©b61r AD HOC 153
IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY
AND CANADIAN SIGNAL AND COMMUNICATION'S UNION
AND IN THE MATTER OF FIVE GRIEVANCES OF M. BERGERON
SOLE ARBITRATOR: J. F. W. Weatherill
A hearing in this matter was held at Montreal on July 9: 1986.
©u43rA. G. Cunningham, R. Ayotte and M. Bergeron, for the union.
©u27rT. D. Ferens and J. Russell, for the company.
There are before me five grievances, four of which relate to the
assessment of demerit points against the grievor and one of which
relates to his discharge for accumulation of more than sixty
demerits. It was agreed that the five cases should be heard
together, although each will be determined on its own merits.
The grievor, who was hired by the company on January 15, 1973, was
employed at the material times as an S & C Technician. He had, for
much of his employment with the company, been employed in the
Canadian National Communications Division. He there came within a
bargaining unit represented by a different bargaining agent than that
now acting for him, and under the terms of a different collective
In 1983 the company, on notice, effected certain organizational and
operational changes, and integrated the Technicians from the Canadian
National Communications Division with those of the Communications
Department of its C N Rail Division. The latter constituted a
substantially larger group, and by order of the Canada Labour
Relations Board, the present bargaining unit was declared to be the
bargaining agent for employees in the merged bargaining unit. The
grievor is now subject to thee provision of agreement no. 11.1
At the time of the first of the incidents here in question, that is,
as of November 13, 1984, the grievor's disciplinary record consisted
of a reprimand effective January 10, 1984 and 15 demerits issued on
February 23, 1934. I now turn to a consideration of the grievances
©b69r GRIEVANCE No. 1
This grievance relates to the assessment, on December 17, 1984, of 15
demerits for ignoring written instructions. At the material times,
the grievor's regular shift began at 1600 hours. On November 5,
1984, the grievor was instructed, by telex, that he was to attend a
training course in communications data to be given on November 13, 14
and 15, and that his hours, for that period, would be changed to 0730
The grievor did not attend the course as directed, reporting instead
to his regular place of work at his regular time. He had given no
notice to his supervisor that he would not attend the training
course, and appears to have raised no timely objection to the
instructions given him. He simply disregarded them.
By written notice of November 23, 1984, the company again instructed
the grievor to attend a training course. This was to be on December
4, 5 and 6 and again, the hours were to be from 0730 to 1630. Once
again, the grievor did not report as instructed, nor did he give his
supervisor any warning that he would not report.
At the investigation of the matter, asked why he had decided to
ignore the written instruction without giving prior notice, the
grievor replied as follows:
je ne pouvais pas vous demander d'enlever mon nom sur la
liste parce que, sauf erreur, vous m'avez deja deffendu
d'ecrire mes demandes sur le temps de la compagnie, 2e, M.
Bernardin m'a indique a partir de ce qu'il m'a ecrit qu'il
comptait les notes que j'addressais a la compagnie et m'en
faisait reproche, 3e, le 14 Novembre 1984 j'ai rencontre M.
L. Corriveau, superviseur suppliant qui a accepte que je
travaille le soir.
This reply can only be described as at best petulant. If the grievor
proposed not to follow a written instruction it was clearly his
obligation to advise the company of that, or at the least to protest
the instruction (and of course an oral protest would have sufficed).
If his complaint were well-founded, then of course the company could
not rely on his making it as some sort of ground of discipline. And
of course the fact that he was allowed to work his regular shift,
being there, did not amount to some sort of condonation of his not
having reported for the training, as instructed.
In reply to the question why he decided not to take the course, the
"le stage est volontaire.'
This was a reference to article 10 of the collective agreement, which
deals with training (formation), and provides that employees taking
training under the Training Plan for Signal Employees would be
designated either as compulsory or as voluntary trainees (en stage
obligatoire ou en stage volontaire). It does not appear that the
grievor was one who, within the meaning of article 10.1(a), "entered
or enters signal service as an apprentice or higher", and he would,
accordingly, be a "voluntary trainee" within the meaning of article
10.1(b), were he to be engaged in the program, contemplated by
article 10. In my view, however, the training in communications data
being offered the grievor was more in the nature of "updating" than
in the nature of the fundamental and lengthy training contemplated by
article 10. Attendance at classes in question would not have made
the grievor a trainee (stagiaire), within the meaning of that
Further, the parties, that is the company and the union, had, in
contemplation of the merger of the two groups of employees, signed a
letter of understanding which read in part, as follows:
Employees concerned will be required to undertake certain
training to bring about a totally intermingled group for the
maintenance, installation, etc., of the Signals and
Communications facilities on CN Rail.
This agreement between the parties dealt specifically with the sort
of "training" which the grievor was required to attend. Even if the
training would otherwise have come within article 10 (and I do not
consider that it did), this provision was a modification of it. In
considering, as he stated he did, that attendance at such training
was voluntary, the grievor was in error.
Of course, even if the grievor had been correct (as he was not), in
his understanding of his employment obligations, it was nevertheless
his duty to follow the instructions given and to grieve if he felt
As to the change of hours, it is clear that the grievor was advised
thereof, in each case, within the time contemplated by article 5.2 of
the collective agreement, which is as follows:
Regular assignments shall have a fixed starting time which
will not be changed without thirty-six (36) hours' notice to
the employees affected. Employees' time will start and end at
a designated point.
