IN THE MATTER OF AN ARBITRATION
VIA Rail Canada Inc.
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada
IN THE MATTER OF THE GRIEVANCE of DANIEL JACK
SOLE ARBITRATOR: Jack M. Chapman, Q.C.
There appeared on behalf of the Union:
There appeared on behalf of the Company:
K. A. Pride
A hearing in this matter was held in Winnipeg, Manitoba, on December 16 and 17, 1991.
The arbitration hearings in this matter took place in Winnipeg, Manitoba, on December 16 and 17, 1991. Jack M. Chapman, Q.C. was appointed by the parties to act as the sole Arbitrator.
The Employer was represented by Mr. K.A. Pride, and Mr. R. Wesley. The Union was represented by Mr. A. Rosner.
At the commencement of the hearings the parties confirmed that there were no preliminary objections to the matter proceeding and the jurisdiction of the Arbitrator to deal with the matter was confirmed. It was agreed that witnesses would not be excluded and that there was no other person who required notice of the hearing.
In accordance with the established practice of the parties, a Joint Statement Of Issue and Facts was filed as Exhibit 3. This reads as follows:
The assessment of forty (40) demerit marks against the record of Mr. D. Jack, Pipefitter, Winnipeg Maintenance Centre, effective August 13, 1991, for "Your insubordination and threatening remarks made to Work Centre Supervisor, B. Collis, on August 12, 1991, at 22:10 hrs.", resulting in his dismissal effective August 13, 1991, account accumulation of demerits in excess of 60.
Mr. Jack was employed as a Pipefitter and held an assignment on the afternoon shift (15:30-23:30 hours), with Thursday/Friday as rest days, at VIA's Winnipeg Maintenance Centre.
On Monday, August 12, 1991, at approximately 22:00 hours, Mr. Jack entered the men's locker room on the second floor of the Winnipeg Maintenance Centre. Present in the locker room at that time were Supervisor B. Collis, Pipefitter D. Nelson and Coach Cleaner G. Herbert.
Written in chalk on the lockers were profane graffiti concerning Electrician K. Cormack. Mr. Jack either requested or attempted to remove the graffiti and Supervisor Collis told him not to touch it. A conversation then took place between the supervisor and the employee. The supervisor states that he subsequently notified the City police of a threat towards himself and his family.
The matter was investigated pursuant to the terms and conditions of the Collective Agreement. Demerit marks were assessed against Mr. Jack's record and he was released from the service for accumulation of demerits.
The Association grieved the discipline through the Grievance Procedure and the Corporation declined the grievance.
FOR THE ASSOCIATION: FOR THE CORPORATION
(signed) J. J. Brady (signed) K. A. Pride
System General Chairman Manager, Labour Relations
The parties are subject to a Collective Agreement which was filed as Exhibit 2. The Arbitrator's appointment was filed as Exhibit I.
Each of the parties filed comprehensive submissions with reference to the dispute. The submission of the Employer was filed as Exhibit 4 and the submission of the Union was filed as Exhibit 6.
Paragraph 28 of the Employer's submission (Exhibit 4) made reference to a number of alleged disciplinary offences previously committed by the Grievor. Mr. Rosner took objection to the inclusion of those comments in the submission on the basis that they were not relevant to the issue before me. After some discussion I ruled that they would be admitted only on the basis as to explain why Mr. D. Hunt had some "concern", as set forth in paragraph 28.
Filed as Exhibit 5 was a Personnel Administration Guide. This guide is commonly known as the Brown System of Discipline. It is certainly not necessary for me to repeat the methodology of that system, however, it is clear that the system has been applied by most railway companies in Canada for a large number of years. In summary, employees who commit disciplinary offenses are assessed demerit points for their misconduct and when an employee accumulates a total of 60 demerit points he is terminated. It is noted that the plan provides for demerit points to be removed from an employee's disciplinary record if designated months elapse without further discipline being imposed. As a result of the incident leading to this arbitration the Grievor was assessed 40 demerit marks and as he already had 30 marks assessed against him, this resulted in his having a total of 70 demerit marks and being discharged.
I do not propose to repeat, in minute detail, all of the evidence submitted. Most of it is set forth in the submissions of the parties and in the Statement Of Issue and Facts. However, some viva voce evidence was presented and I will attempt to point out, in summary form, the conflicts in that evidence.
The 40 demerit marks were assessed against the Grievor as a result of an incident which occurred on August 13, 1991. The issue, as set forth in Exhibit 3, shows that the demerit marks were assessed against the Grievor for "your insubordination and threatening remarks made to Work Centre Supervisor, B. Collis, on August 12, 1991 at 22: 10 hrs.".
The Grievor is a Pipefitter and at all material times was working on the afternoon shift (15:30 to 23:30 hrs.) at the Winnipeg Maintenance Centre. The evidence revealed that the Grievor is well qualified technically and that no objections were taken to his technical skills or his work performance. The particular issue before me, and in fact the other incidents referred to in paragraph 28 of Exhibit 4 reveal an alleged problem of "attitude" resulting in appropriate behaviour. None of them relate to work performance.
There was some conflict in the evidence as to the exact time when the incident and some of the matters relating to that incident actually occurred. However I am bound by the contents of Exhibit 3 and the times stated therein.
