SHP 272

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

-and -

CANADIAN BROTHERHOOD RAILWAY CARMEN OF THE UNITED STATES AND CANADA

(the "Union")

GRIEVANCE RE CARMAN R.A. ROUND

SOLE ARBITRATOR: Michel G. Picher

 

APPEARING FOR THE UNION:

Tom Wood

John Moore-Gough

 

 

APPEARING FOR THE COMPANY:

S.A. MacDougald

L.F. Caron

D. A. Watson

A hearing in this matter was held in Montreal on July 19, 1989.

 

 

AWARD

This grievance concerns the discharge of Carman R.A. Round, of Thornton Yard, Vancouver, for the accumulation of demerits effective April 11, 1988. The joint statement of issue filed at the hearing is as follows:

JOINT STATEMENT OF ISSUE:

On March 23, 1988, Carman Round attended two investigations. Following the investigations, the Company issued one CN form 780 assessing 30 demerits effective March 4, 1988, "for continued unacceptable work attendance".

One further CN form 780 was issued advising Carman Round of his discharge effective April 11, 1988, "for accumulation of 60 demerits or more".

The Brotherhood contends that Carman Round was unjustly dealt with in that the use of one CN form to assess discipline for the two investigations was not clearly indicated that the discipline on the CN form 780 was excessive.

The Brotherhood requests that the 30 demerits be reduced and that he be reinstated with full compensation, seniority rights and benefits. The Company has declined the Brotherhoodís appeal.

The material establishes that Carman Round has been employed by the Company since November of 1972, and progressed to the position of Carman Lead Hand at Thornton Yard, Vancouver at the time of his discharge. It is common ground that he is a drug addict and that he has had chronic problems with respect to maintaining regular attendance at work for a good number of years. It is common ground that between May of 1985 and January 1987 Mr. Round was disciplined on some six occasions for various infractions relating to poor timekeeping in the form of being absent without authorization, leaving work early, being late for work and failing to observe procedures in respect of punching out.

The record establishes that in January of 1987 the grievor first approached the Companyís regional representative for its Employeesí Assistance Program, disclosing to her that he had problems relating to drug addiction. He was then granted a leave of absence, including a term of vacation, extending from January 8 to June 2, 1987. Part of the period of leave included a twenty-six day program on an in-patient basis at a drug treatment centre. The material reveals beyond controversy that while Mr. Rounds condition improved for a time, he again fell into difficulty with respect to attendance and time keeping procedures. On March 4, 1988, for a period of some one hour and a half during his tour of duty ending at 0700 his supervisor was unable to locate him anywhere on the Companyís premises. On that date he again departed work without punching out his time card, and without meeting with his supervisor as instructed for the purposes of discussing his whereabouts. The record also confirms that Mr. Round failed to punch out his time card on February 17, 1988.

During a subsequent investigation Mr. Round explained his conduct of March 4, stating that he had gone for a walk to rid himself of anxiety following an incident at the workplace where two running trades employees offered him drugs. While Mr. Round denies that he was unable to punch his time card on March 4, 1988, he admits that he did fail to do so on February 17.

The record reveals that Mr. Round was involved in various kinds of attendance irregularities on some thirteen occasions between November 18, 1987 and March 7, 1988, when, he booked sick indefinitely. Included within that period of time are a number of infractions for reporting to work late, leaving early and, on one occasion, taking a week of vacation without notice to the Company.

In consequence of the foregoing incidents the Company decided to conduct two investigations on March 23, 1988. The first was addressed to the grievorís failure to punch his time card on February 17 and March 4, 1988 as well as his absence from his work area between 0500 and 0700 on March 4, 1988. The second investigation concerned his overall timekeeping record between November 18, 1987 and March 23, 1988. As a result of the two investigations the grievor was assessed thirty demerits for continued unacceptable work attendance, in consequence of which his disciplinary record stood at seventy demerits, resulting in the termination of his employment.

