SHP 328

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada

GRIEVANCE RE DISCHARGE OF M.D. SMITH

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, CCRSU

J. Brady System General Chairman, UA

R. McLaren Local Chairman, Local 634, UA

M.D. Smith Grievor

 

 

There appeared on behalf of the Company:

A. Y. deMontigny Supervisor Personnel & Labour Relations, Mechanical Department, Montreal

J. Armstrong Calgary Guard, Ogden Shops, Calgary

A. Langlois Assistant Chief Mechanical Officer, Main Shops, Mechanical Department, Montreal

D. J. David Labour Relations Officer, Montreal

 

A hearing in this matter was held in Montreal on September 6, 1990.

 

AWARD

This a grievance in respect of discharge for possession of narcotics in the workplace. The Joint Statement of Fact and Issue filed by the parties at the hearing is as follows:

DISPUTE:

Grievance of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada against CP Rail concerning the discipline and dismissal of Pipefitter M.D. Smith at Ogden Shops.

JOINT STATEMENT OF FACT:

On February 20, 1989, the grievor was advised that his record had been debited with 40 demerit marks for "being found to be in possession of an illegal substance on the Company property during your working hours". He was further advised that "your record has been closed for accumulation of over 60 demerit marks".

JOINT STATEMENT OF ISSUE:

The Union maintains that the discipline and dismissal were unjust inasmuch as the Company did not establish that the grievor had been in possession of an illegal substance. The Union requests that the demerits be rescinded and the grievor reinstated without loss of compensation or other rights.

The Company contends that: i) the dispute is not arbitrable due to the failure of the Union to meet the time limits at Step II; ii) even if it were, which is denied, dismissal was proper in the circumstances.

***

Mr. J. Armstrong is a security guard employed by the Company at Ogden Shops. At 03:40 hours on January 9, 1989 he was performing his regular patrol duty in the fan room when, according to his evidence, he observed the grievor, seated on a stool in a concealed corner, with a pipe in his hand and a transparent plastic bag containing a green substance resting in his lap. Mr. Armstrong relates that at that point the grievor immediately placed the pipe, which was a chrome home-made instrument, in his back pocket and concealed the bag behind his back. When Mr. Armstrong stated to Mr. Smith that he would have to see the contents of the bag, the latter brought the bag out from behind his back, holding it open and upside down. While Mr. Armstrong states that he did not see the contents spill out of the bag, he confirms that it was empty when it was given to him by the grievor, save for traces or flakes of a green substance within it.

Mr. Armstrong then summoned the CP Police to the site. It appears that during the time he did so the grievor returned to the area of his work assignment, which was a water tank located on the south side of the fan room.

When two CP constables responded to Mr. Armstrong's call, the latter and one of the constables proceeded to clean the floor area around the stool where the grievor had been sitting when he was first encountered by Mr. Armstrong. They then found a tobacco-like substance which was later confirmed to be marijuana. The evidence of Mr. Armstrong is that he informed the constables that he had seen Mr. Smith place what appeared to be a pipe in his pocket. No such device, however, was found, when the officers asked the grievor to empty his pockets. Persuaded that the grievor must have disposed of the pipe, Mr. Armstrong conducted an immediate search of the area near the water tank, and found a homemade chrome pipe lying underneath it, in a concealed position.

Mr. Smith denies the accusation of being in possession of a prohibited narcotic on the Company's premises. He states that he never had a pipe in his possession and that he simply found an empty bag on the floor of the fan room while he was sitting on a stool, waiting for the water tank to pump itself out. He suggests that the security guard must have been mistaken in what he saw, possibly misconstruing a socket wrench for a chrome pipe. When asked why he handed the bag over upside down and empty, the grievor states that it was empty when he picked it up, and that he thought nothing of it.

The issue in this case is entirely one of credibility. In the Arbitrator's view, on balance, the account of these events given by Mr. Smith is highly implausible. Firstly, it is not deniable that marijuana was present in the fan room at the time in question. It was found there on the floor by both Mr. Armstrong and the CP constable, and subsequently verified as being cannabis by an RCMP laboratory in Calgary. A homemade pipe, which apparently had traces of cannabis resin, was also found, as related above. Additionally, Mr. Smith, who was assigned to work alone in the fan room, was found seated at a point some considerable distance from the water tank upon which he was assigned to perform work. While he attempted to locate the stool in a somewhat less remote place than did Mr. Armstrong, it is left unclear why he would have been sitting there, even according to his explanation.

If the grievor's account is to be believed, some other person or persons must have both spilled a plastic bag containing marijuana on the floor of a remote part of the fan room while the same persons or others, concealed a homemade marijuana pipe under the very water tank that the grievor was working on that night. The plausibility of that explanation is highly doubtful, at best, and founders in the face of what the Arbitrator accepts as the honest and straightforward evidence of Mr. Armstrong.

I accept the account of events of the evening in question given by Mr. Armstrong, and find it to be more plausible and reliable than that of the grievor. I am therefore compelled to conclude that Mr. Smith was in possession of a plastic bag containing marijuana, as well as a chrome marijuana pipe. He was in possession of these things in a concealed location in the fan room when he was observed, by chance, by the security guard. The evidence establishes, on the balance of probabilities, that he was in violation of the Company's rules prohibiting such possession, and was liable to severe discipline.

The Union does not dispute the measure of discipline that would be appropriate in respect of this infraction. On that basis it objected to any examination of the grievor's prior record, a position sustained by the Arbitrator. In the circumstances, therefore, the grievance must be dismissed.

DATED at Toronto this 17th day of September, 1990.

(sgd) M. G. Picher

Arbitrator