Mr. Barry Collis is a Supervisor and on the evening of August 13, 1991, at approximately 22:00 hrs. he was engaged in a "walk-around" with another supervisor, Mr. D. Hunt. They entered the locker room and found some particularly profane graffiti written on two of the lockers. The graffiti concerned an employee by the name of K. Cormack. Both Mr. Collis and Mr. Hunt sought instructions from their foreman and it was decided that a photograph be taken of it. Mr. Collis went back to the locker room to see if the graffiti was still there and remained in the locker room while Mr. Hunt left to get the camera. The Grievor then entered the locker room, noticed the graffiti, and moved to erase it. Mr. Collis instructed him not to erase it and a conversation ensued with the Grievor. The conversation continued for a few moments and became quite heated. Mr. Collis advised that the Grievor said words to the effect of "Don't you try to be a hero, I don't see any 'S' on your chest – its probably a joke anyway, why don't you talk to Kelly and see how he feels about it". The discussion continued and the Grievor allegedly bent down in front of Mr. Collis, who was sitting on a bench near the entrance to the locker room, pointed his finger at Mr. Collis and said "You are fooling with people's lives and jobs and if you want to be harassed you just keep it up and you'll be harassed and it won't be just you, it will be your kids too, but I'm not threatening you, I'm just telling you for your own good. Don't forget that everybody knows that you go to the Legion afterwards most nights." The Grievor then left the locker room and Mr. Hunt came in. At the time of the incident occurring, two other employees, Mr. D. Nelson and Mr. G. Herbert, were in the locker room washing up and/or using the toilet facilities.
Mr. Collis confirmed that he knew that Mr. Cormack was a close friend of the Grievor and was very concerned about the graffiti and was upset by it. He did not want any pictures taken and wanted the matter resolved within the particular shift crew without being referred to higher management officials. Mr. Collis said that when the Grievor bent over and was facing him they were approximately two feet apart. He did not think that either Mr. Nelson or Mr. Herbert overheard the conversation as they were approximately 15 to 20 feet away.
Of particular concern to him was the threat of harassment not only to himself but his family and his concern was heightened because of the Grievor's past behaviour. He had concerns about the Grievor's bad temper as a result of previous incidents and fully believed that the Grievor meant what he said. He reported the incident to his superiors and the next day reported the matter to the City of Winnipeg Police. He told the Police not to do anything about the report and advised that he made same so that if anything did happen the Police would have some idea as to the responsibility for such occurrence.
During Mr. Collis' examination there was some considerable discussion as to work responsibility and the work being done with respect to certain trains. I do not feel that information is particularly relevant.
Mr. Collis confirmed that he came to Winnipeg from the Gaspé area in June of 1990 and was not aware of the Grievor having any disciplinary record prior to his arrival. His reference to the Grievor's temper dated from incidents which had happened in December of 1990 and subsequently. He confirmed that the Grievor was a good technical employee and, for a period of time, they had gotten along quite well. He was not aware of any particular position the Grievor held in the Union but knew that the Grievor was a Union activist.
He confirmed that Messrs. Herbert and Nelson were in the locker room when the Grievor came in and that the entire encounter lasted approximately five minutes which, he stated, was a "ball park figure". Although there was a heated discussion no one's voice was raised to any great degree although the Grievor's voice was somewhat raised above normal". However, it was not a shouting match. There was also some discussion as to who left the room first and he was not positive whether the Grievor and Mr. Nelson left concurrently or whether Mr. Herbert left first. He was positive that both Mr. Herbert and Mr. Nelson were in the locker room when the Grievor allegedly bent down to him. He acknowledged that he had never known the Grievor to commit violence nor to threaten him. The previous incidents initially arose relating to working rules and conditions. It was suggested to him that he had no reason to be concerned that the Grievor would follow up on his threats. Mr. Collis responded that the Grievor's past actions and temper clearly justified his concern. He told Mr. Hunt about the threat at approximately 22:25 when in Mr. Brunning's office. He attended at the Foreman's office and reported the entire incident and was told to "write it all down". He did so at or near the end of his shift. It was done after midnight and the date had changed. At first he made notes, checked them for errors and then rewrote his report. He had discussed reporting it to the Police with his Foreman, who had told him that it was "his decision". He reported it to the Police the next day, after the Grievor had been put out of service. His reason for the delay was that he did not want to "make a bad situation worse".
He was questioned quite extensively about the Police report. Although he acknowledged that he had not requested special protection at home, he was concerned that if anything happened the Police should know who committed the offence. He acknowledged that he didn't ask the Police to take any particular action and, in fact, he had told them not to contact the Grievor. He and Mr. Hunt had submitted to a polygraph test for the purpose of proving that they were telling the truth and that their statements were verified, but the results of that test were not presented in the evidence.
Mr. Dieter Brunning, the Shop Foreman, gave evidence. He confirmed that Mr. Collis and Mr. Hunt had reported the graffiti in the locker room and that he had told them to take a picture of it. He acknowledged that the graffiti was not against the Employer, per se, but against a particular employee. They did not, nor did he, know who placed the graffiti on the lockers. Mr. Collis reported the incident with Mr. Jack and he told Mr. Collis to put it down on paper. Although Mr. Collis had discussed calling the Police he left that decision up to Mr. Collis.
