SHP 298

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

Brotherhood Railway Carmen of Canda

re GRIEVANCE of G. BASTIEN - WORK STOPPAGE

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

B.R. McDonagh System General Chairman

L. Carozza General Chairman, Atlantic Region

 

 

There appeared on behalf of the Company:

D.J. David Labour Relations Officer, Montreal

A.Y. deMontigny Supervisor, Personnel and Labour Relations, Mechanical Department

C. Thibault Personnel Development Officer, Angus Shops

 

A hearing in this matter was held in Montreal on April 4, 1990.

 

AWARD

This is the arbitration of two grievances arising out of a work stoppage on May 1, 1987 at Angus Shops. The first grievance relates to the holding out of service of the grievor, Carman G. Bastien for three days, in addition to the assessment of twenty demerits. The second grievance alleges that Mr. Bastien was improperly held out of service for an additional fourth day, on May 7, 1987.

At the hearing the following Joint Statement of Fact and Issue was filed:

DISPUTE

Discipline assessed to Carman G. Bastien, Angus Shops, Montreal, Quebec on May 15, 1987.

JOINT STATEMENT OF FACT

On May 15, 1987, Carman Bastien's record was debited 20 demerit marks for:

Avoir participé à un arrêt de travail illégal le 87-05-01.

On June 8, 1987, a grievance was submitted on behalf of Carman Bastien and other employees, claiming payment for time lost (May 4 to 6, 1987 inclusive) and removal of the 20 demerit marks.

On June 10, 1987, a second grievance was initiated on behalf of Mr. Bastien, claiming that he was improperly withheld from service for an additional day, i.e. including May 7, 1987.

JOINT STATEMENT OF ISSUE

It is the position of the Brotherhood Railway Carmen that the Company has treated Carman G. Bastien in an unjust and excessive manner and has violated Rule No. 28.2 of the collective agreement, therefore, the 20 demerits debited to Carman G. Bastien's record should be removed forthwith and Mr. Bastien should be reimbursed for the loss of 4 days pay while being unnecessarily held out of service.

The Company denies the claim.

The material facts are not controverted. On May 1, 1987 Carman R. Critchley was released from a temporary supervisory position. He was permitted to exercise his seniority rights under Rule 23.27 of the collective agreement to take a vacancy in the truck bolster section of the Car Department. The Brotherhood, which had advance notice of the Company's intention to so treat Mr. Critchley, objected strenuously to his return to the vacancy in the truck bolster section. It was the Union's position that he was required to displace the most junior carman. When the Union's request for a correction in the treatment of Mr. Critchley was ignored a number of employees engaged in a work stoppage in the Angus Shops on May 1, 1987. Initially some fifty employees in the Steel Shop Department stopped working, twenty-six of whom still refused to return to work as late as 10 a.m. As the employees in question refused to return to their jobs the Company ordered them to punch their time cards and leave the premises. Again, shortly after the noon hour, twenty-four more employees in the Freight Shop similarly refused to work and punched out.

The grievor, and four other employees, was working in the Paint Shop on the day in question. At approximately 2:30 p.m. Mr. Bastien and the four other employees from the Paint Shop also punched out and left work.

During the course of a subsequent investigation when asked what his involvement was in the work stoppage of May 1 Mr. Bastien replied:

Je suis parti à 2:30 p.m. parce que la direction des usines Angus, le département de la réparation des wagons n'a pas respecté la procédure de la convention collective No. 51 dans le cas de M.R. Critchley donc je suis sortie par solidarité envers mes confrères du à l'injustice qu'ils avaient subi.

At the arbitration hearing Mr. Bastien attempted to offer a different explanation. He states that he was motivated to leave the Paint Shop because he had heard unconfirmed reports about the walk-out from the other departments and wanted to get better information about what had occurred. The Arbitrator cannot accept that explanation. A large number of employee had left the workplace before the grievor on May 1, 1989. He did not then hold a Union office that involved any immediate responsibility for resolving the problem. Objectively his actions indicate leaving the workplace in sympathy with the other employees to object to the Company's handling of Mr. Critchley's return to the bargaining unit. I am satisfied that the response that he gave at the investigation was a frank and accurate account of his reasons for walking out. The Arbitrator is not inclined to give any credence to his entirely different explanation given at the arbitration hearing.

On the whole, therefore, with respect to the first grievance I am satisfied that the grievor did engage in an unlawful work stoppage, in consequence of which he was deserving of discipline. In my view being held out of service for three days and the assessment of twenty demerits was within the appropriate range of disciplinary response in the circumstances. The first grievance is therefore dismissed.

The second grievance relates to the fact that the disciplinary investigation concerning Mr. Bastien was held later than that of other employees, as a consequence of which he was held out of service for an additional day. I can see nothing in the material before me to establish any discriminatory treatment of Mr. Bastien. It is common ground that the Company was obligated to conduct a large number of disciplinary investigations, and used four officers working simultaneously to do so, in order to process all of the employees involved. This necessarily required delaying the investigation of some. When Mr. Bastien first appear for investigation he was told that he would be processed later. It is common ground that the Company then telephoned him to appear for investigation, but that he did not return the call.

Initially the grievor received a registered letter on May 2, 1987 notifying him of the investigation. He was in attendance on the fifth of May, when he was told that he would be dealt with later. It is further not disputed that on May 6, 1987 the Company called his residence and left a message for him to telephone. For reasons which are not clear to the Arbitrator, he did not return the call, even the next day. The position of Mr. Bastien seems to be that he did not return the call on Wednesday because he came home late, at 11:30 p.m. With respect to any later period of time he asserts that it would have been appropriate for the Company to give him a second written notice.

In the Arbitrator's view that requirement was not necessary. The grievor knew, or reasonably should have known, that investigations were ongoing and that he was to be summoned in turn. His failure to return the call received on Wednesday, through the entire day of Thursday, May 7, resulted in his not being reinstated until a day later than everyone else. That, in my view, was a circumstance of his own making. On the whole I am satisfied that Mr. Bastien did receive adequate notice within the meaning of Rule 28.2 of the collective agreement, and that his rights under the terms of the agreement were not violated by the fact that his investigation was processed later than that of the other employees. Nor can the Arbitrator sustain the position of the Union that the Company was under an obligation to provide written notification of the delayed investigation. Even assuming, without finding, that written notification was required, the initial registered letter of May 2, 1987 would have satisfied that requirement.

For the foregoing reasons the grievance must be dismissed.

DATED at Toronto this 17th day of April, 1990.

(sgd) M. G. Picher

Arbitrator