SHP 312





International Association of Machinists and Aerospace Workers








There appeared on behalf of the Union:

A. Rosner Executive Secretary, CCRSU

L. Biniaris System General Chairman IAM & AW



There appeared on behalf of the Company:

L. F. Caron System Labour Relations, Officer Montreal

S. A. MacDougald Manager, Labour Relations, Montreal

R. Charland Assistant Manager, Motive Power, Pointe St. Charles

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


A hearing in this matter was held in Montreal on June 7, 1990.



This arbitration concerns the discharge of six machinists from their employment in the Motive Power Shop of the Company located at Pointe St Charles, Quebec. On or about December 21, 1989 the grievors, André Bigonesse, Claude Letourneau, Yves Viel, Daniel Prevost, Marie Simoneau and Michel Lalande were discharged for their participation in an illegal work stoppage at the Pointe St. Charles shops on November 16 and 17, 1989. The Union maintains that while some degree of discipline was justified, discharge is excessive in the circumstances. In particular it argues that the Company has failed to establish that the grievors were involved in a leadership role, asserting that their discipline is discriminatory. The Company maintains that the grievors were actively involved in organizing and promoting the work stoppage, and that it had just cause to terminate theIr services.

The general facts relating to the work stoppage are not in dispute. It is common ground that the wildcat strike was triggered by the announcement of layoffs on November 10, 1989. On that date a number of employees at the Pointe St. Charles Main Shops, Motive Power, were notified that they would be laid off effective November 24, 1989. Among them were eighty-five machinists and three machinists' helpers. Of particular concern to the Union was the decision of the Company to maintain on staff a number of machinist supervisors who in the Union's view had not been permanently promoted. The Union believed that the supervisors should be returned to the bargaining unit to be subject, like others, to layoff in accordance with their seniority. The Company advised the Union that in its view the supervisors were permanently promoted, and would not be subject to layoff.

On November 16 management in the Motive Power Shop became aware of rumours that some form of job action would be initiated at or about 14:30 hours that day. At approximately 13:35 hours that afternoon some 30 employees, including all at the grievors, gathered in the lunchroom of the Truck Shop Department. While the details of what transpired in that meeting are less than clear, it does not appear disputed that the chief focus of discussion was the impending layoffs and what might be done in respect of them. It is also common ground that printed informational material was on the table during that meeting, although its origin has not been established. The Arbitrator is satisfied that among the documents was one which was entitled "sit in" and contains the following statement in both French and English:

Because of deliberately inequality applied on the selective layoff of the Union members. (sic)

We request that justice should be made doing so that the junior man on the seniority list should be laid off without no exception (sic)

That all persons who are presently on the machinist seniority list must be equal to be laid off without any considerations of his position. (sic)

We will sit down as long as it takes for justice to prevail.

At approximately 14:00 hours, after the lunchroom meeting had broken up Union local chairman S. Goulet presented Motive Power Shop Manager F.C. Levy a copy of the sit-in leaflet and advised him that there would be a sit-in in the shop at 14:30 hours, with employees gathering at the foot of the stairway leading to Mr. Levy's office. As became disclosed at the hearing, it appears that Mr. Goulet, who is a full-time union officer, had previously been asked by the Company to keep the Shop supervisors advised of any job action that might be pending. It would seem that Mr. Goulet's advice to Mr. levy was in compliance with that request

The work stoppage and sit-in took place as predicted. Shop employees, including a large contingent of machinists, occupied the shop area surrounding the foot of the stairway of Mr. Levy's office. They pounded metal bars and other objects against work benches and lockers and but for a hiatus during speeches, and an overnight sleep-in, the pounding and demonstration continued for some 20 hours.

Shortly after 17:00 hours on the 16th Works Manager C. Trudel used a megaphone to address the employees. He told the demonstrators that their actions constituted an illegal strike and that they should respect their collective agreement and return to work immediately. This had no impact. Shortly thereafter Mr. levy and Mr. Trudel met with the Local Chairmen and General Chairmen representing the Machinists, the Electricians and the Boilermakers and Blacksmiths, reiterating the order that the employees should return to work. At 17:15 hours Mr. Goulet, Local Chairman of the Machinists, spoke to the assembled employees, advising them that they were engaged in an illegal strike, that their union could not support or help them, and that they must decide what they were going to do. Similar comments were then made to the assembly by the General Chairman and Local Chairman of the Boilermakers.