During cross-examination Mr. Brunning stated that he did not have any real involvement after receiving the report and simply forwarded it on to the next level. He was questioned about the effect of Rule 25.2 of the Collective Agreement but he was not familiar with it at the time of the incident. He acknowledged that he was now aware that he could have carried out the investigation – but he did not have that knowledge at the time.
He was subsequently questioned about a meeting he had with Mr. Nelson and the Grievor that evening when he had imposed a disciplinary penalty on Mr. Nelson. The Grievor appeared in his office at approximately 22:30 and took exception to the imposition of the demerits against Mr. Nelson. Evidently the Grievor had suggested that he was "playing with people's lives" and that if Mr. Brunning was going to play the rules game so could he. His response to the Grievor was to "do as he felt necessary".
Evidence was also given by Mr. David Hunt, the other supervisor on the shift. He substantially confirmed the evidence of Mr. Collis respecting their discovering the graffiti and his going for the camera and Mr. Collis returning to the locker room. He had some difficulty in locating a camera with film. During that time he met the Grievor who asked him if he had taken a picture. He was told by the Grievor not to be a "hero" and that "the whole incident was a joke and it should be discussed with Mr. Cormack". The Grievor also told him that there was enough problems with the shift and to let it be resolved by within shift without forwarding the complaint upward.
During cross-examination he confirmed that he had never personally heard the Grievor make threats to harm individuals. The previous incidents in which the Grievor had been involved related to labour management confrontations and that the Grievor on these occasions got quite personal. He was not personally aware of other individuals in the locker room at the time of the incident and was not sure exactly when Mr. Collis had told him about having received threats from the Grievor. Mr. Hunt had prepared a report which formed part of Exhibit 5 of the Employer's submission. It was actually dated the 14th of August but he had put the notes into his computer earlier. It was suggested to him that there were no threats actually made or reported to him as they were not noted in his statement. He stated that he was not present at the time the threats were made and only wanted to "put down the facts as I knew them".
Evidence was received from Mr. Glenn Herbert who was on the work crew. After performing other duties he came to the locker room at approximately 22:00 and went to his locker. Mr. Collis was sitting on a bench near the door. He noted that the Grievor was present and was standing around the area where the graffiti was written. He didn't notice anything unusual but noted that there was a conversation going on between Mr. Collis and the Grievor. To him the conversation sounded casual. He was only in the locker room for approximately 3 to 5 minutes and then left. He also noted that Mr. Dave Nelson had come from the toilet area of the locker room while he was there. It seemed to him that Mr. Nelson stood and listened to the conversation. He did not think the conversation got more heated and he simply went back to his duties and did not have any subsequent involvement with this matter.
During cross-examination he confirmed that he had not seen Mr. Hunt during any portion of the incident. The only recollection he had was that the conversation pertained to the graffiti. He could not hear Mr. Collis but he did hear the Grievor speaking. At that time the Grievor and Mr. Collis were approximately 2 to 2 1/2 feet apart He prepared a statement which was filed as Tab I of the Union's submission. His statement substantially confirms what he said in evidence.
Mr. David Nelson, a co-worker of the Grievor, who was present at the time of the incident, gave evidence. After performing certain other duties he went to the locker room to use the washroom. He came in and noticed the writing on the lockers but did not see anyone else. In his view the graffiti was just a "practical joke". When he exited from the toilet area and was going to the wash basin he noticed Mr. Collis sitting on the bench near the entrance to the locker room. He did not think that Mr. Collis was in the locker room when he first entered. While he was washing up he noticed the Grievor come in. He had not observed Mr. Herbert. Mr. Collis was sitting on a bench with his head down and there was no exchange of greetings. The Grievor came in, read the graffiti and asked Mr. Collis what was going on. Mr. Collis said that pictures were being taken and that there would be an investigation. There was an interchange between the Grievor and Mr. Collis. The Grievor said that Mr. Cormack had enough problems, didn't need any more and that the graffiti should be erased. Mr. Collis advised that the graffiti was not to be erased, that pictures would be taken and that the matter would be reported to higher authority. The Grievor suggested that the matter be resolved on the shift level and not go forward to more senior management. The conversation continued between Mr. Collis and the Grievor. Mr. Nelson then moved to the entrance of the locker room where Mr. Collis could not observe him. The Grievor had not really moved but "possibly" was a foot or two closer to Mr. Collis than when he originally saw him standing near the lockets. He overhead the entire discussion which had only taken a few minutes and did not hear any threats of harassment to Mr. Collis of his family nor did he hear any comment about the Legion. The Grievor had not bent over, had not made any threatening gestures and did not point his finger at Mr. Collis. The tone of the conversation was completely normal and there were no profanities.
When he saw that the conversation was getting nowhere he and the Grievor left and walked down to the shop floor where each went their separate way. The actual accident had occurred at approximately 22:15 and he did not recall seeing Mr. Herbert in the locker room. He saw Mr. Collis later that evening when punching out but did not have any further conversation with him. He had been asked to make a statement and he did so on August 20. That statement was filed in the submissions of both the Employer and the Union. He initially did not sign the statement. Both the signed and the unsigned statements are found in Tab H of the Union's Brief. He stated that the Grievor had made absolutely no attempt to remove the graffiti from the lockers but simply moved up close enough to look at it. Although he had known the Grievor for a number of years they were not close intimate friends. He had never known the Grievor to be a violent person.
