IN THE MATTER OF AN ARBITRATION
VIA Rail Canada Inc.
National Automobile Aerospace and Agricultural Implement Workers Union of Canada
IN THE MATTER OF THE GRIEVANCE of M. DERASPE
SOLE ARBITRATOR: Harvey Frumkin
There appeared on behalf of the Union:
There appeared on behalf of the Company:
A hearing in this matter was held at Montreal on April 24, 1991.
This is a grievance contesting the discharge of the Grievor Mr. M. Deraspe, for accumulation of seventy-five (75) demerit marks. The joint statement of facts and issues is as follows:
Mr. M. Deraspe, Coach Cleaner, Montreal Maintenance Centre (M.M.C.), was assessed 20 demerit marks for "pour avoir été vu, assoupi dans la voiture 5642 le 4 juillet 1990". The 20 demerit marks, when added to his current discipline record, resulted in Mr. Deraspe having accumulated 75 demerit marks. He was subsequently discharged from the service of the Corporation for accumulation of demerit marks.
Mr. Deraspe held a day shift position (07:30 - 15:30 hours, Friday/Saturday rest) as Coach Cleaner. On Wednesday, July 4, 1990, M. Deraspe was at work on his regular assignment.
At approximately 14:40 hours, Messrs. M. Duclos, Director, M.M.C. and B. Kanemy, Manager, Quality Assurance, were inspecting car 5642 (located on service track #7) and observed Mr. Deraspe, sitting in a reclined position in a coach seat in the car, his head leaning towards the window. The lights were off in the coach.
Mr. Deraspe attended an investigation into the incident on July 10, 1990, wherein he said that he was sitting and smoking a cigarette when observed by Messrs. M. Duclos and B. Kanemy. Mr. Deraspe also denied being asleep when asked by Mr. Duclos.
Mr. Deraspe was assessed 20 demerit marks for "pour avoir été vu, assoupi dans la voiture 5642 le 4 juillet 1990", which when added to his current discipline resulted in his discharge from service for accumulation of more than 60 demerit marks. The total demerit marks assessed against Mr. Deraspe's record now stand at 75.
The Union appealed the discipline on the grounds that the employee had completed his work, sat down and was smoking a cigarette. The Union requested that Mr. Deraspe be reinstated into service with compensation for time lost. The Corporation declined the Union's request.
The Grievor has been in the employ of the Corporation since February 26, 1979 and at the relevant time was classified as Coach Cleaner assigned to the Montreal Maintenance Center. His regular work-shift commences at 07:30 hours and terminates at 15:30 hours. As Coach Cleaner the Grievor's duties consisted in the cleaning of coach cars and ensuring their preparation and proper supply for service. The position generally consists of vacuuming the carpets and upholstery, cleaning and replenishing the washroom supplies, removing the refuse left by passengers and cleaning the windows and other amenities.
The evidence disclosed that on July 4, 1990 the Grievor had been assigned to clean three coach cars at the Montreal Maintenance Center. His work-shift on that day would have ordinarily terminated at 15:30 hours. At approximately 14:40 hours, two members of the management staff, Messrs. M. Duclos, Director Montreal Maintenance Center and Mr. B. Kanemy, Manager, Quality Assurance, who had been conducting a general inspection, observed the Grievor in the last of the three coach cars which he had been assigned to clean.
According to these two witnesses the lights of the coach in which the Grievor was observed had been switched off and the Grievor was in a reclining position on a coach seat with his eyes closed. Both representatives testified at the hearing and their testimony left no doubt that the Grievor was asleep at the time that they observed him. According to their testimony the Grievor made no sign of acknowledging their presence although it was clear from the white hard hats that they were wearing that they were management personnel. Moreover the Grievor's head was tilted against the window and he failed to respond to a verbal inquiry as to whether he was sleeping. According to the evidence it was only after he was nudged on the shoulder that he awoke.
The Grievor for his part denied that he was asleep insisting that he was only resting after having completed his assignment and while awaiting his next assignment. According to his testimony he had simply sat down to smoke a cigarette. He had switched off the lights in the coach to prevent the batteries from running down and was awaiting his next assignment in the coach.
The Board, after due consideration must conclude that the version of what transpired offered by Mr. Duclos and Mr. Kanemy who observed the Grievor is the one to be preferred. To find otherwise would be to conclude that their testimony amounts to nothing more than a pure fabrication. There is no question that the Grievor was in the coach and that the lights were switched off. The Grievor's insistence that the proper procedure required that he await his next assignment in the coach car is inconsistent with clear and well known Corporation procedures to the effect that all service shop employees without exception must go to the waiting room after completing their work-load on the equipment in the shop in order to receive their next assignment.
On the whole the Board has before it the evidence of two witnesses who state in clear and categorical fashion that they observed the Grievor asleep while on duty. There is nothing in the evidence to suggest that these witnesses would have had any reason to distort or fabricate the facts. On the other hand there are the denials of the Grievor but these fall far short of adequately explaining the circumstances in which he was found nor why he switched off the lights in the coach which he had been assigned to clean and where he remained rather than report for his next assignment as Corporation regulations would have required. Accordingly the finding must be that there existed ample ground for discipline.
The Corporation's response in dealing with the incident was to assess twenty (20) demerit marks against the Grievor's discipline record. These demerit marks when added to fifty-five demerit marks which the Grievor had accumulated to that time resulted in his discharge from service for accumulation of more than sixty (60) demerit marks. The Board sees no basis for intervening in the Corporation's decision in this regard.
The evidence disclosed that twenty (20) demerit marks represented a relatively standard and uniform response for the infraction of sleeping while on duty. The Corporation referred the Board to a significant number of cases in which other employees had been assessed twenty (20) demerit marks for similar misconduct. One such case to which the Corporation referred (not unlike the one of the Grievor), also resulted in the discharge of an employee which was subsequently confirmed upon arbitration (CROA 2030).
The Grievor by July 4, 1990 knew that the had accumulated fifty-five (55) demerit marks and that his position as an employee with the Corporation was precarious. He should have been on his best behavior since his record left no room for digression or indiscretion. In spite of this he permitted a situation to occur whereby he was discovered asleep while on duty. The Corporation's response which took the form of an assessment of twenty (20) demerit marks cannot be viewed as unreasonable and is consistent with the Corporation's practice in dealing with similar misconduct.
The Board accordingly sees no basis for intervention.
For the foregoing reasons the grievance is dismissed.
DATED AT Montreal, May 23, 1991.
(sgd) Harvey Frumkin