SHP 249




(the "Company")



(the "Union")



SOLE ARBITRATOR: J. F. W. Weatherill



A. Rosner


S. A. MacDougald

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




This grievance relates to the assessment of forty demerits against the grievor, and to his subsequent discharge.

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

Effective 30 March 1988, Machinist L.C. Wheeler’s record was assessed 40 demerit points for use of derogatory language towards Company Supervisors and for conducting an unauthorized meeting during working hours resulting in loss of production on 30 March 1988. Machinist Wheeler was subsequently discharged on May 18, 1988 for accumulation of 95 demerit marks.

The Union contends that the Company was not justified in imposing discipline for Machinist Wheeler’s actions of 30 March 1988.

The union requests that Machinist Wheeler be reinstated with full seniority and with full compensation for lost wages and benefits.

The Company denies the Union’s contentions and has declined the Union’s request.

There is no doubt that the grievor used certain offensive language with respect to and toward the Assistant Works Manager and other members of management on the day in question. There is no doubt either that he conducted a meeting, on company premises, for which he did not have authorization, and that he directed employees, in contradiction of the instructions of the Assistant Plant Manager, to stay away from their work for a certain time. Had these things occurred during the normal term of a collective agreement, there is no doubt that the grievor would have been subject to severe discipline, notwithstanding his status as Local Chairman.

In this case, however, there was no collective agreement in effect at the material times. The union was in a position legally to go on strike. The meeting which the grievor conducted, and which appears to have resulted in what the union considered a satisfactory resolution of a question relating to the order in which employees might be "farmed out" from one gang to another, might well be considered as constituting a "strike" within the meaning of the Canada Labour Code.

It does not necessarily follow that the grievor was immune from any discipline in the circumstances. The mere fact of being on strike, or of leading other employees on a strike, where the strike is lawful, would certainly not in itself be a ground for discipline. The employment relationship continues during a strike, however, and some employee conduct during a strike may be of such a nature as to justify the imposition of discipline. Whether or not discipline is justified in any particular case depends on the circumstances, and "just cause" is to be determined having regard to all of those circumstances and to the "equities" of the situation.

In the instant case, while there was no collective agreement in effect, the parties had agreed (although apparently not in any formal way), to continue the terms and conditions of employment, including those of the grievance and arbitration procedure. No doubt it was open to either party to bring that situation to an end by notice, or by industrial action, such as a strike or lockout. The strike in the instant case was not one which was in aid of negotiations toward a new collective agreement. Rather, it was related to a particular grievance relating to work assignments. It was, clearly, inconsistent with the union’s taking advantage, as it was otherwise prepared to do – and indeed as it was its negotiating tactic to do – of the continuation of the previous terms and conditions of employment. Acceptance of the benefits of such a situation implies an undertaking to meet its obligations.

Quite apart from the foregoing, it remains that the strike, if the interruption of work is to be called that, involved, in this case, the use of the employer’s premises without the employer’s permission, and the contradiction of the employer’s quite proper workplace directions. That is, looking at the matter from the other point of view, but using categories as technical as those relied on by the union, the assembly which the grievor directed, if it was a strike, was also a "trespass". Unlawful conduct causing harm to the employer may subject employees to discipline, even where they are on strike.

In my view, little is to be gained in this case by resort to technical characterizations of the situation. If there had been a collective agreement in effect (in which case what occurred would have been in the nature of a "wildcat" strike), the grievor would certainly have been subject to severe discipline. In the instant case, where there was no collective agreement in effect, had the grievor actually led the employees out of the shop on a strike, it seems clear that he would not have been subject to discipline. The grievor did not do that, however, but took over the company’s property for his own purposes. That was wrong, and the grievor was subject to discipline therefor. In considering the severity of the penalty which might be imposed, however, all of the circumstances are to be considered, including the important circumstance that what occurred, occurred at a time when it was open to the union to strike.

The company did not take disciplinary action against the employees who were involved in the work stoppage, but it is clear that the grievor was the leader. The case does not appear to me to be on all fours with others in which the company might have imposed discipline, but refrained from doing so. It should also be noted that I do not consider that discipline was imposed on the grievor in this case because of any personal dislike which the Assistant Works Manager may have had for him. I have no hesitation in accepting the evidence of the Assistant Works Manager in this respect.

The grievor is an employee of some ten years’ service. At the time in question, he had accumulated a disciplinary record of 40 demerits, 15 of which (imposed on October 28, 1987), are said by the union to be in dispute, although the parties appear to be in dispute over that point. In assessing demerits as it did over the incident in question here, the company would appear to have considered the matter as though it were of the same nature as one arising during the term of a collective agreement. From an "equitable" point of view there were, as I have noted, good reasons for such a view. From the "legal" point of view, however, it was not the case, and there was not just cause for the imposition of discipline on the ground that the grievor had caused an interruption in production. There was, however, just cause for discipline on the ground that the grievor conducted what was, in effect, a strike meeting on company premises without permission. This was a serious violation of the Company’s rights, as well as involving a breach of the (at least implicit) understanding on which the parties were operating.

Had there been a collective agreement in effect, it would have been my view, having regard to all of the foregoing, that there was just cause for the assessment of a substantial number of demerits and, in light of his record (perhaps even without having regard to the contentious 15 demerits), for the discharge of the grievor. In the instant case, however, there was no collective agreement in effect, and as I have indicated, one of the grounds on which discipline might otherwise have been justified fails. It remains that – on the union’s theory of the case – the grievor made an unauthorized, and unlawful, use of the company’s premises, for which he is subject to substantial discipline.

In all of the circumstances, it is my view that the assessment of 40 demerits against the grievor was excessive, and that there was not just cause for his subsequent discharge. There were, however, grounds for the imposition of substantial discipline. Having regard to all of the circumstances, I make the following award: the grievor is to be reinstated in employment forthwith, without loss of seniority or other benefits (that is, as though he had been suspended), but without compensation for loss of earnings. The grievor’s record shall stand at 55 demerits (subject to any appropriate alteration with respect to the 15 demerits said to be in question), such record to be effective as of the date of the grievor’s actual reinstatement.

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

(signed) J. F. W. Weatherill