(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

A hearing in this matter was held at Montreal on February 23, 1984.

The union’s ex parte Statement of Fact and Issue in this matter is as follows:

The company’s version of the Dispute and its Statement of Issue are as follows:

The grievors are Machinists and had worked in one case eight, and in the other nine years for the company. On May 26, 1982, each was assessed 25 demerit marks, effective March 20, 1982,. "For unseemly behaviour as an employee while picketing CN’s Main Shops at Pointe-Saint-Charles in Montreal on March 20, 1982, causing operations to be suspended". The issue of substance is whether or not this discipline was imposed for just cause. There is also a substantial question of a procedural nature, relating to the time at which the discipline was imposed.

There is no substantial dispute as to the facts, although there is as to their interpretation. On Saturday, March 20, at about 7:00 a.m. (just before the beginning of the first overtime shift, at 7:30), the grievors, along with two other employees. attended in front of the main gate of the company’s Point St. Charles shops. The four employees were observed to take turns carrying a picket sign which read: "SOLIDARITY RAILWAY EMPLOYEES LET’S SAY NO TO OVERTIME", and to speak to other employees as they drove up to report for work. A number of the latter were seen to drive away. In fact, only seven of the fifty-eight employees required to work that shift actually reported to work.

From the material before me, it is quite clear that the grievors were engaging in picketing in front of the company premises, and that their purpose, which they would appear to have achieved (although some of those who did not report may have stayed away from work in any event and without any urging from the grievors), was to induce employees not to report to work. The grievors, I find, were engaged in improper picketing and were counselling an illegal strike (the union and the company were engaging in "difficult negotiations" at the time). The contention that the grievors had attended at the company’s gate that morning "for personal information", and that "they wished to see how many of the employees had given into the company’s threats" is not entitled to credit.

At the investigation of this matter conducted pursuant to article 28 of the collective agreement, the grievors gave answers which were evasive or offensive, or both. They asserted that their conduct on their own time and off the company premises was simply part of their private life. Since, in the instant case, what they were doing was, as I find, deliberately – and successfully – aimed at interrupting the company s operations, it is apparent that such an assertion was not an honest one. Equally dishonest, I think, was the whole tone of the grievors’ answers to many questions, as for example the suggestion that the meaning of "conduct" – which in this case obviously referred to what the grievors were doing in front of the gate – was unclear.

What the grievors were doing did relate to their employment, was wrong, and was damaging to the employer. The grievors were certainly subject to discipline, and it would be my view that the penalty assessed was well within the range of reasonable disciplinary responses to the situation.

The investigation of this matter was held on April 15, 1982. The grievors maintained that the investigation was improperly conducted, but there is nothing to support that allegation which I find, again, to be dishonest. Article 28.3 of the collective agreement provides that a decision as to discipline is to be rendered within twenty-eight calendar days of the investigation report. In the instant case, the decision – represented here by the notice of discipline – was not rendered until May 26, 1982, which is more than twenty-eight calendar days after the investigation. There is no suggestion that there was any mutual agreement, as the collective agreement contemplates there may be, to extend the time limit. The time limit is, in my view, mandatory, compliance with it being a condition precedent for the imposition of a valid disciplinary measure. It is, accordingly, my conclusion that the discipline imposed in the instant case, amply justified though it may have been on the merits, was a nullity.

For the foregoing reasons, the grievance is allowed. It is my award that the demerit marks assessed against the grievors be removed from their records.

DATED AT TORONTO, this 6th day of March, 1984.

Arbitrator