SHP681

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC RAILWAY COMPANY

(the “Employer”)

AND:

CAW – CANADA AND ITS LOCAL 101

(the “Union”)

(Rodney Zdrill Grievance KMA0040– 40 Demerits)

ARBITRATOR:                                                                Vincent L. Ready

COUNSEL:                                                                     Shelley Smith

                                                                                        for the Employer

                                                                                       Brian Stevens

                                                                                       for the Union

HEARING:                                                                      February 7 and 8, 2012

                                                                                      Winnipeg, Manitoba

DECISION:                                                                      March 16, 2012

32698.6

The parties agree that I am properly constituted as an arbitration board with jurisdiction to determine the matter in dispute.

DISPUTE

Appeal of discipline and accumulation of demerit marks assessed to the record of Rodney Zdrill, the grievor.

JOINT STATEMENT OF ISSUE

On February 8, 2010 Rail Car Mechanic Rodney Zdrill attended a disciplinary investigation in relation to his “condition when reporting for duty on February 1, 2010”.

Following the disciplinary investigation(s), on May 25, 2010, the grievor was issued 40 demerits for “reporting for duty under the influence of alcohol, a violation of Company Policy 1806 Alcohol and Drug Policy and the Safety Rules and Recommended Practices for Mechanical Services Employees, Section 1, Core Safety Rules Item 8 at the Winnipeg Car Department on February 1, 2010”.

The Union contends that the grievor is a long service employee with a commendable record.  During the investigation the grievor acknowledged that he smelled of alcohol but adamantly rejects the Company’s contention that he was under the influence of alcohol when he reported to work on February 1, 2010.  The Union also contends that the Company’s decision is based on observations of two untrained supervisors and that the investigation itself was fatally flawed as it did not meet the test of a fair and impartial investigation.  Additionally, the Union submitted that mitigating factors existed which were not appropriately considered.  The Union contends that the discipline assessed is without just cause and in the alternative excessive.

The Company disagrees with the Union’s contention and has declined the Union’s grievance.

AWARD OF THE ARBITRATOR

The grievor returned to work on February 1, 2010 after a layoff of approximately ten months.  He arrived at the office of Training Specialist Will MacDonald and sat in the chair next to him.  At that time, Mr. MacDonald detected a strong smell of alcohol and observed that the grievor’s hands were shaking.  The grievor told him that he had been out with the boys and had not been home yet.

Mr. MacDonald left the office to contact Process Manager Richard Poirier and in his absence the grievor went downstairs and was found using the phone.  During the return to the office, the grievor was unsteady and used a counter for support.  Mr. Poirier observed that the grievor was shaking all over, smelled of alcohol, avoided eye contact and was hesitant in his speech.  The grievor said he had only six hours of sleep.  Mr. Poirier advised the grievor that he was unfit for duty and, as such, Mr. MacDonald would drive the grievor home.  However, the grievor’s girlfriend called to say she would drive him home.  The grievor was told that he would be held out of service pending investigation and as per Company policy, Mr. MacDonald had to escort him home.

When the grievor was in the car with Mr. MacDonald he received another call from his girlfriend confirming her arrival to pick him up.  The grievor unbuckled his seat belt and left the car, ostensibly to tell her that he would be going home with Mr. MacDonald.  He did not return to Mr. MacDonald’s car, rather he got into his girlfriend’s car and left the premises without further discussion with Mr. MacDonald.

The grievor claimed that he was fit for work and any smell of alcohol emanated from his clothing because alcohol spilled on his clothes when he was drinking prior to 10 p.m.  He further asserted that the shaking was a result of permanent nerve damage and management was not aware of his medical condition.  He further claims that he did not see Mr. MacDonald signal for him to stop as he drove away.  Overall, the grievor claims the entire situation was a misunderstanding and left the site intending to contact his Union representative so things could get cleared up.  Neither of the grievor’s supervisors had been aware of any medical condition other than lifting restrictions, vertical climbing restrictions and an inability to raise his arms over his head.  There was also some question raised as to the nature of the investigation.

The Employer has a very clear policy:  Policy 1806 – Alcohol and Drug Policy which requires all employees and contractors to report for work in a condition that enables them to safely and effectively perform their duties.  The policy further requires employees to remain able to perform work duties free of the effects of alcohol, illicit or illegal drugs, or medications that have the potential to adversely affect the way a person thinks, feels or acts.

In reviewing this matter and specifically, the 40 demerits imposed, three questions are considered:  whether the grievor’s conduct gave rise to just cause for some form of discipline; if so, was the disciplinary response of the employer appropriate having regard to all of the circumstances; and, finally, if the discipline was excessive, what discipline would be appropriate.

Turning to the first question, having reviewed the evidence in light of the jurisprudence provided, I am satisfied that the grievor attended work smelling of alcohol.  The evidence further establishes his conduct with his supervisor was somewhat irrational.  Arbitrators have recognized that an individual under the influence of alcohol often shows visible signs including the smell of alcohol or a staggered walk.  Two members of management observed the grievor exhibit both of those classic behaviours.  I conclude that the grievor attended work in a condition that did not permit him to safely and effectively perform his job duties.  Therefore, the Employer had just cause to discipline the grievor.

Turning to the second question pertaining to the appropriateness of the discipline, I accept the submission of the Employer that it has a legitimate interest in deterring such behaviour and such deterrence is a legitimate basis on which to uphold more severe disciplinary sanctions.  As well the severity of the penalty sends an important message of deterrence to the bargaining unit performing this safety-sensitive work.  While 40 demerits may appear on its face to be a harsh sentence for such a long term employee, given the issues raised in this case, I agree in these circumstances given the grievor’s prior discipline record, that this level of discipline is appropriate and is necessary to correct the grievor’s behaviour.  It should alert the grievor to the seriousness of his situation.  I understand that the grievor has been made of aware of the assistance available through the health and welfare plans and I strongly encourage him to make use of that assistance without further delay.

In all of the circumstances, I am satisfied that the issuance of 40 demerit points was appropriate.  Accordingly, I dismiss the grievance.

It is so awarded.

Dated at the City of Vancouver in the Province of British Columbia this 16^th day of March, 2012.

                                                                             _____________________________

                                                                             Vincent L. Ready