SHP - 257

IN THE MATTER OF AN ARBITRATION

BETWEEN

Canadian National Railway Company

(the "Company")

AND

BROTHERHOOD RAILWAY CARMEN OF THE UNITED STATES & CANADA

(the "Union")

RE: GRIEVANCE OF R. D. ROBINS

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

APPEARING FOR THE UNION:

T. Wood

J. Moore-Gough

 

APPEARING FOR THE COMPANY:

S. MacDougald

 

 

A hearing in this matter was held in Montreal on December 14, 1988.

 

AWARD OF THE ARBITRATOR

This grievance relates to the assessment of thirty demerits against the grievor as a result of certain incidents which will be described, and to his consequent discharge for accumulation of demerits. The Joint Statement of Issue in the matter is as follows:

Joint Statement of Issue

On January 14, 1988, Carman Robins was notified to attend an investigation in connection with an incident which had occurred December 12, 1987, on VIA train No. 129, involving Carman Robins while he was travelling as a passenger and was not on duty. At that time he possession of a radio which was the property of the Company.

Following the investigation held on January 18, 1988, the Company issued two separate CN forms 780 which together resulted in Carman Robinsí discharge. The reasons for the discipline and discharge were indicated as follows:

1. Effective December 12, 1987 Ė 30 demerits For unauthorized possession of CN radio No. 2061162 while travelling on VIA passenger train No. 129, and conduct unbecoming a CN employee resulting in a delay to a passenger train.

2. Effective February 9, 1988 Ė Discharge for accumulation of demerits.

The Brotherhood requests that the 30 demerits be removed from Carman Robins disciplinary record and that he be reinstated with full compensation, rights and benefits. The Company has declined the Brotherhoodís appeal.

The grievor was hired by the company in 1980, becoming a qualified Carman in 1984. At the material times he worked on a Relief Carman Position at Oshawa Yard on the 0700 Ė 1500 shift, working with little or no direct supervision.

On the day in question the grievor completed his shift. Later, at 2115, he departed for Beaverton on VIA train 129, as a paying passenger. The grievor was not on duty at the time. He did, however, have with him a radio, the property of the company, which the grievor used when on duty, but which he was not authorized to remove from company property. It was not suggested that the grievor was attempting to steal the radio, but the fact is that it was improper for him to have taken it with him. The grievor well knew that it was improper, having been assessed 10 demerits for a similar offence a few years before. The grievorís unauthorized possession of the radio off company property was an offence for which the grievor was subject to discipline, and in my view, in assessing the total discipline imposed on the grievor in respect of the dayís events, it would not have been excessive to assess at least 10 demerits on account of this aspect of the matter.

The other aspect of the matter relates to the grievorís conduct when he was asked, quite properly, to identify himself, since he had been observed in possession of company property. Whether or not the grievor was then on duty is, in that connection, irrelevant. The grievor, although not on duty, was an employee of the company in possession of company property in circumstances where it was appropriate for the company to make enquiries of him. The train conductor was authorized by the company to make such enquiries, and I think it was clearly the grievorís obligation to make a satisfactory answer.

Being asked by the conductor to identify himself the grievor, on his own account of the matter, produced a company medical card to which a lottery ticket had become attached. The conductor saw only the lottery ticket. When the conductor asked the grievor for further identification, it was obviously the grievorís duty either to pay attention to the document he had produced, and show that there was in fact some proper identification there, or to produce other acceptable identification. I do not consider, having regard to all the material before me, that the conductor was being in any way unfair to the grievor, or that he was abusing him. It was the grievor who, quite deliberately, was being unresponsive and uncooperative and making difficulties for the conductor, who was carrying out his job.

In the circumstances, it was proper for the conductor to have the police called, and it would appear that a certain delay to the train was an almost inevitable Ė certainly a natural Ė result of that. The grievor did not cause trouble for the police, and did identify himself satisfactorily In my view, there was no good reason for his not having done that for the conductor. Delay to the train was, in this case, due to the grievorís failure to give a proper response to the agent of his employer, in circumstances where a proper response was called for and could easily have been given. The grievorís conduct, whether it was on or off duty, was plainly injurious to the proper interests of the company Ė any train delay may have both direct and indirect adverse consequence, and there is no need to show any particular revenue loss Ė and subjected him to discipline. In respect of this aspect of the matter, it is my view that 15 demerits did not go beyond the range of reasonable disciplinary responses to the situation.

Considering the incidents of that evening as a whole, as the company indicates that it did, it is my view that while 30 demerits might be considered somewhat severe, 25 demerits was not an excessive penalty. While mere possession of the radio may not have been a very serious matter in itself, the disruption to operations caused by the grievorís unreasonable failure to identify himself where he was clearly obliged to do so was a serious industrial offence.

Whether the discipline assessed in respect of the incident be at the level of 25 or of 30 demerits does not affect the outcome of the grievance in respect of the grievorís discharge. Even if the discipline assessed in respect of the incident in question be reduced to 25 demerits, the grievorís accumulated demerits (39) were such that with the addition of 25, his record was still in excess of 60, and he was subject to discharge.

The grievorís record is not good, and includes previous discipline for an offence similar to that in issue here. It is noteworthy, I think, that the most immediately previous discipline imposed of the grievor was of 9 demerits (with a restriction of duty), for being intoxicated while on duty. The effect of the 9 demerits was to bring the grievorís accumulated demerits at that time to 59. Where an offence of that nature elicits such a relatively minor penalty, and where the effect of that is to bring a disciplinary record to 59, it is reasonable to consider that the company was really giving the grievor a last chance to establish himself as a good employee, and that it was not taking hasty advantage of what might have been thought to be a proper opportunity to get rid of him. The grievor did go for one year after that without discipline, and his record was reduced to 39 demerits. In the instant case, as I have found, a penalty of at least 25 demerits was justified. Accordingly, the grievorís accumulated demerits were in excess of 60, and he was subject to discharge.

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

DATED AT TORONTO, this 28th day of December, 1988.

(signed) J. F. W. Weatherill

Arbitrator