In the circumstances, it is clear that the grievor simply ignored a
proper direction, properly given, and that he was in violation of his
obligation to his employer in doing so. This was a serious instance
of insubordination, and the grievor was properly subject to
discipline. The offence was a repeated one, the grievor having had
ample time to inform himself of the error of the position he had
taken. In these circumstances, I consider that the assessment of 15
demerits was well within the range of reasonable disciplinary
responses to the situation, and that there was just cause for the
imposition of that penalty. The grievance is accordingly dismissed.
Effective December 17, 1984, the grievor was assessed 10 demerits for
not advising the company that he would be absent on certain days.
This penalty was reduced to that of a written reprimand, during the
course of the grievance procedure. At this point, then, the
grievor's disciplinary record stood at thirty demerits and two
©b69r GRIEVANCE No. 2
On April 16, 1985, the grievor left work before the end of his shift,
and without having received permission to do so. He stated that he
left in order to write a medical examination.
The following day the manager of the grievor's section asked Mr.
Corriveau, a relief supervisor, to request the grievor to state the
reason for his absence on the 16th. Mr. Corriveau informed the
manager of the grievor's reply, and the manager then requested that
that reply be put in writing. Mr. Corriveau then presented the
grievor with a letter requesting him to put his reason for absence in
writing. That was a proper request in the circumstances, and Mr.
Corriveau was properly authorized to deliver it. The grievor
responded that Mr. Corriveau was only a replacement, and that he
would like the request in writing from another company officer.
On April 19, on instructions from the manager, Mr. Corriveau again
went to the grievor, explained the nature of his authority and stated
that he was making an official request, but the grievor again refused
to comply. Later that day, the Regional Engineer, Signals and
Communications called the shop and sought to speak to the grievor,
but the grievor refused to speak without first knowing the subject of
the conversation. Advised by Mr. Corriveau that severe disciplinary
action would follow if he persisted in his attitude, the grievor
nevertheless refused to speak to the Regional Engineer.
At the investigation of the matter the facts of which are not in any
significant dispute the grievor protested at length the role of the
presiding officer in acting as "intermediary" with respect to
questions the grievor sought to put to a company witness. The
presiding officer would, of course, be entitled to rule on the
relevance or propriety of questions put. Had he refused proper
questions, that would well have an effect on the case the company
might be able to present at any subsequent arbitration. There was,
however, nothing at all improper in the presiding officer's
indicating that he would exercise that function. The company
attempted to conduct a proper investigation as required by the
collective agreement, although this would appear to have been
frustrated to some extent by the conduct of the grievor, who withdrew
from the investigation before he could be asked to give his own
statement as to the material events. It was stated in the union's
brief at the hearing of this matter that the grievor did not refuse
to speak to the Regional Engineer, but in other respects there is no
dispute as to the facts.
It is also suggested that the company was seeking to make an example
of the grievor, and that it was discriminating against him, but there
is no evidence of any way in which the company was treating others
differently from the grievor. There is nothing to suggest that other
employees conducted themselves in the silly and contumacious manner
of the grievor.
In the circumstances, it must be concluded that the grievor did
refuse to follow proper directions, and that there was no
justification for such refusal. He was properly subject to
discipline on that account. I do not consider, however, that a
penalty as great as one of 20 demerits was appropriate in this case,
which was not one of a refusal to perform productive work, but is
more appropriately characterized as an instance of foolishness,
although no doubt one which made the lives of the company officials
more difficult than they needed to be.
Having regard to all of the circumstances, I conclude that the
assessment of 20 demerits should be set aside, and an assessment of
10 demerits substituted therefore. At this point, then, the
grievor's disciplinary record stood at 40 demerits and two
©b69r GRIEVANCE No. 3
Effective May 3, 1985, the grievor was assessed 5 demerits for an
unjustified absence. That was not made the subject of a grievance,
and is not now in issue. The grievor's record, prior to the matter
now to be considered, thus stood at 45 demerits.
On May 3, on being advised of the assessment of 5 demerits just
referred to, the grievor became angry, and telling his supervisor
that he was encoeure de l'attitude de la compagnie" and that etant en
colere, il n'etait pas prudent de continuer a travailler dans
l'atelier", he left work. He did not have permission to do so.
It may be that, being angry, it would have been proper for the
grievor to take some time to cool down. That is not to say that it
was reasonable or proper for him simply to leave his work (apparently
early in his shift). It may be, too, that the grievor felt that his
anger was somehow justified, although there is no evidence which
satisfies me that it was. While I consider that, in these
circumstances, there were grounds for the imposition of some
discipline on the grievor, I do not consider that the assessment of
20 demerits was appropriate. In this case, again, it is my award
that the penalty of 20 demerits be set aside, and that one of 10
demerits be substituted therefor. Thus, at this point, the grievor's
discipline record stands at 55 demerits and two reprimands.
©b69r GRIEVANCE No. 4
This case involves the assessment of 20 demerits against the grievor
for unauthorized absence on May 7, 8, 9, 10, 14 and 15, 1985. There
is no doubt that the grievor was in fact absent from work on those
dates, and that he had no permission to be absent.
On March 27, 1985, the grievor had requested leave of absence from 1
May to 31 May 1985, in order to complete his third year of medical
studies. On April 3, the grievor's request was denied, on the ground
that the course being taken by the grievor bore no relation to his
work. No grievance was filed in respect of that refusal. There is,
thus, no issue before me as to the propriety of the refusal. It was
nevertheless argued at the hearing that sin