IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN DIVISION BROTHERHOOD OF RAILWAY CARMEN OF THE UNITED STATES AND CANADA
AND IN THE MATTER OF A GRIEVANCE OF J-P PAYETTE
SOLE ARBITRATOR:J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
S. A. MacDougald
A hearing in this matter was held at Montreal on January 21, 1988.
The Dispute and Joint Statement of Issue in this matter are as follows.
Appeal of 15 demerits assessed the personal record of Carman J-P. Payette of Taschereau Yard, Montreal, Quebec resulting in his discharge for accumulation of demerit marks.
JOINT STATEMENT OF ISSUE
On March 30, 1987, during his regular 1530 - 2330 hours shift Carman Payette refused-to complete a #3 Air Brake Test on a train as instructed by Foremen Montagne and Morel. During an ensuing discussion with Foreman Morel, Carman Payette used abusive language towards Foreman Morel calling him "un crosseur at un petit crisse de baveux."
The next day, March 31, 1987, at the beginning of the shift, Carman Payette asked Foreman Montagne for his pay cheque. Carman Payette reminded Foreman Montagne that he had waited beyond the end of his shift to get his previous pay cheque and that he did not want this to reoccur. At approximately 2325 hours, Carman Payette again asked Foreman Montagne for his pay cheque. Foreman Montagne said that he did not have it with him but offered to allow Carman Payette to drive the Company’s yard truck to the Repair Track office where he could pick up his pay cheque.
Carman Payette refused this offer and began to accuse Foreman Montagne of harassment. During the ensuing verbal exchange with Foreman Montagne, Carman Payette called Foreman Montagne "Un petit crisse de baveux" while pushing him on the shoulder.
On April 26, 1987 Carman Payette attended an investigation concerning his actions of March 30 and 31. On May 22, 1987 his record was assessed with 15 demerits for having on March 30 and 31, 1987:
a) violated Company Rule No. 11 of the rules and Regulations to be observed by all employees in the Motive Power and Car Shops
b) pushed a foreman
c) used abusive language on two occasions This increased Carman Payette’s current discipline record to 74 demerits. On May 22, 1987 he was advised that he was discharged for accumulation of demerits.
The Brotherhood contends that the discipline assessed and resultant discharge were too severe. The Brotherhood contends that Carman Payette should not have been discharged for the following reasons:
1. The Brotherhood contends that Carman Payette’s 25 years of interrupted cumulative service and his nearly clear disciplinary record prior to July 1986 were factors that should mitigate the severity of the penalty of discharge.
2. The Brotherhood contends that a Company Officer did not carry out his commitment to remove a 15 demerit disciplinary penalty assessed Carman Payette’s record for a previous incident on October 21, 1986 providing Carman Payette would produce medical evidence proving that he could not wear the Carman tool belt in the performance of his duties. It is the Brotherhood’s opinion that had this commitment been respected, Carman Payette would not have been assessed the previous 15 demerits on October 21, 1986 thus reducing his disciplinary record to 44 demerits prior to the assessment of the 15 demerits presently in dispute. Consequently his current disciplinary record would only now stand at 59 demerit marks and he would still be employed. The assessment of 15 demerit marks on October 21, 1986 is not itself in dispute but the Brotherhood does contend that these demerits should be ignored by the Arbitrator in his review of Carman Payette’s discipline record.
3. The Brotherhood contends that Carman Payette’s disciplinary problems may be related to a deterioration of his health and a surgical operation he underwent on October 22, 1986.
The Brotherhood requests that the 15 demerits assessed the record of Carman Payette for the March 30 and 31, 1987 incidents be reduced or removed and Carman Payette be returned to service with his full seniority rights and with payment of all wages and benefits lost.
The Company denies the Brotherhood’s contentions and has declined the Brotherhood’s request.
There is no doubt that the grievor used insulting and offensive language toward the foremen on the occasions referred to.
In his statement, the grievor said, in effect, that he only used such language because the like was used to him and he was being harassed. Neither of those propositions is made out. There was, in my view, neither justification nor provocation for the grievor’s use of improper language toward the foremen, and he was subject to discipline on that account.
As to the grievor’s conduct on March 31, it is my conclusion, on all of the evidence and material before me, that the grievor did in fact push the foreman, Mr. Montagne. This was the evidence of Mr. Montagne, who was pushed, and while Mr. Girard stated that "Il n’y a eu aucune bousculade" (and while I do not at all doubt the sincerity of Mr. Girard’s statement), this is to be weighed against the direct evidence of Mr. Montagne, and the probabilities of the situation, In which it is clear that the grievor, understandably annoyed over a delay in the delivery of his pay cheque (although he would be paid for the delay at overtime rates), lost his temper. While I do not consider that the grievor engaged in any sort of serious assault, I do find that he pushed the foreman on the shoulder, no doubt more to emphasize his point than for any other purpose. This behaviour was, however, clearly improper and subjected the grievor to discipline.
