BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

J. W. Asprey

R. St. Pierre

A hearing in this matter was held in Ottawa on March 25, 1977.

The grievor, who entered the service of the Company on June 6, 1968, and whose classification was that of Machinist, was assessed 45 demerits as a result of an incident which occurred on June 1, 1975. Since the grievor's accumulated demerits were then in excess of 60 (being, precisely, 65), he was discharged.

The joint statement of issue submitted by the parties to arbitration is as follows:

An "altercation" did in fact take place on the day in question between the grievor and another employee, a Mr. McDonald, in the presence of a third employee, a Mr. Foster. All three employees were working on the west side of the D-2 platform in the Diesel Shop at MacMillan Yard, Toronto. Messrs. McDonald and Foster were working beside diesel unit 9539, removing air intake filters from cartons for application to the diesel unit. There were thus some filters, some empty boxes, and some boxes still containing filters all standing on the platform which was some 10' 7" wide. The grievor was working further down on the same platform, changing air brake parts on diesel unit 8163.

At about 1140 hours the grievor had to move over to the other side of the unit. To do this, he had to move his tools and components up to the end of the platform, where he could then cross over to the platform on the other side. His tools and components were on a metal four-wheel cart, which measured some thirty inches across; there was also a piece of pipe on the cart which projected a further twelve inches. His route to the end of the platform took the grievor past the area where Messrs. McDonald and Foster were working.

There is some conflict in the employees' statements as to the disposition of the persons and materials involved as the grievor approached the area where McDonald and Foster were working. On one account, both men were on the platform; on the grievor's account of the matter, Mr. Foster was on the engine. There were, as I have noted, boxes and filters on the platform, and there can be no doubt but that there was only a narrow space through which the grievor's cart could pass. It may be that there was not sufficient space without moving some of the boxes. It must have been clear to the grievor that it would at least be difficult to get his cart through the space available. He did not, however, call out any warning or request that any of the boxes be moved. As the grievor passed the area where the other two employees were working, his truck, or the piece of pipe that was on it, struck an empty box. The box, or perhaps the truck itself, hit Mr. McDonald. Mr. McDonald stated that one of the truck wheels ran over his foot, but from the material before me that does not seem likely. In any event, it appears to me that while the grievor's action was either deliberate or so careless as to have been equally blameworthy, it did not inflict any serious injury on Mr. McDonald nor was it intended to do so.

What followed, however, was a more serious matter. Again, the accounts of the matter are conflicting. The only account which may be considered objective is that of Mr. Foster, and while the grievor indicated in his statement that he considered Mr. Foster's statement to be biased, it nevertheless appears to me, when all the statements are considered, to be the most reliable account of the matter. The significant portion of his statement is as follows:

The grievor's statement is that after his truck had hit the box Mr. McDonald "jumped out from behind the boxes" and hit him in the eye. The grievor claimed that he was later treated in a hospital for the blow to his eye, but he seems not to have brought the matter to the Company's attention at the time, and he did not produce any treatment slip although he indicated that he could. The grievor stated further that after hitting him in the eye, Mr. McDonald picked up a hammer from the grievor's truck and came towards him with the hammer raised. The grievor then stepped backward and tried to pick up a piece of safety chain pipe. At that, according to the grievor's statement, Mr. McDonald then ran away and the grievor went to the office. Shortly thereafter, the foreman and general foreman went to the site of the incident with the grievor. Mr. McDonald, it seems, still held a hammer, which he did not put down, even at the request of the general foreman. The grievor, at the same time, made certain threatening motions toward Mr. McDonald.

Mr. McDonald's account of the matter is that the grievor knocked down a box with his truck, and that a wheel went over his foot, and something projecting from the truck bounced off his shin.

Mr. McDonald remonstrated with the grievor, who then came at him with his guard up, and took a swing at him. Mr. McDonald pushed the grievor off; the grievor, according to Mr. McDonald, went for the piece of pipe, and Mr. McDonald picked up the hammer.

From the material before me, it is clear that the grievor, either recklessly or deliberately pushed his truck so that it might strike one of the boxes. I do not accept the story that Mr. McDonald then struck the grievor in the eye, or that he then picked up a hammer to attack the grievor. It was, as I find, the grievor who came at Mr. McDonald without justification or provocation. Mr. McDonald's picking up of the hammer was a rather excessive act of self-defence. Even on the grievor's own account, Mr. McDonald ran away, and there could clearly be no justification for what the grievor claimed to be his fear for his life.

Having regard to all of the material before me, I find that the grievor did institute an unprovoked attack on Mr. McDonald, and that he was properly disciplined on that account.

In its presentation of the case, the Union made reference to a decision of a Board of Referees under the Unemployment Insurance Act, in which it was held that the grievor did not lose his employment by reason of his own misconduct. Those proceedings would relate to an application under the Unemployment Insurance Act, and the issue before that tribunal is not identical to the issue before me, although a similar question is involved. The Company was not a party to those proceedings, and the matter seems to have been determined on the strength of the grievor's own statements, and having regard to the manner in which the investigation was conducted by the Company. While the investigation might not satisfy the requirements of judicial hearing, the grievor did have the opportunity, with the assistance of his union representative, to make his statement. The Company's investigation need not meet all the requirements of a judicial hearing: its purpose is to provide the Company with information on which it may act; the collective agreement requires that a hearing be held so that the Company does not act precipitately. Where the Company's disciplinary action is later challenged in arbitration the issue is simply whether there was just cause for the action taken. The employee's statement may be part of the case, but the investigation does not result in any determination which would be binding on the arbitrator. The comments which the Board of Referees made with respect to the investigation (and apparently without having received any other evidence than that of the grievor) do not affect the matter before me, and the determination made for the purposes of the, Unemployment Insurance Act has no force in these proceedings.

Having found that the grievor was indeed subject to discipline because of his conduct on the day in question, it remains for me to consider the severity of the penalty imposed. While the grievor's disciplinary record contains a number of entries, his accumulated demerits have at times been reduced because of certain periods of service without discipline. Although his record was thus clear at the beginning of 1974, in June of that year he was assessed forty demerits and suspended (fourteen days) for insubordination, threatening a supervisor and making threatening gestures toward a fellow employee. On June 6, 1975, twenty demerits were deducted from his accumulated total, so that at the time material to this case the grievor had twenty demerits outstanding. Since the offence in this case must be considered as equivalent to that for which the grievor was disciplined in 1974, a similar penalty would be appropriate. In addition, it appears that there have been, on various occasions, incidents of racial prejudice involving the grievor; although that may have been the case in the incident in question, no firm conclusion in that regard can be reached on the material before me.

The grievor's offence was a serious one, and while forty-five demerits is a substantial penalty, it cannot, I think, be said to have exceeded the range of reasonable, disciplinary responses to the situation, where a similar offence in the past brought a penalty of forty demerits. Even if the penalty imposed were to be reduced to that amount (although I do not conclude that it should), it would not affect the ultimate outcome with respect to the grievor's employment.

In my view, having regard to all of the material before me, the assessment of forty-five demerits was within the range of reasonable responses to the situation. The grievance must, accordingly, be dismissed.

DATED AT TORONTO THIS 29th DAY OF MARCH, 1977.

Arbitrator