SHP 306

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

Brotherhood Railway Carmen of Canda

IN THE MATTER OF THE GRIEVANCE of T.DALE

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

Tom Wood System General Chairman

John Moore-Gough Great Lakes Region General Chairman

F. Gadbois St. Lawrence Region General Chairman

 

 

There appeared on behalf of the Company:

D.A Watson System Labour Relations Officer, Montreal

S.A. MacDougald Manager, Labour Relations, Montreal

 

A hearing in this matter was held in Montreal on May 3, 1990.

 

AWARD

This is a grievance against the assessment of a thirty day suspension for assault and provoking a supervisor. The Statement of Dispute and Joint Statement of Issue are as follows:

DISPUTE

Appeal of 30 working day suspension assessed to the record of Carman Helper T. Dale of Calder Yard, Edmonton, Alberta.

JOINT STATEMENT OF ISSUE

At approximately 1030 hours on Friday December 2, 1988 Supervisor R.D. Villeneuve heard a discussion between Carman Helper Dale and Carman F. Hajjar in the Tank Track lunchroom. When Supervisor R.D. Villenneuve entered the lunchroom to investigate, an argument ensured between Supervisor Villeneuve and Carman Helper Dale.

Following an investigation into this incident, Carman Helper Dale's record was assessed 30 working days suspension for "assault and provoking a supervisor."

The Brotherhood contends that Supervisor Villeneuve antagonized Carman Helper Dale, and therefore Carman Helper Dale should not have been disciplined.

The Brotherhood requests the removal of the 30 working day suspension from Carman Helper Dale's record and that he be made whole for lost wages and benefits for all lost time lost while suspended from service.

The Company denies the Brotherhood's contention and has declined the request.

The material establishes to the satisfaction of the Arbitrator that Carman Helper Dale did physically assault and attempt to provoke Supervisor R.D. Villeneuve at or about 1030 hours on Friday, December 2, 1988. It appears that Mr. Dale was then getting dressed to go to work following a safety meeting, at which time Mr. Villeneuve told him to "move his ass and get to work" or words to that effect, reminding him that he had been insufficiently productive during the course of an assignment on the day prior. There is evidence to suggest that the supervisor's accusation with respect to the delay in work on the day prior was unjustified, and that his general tone of voice towards the grievor was provocative.

It is not disputed that Mr. Dale reacted with extreme anger, and began shouting at his supervisor as the two stood at extremely close quarters. While there is some discrepancy in the diverging accounts of precisely what transpired, I am satisfied that Mr. Dale did push his supervisor in the chest and taunted him by saying "Let's see how tough you really are" or words to that effect. While the initial confrontation between the two men lasted only a short time, it appears that it flared up again only moments later when Mr. Villeneuve followed Mr. Dale to the office of Brotherhood Chairman R.W. Webber. It is common ground that the shouting match between the two men resumed at that location, with each of them using foul and abusive language.

The Arbitrator must agree with the Union's representative that Mr. Villeneuve showed questionable judgement by himself following the grievor to Mr. Webber's office. If, as he claims, he was only concerned with seeing that the grievor did no further harm, this might have been achieved by sending someone else to follow him. Ultimately, however, the Arbitrator is compelled to the conclusion that Mr. Dale reacted to the words which Supervisor Villeneuve addressed to him in the locker room with an unacceptable level of verbal abuse and what could only be perceived as the threat of physical abuse, apart from the pushing which actually occurred. Conduct of that kind is clearly unacceptable, and absent mitigating factors may be deserving of the most severe discipline.

In this case there are mitigating factors, the principal one being the provocative tone initially taken with Mr. Dale by Mr. Villeneuve. The Arbitrator accepts the account of Carman Hajjar an employee who witnessed the encounter, that without any apparent justification Mr. Villeneuve told the grievor to "get off his ass and get to work" and that he had not worked properly the day previous. In my view, however, the fact that the Company assessed a suspension, rather than outright discharge, against Mr. Dale discloses that it did take that mitigating factor, as well as the grievor's prior record into account in deciding on a penalty short of discharge. In the Arbitrator's view the verbal abuse and threat of violence which Mr. Dale directed to Mr. Villeneuve was deserving of a serious measure of discipline, notwithstanding the supervisor's own error of judgement both in his provocative comment to the employee and setting the stage for a second outburst. I am satisfied, overall, given the seriousness of the conduct displayed by Mr. Dale, that a suspension of one month was not inappropriate in all of the circumstances.

For the foregoing reasons the grievance must be dismissed.

DATED at Toronto this 7th day of May, 1990.

(sgd) M. G. Picher

Arbitrator