At 20:30 hours a management letter, signed by Mr. Trudel, was distributed to the demonstrating employees. That letter is as follows:

November 16, 1989


As of 16 November 1989, it has become apparent to the Company that Pointe St Charles Motive Power Shop employees have engaged in and are continuing to engage in activities which can be described as a form of illegal strike and that such activities are interfering with the carrying on of the Company's business.

Among other things, these improper activities include a concerted refusal to perform thee regular duties in the normal manner.

This disruption of normal services is seriously affecting service to our customers which could have long term damaging effects and loss of business. This situation cannot continue. A meeting was held with your Union representatives and they have been advised that unless an immediate resumption of normal operations is observed the Company is prepared to consider such proceedings as may be appropriate and as may be open to it, whether through the Canada Labour Relations Board and/or otherwise to bring these apparently illegal activities to an end and for other relief.

This is to inform you that persons engaged in such activities, or encouraging them, could be held responsible for all or any financial or other damages suffered by CN as a result of such action, and that appropriate discipline may also be imposed.

The Company accordingly requests and encourages all employees to govern themselves reasonably, and to immediately discontinue all such improper activities.

C. Trudel

Works Manager

Pointe St. Charles Main Shop

[emphasis added]

The evidence further establishes that when the supervisors attempted to distribute the above letter a substantial number of employees turned their backs and refused to accept it.

With the onset of night the demonstration subsided. Shortly after midnight, apparently upon the signal of employee G. Lavoie, who had made a number of previous speeches encouraging the employees, the pounding ceased. Sheets of insulation were then placed on the floor at the foot of the stairway to the supervisor's office and thereafter a number of employees spent the night sleeping on them. It is estimated that during the overnight period the crowd was reduced to some 40 or 50 employees who either kept a silent vigil or slept. The number of demonstrators again swelled with the arrival of the dayshift at approximately 7:20 hours on the 17th. Supervisors then handed out copies of the printed back-to-work order of Mr. Trudel, which had also been posted on all bulletin boards. Again, this was without substantial impact, as the demonstration resumed.

At or about 10:30 hours the demonstrators stopped pounding and conducted a march around the Motive Power Shop, under a banner which read "Moncton No. 2", an apparent reference to the closure of the Company's Moncton Main Shops. The march then proceeded to the Wheel Shop and from there out to the main entrance gate. It appears beyond dispute that part of the purpose of the marching was to persuade other employees, a number of whom had chosen not to participate in the sit-in, to join the protesters. Following the exit of the march from the gate, at or about 11:53 hours on November 17 the demonstrators left the Company premises. It does not appear disputed that they maintained a presence in the form of an informational picket outside the shop premises. Thereafter, approximately 65 percent of the employees scheduled for duty on the afternoon shift appeared for work. Later the same day the Company obtained a cease and desist order from the Canada Labour Relations Board. It was posted to the attention of all employees at both the Pointe St. Charles Motive Power Shop and Wheel Shop, as well as the Taschereau Motive Power Shop where a sympathetic work stoppage had also occurred. It is common ground that on Monday, November 20, 1989 things returned to normal.

Subsequently the Company conducted disciplinary investigations in respect of the six grievors. Thereafter, on December 21, 1989 grievors Bigonesse, Letourneau, Viel and Prevost were notified that they were discharged for their involvement in the illegal work stoppage. Grievors Simoneau and Lalande, whose investigations took place somewhat later, were advised of their terminations, for the same reasons, on February 2, 1990.

I turn to consider the merits of the grievances. In the Arbitrator's view the evidence discloses that all six of the grievors were more than mere passive participants in the work stoppage of November 16 and 17, 1989. It further appears to me that as among themselves there were differing degrees of involvement. Specifically, the activities of Mr. Bigonesse, Mr. Letourneau and Mr. Prevost are more pronounced and extensive than those of Mr. Viel, Mr. Simoneau and Mr. Lalande.

