AH - 227

 

 

 

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN:

 

 

THE CANADIAN UNION OF TRANSPORTATION EMPLOYEES,

LOCAL 6

 

(the ”Union”)

 

 

AND

 

BRITISH COLUMBIA RAILWAY

 

(the “Company”)

 

 

 

 

 

 

SOLE ARBITRATOR:    J. W. Franson

 

 

There appeared on behalf of the Company:

                                                H. Collins                              Supervisor, Labour Relations

T. Teichman                         Manager, Labour Relations

 

 

There appeared on behalf of the Union:

                                                W. R. Carkner                      President Local No. 6, C. U. T. E.

                                                Ian Donald                           Counsel

                                                V.B. Graco                            Shop Steward (Grievor)

                                                               

 

 

 

A hearing in this matter was held at Vancouver, B. C., on the 5th day of June, 1978.

 

DISPUTE:

 

20 demerit marks assessed the discipline record of V. B. Greco effective October 18th, 1977 for allegedly refusing to follow the instructions of a Supervisor on October 14th , 1977.

 

JOINT STATEMENT OF FACTS:

 

On October 14th, 1977 V.B. Greco, a Shop Steward in the Work Equipment Shop, Prince George, was suspended from service and subsequently disciplined for his alleged refusal to follow the instructions of a Supervisor.

               

                The Union requests the removal of the 20 demerit marks assessed discipline record of V. B. Greco                 that he be compensated for the time suspended from service.

 

                The Railway has refused the Union’s request.

 

                The Union alleges violation of Section 18.3 of the Collective Agreement which reads as follows:

“18.An employee will not be held out of service pending the rendering of a decision unless the offense is considered sufficiently serious to warrant such action. The decision will be rendered within twenty-eight (28) calendar days from the date the investigation is complete unless other wise mutually arranged.”

 

The issue in this case is whether or not the grievor, V. B. Greco, a “shop steward”, was unjustly dealt with in being assessed 20 demerit marks for not returning to his work in the Railway Maintenance shop at Prince George, B. C. when instructed to do so by the Shop Forman.

 

Upon reading the statements and hearing evidence under oath submitted by both parties, I find that at approximately 1000 hours on the 14th of October 1977 in the Railway Maintenance Shop at Prince George, Mr. K. Bartlett, ‘an assistant maintainer’, was requested by the Assistant Shop Forman to install a water drinking fountain. This work entailed the cutting into a water supply pipe located near the ceiling of the Shop some 18 feet above the floors and very close to the overhead hoist.

 

Mr. Bartlett, not being qualified pipefitter or plumber, was reluctant to perform this job, expressing his concern for his safety in reaching the overhead water line, informed the Shop Steward of the situation, who in turn approached the assistant Shop Foreman and informed him that this class of work was not the duty of an Assistant Maintainer. In replying, the Assistant Shop Forman advised that the job would be assigned to someone else and that the work could not be done until certain parts and fittings were made available. This did not satisfy the Shop Steward who them approached the Shop Foreman and insisted upon knowing when the installation was to take place and who was going to do the job.

 

The Shop Foreman informed the grievor that the installation could not be made until the necessary fittings were made available and that Mr. Bartlett would not be performing the work and that he, the grievor, return to his work. This was not complied with. The grievor then stated that the reply was not satisfactory and demanded a commitment from the Shop Foreman as to who would be designated to do the installation and that he be informed on matters of safety in reaching the water pipe to make the necessary connection. The Shop Foreman re-iterated his former reply and again asked the grievor to return to his work.

 

Again the grievor ignored the Shop Foreman’s instructions to return to his work area and continued to insist that the Shop Foreman give him definite answers to his questions. The Shop Foreman then again instructed the grievor in a more emphatic and profane manner to return to his work area, adding that failure to do so would result in his removal from service pending an investigation.

 

The grievor then invited the Shop Foreman to remove him from service.

