BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

J.W. Asprey

A. Manocchios

J. Moryas

J. McLeod

A hearing in this matter was held in Montreal on February 17, 1978.

The grievor, who was hired by the Company on May 22, 1970, was discharged on June 18, 1977, as a result of an incident which occurred early that day. The issue is whether the grievor was discharged for just cause.

The parties Joint Statement in this matter is as follows:

* * * * *

The grievor was at work on night shift from 0001 to 0800 hours on June 18, 1977. He had been assigned, along with another employee, Mr. I. Baptiste, to apply the traction motor assembly to Booster Unit 302, which was positioned on track 9 at the MacMillan Yard Diesel shop. The Shop Foreman, Mr. Simpson, was anxious that the assembly be sufficiently installed by lunch time on that shift so that the unit could then be moved to track 8, in order that the overhead exhaust stacks on track 9 could be cleaned.

The regular time for lunch on the shift was 0200. At about 0155, the Assistant Foreman, Mr. Goodridge, came to the drop pit on track 9, where the grievor and Mr. Baptiste were working, to say that Mr. Simpson wanted them to work through the lunch period so that the unit could be moved to track 8 as soon as possible. The grievor seems not to have been very pleased by this, and Mr. Baptiste asked why they had waited so long to ask them, but there is no doubt that the two men were willing to work through the lunch period to get the job done. They asked, however, to have a break for coffee before carrying on.

As the grievor went by the foreman's office on his way to get coffee, the foreman asked him what the problem was. The grievor replied that there was no problem, that he was on his break. The foreman, in an apparent reference to the provisions of the collective agreement, told the grievor that he could keep him at work until 0500. The grievor remonstrated with the foreman, indicating that he was simply going for coffee, and the foreman let him go. When the grievor returned the foreman went with him to the drop pit.

There is a substantial conflict in the evidence as to what occurred. The foreman, who was involved in the altercation, lost consciousness and cannot testify as to the altercation itself. The grievor's evidence as to the altercation is, for this reason uncontradicted, although his evidence is contradicted in certain other respects. The purported eye witness evidence of a fellow-employee, Mr. Peters, cannot, I think, be relied on because of the circumstances in which that evidence was brought forth, and because of apparent inability of the witness to have seen (at least in all its detail) what he claims to have seen, the unit (of whose presence he seems to have been aware) blocking his line of sight.

From all of the evidence, however, it seems clear that the grievor, having obtained some, coffee and a doughnut, returned to the pit drop and sat down on a tool box with his back against the unit, his coffee in one hand and the doughnut in the other. His mate, Mr. Baptiste, was some distance away, near the track 8 desk. The assistant foreman, Mr. Goodridge, was either near the desk, or walking down the ramp giving access to the pit, but whose incline leads away from the track. Neither of these witnesses saw or heard the whole of the incident.

Mr. Baptiste testified that he was leaning on the rail with his back toward the unit when he heard hats falling He looked around and saw the grievor and Mr. Simpson holding on to each other. Mr. Simpson fell to the floor and he, Baptiste, went and held on to the grievor, telling him to "forget that".

Mr. Goodridge testified that when he reached the bottom of the ramp he saw Mr. Harper stand up and Mr. Simpson step back. Mr. Harper then grabbed Mr. Simpson and they both went to the floor. Mr. Goodridge went over to the scene and when he arrived Mr. Harper was getting up, and Mr. Baptiste had arrived and was holding Mr. Harper. Mr. Simpson was lying on the floor.

The grievor's evidence is that he returned to the unit with his coffee and doughnut, as noted, and sat down on the tool box. Mr. Simpson went to the drop table and saw that everything was ready to go (for the assembly to be installed). Mr. Harper was drinking his coffee and eating his doughnut. Mr. Simpson then came over, stood in front of Mr. Harper and said "come on, come on". (It was the evidence of the grievor and Mr. Baptiste that they could smell liquor on Mr. Simpson's breath that evening. The evidence of the other witnesses is to the contrary. There is no evidence from which it could be concluded that Mr. Simpson was under the influence of alcohol to any degree, and I make no finding on the matter). Mr. Harper replied, "Just a while ago you said I could have coffee", but Mr. Simpson came over and "slapped" the coffee he was holding in his hand Mr. Harper then got up, sidestepped Mr. Simpson who was coming toward him, held him and pushed. Mr. Simpson slipped and both men fell.

