SHP 361

IN THE MATTER OF AN ARBITRATION

BETWEEN

VIA Rail Canada Inc.

AND

International Brotherhood of Electrical Workers SYSTEM COUNCIL 33

re Grievance of Jean-Guy Beauchamp Dated June 22, 1990

 

 

SOLE ARBITRATOR: Harvey Frumkin

 

 

There appeared on behalf of the Union:

Me. H. C. Lehrer

F. Klamph System General Chairman, International Brotherhood of Electrical Workers, System Council 33

 

There appeared on behalf of the Company:

Me. Nicola Di Iorio

K.A. Pride Manager, Labour Relations, VIA Rail Canada Inc.

 

 

A hearing of this matter was held at Montreal on March 13, 1991, August 5, 1991, May 11, May 12 and May 13, 1992.

 

AWARD

The grievance, which bears date June 22, 1990, contests the discharge of the Grievor for accumulation of ninety demerit marks, the final sixty of which were assessed following an incident which occurred on June 8, 1990, during the course of which the Grievor is alleged to have threatened a fellow employee with a knife. The parties were unable to concur upon the content of a joint statement of facts and issues, so that the Arbitrator will proceed to formulate the issue to which the grievance gives rise and set out the facts as the Arbitrator has determined them from the copious evidence presented over five days of hearing.

The Grievor is alleged to have threatened a fellow employee with a knife during the course of his work shift on June 8, 1990, and to have verbally threatened to kill that same employee on two distinct occasions later on during the same day. The Grievor denies that he threatened the fellow employee, either with a knife or verbally, and contends that in any event, the Company grossly overreacted to what he characterized as a minor difference concerning work procedures. The issue which the Arbitrator must address, therefore, concerns a matter of the justification for the demerit marks assessed and consequent dismissal.

The Grievor, at the time of the incident, was classified as electrician and had been in the employ of the Company since the month of June 1978. On June 8, 1990, he commenced his work shift at 7:00 A.M. and was assigned to inspect an air conditioning compressor motor on car 5731 at the Montreal Maintenance Centre. Two fellow employees, a Mr. Maurice Kucey and a Mr. Brian Beaudoin, working the same shift, were assigned at the same time to carry out what was referred to as an E inspection upon the interior of the same unit.

By approximately 9:30 A.M. that morning the Grievor had determined that the compressor motor required replacement and he reported this fact to Mr. Pierre Cool, his foreman. Mr. Cool then proceeded to assign Messrs. Kucey and Beaudoin to replace the compressor motor insofar as the Grievor, by reason of a physical condition, had been on light duty assignment. In turn, Mr. Cool instructed the Grievor to perform the interior inspection of the cooling system of car 5731.

The evidence of what subsequently transpired is confused and contradictory in that important discrepancies appear in the testimony of almost every witness who came forward. In this regard, in certain instances, even the versions of certain witnesses are inconsistent when viewed against what such witnesses reported at the time and what they stated at the hearing. But what does clearly emerge from the evidence is that a series of exchanges over a prolonged period did take place involving the Grievor, on the one hand, and Messrs. Kucey and Beaudoin on the other, commencing shortly after 9:30 A.M. and extending over the course of the entire shift.

The evidence revealed that the Grievor was working in car 5731 and at a moment in time took issue with the manner in which Messrs. Kucey and Beaudoin who, by that time, were working under the unit, resolved to remove the compressor motor. Observing what was being done, the Grievor insisted, in mocking terms, that Messrs. Kucey and Beaudoin were going about the removal of the compressor motor in the wrong way. It would seem that the three employees had been exchanging words from the moment that the assignment to change the compressor motor had been directed to Messrs. Kucey and Beaudoin that morning.

Unwilling to endure what they regarded as the Grievor's unwarranted interference in their work, Messrs. Kucey and Beaudoin left the work site on at least two occasions before the lunch break for purposes of lodging complaints with Mr. Cool upon the matter of the Grievor's persistent meddling in their work. On each such occasion Mr. Cool instructed the Grievor to remain inside the unit where he had been assigned inspection duties and to refrain from interfering in the work assignment which Mr. Cool had directed to Messrs. Kucey and Beaudoin.

The Grievor, however, was intent upon leaving the unit from time to time to observe the work being performed by Messrs. Kucey and Beaudoin, most probably because the unit in which he was working was being buffeted back and forth due to the manoeuvres in which Messrs. Kucey and Beaudoin were engaged. Each time Messrs. Kucey and Beaudoin took offense to what they regarded as interference in their work on the Grievor's part. In point of fact, Messrs. Kucey and Beaudoin decided to work through their lunch period for no other reason than that the Grievor would be taking his lunch over that period and so they would be able to remove the compressor motor without further interference. It must be said that Messrs. Kucey and Beaudoin did succeed in removing the compressor motor during this latter period.

