SHP 327

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

International Association of Machinists and Aerospace Workers

GRIEVANCE RE DISCHARGE OF GUYLAIN LAVOIE

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Association:

A. Rosner Executive Secretary, CCRSU

L. Biniaris System General Chairman, IAM & AW

G. Lavoie Grievor

 

 

There appeared on behalf of the Company:

L. F. Caron System Labour Relations Officer, Montreal

S. A. MacDougald Manager, Labour Relations, Montreal

P. N. Nicholson Coordinator, Special Projects, Montreal

 

A hearing in this matter was held in Montreal on November 1, 1990.

 

AWARD

This is the arbitration of a grievance against discharge for activities in relation to the organizing of an illegal strike. The dispute and joint statement of issue filed at the hearing are as follows:

Dispute:

Appeal of discharge of Machinist Guylain Lavoie of Pointe St. Charles Motive Power Shop, Montreal, Quebec.

Joint Statement of Issue:

On November 16 and 17, 1989, Machinist G. Lavoie was involved in an illegal work stoppage. On May 14, 1990, he was discharged:

Pour votre rôle lors de l'arrêt de travail illégal aux ateliers de la Pointe St. Charles les 16 et 17 Novembre 1989.

The Union is requesting Mr. Lavoie be reinstated as they contend the discipline imposed was too severe.

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

***

At the time of the work stoppage Mr. Lavoie was a machinist working on the dayshift at the Pointe St. Charles Shop. He then had some 10 years' seniority, having been hired on October 25, 1979. The events surrounding the illegal work stoppage were thoroughly canvassed in a prior arbitration award dated July 3, 1990, which issued in relation to six other employees. I do not, therefore, propose to review the facts recorded in that award. There is no dispute between the parties that they may be adopted for the purposes of this grievance. In the Arbitrator's view it is sufficient to focus on the particular activities of Mr. Lavoie which may not have been highlighted in that award.

The evidence discloses that the grievor was the single most active organizer and director of the illegal work stoppage. The material before the Arbitrator establishes that he attended a meeting of some 30 employees in the lunchroom of the Truck Shop Department at approximately 13:35 hours on November 16. It does not appear disputed that that meeting involved the coordination of the work stoppage which was to shortly follow. Following the lunchroom meeting, and prior to the commencement of the sit-in, the grievor circulated within the Erecting Shop and openly incited fellow employees to join in the work stoppage, occasionally using strong and argumentative tones with employees who seemed reluctant to do so. In the initial stages of the strike, at approximately 14:30 hours, employees gathered at the foot of the stairway leading to the Motive Power Shop managers office, without any apparent direction or organizing force. Shortly thereafter the grievor mounted a workbench and addressed the assembled employees. Among other things, he asked why is it that supervisors with less seniority than employees being laid off had been protected. He urged the employees to stick with it, and that management would have to speak with them.

That incident set the pattern for the entirety of the work stoppage which lasted over two days. With the exception of occasional interpreters, and interventions by union officers to urge the employees to return to work, the grievor was the sole speaker to rally and direct the strikers during the work stoppage. On some seven occasions he spoke to them or gave them signals from his position on the centrally located workbench. On one occasion he read the "Sit-in" leaflet circulated among the strikers, urging that the employees continue their strike until their demands were met. At approximately 19:30 hours on the 16th, not long after the employees had been told by the union leaders that they should return to work, Mr. Lavoie mounted the workbench and rallied them to the cause, urging them not to quit their illegal strike. His efforts were obviously successful as his speeches were met with applause and obedience. The demonstration and pounding by the employees continued unabated until a signal was given by Mr. Lavoie at 00:01 hours on November 17, 1989, when he silenced the demonstration for the night with a motion of his hand. The following morning, on another signal from Mr. Lavoie, the demonstrations and banging commenced once again.

Mr. Lavoie was active not only as the principal orator, but on the shop floor as well. When, at approximately 07:30 hours on the morning of the 17th a management back-to-work letter was being distributed to employees in his work area, the grievor interfered, taking the letters out of the hands of employees, telling them not to read them and throwing them into a garbage bin. In a particularly disturbing incident, when shop supervisor P. Doucet handed a copy of the back-to-work letter to an employee the grievor tore the letter from the grievor's hand and, turning to the supervisor made a threatening gesture towards him by making a slashing movement with his right hand across his throat.