During cross-examination Mr. Nelson stated that he was sure no one else was in the locker room when he first arrived and he had only been in the toilet area a short time. When he emerged he saw Mr. Collis and the Grievor entered a couple of seconds later. He did not see Mr. Hunt in the locker room. He had a clear view of Mr. Collis, who was almost adjacent to him, and was adamant that he was in the locker room area during the entire conversation. He finally saw Mr. Herbert who was at his own locker. It was suggested to him that Mr. Herbert had stated that he was in the locker room the whole time and Mr. Nelson acknowledged that it was possible as he might not have seen him from where he was standing. The entire conversation took some "two or three minutes" and for part of it, he could not have been observed by Mr. Collis.
Although he had been called in later to see the Foreman about a different incident, he did not see the Grievor until the end of the shift. He had not been aware that the Grievor had intervened with Mr. Brunning on his behalf. Although questioned by Management a day or so after the incident, he refused to get involved until he received advice from his Union.
Mr. Denis Trubyk, a Union Executive, gave evidence. On August 13, at approximately 2:00 p.m., he had received a telephone call, from the Grievor, advising that the Grievor had been suspended pending investigation and had been told to stay home, that the Police were going to investigate the matter and the Grievor would be contacted. Mr. Trubyk was in attendance at the investigation carried on by the Employer.
The Grievor gave evidence. He advised that he had been working at the Via Station on a departing train. He ultimately went to the locker room where he noticed Mr. Collis sitting on a bench just inside the entrance and that Mr. Collis "looked sad and was slouched over". He asked what the problem was and Mr. Collis just pointed at the lockers. He saw the graffiti and was shocked at what was written about Mr. Kelly Cormack. He asked Mr. Collis if Mr. Kelly Cormack had seen the graffiti. Mr. Collis had not notified Mr. Cormack and, as far as Mr. Collis knew Mr. Cormack had not seen it. He then simply asked Mr. Collis why he could not erase the graffiti and tell Mr. Cormack about it. At that time he was approximately 8 to 9 feet away from Mr. Collis. Mr. Collis told him he was not to erase it and that pictures would be taken. The Grievor did not observe Mr. Hunt in the locker room. He spent some time trying to talk Mr. Collis out of having the matter proceed to higher levels. He acknowledged he was doing most of the talking but Mr. Collis wanted "no part of me or my ideas". He never came any closer to Mr. Collis than he was when he entered and exited from the locker room. He recalled seeing Mr. Nelson at the wash basin when entering the locker room. He thought that Mr. Nelson was leaving but noted that instead he listened to part of the conversation then moved to the corridor.
In the Grievor's view, he was simply trying to "Calm down the situation". While talking to Mr. Collis he noticed Mr. Herbert walk out of the locker room without saying anything. When his efforts to "calm down the situation" were unsuccessful, he simply walked out. The Grievor was quite upset by the whole incident as Mr. Cormack was a friend of his and was to be part of his wedding party scheduled for the following month.
He got along quite well with Mr. Collis when Mr. Collis first came to Winnipeg and they had a good relationship as they talked about golf However, there had been some words exchanged between himself and Mr. Collis approximately two weeks earlier, at which time he said Mr. Collis used some "wild language". He was asked whether he had ever made any threatening remarks or any other type of comments to Mr. Collis and replied that "on occasion" he tried to calm down various situations. However, in his view, in this incident he had again tried to "calm down" a situation and "became the goat". When the conversation with Mr. Collis ended he and Mr. Nelson went downstairs and went their separate ways. He did not see Mr. Hunt until later. He acknowledged that he had read Mr. Hunt's statement which was Exhibit 4 to the investigative meeting. He couldn't recall the exact words but he said that substantially the incident with Mr. Hunt took place more or less as described but could not recall using the phrase "don't be a hero" or words to that effect. Later he was advised by someone that Mr. Nelson had received 5 demerits for smoking in a prohibited area. That was, in his opinion, unreasonable and he went to see Mr. Brunning and queried as to why such a rule was passed and why the penalty was imposed. The conversation was not heated, however, he expressed his opinion that the decision was neither fair nor reasonable. The only time he again saw Mr. Collis was later that evening at the shift end. There were some further comments between himself and Mr. Collis with respect to another employee and he "might have" made remarks to the effect that Mr. Collis would undoubtedly write-up that employee.
Although he had gotten along fairly well with Mr. Collis at the beginning, in his view, he initially had to "babysit him" as Mr. Collis didn't know his job and was "green". He had "helped him out". He knew Mr. Collis' wife but not his children. He adamantly denied that he had threatened Mr. Collis, Mrs. Collis or their children, and had never mentioned the word "Legion" to him. At the end of the shift he thought the matter was over. The next day he received a call that he was taken off service and that he was to stay home as the Winnipeg Police Department was investigating the incident with Mr. Collis.
The Grievor advised of his efforts to help the Employer, and the public, and was of the view that he was going to get an award for his service.
