SHP 305

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

International Association of Machinists and Aerospace Workers

GRIEVANCE RE ASSESSMENT OF 30 DEMERITS TO MACHINIST L. WHEELER FOR DISTRIBUTION OF LEAFLETS AND INSUBORDINATION

 

SOLE ARBITRATOR: M. G. Picher

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, CCRSU

Loukas Biniaris System General Chairman, IAM & AW

L.C. Wheeler Local Chairman, Local Lodge 484, IAM&AW

 

There appeared on behalf of the Company:

S.A. MacDougald Manager, Labour Relations, Montreal

L.F. Caron System Labour Relations Officer, Montreal

P.M. Nicholson Coordinator, Special Projects, MP & CE, Montreal

C.R. Stevens Manager, Motive Power, Transcona, Winnipeg

D. McGinity General Supervisor, Motive Power, Transcona, Winnipeg

K. Cox Senior Technical Foreman, Motive Power, Transcona, Winnipeg

M.L. Gendreau Administrative Assistant, Motive Power Transcona,Winnipeg

G.Gysel Employee Relations Officer, Transcona, Winnipeg

 

A hearing in this matter was held in Montreal on April 5, 1990.

 

AWARD

This grievance concerns the discharge of Machinist L.C. Wheeler of Transcona Main Shop, Winnipeg for distribution of leaflets on Company property. At the hearing the following Statement of Dispute and Joint Statement of Issue was filed:

DISPUTE

Appeal of 30 demerits assessed to the discipline record of Machinist L.C. Wheeler of Transcona Main Shop, Winnipeg, Manitoba, resulting in his discharge for accumulation of demerits.

JOINT STATEMENT OF ISSUE

Effective November 30, 1989, Machinist L.C. Wheeler was issued a CN form 780 assessing 30 demerits to his discipline record:

For distribution of leaflets on Company property without proper authority and insubordination when instructed to cease his actions by a Company Officer."

Effective January 3, 1990, Machinist Wheeler was issued a second CN form 780 notifying of the following:

You are discharged from CN service account accumulation of 85 demerit marks and two written reprimands."

The Union contends the Company acted unjustly when it discharged Machinist Wheeler and that the assessment of 30 demerits was not warranted. The Union requests Machinist Wheeler be returned to service with full wages and benefits.

The Company has declined the Union's contentions and has denied its request.

The grievor is a full-time Union representative, being the Local Chairman of Lodge 484 of the Union at Transcona. Late in 1989 the Company was involved in introducing a "quality of work" program. The quality of work concept was opposed by the Union, as well as by a number of other bargaining agents representing employees at Transcona. A joint union seminar was scheduled for December 4 and 5, 1989, the purpose of which was to familiarize employees with the quality of work concept and to persuade them to oppose it. The seminar, scheduled off working time and premises, appears to have been a legitimate trade union endeavour, and no suggestion has been made to the contrary.

To publicize the educational seminar a campaign was undertaken by a number of union representatives to distribute informational leaflets to employees at Transcona Shops on Thursday, November 30 and Friday, December 1. Leaflets were distributed to incoming day shift employees on the morning of November 30. It appears, however, that some Union representatives, not including the grievor, were distributing leaflets on Company property at the pedestrian entrance from the Hoka parking lot. They were asked by Mr. C.R. Stevens, Manager of Motive Power, to cease distributing leaflets on company property, whereupon they all complied with his request. It seems that the individuals in question then removed themselves beyond the property lines to continue distributing their leaflets.

During the course of the working day Mr. Wheeler learned of the encounter between Mr. Stevens and the other Union officers. This caused him to enquire by telephone at the local office of the Canada Labour Relations Board in Winnipeg as to the right of Union representatives to hand out material on Company property. He was told over the telephone that Union representatives are entitled to distribute material on Company premises so long as it is done is a way which does not disrupt work or production, and so long as the material is not defamatory or otherwise offensive.