Some time between 13:00 and 13:30 hours Messrs. Kucey and Beaudoin were in the process of installing the new motor compressor. For whatever reason the Grievor, who was working inside, exited the unit when Mr. Kucey, who was working at a distance of some fifteen to twenty feet away and who was separated from the Grievor by a forklift which was being deployed as a platform to assist in the work being performed, would appear to have suddenly approached the Grievor and to have warned the Grievor to refrain from further interference in his work. The Grievor, who at that moment was holding a pen knife which he habitually carried and used to skin wires and clean his fingernails on occasion, is alleged by Mr. Kucey to have pointed the knife at him and to have uttered the words "I'll kill you". Mr. Kucey immediately returned to his work place and inquired of Mr. Beaudoin as to whether the latter had observed what had just occurred. Although Mr. Beaudoin had not observed the incident he urged Mr. Kucey to lodge a formal complaint over the alleged threat, whereupon both Mr. Kucey and Mr. Beaudoin proceeded to report to Mr. Cool.

Mr. Cool referred Messrs. Kucey and Beaudoin to Mr. M. Gagné, the contremaître d'atelier, who, following his own inquiry, instructed the two to proceed to Mr. Serge Bilodeau, the surintendant atelier de maintenance. Mr. Bilodeau then initiated his own inquiry, which included the questioning of the Grievor. Finally, some fifteen minutes prior to the end of the Grievor's scheduled work shift, the Grievor was sent home pending further investigation.

According to Mr. Kucey, the Grievor, while in the course of leaving Mr. Bilodeau's office, once again threatened to kill him, an utterance which shook Mr. Kucey considerably. In the result, Mr. Kucey upon leaving Company premises at the end of his own work shift, requested that he be escorted for his own protection and in point of fact was accompanied by Mr. Gagné to his vehicle in the Company parking lot. Mr. Kucey added, during the course of his testimony, that he was threatened once again that same day by the Grievor who telephoned him at his home, a threat which prompted him to summon police for purposes of reporting the occurrence. It should be observed, however, that Mr. Kucey subsequently declined to press charges and no formal complaint was lodged with authorities.

The Arbitrator accepts that an exchange occurred in the work place on June 8, 1990 between the Grievor and Mr. Kucey involving a pen knife and during which threats were uttered, and that similar threats were directed at Mr. Kucey on more than one occasion that day. But in characterizing the events of June 8, 1990, it is important to appreciate what transpired within the context of those events and with due regard to the principals, their relationship, their intentions and the subject matter which sparked the dispute.

The Grievor and Mr. Kucey were not strangers to each other. They had known each other for many years and at one time were close friends. Mr. Kucey had sought out the Grievor's assistance and advice on many an occasion in the past when he was experiencing problems at a personal level. He had visited the Grievor's home on more than one occasion and in his own words, described the Grievor as a man "with a big heart".

As it happened, June 8, 1990 was a hot and muggy day. The work which Messrs. Kucey and Beaudoin were assigned was not pleasant work. It was arduous, physically taxing and was to be performed beneath a railway car. At the same time the Grievor, who had been assigned work on the same car, had been known to behave in a manner that could be irritating to fellow employees on occasion. There is evidence that certain employees preferred not to work with the Grievor at all.

The Grievor took issue with the procedures which Messrs. Kucey and Beaudoin had embarked upon for removal of the compressor motor and it would seem, with some justification. They had chosen to remove the compressor motor by resort to a method that every witness acknowledged was clumsy, awkward and inappropriate to the circumstances. In taking such issue the Grievor was anything but delicate, resorting to ridicule and scorn to express his disapproval with the manner in which Messrs. Kucey and Beaudoin were proceeding.

It is quite understandable, given the circumstances which the Arbitrator has described, that Messrs. Kucey and Beaudoin became irritated to the extreme at what they regarded to be interference on the Grievor's part in their work. As the Arbitrator had stated, they were working under difficult conditions to which it would be an understatement to say that the Grievor was most insensitive. They complained to their foreman on at least two occasions, but the Grievor persisted in accentuating what he considered to be their inept approach to their work. Thus, by 13:00 hours on the day in question, Mr. Kucey who, by his own admission is a very nervous person, was in a state such that he would have been inclined to take offence to the Grievor's mere presence anywhere near him.

It is against such a background that the incident to which the grievance refers occurred. The Grievor had simply exited from the unit to the platform at the foot of the steps of the unit. He already had his pen knife in his hand before he could have had any notion of Mr. Kucey's intervention. He habitually carried the pen knife and the evidence is to the effect that he was frequently observed cleaning his fingernails with it.

The circumstances were such that the fact of the Grievor having the pen knife in his hand was in no way related to any intended exchange with Mr. Kucey who, entirely unprovoked, approached the Grievor from some distance. In this regard it is to be assumed that Mr. Kucey had been so sensitized to the Grievor's presence by the events of that morning, that he believed that the Grievor's purpose in exiting the unit could only have been further harassment and interference in his work. It was for this reason that Mr. Kucey, of his own accord, as he testified at the hearing, suddenly decided to approach the Grievor simply to warn him to refrain from any interference in the work being performed by Mr. Beaudoin and himself.

