SHP 293

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

Brotherhood Railway Carmen of Canda

IN THE MATTER OF THE GRIEVANCE of L. DUMOUCHEL

 

 

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. Dumouchel Grievor

 

 

There appeared on behalf of the Company:

H.B. Butterworth Assistant Supervisor, Labour Relations - East, Intermodal Freight Systems

G. Bourassa Car Foreman, St. Luc Car Department,Montreal

J.C. Baron - Supervisor, St.Luc Car Department, Montreal

P.E. O'Donohue Assistant Supervisor, Labour Relations - East, Intermodal Freight Systems

D.J. David Labour Relations Officer, Montreal

 

A hearing in this matter was held in Montreal on November 24, 1989.

 

AWARD

DISPUTE in Montreal on November 24, 1989.:

Dismissal Carman L. Dumouchel, St. Luc Car Department, Montreal.

JOINT STATEMENT OF FACT:

On April 27, 1989, Carman Luc Dumouchel 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 at St. Luc Yard on March 30, 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. Dumouchel;

· 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. Dumouchel was "under the influence of alcohol" as stated in the Form 104.

Therefore Mr. L. Dumouchel should be reinstated forthwith, without loss of seniority, without loss of benefits and reimbursed for all time lost as provided for in the Collective Agreement.

The Company denies the claim.

At the time of his discharge the grievor, Luc Dumouchel was employed at the St.Luc Car Department as a Carman. He then had approximately ten and a half years of service, having been hired on September 27, 1978. On March 30, 1989 the grievor reported for work, being scheduled on the 15:00 to 23:00 shift. At the commencement of the shift, at or about 15:05 Supervisor J.C. Baron was responsible for assigning work to some twenty employees. When he instructed Carman Mark St-Jean to proceed to an assignment at the Hochelaga Yard, together with Mr. Dumouchel, Mr. St-Jean protested that the grievor "wasn't in any condition to work." Mr. Baron then assigned another employee to work with Mr. St-Jean. When he next attempted to couple the grievor with Carman L.G. Lambert, the latter also refused to work with the grievor, again expressing the opinion that Mr. Dumouchel was not in a fit condition to work. According to Mr. Baron's own explanation given at the hearing, he was then dealing with a room full of employees and had not to that point himself had much opportunity to observe the grievor.

After Mr. Lambert's refusal to work with Mr. Dumouchel, the grievor came to Mr. Baron and advised him that he should have been assigned to the Hochelaga Yard, and that he was going to speak to his foreman, Mr. Gilles Bourassa. Mr. Baron states that he then observed the grievor's condition, noting that his face was red, he had difficulty speaking and his eyes were bloodshot. Telling Mr. Dumouchel to go ahead and speak with his foreman, Mr. Baron then formed his own opinion that the grievor was not in a fit condition to work.

It appears that Mr. Baron then advised Mr. Bourassa of what had transpired. The latter immediately called Mr. Dumouchel to meet with him in the foreman's office. He also summoned Mr. G. Lemyre, a union delegate, to be present at the same time. The three men met in the foreman's office at approximately 15:10 hrs According to Mr. Bourassa's account, he observed that the grievor had a slurred speech, bloodshot eyes and "staggered movement" and concluded that it was clear that Mr. Dumouchel was under the influence of alcohol. When he told him that he was not fit to work and should leave the premises, the grievor objected. Mr. Bourassa then instructed Mr. Lemyre that it would be in the grievor's best interest if he could persuade him to accede to the foreman's instruction. It does not appear disputed that thereafter the grievor left without further incident.

Mr. Dumouchel denies having been intoxicated or indeed having had anything to drink on the day in question. He states that he had awakened at 5 a.m. on the morning of that day at which time he was involved in an argument with a lady friend. The grievor explains that he then spent the balance of the day at a friend's house, until it was time to come to work. He denies that his eyes were bloodshot, though he concedes that his complexion may have been red as this is a normal condition for him, sometimes caused by a reaction to a particular soap.

The grievor gave a further explanation for his general behaviour and apparent unsteadiness. He states, apparently without contradiction, that he was scheduled to make a court appearance the following day, March 31, 1989 in respect of an assault charge. According to Mr. Dumouchel he was extremely worried about the outcome of his trial, and whether he might be sentenced the next day. During the subsequent investigation he stated that that concern may have caused him high blood pressure and that nervous tension can cause muscle spasms in his legs. He further states that he suffers from plantar's warts which would further explain his unsteadiness of gait.

The Arbitrator has some difficulty with the explanation provided by Mr. Dumouchel. As was obvious at the hearing, he does have a somewhat uneven reddish complexion, and there is no reason to doubt that he suffers from plantar's warts, which he indicated he was willing to display at the hearing. There are, however, other indicators of inebriation which are inadequately explained. Four witnesses, including two fellow employees, state that the grievor's speech was unusual. According to Mr. St-Jean and Mr. Lambert, Mr. Dumouchel spoke in a loud and aggressive tone. In addition, both Mr. Baron and Mr. Bourassa observed that his speech was slurred. No one appears to deny that the grievor appeared unsteady and both management witnesses relate that his eyes were heavily bloodshot. In assessing the credibility of Mr.Dumouchel's denial of inebriation, it must also be noted that at the time he was accused by the Company of being under the influence of alcohol he was in the presence of a union representative in the person of Mr. Lemyre. The latter was not called by the Brotherhood to give evidence contrary to that of Mr. Bourassa, in whose company he observed Mr. Dumouchel in the foreman's office. In the circumstances, the failure of any evidence supportive to the grievor from Mr. Lemyre is, on balance, evidence from which inferences may be drawn which are consistent with the Company's view of the grievor's condition at the time in question. For these reasons the Arbitrator is satisfied, on the balance of probabilities, that Mr. Dumouchel was under the influence of alcohol, to a degree that he was unfit to work, when he reported for duty at 15:00 hours on March 30, 1989.

The issue then becomes the appropriate measure of discipline in the circumstances. Mr. Dumouchel's record is not positive, and stood at fifty-five demerits at the time of the incident leading to his discharge. The record reveals that on a prior occasion, on December 21, 1986, he was disciplined for the same infraction, having reported for work while under the influence of alcohol. The balance of his disciplinary infractions relate to problems with attendance and punctuality. Mr. Dumouchel admits to having had a drinking problem for which he has had professional assistance in the past. Unfortunately, however, this is not a circumstance where the Arbitrator is faced with a candid employee who admits that he was under the influence of alcohol and brings documented medical evidence to establish that he presently has his drinking problem under control or is willing to participate in an ongoing program of rehabilitation. While circumstances of that kind might be cause for mitigation in respect of possible reinstatement and continued employment, there is in this case no such evidence before the Arbitrator and, therefore, no substantial basis on which to ground a discretion to substitute a lesser penalty.

For all of the foregoing reasons the Arbitrator must conclude that the grievor did report for work on March 30, 1989 while under the influence of alcohol, to the point of obvious inebriation. For reasons well canvassed in prior arbitral awards, the work of a carman is sufficiently safety sensitive that that is obviously a serious infraction which, on a second occurrence is deserving of dismissal. Given the grievor's lack of candor and the absence of any medical evidence in support, I can find no compelling basis for mitigation for the penalty imposed. I am, moreover, satisfied that there has been no violation of rules 28.1 and 28.2 by the Company.

For all of these reasons the grievance must be dismissed.

DATED at Toronto this 29th day of November 1989.

(sgd) M. G. Picher

Arbitrator