SHP 238

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

(the "Union")

AND IN THE MATTER OF THE GRIEVANCE OF W. K. LEWIS

SOLE ARBITRATOR: J. F. W. Weatherill

 

APPEARING FOR THE UNION:

F. Klamph

APPEARING FOR THE COMPANY:

S. A. MacDougald

 

A hearing in this matter was held in Montreal on April 20, 1988

 

 

AWARD

The grievor, an Electrician who was working at the time of his discharge as a Crane Operator, was hired by the company in April, 1978. He was discharged effective March 31, 1987, for accumulation of demerit marks. He had accumulated 75 demerits after being assessed 25 demerits for violation of Rule 11 and insubordination, as detailed below. The issues are whether or not there was just cause for the assessment of the 25 demerits and whether or not the grievor was discharged for just cause.

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

Effective March 3, 1987 Mr. W.K. Lewis was assessed 25 demerits for violation of Rule 11 and insubordination with regard to the training and operation of walk-a-long crane no. 18 between February 18, 1987 and March 3, 1987.

When coupled with his previous discipline (50), he had accumulated 75 demerits and was discharged from the Companyís service for accumulation of more than 60 demerits.

The Brotherhood appealed the discharge and requested that Mr. Lewis be reinstated without loss of seniority, benefits and wages.

The Company has declined the Brotherhoodís request.

On July 10, 1986, the company issued an "Article 8" notice advising that effective October 10, 1986, 30 positions of Electrician would be abolished at the Transcona Main Shops. The grievor was affected by that notice. He and other employees were entitled to exercise seniority to displace into positions as Crane Operators, subject to medical approval.

It was argued that the grievor could not properly have been required to exercise seniority, and that he was entitled to elect layoff instead. That argument raises a question quite distinct from that set out in the joint statement, and there is nothing before me to indicate that any grievance was filed in that regard. The grievor, it is said, was reluctant to train in (or be familiarized with) the position of Crane Operator, but the fact is that he did go to that position, although it appears that his earnings were not affected as a result.

Certain discipline was imposed on the grievor as a result of his failure to appear for medical examinations, or to take certain training in connection with his assignment as a Crane Operator. As well, the grievor was absent on medical grounds for a period just prior to the time material to this case. On the grievorís return to work on February 11, 1987, his position as an Electrician had been abolished, but work was still available to him as a Crane Operator. There is no doubt that the grievor was generally qualified to perform such work (which he had performed in the past), although he was entitled to a familiarization period.

It is said in the unionís submission in this matter that it is "somewhat demeaning" for an Electrician to be forced onto cranes of less than 40 ton capacity and at a lower rate of pay. While I do not consider that such work could properly be said to be "demeaning", I do not doubt that it would, for the Electrician, be undesirable. Depending on oneís personal circumstances, however, it might be considered less undesirable than having no work at all; and in the instant case, as has been noted, it does not appear that any immediate loss of earnings was involved. However that may be, it must be emphasized that the instant grievance is not over the grievorís assignment, but is over the discipline imposed on him as a result of his conduct while on that assignment.

On February 11, 1987, on his return to work following the illness above referred to, the grievor was assigned to training on a walk-a-long crane, operated from the ground by a pendant control. The normal "training" period for a person of the grievorís qualifications would be about two hours. The grievor spent somewhat over two hours on February 11, and some eight hours on February 12, in training on the job. On February 13, he advised his foreman that he refused to continue training. For that, he was eventually assessed some 20 demerits. That discipline is not in issue in this case. His accumulated discipline, at that point, then stood at 50 demerits.

The events for which the discipline in issue in the instant case was imposed began on February 18, 1987. The grievor was asked to attend a medical examination on that day. The examination was necessary that he might qualify as a Crane Operator. The grievor advised that he could not be available (at the appropriate times) on that day. On the following day, he advised that he could not give a date when he might attend. On the day after that, February 20, the grievor was advised that he must attend a medical examination on February 23, and it appears that he did so. He was found to be fit to operate cranes at ground level.

No ground for discipline appears from the foregoing. The grievor appears to have raised some difficulties with respect to his attendance at the medical examination, but he did attend when clearly directed to do so.

On February 18, after having observed the regular Crane Operator for a considerable time, the grievor was instructed to practice operation of the crane while the work area was temporarily vacant. He refused to do so, claiming that the conditions were unsafe. There is nothing in the material before me to support that contention.

On February 19, the grievor spent a little more than half his shift observing the regular Crane Operator. For most of the balance of the shift, he practised operating the crane, although be only moved it a total of 25 feet during that period. That suggests that the grievor was not seriously attempting to operate the crane effectively, and nothing in the submission on his behalf would support a contrary conclusion. During the course of the shift the grievor took a number of personal breaks, and a number of rest breaks.

On February 20, the grievor again observed the regular Crane Operator for part of the shift, and then engaged in inadequate and superficial practice. Near the end of the shift he advised his foreman that he had taken Tylenol and was too drowsy to operate the crane. He sat for the remainder of the shift.

