SHP Ė 458

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC RAILWAY

(the "Company")

AND

CANADIAN AUTO WORKERS, LOCAL 101

(the "Union")

IN THE MATTER OF THE GRIEVANCE OF R. Courteau

 

 

SOLE ARBITRATOR: Vincent L. Ready

 

There appeared on behalf of the Company:

Doug Cooke

Dave Guerin

Glen D. Wilson

And on behalf of the Union:

Brian McDonagh

 

A hearing in this matter was held at Vancouver, B.C., on March 24, 1998.

AWARD

This grievance concerns the dismissal of Carman Roland Courteau, from the Golden Mechanical Facility in Golden, B.C. The Joint Statement of Facts submitted by the parties states that Mr. Courteau was dismissed from service on October 24, 1996 for:

Working on a safety sensitive position in an unfit condition, under the influence of an intoxicant on August 31, 1996 thereby endangering yourself and the lives of your fellow employees, a violation of Rule 1(g) of Form 300-2, Safety and Accident Prevention Rules.

The Joint Statement of Issue filed by the parties contains the following:

JOINT STATEMENT OF ISSUE:

It is the position of the Union that:

Therefore, Carman R. Courteau should be reinstated forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including, but not limited to, interest on any moneys owing.

The Company denies the Unionís contentions and claim.

The parties submitted documentary evidence, called witnesses, and made submissions in support of their respective positions. Suffice it to say that the evidence regarding whether Mr. Courteau was at work while under the influence of alcohol on August 31, 1996 was seriously contested by the parties. The statements of a number of employees were filed with this board, in addition to the grievorís statement. Several witnesses were called to give their respective accounts before this board.

EVIDENCE

On August 31, 1996 a Safety/Hazard Report was filed in respect of the grievor. The substance of this Report stated that the grievor was:

Drunk and disorderly - staggering and obnoxious three days in a row says foremen. Smell booze from two track to office approximately 20 feet.

The "Action Recommended" on the Report form states "fire him". Under "Filed by", the following names are written out: "Pat Gillis, L. Sutherland, Harley Peverill, Joe, Ron, Natale". These Carmen allegedly observed the grievor while waiting to commence their 1500-2300 shift. The grievor worked the 0600-1400 shift and had worked overtime on the day in question.

The evidence shows that the Safety/Hazard Report was actually filed by Carman Pat Gillis, who had observed the grievor with other Carmen around the commencement of their shift at 1500 hours. At about this time the grievor was observed in the "breezeway", on his way to the plannerís office, to sign out after concluding his overtime.

The evidence shows that Mr. Gillis took it upon himself to approach Acting Supervisor Barclay Potts with concerns about the grievor being intoxicated while on duty. Mr. Gillis gave evidence at these proceedings and his testimony was, in substance, consistent with the statement he had given to the Company on September 11, 1996.

In essence, Mr. Gillis stated he observed the grievor being "loud and obnoxious and staggering down the breezeway". Mr. Gillis concluded the grievor "was definitely pissed drunk", and that he could smell alcohol on the grievor "from a minimum of 15 feet away". Mr. Gillis added he could smell the grievorís alcohol in the plannerís office a half hour after the grievor left the office.

Carman Lori Sutherland also testified at these proceedings in addition to having her statements of September 12 and 16, 1996 entered into evidence. The information shows that Ms. Sutherland observed the grievor at the same time as Mr. Gillis. Ms. Sutherland stated the grievor smelled of mouthwash, covering up alcohol, as did the office which the grievor had been in. She added the grievor was "staggering around" and was "loud and laughing", although he was usually "quite a quiet man any other time". Ms. Sutherland also noted that the grievor "staggered over" to put a battery away about 5 feet outside of the office and that "he almost fell over" in doing so.

Carman Natale Eccher also testified at these proceedings in addition to having made a statement to the Company on September 12, 1996. Mr. Eccherís statement indicates the grievor "smelt like a brewery" and that he "stunk up" the plannerís office where he had been for "the better part of 15 or 20 minutes". He described the grievor as being "red in the face" with "bloodshot" eyes. Mr. Eccher did not observe the grievor staggering, or being "obnoxious".

