SHP - 62



Canadian Pacific Limited

(the "Company")



(the "Union")



SOLE ARBITRATOR: J. F. W. Weatherill




J.W. Asprey and others



D. Flicker and others



A hearing in this matter was held in Montreal on October 30, 1979



The grievor, a carman trainee hired by the Company on August 31, 1977, was discharged on May 15, 1979, for accumulation of demerit marks. Accumulation in excess of 60 demerit marks was a result of two incidents, first, the assessment of 40 demerits for distributing circulars on Company property urging fellow employees to participate in illegal strike activity and second, the assessment of 40 demerits for insubordination in refusing to answer questions at investigations held May 2nd and 10th, 1979.

While the two incidents are related, they are nevertheless separate matter, and will be considered in turn. The general issue is whether or not there was just cause for the discharge of the grievor

On the morning of April 25, 1979, the grievor and three others appeared at an entrance to the Company's Angus Shops, and began distributing leaflets to persons arriving at work. The grievor himself was scheduled to work, and did work, on the shift beginning at 7:30 a.m. that day. At one point the grievor was spoken to by the security guard and asked to move away from the gate. The grievor and his associates complied with this request. There is a conflict in the evidence as to the time at which this conversation took place, relative to the time of arrival of the grievor's foreman. While one or the other of the witnesses must be mistaken in his recollection of the order of events, the matter has no significance in this case, and I make no determination of it. There appears to have been a mistake on the part of the grievor as to the location on which this activity was carried out. For the grievor "Company property" appears to mean the shop premises inside the gate. In fact, the Company's property extends beyond the gate and includes the area of the parking lot. Again, however, this is a point of little importance. The grievor and his associates were handing out leaflets to other employees: if these leaflets were for the purpose of encouraging employees to participate in an illegal strike, as the Company alleges, then a serious offence was committed. I do not consider that the place where the leaflets were handed out is a matter of any great importance.

What is important for this aspect of the case, then, is a characterization of the leaflet in question. It should be added that there is nothing to suggest that the grievor was, by any other words or conduct, behaving improperly. He was certainly not suggesting that employees should abstain from work that day: there were no threats or harassment, no placards, no violence. The grievor promptly complied with the security guard's request, and it may be noted that that request was simply that the grievor leave the Company's property to distribute his leaflets.

The leaflet in question is entitled "Bulletin du comité d'organisation des cheminots de Montréal, no. 3". This committee, it would appear, has as members persons in various railroad bargaining units in Montreal. It is not itself a bargaining agent, and some of the text in its leaflet is harshly critical of the Union leadership. The front of the leaflet urges employees to attend a meeting to be held the following Saturday, for the purpose of hearing the results of a ratification vote, and for the organization of a "day of protest" to be held on May 1. On the reverse, the leaflet sets out various arguments whose thrust appears to be that employees should, contrary to the advice of their Union leaders, consider the possibility of an illegal strike, if the agreement on principle was rejected, in the ratification vote.

There can be no doubt that most of what is said in the leaflet is in the nature of comment which an employee or group of employees may properly make to whoever cares to listen. The debatable question is as to the propriety of what is said about an illegal strike and about the "day of protest", set for May 1. As to the illegal strike, what the leaflet has to say is in the nature of argument, placed in the hypothetical context of the failure of the ratification vote. There was no call to strike at that time or at any designated time in the future. These were not, in my view, words for which the grievor could properly be subject to industrial discipline, at least not in the circumstances of this case. As to the "day of protest", while that was set for a particular day, it is not clear what action the grievor may have been urging on other employees. The leaflet does not say that employees should strike on that day. The form that the "protest" might take is quite undetermined. Again, I do not consider that there was, in these particular circumstances, any occasion for the imposition of industrial discipline.

I have already noted that the grievor's own deportment on April 25 was not improper. It is significant that he was not advised, at the time, that there was considered to be anything improper in the leaflet. It is also significant in a case of this sort, that the other employees who engaged in the same conduct, appear not to have been disciplined at all. Even if it were concluded that the distribution of the leaflets constituted an industrial offence, I do not consider that the grievor could properly be subjected to any substantial discipline in such circumstances.

It is accordingly my conclusion that the forty demerits assessed on account of the grievor's activity on April 25, 1979, must be set aside and removed from his record.