As noted above, all six were in attendance at the meeting in the truck shop department lunchroom. The material before the Arbitrator establishes, on the balance of probabilities, that Mr. Bigonesse and Mr. Letourneau conferred for an extensive period of time prior to the lunchroom meeting at Mr. Bigonesse's work station. The evidence discloses that following the lunchroom meeting Mr. Bigonesse circulated among other employees, showing them the "sit-in" flyer and encouraging them to participate in the work stoppage. Among other things, he left his own work area and proceeded to the Wheel Shop with Mr. Letourneau at approximately 14:40 hours for the express purpose of rallying other employees to support the work stoppage. In fact Mr. Bigonesse's efforts went so far as to getting involved in a heated argument with at least one machinist who seemed reluctant to follow his suggestion.

The material further establishes that later, between 16:30 and 17:00 hours Mr. Bigonesse again proceeded to the Wheel Shop to rally afternoon shift employees to become involved in the work stoppage in the Motive Power Shop. On that occasion he was accompanied by both Mr. Lalande and Mr. Letourneau. By his own admission, later in the day, he openly refused to read the letter signed by Mr. Trudel ordering employees back to work. Additionally, on the morning on November 17, Mr. Bigonesse was observed once more in the Wheel Shop trying to incite employees to join in the work stoppage. On the whole I am satisfied that the evidence discloses a primary leadership role in the events of November 16 and 17 on the part of Mr. Bigonesse.

I am compelled to draw the same conclusion with respect to Mr. Letourneau. As noted above, he was active in discussions prior to the lunchroom meeting which, I am satisfied, involved early planning for the demonstration which took place on the afternoon of the 16th. He was also involved in going to the Wheel Shop with Mr. Bigonesse to drum up support for the sit-in in the Motive Power Shop. I am satisfied that both before and after the lunchroom meeting Mr. Letourneau was involved in the planning and promotion of the work stoppage among employees in the shops generally.

Mr. Letourneau's leadership role is further demonstrated by videotape evidence which discloses that he was at most material times present in the centre of activity at the foot of the stairs in the Motive Power Shop. On one occasion he openly encouraged the employees in their pounding by rhythmically imitating a musical conductor, waving his arms, with a tape recorder in one hand. Mr. Letourneau, who was among the smaller group of employees who spent the night at the Motive Power Shop, was also involved in leading what the Arbitrator accepts was a march or procession. At one point he is observed in the videotape walking in front of two employees who are carrying the unfurled banner referred to above. While Mr. Letourneau stated that he was merely taking the banner to his truck to put it away, the objective evidence is to the contrary. If that had been the plan it could merely have been rolled up and taken out under his arm. What in fact transpired was an open and symbolic parading of the banner, with Mr. Letourneau leading the way. I am satisfied, on the balance of probabilities, that at approximately 10:50 hours on the 17th Mr. Letourneau did play a leadership role in a march through the shop lead by the banner. Shortly afterwards, when the employees were outside, he was carrying a separate placard. Under the circumstances, in light of the whole of the evidence before me, I conclude, on the balance of probabilities, that Mr. Letourneau was a primary organizer and promoter of the illegal work stoppage.

The evidence respecting Mr. Prevost is equally persuasive. On the afternoon of the 16th, shortly after the lunchroom meeting, Mr. Prevost was observed in the Erecting Shop department where he was openly inciting employees to join in the demonstration in the Winding Shop. The Arbitrator accepts as proved the allegation of the Company, to the effect that Mr. Prevost proceeded from the lunchroom meeting to gangs nos. 280 and 260 where he incited employees to stop working and proceed to the demonstration. It may be noted that this was at a time when the demonstration had not yet begun.

Moreover, like Mr. Bigonesse and Mr. Letourneau, Mr. Prevost remained at the centre of the action during the greater part of the demonstration in the Motive Power Shop. On the videotapes he can be observed speaking with Mr. Lavoie, the chief speaker who exerted the employees to continue their work stoppage, as well as with others. Among other things, he brought a coffee urn into the demonstration area to provide refreshment for the strikers. At 20:30 hours, when assistant manager André Préfontaine attempted to give Mr. Prevost the letter from works manager Trudel, the grievor refused to take it. Still later, shortly after midnight, Mr. Prevost organized the laying of sheets of foam insulation on the floor of the shop for the strikers to sleep on. He, along with Mr. Lavoie, was among the employees to lie on the sheets. The evidence discloses that he then spent the night in the Shop.

