BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

A. Y. deMontigny

D. J. David

B. R. McDonagh

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

From the material before me, and comparing the statements of the participants and the various observers, it could perhaps be concluded that the grievor was, to a degree, more the aggressor than the other employee who engaged in the fight with him. It is not the case, however, that the grievor deliberately instigated a fight with someone innocent of any such intention. In a case such as this, it seems to me that there are two considerations which are particularly to be borne in mind in arriving at an evaluation of an employee’s behaviour for discipline purposes. One is that with respect to an incident such as this, the reports of even the most objective observer are never entirely reliable. The other is, that in cases of fighting, except where it is clearly the case (and it is not clearly the case here), that one employee is an unprovoked aggressor and the other an innocent victim doing nothing more than defend himself, fine distinctions should not be drawn for disciplinary purposes. Differences in the disciplinary treatment of employees who have engaged in a fight may, however, be justified by differences in their discipline records and, perhaps, by differences in their employment histories generally.

In the instant case, the company did not, initially, make any fine distinction between the two participants in the fight. Both, it appears, were (or would have been), assessed thirty demerits. That is a substantial penalty but (although the other case is not before me), surely justified in the circumstances. While it appears to have been considered that thirty demerits was appropriate for the offence itself, the grievor, unlike the other employee, was assessed sixty demerits, the justification for that being, as was noted on the disciplinary notice, that it was a "second offence". The grievor, however, had a clear record at the time. The notation that the offence in question was a second offence was a reference to the fact that the grievor had been assessed thirty demerits for fighting on a prior occasion. With the passage of years during which the grievor was not assessed discipline, however, the demerits were removed from his record, so that at the time of the incident in question, the grievor’s record was clear. In considering the fact of the past discipline in the present case, the company was, I consider, acting contrary to the principles of the Brown system of discipline, which has been in effect In the railway industry for many years.

There may be circumstances in which it is proper for reference to be made to past disciplinary action even where the record has been cleared. An example of such a case would be where an employee with a clear record claimed that he had never been disciplined. It would be open to the employer to show that that claim was false. Here, however, the grievor makes no dishonest claim as to his record: rather, he relies, as in my view he is entitled to do, on the fact, with which the employer agrees, of his discipline record being clear at the material times.

One feature of the Brown system (although in my experience it is not consistently applied), is that the penalty assessed for an offence may be doubled if the offence is repeated. In a document relating to the demerit system issued in 1980, the company noted that "repetition of an offence can result in the previous number of demerit marks being doubled". In a previous notice, issued in 1950, the following appears:

The grievor’s case is not one which comes within the scope of that policy.

The company’s discipline system is not a matter of agreement between the parties, and is not binding on the union or the employees in arbitration matters. The system is, however, well established in this industry and is, I think, generally understood by all concerned. I think that arbitrators should respect this system, as they have generally done in the past. It is a flexible system, and arbitrators have exercised what I consider to be the appropriate review power with respect to its application. As to the "doubling" rule in particular, it is one aspect of the system which is not consistently applied. I do not consider that it should be given any application in cases where an employee’s record is clear.

For the foregoing reasons, it is my view that the company was not justified in doubling the penalty which, on the material before me, would otherwise have been imposed on the grievor. There have been cases where it has been held that there was just cause for the assessment of 60 demerits for "use of physical violence", but those cases are distinguishable from the present case. In the Baarez case (7 May 1984) the grievor committed a deliberate and unprovoked assault on the Superintendent. In the Pilgrim case (24 June 1983) the grievor there also committed a serious unprovoked assault against a supervisor. In the instant case, two employees lost their tempers over some trivial matter, and engaged in a serious fight, in which each participated vigorously. A substantial penalty was called for, but no sufficient justification appears for assessing a greater penalty against the grievor than against the other employee. These were not circumstances in which it was appropriate to apply the doubling rule under the Brown system.

For all of the foregoing reasons, the grievance is allowed. It is my award that the grievor be reinstated in employment forthwith, without loss of seniority or other benefits and with compensation for loss of regular earnings. His discipline record will stand at thirty demerits, as of the date of reinstatement.

DATED AT TORONTO, this 25th day of November, 1988.

Arbitrator