SHP 296

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

Brotherhood Railway Carmen of Canda

IN THE MATTER OF THE GRIEVANCE of M.J. LEBLANC

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

B.R. McDonagh System General Chairman, Joint Protective Board

 

 

There appeared on behalf of the Company:

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

R. Black Assistant Car Foreman, Obico Intermodal Terminal Toronto

J.A. Travis Assistant General Yardmaster,Obico Intermodal Terminal, Toronto

D.J. David Labour Relations Officer, Montreal

 

A hearing in this matter was held in Montreal on February 1, 1990.

 

AWARD

At the hearing the parties filed the following joint statement:

DISPUTE:

Dismissal of Carman J.J. Leblanc, Lambton Yard, Toronto, Ontario

JOINT STATEMENT OF FACT:

According to the Company's form 104, on June 21, 1989 Carman M.J. Leblanc was dismissed from service for:

the use of intoxicants while subject to and for being under the influence of alcohol while on duty, a violation of John Street Mechanical Department General Rule #14, Obico Intermodal Yard, June 3, 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 imposed on Mr. Leblanc.

Therefore, Carman M.J. Leblanc 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 Wage Agreement No. 52.1.

The Company denies the claim.

The facts relating to the incident giving rise to the grievor's discharge are not in substantial dispute. At the material time Mr. Leblanc was assigned to work at Obico Yard, in Toronto on the 23:00 to 07:00 shift. His assignment included the normal carman's duties associated with the inspection of trains at that location.

In fact Mr. Leblanc arrived at work at or about 1 a.m on June 3, 1989. When he reported his presence to assistant car foreman Richard Black by radio, Mr. Black became concerned by the slurred sound of the grievor's speech. Shortly thereafter Mr. Black and assistant general yardmaster J.A. Travis confronted the grievor. He was visibly impaired and they immediately removed him from service.

The grievor's account, which is not substantially disputed, is that on the evening prior to the midnight shift in question be had played softball as part of a Industrial league team. Following the game he bad accompanied some of his teammates to a bar where he consumed, according to his estimate, approximately six pints of beer. He states that he then went home and slept for a time, which caused him to be late in getting to work. He does not deny that he was under the influence of alcohol to some degree, and was deserving of discipline. The only issue of substance in this grievance is the appropriate measure of penalty in the circumstances.

Mr. Leblanc relates that following the incident he was advised by both a union representative and a supervisor that the only way to save his job was to admit that he had a drinking problem, agree to obtain assistance through the Company's Employees' Assistance Program and follow whatever rehabilitation programs might be found to be appropriate. He states that on the strength of that advice he answered in the affirmative during the subsequent disciplinary investigation, held on June 6, 1989, when asked whether he bad a problem with alcohol. During the course of the same interview be agreed to contact a member of the EAP to seek help for his problem with alcohol. It appears undisputed that through the offices of the Company's EAP personnel he was put in touch with the Renascent Treatment Centre in Willowdale, Ontario. Before he was able to enter the Centre for treatment, however, he was informed on June 23, 1989 that he was dismissed from the Company. He was then advised that be would receive no further EAP assistance.

Upon the advice of the Union, however, Mr. Leblanc continued the projected course of treatment and entered the Renascent Centre on July 12, 1989. Six days later, when it became apparent to him that the program was only for admitted alcoholics, he discharged himself. Mr. Leblanc states that he is not an alcoholic and has never had a medical problem with alcohol. His assertion in that regard is supported by two certificates of his own family physician of some fifteen years. His unrebutted evidence is that his doctor gave him tests, including a blood test and a liver dysfunction test, as well as an interview respecting his lifestyle as a means of coming to the opinion that Mr. Leblanc is not an alcoholic.

The evidence of Mr. Black at the hearing Indicates that he has a different view of the grievor's relationship to alcohol. According to his evidence he had two prior occasions to warn Mr. Leblanc for being at work in circumstances which he judged to have involved some degree of inebriation. According to his account, on one of these occasions he sent the grievor home. It is common ground that in neither case was any report made, and that Mr. Leblanc was neither charged nor disciplined. When confronted with this evidence Mr. Leblanc could summon no recollection of any such incidents during the four to five months that Mr. Black was his night shift supervisor. According to his evidence, during the first weeks of Mr. Black's tenure he and Mr. Black had some interpersonal conflicts, at least one of which erupted into a heated disagreement which resulted in the grievor booking himself out of the yard. In the result, Mr. Black states that he views the grievor as a person with a prior drinking problem whom he tried to assist by giving him a second chance on two prior occasions. On the other hand, Mr. Leblanc denies that there were any prior alcohol-related incidents or that he has ever had any problem with alcohol.