During cross-examination he acknowledged that he wasn't positive as to whether Mr. Nelson or Mr. Herbert were in the locker room when he entered. He was not particularly watching Mr. Collis after he entered but was concentrating on the graffiti and went over to the lockers. He could not recall any specific conversation about erasing the writing but did have an ongoing conversation with Mr. Collis. He was referred to question 16 of his statement made at the investigation hearing and, at that time, he said that Mr. Nelson and Mr. Herbert were present in the men's locker room during the conversation. That statement had been taken some 9 days after the incident and that's what he remembered "at that time".
The Grievor noted, quite correctly, that none of the witnesses were sure of the exact time of the incident and he maintained that the whole conversation took no more than 3 or 4 minutes. It was suggested that he heard from a Mr. Lisenchuk that 5 demerit points had been assessed against Mr. Nelson but he did not agree as to how the information about Mr. Nelson's demerits points got to him. He acknowledged that he did go to the Foreman's office to argue against the rule and the penalty. He was not a Union Steward at the time of the incident and did not hold any official Union position. He got involved in the involved concerning Mr. Nelson as he thought the rule was unfair to smokers.
He never heard from the Police Department and stated that he did not know, or understand, the nature of the complaint that was made against him. His next involvement was the investigation meeting held by the Employer.
Both Mr. Wesley and Mr. Rosner, in argument, pointed out the discrepancies in the evidence.
Mr. Wesley noted, for example, that the evidence of the Grievor, Mr. Nelson and Mr. Herbert varied with respect to who was in the locker room, at what time the incident took place and the physical distance between Mr. Collis and the Grievor. He noted that it was very unlikely that Mr. Nelson heard the first part of the conversation between Mr. Collis and the Grievor as the distance between them and the toilet cubicle which Mr. Nelson was using was a distance of some 15 feet to 20 feet from the incident.
Mr. Wesley noted that Mr. Nelson and the Grievor were friends and that later that same evening the Grievor got involved in arguing with Mr. Brunning over the imposition of the demerit points against Mr. Nelson. The Grievor also made remarks to Mr. Collis at the end of the shift concerning an incident with another employee.
Mr. Wesley reviewed, in some detail, the evidence of the relationship between the Grievor and Mr. Collis and noted that the Grievor had claimed that he "babysat" Mr. Collis and was responsible for teaching Mr. Collis the requirements of the position. In his view, the Grievor resented the authority of Mr. Collis and had become extremely agitated, not only over the graffiti directed against a friend of his, but also because Mr. Collis would not let him erase it, would not confine the incident to the employees on that particular shift and wished to send it through the whole discipline process. He pointed out that Mr. Nelson's evidence was that when he arrived at the locker room he didn't see anyone else present. This was in conflict with the evidence of all of the other parties. Mr. Herbert on the other hand said that he saw Mr. Collis and the Grievor in the locker room but did not see Mr. Nelson. Mr. Hunt's presence in the locker room was not confirmed by anyone else.
Without further reviewing all of the inconsistencies, certain facts are beyond dispute. At approximately 22:10 the Grievor, Mr. Collis, Mr. Herbert and Mr. Nelson were all in the locker room. The time span for the incident which lead to this arbitration is between 3 and 5 minutes. It also occurred several months ago. There is no question that the whole issue has become one of emotion and that the testimony of the witnesses is affected, however innocently and well-motivated, by their particular feelings and roles in the incident.
There is no question that the entire discussion between Mr. Collis and the Grievor took place within a fairly close area. Mr. Collis was sitting on a small bench near the entrance of the locker room. The graffiti was on a bank of lockers which were located approximately 10 to 12 feet away from that bench. The Grievor had approached the graffiti to read it and his discussion with Mr. Collis commenced when they were approximately 10 to 12 feet apart. The width of the corridor between the entrance to the locker room and the bank of lockers was approximately 3.5 feet.
Accordingly it is clear that the entire incident took place in an area of approximately 35 square feet. For the Grievor to exit the room he would have had to leave the bank of lockers and walk towards Mr. Collis. This would have put him approximately 2 to 3 feet away from Mr. Collis at the time of his exiting from the locker room. The exit door I am referring to is the door closest to where Mr. Collis was sitting on a bench.
I am completely satisfied that, at the very least, an animated conversation between Mr. Collis and the Grievor took place. The Grievor felt extremely agitated by the nature of the graffiti and, in view of the deteriorating relationship between himself and Mr. Collis, I have absolutely no doubt that he was extremely vocal in his remarks. I have observed him giving evidence and it may suffice to say that he clearly showed his emotions.
I am satisfied however that the Grievor did not make any actual attempt to erase the graffiti. He simply requested that it be removed.
On August 15 the Grievor had received a letter requiring him to provide an employee statement in connection with two matters. These were as follows:
1. Respect to the graffiti markings found on two (2) sets of employee clothes lockers in the men's change rooms Second Floor, Winnipeg Maintenance Centre on August 12, 1991 at approximately 2200K and your attempts to erase those same markings.
2. Your insubordination and threatening remarks made to Work Centre Supervisor B. Collis on August 12, 1991 at 2210K resulting in the filing of Report #163309 registered at District #06 with The City of Winnipeg Police Department on August 13, 1991."
As stated previously I have concluded that the Grievor did not actually attempt to erase the graffiti.