The second offence alleged is that the grievor was insubordinate in that he refused to answer questions put to him in the course of the Company's investigation. It was, certainly, understandable that the Company would seek to investigate the matter, and it was proper for it to do so, as is indeed acknowledged. The grievor, however, apparently considered that the Company had no right to inquire into what he did on his own time and off the Company property. In this, of course, the grievor was doubly wrong. For one thing, what he did on April 25 was, in fact, done on Company property. More importantly, however, an offence such as the counselling of an illegal strike, affects the Company very directly, wherever the alleged counselling or incitement may take place.

It is perhaps worth reflecting briefly on the fallacy inherent in the grievor's view on this point. The view that what an employee does on "his own time" can never be the employer's business may reflect a quite proper reaction to the excessive paternalism of bygone days. This view, however, may itself go too far, and involve a concept of the worker as a machine who is, in effect, plugged-in when he arrives at work and unplugged when he leaves. Contemporary wisdom focuses, rightly, on the problem of alienation in the work-place: the attitude implicit in the grievor's approach to the investigation is an instance, apparently self-imposed, of such alienation. An employee is entitled to be treated with decency and respect by his employer, and the proper concern of employees and trade Unions with a wide range of social benefits in addition to an hourly wage shows that decency and respect are not considered as, being limited to the shop floor or "the Company's time". Decency and respect, I think, are functions of responsibility, and there are certain employee responsibilities which arise out of the reciprocal relationship which is that of employer and employee. The extent of those responsibilities in our contemporary economy has not been very fully explored, but it should at least be said that the view expressed by the grievor, which involves, in effect, a denial of responsibility, is sadly wrong.

However that may be, it is clear to me that the Company was entitled to question the grievor with respect to the incident, which reasonably appeared to be one of direct concern to the Company, as I have indicated above. The grievor ought to have answered the questions put to him. They were proper questions, and their purpose was to obtain the grievor's own account of the events.

The grievor's response to these questions was polite and was certainly not "insubordinate" in the limited sense of being an attempt to undermine the managerial authority of a particular individual, as for example the use of obscene language toward a supervisor might be. It was, however, insubordinate in the somewhat more extended sense of the term, being an attempt to frustrate the management of the Company in the proper exercise of its functions. I am satisfied, however, that at the first investigation at least the grievor sincerely believed that he was within his rights in refusing to answer the questions put to him. In this he was mistaken, but his offence on that occasion should, I think, be regarded as a "technical" one. Whether or not any discipline ought to have been imposed in respect of the first investigation is perhaps debatable. In any event, it would be my view that, at most, 10 demerits might have been assessed on that account.

By the time of the second investigation, the grievor had had ample time to consider his position, and to seek the advice of his Union. He was, again, polite but he continued to assert the view that he need not answer the questions, or at least, not the questions relating to the distribution of leaflets put by the Company. He may, again, have been sincere in his views, but they were mistaken views, and in following them, he failed in his duty to the Company and was thus liable to discipline.

While I consider it to be clear that the grievor was subject to discipline by reason of his refusal to answer proper questions, it is my view that the penalty imposed was, in the circumstances, excessive. This case it may be said, is quite different from CROA 720, where the grievor had no bona fide belief in his own position, but gave evasive and improper answers to questions, in an attempt to undermine the exercise of a proper management function. In the instant case the grievor advanced a serious point of view in an open manner. Although this point of view was wrong, as I have held, it was not the sort of self-serving conduct which was involved in CROA 720. In my view, it would not have been improper for 20 demerits to have been assessed in respect of the second investigation. A total of 30 demerits, rather than 40, might properly have been assessed in respect of this aspect of the rented incidents with which this award is concerned. For the reasons given, it is my award that the 40 demerits assessed in this respect be reduced to 30.

The grievor had, at the time of the incidents in question, a total of fifteen demerits, accumulated in respect of unrelated offences. As a result of this award, his record will stand at 45 demerits. While, in the circumstances, the grievor should be reinstated with compensation, his disciplinary record, to be effective (and it is important that the grievor appreciate the point), should stand at 45 demerits dating, in total, from the date of his reinstatement.

For all of the foregoing reasons, it is my conclusion that there was not just cause for the discharge of the grievor, and my award that the grievor be reinstated in employment forthwith, without loss of seniority or other benefit, and with compensation for loss of earnings. His discipline record, as and from the date of his reinstatement, shall stand at 45 demerits.

DATED AT TORONTO, this 12th day of November, 1979.

(signed) J.F.W. Weatherill