AH – 396

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE RONALD L’ABBEE

SOLE ARBITRATOR:                Michel G. Picher

There appeared on behalf of the Company:

R. Skelly                                   - Counsel, Montreal

B. F. Weinert                             - Director, Labour Relations, Toronto

And on behalf of the Union:

K Cahill                                     - Counsel, Montreal

A Dubois                                   - Division Vice-President, Quebec

M. Allard                                   - Local Chairman, Montreal

A hearing in this matter was heard in Montreal, Tuesday, 9 August 1994.

AWARD

As in every arbitration involving discipline, the employer bears the burden of proof. In the instant case it is incumbent upon the Company to establish, beyond the balance of probabilities, that the grievor, Mr. Ronald L’Abbee, addressed gross and insulting remarks to his supervisor, Mr. Marc Mousseau, Terminal Manager at Lachine. It is claimed that on January 5, 1994, on leaving a disciplinary interview in the terminal office, Mr. L’Abbee said to Mr. Mousseau, in an angry tone of voice “Tu es un maudit gros tas de marde!” Counsel for the Company suggests that, given Mr. L’Abbee’s prior discipline record which includes several prior incidents of insubordination, the forty demerits and his subsequent discharge for the accumulation of more than sixty demerits, are justified.

It is common ground that Mr. L’Abbee attended a disciplinary investigation on January 5, in Mr. Mousseau’s office, for smoking on the property while at work on December 22. Mr. L’Abbee did not deny smoking. But, at the conclusion of the interview he asked a supervisor who was present, Mr. Jean-Jacques Peloquin, if it was true that some day previously the latter saw two other employees smoking in a prohibited area and that they had neither been investigated nor disciplined. When Mr. Peloquin replied that he did not remember the incident in question, Mr. L’Abbee was visibly unsatisfied with his response. It seemed that apparently the grievor had been given an account of the facts of that other incident from the employees involved, an account which attributed full knowledge of the incident to Mr. Peloquin. The grievor therefore repeated his question, in an angry tone, until Mr. Mousseau directed him towards the office door. It appears undisputed that Mr. L’Abbee felt himself to be a victim of an injustice, and that according to him the two employees in question would surely have been disciplined if Mr. L’Abbee had participated in the infraction. In other words, he felt himself a victim of discrimination in a disciplinary practice.

The discharge of Mr. L’Abbee was not based on what was said in the office, but on what was said by Mr. L’Abbee and his union representative, Mr. Allard, when descending the stairway outside the office when returning to work. It is important to note, however, the evidence of Mr. Mousseau to the effect that during the meeting in his office, Mr. L’Abbee had spoken in an angry and contemptuous tone, accusing Mr. Mousseau of complicity with the other supervisors in the injustice which was visited upon him. it is also agreed that Mr. L’Abbee had already been disciplined for having spoken to Mr. Mousseau in an insulting manner in front of other employees during a meeting, when Mr. L’Abbee was a union officer.

The stairwell is separated form Mr. Mousseau’s office by a door and an antechamber, 20 feet in length. It is not disputed that Mr. Mousseau followed the two employees to the stairwell and that he was situated at the head of the stairs holding the door open with his foot, while Mr. L’Abbee and Mr. Allard descended. According to Mr. Mousseau, Mr. L’Abbee began to descend the second flight of stairs and was turned to face his supervisor when he said to him: “Tu es un maudit gros tas de marde!” Supervisor Daniel Prevost, who is the Terminal Dock Manager, relates that he was located behind Mr. Mousseau, on the other side of the door which was partly open, and that he heard the same thing as Mr. Mousseau.

The evidence of both Mr. Allard and Mr. L’Abbee is to the contrary. According to them, as they were descending the stairs they were speaking between themselves of what had transpired in the office, and that Mr. L’Abbee muttered his discontent with the unjust treatment which he felt he had received. According to Mr. L’Abbee, supported by Mr. Allard, it is then that the grievor said to his colleague and union representative “C’est toute de la marde, ca !” or words to that effect. He categorically denies having addressed the remark to Mr. Mousseau, and submits that it was a matter of a general comment which he made to Mr. Allard to describe what he considered to be the discriminatory treatment which had been visited upon him by his supervisors.

It appears to the Arbitrator important to take into consideration the suggestion of Counsel for the Union that Mr. Mousseau was himself influenced by the tone of the meeting which had just ended, especially in light of the prior relationship between himself and Mr. L’Abbee. In the circumstances it is very possible, if not probable, that Mr. Mousseau had misheard or misinterpreted what he heard Mr. L’Abbee say. Furthermore, it is difficult to give great weight to the evidence of Mr. Prevost who, by his own evidence, was not in the stairwell at the time the remarks were made.

The Arbitrator judges that the evidence of Mr. L’Abbee was given in an honest fashion. He does not deny having spoken to Mr. Mousseau in an insulting fashion in the past, and did not attempt to gloss over the remarks which he made during the interview, as related by Mr. Mousseau. However, he does deny having insulted Mr. Mousseau while descending the stairway. The Arbitrator is of the opinion that the evidence of Mr. L’Abbee is honest, and even if Mr. Mousseau believed in good faith that the latter had insulted him, that that is not what transpired. I must come to the conclusion then that, on the balance of probabilities, the Company had not proven the infraction with which Mr. L’Abbee was charged. The Company did not have therefore just cause to impose the forty demerits, nor to discharge the grievor.

The grievance is therefore allowed. The Arbitrator orders that Mr. L’Abbee be reinstated into his employment, without loss of seniority and with compensation for all wages and benefits lost. I remain seized of the dispute to deal with any misunderstanding which may arise concerning the compensation owing the grievor and all other questions relative to the implementation of this award, if any.

Signed at Montreal, 11 August 1994

(signed) MICHEL G. PICHER

ARBITRATOR