I am satisfied from the evidence that the Grievor did act in an insubordinate manner towards Mr. Collis. He made certain suggestions to Mr. Collis which Mr. Collis did not agree with. Mr. Collis was the person in authority and was following the procedures dictated by his particular Supervisor and by the Employer generally. If the Grievor was dissatisfied with the instructions, or the decision of Mr. Collis, then he may have had recourse to the grievance procedure. I do not feel it necessary to write a treatise on the principles of "Obey now - Grieve later". I also note that the Grievor was not a Union Steward nor did he hold any position with the Union which might have allowed him some privilege to enter into extended dialogue (in a more appropriate fashion) with Management as to the rights of members of the bargaining unit. There is no question in my mind that the Grievor is a man who has very strong feelings.
The Employer has submitted the case of Re British Columbia Railway and Canadian Union of Transportation Employees, Local 6 8 L.A.C. (3d) at 233. I will comment further on this case, however, at page 249 Arbitrator Hope said as follows:
The now celebrated statement of Professor Shulman that an industrial plant is not a debating society does not contemplate a work environment that is dictatorial or require employees to be submissive. The balance to that statement was given recently by Professor Swan in Canada Packers, Inc. and United Food & Commercial Workers, Local 114P, October 22, 1982, unreported. He said, " ... an industrial plant is not a debating society. On the other hand, neither is it a para-military organization ... .
As that observation implies, discipline in an industrial plant is maintained by the exchange of a decent level of respect between supervisory and bargaining unit employees. Respect, in that context, is not extended or withheld on the basis of personalities. It is the necessary etiquette of people who must work together and who must accept their diverse roles and responsibilities. It is no answer, as the Grievor implied, to say, "I do not respect my supervisor." It is his obligation as an employee to extend respect. If he cannot do so he must leave. (Emphasis added)
After considering the above and the evidence I am satisfied that the Grievor acted in an insubordinate manner to Mr. Collis.
However the demerit marks were assessed for both "insubordination and threatening remarks". Mr. Collis has stated unequivocally that the Grievor did make threatening gestures to him and did express threats against Mr. Collis and his family. No other individual in the locker room heard those threats expressed. I note that Mr. Herbert may have already left the locker room and that Mr. Nelson was in a toilet cubicle or at the washstand or standing just outside of the door into the locker room when the threatening remarks were allegedly made. I have some difficulty in concluding that Mr. Nelson heard each and every word of the discussion. As mentioned earlier, I am satisfied that at one stage of the dialogue between the Grievor and Mr. Collis, even if it was when the Grievor was leaving the room, they were in very close proximity. As mentioned in my review of the evidence a report was made by Mr. Collis to the Winnipeg Police. On August 13 he made a supplementary report to the Employer which was filed as Exhibit 4 to the original investigation. This reads as follows:
At 21:30, on Aug. 13/91 I made a complaint to the Winnipeg Police Dept. regarding the threats made to me and my family of harassment by Pipefitter Don Jack.
The complaint was made at Dist. #6, 1350 Pembina Hwy, Winnipeg MB. The file number is 163309 and it was given to the constable with the badge #464.
I would like to add that instructions were given by me that the W.P.D. make no contact with Don Jack for fear of repercussion against my family.
He instructed the Police not to take any further action because he was afraid of repercussions against his family. The actual report was not filed at this bearing, however reference is made in Mr. Collis' statement to an incident number and I am satisfied that the report was made, I also note that it was made some 24 hours after the incident occurred. On the totality of the evidence I am satisfied that the Grievor, in a flush of anger, made some type of threatening remark to Mr. Collis. However, I do not think that under all of the circumstances the threat was serious. I am confirmed in my ... by the fact that the Police were instructed by Mr. Collis not to do anything further with respect to the matter and not to contact the Grievor. Additionally the other witnesses on behalf of the employer could not specifically recall when they were told about the threat. It seems to me that if the threat had been serious, immediate action would have been taken by Mr. Collis in the form of immediately reporting it to his Supervisor who, in time, undoubtedly would have acted on same. However the fact that the threat may not have been particularly serious, and may have been made in a flush of anger, does not excuse same.
The Union also took strong exception to the investigative procedures conducted by the Employer. In particular, it was alleged by Mr. Rosner at the arbitration hearing and by Mr. Trubyk at the investigative hearing that the statements of Mr. Nelson and Mr. Herbert were not made available to the Union. I note, however, that they were filed as Exhibits to the transcript of the proceedings. Whether they were signed or not signed is, in my view, irrelevant as they were the same except for the signature. I note that Mr. Nelson's statement was dated August 20 and the investigative hearing took place on August 21. Mr. Herbert's statement was dated August 21, 1991.
The union referred me to the decision of Arbitrator Beck in the case involving Canadian Pacific Limited (Telecommunications Department) and Canadian Telecommunications Union, Division 1 of the United Telegraph Workers. This decision is unreported but is dated in January 1976. The case sets forth five objections that were made to those proceedings. These were as follows:
1. no transcript of adequate records of the hearing was kept;
2. denial of proper assistance from a co-worker;
3. inadequate notice;
4. denial of right to cross-examine witnesses;
5. denial of right to call witnesses.
