SHP - 68



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 February 13, 1980



In this grievance the grievor protests the assessment of twenty-five demerits, with time out of service from 8 November 1978 to 6 December 1978 counting as a suspension, imposed on him for alleged failure to carry out the instructions of a foreman at MacMillan Yard Car Repair Shop on, 8 November 1978. The grievor seeks removal of the demerits and compensation for loss of earnings. The issue is whether this discipline was imposed for just cause.

The Joint Statement of Issue in this matter is as follows:

L. Blenham was working the 0001 to 0800 hours shift at MacMillan Yard Repair Shop. At approximately 0330 hours Supervisor J. Ferguson approached Mr. Blenham in the paint shop. A verbal exchange took place between the two men and, as a result, Mr. Blenham was instructed to punch out and leave the property.

After several attempts to hold a hearing an investigation was concluded. The Company assessed 25 demerit marks against Mr. Blenham's record and time out of service, 8 November to 6 December, to count as suspension.

The Union contends that Mr. Blenham was unjustly treated.

They claim compensation for all time lost and the removal of the 25 demerit marks from Mr. Blenham's personal record.

The Company disagrees.

* * * * *

The grievor, a Carman, was at work on the night shift of November 8, 1978, in the Light Repair section of the MacMillan Yard Repair Shop, Toronto. He had been assigned to perform certain welding jobs by his supervisor, Mr. Corston. He performed his assigned tasks, and was sitting down in the paint shop at about 3:30 a.m. when another supervisor, Mr. Ferguson, approached. There is no suggestion that there was anything wrong in the grievor's being where he was at that time.

Mr. Ferguson was responsible for a large repair job, and needed an extra welder. He had therefore gone to Mr. Corston to ask him for an additional welder and Mr. Corston had told him to use the grievor. The grievor knew Mr. Ferguson and knew that he was a supervisor.

Mr. Ferguson's evidence is that he went to the door of the paint shop, called in, and got no response. He thereupon called Mr. McCleary, the Car Shop Foreman. Then Mr. Ferguson called out again to the grievor, saying that he had a job on the spot repair, and that he was to get up and get out. Again, on Mr. Ferguson's evidence, there was no response. Mr. Ferguson repeated his instructions, and the grievor is said to have replied that he did not have to do that, as he worked for Mr. Corston. At that, Mr. Ferguson told the grievor to punch out and go home. Just after that Mr. McCleary arrived. The grievor got up out of his chair, and Mr. Ferguson reported to Mr. McCleary that the grievor had refused to go over and weld, and that he had told him to go home. At that, the grievor became upset. Mr. McCleary then told him he'd have to go home. The grievor then became very upset, and said that he had done nothing. wrong and wouldn't leave. Eventually a railway constable was called and the grievor, having telephoned a Union representative who advised him, properly, to go home and to file a grievance over the matter, then left peacefully.

The grievor's account of the matter varies somewhat from that of Mr. Ferguson. His evidence is that Mr. Ferguson, finding him in the paint shop, asked what he was doing, or said "you've got nothing to do? and that he replied, "I'm working for "Corston". At that, Mr. Ferguson told him to punch out and go home. The grievor got angry, raised his voice and asked why he was being sent home, and then Mr. McCleary appeared and told him to punch out and go home. From that point on, all accounts of the matter are substantially the same.

The grievor knew that Mr. Ferguson was a supervisor, and he would be subject to his instructions, provided he was released from his work for Mr. Corston, his immediate supervisor. Mr. Ferguson had, as has been noted, spoken to Mr. Corston and secured such release. Even on his account of the incident, however, he did not explain that to the grievor, but simply issued an instruction to him. It was quite proper for the grievor to question an instruction, or at least to assure himself that it had been cleared with Mr. Corston. It was not, of course, proper for him to reply to Mr. Ferguson simply that he did not have to do what he said, and that he worked for Mr. Corston.

Neither party to this conversation appears to have behaved well. The grievor seems to have been resentful and rude, and quick to get upset, when he should simply have been requesting clarification and assurance. Mr. Ferguson, who should perhaps have begun by explaining that he had spoken to Mr. Corston should certainly have made that clear to the grievor on receiving his response. Mr. McCleary gave no direction to the grievor (other than to go home) and seems to have made no effort to point out to the grievor that he should accept the instruction given by Mr. Ferguson. Mr. Corston (who was the one who called Mr. McCleary) was not called on to speak to the grievor, or to direct him to carry out Mr. Ferguson's instructions.

While the grievor night have been subject to discipline in any event, for his abrupt answer to Mr. Ferguson, and for the disturbance he seems to have created, it seems clear that the incident could quickly have been resolved had Mr. Ferguson explained that he had spoken to Mr. Corston, or had Mr. McCleary sought to clarify the matter for the grievor. Had it been made clear to the grievor that an authorized instruction was being given him, and had he then refused (which would have been unlikely in the circumstances) then a substantial penalty would be justified. But that was not the case here.

The penalty imposed on the grievor related also to his refusal to participate in the investigation. An investigation was scheduled for November 10, and while the grievor appeared far it, he refused to participate because Mr. McCleary was the investigating officer. In my view, that refusal was quite unjustified. I do not consider that Mr. McCleary was, by reason of his having been involved in the incident, prevented from investigating it. The investigation is not a trial and the investigating officer is not a judge, and does not decide the matter. His role is to put questions and ensure that the answers are recorded.

On two subsequent occasions the, grievor appeared for a schedule investigation, but refused to participate because Mr. McCleary was present as an observer. There could be no justification at all for that. Indeed, the objection is sometimes raised that an investigation is not proper because the persons involved in the incident are not present!

The grievor's refusal to participate in the investigation was improper and could itself be the ground for discipline. In considering the discipline imposed on the grievor over this matter, it is apparent that the discipline assessed was severe. In addition to the assessment of 25 demerits (a substantial penalty), a one-month suspension was imposed. Having regard to the circumstances of the original incident, it is my view for the reasons above set out, that only a minor form of discipline would be proper. As to the misconduct that followed the refusal to participate in the investigation it is my view that the grievor's loss of earnings for the period of suspension was directly attributable to his own behaviour.

Having regard to all of the circumstances, and to the substantial penalty in which the grievor's conduct resulted, it is my view that the proper disposition of the case is made by the following award: that the demerit marks assessed against the grievor for refusal to follow instructions be removed from the grievor's record and a warning substituted therefor; and that there be no compensation payable to the grievor in respect of the time he was held out of service.

DATED AT TORONTO, this 5th day of March, 1980.

(signed) J.F.W. Weatherill