SHP Ė 146
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
IN THE MATTER OF THE GRIEVANCE OF L. H. PILGRIM
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
D. J. David
A. Y. deMontigny
And on behalf of the Union:
J. W. Asprey
J. P. Slota
A hearing in this matter was held at Montreal on June 17, 1983.
The grievor, a Pipefitter Helper, was hired by the company on August 26, 1980. He was discharged on January 26, 1983, following an incident which occurred on January 20. The Joint Statement of Fact and Issue in this matter is as follows:
Dismissal of Pipefitter Helper, Mr. Lloyd H. Pilgrim for accumulation of demerit marks.
JOINT STATEMENT OF FACT
On January 26, 1983, Mr. Lloyd H. Pilgrim, Pipefitter Helper, Ogden Shops was assessed the following discipline as a result of an altercation with his Supervisor at approximately 17:45K on January 20, 1983:
10 demerit marks Insubordination
20 demerit marks Threatening a Supervisor and fellow employee
60 demerit marks Use of physical violence
Record closed Accumulation of demerit marks in excess of 60.
JOINT STATEMENT OF ISSUE
The Union claims that Mr. Pilgrim has been unjustly dismissed.
The Company denies the claim.
At about 1745 on January 20, the grievor was assisting Pipefitter R.J. Sorathia, who was stripping grip seals from a pipe at the pipefitterís bench. This process involved the application of heat, and the seals were very hot when removed. As they were removed, the grievor took them and piled them on the floor beside the bench. At the time in question, the Area Supervisor, Mr. Kobrzynski, walked by and noticed that one of the seals which had been removed was burning, and creating considerable smoke. He asked the grievor, who was standing beside the burning seal, to extinguish it. The grievor replied that it was almost out already.
Mr. Kobrzynski repeated his request, referring to the smoke being created, and the grievor replied that there was already a lot of smoke in the shop. The supervisor then indicated that when he gave instructions, they were to be followed. The grievor replied that he would not follow orders blindly, no matter who gave them. The evidence is conflicting as to what then happened. The supervisor states that he told the grievor that if he did not do as he was told, they would have to go upstairs to see the shift foreman. Mr. Sorathia states that the supervisor told the grievor that if he did not do as he was asked he would be sent home, and that the grievor replied that if Mr. Kobrzynski sent him home he would kill him. The grievor states that he did extinguish the burning seal (there is no doubt that he did extinguish it at some point); that the supervisor then told him to put the seals in the scrap bin, and to move quickly; that when the grievor remonstrated as to the supervisorís manner, the supervisor pushed him and told him to book off, and that a fight then ensued.
It is not to be expected that a perfectly accurate account of events such as these is to be obtained from even the most dispassionate observer. From all of the material and evidence before me, however, it is clear that the grievor did then assault Mr. Kobrzynski, hitting him in the face and knocking his glasses off, then hitting him again several times before being restrained by Mr. Sorathia. While Mr. Kobrzynski sought to protect himself, he did not seek to return any blows, and could not be said to have participated in a fight. I do not believe, from the material before me, the Mr. Kobrzynski in fact pushed the grievor, or that he could be said, in any significant way, to have "provoked" what occurred. Certainly the grievor was not acting in self-defence. Even if there had been any substantial provocation (and there was not), the grievorís reaction to it was extreme, and went well beyond any proper response.
There is also conflict as to what happened following the incident, which the supervisor reported to the shift foreman. The grievor states that following the incident Mr. Sorathia said to him that while he bad been provoked and assaulted, he, Mr. Sorathia, would "sink" him, because he had hit back the foreman. Asked for an explanation, Mr. Sorathia (according to the grievor) stated, in effect, that because he had been forced out of Kenya, he hated "Africans" (the grievor is from the West Indies). Mr. Sorathia denies having made such a statement. He states that he came willingly from Kenya and has no prejudice of the sort referred to by the grievor; that following the incident, when Mr. Kobrzynski left, the grievor came to him and told him to say nothing. Mr. Sorathia replied that he would tell the truth. Following the discussion in the foremanís office when the grievor was sent home, he came up to Mr. Sorathia and said that if he got into trouble he would see him outside. Mr. Sorathiaís statement is consistent with the statement he made to the foreman at that time.
From all of the foregoing, I think it is clear that the grievor was subject to discipline, and that this would be so in respect of each of the charges referred to. These are, however, all aspects of what is essentially one incident, which took place in a relatively brief period of time. While the grievor may have been "insubordinate", in that he delayed carrying out the quite proper request of ths supervisor, he did eventually comply with it, and no very substantial penalty should be assessed on that count. It would appear that the grievor did utter threatening, words to the supervisor, but these should, I think, be taken simply as part of his overall behaviour, and not as a separate matter. More serious, in my view, would be the threats subsequently issued against Mr. Sorathia. The assault on the supervisor, which did take place, as I have found, was a serious, unprovoked assault, and would have been persisted in if the grievor had not been restrained.
Viewing the incident as a whole, bearing in mind that the grievor was not provoked in any substantial way by any conduct, on the supervisorís part, and noting that the grievor does not have any very lengthy seniority, it is my view that there was just cause for discharge in the circumstances. It is not necessary to pass on the demerit points assessed in respect of the various aspects of the incident.
There was just cause for the discharge of the grievor, and the grievance is accordingly dismissed.
DATED AT TORONTO, this 24th day of June, 1983.
(signed) J. F. W. Weatherill