IN THE MATTER OF AN ARBITRATION

A W A R D

This arbitration concerns an appeal against the disciplinary assessment of 30 demerits placed on the record of Carman Peter Langill for the alleged consumption of alcohol prior to and during his course of duty. The Joint Statement of Fact and Issue, filed at the hearing, reads as follows:

On June 14, 2000, the company assessed Carman, Peter Langill for his alleged consumption of alcohol prior to and during duty, thirty (30) demerit marks and mandated his referral into the Ontario Northland’s E.F.A.P. For (sic) assessment and treatment. As well, the company required that Mr. Langill provide proof of his treatment and progress during the prescribed treatment.

The Union filed a grievance, contending that the discipline was unjust, without cause, that the investigation of May 17, 2000 was not fair and impartial, and that the mandatory referral into the E.F.A.P. Was (sic) a violation of the E.F.A.P. Agreement.

The Company denied the grievance.

Certain of the facts pertinent to the grievance are not in dispute. The grievor has been employed with the Company since June of 1974, and stands as the most senior carman in the Company’s service at North Bay. It is common ground that prior to the events giving rise to this grievance he incurred no discipline during the entire period of his employment with the Company, some 26 years.

On the evening of March 21, 2000 Mr. Langill was assigned to work on the 4:00 p.m. to midnight shift in the Wheelshop. It is common ground that there was no supervisor on duty during that shift. It is not disputed that Mr. Langill left work at approximately 10:00 p.m. that evening. At or about midnight he was stopped by an OPP constable near his home. When the constable asked him whether he had been drinking he responded that he had had three or four beers at suppertime prior to his going to work, and that he also had a few beers at Mathilda’s Restaurant during his meal break at work. The constable administered a roadside alcohol screening test which the grievor failed. He was taken to the nearby police detachment where two subsequent breathalyser tests found his alcohol blood reading to be at 123 and 118 milligrams of alcohol in 100 millilitres of blood, respectively. On April 18, 2000 Mr. Langill pleaded guilty to a violation of section 253(b) of the Canadian Criminal Code, for driving with a blood alcohol level in excess of 80 milligrams. He was fined $700.00 and suspended from driving for a period of one year.

Through an tip, the source of which has not been identified, the Company eventually obtained a transcript of the Court proceedings and conviction. On May 17, 2000 it conducted a disciplinary investigation into the circumstances of the grievor’s arrest and his related consumption of alcohol on the evening of March 21, 2000.

During the course of the investigation, as well as at the arbitration hearing, Mr. Langill provided an account of the events of the evening of March 21, 2000 which differs from his initial statement to the police constable. Although he initially advised the constable that he had had several beers at home prior to coming to work, and had further consumed alcohol at Mathilda’s Restaurant during his meal break while on duty, Mr. Langill provided an entirely different account to the Company and at the arbitration hearing. He relates that on the day in question, apparently an extremely warm spring day, he had had one beer at approximately 2:00 p.m. while at home. He denies that he attended work at 4:00 p.m. under the influence of alcohol, or that he consumed alcohol during his meal break. According to his account he did not leave the shop premises for his meal, and worked without incident until 10:00 p.m. Mr. Langill relates that he then decided to book off work, and left a message to that effect on his supervisor’s voice mail.

Mr. Langill states that he then proceeded from work to a bar called the Bull and Quench where he consumed as many as four beers, augmented by sambuca shooters. He estimates that he left the bar shortly before midnight and was then pulled over by the OPP constable in the vicinity of his home.

Mr. Langill explains that he did not tell the truth to the police constable with respect to the time and place of his alcohol consumption, telling him that he had consumed alcohol at home prior to work and at Mathilda’s Restaurant during his meal break, because he did not want the constable to know that he had in fact been drinking at the Bull and Quench. In essence the grievor’s account is that he left work early, giving notice of his departure in a manner apparently consistent with normal practice, and that he did not consume alcohol, with the exception of one beer in the early afternoon, so as to render himself unfit for work. He asserts that there was also no consumption of alcohol on his part during the course of his tour of duty.