The Union makes a number of objections to the procedures followed by the Company in the investigation and discipline of Mr. Round. It asserts that the notice advising the grievor that the Company would investigate his attendance problems over the period between November 18, 1987 and March 23, 1988 is too general, and fails to put the grievor on notice with respect to the specific incidents to be examined. It also argues that in those instances where the grievor was spoken to by a member of management, with some written notation on his record for a specific attendance infraction, it is double jeopardy for the Company to re-examine that incident as a basis for the discipline finally imposed. Its representative also takes exception to the Company raising the issue of the grievorís vacation without notice, given that the Company did, after the fact, grant Mr. Round vacation for the period in question. Lastly, the Brotherhood submits that the Company erred procedurally by issuing a single form 780 following the two investigations, assessing thirty demerits for "continued unacceptable work attendance" without specific reference to what portion of the demerits are ascribed to the various incidents and infractions reviewed during the two investigations. It is argued that this hampers the Unionís ability to defend the grievor.

The Arbitrator cannot sustain the procedural objections advanced by the Brotherhood. Whatever may have been the form of procedure followed by the Company, what transpired in essence is that the incidents of February 17 and March 4, 1988 were reviewed by the Company as the culmination of a number of problems. The Arbitrator is not persuaded that in that circumstance it was not open to the Employer to review the grievorís performance in relation to attendance for the period from November through March, including those incidents in respect of which the grievor had been given some verbal or written reprimand. While I agree with the Brotherhood that if it could be shown that there was an overlapping of discipline for one and the same incident that was significant in its impact, the doctrine of double jeopardy might have some application. In this case, however, it was the grievorís pattern of attendance and time keeping which was under review, and with some slight exceptions not material to the outcome, the events examined are those for which the grievor was not assessed any discipline previously. Nor can the Arbitrator find merit in the objection to the form of the notice ultimately assessing thirty demerits against the grievor. There can be little doubt, and I am satisfied that the Brotherhood was aware of it, that the demerits assessed were in respect of an ongoing pattern of irresponsibility in relation to attendance at work and timekeeping procedures by the grievor, of the same type for which he had been investigated and disciplined in the past. Given the culminating nature of these incidents, I can find no procedural flaw in the approach taken by the Employer in the special circumstances of the instant case.

The issue then becomes whether the assessment of thirty demerits and the termination of the grievor was merited in the circumstances. In considering that issue there are factors to be weighed in mitigation. Among them is the grievorís service to the Company of some sixteen years prior to his discharge, and the quality of his work record which eventually merited him the rank of Lead Hand Carman. Consideration must also be given to the grievorís condition as a drug addict which, like alcoholism, is tantamount to an illness. Even accepting those factors, however, the Arbitrator has difficulty seeing how the balance can be tipped in favour of Mr. Round in the instant case. The material establishes beyond dispute that for a substantial period of time the Company was aware of the grievorís difficulties with drug addiction. In respect of that tragic problem it provided to him the counselling facilities of its Employee Assistance Program as well as an extended leave, including sick leave and vacation, for a period of close to six months, to help him on the road to rehabilitation. The record in this case does not disclose the response of an indifferent or uncaring employer. On the contrary, it is plain that the Company made every effort to give the grievor a second chance and to assist him towards rehabilitation. Its obligations in that regard, however, cannot be viewed as indefinite. I must conclude on the balance of the material before me that the Company did treat Mr. Round fairly, and, faced with a repeated pattern of problematic behaviour extending from November of 1987 through March of 1988 had just cause to impose a severe measure of discipline, and ultimately to terminate his employment. In the Arbitratorís view each of the incidents of February 17 and March 7, 1988 would have justified the assessment of fifty demerits, for a total of thirty. While it is devoutly to be hoped that the grievorís personal life will continue on the path of improvement, the Arbitrator is compelled to conclude that this condition and resulting conduct ultimately undermined the basis for a continued employment relationship.

For the foregoing reasons the grievance must be dismissed.

DATED AT TORONTO, this 25h day of July, 1989.

(signed) Michel G. Picher

Arbitrator