SHP 291
IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN PACIFIC LIMITED
AND
Brotherhood Railway Carmen of Canda
IN THE MATTER OF THE GRIEVANCE of N. TOLA
SOLE ARBITRATOR: M. G. Picher
There appeared on behalf of the Union:
B.R. McDonagh – System General Chairman
L. Carozza – General Chairman, Atlantic Region
L. Tola – Grievor
There appeared on behalf of the Company:
H.B. Butterworth – Assistant Supervisor, Labour Relations - East, Intermodal Freight Systems
P.E. O'Donohue – Assistant Supervisor, Labour Relations - East, Intermodal Freight Systems
E. Loiselle – Car Foreman St. Luc Car Deparment, Montreal
B.Steenhorst – Supervisor, Dangerous Commodities, Montreal
D.J. David – Labour Relations Officer, Montreal
A hearing in this matter was held in Montreal on November 24, 1989.
AWARD
DISPUTE
Dismissal of Carman Trainee N. Tola, St. Luc Car Department, Montreal.
JOINT STATEMENT OF FACT
On April 24, 1989, Carman Trainee Nick Tola was advised by Form 104 that he was dismissed for:
For reporting to work under the influence of alcohol, a violation of General Shop Rule 13 and for failure to protect the north end on the train on which you were working by use of a blue flag, a violation of General Shop Rule 21 at St. Luc Yard on April 2, 1989.
JOINT STATEMENT OF ISSUE
It is the position of the Brotherhood Railway Carmen:
· That the Company has acted in an arbitrary and excessive manner with respect to the discipline issued Mr. Tola;
· That the Company has violated the following provisions of the Collective Agreement:
· Rule 28.1
· Rule 28.2
· That the Company has not proved that Mr. Tola was "under the influence of alcohol" (intoxicated);
· That the amount of discipline issued for each alleged infraction must be stated separately on the Form 104 for said discipline to be considered valid.
Therefore Mr. N. Tola should be reinstated forthwith, without loss of seniority, without loss of benefits and reimbursed for all time lost as provided for in Rule 28.5 of the Collective Agreement.
The Company denies the claim.
The grievor is twenty-three years old and has been in the service of the Company since October 28, 1984. Initially employed as an extra gang labourer in the Maintenance of Way Department, he was a Carman Trainee in the St. Luc Car Department since August 11, 1988.
The material establishes that Mr. Tola was scheduled to work the 23:00 to 07:00 hours shift on April 1 and 2, 1989. By his own admission, on the evening prior to his tour of duty he attended a family celebration at his uncle and aunt's home where he consumed a quantity of home made wine. According to the grievor's recollection he consumed about "two or three glasses". During the course of the shift Supervisor E. Loiselle encountered Mr. Tola while he was working in the yard. According to Mr. Loiselle's observations the grievor seemed somewhat dishevelled in his appearance and had an odour of alcohol on his breath. When Mr. Loiselle asked him whether he had been drinking the grievor readily admitted that he had had a few drinks at a family social occasion before coming to work Mr. Loiselle expressed the opinion that Mr. Tola was unfit to complete his tour of duty and withdrew him from service pending further investigation. The grievor protested, and at first indicated that he was willing to take a blood test to satisfy the Company that he was not impaired. It appears that thereafter he reconsidered that offer, and when he was subsequently taken to the Queen Elizabeth Hospital by Mr. Loiselle and two CN Constables he finally declined to consent to a blood test.
The material further discloses that during the course of his tour of duty Mr. Tola failed to place a blue flag to protect a train on which he and fellow employees were working. Mr. Tola's explanation is that he forgot to place the flag in the confusion resulting from his having spilled a brake shoe cart earlier during his tour of duty.
There is little doubt that Mr. Tola reported for work after drinking on the night in question. The Arbitrator is satisfied that he did not have the same control of his faculties as he would in a fully sober condition. By drinking as much as he did just before coming to work Mr. Tola violated his obligation to the Company and became liable to discipline. The only issues of substance are the degree of his impairment and the appropriate measure of discipline in the circumstances.
