IN THE MATTER OF AN ARBITRATION
VIA Rail Canada Inc.
National Automobile Aerospace and Agricultural Implement Workers Union of Canada
IN THE MATTER OF THE GRIEVANCE of Y. GERVAIS
SOLE ARBITRATOR: Harvey Frumkin
There appeared on behalf of the Union:
There appeared on behalf of the Company:
A hearing in this matter was held at Montreal on April 24, 1991.
This is a grievance filed on behalf of Carman Helper Y. Gervais which contests the assessment of forty-five (45) demerit marks against his discipline record on December 3, 1989, imposed for having been involved in an altercation with another employee on the same day. The assessment resulted in the accumulation by the Grievor of more than sixty (60) demerit marks and his consequent discharge. The grievance seeks reinstatement of the Grievor, with full rights and benefits and compensation for lost wages.
The nature of the dispute and the facts giving rise to it have been outlined by the parties in their joint statement, as follows:
The assessment of forty-five (45) demerit marks against the record of Carman Helper Y. Gervais on December 3, 1989, for "Avoir eu une altercation avec un autre employé le 3 décembre 1989", resulting in his discharge due to accumulation of demerit marks.
Sometime prior to December 3, 1989, Carman Helper B. Radovanovic loaned a child's plastic puzzle ("casse-tête") to Carman Helper Y. Gervais. Mr. Radovanovic had requested its return on a number of occasions, without success. On December 3, 1989, Mr. Radovanovic, while in the cafeteria, again approached Mr. Gervais for the return of the puzzle and a confrontation resulted.
Both employees were called for investigations, which resulted in the assessment of forty-five (45) demerit marks against the records of both employees.
The Brotherhood grieved both cases through the grievance procedure. The case of Mr. Radovanovic was resolved by the two parties. The case of Mr. Gervais has been declined by the Corporation and is now properly before the Arbitrator, in accordance with Rule 5 of Collective Agreement No. 3.
FOR THE BROTHERHOOD: FOR THE CORPORATION:
(s) Thomas Wood (s) C.C. Muggeridge
System General Chairman Department Director, Labour Relations
The thrust of the grievance as it was presented was that the imposition of forty-five (45) demerit marks against the Grievor's discipline record in response to the incident of December 3, 1989, was excessive. The incident concerned an altercation between two employees which occurred on the premises of the Corporation. While the evidence was contradictory in certain material particulars, the Board is satisfied that the following description of the incident and the circumstances leading to it accurately reflects what in fact took place.
The Grievor, at the time of discharge, had been in the employ of the Corporation for a period of approximately ten (10) years and was classified as Carman Helper. His discipline record indicates that he had, by December 3, 1989, accumulated forty-five (45) demerit marks.
On the morning of December 3, 1989, shortly prior to the commencement of his work shift, the Grievor was seated in the cafeteria of the Corporation when he was confronted by a fellow employee, Mr. B. Radovanovic. It would appear that some weeks earlier Mr. Radovanovic had loaned to the Grievor a child's plastic puzzle ("casse-tête") and was insisting upon its immediate return. Mr. Radovanovic had apparently been seeking return of the puzzle for some time, but to no avail. The Grievor's response was to the effect that he did not have the puzzle, that he had already explained that he had given the puzzle to his son who had lost it, and that he was unable to return it at that time. Mr. Radovanovic persisted however, insisting that the Grievor return the puzzle. The Grievor asked Mr. Radovanovic to withdraw, but the latter continued in his persistence, to the point where a heated verbal exchange ensued.
The Grievor, it would seem, had been experiencing family problems and was visibly upset. Although he had in the past enjoyed a friendly relationship with Mr. Radovanovic, he became incensed when Mr. Radovanovic stated that the Grievor could not be trusted. The Grievor, in turn, responded by directing an abusive racial slur at Mr. Radovanovic. At the same time the Grievor stood up and pushed Mr. Radovanovic on the shoulder so that the latter was thrown back against a nearby table and his work helmet fell to the ground. The incident ended at that point.
The Corporation conducted a thorough investigation of the incident during the course of which statements of a number of eye witnesses were obtained. Following the investigation it resolved to address the incident by assessing the discipline records of both participants with forty-five (45) demerit marks. In this regard it concluded that each participant shared equal responsibility for what had transpired. Insofar as both the Grievor and Mr. Radovanovic had accumulated more than sixty (60) demerit marks in their respective discipline records, each was subjected to discharge. Individual grievances on behalf of Mr. Radovanovic and the Grievor followed.
