SHP 200

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS

IN THE MATTER OF THE GRIEVANCE OF J. TUMBER

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Union: L. Biniaris

 

 

There appeared on behalf of the Company: J. A. Cameron

S. MacDougald

 

A hearing in this matter was held at Montreal on May 27, 1986.

 

AWARD

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

Effective November 25, 1985, Machinist J. Tumberís record was assessed 20 demerit marks for sleeping while on duty and 30 demerit marks for assaulting a Supervisor during his shift on November 25, 1985. Machinist Tumber was subsequently dismissed for accumulation of demerit marks.

The Union contends that Machinist Tumber was unjustly dealt with because the discipline assessed was not warranted and in any event was too severe for the alleged violations of November 25, 1985.

The Union requests that Machinist Tumber be reinstated with full compensation for lost wages and benefits and that the demerit marks be removed from his record.

The Company disagrees with the Unionís contention and has denied the Unionís request.

The grievor, a Machinist, was hired by the company on July 30, 1977. At the material time, his discipline record stood at 25 demerits (the last demerits had been assessed slightly more than one year before, but the grievor had been absent from work due to illness for a substantial time during that period, and had not put in the necessary period of active service free from discipline to be entitled to a reduction in the number of his accumulated demerits).

There are two issues of fact to be determined: whether or not the grievor was sleeping during working hours on the day in question, and whether or not he assaulted his supervisor. The question will then be whether or not there was cause for the imposition of discipline on the grievor, and if so, whether the penalty of discharge was excessive in the circumstances. While there is no doubt that the grievor did in fact go to the cab of a unit in an area away from where work was being performed (it was the grievorís evidence that it was warm there, and he wanted to stretch out and rest his ankle, which he had twisted), the evidence is contradictory as to the length of time, and the time at which the grievor was there. The only direct evidence is that of the only witnesses, the grievor and his supervisor. Having heard both witnesses, and having considered their testimony, I find the evidence of the supervisor to be the more likely and believable account of what occurred, and I accept his evidence where it conflicts with that of the grievor.

On the evidence, I find that the grievor was observed by the supervisor in the cab of unit 1211 at about 0205 on the day in question. The grievor appeared to be sleeping, although the supervisor did not speak to him at that time. The supervisor returned to unit 1211 some forty minutes later, and found the grievor asleep. He told him to go home. The grievor made no objection at that point.

On the first question, then, it is my finding that the grievor was asleep during working hours. He was asleep for more than just a few minutes, and at a time when there was work to be done.

As to the second question, there is no doubt that some sort of confrontation occurred between the supervisor and the grievor. After directing the grievor to go home, the supervisor went to his office, and then proceeded toward the foremanís office. On his way, he met the grievor, who was apparently looking for him. I have no doubt that the grievor was irate and aggressive, and wanted some explanation of why he was being sent home. On all of the evidence, I would conclude that the grievor did give the foreman a shove, although he did not strike him. He used some form of threatening language, but I do not consider that any seriously-intended threat was made, nor that it was reasonable for the supervisor to consider, as he appears to have done, that such was the case. The supervisor walked past the grievor, proceeded to the foremanís office, and called for a security officer to escort the grievor off the premises. The grievor left without difficulty, although protesting that no reason for his being sent home had been given. In my view, the grievor well knew the reason.

On the second question of fact, then, it is my conclusion that while there may, in a technical sense, have been an "assault", there was no serious or dangerous attack either on the person of the supervisor or on his authority. The grievorís action was wrong, and would subject him to discipline. It was, however, more a reaction (an inappropriate and blameworthy one), to his having been caught sleeping, than a deliberate act. It was a momentary flare-up, and part of a set of events which, in the circumstances, should be taken together.

As I have indicated, there was indeed cause for the imposition of discipline on the occasion in question. In assessing discipline, however, I consider that the matter should Ė in the particular circumstances of this case - have been treated as one incident rather than as two separate ones. In the instant case, neither of the disciplinary aspects of what took place sleeping on the job, and assaulting a supervisor Ė was a particularly aggravated example of what are, in general, very serious offences. It seems clear that on the shift in question, sleeping during working hours is tolerated in some circumstances. Indeed, in the instant case, the supervisor left the grievor to sleep, thinking that he would probably be back at work shortly! He had found the grievor asleep at work on past occasions, and appears to have done no more than speak to him at the time. In the light of that, it is difficult to justify the imposition of a very severe penalty, even though in most cases, sleeping on the job would be regarded more seriously.

As to the assault, I have indicated that it was in the nature of a momentary flare-up, although I do not suggest by that that it was not a serious matter nonetheless. The circumstances are distinguishable from those of the Brewster case between the same parties (March 21, 1983).

Having regard to all of the circumstances, including the laxity with which sleeping on the job appears to have been regarded, and considering that the events for which discipline was imposed ought in this case to have been considered together, it is my view that the assessment of fifty demerits was excessive, but that the assessment of thirty demerits would not have exceeded the range of reasonable disciplinary responses to the situation. Although the grievor had some eight yearsí seniority, he had missed considerable time for various reasons, and his disciplinary record was not good. The nature of his conduct on the evening in question, and of his attack on the credibility and character of the supervisor at the investigation of this matter (for which no justification appears), lead to the conclusion that this is not a case in which any compensation for loss of earnings or other benefits should be made. I do find, however, that there was not just cause for the discharge of the grievor in the circumstances.

For all of the foregoing reasons, it is my award that the discharge of the grievor be set aside, and that he be reinstated in employment forthwith. I make no award of compensation, and declare that the grievorís discipline record shall stand at 55 demerits, as of the date of his reinstatement.

DATED AT TORONTO, this 23rd day of June, 1986.

(signed) J. F. W. Weatherill

Arbitrator