CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4705
Heard in Montreal, October 11, 2019
Concerning
CANADIAN PACIFIC RAILWAY
And
TEAMSTERS CANADA RAIL CONFERENCE
MAINTENANCE OF WAY EMPLOYEES DIVISION
DISPUTE:
Dismissal of Mr. D. Unrau.
JOINT STATEMENT OF ISSUE:
On November 23, 2018, the grievor, Mr. Darnell Unrau was issued a Form 104 advising him that he was being dismissed for his alleged “possession of alcohol in a CP supplied motel room in Thunder Bay, ON, on October 19, 2018”. A grievance was filed. Union Position: The investigation conducted into the grievor’s case was not fair and impartial in violation of section 15.1 of the Collective agreement. The grievor neither possessed nor consumed alcohol in his room, and the Company has failed to meet its burden of proving that he did so. The discipline assessed was excessive, unwarranted and not in keeping with the principles of progressive discipline. The Union requests that the Company be ordered to reinstate the grievor immediately without loss of seniority and with full compensation for all wages and benefits lost as a result of this matter. Company Position: The Company maintains that the investigation of the grievor was conducted in a fair and impartial manner and no violation of the Collective Agreement occurred. The grievor was culpable for the incident and was in violation of the Hotel/Motel Camp Rules, HS 203.1 and the Rule Book for Engineering Employees. The disciple assessed was reasonable in all the circumstances and was keeping with the principles of progressive discipline.
FOR THE UNION: FOR THE COMPANY: (SGD.) G. Doherty (SGD.) W. McMillan President Manager, Labour Relations
There appeared on behalf of the Company: D. Pezzaniti – Assistant Director, Labour Relations, Calgary M. Smyth – Counsel, Hicks Morely, Toronto
And on behalf of the Union: G. Doherty – President, Ottawa H. Helfenbein – Vice-President, Medicine Hat D. Brown – Counsel, Ottawa
AWARD OF THE ARBITRATOR
The grievor, a Machine Operator Group 3, was hired by the Company on May 1,
- He was discharged on November 26, 2018 for:
Being in possession of alcohol in a CP supplied motel room in Thunder Bay, ON, on October 19, 2018. --A violation of Policy HR 203-1, System Motel Camp Rules, and SPC 41 M/W Rules and Instructions.
The grievor had been provided with single occupancy accommodation further to
article 12-9(b) of the collective agreement, which provides in part as follows:
When direct billed accommodation is provided by the Company it shall be single occupancy accommodation. The Company further agrees that every employee may, in lieu of single occupancy accommodation, and at his or her sole discretion, choose to receive the Per Diem amount set out in 12.9(b) of the Agreement No. 41.
The grievor chose to allow a fellow employee to stay in the room which had been
provided for him. The grievor himself remained responsible for the room and for
adherence to the rules and policies of which he was aware regarding the possession or
consumption of alcohol in such circumstances. Alcohol was discovered in the room by a
supervisor who had escorted the other employee back to the room following testing for
alcohol. The supervisor found a number of cans of beer, some open, some full, in various
parts of the room. Photographs show many of them clearly observable.
The grievor, while acknowledging that the photographs show there was beer in the
room, denies consumption of any, and denies seeing any. Asked at his investigation
whether he saw that there was beer “all over the room”, he replied (A.35):
Never even noticed. I never looked. I didn’t see nothing.
That response, in my view, stains credulity. From all the material before me, and
on the balance of probabilities, I find that the grievor was in possession of alcohol in
Company-supplied accommodation in violation of the rules and instructions cited and
would be subject to discipline on that account.
The Union contends that the grievor was not given a fair and impartial investigation
as required by the collective agreement. This contention is based partly on the refusal of
a Union request for a recess, and partly on the alleged bias of the investigating officer as
shown by his “overruling” certain objections. As to refusal of a recess, the recess was
refused because the witness had not answered a question. A party does not have a right
to a recess whenever it chooses. The refusal of that request for a recess was perfectly
reasonable, and in fact a recess was granted shortly thereafter. As to the investigating
officer’s language, in saying, for example, “I think my line of questioning is appropriate”,
that cannot reasonably be interpreted as an expression of bias, but is simply a statement
of the procedural conclusion reached by the officer whose duty it is to conduct the
investigation.
It remains to be determined whether the discipline imposed – discharge – was
within the range of reasonable disciplinary responses to the situation. In CROA 2969 , an
employee of thirty-five years’ service was found to have a quantity of marijuana and other
drugs in his room, “albeit possessed by other persons”. In that case a substantial
suspension and strict conditions were imposed, the grievor being reinstated without
compensation. In CROA 3377 , an employee of twenty years’ service “with a stellar
discipline record” was discharged for possession of illegal drugs and alcohol on Company
property. The discharge was upheld.
In the instant case, while the Union argues the Company did not follow progressive
discipline, the fact is that in his brief period of service the grievor had been subject to
formal discipline on two previous occasions, including a 10-day suspension for a similar
offence just five months previously.
In all of these circumstances, I conclude there was just cause for the discharge of
the grievor and the grievance is dismissed.
November 29, 2019 ___________________________________
J. F. W. WEATHERILL
ARBITRATOR