Prior arbitral awards have well established that reporting for duty under the influence of alcohol, particularly in a safety- sensitive position such as that of a carman working in a yard, is grounds for a severe degree of discipline. Absent compelling mitigating circumstances it may justify discharge. Where, on the other hand, an employee's consumption of alcohol prior to work is candidly admitted, is an isolated an uncharacteristic event, and the individual involved is a long-service employee with a good disciplinary record, there may be grounds to mitigate the penalty.

A number of factors arise in mitigation of the penalty which is appropriate in this case. Firstly, if as Mr. Black maintains, be previously warned the grievor, without assessing any discipline, in relation to coming to work under the influence of alcohol, his actions in that regard, however well intentioned, may have lulled the grievor into a false sense of security with respect to the seriousness of such conduct. More importantly, however, bearing in mind that the Company has the burden of proof in this matter, I am not satisfied, on the balance of probabilities that the alleged prior incidents of inebriation ever occurred in the manner recalled by Mr. Black. While I accept without question the assistant car foreman's good faith, it appears equally plausible from the evidence before me that prior incidents involving himself and Mr.Leblanc, including Mr. Leblanc's leaving the workplace, may have been a function of interpersonal friction between them, and not inebriation on the part of the grievor, whatever Mr. Black's perception may have been. Needless to say the fact that no report was made at the time makes it extremely difficult to evaluate the merit of Mr. Black's impressions at this time. In assessing the equities of discipline in a case of this kind an arbitrator must view with great care an employer's attempt to place weight on a prior incident which it chose not to make the subject of discipline, in circumstances which provided no opportunity of response or rebuttal for the employee involved.

The equities also become doubtful as regards the apparent advice given to the grievor by at least one supervisor to the effect that he could save his job if be admitted to having a problem with alcohol. While I appreciate that the same advice appears to have been given by a Union representative, there is nevertheless reason for concern when the sequence of events is regarded as a whole. Firstly the grievor was told by a supervisor that he could save his job if he admitted to a drinking problem during the course of his investigation. He did so, and agreed to obtain assistance through the Company's Employees' Assistance Program. When he was in the course of taking steps to follow a treatment program, which he believed to be in the nature of a general education program in respect of alcohol, and prior to the commencement of his program at the Renascent Centre, he was informed that he was dismissed. Subsequently, when be withdrew from the program because he did not feel that he ever had an alcohol problem to begin with, he was met with a two-pronged argument from the Company: either he was a non-alcoholic, in which case his being at work under the influence could not be excused or, alternatively, he was an alcoholic who refused to admit his condition and follow an appropriate treatment program. I am not persuaded that it is equitable for the Company to make such an argument in light of the facts disclosed.

On the whole I am not persuaded that Mr. Leblanc is an alcoholic, or that he has ever displayed any problem with alcohol. The best evidence before me in that regard is the documented opinion of his own physician, apparently based on some fifteen years knowledge of the grievor, as well as some physical testing. There is nothing before me to establish conclusively that he has had any prior difficulty with alcohol or that he has attended at work under its influence. On the contrary, I am satisfied that the incident of June 3, 1989 was in fact an uncharacteristic and isolated incident. While its seriousness cannot be ignored, it must be viewed in that light, and in the light of his priorservice. The Company concedes that Mr. Leblanc has been an extremely conscientious, if not exemplary, carman during his eleven years of service. It is common ground that he had a clear discipline record at the time of the incident in question, and indeed it appears that he has received no discipline whatever in some ten years.

In light of all of the above factors I am satisfied that, although the grievor's violation of Company rules by reporting for work under the influence of alcohol merits severe discipline, I am not persuaded that discharge is appropriate in the circumstances. For the foregoing reasons the arbitrator orders that the grievor be reinstated into his position, without loss of seniority and without compensation, with the period of time from his termination to the date of this Award to be recorded as a suspension for his infraction of June 3, 1989. Needless to say any recurrence of such conduct on the part of the grievor in the future will attract the most serious of consequences.

DATED at Toronto this 8th day of February, 1990.

(sgd) M. G. Picher

Arbitrator