 

Dealing with the Separate Statement of Issue, Exhibit No. 3, submitted by the Union. The Union claims that two important basic principles have been neglected by the Company in it’s dealings with the issue. First being the issue of a worker’s right to assurance that the environment in which and the conditions under which he is required to perform his duties present no dangers to his personal health and/or safety. The second issue in this case is the right of a certified representative of a certified bargaining agency to carry out the performance of his duties for the benefit and protection of those workers covered by certification. The Union further claims that the statement taken from the grievor on October 14th, 1977 was not impartial, that it does not deal with the issues in this case and nor was the grievor advised in the proper manner as required by the Collective Agreement. In the letter dated October 14, 1977 from J. Denial, Supervisor, Work Equipment Shop, to Victor Greco, Greco was advised in part that “under the wage agreement, you may bring a fellow employee with you to this investigation.” The Union contends that the notification was incorrect in that the Collective Agreement reads in Section 18.”When an investigation is to be held, the employee will be notified of the time, place, and subject matter of such hearing. He may, if he so desires, have a fellow employee and /or an accredited representative of the Brotherhood present at the hearing and shall be furnished with a copy of his own statement, and , on request, copies of all evidence taken.”

 

The Union further submits that the question of impartiality is shown in the line of questioning taken by the investigating Officer of the Company. Near the beginning of the questioning, Mr. Friend asks, “Concerning the subject of this investigation, would you please answer my questions with a Yes or No answer.”

 

DECISION:

 

In establishing jurisdiction, I find that the grievance has been pursued through the proper channels and it is agreed, by both parties concerned, that the matter be settled by an arbitrator.

 

                In summary, I agree with the contention of the Railway Company that it has the right to direct and control the productive process of it’s operation and that someone must have the authority to direct the manner in which this productive process is to function. In this case, that authority was vested in the Supervisor, J. Denicola.

 

                I also recognize the role of the Union representative and his duty in policing the Collective Agreement and that he be afforded certain courtesy and privileges in dealing with Supervisory personnel on matters of concern to the workers, i.e., safety measures, etc.. In this case, the grievor (Shop Steward) approached the Supervisory Personnel regarding instructions issued by the Assistant Supervisor to an employee who was not qualified to perform such work, for to install a water drinking fountain, in the Maintenance Shop and upon what safety precaution was to be taken in making the installation. Upon being assured by the Supervisor that this particular person would not be used to perform the task, nor could the installation be done at that time owing to not having the necessary fittings and upon being instructed to return to his work, the grievor should have complied with that instruction and returned to work as the matter of concern no longer existed. I cannot overlook the manner in which Supervisor Denicola instructed the grievor, although some provocation did exist, the language used was deplorable and unnecessary. Regarding the impartiality of the investigation held at Prince George on October 18th, 1977 I find some discrepancy especially in the instructions to the grievor, however, he was afforded the opportunity of expressing himself other than with a Yes or No answer.

 

                Upon reading Section 18.2 Collective Agreement, my interpretation of this section is that it is the duty of the Company to notify the employee of the time, place and subject matter of the hearing. He may, if he so desires, to have a fellow employee and/or accredited representative present, etc.. Regarding the wording of the quoted paragraph of the section, I can only conclude that the onus is on the employee to have these people present, etc. I cannot find any evidence that this was denied, but actually that these persons were present at the hearing.

 

                In concluding, I find both parties to the dispute in some degree at fault. Ordinarily the discipline assessed if not excessive, however, in this case, where the grievor is also the elected Shop Steward, and as such is entitled to certain privileges, this has to be taken into consideration in assessing the discipline. I also find the grievor proceeded in some measure beyond his line of duty, as Shop Steward in questioning the Supervisor, and by doing so, would be subject to discipline.

 

                Therefore, taking into consideration all the facts before me and as it being the grievors’s first offense, there being no evidence to the contrary, I feel the discipline assessed, i.e., 20 demerits, is somewhat excessive and that 5 demerits together with loss of pay for the days off pending the investigation, would be sufficient discipline under the circumstances.

 

                                                                                                                                Respectfully submitted,

                                                                                                                                J. W. Franson, Arbitrator