Mr. Simpson, in his statement, indicated that he noticed Mr. Harper return to the drop pit with a coffee and a snack, that he spoke to Mr. Baptiste, and that he then spoke to the grievor who was leaning against something alongside of track 8. He asked the grievor if he was going to help Mr. Baptiste put the motor up and the grievor replied "It's two o'clock lunch time and I'm going to have coffee". The foreman made a remark about co-operation, and told the grievor to finish his coffee, help Mr. Baptiste with the motor, and take his lunch break later. He was then about to attend to other business when the grievor came at him, after which he remembered nothing.

The foreman lost consciousness, whether before or after falling to the floor. He lay there for several minutes, while Mr. Goodridge summoned help. The grievor offered no assistance, although he had been trained in first aid. It is clear that he considered he had been in a fight. Mr. Simpson's injuries consisted of a lineal fracture of the skull (on the right side), and concussion; and a bruised left shoulder and arm. When he did regain consciousness it should have been apparent that he required medical attention. The mishandling of the situation following the altercation is not material to this case: I do not draw the conclusion that medical treatment was avoided in order to avoid official detection of any odour of alcohol on the foreman's breath.

The nature of the grievor's injuries would tend to support the Company's theory that the foreman was struck on the right side of the head, and that the bruises on his left side were caused when he fell. From the material before me, however, it, would appear that the converse explanation is equally valid: that the foreman was bruised in grappling with the grievor, and that he struck his head when he fell. Certainly no one saw the grievor strike the foreman, and the grievor denies that he struck him. On the other hand, both Mr. Baptiste and Mr. Goodridge saw the two men pushing or grappling with one another in some way. The evidence does not in my view allow the conclusion that it is more probable than not that a blow was struck.

It remains that there was an altercation between Mr. Harper and his foreman which Mr. Harper considers to have been in a fight.

Mr. Harper, I find, shoved the foreman and did so violently. His position is that this was a defensive measure, or at least that it was provoked since, on Mr. Harper's account, the foreman began the affair by "slapping" at the coffee he held in his hand. By his own account, however, Mr. Harper had been sitting and then got up. If Mr. Harper did hit Mr. Simpson, he did so with considerable force, and if he did not actually strike him, he pushed with sufficient strength that when the two men fell, the foreman injured himself seriously. It is fortunate that even more serious results did not occur.

In the result, it is my view, from a consideration of all the material before me that the grievor offered physical violence to the foreman going beyond what might be necessary to defend himself (and I do not consider that Mr. Simpson attacked the grievor) and beyond what might be thought to be an understandable response to provocation.

Such a use of violence against a foreman would, as a general matter, constitute proper cause for discharge. The penalty must, however, be considered in the light of the circumstances of each case, and of the grievor's record. The grievor is a middle-aged man engaged in a skilled trade and has some seven years' seniority. His record shows that on October 27, 1976, he was assessed 10 demerits for insubordination and unauthorized leave of absence. Then on November 23, 1976, he was assessed a further 10 demerits for violation of a rule which resulted in damage to equipment. There appears to be no previous record of violent behaviour. There is evidence that the grievor felt he had not been fairly treated by Mr. Simpson in the past and, from the evidence, that feeling was at least understandable, even if not fully justified. Even on the evening in question it would appear that the grievor felt that he was being unfairly treated when he was, in fact, prepared to get on with his work.

The onus of proof in a case of this sort is on the Company. The evidence in the instant case is conflicting, and in some respects permits no clear conclusion. I do make the finding, as set out above, that the grievor did offer violence to the foreman, and there can be no doubt that he was properly subject to discipline. The extent of the proof, the circumstances surrounding the event, and the general circumstances of the grievor are such, however, that I do not conclude that it has been shown that there was just cause for the discharge of the grievor. The matter, I think, is best characterized as an isolated incident, in the nature of a momentary flare-up rather than a premeditated assault. The grievor's offence, nevertheless, is an extremely serious one, and his lack of concern for the foreman does him no credit. While, therefore, I do not consider that just cause for discharge has been established, there is no occasion for any award of compensation.

For the foregoing reasons it is my award that the grievor be reinstated in employment forthwith, without loss of seniority. His discipline record should stand as it did at the time of his discharge. I make no award of compensation.

DATED at Toronto, this 7th day of March, 1978.

Arbitrator