SHP 251

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

CANADIAN DIVISION, BROTHERHOOD RAILWAY CARMEN OF THE UNITED STATES AND CANADA

(the "Union")

AND IN THE MATTER OF THE GRIEVANCE OF G.R. COLLINS

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

APPEARING FOR THE UNION:

T. Wood

APPEARING FOR THE COMPANY:

B. L. Olson

A hearing in this matter was held at Montreal on September 13, 1988.

 

 

AWARD

The grievor, who was hired by the company in 1974, and whose classification Since 1979 has been that of Carman, was discharged by the company on March 4, 1987, for accumulation of demerit marks. This followed the assessment of 20 demerits on February 19, 1987, in respect of an incident to be described.

The Joint Statement of Issue is as follows:

On February 9, 1987 Mr. Collins was observed by Company police with an unlicensed Company truck at his personal residence during his working hours. Mr. Collins had not obtained authority to leave Company property and had taken the unlicensed vehicle onto a public road. Following investigation, Mr. Collinsí record was assessed 20 demerits which when added to the 50 demerits already on his record resulted in his discharge for accumulation of demerit marks.

The Brotherhood appealed the discipline and subsequent discharge on the grounds that Mr. Collins was unaware that he was taking an unlicenced vehicle and that he was only absent from his work a few minutes during a time he was not required. In addition the Brotherhood claimed the amount of discipline was excessive and should be reduced.

The Brotherhood requests that Mr. Collins be reinstated with full wages and benefits and without loss of seniority,

The Company disagrees with the Brotherhoodís contentions and has declined the Brotherhoodís request.

There is no doubt that the grievor did in fact commit the offence or set of offences for which he was disciplined. First, he left work during working hours without authorization. It is true that at the time he had no specific assignment, and that he would have been away from work only a relatively short time while he went home (a distance of less than one-half mile) to get a coat, since he was cold. It may well be that had he requested permission to go home briefly for that purpose, permission would have been granted. It also seems that it would have been easy for the grievor to contact his foreman by radio, if not in person. In all of the circumstances, the mere leaving of the property during working hours was an offence and would merit some discipline, although in itself it would not call for a very substantial penalty.

Second, the grievor took a company vehicle in order to drive to his home, and of course he did that without authorization. It would appear unlikely that such authorization would have been granted, if asked. Certainly it would not have been granted in respect of the particular vehicle which the grievor took. This unauthorized use of a company vehicle was an offence for which some discipline might be imposed. There is evidence that the company was somewhat lax in its control of the use of its vehicles, and that they were at times to be seen off (although usually not far off) the companyís property. While in many cases that sort of consideration would support the conclusion that it would not be fair for any very substantial penalty to be imposed for such an offence, the grievor had been spoken to only a short while before on the evening in question, it being indicated to him that he was suspected of unauthorized use of company vehicles.

The grievor was spoken to by the Lead Hand, on the instruction of the Foreman. The grievorís evidence is that the Lead Hand spoke to him only very briefly, and that it was not clear what he meant, although the grievor did understand that he was to "smarten up". Even if the warning given the grievor was rather vague, as I expect it was, I have no doubt that when the grievor left work without authorization and taking a company vehicle, the possibility that he was running a risk of discipline ought properly to have occurred to him. Again, the grievor was subject to discipline, and while severe discipline might be excessive in all of the circumstances, I do not consider that the assessment of 10 demerits would have been excessive.

The third aspect of the matter is that the vehicle which the grievor took was one which was not licenced for operation on public roads. It may also be noted that the grievor did not have his driverís licence with him at the time, although that was not a ground of discipline.

The grievor indicated that he had not realized the vehicle was unlicenced. In my view, however, he ought to have realized that. The company has five vehicles at Hornepayne, only one bearing licence plates for use on public roads. It ought to have been clear to the grievor not only that most vehicles were unlicenced (so that the surprise would be if he had actually taken the licenced one), but also that the vehicle he took had no plates. The grievorís action placed the company at risk, and subjected him to discipline.

As I have indicated, even without considering the third aspect of the matter, a penalty of at least 10 demerits would not go beyond the range of reasonable disciplinary reactions to the situation. Having regard to all of the circumstances, it is my view that a greater penalty was justified, and I think it cannot properly be said that the 20 demerits assessed by the company was excessive.

At the time, the grievorís record stood at 50 demerits. He had been assessed 30 demerits in February, 1985, for charging personal long distance calls to company accounts. He had been assessed 10 demerits in March, 1986, for failure to protect an assignment and give sufficient notice. He had been assessed 30 demerits in November, 1986, for a violation of Safety Rule G. It would appear that at some point 20 demerits were removed from the grievorís record by reason of his having no discipline imposed over a certain time. It may be noted that 40 demerits had been imposed on the grievor within the year preceding the incident in question. In January, 1987, the grievor had been interviewed in respect of his record, which then stood at 50 demerits. As I have noted, a short while before committing the offence in question here the grievor was advised that he should be careful Ė in respect of the very type of offence which he then committed.

Having regard to all of the foregoing, I do not consider that the penalty assessed the grievor was excessive. The grievor was, I find, properly subject to discharge for accumulation of demerit marks. The grievance must accordingly be dismissed.

DATED AT TORONTO, this 11th day of October, 1988.

(signed) J. F. W. Weatherill

Arbitrator