The Arbitrator accepts that the Grievor's response was as Mr. Kucey described it. But the response was strictly a verbal one and the pen knife just happened to be apparent while the threat was uttered. As far as the Arbitrator is concerned, the pen knife played no role in the threat, nor was there any intention that it play a role. Mr. Kucey may have perceived it as intimidating, but such a perception could in no way have been justified in the circumstances. The Grievor did not take out the pen knife for the occasion, nor was it exhibited in an offensive or aggressive manner. It was the Grievor who was approached by Mr. Kucey and not the reverse and Mr. Kucey was quite able to return forthwith to his work site to confer with Mr. Beaudoin. The utterance of the Grievor, in whatever form it may have taken, given its context and the background circumstances, simply does not take on the form of a threat that should have been taken at face value.

Nor does the Arbitrator doubt the evidence of Mr. Kucey upon the matter of subsequent threats. But these were uttered after the fact, when a man's job had suddenly become the issue by reason of a course of action that he believed to be completely unwarranted. One such threat was uttered in the heat of the moment, minutes after the Grievor was instructed to return home, and a second threat uttered during the course of one or a series of telephone calls over which the Grievor invited Mr. Kucey to accompany him and his wife to be for a coffee to discuss the matter. On the whole, the Arbitrator accepts the utterances attributed to the Grievor, but upon close scrutiny and appreciation of the context and individuals involved, believes quite strongly that they amounted to little more than empty words. This is not to say that the utterances were not serious and that words, whether intended or not, can be intimidating, but the Arbitrator cannot say that there was any real or genuine intent on the Grievor's part to in any way harm or injure Mr. Kucey.

After due consideration, the Arbitrator perceives the events of June 8, 1990, as an unfortunate exchange which developed on a hot day between an employee who lacked the good sense to realize that his ill-conceived commentary could only serve to annoy, irritate and incline fellow employees working under arduous conditions to overreact at what would inevitably become a breaking point and another employee who, by his nature, would have been particularly sensitive to such commentary. When the breaking point was reached the result was an uncalled for warning by Mr. Kucey and an uncalled for threat uttered by the Grievor, from which point the exchange took on a new and unjustified perspective when management was called on to investigate what really amounted to no more than a petty dispute between two somewhat immature individuals over work procedures. The consequences, of course, were most unfortunate for the Grievor and as far as the Arbitrator is concerned, were somewhat disproportionate to the gravity of what actually took place.

The Company's approach was to eliminate a problem with which it was confronted which involved two employees unable to work with one another to the point of threats of bodily harm being uttered by one of them. In this regard, it reacted by assessing sixty demerit marks against the employee who uttered the threats, a decision which carried with it automatic dismissal and removal of the offender from the work place. While the Company's decision did resolve the problem in the sense that its effect would be to eliminate the possibility of further altercation between the protagonists in the work place, the Arbitrator does not believe it was appropriate given the essence of what actually took place.

The Grievor was an employee of twelve years' standing. He was not a violent man, although his record is far from exemplary and does manifest evidence of occasions in the past when his manner of dealing with fellow employees was abusive and insulting. This very manner and approach of the Grievor, as exhibited during the course of the incident which led to his discharge, was at the root of the incident which occurred on June 8, 1990, so that the Grievor must shoulder most of the blame for what transpired thereafter. This said, however, this is not a case of an employee who introduced a weapon into the work place for the purpose of threatening another or who uttered threats with any intent or conviction. Mr. Kucey, sensitized by what had taken place earlier that morning, may have perceived the threats as serious, a perception which was highly subjective and certainly questionable. The decision of the Company is based upon what it regarded as a serious threat accompanied with an offensive weapon and a corresponding intent, but as far as the Arbitrator is concerned, these elements, grave as they would certainly be, are simply not present. For these reasons the Arbitrator is inclined to believe that the incident was blown out of all proportion in terms of its gravity and that the assessment of sixty demerit marks and the consequences that such assessment carried were both unjustified and inappropriate to the circumstances so that reinstatement is clearly indicated.

The Arbitrator would propose, however, that despite the long period which has elapsed since the date of the discharge, that reinstatement should not be accompanied by an order for compensation. This is because the Grievor, whose insensitivity and failure to realize the effects that his abusive and irritating commentary would have on fellow employees, created the circumstances which gave rise to his dismissal. The fact that the Grievor may not have appreciated the impact of his comments on Messrs. Kucey and Beaudoin would by no means excuse his conduct over the course of the entire morning of June 8, 1990. It was such a course of conduct that got the Grievor into trouble on a number of prior occasions and it has to stop. The Grievor had become a problem for the Company through his own fault, which is why it responded as it did. The Arbitrator does not believe that in the circumstances the Company should be further penalized through a monetary condemnation.

For the foregoing reasons, the grievance is maintained in part; the assessment of sixty demerit marks imposed upon the Grievor in response to the incident of June 8, 1990, is reduced to an assessment of twenty demerit marks, so that fifty demerit marks shall stand on the Grievor's disciplinary record; the consequent discharge of the Grievor is accordingly annulled and set aside; the Company is ordered to reinstate the Grievor into the position which he held on June 8, 1990, effective on the first Monday following receipt of the present decision by it; the Grievor will be considered as having been suspended from June 8, 1990 to the date of reinstatement; there will be no order for compensation.

DATED AT MONTREAL, June 04, 1992.

(sgd) Harvey Frumkin

Arbitrator