SHP 223





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

L. Lalumiere



There appeared on behalf of the Company:

J. H. Blotsky

D. J. David


A hearing in this matter was held at Montreal on October 15, 1986.



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

Joint Statement of Fact:

On March 18, 1986 R. D. Wareham was dismissed from service of CP Rail for accumulation of more than 60 Demerit Marks culminating from his being issued 10 Demerit Marks for "Failure to appear at scheduled investigations on January 9, January 10 and January 17, 1986" and 30 Demerit Marks for "Verbal abuse and racial discriminatory remarks towards a fellow employee on various occasions at Toronto Car Department during the period October 1985 to December 10, 1985".

Statement of Issue

It is the position of the Brotherhood of Railway Carmen that Mr. R. D. Wareham was unjustly dismissed and therefore he 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 entered the Company's service as an Engine Cleaner in April, 1977, and who was subsequently promoted to Carman Helper and Carman Trainee and then served as Apprentice Carman, became a Carman in September, 1982, and was working in that capacity at the time of his discharge.

In December, 1985, a fellow employee filed a written complaint about the grievor, alleging that the grievor had directed verbal abuse and racially discriminatory remarks at him on several occasions. The Company quite properly made these allegations the subject of an investigation.

The complainant, Mr. Bhinder, was called for investigation on December 14, 1985, and in the course of that investigation made certain allegations respecting the use of offensive language and racial slurs toward him by the grievor in 1982 and again in 1985. The grievor was then called for an investigation on December 19. He attended that investigation, but indicated that he would prefer to make a detailed rebuttal of Mr. Bhinder's allegations after the statements of certain other employees said to have knowledge of the matter had been taken, and he undertook to attend a further investigation.

Statements from the other employees referred to were taken on December 19. These do not set out any substantial evidence to support the allegation that the grievor engaged in racial slurs against Mr. Bhinder, although it is clear from them that the grievor did at times use obscene language, not merely in the nature of shop talk, but at times directed toward Mr. Bhinder personally, as well as to others.

The grievor was then called for a further investigation to be held on January 9, 1986. On that day, shortly before his shift was to begin, the grievor called in sick. The investigation was then rescheduled for the following day. On that day, the grievor again called in sick. The grievor called on January 16 to advise that he was still sick, and the investigation was rescheduled for January 17. On that day, the grievor again called in sick, saying that he expected to be able to return to work on the 19th or 20th. He returned to work on the evening of January 19, and early on the 20th was taken out of service and an investigation was scheduled for the 21st.

The grievor attended that investigation and denied, in detail, virtually all of the allegations against him, alleging in turn that there was a conspiracy against him. It may be said at this point that having regard to all of the material before me it could not properly be concluded that there was in fact any real conspiracy, although it is clear that Mr. Bhinder and certain others did not like the grievor, and would have been happy to see him gone. Apart from personality differences, and the perhaps excessive resort to obscenity in which the grievor appears to have indulged (and he has, I find, uttered racial slurs directed at or about Mr. Bhinder on a few occasions, although not systematically), there appears to be no sufficient motive for such an enterprise, and there is no substantial evidence that any real conspiracy was mounted.

The grievor was also called to an investigation on January 23, 1986, in connection with his failure to attend the investigations scheduled for January 9, 10 and 17. With respect to each of these occasions the grievor had called before the time set (in some cases, only shortly before), to advise that he was sick. It does not appear that his illness was questioned on any of those occasions, or that he was asked to provide any medical proof of illness. The grievor stated at the investigation that he had been sick (and on one occasion, his illness would appear to have lasted several days), and there is no proof to the contrary. The onus is on the employer to show that the conduct of the grievor was improper. The material before me does not show that (although it appears that the Company has sought to investigate the grievor with respect to those absences; no issue in that regard is now before me, however). It shows only that the grievor says he was sick, and that the Company appears to have been skeptical about that. That was not sufficient grounds, in my view, for holding the grievor out of service, and it was not sufficient grounds for the imposition of discipline.

For the foregoing reasons I find that the 10 demerits assessed against the grievor for insubordination in not reporting for investigation were not imposed for just cause, and it will be my award that they be removed from his record.

Following the investigation held on January 21, referred to above, the other employees referred to by the grievor in his statement were called for investigations, and gave statements on February 10. Mr. Bhinder then was called for a further statement, given on March 14. On March 18, the grievor was assessed 30 demerits "for conduct unbecoming an employee of C.P. Rail as a result of your verbal abuse and racial discriminatory remark towards a fellow employee on various occasions at Toronto Car Department during the period October 1985 to December 10, 1985".

At the time of the investigations held on February 10, 1986, the Company wrote to the Union, referring to the time limit of 28 days set out in Rule 28.3 of the collective agreement, and requesting that that time commence to run after the completion of the taking of those statements. The Union concurred with that request. No disciplinary action was taken within the 28-day period then following. The Company felt that Mr. Bhinder should be investigated again, but that investigation was not held until after the 28-day period had expired. No further extension had been requested. Having regard to the provisions of Rule 28.3, it is my view that it was not open to the Company to impose discipline on the grievor in respect of the conduct in question after March 10, 1986.

On that ground, the 30 demerits assessed against the grievor must be set aside. If I am wrong in this, and the merits of the case were to be considered, it is my view, on all of the material before me, that the penalty assessed was excessive. The grievor, like most of the employees concerned, certainly did resort to "shop talk" with great frequency. He went beyond that, I find, and directed abusive language at other employees, including Mr. Bhinder. That would be cause for the imposition of some discipline. On the material before me, however, it has not been shown that the grievor directed any racial slur against Mr. Bhinder in any regular way. Any use of racial slurs is of course improper, and would subject an employee to some discipline. Had it been shown that the grievor consistently or systematically directed racial slurs against Mr. Bhinder, I would have considered the assessment of 30 demerits to have been justified, but that is not the case on the material before me.

For the reasons set out above, however, it is my conclusion that it was not open to the Company to assess discipline against the grievor, on the grounds in question, after March 10, 1986. Accordingly that discipline must be set aside. The result is that the grievor's discipline record remains at 45 demerits.

It is of interest to note the remarks of Mr. Austin, an employee called for investigation with respect to things said both by the grievor and by Mr. Bhinder. At the conclusion of the investigation Mr. Austin made the following statement:

Ron Wareham is an employee of the Company the same as the rest of us, slander from him or any other is common. Most of us have grown to accept it & understand from where it comes. I fail to see where this case is any different. There has been slander from both parties. There is a personality clash, again no different than so many other people working together. We are all supposed to be mature adults working together. If someone else's opinion offends then maybe it's time for them to become a mature adult and disregard the opinion of others about yourself. An opinion is an opinion whether it is right or wrong it's an opinion. It's what one thinks of himself that really counts. I personally look toward Ron Wareham as just another employee of this Company, someone I've met working here. When I leave I go one way and he goes his. I have given this statement because I was asked to tell the truth and I will say no more or no less. What really is the sad part of this statement is that the employees that have signed this statement against a fellow employee are the same employees of the same Union of the same group of employees that have slandered or have been slandered since the day they have started with this department & that's the part I really can't understand.

I do not consider those remarks as condoning any continued course of verbal abuse, and certainly not as condoning racial slurs but as a mature plea for a certain amount of give and take, essential for workplace relationships.

For the reasons set out above, it is my award that the 10 demerits and the 30 demerits in issue in this case be struck from the grievor's record, and that he be reinstated in employment without loss of seniority and with compensation for any net loss of regular earnings.

DATED AT TORONTO, this 3rd day of November, 1986.

J. F. W. Weatherill