On the whole the Arbitrator cannot accept the explanations of Mr. Prevost to the effect that he was merely a follower or general participant in the work stoppage. I am satisfied that from the time of the lunchroom meeting, through his various acts of inciting both prior to and during the demonstrator, he was, like Mr. Bigonesse and Mr. Letourneau, a primary organizer of the work stoppage.

In the Arbitrator's view the participation of the grievors Viel, Simoneau and Lalande is of a different order. From the extensive body of evidence before me it is clear that they were more than average or passive participants in the work stoppage. All three were in attendance at the lunchroom meeting prior to the beginning of the work stoppage. However, the allegations of the Company that they attempted to spread the word of the pending strike among other employees are not made out in the same degree as they are with respect to the three other grievors, whose actions are reviewed above. In particular, it is alleged by the Company that Mr. Viel and Ms. Simoneau proceeded to the Wheel Shop to meet and talk with employees to encourage them to leave their work stations. In fact, however, their explanation, which the Arbitrator accepts, is that they had gone to look for Union representatives Goulet and Biniaris. Additionally, the Company appears to have relied upon a report filed by superior Serge Guilbault to the effect that on the 17th of November he observed a group being led by Mr. Letourneau, Mr. Viel and Mr. Goulet attempting to incite employees in his department to join the demonstration. Upon giving evidence at the hearing, however, Mr. Guilbault conceded that he was not certain that in fact Mr.Viel was involved at that point In the circumstances I am inclined to prefer Mr. Viel's account, which is that he was not.

Additionally, the Company imputes blame to Mr. Viel on the basis of his alleged involvement in relation to communicating with the media. In the Arbitrator's view nothing in the evidence establishes on the balance of probabilities that Mr. Viel played any leadership role in that regard. The fact that he may have been observed speaking to members of the press outside the shops at one point does not, in my view, establish the degree of culpability which the Company asserts. It remains, however, that Mr. Viel was more involved in the logistics of the work stoppage than the average participant. Apart from his attendance at the lunchroom meeting, he was admittedly involved in reviewing information preparatory to one of Mr. Lavoie speeches and performed a liaison function throughout the entirety of the work stoppage.

Ms. Simoneau also attended the lunchroom meeting and acted as a secondary organizer or facilitator during the course of the work stoppage. By her own admission Ms. Simoneau was, like Mr. Viel, involved in running errands and carrying messages, and can be observed in the videotaped sequences holding the cloth banner which was utilized in the marches conducted through the shops. While I am satisfied that she was not active to the same degree as Mr. Bigonesse, Mr. Letourneau and Mr. Prevost in inciting employees in other parts of the facility to join in the demonstration, the evidence does disclose, on the balance of probabilIties, that Ms. Simoneau did encourage the employees in her own work area to support the illegal strike.

The degree of involvement of Mr. Lalande is, in my opinion, comparable to that of Mr. Viel and Ms. Simoneau. It is not disputed that Mr. Lalande attended the lunchroom meeting, and that towards the end of the afternoon of the 16th, at the punch clock, he attempted to persuade employees who were going off-duty to remain at the shop and continued to demonstrate. While that action might not have constituted a work stoppage on the part of those individuals, it plainly was intended to derive support for the unlawful work stoppage of employees who would otherwise be on duty. Moreover, it is not denied that at one point Mr. Lalande went to the Wheel Shop in the company of grievors Bigonesse and Letourneau to assist them in attempting them to persuade afternoon shift employees to participate in the demonstration in the Motive Power Shop. Later, after midnight, he assisted Mr. Prevost in laying out make-shift beds on the floor of the shop for the demonstrators. Finally, on the morning of November 17, he was seen to tear Company "return to work" letters out of the hands of employees, and throw them in the garbage. In the Arbitrator's view, on the whole, the actions of Mr. Lalande disclose a secondary role of organizational involvement comparable to that of Ms. Simoneau and Mr. Viel, but less extensive and direct than the role of Mr. Bigonesse, Mr. Letourneau and Mr. Prevost.