Carman Joe Lycka also testified at these proceedings and had his September 12, 1996 statement entered into evidence. Mr. Lycka described the grievorís behaviour at the relevant time as "unusual", and that the grievor "seemed very intoxicated (and) slurred his words". Mr. Lycka added that he saw the grievor stumble and almost fall between the office and the soft drink machine. He added he spoke with Mr. Gillis about this at approximately 1530 hours.

In addition to the statements and testimony of Gillis, Sutherland, Eccher and Lycka, the statements of Carmen Harley Peverill and Ron Dolinski were received by this board as evidence. These two employees also allegedly filed the Safety/Hazard Report that triggered the Companyís actions against the grievor.

Mr. Peverillís statement, however, indicated he did not give Mr. Gillis permission to use his name in the Safety/Hazard Report and only became aware that his name was used days later when informed by Ms. Sutherland. Mr. Peverill stated the grievor "appeared to be goofy" when he observed him at around 1500 hours on August 31, 1996. Mr. Peverill added that he saw the grievor stumble as he attempted to pick up his knapsack. Mr. Peverill stated, however, that he did not smell any alcohol.

Mr. Ron Dolinski also did not give Mr. Gillis permission to use his name in the Safety/Hazard Report filed against the grievor on August 31, 1996. Mr. Dolinski stated he had not seen the Report before the time of giving his statement on September 13, 1996, nor was he even aware that such a Report had been filed.

Mr. Dolinskiís statement conflicts with statements made by Mr. Gillis regarding Mr. Dolinskiís whereabouts and observations. Contrary to Mr. Gillisí assertion, Mr. Dolinski does not recall being in the breezeway and seeing the grievor at about 1500 on August 31. Nor did he speak with the grievor on that day, or observe him riding away on his bicycle. Mr. Dolinski candidly stated he did not even know what the grievor looked like on the relevant date.

Mr. Dolinski stated further he did not observe any one intoxicated at work on August 31, 1996. He did, however, recall Acting Supervisor Barclay Potts ask him on that day if he saw a Carman exhibit signs of intoxication on August 31, 1996 and that he answered this question in the negative.

In a memo drafted on September 1, 1996, Acting Supervisor Barclay Potts wrote that he spoke with the grievor near the end of the grievorís shift and that all he could smell was breath mints and/or gum. He noted the grievor was "very loud and giddy" at this time. Mr. Pottsí memo disclosed that Carman B. Cook approached him and expressed a concern, on behalf of other employees, that the grievor was drinking at work. The memo also noted that Mr. Peverill told Mr. Potts that the grievor had asked him "what end of the building has the wheel bay on it so he could find his bike". The statements of both Mr. Cook and Mr. Peverill contradict these latter two specific assertions.

Carman Clyde Gass also testified at this proceeding, and his statements were entered into evidence. Mr. Gass was the assigned partner of the grievor on the 0600-1400 shift on August 31, 1996. During the course of their shift they inspected and performed brake checks on a number of empty coal trains. Mr. Gass stated he did not observe the grievor exhibiting any sign of intoxication, at any point in the day, and that the two performed a normal dayís work in addition to some overtime.

For his own part, the grievor holds steadfast to the denials contained in the statements he made during the Companyís investigation. Specifically, he denies he consumed any alcohol during his shift on August 31, 1996 and was not intoxicated. His explanation regarding some of his physical symptoms was that he was affected by "pink eye", and the eye drop medication he took. He said any staggering could be attributed to the pain he was in from his mouth ulcers. His statement indicates that a smell of alcohol may have come from his aftershave.

DECISION

It is well established that an arbitrator is to ask three questions when reviewing cases involving the dismissal of an employee. First, did the grievorís conduct give rise to just cause for some measure of discipline. Second, was dismissal an excessive response in all of the circumstances. If so, what appropriate response should be substituted.

