SHP 220





Canadian Division Brotherhood of Railway Carmen of the United States and Canada




SOLE ARBITRATOR: J. F. W. Weatherill



There appeared on behalf of the Union:

B. R. McDonagh

S. A. Horodyski



There appeared on behalf of the Company:

A. Y. de Montigny

D. J. David


A hearing in this matter was held at Montreal on February 25, 1987.



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

Joint Statement of Fact

On April 18, 1986, Carman L.N. Banchev was assessed the following discipline:

5 demerit marks for "being non productive and being in your supervisors office and going through his desk drawers without authorization".

3 demerit marks for "insubordination for going to the General Foreman's Office after your supervisor instructed you not to go".

He was subsequently dismissed from the Company service for accumulation of demerit marks in excess of 60.

Joint Statement of Issue

It is the position of the Brotherhood Railway Carmen that Mr. L.N. Banchev was unjustly dismissed and therefore should be reinstated forthwith and reimbursed all rights, benefits and wages lost as provided for in the Collective Agreement.

Company denies claim.

The grievor, who was hired by the Company in 1971, became a qualified Carman in 1976, and was working in that capacity, as a Mobile Crane Operator, at the time of his discharge.

The first of the incidents in issue in the instant case occurred on April 7, 1986. On that day, shortly before the end of the grievor's shift, he was in the car shop office. He had gone there to put his name on a list of employees available for work during the holiday shutdown. The grievor, having an entitlement to more than three weeks' vacation, would not have been entitled to any preference in respect of work during the shutdown (such preference being given to those who would otherwise be without earnings during a part of the vacation period), but because of his own financial situation he nonetheless sought to work, if possible, during that period. It would appear that the grievor had at times worked during the vacation shutdown in the past, and in any event, there would be no harm in his asking for such work, if it was available.

On the evidence before me, the grievor had spoken to his supervisor on the morning of the day in question, asking if he might go up to the office to put his name on the availability list. The supervisor told him that he could not, but that he would look into the matter. The grievor's statement, given at the investigation, was to the contrary: his statement (given at the investigation to the supervisor himself, who conducted the investigation), was "you said maybe you would take care of it or I could go". At the investigation, the supervisor suggested to the grievor that he was not telling the truth about that, but the grievor, in effect, insisted that he was. At the hearing, the supervisor gave evidence as to what occurred, namely that he had told the grievor no, he might not go to the office, but that he would take care of it. That evidence was not shaken on cross-examination, and I accept it.

The fact that it was the very supervisor whose indications the grievor ignored who conducted the interview does not involve any violation of the requirement of conducting a proper investigation, as set out in article 28 of the collective agreement. The grievor was asked for his version of the facts, and he gave it. He was advised what the supervisor's version of the facts was, and commented on that. The Company did not act on information of which the grievor was unaware, and the grievor had full opportunity to give his version of the matter. The Company then considered the matter, and concluded that the grievor had indeed conducted himself in a manner which merited discipline. Discipline having been imposed, and then made the subject of a grievance, the onus is on the employer to establish that there was just cause. In the instant case, and on the evidence which is before me, it is my conclusion that the employer's version of what occurred is the correct one, and I find that there was in fact just cause for the imposition of discipline.

The offence, however, was a minor one and did not involve any significant threat to the managerial authority of the supervisor, which is the essence of the industrial offence of insubordination. The grievor was away from his work place, and in an area in which he was not then authorized to be, but it was not a restricted area, and the grievor's work for the day was done in any event. Only a minor penalty would be called for in the circumstances and in fact only a minor penalty was imposed. As will be seen, the substitution of a warning for the three demerits would not have any effect on the ultimate disposition of the case. If the termination of the grievor's employment turned only on that, then I might have been of the view that such a substitution might be proper, but in all the circumstances of the instant case no purpose would be served by that.

The second incident in issue occurred on April 15, 1986. The main fact of that matter is not in dispute. About one hour before the end of his shift, the grievor was in the supervisor's office, going through the drawers in his desk. The supervisor entered the office, and saw the grievor holding in his hand a notice of investigation relating to the matter dealt with above. The grievor stated that he had come into the office to get a pencil with which to fill out his daily report, and not seeing a pencil on top of the desk had looked for one in the drawers.

It is true that employees may properly go into the supervisor's office, even in the absence of the supervisor, to get necessary materials, including the report forms referred to, and no doubt including pencils as well. At the time in question, however, the grievor's work for the day had not been completed, and indeed others were waiting for him to operate the mobile crane in connection with their work. There was at that time no sufficient reason for the grievor to be in the supervisor's office at all. In any case, it was obviously improper for him to have been going through the drawers of the desk, and to have taken a document out of the desk.

There was, I find, just cause for the imposition of discipline in the circumstances. Again, the fact that the supervisor conducted the investigation does not support the conclusion that the matter was not properly investigated in accordance with the requirements of article 28 of the collective agreement. As was said in the C.N.R. and Division # 4 (Blenman) case, (March 5, 1980) [SHP____], "The investigation is not a trial and the investigating officer is not a judge, and does not decide the matter. His role is to put questions and ensure that the answers are recorded".

For improper conduct of that sort some substantial discipline would be justified, and in the circumstances of this case I consider that five demerits was well within the range of reasonable disciplinary responses to the situation.

At the material time, the grievor's accumulated discipline record stood at 56 demerits. In February, 1984, the grievor had been assessed 10 demerits for improperly wearing safety glasses. In March, 1984, he was assessed 3 demerits for not using proper fork lift procedure. At the same time, he was assessed 3 demerits for not reporting an accident immediately. In February, 1985, the grievor was assessed 10 demerits for failing to ensure his feet were clear of a falling discharge gate. In April, 1985, he was assessed 5 demerits for riding on the back of a forklift. At the same time, he was assessed 5 demerits for disregard of shop safety rules. In June, 1985, the grievor was assessed 20 demerits for attempted theft of Company property.

In April and again in June of 1985 the Company wrote to the grievor reminding him of the status of his discipline record.

As a result of the discipline assessed for the two incidents in question in this case, the grievor's record stood at 64 demerits. Under the Brown system of discipline the grievor was subject to discharge, and in my view, having regard to all of the circumstances, there was just cause for discharge in the instant case.

For all of the foregoing reasons, the grievance is dismissed.

DATED AT TORONTO, this 11th day of March, 1987.

J. F. W. Weatherill