Armed with that advice Mr. Wheeler proceeded to hand out leaflets to the incoming afternoon shift at approximately 15:30 hours. He and another Union representative, Boilermakers' Local Chairman R. Eger then stationed themselves in roughly the same parking area from which the five other Union officers had been expelled earlier in the day, and commenced circulating leaflets to incoming employees. At approximately 15:35 hours Mr. Stevens, in the Company of Mr. McGinity, approached the grievor and Mr. Eger. Mr. Stevens instructed them that they should cease distributing the leaflets, whereupon Mr. Wheeler replied that he had been advised by the Canada Labour Relations Board that he was entitled to hand them out. The evidence discloses that both Mr. Wheeler and Mr. Eger continued handing out leaflets, although it does appear that Mr. Eger paused in his endeavours during the conversation between Mr. Stevens and Mr. Wheeler, although Mr. Wheeler did not. The evidence establishes that Mr. Stevens clearly and emphatically instructed Mr. Wheeler to stop circulating the material on Company property. While there is some conflict in the testimony of both individuals with respect to the precise contents of their exchange, I am satisfied that Mr. Stevens did make it clear to Mr. Wheeler that he could continue to hand out the leaflets off the Company's premises if he chose to. In any event Mr. Wheeler repeatedly refused to obey Mr. Stevens' directive and the latter finally withdrew in the company of Mr. McGinity. Following a subsequent disciplinary investigation the grievor was assessed thirty demerits for distributing leaflets on Company property without proper authority, and for insubordination by refusing to comply with Mr. Stevens' order to cease.

There is little doubt on the material before me that the merits of the position taken by Mr. Wheeler are generally supported in the jurisprudence. It seems well settled that an employer may not unilaterally prohibit union representatives from distributing union literature on company premises in their off-duty hours if they do so in a way that is not disruptive to production (see, generally, Brown and Beatty, Labour Arbitration in Canada section 9:1410 and Foisy Lavery and Martineau, Canada Labour Relations Board Policies and Procedures, at pp.258-259). This view of the law seems, moreover, not to be challenged by the Company, whose Industrial Relations Officer subsequently acknowledged the right of the Union to distribute informational material on Company premises, as indeed had been done for some time in the past.

What then does the evidence disclose? On the afternoon of November 30, 1989 Mr. Wheeler was distributing Union leaflets, on Company premises, as it was his right to do. Mr. Stevens mistakenly instructed him to leave the Company premises for the purposes of distributing the leaflets. Mr. Wheeler refused to accede to the clear directive of the Manager of Motive Power at Transcona Shops. The first issue is whether the grievor was under an obligation to obey his supervisor's directive, in compliance with the "work now - grieve later" rule. I am satisfied that he was. Although the Union's representative ably argues that the circumstances constitute a justified exception to the "work now - grieve later" rule, I do not find that to be so in the circumstances then at hand. While I accept that it was important for the Union to distribute its leaflets to incoming employees on the afternoon shift of November 30, 1989, I am not persuaded on the evidence before me that its interest in that regard could have not have been reasonably accommodated by moving off the Company's property, as Mr. Wheeler was instructed to do and, as it appears, five other Union representatives did on the morning of the same day. In my view, no irreparable harm to the Union's interests would have been caused by Mr. Wheeler moving outside the property line to continue distributing the Union leaflets. While this may not have been as efficient or desirable a Way of doing it, it could nevertheless have been done. In the circumstances, therefore, I am not persuaded that Mr. Wheeler was not governed by the "obey now grieve later" rule, and I must conclude that he failed to observe it, without reasonable justification.

Drawing the foregoing conclusion does not, however, dispose of the merits of this case. There are a number of mitigating factors to be taken into account. Firstly, Mr. Wheeler was engaged in legitimate Union activity. Secondly, he was acting on his own understanding of his rights, as advised by a representative of the Canada Labour Relations Board. Thirdly, Mr. Stevens was clearly wrong in taking the position that Mr. Wheeler had no right to be distributing leaflets on the Company's premises. What the record discloses, therefore, is an error of judgement on the part of both Mr. Wheeler and Mr. Stevens. For the reasons related above, I am satisfied that Mr. Wheeler was liable to some discipline for his failure to observe the "obey now grieve later" principle. However, given the error of judgement of the Company's own officer, I am not satisfied that the assessment of thirty demerits and the discharge of the grievor was appropriate in the circumstances. As both Mr. Wheeler and Mr. Stevens erred in judgement, I deem it appropriate to fashion a partial order of compensation accordingly.

For the foregoing reasons the Arbitrator orders that the grievor be reinstated into his employment, with the thirty demerits to be removed from his record. His reinstatement shall be without loss of seniority, and with compensation for all wages and benefits lost in respect of half of the period from the date of his discharge to the date of his reinstatement. The period for which he is not compensated may be registered against his record as a period of suspension for his refusal to obey the direction of a supervisor, and to abide by the "obey now grieve later" principle.

I retain jurisdiction in the event of any dispute between the parties regarding the interpretation or implementation of this award.

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

(sgd) M. G. Picher

Arbitrator