Based on the information before it the Company assessed 30 demerits against the grievor’s record, a relatively severe measure of discipline given that the accumulation of 60 demerits would place in him in a dismissable position. The Company also made a mandatory referral of Mr. Langill to the E.F.A.P. program for counselling. It is common ground that Mr. Langill followed and properly completed the counselling for which he was referred.

As a preliminary matter, the Union challenges the investigation process which resulted in the grievor’s discipline. Rule 34.1 of the collective agreement provides, in part:

No employee shall be disciplined or discharged until he/she has had a fair and impartial investigation and his/her responsibility established.

The Union’s representative submits that the grievor was denied a fair and impartial investigation. Firstly, he points to the fact that the investigation was conducted by Company superintendent Trevor Prescott. The Union notes that Mr. Prescott received the only evidence in the hands of the Company, being the Court transcript, from Chief Mechanical Office Tom Burton. Its representative stresses that Mr. Burton is the individual who received the investigation report prepared by Mr. Prescott, ultimately decided on the quantum of discipline to be applied, and signed the discipline form eventually received by Mr. Langill. It appears that during the course of the investigation Mr. Burton and other Company officers declined the Union’s request to know how they became aware of the existence of the Court transcript. The Company has consistently refused to reveal the source of its information.

The Union submits that in the circumstances the Company appears to be hiding something, and that its actions in that regard cannot be consistent with a fair an impartial investigation. The Union also submits that the involvement of Mr. Burton, who declined to reveal the source of his information, and who had a significant hand in the process of transmitting the Court records, must be viewed as so intrinsically involved in the administration of the discipline against Mr. Langill so as to place himself in a conflict of interest, in a manner similar to the circumstances disclosed in CROA 1886 and 2041.

The Arbitrator cannot sustain the preliminary objection. Firstly, the collective agreement contains no obligation upon the Company to disclose the source of a tip which leads to a disciplinary investigation. In the case at hand in particular, it is not contested that the grievor pleaded guilty and admitted to driving with more than the permissible level of alcohol in his blood. Nor is there any suggestion that any information material to the grievor’s responsibility was withheld by the Company. The Union was in possession of the same records as Mr. Prescott, the investigating officer, and was fully in a position to call such rebuttal as the grievor wished or to submit additional evidence for the Company’s consideration, in keeping with Article 34.2 of the collective agreement which governs the investigation procedure.

Different considerations might arise if, for example, the grievor was accused of a different form of misconduct, which he fully denied. In that circumstance the identity of the person making an accusation against him might be pertinent to a proper defence. In the case at hand there is no such connection between the subject of the investigation and the identity of the person who relayed the event to the Company, the truth of which is not contested. Nor can the Arbitrator sustain the suggestion that Mr. Burton’s involvement compares to the circumstances in the CROA cases cited. In CROA 1886, the Arbitrator found that the standard of a fair and impartial investigation was not met where the investigation was conducted by the very supervisor who apprehended the employee allegedly under the influence of alcohol, and removed him from service, as the very subject of the investigation was whether the employee had consumed alcohol during or immediately prior to his tour of duty. In that case the investigator was a chief witness. There is no such conflict of interest in the instant case where Mr. Burton is concerned. The fact that he forwarded documentary information to the officer conducting the investigation, and ultimately acted on the content of the investigation report, including the Court record, is not tantamount to making him a witness in the investigation proceedings in any material sense. This is manifestly not a circumstance where there was any conflict of an account of fact rendered by Mr. Burton and any other witness involved in the investigation. On the whole the Arbitrator is satisfied that the manner in which the Company proceeded was fully consistent with its obligations under Rule 34 of the collective agreement, and that the Union’s objection with respect to the alleged failure of a fair and impartial investigation must be dismissed.

