SHP 254 

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

SHEET METAL WORKERSí INTERNATIONAL ASSOCIATION

(the "Union")

AND IN THE MATTER OF THE GRIEVANCE OF J. R. CHAPMAN

 

SOLE ARBITRATOR: J. F. W Weatherill

APPEARING FOR THE COMPANY:

S. A. MacDougald

 

 

APPEARING FOR THE UNION:

A. Rosner

 

 

A hearing in this matter was held in Montreal on November 22, 1988.

 

 

AWARD

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

DISPUTE:

Appeal of 20 demerit marks assessed to the record of Sheet Metal Worker John Robert Chapman of Thornton Yard, Vancouver, BC, and of his consequent discharge for accumulation of demerits

JOINT STATEMENT OF FACTS:

On July 27, 1987, the grievor was notified to report for an investigation in connection with his alleged conduct at Calder Shop on July 10, 1987. Following the investigation, the Company issued two CN forms 780 which resulted in Mr. Chapmanís discharge. The reasons for the discipline and discharge read as follows:

    1. Effective 10 July 1987 Ė 20 demerits:
    2. Five demerits assessed for failure to follow directive from Supervisor employed at Calder Car Shop on the date July 10, 1987 and fifteen demerits assessed for insubordination towards a Supervisor also on July 10, 1987, at Calder Shop.

    3. Effective 10 September 1987:

Discharge for accumulation of demerits in excess of sixty.

The Union requests that the 20 demerits be removed from the grievorís disciplinary record and that he be reinstated with full compensation, rights and benefits. The Company declines the Unionís appeal.

The grievor was hired by the company in April, 1981. He worked at the Calder Car Shop in Edmonton until March, 1983, when he was transferred to Thornton Yard in Vancouver. He was employed at Vancouver at the times material to this grievance, although he had been on leave of absence since May, 1987 on account of illness.

On July 10, 1987, the grievor, who was then on sick leave from his job in Vancouver, went to visit at the Calder Car Shop in Edmonton. He had worked at the Calder Shop Some four years before, and wanted to say hello to some friends who were still there. At about 11:55 a.m. he went to the general office, and requested a hard hat and eye protection from the Clerk. The Clerk, it seems, was prepared to issue these to the grievor, but the Administrative Supervisor then came out of his office, which was by the door, and asked the grievor what the purpose of his visit was. When the grievor explained, the Administrative Supervisor advised him that it would be necessary to be escorted by a foreman. The grievor replied that it was not necessary, but the Administrative Supervisor said that it was company policy, and it seems he then went to the next room to call a foreman. The grievor did not wait for the Administrative Supervisor to return or to get the hard hat or glasses. He left the office and went out to the Shop.

The grievor stated that he did not know who the Administrative Supervisor was, but it is the evidence of the Administrative Supervisor that he identified himself, and it ought in any event to have been clear to the grievor that he was Ė or very likely was Ė speaking to someone in authority. Whether or not any official company policy with respect to being escorted while on the premises exists (and there is some evidence that in any event such a policy is somewhat loosely enforced at Calder), it was obviously improper for the grievor, making an unexpected visit to a shop he had not worked in for four years, and speaking to persons whom he did not know, one of whom had apparent authority, to refuse (as in effect he did), the escort said to be required.

A few moments after the grievor left the general office the Administrative Supervisor looked for him briefly, without success, and then advised those in the Foremenís lunch room to be on the lookout for an unauthorized person and request him to leave.

At about 12:50, the grievor met the Heavy Shop Foreman, whom he remembered from his time at the Shop, and who remembered him. He told the Heavy Shop Foreman that he had been told by someone in the office that he needed a hard hat and eye glasses. He said nothing about an escort, nor did he describe the encounter in the office. The Heavy Shop Foreman issued the grievor the equipment he requested. His evidence is that had he known of what had transpired in the office, he would have called the Administrative Supervisor for directions. The grievor, I find, misled the Heavy Shop Foreman.

At about 1:10 p.m., one of the Foremen who had been in the Foremenís lunch room when the Administrative Supervisor had announced the presence of an unauthorized person on the premises saw the grievor talking to an employee. He spoke to the grievor, and, it seems, told him that he would have to leave as he was not wearing protective footwear. It does not appear that there was in fact a requirement that protective footwear be worn by visitors. While there was certainly nothing improper in the grievorís visiting the premises, he did not have any enforceable right to be there, and even if the foreman advised him to leave for a reason which was invalid, it was nevertheless clear that the grievor was being asked to leave; his obligation then was to comply with that request for which, indeed, no reason was necessary.

The grievor apparently replied that he would stay and talk to his friends, but the foreman told him that that would have to be after working hours Ė and indicated to him the nearest way out of the shop. The grievor said that he was going to return his hard hat and glasses, and although the foreman said that he could give them to him, the grievor insisted on returning them to the Heavy Shop Foremanís office. Many of the grievorís remarks to the foreman were, I find, accompanied by profanities, at least some of which were directed at the foreman himself. The foreman reported the matter to the Administrative Supervisor, who called CN police. The police escorted the grievor from the premises at about 14:15. The grievor gave the police no difficulty, and it appears they drove him home.

Of course the grievor was not on duty during any of this time. He was, however, an employee at all material times, and it was clearly improper of him to defy the authority of company officers who were doing their jobs, and to abuse the foreman who was doing his. The grievorís actions were committed on company property and directed against company officers. He committed an industrial offence and was subject to discipline on that account.

It was argued that the company was in violation of Rule 28 of the collective agreement, in that at the investigation of this matter, the grievor was not provided with an opportunity to cross-examine the persons who had made reports on the incidents described. It is true that that opportunity was not provided. The grievor was shown the reports and asked for his comments. I do not consider that Article 28 requires more. The investigation is not a trial. It should provide the employee with an opportunity to give his side of a matter, but it need not involve (although it may do so), the cross-questioning of others by the grievor or his representative. Such reports, it may be noted, do not have any authoritative effect simply by virtue of their being presented at the investigation, and if, following an investigation, discipline is imposed and a grievance then filed, the onus will of course be on the employer to make out its case against the grievor. The persons in question did give evidence at the hearing of this matter, and they were of course subject to cross-examination. In my view, there was no violation of Rule 28.

The grievor was, as I have found, subject to discipline in respect of his conduct on the occasion in question. In assessing discipline, the company has considered the matter as consisting of two incidents, although it might also be considered as one incident, perhaps with two phases. Twenty demerits is a serious penalty, although in all of the circumstances, I do not consider that it went beyond the range of reasonable disciplinary responses to the situation. While I may have some hesitation as to that, I would have no doubt that a penalty of ten demerits would not have been excessive. Since the grievor, at the time, had 55 accumulated demerits, the question is academic: the grievor was, in any event, subject to discharge. The grievor was, at the time, involved in an EAP program, but that does not detract from the impropriety of his conduct or render him immune from discipline.

For all of the foregoing reasons, it is my conclusion that there was just cause for the imposition of discipline and for the ultimate discharge of the grievor. The grievance is accordingly dismissed.

DATED AT TORONTO, this 24th day of November, 1988.

(signed) J. F. W. Weatherill

Arbitrator