It is further the case that on March 30 the grievor did not carry out the brake test in the manner directed by his foreman.
For this too, discipline was justified.
Having regard to the group of incidents referred to and (from the grievor’s record), to the fact that this was a repetition of insubordinate conduct, it is my view that the assessment of fifteen demerits was justified in the circumstances.
In most cases, the foregoing would, as a practical matter, be dispositive of the question of discharge. It is, however, open to an arbitrator to consider all of the circumstances material to the imposition of such a penalty, and to substitute, in a proper case, such penalty as may be just and equitable.
Prior to the imposition of the discipline in question, the grievor’s record stood at 59 demerits. Under the Brown system used by the company, accumulation of 60 demerits may lead to discharge, and in most cases it may be expected that that penalty would be upheld where there has been cause for the demerits which have accumulated to that total. The fact that the accumulated demerits stood at the odd number or 59 is explained by the company’s having assessed only 14 demerits on the previous occasion of discipline when, had fifteen demerits been assessed (as might have been anticipated on that occasion where the offences were of a similar nature to those in the instant case), the grievor would then have been subject to discharge. The company, clearly, considered that it was giving the grievor an extra chance.
It may be added that it was no sort of "harassment", but rather a timely warning to the grievor – who was not wise enough to heed it – when, on March 30 on the occasion of one of the incidents in issue here, the foreman reminded the grievor of the status of his disciplinary record.
The grievor has lengthy, although interrupted, service. It would appear that his disciplinary problems really began only in 1985. The problems appear to be, generally, in the way of relatively minor insubordination, leaving work early and (although it was also said that the grievor generally performs his work well), poor workmanship. In October, 1986, the grievor was assessed 15 demerits for not having the necessary tools. That is the matter referred to in the Joint Statement involving the grievor’s not wearing his Carman’s belt. In fact, an undertaking was given that that discipline would be reconsidered if the grievor could provide medical evidence justifying his not wearing the Carman’s belt at the time. The grievor, who had undergone or was about to undergo an operation affecting the genital organs at the time, was subsequently examined, at his own request, by the company doctor who sent, by internal correspondence, a report to Mr. Lepore, Manager at Taschereau yard. That report, which in my view completely supports the grievor’s refusal to wear the belt at the time in question, was not received by Mr. Lepore. While neither the grievor nor the union is to be blamed for that, there was, I think, some obligation on them to follow the matter up, and to ensure that the grievor’s record was indeed reconsidered in light of the doctor’s report.
The facts just described are, in my view, proper to be considered, not with respect to the assessment of 15 demerits for the earlier incident, but with respect to reliance on that incident as now supporting the grievor’s discharge. If the 15 demerits are not considered, then as the union states, the grievor’s record would appear now to stand at 59 demerits. The company’s undertaking was to reconsider the matter, and it would not necessarily be the case that the fifteen demerits would have been entirely removed. For the purposes of the present decision, it may be taken that the grievor’s accumulated demerits appeared sufficient to subject him to discharge. Having regard to the relative recentness of the grievor’s pattern of misconduct, his considerable length of service, the relatively minor nature of the insubordination (although it was not trivial, and the 15 demerits were justified)., and the unfairness (as I find), of relying on the 15 demerits assessed with respect to his not wearing the Carman’s belt, I conclude that the reinstatement of the grievor would be just and equitable in the circumstances.
Brief mention may be made of the argument that the company was at fault in not transferring the grievor to some other shift. The company was in fact willing to transfer the grievor to another shift, but required that it be one on which he would have adequate supervision. That was a perfectly proper requirement. Neither party, it seems, was willing to agree to a transfer of the grievor to a shift with respect to which senior employees would have prior claims. This too was perfectly proper. The result of that situation, for which no one can be said to be to blame, is that the grievor will simply have to learn to adjust himself to working with others, and to cooperating with his foremen, whether he likes them very much or not. That cannot properly be called a hardship and is certainly not harassment. It is simply the ordinary course of life. One does not like to preach in an arbitration award, but these remarks are really the only response to certain of the arguments which were made in this case.
For all of the foregoing reasons, I make the following award, which I consider to be the just and equitable disposition of this matter: The grievor is to be reinstated in employment, effective February 1, 1988, without loss of seniority. There is no award of compensation. The grievor’s record, to be effective from February 1, 1988, shall stand at 55 demerits.
DATED AT TORONTO, this 26th day of January, 1988.
(signed) J. F. W. Weatherill,