(hereinafter referred to as the (Company”)
(hereinafter referred to as the “Union)
ARBITRATOR: Sidney G. Soronow
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
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,