SHP 568

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC RAILWAY COMPANY
MECHANICAL SERVICES

 (the "Company")

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA) LOCAL 101

(the "Union")

RE DISCHARGE OF ENGINE ATTENDANT J. DEMUTH, GOLDEN, B.C.

Sole Arbitrator:                                    Michel G. Picher

Appearing For The Company:

John H. Bate                             – Labour Relations Officer, Calgary

Gilles Pépin                               – Labour Relations Officer, Calgary

Appearing For The Union:

Brian McDonagh                        – National Representative, CAW-TCA

Vinod Gill                                  – Vice-President, Pacific Region CAW Local 101

Tom Murphy                              – President, CAW Local 101

Brian Hardy                               – Financial Secretary, CAW Local 101

Ray Lawson                              – Local Chair, CAW Local 101, Golden

A hearing in this matter was held in Calgary on June 24, 2003

AWARD

            This arbitration concerns the discipline and discharge of Engine Attendant J. Demuth of Golden, British Columbia for the accumulation of demerits, on May 13, 2002. The outline of the dispute is reflected in the Ex Parte Statement of Fact and Issue filed by the Union which reads as follows:

DISPUTE:

Dismissal of Engine Attendant J. Demuth, Golden, B.C., for the accumulation of demerit marks on May 13, 2002.

–          Assessed 30 demerit marks for sleeping while on duty on April 7. 2002.

–          Assessed 20 demerit marks for failing to report for duty on April 14, 2002.

STATEMENT OF FACT:

After an investigative statement was taken by the Company on April 16, 2002, Mr. Demuth was issued the following Form 104 on May 13, 2002.:

“Please be advised that your record has been debited thirty demerit marks for sleeping while on duty on April 14, 2002 at the Golden Mechanical Facility.” [sic]

After an investigative statement was taken by the Company on May 7, 2002, Mr. Demuth was issued the following Form 104 on May 13, 2002:

“Please be advised that your record has been debited twenty demerit marks for failure to report for duty on April 14, 2002 at the Golden Mechanical Facility.”

In addition to the demerit marks issued above, Mr. Demuth was issued the following Form 104 on May 13, 2002:

“Please be advised that you have been dismissed for the accumulation of demerit marks in accordance with the Brown System of Discipline.”

STATEMENT OF ISSUE:

It is the contention of the Union that:

–          The recent demerits issued Mr. Demuth were not issued in the spirit of educational discipline in an attempt to bring about a realization as to the seriousness of Mr. Demuth’s situation. In our view they were issued to ensure he was loaded up with enough demerits so that the Company had reason to dismiss him.

–          The Company has acted in an excessive, arbitrary and discriminatory manner in regard to the dismissal of Mr. Demuth.

–          Therefore, with regard to the foregoing, it is the position of the Union that:

–          The discipline of 30 demerits debited against Engine Attendant J. Demuth should be removed from his record.

–          The discipline of 20 demerits debited against Engine Attendant J. Demuth should be removed from his record.

–          Further, with regard to the foregoing, it is the position of the Union that Engine Attendant J. Demuth should be returned to duty 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 monies owing.

The Company believes the discipline was warranted and denies the Union’s contentions.

            The first discipline assessed against Mr. Demuth which is the subject of this arbitration is the assessment of thirty demerits for sleeping on duty on April 7, 2002. The record confirms that the grievor, an employee of some twenty years, had sufficient seniority to hold afternoon work if he chose to do so. In fact, however, he elected to work a regular assignment scheduled from 23:00 to 07:00 hours. On April 7, 2002 he reported for work at the Golden Mechanical Facility and proceeded to the J track where he was to service the remote locomotive. A supervisor, unaware of his whereabouts, contacted him by radio. When he found that the grievor’s voice seemed unusual and unclear, he asked the grievor to repeat himself. Concerned about the grievor’s condition, thereafter the supervisor, Mr. Bob Matheson, decided to drive to the grievor’s work location to observe him.

            When he arrived in the J yard track Mr. Matheson found Mr. Demuth asleep in his Company vehicle. Mr. Matheson woke Mr. Demuth, asking him if he felt able to work. The grievor then explained that he had had no sleep prior to coming to work, but that he did feel able to undertake his shift. It appears, however, that some fifteen minutes later Mr. Demuth called Supervisor Matheson by radio, telling him that he felt unfit to work and that he was going home.