In my view those are appropriate criteria. The essence of any such hearing is that the employee not be denied natural justice. A careful review of that case shows that there were certain irregularities, only two of which prompted Arbitrator Beck to set aside the decision. For example, in dealing with item I he held that he did not think that the failure to have an independent transcript was such a defect as to render the investigation nugatory. With respect to denial of proper assistance from a co-worker he held that, although the co-worker may not have been given enough latitude to assist in the investigation, he did not find that lack of latitude constituted a complete hindrance or blockage as to set it aside for that reason. With respect to the inadequate notice he noted "although irregular, I find the notice contained was adequate" and stated "my reading of the case on inadequacy of notice leads to the conclusion that a degree of latitude is allowed in these matters".
One of the most significant factors to Arbitrator Beck was that there had been a denial of the right to cross-examine witnesses. He stated "on this ground alone I hold that there was not a proper investigation under Article 2501 and that any discipline imposed consequent upon such an invalid investigation is itself invalid". Similarly the grievor, in that case, was denied the right to call witnesses and that factor equally influenced Arbitrator Beck who said "this right was not granted here and is sufficient to render the investigation a nullity." Those rights were not denied in the instant case.
A review of the transcript of the investigation hearing shows that it was reasonably fair and complete. It must be remembered that such an investigation hearing is not conducted by lawyers in a court of law. There must be latitude permitted in the proceedings. However, no essential rights can be taken away. I note that the Grievor was present in person and was accompanied by a Union representative. Question 6 shows that he was given proper notice and question 7 shows that he was permitted a representative. He was shown pictures of the graffiti, (question 13), and also of statements made by Mr. Collis and was asked to comment on same (question 14).
He was given the opportunity to elaborate on the portions of the statement he thought were improper (question 15) and was given the full opportunity to give his side of the story. With respect to the report to the Police Department he was asked if he was aware of same and was given the opportunity to comment. He was asked (question 28) if he was satisfied as to the conduct of the hearing and he replied in the negative. In question 29 he stated his reasons why. Mr. Trubyk, his representative, was asked if he had any comments to make (question 32) and he responded at some length. I note from his answer that he did have an unsigned copy of Mr. Nelson's statement. Accordingly the statement was at the hearing.
Admittedly Mr. Herbert's statement (quoted above) does not appear to have been filed at the time but, with all due respect, there is nothing of any consequence in that statement. In my view, the totality of the proceedings, although there may have been some minor flaws, was not conducted in an unjust manner or in a manner which denied the right of natural justice. I hasten to add that any investigatory proceeding conducted by an employer, by its very nature, leaves open a question of impartiality and the parties should try and present all relevant evidence. I do not conclude that the hearing was flawed to the extent that anything arising from it would be void ab initio and invalid.
In view of all of the above I have concluded that the Grievor was insubordinate and did make threatening remarks to Mr. Collis. The question then before me is whether the penalty imposed by the Employer was reasonable. Both the Employer and the Union have submitted a number of arbitral precedents. I will make brief comments respecting some of them. I should note that I have also considered the provisions of the Canada Labour Code and, in particular, Section 60(2) thereof which gives an arbitrator the power to substitute penalties.
The Employer imposed 40 demerit points. This amount, coupled with his previous total of 30 points, gave him a total of 70 and under the provisions of Exhibit 5 he was discharged as 60 demerit marks were accumulated.
Arbitrator Weatherill, in the decision between CP Rail and Canadian Council of Railway Shopcraft Employees and Allied Workers, relating to the grievance of D. Rivest, considered the case where an assessment of 40 demerits was imposed as a result of the "somewhat heated conversation" between that grievor and his foreman during which the grievor pointed his finger at the foreman and waived his arms in a way that the foreman reasonably considered to be threatening. The foreman took hold of the grievor's wrist in a defensive move and, as a result of which, fell backwards against the wall and then to the ground. He concluded that the grievor had behaved in an abusive and a violent way towards the foreman. Accordingly he held that the assessment of 40 demerits for that offence did not go beyond the range of reasonable disciplinary responses.
In British Columbia Railway and Canadian Union of Transportation Employees, Local 6, (supra), Arbitrator Hope reviewed the history of the Brown System and concluded that, notwithstanding the system had been in effect for many years, an arbitrator still had the right to substitute penalties. The grievor had written graffiti which was insulting to management employees on the washroom walls. He was assessed 20 demerit points for that incident. In addition to that incident the grievor was assessed a further 20 demerit points for having been absent without leave. He subsequently committed a further offence for which 60 demerit points were assessed for insubordination. This mandated his being dismissed as he had a total of over 60 demerits. The grievor got involved in a discussion between Management and a Shop Steward and, made aggressive moves against the Foreman. A fight practically ensued. Arbitrator Hope considered the distinction between abusive talk and insubordination and said at pages 245 to 246 as follows:
But I reject the union's submission that the incident in question was simply an example of "shop talk" that had been accepted for a lengthy period of time in the work equipment shop. In my view there was an inference to be drawn other than the fact that the grievor had no respect for authority, had no perception that he could not wander around the plant as he pleased challenging his supervisors and was both insolent, defiant and disrespectful in the incident in question.