Through the entirety of the work stoppage Mr. Lavoie remained the central rallying point and directing voice. His last instructions to the employees came at 09:56 hours on the 17th when he once again concluded his remarks by urging the strikers not to quit. The record discloses that Mr. Lavoie remained in the very forefront of the direction of the work stoppage from the time of the initial lunchroom meeting until the strikers marched out of the shop at or about noon hour on the 17th.

During the course of the hearing the Company adduced evidence which it submits establishes that Mr. Lavoie had previously been put on notice that he could be discharged for organizing a work stoppage. The Union's representative makes two objections to that evidence. Firstly, on a procedural basis he submits that as no discipline related to the prior incident it should not be adduced in evidence now. Secondly, he argues that the matter raised is a surprise to the Union in that it did not have the opportunity to prepare to meet the Company's evidence.

The Arbitrator allowed the evidence to be adduced, subject to such weight as might attach to it. Insofar as the Union raised the issue of any failure of prior warning on the part of the Company that serious discipline could result from activities in support of illegal work stoppages, it is plainly open to the Company to call evidence to rebut that assertion. I am not persuaded that in these circumstances the Union can fairly claim surprise. However, more fundamentally, I do not attach great value to the evidence adduced by the Company in any event.

The evidence adduced by the Company, like the evidence adduced earlier by the Union respecting other work stoppages, goes to the issue of whether the grievor knew, or reasonably should have known, that activities of the kind in which he engaged on November 16 and 17 could have serious disciplinary ramifications. On that issue, the Arbitrator is in no doubt. It seems to me self evident that, as a general matter, employees whose terms and conditions of employment are subject to a collective agreement made under the Canada Labour Code are taken to know that it is contrary both to the requirements of the Code and to the terms of their collective agreement for them to engage in an illegal work stoppage during the course of their contract. They know, or must be deemed to know, that the mechanisms of grievance and arbitration are available for the redress of any alleged infringement of their rights, and they may not resort to self help and economic sanctions as a means of redressing what they perceive to be a violation of their rights under the collective agreement.

In the circumstances of this case I am not prepared to conclude that Mr. Lavoie was ignorant of that reality. Firstly, as noted in the prior award, if there was any doubt about the matter it was clarified in the written communication which the Company served upon the employees on the morning of November 17. On the basis of those clear warnings the grievor knew, or reasonably should have known, that as the ostensible spokesperson and leader of the work stoppage he knowingly assumed a position of substantial personal peril.

Do the prior incidents of work stoppages which did not result in discipline serve to mitigate the degree of penalty which isappropriate in the circumstances of this case? I have difficulty in finding that they do. Firstly, as the Company's spokesperson submits, the other work stoppages were neither as long nor as widespread as the illegal strike which was directed by Mr. Lavoie. Secondly, there is no evidence before me that in any of those instances an employee assumed an identifiable role of leadership and direction comparable to that of Mr. Lavoie in the instant case. For reasons which he may best appreciate Mr. Lavoie took upon himself a degree of visible direction and participation of the illegal strike that plainly surpassed the involvement of any other employee. The strikers sat in, made noise, fell silent and resumed their demonstrating activities at his every instruction and urging. In the circumstances the Arbitrator must agree with the characterization of the activities of Mr. Lavoie advanced by the Corporation. As an instrumentality of the illegal work stoppage his activities went well beyond those of the six other employees who were also disciplined. His repeated verbal exhortations and directions elevated him beyond the rank of passive participant and above the rank of other organizers. He assumed the role of visible coordinating and directing force of the work stoppage which, it is fair to conclude, would have been substantially less protracted without his efforts.

When other factors are examined the balance tips more in the direction of aggravation than mitigation. The threatening gesture which Mr. Lavoie made towards a supervisor when he interfered with the circulation of the Company's letter, making a slashing gesture across his throat while glaring at the supervisor, is not an event which lends sympathy to the grievor's cause. He is, moreover, not an employee of extraordinarily long service, nor did he have an entirely clear disciplinary record at the time of these unfortunate events. When all of the factors are weighed, the Arbitrator is not persuaded that the penalty of discharge was inappropriate in the circumstances of this case, or that there are countervailing factors which mitigate against the penalty imposed upon Mr. Lavoie for his leadership role in the illegal work stoppage.

For all of the foregoing reasons the grievance must be dismissed.

DATED at Toronto this 9th day of November, 1990.

(sgd) M. G. Picher

Arbitrator