BETWEEN

(the "Corporation")

AND

(the "Union")

SOLE ARBITRATOR: Hugh R. Jamieson

A hearing in this matter was held at Montreal on March 15, 1994.

These reasons deal with a grievance over the assessment of twenty (20) demerit points by Via Rail Canada Inc. (the Employer), against Mr. Harry Finley (the Grievor), for an unauthorized absence from his work location. This apparently occurred on August 16, 1992 when the Grievor was the electrician assigned to the maintenance of a train at Winnipeg Station during a station stop. While the train was still in the station, the Grievor advised his Supervisor that his inspection was completed. He then left the station with another employee, returning approximately thirty (30) minutes later.

Following an investigation into the incident which was delayed for almost six (6) months until February 4, 1993 due to the Grievor ‘s absence from work due to illness, he was assessed twenty (20) demerit points. On March 19, 1993 the International Brotherhood of Electrical Workers (the Union), filed a grievance which was later denied by the Employer. The matter was heard before me at Montreal on March 15, 1994.

As background, the Grievor was hired by C.N. Rail on July 16, 1973 as an electrician and was transferred to the Employer on October 3, 1986 on the day in question, The Grievor was assigned to the afternoon shift in the Servicing Department at the Winnipeg Maintenance Centre. Amongst other things, this Maintenance Centre is responsible for servicing Trains No. 1 and No. 2 which run three times weekly in each direction from Toronto to Vancouver, with a scheduled fifty-five minute service stop at Winnipeg Union Station. In order to service the train during this stop, a team of employees from various crafts is sent by van from the Maintenance Centre to the station which is located about three miles away. It is normal procedure that employees who are dispatched to the station are given a coffee break just prior to leaving the Maintenance Centre and they have their lunch break upon return.

On August 16, 1992 the train was running about forty-five minutes late so the service team had their coffee break and left the Maintenance Centre about 17.30. The train arrived about 18.10. About 18.40, the Grievor reported to his Supervisor that his inspection of the train was complete. Unbeknownst to the Grievor, a video surveillance happened to be ongoing at the station at the time and he and another employee were recorded on camera shortly thereafter, removing their hard hats and leaving the premises. They did not return until 19:11.

According to the Employer, this absence of about thirty minutes during the fifty-five minute train stop jeopardized the departure train. The Employer says that it is crucial that every person on the service team remain on hand until the train departs to cover the event that a defect comes to light or an equipment failure takes place that requires their particular skills. That evening, the Grievor was the only electrician on the team and the train in question was head-end powered (electrically heated, lighted and cooled). In the circumstances, the Employer viewed this as a serious offence and contends that the twenty (20) demerit points were warranted.

In response to these allegations and, in light of the video which he was shown on February 4, 1993 at the investigation into the incident, the Grievor admitted leaving the station. He said that he and the other employee had gone to a nearby mall for coffee. The Grievor claimed though that he had permission from his Supervisor to leave the station. To be more exact, the Grievor said that he had told his Supervisor that he was going for coffee. He added that it was standard practice for employees to slip out of the station for a coffee while they were waiting for the van to go back to the Maintenance Centre. According to the Grievor, he and other employees had done it many times. Also, the Grievor pointed out that he was equipped with a two-way radio and was therefore within easy reach of the Supervisor should he have been required at the train.

The reference by the Grievor to a past practice of the employees going outside for coffee sparked an exchange between the Employer and the Union during the hearing into this matter. One issue was whether coffee was available to this group of employes inside the station. The Employer maintained that there was coffee available in an employee lounge and also that there was a coffee machine on the premises. The Union submitted that the Maintenance Centre employees had been told to stay away from the employees lounge at the station. There was also a difference between the Union and the Employer over the existence of a specific rule prohibiting these employees from leaving the station. The Union took the position that for such a rule to be effective, it would have to well documented and consistently applied or, at the very least, it must have been brought to the attention of the employee affected before the Employer can act on it. Such was not the case here. The Employer on the other hand, submitted that attendance at work for all of the time for which an employee is paid does not have to be spelled out in a specific rule. It is an implicit condition of employment that all employees ought to be aware of and no written rule need exist to allow effective discipline. The Employer compared this with theft, fraud and the like.

In this regard, while I understand what the Employer is saying, I do not think that the broad-brush approach vis-a-vis inherent conditions of employment is sufficient to found discipline in these circumstances. Here, we are dealing with a group of employees who clearly consider themselves to be at work during the "dwell time" between the completion of their inspection of the trains and the return to the Maintenance Centre. From what I saw on the video, they are under no specific direction during this lull in their activities. They were all taking a break, lolling about the yard, obviously killing time until the van left. One was sipping from what appeared to be a bottle of mineral water, another carried a styrofoam cup presumably of coffee. These people were certainly not working, nor were they standing by the train in the station. They were, however, like the Grievor, on call if required by two-way radio. The only difference from them and theGrievor was the location of their "dwell time". He was 400 feet away, but still well within radio contact.

Taking those factors into consideration, I see no need to go into whether the Grievor actually did tell his Supervisor that he was going for coffee or whether he had tacit permission or even what the past practice of the employees has been. Nor need I dwell on the precedents or the arbitral principles that the parties referred to. In this industry, twenty (20) demerit points is quite a hefty penalty, particularly where there was no real abandonment of assignment and there were no adverse effects on the Employer’s operations. Before I could uphold such stiff discipline in the given circumstances, I would require some proof of a specific rule or other direction from the Employer as to how and where these service crews are to pass this "dwell time".

Nothing of this nature was presented to me except for one document prepared on September 14, 1992 which was of course, after the fact (see Exhibit # 5 of the Union’s Brief). In the absence of any written rules governing this situation or, any evidence of verbal directions in the recent past to the Grievor against leaving company premises during this hiatus in his work activities, I do not believe that this severe penalty was proper or warranted.

At the very worst in these circumstances and, where the disciplinary measures were clearly a hindsight affair after the alleged misconduct came to light when the video tapes were reviewed for reasons which I understand were unrelated to the Grievor, a warning should surely have been the first step towards correcting this behavior. This is particularly so when it was known by then that his actions did not have any adverse effect on the departure of the train.

I will allow the grievance and order that the twenty (20) demerit points be removed from the Grievor’s record. That penalty is to be replaced by a written reprimand.

Dated this 29th day of March, 1994