SHP 165

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Canadian National Railway Company

(the "Company")

AND

THE CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS

(the "Union")

AND IN THE MATTER OF GRIEVANCE OF T. CONNER

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Union:

J. Brady

A. Melanson

 

 

And on behalf of the Company:

J. Cameron

D. Lord

 

 

A hearing in this matter was held at Montreal on September 13, 1984.

 

 

AWARD

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

JOINT STATEMENT OF ISSUE

On May 22, 1982, at the commencement of his regular assignment, Pipefitter Apprentice T. Conner was assigned by Foreman R. Richard to repair an air leak on diesel unit 3695. Pipefitter Apprentice Conner was also advised that if he had any problems he could see Pipefitter J. Simkins for assistance.

Pipefitter Apprentice Conner refused to accept the instructions from Foreman R. Richard, stating that he wanted to be put under the guidance of a Pipefitter.

As a result of Pipefitter Apprentice Conner continual refusal to accept instructions from Foreman Richard, he was instructed to leave the premises.

After an investigation into this matter, Pipefitter Apprentice Conner was assessed 15 demerits for insubordinate action.

The Union appealed the assessment of discipline requesting that the 15 demerits be removed from his personal record and be paid for time lost on May 22, 1982.

The Company has declined the Unionís request.

The grievor was hired by the company on September 15, 1978, as a Carman Helper. On January 17, 1979, he began his Pipefitter Apprenticeship. The Apprenticeship is one of four years, and the grievor was given a seven-month credit towards it in recognition of certain outside technical training.

The grievor was thus a relatively experienced Apprentice at the time of the incident in question. He had, in March of 1982, been temporarily promoted to be a Mechanic, to fill a Mechanicís position due to a shortage of Mechanics. There is no suggestion that the grievor felt himself incapable of performing the work which he was assigned on the occasion in question.

It nevertheless remains the case that the grievor was an Apprentice, working as such, at the material times. He was assigned certain work by a Foreman. There was no journeyman Pipefitter working with the grievor. There was a journeyman Pipefitter at work on the premises, although at a location separate from that where the grievor was working. The grievor was advised that he was to be under the guidance of the Pipefitter, and that in the event he encountered any problems he could see him.

The grievor took the position that he was not really under the guidance of a Pipefitter. It does not appear that the Pipefitter Ė who would, under this arrangement, be responsible for the grievorís work Ė was aware of what was happening. In the circumstances of the particular case, it is my view that a proper characterization of what occurred in the circumstances, of this particular case is that the company sought to assign work to the grievor as though he were a journeyman.

It would appear that the grievor was in his final year of apprenticeship. It would then be proper for him to work alone, pursuant to article 31.12 of the collective agreement, but such work is to be done "under the guidance of a mechanic of their own craft". In the instant case, I do not think that it would be proper to say that any real guidance was provided for or undertaken.

In my view, the assignment given to the grievor in the circumstances was not one which it was open to the company to give to him as an Apprentice, having regard to the provisions of article 31 of the collective agreement relating to Apprentices. This is not to say that the company could not give instructions to the grievor, or that he ought not to have obeyed them. Rather, it would be my view that the real implication of the companyís instructions was that the grievor was being treated as though he were a Mechanic. He was, in substance, being assigned Mechanicís work and (without the agreement of the Journeyman), Mechanicís responsibility.

The proper course for the grievor to have followed, having quite properly protested the assignment as he did, would have been to advise the company that he would be claiming Mechanicís rates for such work. It follows from what has been said above that such claim would have been justified. At the same time, however, it must be said that the proper course for the supervision to have followed, given the grievorís protest and its own determination to have the work done, was to advise the grievor clearly that he was personally being instructed to perform the work, and that any issue as to the capacity in which he performed it or as to his entitlement to pay therefore could be determined subsequently.

The grievorís "insubordination" in this case does not appear to me to have involved the undermining of managerial authority which is the essence of that serious offence. In view of the apparent obstinacy with which he approached the matter, I do not consider that it was improper to send him home for the balance of his shift, but I do not consider that there was just cause for the imposition of any discipline which would appear on his record.

It was argued that the investigation of the matter was not carried out in accordance with the requirements of the collective agreement, but in my view there was no violation of those requirements in this case.

For the foregoing reasons, it is my award that the fifteen demerits be removed from the grievorís record.

DATED AT TORONTO, this 10th day of October, 1984.

(signed) J. F. W. Weatherill

Arbitrator