BETWEEN:
(hereinafter
referred to as the (Company”)
-and –
(hereinafter
referred to as the “Union)
_____________________________________________________________________
_____________________________________________________________________
ARBITRATOR: Sidney
G. Soronow
APPEARANCES:
FOR THE COMPANY: John H.
Bate, Labour Relations Consultant
Adrianne
McCulloch, Manager Human Resources
FOR THE UNION: Brian
McDonagh, CAW National Representative
Ken
Hares, Vice-President, CAW Local 101
AWARD
At the commencement of the hearing, the parties agreed that the
Arbitrator was properly appointed and had jurisdiction to hear and determine
this matter. This grievance was the
second of three grievances relating to the same individual.
At the commencement of the hearing, both parties provided the Arbitrator
with comprehensive written submissions.
The grievance relates to the assessment by the Company of 25 demerits to
the record of Bruce McLaren, in respect of events which occurred on September
12, 2005.
The Collective Agreement contemplates that the parties will submit to
the Arbitrator a Joint Statement of Fact and Issue (the "Joint
Statement"). The Collective
Agreement further provides that in the event that the parties can not agree upon
such Joint Statement, each party will submit a separate statement to the
Arbitrator. In this instance, the
Arbitrator received one statement from Progress Rail TransCanada Corporation
and Pacific Railway and a separate statement from National, Automobile, Aerospace
Transportation and General Workers Union of Canada (CAW/TCA) Local 101.
In an earlier award between the parties in respect of a discipline of 30
demerits to Mr. McLaren, the Arbitrator addressed a preliminary objection
raised by the Company. That objection
was based on the doctrine of laches and was intended by the Company to apply
not simply to the earlier case, but as well to this case. The Arbitrator would therefore refer the
parties to the comments on this subject referred to in the earlier award, as
the disposition of the objection is equally applicable to this case, without
the necessity of repeating same.
At the time of the discipline of the 25 demerits, Bruce McLaren
("McLaren") was a rail car mechanic at the Progress Rail facility in
Winnipeg, Manitoba. McLaren had
accumulated service of 27 years, firstly with Canadian Pacific Railway and
secondly with Progress Rail.
Prior to the incident giving rise to this grievance, McLaren had been
disciplined on four prior occasions. Of
these four prior occasions, there was discipline in February 1980, August 1984
and March 1998. The earlier case
addressed discipline which occurred on March 14, 2005. Although the earlier three disciplinary
occasions gave rise to a total of 20 demerits, at the time of the March 14,
2005 discipline, McLaren's discipline record stood at zero demerits.
The discipline of March 14, 2005 involved 30 demerits. By an earlier decision of this Arbitrator,
that discipline was reduced to 20 demerits.
With respect to this grievance, the 25 demerits was reflected in a Form
104 discipline notice, dated September 16, 2005. The relevant portion of that discipline
notice reads as follows:
"Your
discipline record has been debited with 25 demerits for being unfit for work
and your absence from your assigned work area on Monday, September 12,
2005."
The events giving rise to this discipline originated at approximately
7:45 a.m. on September 12, 2005. At that
time, McLaren walked past his supervisor, Don Swaikoski ("Swaikoski")
inside a facility referred to as Building H.
Swaikoski took notice of a strong smell of alcohol emanating from
McLaren. Swaikoski promptly attempted to
contact a Manager by the name of Peter Kowalyk ("Kowalyk"), however
Kowalyk was not available.
Nothing further appears to have occurred until approximately 8:00
a.m. At that time, Matt Joyal
("Joyal"), who was managing in the absence of Kowalyk, was apparently
informed by several other employees of a belief that McLaren had been drinking. In consequence, Joyal approached McLaren and
engaged him in conversation. Joyal
concluded that he detected a strong odour of alcohol on McLaren's breath. This lead to a discussion between Joyal and
Swaikoski, during which they shared their concerns. As a result, they contacted Rick Broszeit
("Broszeit") a CAW Local Union Representative and Owen Jones
("Jones") a Safety Manager.
One of the exhibits was a written memo from Joyal to Jones. In that memo, not only did Joyal point to a
strong odour of alcohol on McLaren's breath but as well that his speech was slurred. Joyal commented on the fact that he found
this contact with McLaren to be strange, since Joyal had previously been
advised by McLaren that McLaren had been sober for eight months. The memo also recited Joyal's concerns for
McLaren's safety and for the safety of other employees in the vicinity.
In consequence of the foregoing events, the matter was brought to the
attention of Rob Wolsey ("Wolsey"), General Manager of Progress
Rail.
Pursuant to the concern relative to McLaren's fitness to work, a search
was commenced in the workplace to locate McLaren. This search showed no immediate results. After a search (which may have extended for
as much as 45 minutes) Wolsey located McLaren in the vicinity of a locomotive
that McLaren had been assigned to work on.
McLaren was requested to accompany Wolsey, Jones and Broszeit to a shop
office. In a memo of the events, Wolsey
reported the smell of alcohol from McLaren, as the parties walked to the shop
office.
Inside the office, questioning occurred.
McLaren acknowledged having consumed alcohol a few days earlier on
Saturday, but denied consuming alcohol on Sunday or the morning of Monday,
September 12, 2005. McLaren was queried
as to whether he was prepared to take a breathalyser test and McLaren responded
in the negative.