In many ways the conduct of the grievor was qualitatively more serious than an employee refusing to obey a direct order. The conduct of the grievor went directly to the credibility of supervision itself and indicated an attitude on the part of the grievor that he could behave as he pleased. He both implied and expressed the view that the quality of supervision in the shop was unacceptable and he was both angered and alienated when no steps were taken to resolve the situation to his liking. The presence of such an attitude expressed by so forceful a personality constituted a fundamental challenge to the discipline of the workplace and the right of management to supervise that activity. (Emphasis added)
Arbitrator Hope concluded that he could not find any mitigating factors that would dictate a lesser penalty and declined to exercise his discretion in favour of the Grievor. He also noted at page 246 as follows:
I am bound to say that the principal factor that dictates against a mitigation of the penalty was the evidence of the grievor and the manner in which he gave it. Absent from his evidence was any sense of wrongdoing. He was arrogant and continued to press the view that he had been wrongly treated. When the issue of whether he had apologized for his conduct arose, the grievor said that he had considered and rejected an apology unless the railway was prepared to apologize to him for what he characterized as his harassment and poor treatment by management. (Emphasis added)
Arbitrator Séguin, in Brotherhood of Railway Carmen of Canada and Via Rail Canada Inc, concluded that the charge of threatening a supervisor with violence merited an assessment of 15 demerit marks.
In Canadian Pacific Limited and Transportation Communications Union (case No. 20881) 60 demerit points had been imposed against that grievor as the result of "the abusive operation of a forklift during a fit of temper which also involved disrespectful and threatening comments to a supervisor". As a result the amount of demerit marks was reduced to 35 for incidents of April 3, 5 and 11 leaving him with a total of 40 demerit points. The employee was reinstated without compensation.
The Union referred me to [CROA] case no. 1868 by Arbitrator Picher in Via Rail Inc, and CBRT. In that case a grievor was assessed 10 demerit marks for dereliction of duty and making obscene and threatening remarks to a supervisor. Arbitrator Picher concluded that the evidence did not establish that there had been a dereliction of duty, but upheld the imposition of the 10 demerits as being within the range of appropriate penalties for the Grievor's other action.
Even though the Grievor admits no wrongdoing, I am of the view that the imposition of 40 demerit marks for the incident on August 12 was somewhat excessive. As stated earlier, I do not consider the threat as being serious in the sense that it would ultimately be carried out. However, the Grievor committed an offence for which he must bear responsibility. No representative of management or, for that matter, any employee, should be subjected to threats from fellow employees. That of conduct is intolerable.
I am exercising my discretion in reducing the amount of demerit points from 40 to 25. This will place the Grievor in a position of having 55 demerit marks on his record. Obviously his long-term employment with the Employer is in serious jeopardy and at risk.
I am exercising my discretion in favour of the Grievor because, finally common sense prevailed, and he walked away without getting involved in a physical fight or carrying out his threats. The Grievor is a man with a temper which he must learn to control. As mentioned earlier, he was not a Union Steward or a Union official and had absolutely no right to become involved in this situation. He was entitled to express his opinion – he did so and that should have been the end of it. Instead, he chose to carry on in an insubordinate and abusive manner.
One of the purposes of collective bargaining is to provide an avenue for employees to have their complaints considered by Management in a reasonable and proper manner. It is for that purpose that a grievance procedure is established. The Grievor, instead of relying on that procedure, has chosen to make himself a spokesman on behalf of his co-employees. If his co-employees desire him to be their spokesman then there is a procedure for electing him as their representative. Such is not the case here. A perusal of the previous incidents which caused the previous assessment of 30 demerit marks which penalties show that similar conduct on the part of the Grievor is not unknown. The Grievor, in very simple terms, should simply learn to mind his own business, control his temper and, in even blunter terms – keep his mouth shut about matters that do not personally affect him. If he does not, he will cut short his career with the Employer.
Although the reduction of demerit marks to 25 will reduce his total to 55, which is below the level of mandatory dismissal, I do not feel that there should be any compensation or benefits for the Grievor for the period of time in which he was off work. I accordingly conclude that in addition to the 25 demerit marks he should be suspended from the date of the incident, i.e. August 12, 1991 for a period of six months, i.e. to February 11, 1992, at which time he shall, subject to his place on the seniority list of the Employer, be reinstated at work. He is not entitled to any compensation for salary or other similar benefits during this period. I have made some reference to seniority dates as it is common ground that a number of employees have been laid off.
One of the factors which have influenced me to exercise my discretion in favour of the Grievor was his acknowledged technical skills and, until very recently, his good work record. I am giving him another chance to maintain a career with the Employer. He has a role to perform in connection with his duties. As I stated earlier in my quotation of the decision of Arbitrator Hope, that role mandates a certain amount of respect for those whom the Employer has designated a supervisory employee. If the Grievor is not prepared to accord that degree of respect it will soon become apparent and he will find that his career with the Employer has become short-lived.
I wish to thank Mr. Wesley and Mr. Rosner for their full and complete presentation of the issues in this case which were of great assistance to me.
I remain seized of jurisdiction for the purpose of clarifying, or amplifying, any portion of this Award provided the parties should desire same. Each of the parties will jointly share my costs.
DATED at the City of Winnipeg, this 15th day of January, 1992.
(sgd) Jack M. Chapman, Q.C.