SHP - 56



Canadian National Railway Company

(the "Company")



(the "Union")



SOLE ARBITRATOR: J. F. W. Weatherill




J.W. Asprey



J.R. McLeod



A hearing in this matter was held in Montreal on January 11, 1977



This grievance relates to the assessment of 30 demerit marks against the grievor on November 16, 1977.

The joint statement of issue in this matter is as follows:


On 16 November 1977 Machinist Helper A. Freeman was working in the 1530 hrs. shift at Point St. Charles Wheel Shop. At approximately 2220 hrs. his supervisor, Mr. M. Dupont, instructed him to do certain work.

Mr. Freeman started to do the work but after a short time he approached Mr. Dupont who was talking to two other foremen some 45 feet away. An argument ensued with Mr. Freemen insisting that the order Mr. Dupont gave him was unfair and Mr. Dupont insisting that Mr. Freeman finish the work. Mr. Freeman then left the shop and returned shortly thereafter.

An investigation was conducted and Mr. Freeman was assessed 30 demerit marks for insubordination and leaving his assignment with without authorization

The International Association of Machinists and Aerospace Workers claim that Mr. Freeman has been unjustly dealt with.

The Company denies the claim.

* * * * *

The grievor, whose service date is January 21, 1974, worked as a Machinist Helper at the Point St. Charles shops. On the day in question he, along with a fellow employee, was assigned to move axles to and from various machines in the Wheel Shop. When he came on duty and examined the line-up for the day, set out in a log book which had been prepared by the day shift supervisor of the Wheel Shop, he saw an entry indicating that the in-going rack of the 1032 journal lathe was to be loaded with 6 x 11 friction axles and 5 1/2 x 10 friction axles. There is some suggestion that the grievor was orally instructed to load the rack with 6 x 11 axles. In any event he proceeded to do so, and when that was done, went about other duties. There is no suggestion that the grievor had done anything improper up to that point.

Later, about an hour before the end of the shift, the grievor was instructed to leave the other work on which he was engaged, remove the 6 x 11 axles from the rack, and fill it with 5 1/2 x 10 axles. It seems that there had been a misunderstanding as to the work to be done on the 1032 lathe, that it had been intended to process the 6 x 11 axles that were in the rack and then to proceed with the 5 1/2 x 10 axles. When he discovered that additional 6 x 11 axles had been loaded, the night shift supervisor went to the grievor and asked him to leave the other work on which he was engaged, to remove the 6 x 11 axles from the rack of the 1032 machine and to load it with 5 1/2 x 10 axles.

The grievor protested, indicating that he had done what the log book required. The supervisor replied that the log book was for the use of the machinist working on the lathe. That would appear to suggest that the grievor had behaved improperly in consulting the log, which was not the case. It is unfortunate that the supervisor made that sort of reply, because it appears to have spurred the grievor to defend himself, thinking that he was being criticized. In fact, as I have noted, the grievor was not subject to criticism at that point.

There was nothing wrong with the grievor's protesting what he took to be an unfair criticism of his work. The foreman then repeated his instruction to remove the 6 x 11 axles, and left. The grievor then did remove some, but not all, of the 6 x 11 axles. He then went to load up some 5 1/2 x 10 axles. At that point the supervisor went to him again and asked him to remove all the 6 x 11 axles first. There was certainly nothing improper in that. The grievor replied, "It is not fair for me to do all the work". That may or may not have been a justified complaint, but it did not have any particular urgency to it and did not suggest any reason why the grievor should not carry on with his job. The supervisor walked away. The grievor did not carry on working, but after a few moments went over to the supervisor and said he wanted to see a Union representative. There was no particular occasion for consultation with a Union representative at that time. The grievor was not being disciplined; he had been given a proper direction and his duty was to carry it out, not to interrupt work in order (it would seem) to seek vindication for some supposed slight. While the grievor ought simply to have performed the work the supervisor asked him to perform, it seems that he was in fact concerned that he was being criticized for what had been done earlier, and it further appears that supervisor was (wrongly, in my view) blaming the grievor for it, although it was not a disciplinary matter.

The supervisor refused the grievor's request to see a Union representative, and directed the grievor to perform the work of removing the 6 x 11 axles. While the grievor denies refusing to carry out that direction the evidence before me strongly supports the conclusion that he did so. The grievor contends that the supervisor threatened him by pointing at him and advancing toward him. From the material before me, I do not consider that any threat was made. The supervisor did repeat his order and did indicate that refusal to follow instructions would he insubordination. The grievor, who had been disciplined for insubordination on two previous occasions, ought then to have recognized that his situation was untenable. Instead, taking the log with him, he left the shop. His statement at the investigation was that he did so "in the interest of peace and to avoid a physical clash". I think this an exaggeration.

The grievor had not had permission to leave the shop at that time. He returned about ten minutes later and told the supervisor (according to the supervisor's evidence), that if he gave him any trouble he would cut his head off. While I do not consider that to have been meant as a serious threat, it was obviously very improper conduct. The supervisor walked away. The grievor did not perform the work.

I have not doubt that the grievor was subject to discipline in this case. Whether or not the grievor had carried out his work properly earlier in the shift (and I have indicated my view that he had not done anything wrong), when he was asked by the supervisor to remove the 6 x 11 axles, he should have done so. That he might seek to justify his earlier work is understandable, but that effort should not have been allowed to affect the performance of his duties. Later, it seems clear that he simply refused to do the work required of him. He left the shop without leave, and spoke quite improperly to the supervisor when he returned.

In my view the grievor was insubordinate and was subject to discipline. What is of concern is the extent of the penalty assessed. The assessment of 30 demerits puts an employee half-way along the road to discharge in a system in which an employee is subject to discharge on the accumulation of 60 demerits. Nevertheless the offence is a serious one, as the grievor himself must have known. Had the grievor had a clear record, I would consider 20 demerits as a maximum penalty in the sort of circumstances described. This being the repetition of the offence, a penalty of 30 demerits might be supported. In the instant case, however, there was an element of provocation, in that the supervisor did appear to blame the grievor for the earlier loading of the lathe, and allowed what should have been a simple matter of correcting an error to escalate into what was evidently an emotional out-burst.

Thus, while the grievor's conduct was blameworthy, it is my view that a penalty of 30 demerits, went beyond the range of reasonable disciplinary responses to this particular situation, although the assessment of 20 demerits would not have done so. It is, accordingly, my award that the assessment of 30 demerits against the grievor's record in this instance be reduced to one of 20 demerits.

DATED AT TORONTO, this 19 day of January, 1979.

(signed) J.F.W. Weatherill