It is well settled that participation in an unlawful strike, and in particular the organizing and promoting of such a work stoppage, is deserving of the most serious degree of discipline (See Re United Steelworkers and Aerocide Dispensers Ltd. (1963), 16 LAC. 57 (Laskin); Re Iron Ore Co of Canada and United Steelworkers, Local 5795 (1975), 11 LAC. (2d) 16 (Harris); Re Douglas Aircraft Co. of Canada Ltd. and United Automobile Workers, Local 1967 (1975), 8 L.A.C. (2d) 118 (O'Shea); Re Liquid Carbonic Canada Ltd. and United Steelworkers, Local 12998 (1977), 16 L.A.C. 284 (Kennedy)). In more recent years, however, it has come to be accepted that as in any case of discipline, the conduct of individual employees in respect of an illegal work stoppage must be assessed on its own merits and, in relation of any other mitigating factors that may be appropriate. In other words, discharge is not necessarily an automatic and exclusive disciplinary response to an employee's involvement in an illegal work stoppage. (See Re St. Peters Hospital and CUPE Local 778 (1981), 1 L.A.C. (3d) 106 (Swan); Re Camco Inc and United Electrical, Radio and Machine Workers, Local 550 (1988), 34 L.A.C. (3d) 12 (Barton)).

The Union advances several arguments in support of its position that discharge is excessive as a disciplinary response in this case. Firstly, its representative argues that to the extent that the grievors merely participated in the work stoppage, they cannot be assessed any discipline, as many other employees who did likewise received no discipline whatever. Secondly, it emphasizes that other employees who are also identified as being involved in the lunchroom meeting were not disciplined. Further, the Union argues that the refusal to accept or respond to the Company's oral and written directions to return to work, staying overnight in the shop, as well as marching and carrying banners, all apply to numbers of employees other than the grievors, none of whom received any discipline. The representative for the Union also stresses that the promotional activities of the grievors were similar in kind to the actions of other persons identified in supervisor's reports, but in respect of whom no disciplinary investigation or penalty was pursued.

A separate head of objection is the past practice of the Company with respect to the treatment of illegal work stoppages at the Pointe St. Charles Shops. The Union brings to the Arbitrator's attention a number of illegal work stoppages at that location in the five-year period prior to the events of November 16 and 17, 1989. He stresses that in none of the work stoppages which occurred over that time was discipline imposed against any employee or Union officer. Its representative submits that going from virtual tolerance of such events to the imposing of summary discharge is an unacceptable breach of general precepts of progressive discipline, and of equity. He argues that the Company has effectively lulled employees into the belief that spontaneous work stoppages can be engaged in without disciplinary consequences. The Union's representative further points to other jurisprudential precedents, within the railway industry, which suggest that conduct comparable to the actions of the grievors in this ease has in prior instances been dealt with by the imposition of demerits. He argues that the Company has over-reacted, singling out a small number of employees to make an example of them, without considering the option of corrective or rehabilitative discipline.

The Arbitrator has some difficulty with the assertion of the Union that the six grievors are no different in their actions than numbers of other employees and were arbitrarily selected for harsh treatment. Upon a lengthy review of the evidence, including the videotape material which was relied upon by the Company, I am compelled to support its assessment that the six grievors had an involvement in the organizing and ongoing promotion of the work stoppage that surpassed the actions of any other employees who were identifiable with the exception of Mr. Lavoie, who was also disciplined. Exact precision is never possible in these matters, and it may be that some equally culpable individuals evaded a similar degree of identification. However, the Company is entitled to proceed against a group of employees whose involvement, as in this case, can be shown to be demonstrably greater than that of any others, and whose actions may fairly be characterized as an organizing or driving force behind the work stoppage. The Company's assessment of the grievors, as distinguished from other employees, was not based on one act or one element alone, but on the cumulative impact of all of the information available to it. While, on an isolated basis, other employees might have attended the lunchroom meeting, or might have engaged in a single act of inciting, with the possible exception of Mr. Goulet, in respect of whom an explanation has been advanced, and Mr. Lavoie no other employees appear to have had the degree of sustained involvement that the six grievors did in organizing and directing the events of November 16 and 17, 1989 in the Motive Power Shop.

