©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.

©b63r AWARDS

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

agreement.

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

before me.

©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

to 1430.

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

grievor replied:

"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

article.

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

wronged thereby.

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

written reprimands.

©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

reprimands.

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.

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