It is well settled that reporting for work under the influence of alcohol or drinking on the job is an extremely serious offence, particularly as it relates to employees who are responsible for the inspection of trains and who themselves work on or around train movements. In an arbitration award heard September 13, 1984 in respect of the dismissal of Carman Helper J.B. Sylvester Arbitrator Weatherill made the following comment:
Drinking on the job is, in most industrial situations, a serious offence. While the grievor's faculties may or may not have been noticeably impaired at the time he was caught, it is, I think, clear that they would have been impaired had he continued in the course which he had begun. Such an offence would, as a general matter, be grounds for discharge in the case of an employee involved in the operation of trains, and there is no very substantial distinction between such employees and those whose duties involve, as here, the inspection of trains. Quite apart from the dangers to himself which are inherent in the working environment, the potential risk of harm to others must be said to be very great.
Arbitrator Weatherill made further observations in dealing with a similar offence involving Carman Trainee G.F. McQuaid, a case heard on June 10, 1985 between the same parties:
From all of the material before me, and considering the grievor's demeanour and manner of working on the day in question, l find that the grievor, who had admittedly consumed intoxicants during working hours and had reported late for work, was under the influence of intoxicants to a significant degree while on duty. This is a serious offence, although as some cases have indicated, for a first offence, it might not necessarily be held that it constituted just cause for discharge in the case of an employee working in the shops. In the instant case, however, the grievor twice falsely denied that he had been drinking, and then proceeded to the shop floor where he began to perform his work in an unsafe and very dangerous manner. Further, this was not his first offence of this nature. On August 4, not much more than a month before the present incident, the grievor did not report to work because of drinking. He called to say that he would be late, but did not call again and did not report for work. The grievor was assessed ten demerits on that occasion. Having regard to all of the circumstances, it is my view that there was just cause for discharge in this case. The grievance is accordingly dismissed.
It is trite to say that each case must be determined on its own particular facts. While the matter is not without some doubt, the Arbitrator is satisfied that while Mr.Tola did report for work having consumed alcohol, and may to some degree have been under its influence, he was not in an extreme state of impairment. There is no suggestion that he consumed alcohol during his tour of duty, and he readily admitted having done so prior to coming to work. While the failure to place the blue flag and the grievor's apparent difficulty in manoeuvring the brakeshoe cart raise concerns about his fitness to work, on the whole the evidence falls short of establishing any causal link between those events and his consumption of wine in the evening prior to his tour of duty.
There is no doubt, however, that the grievor rendered himself liable to a serious measure of discipline for having reported for work after consuming a significant amount of alcohol. He is also liable to discipline, albeit on a lesser scale, for his failure to place the blue flag. On the whole the Arbitrator is inclined to view the grievor's actions as an error of judgement on the part of a youthful employee which stands as an isolated and uncharacteristic event in an otherwise clear disciplinary record. Without diminishing the gravity of Mr. Tola's actions, in light of his candor I am satisfied that he is deserving of another chance, and that the circumstances justify the substitution of a lesser penalty. He must appreciate, however, that any recurrence of such conduct in the future will have the most serious of disciplinary consequences.
The Union has argued that the rights of the grievor were violated in respect of articles 28.1 and 28.2 of the collective agreement. That position cannot be sustained. Article 28.1 provides for an employee not being disciplined prior to a fair and impartial investigation. Article 28.2 contemplates an employee is to be given "at least one day's notice of the investigation" and goes on to provide that an employee has a right to be accompanied by a duly authorized representative. The provisions of both articles appear under the heading "Investigation Procedure". In the Arbitrator's view those provisions contemplate the formal investigation and question and answer interviews which took place well after the events giving rise to this discipline. It includes, for example, the examination of Mr. Tola on April 7, 1989. The reference in Article 28.2 to an investigation on at least one day's notice contemplates a process plainly different from the preliminary inquiry being conducted by the grievor's supervisors on the tour of duty which subsequently became the subject of a formal investigation. There is nothing in the collective agreement which would require that Mr. Tola be provided with Union representation at that stage, although it might, on balance, have been preferable in the interests of both parties. For these reasons, the Arbitrator must find that no violation of Article 28 is disclosed.Nor is there any material irregularity in respect of the form 104 delivered to Mr. Tola.
For the foregoing reasons the Arbitrator allows the grievance in part. Mr. Tola shall be reinstated into his employment, without compensation or benefits, and without loss of seniority. The lengthy suspension so imposed shall be in substitution for his discharge arising out of the infraction relating to the consumption of alcohol prior to reporting for duty. In respect of his failure to place the blue flag, his disciplinary record shall be assessed ten demerits. I retain jurisdiction in in Montreal on November 24, 1989.respect of the interpretation or implementation of this Award.
DATED at Toronto this 29th day of November, 1989.
(sgd) M. G. Picher
Arbitrator