SHP - 61

IN THE MATTER OF AN ARBITRATION

BETWEEN

Canadian National Railway Company

(the "Company")

AND

DIVISION NO. 4, RAILWAY EMPLOYEES DEPARTMENT - AFL/CIO

(the "Union")

RE: GRIEVANCE OF A. FREEMAN

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

APPEARING FOR THE UNION:

L. Biniaris

 

APPEARING FOR THE COMPANY:

J. McLeod

 

 

A hearing in this matter was held in Montreal on June 13, 1979.

 

AWARD OF THE ARBITRATOR

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

JOINT STATEMENT OF ISSUE

On 11 January 1979 an arbitration hearing took place in the CP Conference Room, second floor, Windsor Station, Montreal. Machinist Helper Anthony, Freeman was the grievor and Supervisor Marcel Dupont was the principal Company witness.

After the hearing, Mr. Dupont left the building in Company with five other Company representatives and proceeded through the underground passage to Central Station. About half-way to Central Station Mr. Dupont discovered he had left his cigarettes behind and returned to the Windsor Station Building to retrieve them.

Mr. Dupont states that after he picked up the cigarettes and was leaving the second floor of Windsor Station to catch up to the other officers Mr. Freeman, who was still present on the second floor, followed him to the stairway. When he reached the top of the stairway Mr. Dupont says that Mr. Freeman struck him on the back of the neck.

An investigation as conducted and Mr. Freeman denied having struck Mr. Dupont.

The Company assessed 40 demerit marks against Mr. Freeman for assaulting a supervisor. This brought Mr. Freeman's demerit marks to 60 and he was consequently discharged for accumulation of demerit marks.

The International Association of Machinists and Aerospace Workers claim that Mr. Freeman has been unjustly dealt with and should be reinstated with no loss of earnings and with full seniority.

The Company disagrees.

* * * * *

The question of substance in this case is whether or not the grievor did in fact strike the supervisor in the circumstances described. The only direct evidence is that of the two persons involved: the supervisor testifies that the grievor struck him; the grievor testifies that he did not.

The supervisor, after allegedly being struck, hurried away to join his companions who by then were at Central Station. He made an immediate report to them of what had occurred. That he made such a report, and that he was excited and out of breath, is clear from the other testimony I do not consider that the fact that no report was made to the police has any bearing on the matter. The Company would in any event be entitled to proceed with the case as a disciplinary matter. That would not be affected directly by any criminal proceedings that might have been instituted, and the Company was not obliged to lay any criminal charges.

It is clear that when the supervisor, having returned to Windsor Station to pick up his cigarettes, left again to return to the others, he was followed shortly by the grievor, who had been talking to two Union officials, but who left them then and went down the corridor. The grievor proceeded down the corridor about thirty feet or so behind the supervisor. It would have been possible for him to catch up with the supervisor, and to strike him on the back of the neck, as alleged, as he descended the stairs. There is nothing inconsistent between that and the grievor's testimony that he himself took the elevator down.

The grievor's wife was waiting for him at the end of the corridor or rather in the area near the stairwell and the elevator, where another corridor joins it. She was aware of another man coming down the corridor and going dawn the stairs about a minute and a half before the grievor came. Since, according to the evidence of both the supervisor and the grievor, they were only about thirty feet apart, that person could not have been the supervisor. The grievor had called his wife (according to his testimony, at about 10:00 a.m., but according to hers, it was while she was preparing the children's lunches, and that was before 9:00), to join him at about 11:00 so they could go to see a sick child in the hospital. The grievor's wife, whose evidence I accept but who, it may be noted, was not referred to during the investigation as having any knowledge of the matter, did not in fact testify as to the grievor's actions except to say that he joined her at the end of the corridor shortly after 11:00 a.m. There is no necessary inconsistency between the evidence of the supervisor and that of the grievor's wife.

When the matter was investigated, the grievor refused to answer questions about the incident on the ground that they related to his "personal life". It should be clear, however, that, while the grievor may not have been on duty and receiving pay at the time, he was engaged on a matter relating to his employment, and an attack on a supervisor, even off Company property and outside of working hours, may be grounds for discipline. His offence, if it occurred, certainly related to his employment and was one for which the Company could properly take disciplinary measures. It would be all the worse for being an offence against the arbitration process which was then under way. The grievor's failure to answer proper questions relating to the matter permits the inference to be drawn that such answers would be damaging to him.

From all of the material and evidence before me it is my conclusion, on the balance of probabilities, that the grievor did in fact commit the offence alleged. In view of the seriousness of the matter, and the grievor's outright and apparently sincere denial, I would add that I reach this conclusion in the light of what I consider to be cogent and compelling evidence.

The decision of a board of referees of the Unemployment Insurance Commission cannot properly be considered in the instant case. The board of referees made a determination for the purpose of awarding unemployment insurance. It made its determination on the evidence before it, which appears to have been that of the grievor and his wife. The Company did not appear at the hearing. The decision of the board of referees was no doubt correct on the evidence before that tribunal. There is different evidence before me, and the issue (reinstatement in employment and possible compensation) is very different.

There was, as I find, just cause for the imposition of discipline. The penalty assessed was not, having regard to the seriousness of the offence, excessive. Accordingly the grievance must be dismissed.

DATED AT TORONTO, this 18th day of June, 1979.

(signed) J.F.W. Weatherill

Arbitrator