February 21 and 22 were the grievorís rest days. On February 23, after taking the medical examination as above noted, the grievor reported to work, and again observed the regular operator. When asked to practice the operation of the crane, the grievor said that he had taken pills and was too drowsy. subsequently he was, quite properly, told to go home and to report the next day if he felt able to work.

On February 24, the grievor was instructed by the General Foreman to practice making some small lifts with the crane. The grievor questioned the General Foremanís authority to give him instructions. When the instructions were repeated by the foreman, the grievor stated that operation of the crane gave him headaches. He did use the pendant control to move the crane a few feet, but then released the control and slumped to the floor. The grievor was given first aid and taken to the hospital. He returned to work before the end of the shift, but was, quite properly, sent home. No explanation for the grievorís action has been given.

On February 25, the grievor called in sick. On March 2, he reported to work, but was advised he must produce a medical certificate of fitness. He subsequently presented a certificate from his doctor, dated February 26, and which read as follows:

The above feels he is under great stress at work and wishes to remain away for a few more days.

On March 3, the grievor reported to work with a further certificate, dated March 3, and which read:

In my opinion, the above has now recovered sufficiently to be able to return to his usual work duties on the above date.

During the course of his shift on March 3, the grievor did operate the crane, but he did so by repeated pressing of the control buttons. This meant that the crane was activated and reactivated at very short intervals and that, as the grievor had been advised, would heat up the electrical contacts. The crane did in fact fail, and was down for just over one hour. The maintenance crew which effected the repairs indicated that the reason for the crane failure was overheated electrical contacts.

After the crane had been repaired, the grievor continued to operate it by repeatedly pressing the controls, inching the load-a-long. The hooking up of one load required the grievor to step onto a solidly secured table, some three feet from the ground. That did not constitute working at any significant height, and was part of the regular work of a pendant-controlled crane operator. From the medical certificate which the grievor had presented that day, it could properly be concluded that the grievor was fit to perform that simple task. The grievor was directed to perform that work. He did not answer, and did not perform the work. He went home before the end of his shift, claiming that he was sick.

On March 4, the grievor was given notice to attend an investigation in respect of the conduct described above. From that point until his discharge, the grievor is said to have performed his duties as a Crane Operator "as well as any well-trained and experienced Crane Operator".

It is quite clear from the foregoing that the grievor was insubordinate, and that he was in violation of Rule 11 (which requires that work be done in accordance with the foremanís instructions). While some of the material before me indicates that the grievor suffered from stress, it has not been shown that that condition effectively prevented the grievor from familiarizing himself promptly with the work of a Crane Operator and from carrying it out properly. The problems of stress and fear of heights to which reference was made may have been justified with respect to the grievorís previous work as an Electrician, although he would appear to have carried out his work generally without raising objections of that sort, but the evidence does not show that such stress or fears (which, if real, might have justified absence from work on medical grounds), justified the grievorís obvious failure to undertake the duties of the Crane Operatorís job (which he was certainly able to do), or his virtual sabotage of the equipment.

It was argued that the company had "singled out" the grievor, but on the material before me that was not the case at all. The company was not harsh with the grievor, it was patient. There is no suggestion that there was some other employee who was improperly refusing to perform his assigned work, and who was not penalized. It was also argued that the company was somehow at fault for having allowed the grievor to operate the crane by repeated pressing of the control buttons. The grievor, however, was repeatedly told not to operate in that fashion; the grievor persisted in his misbehaviour, and while it might be argued that the company could have disciplined the grievor sooner, that is scarcely an argument in the grievorís favour.

For all of the foregoing reasons, it is my conclusion that the grievor did improperly refuse to carry out his assignment during the period is question. He generally failed to undertake work which, on the evidence, he was capable of doing and, when he did undertake it, he operated in such a way as to limit productivity and damage equipment. Whether the assignment to that position was a proper one or not (and I repeat that that is not in issue in this case), it was clearly improper for the grievor to behave as he did. His conduct was in violation of Rule 11 and was clearly insubordinate. There was just cause for the imposition of discipline on that account.

As a general matter, persistent insubordination such as that displayed in this case, involving as it did what I consider to be deliberate damage to equipment, would call for substantial discipline, and I would not consider the assessment of 25 demerits to be excessive. It might be considered that the grievorís conduct in this case was simply an extension of the conduct for which he had been disciplined only a short time before, namely his refusal to continue training in February. For that he had been assessed 20 demerits, and his discipline record then stood at 50 demerits. The grievor knew that his disciplinary record was bad. What occurred in the instant case was not a continuation of the same incident, although the grievor did apparently continue in the same approach toward his work. Knowing that he had recently been assessed 20 demerits for such conduct, and knowing that his discipline record stood at 50 demerits, the grievor then behaved in what I consider to be the even more serious fashion described above. In these circumstances, there is no proper ground for reducing the 25 demerits assessed.

In the result, the grievorís accumulated demerits were well in excess of 60. In accordance with the system of discipline of which the grievor was aware, the grievor was subject to discharge, and in my view there was just cause for discharge in the circumstances. The grievance is accordingly dismissed.

DATED AT TORONTO, this 12th day of May, 1988.

(signed) J. F. W. Weatherill,

Arbitrator