With respect to the merits of the grievance, however, the Arbitrator finds the case presented by the Union to be more persuasive. Essentially the grievor’s defence to the charge against him by the Company is that he was not forthcoming in his initial account to the police officer who arrested him on the night of March 21, 2000. As noted above, at the arbitration hearing Mr. Langill explained that he did not want the police officer to know that he had been drinking at the Bull and Quench pub when he was apprehended. For that reason he indicated to the officer that he had consumed liquor both at home and at his meal break, supposedly at Mathilda’s Restaurant.

In fact Mr. Langill’s deception of the police officer is verifiable. As the Court transcript indicates, through the statement entered by the Crown, the police officer’s report did indicate that Mr. Langill advised him that he had consumed alcohol on his meal break at Mathilda’s Restaurant. In fact, it is common ground that Mathilda’s Restaurant, formerly a diner in North Bay, had been out of business for a considerable length of time before the events in question. Additionally, it is not disputed that it was not a licensed establishment, and that in any event the grievor could not have purchased alcohol at Mathilda’s. It is also noteworthy that the grievor’s account that he consumed virtually all of the alcohol which resulted in his breathalyser reading at the Bull and Quench was not first introduced at the Company’s disciplinary investigation. As the Court transcript indicates, when asked if he had anything to say, Mr. Langill corrected the Crown’s statement to advise the Court that he had had a single beer in the afternoon, at 2:00 p.m., and that his consumption of alcohol was entirely after he had left work, and had not occurred at Mathilda’s but at the Bull and Quench.

It is admittedly novel for a board of arbitration to be confronted with an exculpatory statement by a grievor whose plea to the Arbitrator is essentially: “Trust me, I lied”. If such a bald statement was the only defence brought on behalf of the grievor, without any basis of verification, it would obviously not be very persuasive. In the case at hand, however, there are clear indicia within the evidence which support the grievor’s account. As noted above, it is agreed that he could not have consumed liquor at Mathilda’s, an establishment which no longer existed, and which never served liquor in any event. It also does not appear disputed that Mr. Langill’s decision to leave early, some two hours before the completion of his tour of duty, by notifying his supervisor through a call to his voice mail, is not unusual, particularly where an employee’s quota of work for a given tour of duty is complete. The supervisor with whom the call was left did not dispute that he may well have received it, and in keeping with normal practice might also have registered a full eight hour credit of work for Mr. Langill.

When the evidence is weighed in its totality, I am satisfied on the balance of probabilities that Mr. Langill did not consume alcohol at the times or in the manner in which he initially described to the police officer who apprehended him on the night of March 21, 2000. I find that in fact he left work early, following pattern which is generally accepted within the workplace, by duly reporting his departure to his supervisor’s voice mail. Having removed himself from duty, he proceeded to a drinking establishment where, by his own admission, he consumed beer and sambuca shooters in excess of an amount which allowed him to maintain a permissible blood alcohol level. It was arguably open to the grievor’s supervisor to refuse to pay him for the time between 10:00 p.m. and midnight. However, the fact that he did so does not operate retroactively to place the grievor on duty when, as I am satisfied, he clearly booked himself off duty and gave proper notice of that fact to his employer.

In all of the circumstances the Arbitrator cannot sustain the position of the Company, which is that Mr. Langill consumed alcohol either while on duty or subject to duty. The grievance must therefore be allowed. The Arbitrator directs that the 30 demerits assessed be stricken from Mr. Langill’s record. The grievor should appreciate, however, that if this were a case which involved compensation the Arbitrator would be inclined to conclude that the grievor’s inconsistent statements, including his admission against interest made to the police officer, would appear to have operated to the prejudice of the Company, so that an order of compensation would in all likelihood not have been appropriate.

Dated at Toronto this 30^th day of November 2000.

__________________________

Michel G. Picher

Arbitrator

ARBITRATOR: Michel G. Picher

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