The Joint Statement of Fact and Joint Statement

of Issue in this matter are as follows:

The grievor, a Carman, had been employed by the Company for approximately eleven years at the time of his discharge. The question to be determined is whether or not there was just cause for the assessment of thirty-five demerits against the grievor on account of his misbehaviour on the night in question. If there was just cause for such assessment (or if there was just cause for the assessment of thirty demerits), then the grievor would have been subject to discharge for accumulation of sixty demerits. The grievor's disciplinary record at the time of the incident stood at thirty demerits, ten having been assessed on November 30, 1979 and twenty on April 22, 1980, for offences relating to attendance. Although it was argued at the hearing that those earlier assessments were excessive, that record was not changed by way of the grievance or arbitration procedure at the appropriate time. It is not open to the Union to reopen a discipline record any more than it would be open to the company to show past misconduct for which no discipline (or what might be thought to be insufficient discipline), was imposed. The parties may not go behind the record as it is.

On June 11, 1980, the grievor was assigned to work in the Traffic Yard, Winnipeg, on the 0001-0800 shift. He reported for duty at the normal time and at 0020, signed out a radio. He remained in the lunchroom at that time, as no trains were immediately due, and his work was the inspection of arriving trains.

At about 0100, the grievor was overheard making certain unauthorized radio transmissions. These were in the nature of foolish remarks intended, I think, to be taken as jokes. The remarks were overheard by the Inspection Control Supervisor, who told the grievor to be quiet and the grievor then obeyed that instruction. Later that morning, the grievor made certain foolish comments with respect to his work assignment over the radio. Those comments were improper in themselves, but should not be considered part of the separate offence of "improper use of radio communications". That the grievor did use the radio improperly is clear. He ought to have been warned for that, but in view of the evidence as to the frequency with which this offence was committed by others with impunity, I do not consider that the five demerits assessed on that account were justified.

Later that morning, as a result of other comments by the grievor, of which he was aware, the Car Foreman interviewed the grievor. The Car Foreman states that the grievor's eyes were glazed, his voice was loud and "he seemed very loose in his posture". It was the Foreman's view that the grievor had been. drinking. At the investigation, the grievor stated, that he had drunk several beers before coming to work on July 11, 1980, but that they were "non-alcoholic". On the morning in question, it had, been necessary for police officers to persuade the grievor to leave the Company premises after he had been sent home and while he had admitted to the police that he had consumed several beers before coming to work, he had said nothing about their being "non-alcoholic", although he had insisted that he was not drunk. The grievor also stated that he had not slept for about thirty hours before reporting to work.

From all of the material before, it is my view that the grievor was, in fact, unfit for duty on July 11, 1980. The assessment of ten demerits on that account as quite justified.

As to the grievor's insubordination, that is said to have occurred after the Car Foreman had told him that he considered him unfit for duty and that he was sending him home. The grievor refused to leave and when the car Foreman advised that the police would be called to remove him, he "blew his stack" as he says, and said "Who are you, you're just an idiot, all you do is lead these other idiots around". Calling a supervisor names in this way, especially in front of others (as was the case), is certainly insubordination and would justify the imposition of discipline. The assessment of an appropriate penalty, however, involves a consideration of all of the circumstances surrounding the offence.

In the instant case, the grievor's, insubordinate language was not uttered in the context of a refusal to perform work. While it was insolent and rude, it was a response to the imposition of discipline and – in view of my conclusion that the grievor was unfit for work at the time – cannot be taken to be the expression of any very serious thought, but simply the angry reaction of one who has been caught. It was not, in these circumstances, an offence calling for a heavy penalty. It might, indeed, have been taken into account in assessing the penalty for being unfit to work, the two matters really forming a part of the same overall set of circumstances. Had that been done, a higher penalty than ten demerits would have been justified for the other offence. As it is, however, it is my view that twenty demerits was an excessive penalty for the particular act of insubordination involved here. In my view, ten demerits would have been an appropriate penalty in this case.

For all of the foregoing reasons, it is my view that a total of twenty-demerits might properly have been assessed against the grievor for his misconduct on July 11, 1980. His record would then stand at fifty demerits, and he would not be subject to dismissal.

It is accordingly award that the grievor be, reinstated In employment forthwith, and that the demerits assessed in respect of July 11, 1980, be reduced to twenty.

In view of the evidence as to the grievor's work performance and his comments with respect to his work during that morning, I do not consider that any substantial award of compensation should be made. Rather, the grievor is to be paid compensation for loss of earnings from January 1, 1981 until the date of his actual reinstatement.

DATED AT TORONTO this 12th day of January, 1981.

Arbitrator