At the same meeting, McLaren was questioned as to his whereabouts during
the period that the group had endeavoured to locate him. Even though he was eventually located in the
vicinity of the locomotive to which he had been assigned, Jones had apparently
checked this work area three times during the search, without any sign of
McLaren. When specifically asked as to
his whereabouts during the period of the search, McLaren's response was that he
was "here and there".
Consequent upon this meeting, Wolsey advised McLaren that he was being
pulled out of service pending an investigation.
Jones was asked to drive McLaren home and did so.
These events became the subject of a formal investigation. On September 14, 2005 McLaren was the subject
of a question and answer interview.
During that interview, McLaren continued to deny alcohol consumption
prior to attending work on September 12, 2005.
In response to the fact that a number of individuals had smelled
alcohol, McLaren offered the explanation that such smell might be on his
clothing or coming out of his skin or a result of his burping.
In response to the issue of personal safety or the safety of others,
McLaren was asked as to whether he was in proper physical and mental condition
to perform his duties. McLaren responded
as follows:
"In
retrospect I would have to say no because I had not eaten for several
days."
During
this interview McLaren explained his activities by indicating that he had
firstly spoken with an employee, whom he felt should be informed of work that
McLaren had performed on Friday, when the fellow employee was absent. After this discussion he stated that:
"I
went to the bathroom because I felt sick and dry heaved and I released that I
felt worse because I had not eaten for several days and I went and laid down
for a while in the locomotive.".
McLaren was questioned about why he felt the need to lie down during his
assigned work shift. Again, he explained
that after he went to the bathroom and dry heaved, he felt sick.
McLaren was questioned as to why he did not report his illness to his
supervisor or the First Aid Attendant.
His explanation was that he experienced "a sudden urge to lie
down".
McLaren was questioned as to why he chose to lie down within the locomotive
generator compartment, being an active work area. His only explanation was that it was "a
sudden urge and I felt it was out of harms way.".
The answers given by McLaren make it abundantly clear that whatever
period of prior sobriety may have existed, McLaren had "fallen off the
wagon". Of course, that does not
itself prove that McLaren was intoxicated on the morning in question.
Normally, a conclusion of intoxication arises from more than just an
odour of alcohol, as often other factors are present such as observations of
glassy eyes, slurred speech or unsteadiness in walking and standing. While there was some mention of slurred
speech, there does not appear to be any assertion of glassy eyes or
unsteadiness in walking and standing. In
fact, Jones who gave McLaren a lift home, included the following in his memo of
events:
"I
accompanied Mr. McLaren to his work station so he could pick up his personal
items then back to the locker room so he could change before leaving the
property. While we walked together, I
noticed a strong odour of alcohol on his breath, although he was talking
coherently and did not appear intoxicated.
I escorted Mr. McLaren off the property and gave him a ride home."
It should be noted that one of the explanations offered by McLaren was
that the smell of alcohol may have emanated from his clothing. However, this explanation is difficult to
reconcile with the fact that following his initial encounter with Swaikoski,
McLaren [during his interview] indicated that he went to the locker room and
changed. Consequently, it is not logical
to accept that the smell of liquor could simply have emanated from the clothing
that McLaren was wearing when he entered the Progress Rail Facility on that morning.
The Union, for its part, argues that the Company has the burden of
proof. In that regard, the Union
suggests that it is not open to the Arbitrator to convert the Company's
suspicion into an evidentiary conclusion.
Based on the totality of the material before me, I am satisfied that McLaren
was unfit for work on the morning in question.
Indeed, McLaren himself acknowledged that he was not in proper physical
and mental condition to perform his duties, although it was a retrospective
conclusion. While McLaren was adamant
that he had not consumed alcohol during or immediately prior to the shift, he
certainly was not prepared to take a breathalyser test in order to validate his
assertion of not having consumed alcohol prior to the shift. By this comment, I do not intend to imply,
nor should it be assumed that I intend to imply, that McLaren had an actual
positive obligation to submit to a breathalyser test. Suffice to say, that McLaren had an
opportunity to exonerate himself on this issue, and declined to do so.
During the course of the hearing, the Arbitrator questioned both sides
in respect of the arguments being put forward.
It should be noted that the Union acknowledged that McLaren was not
entirely blameless in respect of the events that gave rise to the
discipline. Clearly McLaren spent a
period of time laying down in the locomotive rather than working. If that were the product of innocent illness,
one would have expected such illness to be reported to a supervisor or other
responsible party.
In this circumstance, I am satisfied that there was just cause for
discipline, although I am not prepared to conclude that the unfitness for work
was necessarily the direct product of alcohol consumption immediately prior to
or during the September 12, 2005 shift.
The only question remaining is as to whether the discipline of 25
demerits is, or is not, the appropriate quantum of discipline. In other words, is 25 demerits
excessive. On this subject, I conclude
that 20 demerits would have been sufficient discipline for the events that
occurred.
Accordingly, the assessment of 25 demerits is set aside and a discipline
of 20 demerits is substituted in its place.
In respect of the argument on laches advanced by the Company, I do not
consider that the delay in the grievance being the subject of an arbitration
hearing, should in any way, constitute a bar to the reduction of the assessment
of demerits.
I reserve jurisdiction to deal with any question that might arise in
relation to the implementation of this Award.
As always, the parties to this arbitration have presented their cases
with skill and brought to the Arbitrator's attention any case law that they
considered relevant. The clarity of the
presentations has been of great assistance to the Arbitrator in making the
decision.
Dated at
Winnipeg, Manitoba this 1st day of June, 2009.
SIDNEY G. SORONOW,
Sole
Arbitrator