On April 23, 1990, the Corporation, following Union intervention and reconsideration of its decision, offered to reduce Mr. Radovanovic's discipline to all time out of service to count as a suspension and his discipline record to stand at fifty-five (55) demerit marks upon reinstatement. In this regard the Corporation would seem to have accepted the Union's contention that Mr. Radovanovic was not the aggressor. The proposal was accepted and Mr. Radovanovic was returned to service on May 1, 1990. No similar offer for the Grievor was forthcoming in that he was perceived as the aggressor during the incident.
Having examined all of the evidence, the Board is of the opinion that the Grievor was unfairly treated and that his grievance should be maintained in part. The Board agrees with the initial assessment of the incident reached by the Corporation after it conducted its extensive and thorough investigation to the effect that both participants were equally to blame for what had occurred. The Grievor was seated alone in the cafeteria when he was sought out by Mr. Radovanovic. The Grievor was passive at first and went to considerable lengths to end the confrontation that Mr. Radovanovic had initiated. He requested, on at least several occasions, that Mr. Radovanovic withdraw. Mr. Radovanovic nonetheless persisted. The Grievor, of course, must bear sole responsibility for the fact that the confrontation took on a physical dimension, but here again, there was a significant element of provocation and the form of the Grievor's physical response was in the nature of a push designed to force Mr. Radovanovic to withdraw.
In the final analysis, therefore, the incident amounts to an altercation over a child's plastic puzzle between two employees who had always enjoyed a friendly relationship and who should have known better. Mr. Radovanovic must bear full responsibility for provoking the incident and the Grievor full responsibility for the response. In the Board's view, however, it would be incorrect to state that one was more culpable than the other for what transpired, so that the Corporation's initial determination upon the matter of relative responsibility would be the one that the Board would prefer.
The incident, in terms of its gravity, must as well be appreciated with regard to the particular context within which it occurred. While it did take place on the premises of the Corporation and in the presence of other employees, there is no mistaking the fact that it occurred prior to the commencement of the work shift of the participants. It gave rise to no consequences for the Corporation in terms of productivity nor did it represent a challenge to the Corporation's authority. In point of fact, the altercation was confined to the participants and its consequences in terms of detrimental effect upon the Corporation are difficult to identify. Thus while altercations in the nature of the one that occurred in this case are not to be tolerated upon the premises of the Corporation and would surely constitute a proper occasion for discipline, the assessment of forty-five (45) demerit marks in the circumstances, might well be viewed as excessive. This observation would incline the Board to the view that the manner in which the Corporation, following reconsideration, resolved the case of Mr. Radovanovic, was correct and reasonable.
Against this background, the Board would be hard pressed to conclude that the Grievor should have been treated any differently than was Mr. Radovanovic. The Corporation has referred to the respective backgrounds and records of the two employees concerned, but close scrutiny of these records discloses no significant basis for differentiation and in the final analysis, both had accumulated an identical number of demerit marks by the time of the incident. Once it was determined, following investigation, that there was no clear basis for attaching greater fault for the incident to one of the participants, (as was the Corporation's initial finding), the proper approach from that point on should have been guided by the principle of equal treatment. Thus when Mr. Radovanovic was reinstated on May 1, 1990, with fifty-five (55) demerits marks to stand on his discipline record, a similar resolve should have at least been offered the Grievor.
For the foregoing reasons, the grievance is maintained in part; the discharge of the Grievor on December 3, 1989, is annulled and set aside and ordered stricken from his record, to be replaced by a disciplinary suspension reckoning from the date of discharge to May 1, 1990; the Corporation is ordered to reinstate the Grievor, effective immediately, and fifty-five (55) demerit marks will stand on the Grievor's disciplinary record upon reinstatement; the Corporation is ordered to compensate the Grievor for wages lost to him in consequence of the discharge, at his regular rate, retroactive to May 1, 1990.
The Board reserves jurisdiction for a period of one hundred and twenty (120) days from the date of the present decision and it will reconvene at the instance of either of the parties for purposes of determining any question relating to application of the present award and the establishment of quantum in the event that the parties are unable to determine these issues on their own.
DATED AT MONTREAL, May 23, 1991.
(sgd) Harvey Frumkin