IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
BROTHERHOOD RAILWAY CARMEN OF CANADA
AND IN THE MATTER OF THE GRIEVANCE OF A. BOURQUE
SOLE ARBITRATOR:J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
S. A. MacDougald
A hearing in this matter was held at Montreal on July 26, 1988.
This grievance relates to the discharge of the grievor, effective April 21, 1987, for accumulation of demerit marks.
The Joint Statement of Issue in this matter is as follows:
Effective 23 March 1987 Carman A. Bourque’s record was assessed 30 demerits for reporting for duty under the influence of alcohol. When combined with Mr. Bourque’s current discipline of 35 demerits, this resulted in his discharge from the Company’s service for accumulation of demerits.
The parties agree that Mr. Bourque was under the influence of alcohol. The Brotherhood contends the discipline assessed was too severe in that the Company failed to take into consideration, when assessing the 30 demerits, 10 demerit marks previously credited to Mr. Bourque’s record. Therefore the Brotherhood requests that the disciplinary penalty be reduced and Carman Bourque be reinstated without loss of seniority, benefits or wages.
The Company has denied the Brotherhood’s request.
There is no dispute as to the facts. The grievor, an employee of some 22 years’ service, and classified as a Carman, was working on the 1600 - 2400 shift at Gordon Car Shops. On the day in question, he reported for work under the influence of alcohol. He at first may have sought to play down the amount he had consumed, but at the investigation he frankly admitted to consuming alcohol during the day and to drinking a last bottle of beer while on the way to work. The dishonesty and unsafe behaviour which were present in SHP Case No. 180 are not present in the instant case. The case is simply that the grievor, who has had a problem with alcohol over a considerable period of time, arrived at work under the influence of alcohol on the day in question and was not, from all of the evidence, in a fit condition to work.
There is no doubt that the grievor was subject to discipline. The question is whether or not the assessment of 30 demerits was excessive, and in any event whether or not there was just cause for the discharge of the grievor on his having accumulated more than 60 demerits as a result of this incident.
The demerits currently on the grievor’s record began to be accumulated in September, 1984, when he was assessed 20 demerits for leaving work early without permission and for insubordination. In March, 1985, he was assessed 20 demerits for being under the influence of alcohol. In January, 1986, the grievor was assessed 15 demerits for being under the influence of alcohol. This brought his accumulated demerits at that time to 55.
It may be noted that 15 demerits was a relatively light penalty for the offence in question. The grievor had been assessed 20 demerits previously for the same offence, and it may be noted that in SHP Case No. 180, referred to above, the grievor, who had previously been assessed ten demerits for failing to report to work as a result of drinking, was discharged, and the discharge was upheld (the particular incident being, as appears from the facts of that case, a more serious one than the one in issue here). By limiting the penalty assessed in January, 1986 to 15 demerits, the employer refrained from discharging the grievor. The grievor was interviewed at the time and the discipline policy explained to him. It ought to have been clear to the grievor at that time that he was being given a "second chance" – if indeed that had not been clear in March of 1985.
In February, 1987, the grievor’s accumulated demerits were reduced by 20, as he had passed one year free of discipline. Shortly after that, on February 27, the grievor was interviewed with respect to abuse of alcohol, and his attention again directed to the company policy. No discipline was imposed on the grievor at that time. The grievor was offered the company’s Employee Assistance Program and he did, for a time, take advantage of it. In fact, this was the second occasion on which the grievor had had resort to the Employee Assistance Program. On this second occasion, he followed the counsellor’s advice only "for a few days".
In seeking a lesser penalty for the grievor in the instant case, the union seeks more than a second chance for him. When the grievor’s history of discipline and counselling with respect to alcoholism is considered, what is now asked for might properly be called a fourth chance. The union was critical of the company for having reduced its staff of Employee Assistance Counsellors, but the grievor at least does not appear to have been affected by that. The Employee Assistance Program was in fact made available to him at all material times prior to his discharge. The grievor accepted that offer on two occasions, but did not follow through and maintain the discipline the program required.
There is evidence that the grievor is a regular churchgoer and that he has attended many meetings of Alcoholics Anonymous. That is certainly in his favour, but it is not sufficient evidence to support the conclusion that the grievor is now rehabilitated. Also in the grievor’s favour is the fact that he was awarded merit marks in 1972, for what was undoubtedly an act of true heroism. That praiseworthy conduct occurred, however, a long time ago, and merit points do not serve, under the system of discipline in effect, to cancel demerits. A number of demerits which the grievor had accumulated in the past have, of course, been deleted with the passage of time.
What was said in CROA Case No. 1485 is, I think, of significance for the present case. There, the arbitrator stated:
… But because the grievor is not involved in "a running trade" governed by the UCOR Rules he may very well have had grounds in his particular case to the exercise of some leniency that would not otherwise be countenanced in other situations.
Also, in having regard to the grievor’s long service (34 years) and his age (54) his situation may very well have been a circumstance where one might extend to him "one last chance". This may also be particularly appropriate because of his having registered in a programme for the rehabilitation of the alcoholic condition.
Unfortunately, the company has most recently given the grievor "his last chance" when on December 9, 1984, it assessed him 45 demerit marks for his admitted violation of the same rule. That penalty obviously did not prompt the grievor to admit his alcoholic problem or to seek the assistance of the company’s EAP or a rehabilitation programme external to the company.
In other words, the incident before me was not an isolated circumstance where the grievor had not been forewarned of the repercussions of a repeated offence.
As a result his grievance must be denied.
In the instant case, the grievor has been leniently treated in respect of similar offences in the past, and has had more than one previous chance to rehabilitate himself. Reporting for work under the influence of alcohol is a serious offence, particularly in a heavy industrial situation such as that in which the grievor works. In all of the circumstances, the assessment of 30 demerits in respect of the occasion in question cannot be said to be excessive, and there was, I consider, just cause for the discharge of the grievor. Accordingly, the grievance must be dismissed.
DATED AT TORONTO, this 10th day of August, 1988.
(signed) J. F. W. Weatherill