SHP 248

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS

(the "Union")

AND IN THE MATTER OF THE GRIEVANCE OF L. WHEELER RELATING TO THE ASSESSMENT OF TWENTY DEMERITS

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

APPEARING FOR THE UNION:

A. Rosner

APPEARING FOR THE COMPANY:

S. A. MacDougald

A hearing in this matter was held at Montreal on August 31, 1988.

 

 

AWARD

This grievance relates to the assessment of 20 demerits against the grievorís record effective September 3, 1987, for his alleged threatening and using abusive language toward a supervisor during his shift on that day.

On all the evidence, there is no doubt that the grievor did use certain abusive language toward the supervisor on the day in question In particular, at one point in that dayís rather stormy proceedings, the grievor directly called the Shop Foreman, Mr. Cottes, an "asshole". That was not simply a matter of the use of foul language in the course of conversation, it was a case of deliberately directing abusive language at the foreman, and it was grounds for discipline. As well, the grievor made certain other remarks, which will be described, and it is alleged that those remarks were also of such a nature as to justify the imposition of discipline. The nature of the circumstances must be considered in determining whether or not the other remarks of the grievor which are complained of were indeed of such a nature as to justify the imposition of discipline

Shortly after the beginning of the afternoon shift on the day in question, certain reassignments were made affecting members of Gang 300 in the Truck Gang Area of the Motive Power Shop. Although that was the area in which the grievor worked, it does not appear that the grievor himself was affected by those changes in assignment. The grievor was, however, a Shop Steward, and had a proper interest in advancing the protest which was made with respect to those assignments. It was felt that they violated the shop practice, and (something that particularly upset the grievor), that they were contrary to an understanding the grievor felt he had reached with the Shop Foreman the previous day.

At the time of these events there was no collective agreement in effect, and the union was in a position legally to go on strike against the company. There was, however, no strike in effect in respect of those premises at the time and the employees were at work and subject to discipline in respect of any misconduct. Further, the company has dealt with the grievance as one subject to the normal grievance and arbitration procedure, no question being raised as to my jurisdiction in the matter.

Whether or not the reassignment of employees in the Truck Gang was proper or improper is not a matter in issue before me, and I make no comment in that respect.

The first complaint about the assignment was made by Mr. Derksen, an Acting Shop Steward, who spoke to the Area Foreman, Mr. Lucht. As they were talking, the grievor joined them, and the three were joined shortly thereafter by Mr. Cottes, the Shop Foreman. There was some conversation at that point, and then Mr. Cottes went with Mr. Derksen and the grievor to his own office, where the conversation continued. After that, Mr. Cottes went with the two Stewards to the shop floor. At each stage there was heated conversation, and the evidence is that both the Shop Foreman and the grievor used foul language at all material times. During the course of these encounters, in addition to directly calling the Shop Foreman an "asshole" (for which, as I have indicated, I consider that the grievor was subject to discipline), the grievor made three other statements to the Foreman which are said to support discipline. These were that the grievor felt like kicking the foreman in the balls; that the Foreman should wait until 9:00 oíclock and see what happened; and that one of these days something would happen to the Foreman in his job and he would see what it was like to be kicked in the ass. As to the first of these, it seems quite clear from all of the material before me that it was not intended as a real threat, nor was it expressed or considered as one. It was simply a rather coarse expression of the grievorís anger, and the Foremanís own report is to the effect that he was not upset by it. In the circumstances of this case at least, the grievorís saying that he felt like kicking the foreman in the balls was not the sort of statement which might properly give rise to disciplinary action.

It was not clear to the Foreman at the time what the grievorís statement as to "waiting until 9:00 oíclock" meant. He asked the grievor if it was a threat, and the grievor replied that it was not, but that when that time came the Foreman would see what he had started and get what he had asked for. It was suggested in argument that this was a threat of a strike (although it would have been open to the employees to go on strike at that time), but I do not consider that it was, or that, in the circumstances, it was reasonable to consider that it was. Indeed, it is clear that the grievor was instrumental in having the employees remain at work and perform their assigned tasks that day. The grievorís explanation is that he meant that the Foreman would see by that point in the shift that his reassignment of employees had led to a reduction in productivity, due to the removal of experienced employees from their jobs. The statement was, I consider, simply part of an acrimonious interchange, and was not an improper threat which would support the imposition of discipline.

Similarly, it is my view Ė in the context of the events of this case, and having regard to the words and conduct of all concerned Ė that the grievorís comment to the effect that one of these days something would happen to the Foreman, and it would be his turn to know what it was like to be kicked in the ass, was not a threat, but was a reminder Ė put in crude terms Ė that fortuneís wheel turns for us all. Again, such a remark was not an occasion for the imposition of discipline.

There was, then, some occasion for the imposition of discipline on the grievor in the circumstances, but only in respect of one of the instances relied on by the company. In light of all the circumstances, including the fact of the Foremanís own frequent resort to obscenity, I do not consider that any very substantial penalty could be justified. While the grievor was a Shop Steward, and was acting as such throughout the incident, this was at all times, whether in the Foremanís office or actually on the floor, in the nature of a "shop floor" matter, and the grievorís union office did not protect him against the consequences of improper behaviour in such a situation.

Having regard to all of the circumstances, it is clear that the discipline imposed on the grievor was excessive, notwithstanding that the grievor had a record of at least one related offence. It is my award that the penalty of twenty demerits assessed against the grievor be set aside, and that a penalty of five demerits be substituted therefor. The result is that as of September 3, 1987, the grievorís discipline record stands as one reprimand and 25 demerits.

DATED AT TORONTO, this 14th day of September, 1988.

(signed) J. F. W. Weatherill

Arbitrator