SHP 261
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
(the "Company")
AND
BROTHERHOOD RAILWAY CARMEN OF CANADA
(The "Brotherhood")
AND IN THE MATTER OF THE GRIEVANCE OF A. GOGORENKO
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
T. Wood
APPEARING FOR THE COMPANY:
S. A. MacDougald
A hearing in this matter was held in Montreal on February 23, 1989.
AWARD
The Dispute and Joint Statement of Issue in this matter are as follows:
DISPUTE:
Appeal of discharge of Carman A. Gogorenko of Calgary, Alberta.
JOINT STATEMENT OF ISSUE:
On Monday, April 20, 1987, Carman Gogorenko was assigned at Sarcee Yard at Calgary on the 2300 - 0100 shift. At approximately 0030 hours, Carman Gogorenko was found by a Yardmaster, in the locker area of the repair track with a bottle of beer in his hand. At approximately 0110, Carman Gogorenko was found in a washroom consuming a bottle of beer by the Equipment Foreman. Carman Gogorenko was then suspended pending investigation.
Subsequent to an investigation held on April 22, 1987, Carman Gogorenko was discharged on May 4, 1981, for: "violation of Rule "G" of Safety Rule Book 7533E on the a.m. of April 20, 1987. Time out of service pending decision of Rule violation: 5.75 hours for April 20/87, 8 (eight) hours each for April 23, 24, 25, 26, 27, 30 and 8 (eight) hours each of May 1, 2, 3, and 4."
The Brotherhood contends that the discharge of Carman Gogorenko was too severe and request that he be returned to service without loss of seniority, wages and benefits as of May 4, 1987.
The Company has declined the Brotherhood’s appeal.
There is no doubt that the grievor had brought beer onto company property and consumed it – he probably consumed two beers – in the course of his shift, indeed, in the early part of his shift, prior to the inspection and maintenance work which he was scheduled to perform. It may be that the grievor did not in fact receive a copy of the company’s Rules, but it is not necessary for a railroad employee in a craft such as the grievor’s to have a written rule to know that drinking on the job is wrong. The grievor, I am satisfied, did in fact know that, and there was nothing at all unfair or surprising in the company is imposing discipline on him for such a serious offence.
The only substantial issue is as to the severity of the penalty imposed. The grievor, who was hired in 1979, did not have very great seniority (although he had previous railroad experience), and his discipline record stood at ten demerits, imposed in respect of an unrelated offence. To that extent the case would resemble the Canadian Pacific (Harrison, Couture et al.) case (February 25, 1981). In the instant case, however, the grievor has a history of what appears to be alcoholism or substance abuse, and has been counselled and offered assistance in that respect on a number of occasions, without effect. It has not been shown that, even since his discharge, the grievor has recognised a problem or taken any significant steps to deal with one. In the earlier case, then, it was considered that the imposition of discipline less than discharge (although nevertheless very substantial) could be expected to make future misconduct of that sort unlikely. There is, unfortunately, no substantial reason for coming to that conclusion in the instant case.
Having regard to all of the circumstances, it is my view that there was just cause for the discharge of the grievor in the instant case, and the grievance is therefore dismissed.
DATED AT TORONTO, this 13th day of March, 1989.
(signed) J. F. W. Weatherill
Arbitrator