Having carefully considered all of the evidence, and the submissions of the respective parties, I conclude that the grievorís conduct did not give rise to a disciplinary response. The onus is on the Employer to adduce, on a balance of probabilities, clear and convincing proof of an offense, commensurate with the severity of the response. In the present case the Employer did not meet this standard. There are a large number of significant flaws in its assertion that the grievor was under the influence of an intoxicant on August 31, 1996. The Employer has not proved that the grievorís conduct gave rise to just cause for discipline and, consequently, the grievor must be made whole for all losses incurred as a result of the Employerís actions.

As noted above, the Employerís investigation into the matter was precipitated by a Safety/Hazard Report allegedly filed by seven employees. The evidence is clear, however, that the Report was generated by Mr. Gillis and that some of the employees listed as having filed the Report were actually unaware of it. The evidence before this board is that some of the employees who are named as having filed the Report disagree with certain significant details outlined. Mr. Dolinski has candidly admitted, contrary to what was stated on the Report form, that he saw no intoxicated individual at work on the day in question.

At the end of the day, this decision turns on a number of significant inconsistencies between the accounts of the respective Company witnesses. These inconsistencies, or discrepancies, stand out in the testimony and statements of Company witnesses, and seriously diminish the credibility of the Companyís position. There was, for example, no clear explanation given to account for the fact that the Report was filed at 1510 hours when the observations of the employees allegedly were made between around 1500 and 1530 hours. Further, certain employees greatly differed on their estimates as to how long the grievor was in the plannerís office. Mr. Eccher, for example, stated the grievor was in the office "for the better part of 15 to 20 minutes". Ms. Sutherland, on the other hand, stated the grievor was in the office for only a "few seconds".

Of even greater significance is the large variance in accounts as to whether the grievor smelled of alcohol. As noted, Mr. Gillis stated he could smell alcohol on the grievor "from a minimum of 15 feet away" from him and that he could smell alcohol in the office a half an hour after the grievor had left. Similarly, Mr. Eccher testified the grievor "smelt like a brewery". These allegations stand in stark contrast to the evidence of a number of other individuals who observed the grievor on August 31, 1996. Notably, Ms. Sutherland smelled mouthwash, although she added this was "covering up" a smell of alcohol. Further, neither Mr. Lycka, Mr. Peverill, nor Mr. Dolinski smelled alcohol on the grievor which would seem very surprising if it was indeed as strong as Mr. Gillis and Mr. Eccher suggested.

It also cannot be avoided that Acting Supervisor Barclay Potts, who had opportunity to observe the grievor from close range in a confined office space, did not smell any alcohol, but rather noted the smell of breath mints or gum. Indeed, Mr. Potts observed nothing that caused him concern regarding the grievor being intoxicated, or manifesting signs of intoxication, on the date in question.

That Mr. Potts did not react to the grievor at the time is wholly consistent with a finding that the grievor did not exhibit signs of intoxication by smell, behaviour, or anything else. This is a telling matter, supported by the statements and evidence of Mr. Gass, who worked with the grievor for the entire shift, with overtime. Not only did Mr. Gass not notice the grievor being or acting intoxicated in any way, he testified that they performed a normal dayís work. These matters, together with the fact that no one observed the grievor drinking on the job, raise serious questions about the legitimacy of the Companyís allegations. The evidence against the grievor is neither clear nor cogent and is conflicting on a number of key points. On a balance of probabilities, I am not satisfied that the Company has discharged the onus of proving just cause for dismissal. Having arrived at this conclusion, it is not necessary for me to deal with the Unionís allegations in respect of the Companyís investigation and responsibilities under Article 28.01 of the Collective Agreement.

The grievance is therefore upheld. The grievor shall be reinstated and made whole for any losses he has incurred as a result of the Companyís actions. I shall remain seized with jurisdiction to resolve any difficulties the parties may encounter in implementing this decision.

It is so awarded.

DATED AT the City of Vancouver in the Province of British Columbia this 21st day of April, 1998.

(signed) VINCENT L. READY

ARBITRATOR