BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

M. M. Yorston

And on behalf of the Union:

J. W. Asprey

W. Redhead

A hearing in this matter was held at Montreal on April 14, 1983.

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

The three incidents referred to occurred, within a short period of time on the same day. The first two, in my view, really constitute a single incident. The third is separate and unrelated, except to the extent that it may be in part explained by the grievor’s emotional state following the first incidents.

The grievor, an electrician, had some seven years’ service with the company. On the day in question, the grievor’s shift hours were from 1530 to 2330 hours. The grievor reported late between 1600 and 1610 and apparently did not punch in. This was the last day of work prior to a vacation close down and layoff, and the grievor had punched out and was on his way home at about 1630 when the first incident occurred. The grievor was not in his work clothes, but was wearing brown running shorts.

The grievor was in the plant, near the punch clocks when the afternoon shift Foreman, Mr. Tetreault, passed by. He noticed that the grievor was not wearing his hard hat and safety gloves, which apparently were required in that area. Mr. Tetreault asked the grievor to put them on (the evidence is conflicting as to whether he spoke politely or arrogantly), and the grievor replied, loudly, that Mr. Tetreault should "get off his back", going on to speak about another incident. The grievor’s evidence is that Mr. Tetreault then made some remark referring to a "big nigger", although he did not address such remark to the grievor directly. Mr. Tetreault denies using any such expression. Whether or not such language was directed at an employee (which would be inexcusable), its use in his presence or hearing would constitute a form of provocation. On the evidence before me I do not conclude, on the balance of probabilities, that such language was used, although I do accept that the grievor thought it was used. It is in that context, I think, that the grievor’s reaction is to be understood.

That reaction was an abusive one. Adding to his earlier remarks concerning Mr. Tetreault’s attempts to "get" him, the grievor made other abusive remarks, including calling Mr. Tetreault a racist. While I do not consider such conduct on the grievor’s part to have been justified, it was, in the light of what the grievor felt had occurred, understandable. In my view, no substantial penalty ought to have been imposed in respect of this first incident, and the twenty demerits assessed therefor should be removed.

The second incident is said to have occurred immediately after the first and is, in my view, simply a continuation of it. Following the first outburst, the grievor walked in the direction of the punch clock, then turned towards Mr. Tetreault and another supervisor who was then with him. The grievor, according to his own statement, made an insulting obscene gesture toward the supervisors. According to the supervisors, the grievor exposed himself. I would note that no reliance is to be placed on the statement of Mr. Bernard, a fellow employee who accompanied the grievor, and who simply "saw nothing".

The precise facts with respect to this incident are difficult of determination, since I am convinced that Mr. Tetreault and Mr. Litalien (the supervisors) and the grievor were sincere in their statements as to what took, place. It may well be that given the gesture admittedly made by the grievor, and given the fact of his wearing brown shorts the colour of his skin, the supervisors did not see what they thought they saw. In any event, whether or not the grievor added that note of realism to his obscene gesture is not of any great moment in the particular circumstances of this case. This is not a case of sexual perversion (the expression of which in, the workplace would be a very serious matter), but was, in my view, a continuation of an understandably angry reaction to a perceived (although not real) racial slur. The grievor’s obscene gesture - whatever its extent - was wrong, and would subject him to discipline. In the circumstances described, however, it is my view that no substantial penalty was called for. Again, the assessment, of twenty demerits was excessive.

The third incident occurred following the first two, but is distinct therefrom. Following the events just described, the grievor left the plant, and went toward the gate where he had left his bicycle. He then decided to go back to the plant to speak to his immediate supervisor, "to clarify some unresolved inquiries" he had put to him in the past. Clearly, the grievor, who appeared at the hearing as an intelligent and well-spoken man, was in an emotional state or he would not have indulged in such an ill-advised venture. Mr. Bernard, unfortunately, did nothing to dissuade him.

The grievor returned to the plant and went to the locomotive department office, where his supervisor, Mr. Bessette, was issuing a pass to another employee. The grievor began questioning Mr. Bessette as to these past matters, and not getting a satisfactory reply, became abusive. Although the grievor denies it, I consider that Mr. Bessette’s account of the matter is more reliable, and that the grievor did shake Mr. Bessette, knocking off his hat. He picked up the hat and returned it roughly, in effect striking him with it. The other employee who was at first unwilling to be involved, subsequently stated that there had been no contact between the two men. I am unable to accept that statement, and consider that it does not help the union’s case.

Clearly the grievor’s conduct in this instance was wrong. He was abusive of his foreman and, technically speaking at least, assaulted him. Assault on a supervisor is in many cases grounds for discharge. In the instant case, however, I do not consider that such a severe penalty was justified. What occurred was, as the circumstances described make clear, a "momentary flare-up" and the result of what the grievor felt to be provocation. There was, in my view, no deliberate striking or attempt to injure.

Having regard to all of the foregoing, it is my conclusion that the discharge of the grievor was not, justified, and that a lesser penalty should be substituted therefor. In the circumstances, there should be no award of compensation, and in the light of that, a thirty-demerit penalty would, in my view, be appropriate. The result will be that the grievor’s record stands at fifty-five demerits, so that to retain his employment he will have to maintain exemplary behaviour which, to judge from his demeanour at the hearing and his other accomplishments, he is capable of doing.

It is accordingly my award that the penalty assessed against the grievor be reduced to one of thirty demerits, and that he be reinstated in employment forthwith without loss of seniority, but without other compensation.

DATED AT TORONTO, this 20th day of May, 1983.