In assessing the equities of these grievances, the Arbitrator finds it more difficult to reject out-of-hand the Union's submission with respect to the past treatment of work stoppages by the Company at Pointe St. Charles. The record reveals, without controversy, that there were eleven separate illegal work stoppages, of varying durations, at the Pointe St. Charles Shops between March of 1988 and November of 1989, excluding the strike which is the subject of this grievance. While some of those were minor in impact, and of a relatively short duration, at least one, in August of 1987, lasted two days. In none of the above events did the Company discipline any employees, whether by way of written warning or otherwise. In my view a record of that consistency does, as the Union argues, support the conclusion that employees may reasonably have interpreted the Company's attitude as tantamount to condonation of these events on a periodic basis, at least to the extent that they would not attract serious discipline.

On the facts of the instant case, however, that argument only goes so far. As is evident from the account of events related above, in this case the Company did, by every means available to it communicate both verbally and in writing to all of the employees that they were engaged in an unlawful strike, that they were to return to work immediately and that failure to do so might well render them liable to discipline. Unfortunately, as the evidence discloses, the grievors and other employees not only failed to heed these warnings, but in most cases refused to accept delivery of the Company's letter. In one instance warning letters delivered into the bands of other employees were seized and destroyed. Against that form of deliberate disregard of Company warnings, the Arbitrator has difficulty giving full weight to the Union's argument that the grievors were lulled into a sense that their actions could have no disciplinary consequences. In my view, therefore, while the Union's argument cannot be rejected entirely, I cannot accept the suggestion that the prior history of Company inaction in the face of such conduct can now be summoned up to justify the position that no serious degree of discipline whatever could be justified in the circumstances.

For the reasons related above the Arbitrator is satisfied that the actions of Mr. Bigonesse, Mr. Letourneau and Mr. Prevost involve a similar degree of participation at the level of primary organization and promotion of the unlawful work stoppage. Absent any other distinguishing factors their actions should be deserving of a similar measure of serious discipline. As noted, the Arbitrator is impressed, however, by the impact of the record of Company inaction with respect to similar events in the past. While it is true that the letters of warning issued by the Company during the course of the work stoppage should have alerted a reasonable employee to the likelihood of discipline, it remains equally true that the tolerance of some eleven illegal work stoppages over the five years previous without any discipline whatever could well have led persons in the position of these grievors to believe that they were not placing their entire employment security at risk. In my view, therefore, a serious degree of discipline should be imposed upon them, commensurate with the right of the Company to communicate with all employees at Pointe St. Charles that resort to illegal work stoppage will no longer be tolerated. However, having regard to the length of their service, and the quality of their records, in addition to the record of Company inaction in the past, that discipline should fall short of outright discharge.

Mr. Bigonesse has 23 years' service with the Company and his record was discipline free at the time of these events. Mr. Letourneau is an employee of 21 years' service who also had a discipline free record. Mr. Prevost was likewise discipline free, and had close to 13 years' service with the Company at the time of his discharge. In my view it is equitable to substitute a deferred reinstatement of these employees into employment. In the interests of communicating to them, and to other employees, however, the gravity of their actions, particularly in light of the express warnings issued to them by the Company, they should not return to the workplace until they have served a suspension, without compensation and benefits, and without loss of seniority, of one year from the date they were removed from service.

I judge that the grievors Viel, Simoneau and Lalande were secondary organizers or helpers in the illegal work stoppage of November 16 and 17, 1989. They are deserving of serious discipline, albeit of a lesser degree than that assessed against the primary organizers. Mr. Viel is a 20 year employee with a discipline free record. Mr. Lalande has 10 years' service, and is also discipline free, while Ms. Simoneau, who is also without discipline, has 5-1/2 years of service, having recently completed her apprenticeship. In the circumstances I consider that a substitution of penalty by the reinstatement of these three employees into their jobs, without compensation or benefits, and without loss of seniority, is a penalty appropriate to their actions and to their degree of involvement in the events of the illegal work stoppage.

Needless to say, all of the grievors involved in this matter must appreciate that in the future the Company is entitled to view conduct involving the organizing and promotion of illegal work stoppages in the most serious light. For the foregoing reasons the Arbitrator orders that the grievors Bigonesse, Letourneau and Prevost be reinstated into the workplace without compensation and without loss of seniority one year from when they were taken out of service. The grievors Viel, Simoneau and Lalande shall be reinstated into their employment forthwith, without compensation for wages and benefits and without loss of seniority.

DATED at Toronto this 3rd day of July, 1990.

(sgd) M. G. Picher