            There is no dispute that the grievor was asleep on the job on the occasion reviewed. Of greater concern are the circumstances surrounding the incident and the grievor’s record in relation to similar incidents. At the time of the incident of April 7, 2002 Mr. Demuth had fifty-nine demerit marks on his record. Significantly, the grievor has an extremely negative record with respect to absenteeism and sleeping on the job. During the year 2000 he was disciplined on three occasions in respect of absenteeism, for a total accumulation of forty demerits. Notwithstanding that precarious position, he incurred a further assessment of nineteen demerits, bringing him to the threshold of discharge, for having slept on duty on both December 22, 2000 and on January 5, 2001. While the grievor’s record was reduced by the elimination of twenty demerits for one year of discipline-free service on February 5, 2002, unfortunately on March 24, 2002 the grievor failed to report for duty or to contact his supervisor to report his absence. That occasioned the assessment of a further twenty demerits, returning his record to the precarious level of fifty-nine demerits.

            During the course of his disciplinary investigations the grievor suggested to the Company’s investigating officer that he suffered from a sleep disorder. However, no medical documentation whatsoever has been produced to substantiate any such condition. Moreover, the material before the Arbitrator discloses that in fact Mr. Demuth held a second job as a truck driver for a waste management company. When questioned about that activity by the Company the grievor suggested that it involved only part time work, normally in the early hours of the day. However, he did not deny, when pressed, that on occasion his second job as a driver for Canadian Waste Management Inc., involved making round trip assignments from Golden to Cranbrook, B.C. involving eight hours of work, sometimes on days when he was scheduled to work the same night for the Company at the Golden Mechanical Facility. Significantly, that was the apparent state of affairs on January 4, 2001, the day before the night tour of duty of January 5, 2001 when Mr. Demuth was found to be sleeping on duty.

            It is trite to say that it is the obligation of an employee to report for duty fit to work, and to remain awake and available to perform productive service for his or her employer during the whole of the employee’s scheduled tour of duty. The Arbitrator cannot avoid the conclusion that the grievor failed to honour that obligation when he was found sleeping on the job in his vehicle at the workplace on April 7, 2002. No good excuse or medical documentation was produced to explain the grievor’s conduct, and the grievor was therefore liable to discipline.

            The Arbitrator is compelled to the same conclusion as concerns the incident of April 14, 2002. On that occasion Mr. Demuth failed to report for duty as scheduled. Some five and a half hours into his assigned shift he contacted his supervisor to indicate that he would not be available to come to work. A subsequent investigation revealed that the grievor did not come to work on the 14th of April because he had fallen asleep on the couch at home and did not wake up in time to report to work.

            As noted above, the incident of April 14, 2002 was clearly recidivist in nature. Mr. Demuth had been assessed discipline in the form of demerits for absenteeism on three separate occasions in the year 2000, and was further disciplined on May 6, 2002 for failing to report for duty or advising the Company of his absence on March 24, 2002.

            At the time of both incidents the grievor’s count of demerits stood at fifty-nine, the threshold of discharge. He had previously been disciplined for absenteeism, for failing to report for duty and, on two occasions, for sleeping on the job. While the Arbitrator appreciates that the twenty years of service registered by Mr. Demuth must weigh in the balance in considering the appropriate measure of discipline, it is also true that the Company should be entitled to rely on the principles of progressive discipline and the fair application of the Brown System. It is entitled to know that at some point, having been fair and restrained in its handling of an employee’s disciplinary file, it may properly terminate the employment of an individual whose irresponsibility has proved to be beyond rehabilitation. Regrettably, that is the case in the grievance at hand.

            With fifty-nine demerits on his record at the time of the incidents reviewed, Mr. Demuth knew or reasonably should have known that he was in a precarious position as regards his continued employment. He knew, or reasonably should have known, that any further incidents of serious absenteeism or sleeping on the job would have the most negative consequences for his continued employment. For reasons he best understands, however, he continued to hold a second job, the demands of which clearly impacted negatively on his ability to provide faithful service to the Company. I am satisfied that the Company was to a substantial degree understanding, if not excessively patient, in dealing with the grievor’s problems of absenteeism and sleeping on the job. In light of his poor prior record, however, given the fresh incidents of April 7 and April 14, 2002, it is difficult to see what alternative was available to the Company. On the whole, given the grievor’s history, I am satisfied that the assessment of thirty demerits for sleeping on duty on April 7, and twenty demerits for failing to report on April 14, 2002 were within the range of appropriate discipline. Give that the record confirms a careful adherence to principles of progressive discipline on the part of the Company, and every reasonable attempt to make the grievor understand that he was in a precarious position, that discipline should not be disturbed.

            For the foregoing reasons the grievance must be dismissed.

Dated at Toronto, this 14th day of July 2003

(original signed by) MICHEL G. PICHER

                                                                                                     ARBITRATOR