO, this 22nd day of May, 1986.

 

(signed) J. F. W. Weatherill