SHP 367

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

National Automobile Aerospace and Agricultural Implement Workers Union of Canada

GRIEVANCE RE L.H. BOURQUE

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

Tom Wood System President, Local 100

J. R. Moore-Gough General Chairman, Great Lakes Region, Local 100

 

 

There appeared on behalf of the Company:

W. D. Agnew Manager, Labour Relations, Moncton

B. Kingston Supervisor/Car, Moncton

J. E. Vick Labour Relations Officer, Moncton

 

A hearing in this matter was held in Montreal on July 13, 1992.

 

AWARD

This is a grievance against discharge for an accumulation of demerits. The Dispute and Joint Statement of Issue filed at the hearing are as follows:

DISPUTE:

Appeal of the assessment of 10 demerits and subsequent discharge to the record of Carman L.H. Bourque of Moncton, New Brunswick, for accumulation of demerits.

JOINT STATEMENT OF ISSUE:

Carman L.H. Bourque was assigned to the 16002400 hour shift at the Moncton Gordon Yard Car Shop. By notice dated October 21, 1991, Mr. Bourque was advised to attend an investigation on October 23, 1991 with regard to his performance and conduct on October 16, 1991.

Following the investigation, the Company issued a CN Form 780, dated November 18, 1991 and effective October 16, 1991, in which Mr. Bourque's record was assessed 10 demerits for: "Failure to obtain permission from your supervisor to leave the work area and directing profane language at a Company Officer." 71/2 brought the total demerits on Mr. Bourque's record to 65; and as a result, effective November 19, 1991, he was discharged for accumulation of demerits.

On December 12, 1991, the Union progressed a grievance appealing the discipline and discharge.

The Union contends that the discipline and discharge assessed Mr. Bourque were unwarranted, and requests the demerits be removed from his record. The Union requests Mr. Bourque be reinstated and made whole for all lost time.

The Company disagrees and has declined the Union's request.

***

The facts material to the grievance are not in substantial dispute. The grievor has some thirteen years' service with the Company, and was employed as a carman at the Gordon Yard Car Shop when the incident giving rise to the assessment of ten demerits occurred on October 16, 1991. It is not disputed that on that occasion, some fifteen minutes before the end of his tour of duty, the grievor was observed by Supervisor B. Kingston on the upper level of the shop, proceeding in the direction of the locker room. It appears that at the same time there were other employees on the stairway leading to the upper level all of which was apparently visible to the supervisor. It is common ground that the employees are not permitted to leave the shop floor level and proceed to the locker room on the second level without the permission of a supervisor. The rule appears to have been established to control the movement of employees and avoid abuse of the rules by employees who would too readily leave the shop floor in the final minutes of their shift.

On October 16, 1991 Mr. Bourque's shift ended at 2400 hours. At 2345 hours, when Mr. Kingston saw him proceeding in the direction of the locker room, he called out and directed him to return to the floor. The grievor turned to his supervisor and said "Fuck off!" and continued on his way. It is not disputed that his response was overheard by other employees in the vicinity, and was clearly heard by the supervisor to whom it was addressed.

Much of the evidence bears on the reason for Mr. Bourque's excursion to the locker room, which was admittedly without permission. He maintains that it was to obtain a copy of the dental plan pamphlet, to answer questions which a co-worker had about its contents. It is not disputed that shortly after the incident Mr. Bourque presented himself in the lower office where Mr. Kingston was located. He then had a piece of paper or document in his hand and said to Mr. Kingston "Do you have a problem?" and expressed concern that he was not allowed to go to his locker to obtain a piece of paper without permission. The supervisor responded that he did have a problem, in that Mr. Bourque had openly violated a generally known rule, and that he was not supposed to go to the upper level without the permission of a supervisor.

The Union's representative submits that the comment made by Mr. Bourque to his supervisor is in the nature of "shop talk" and that it was not intended as an expression of disrespect or insubordination. That view is plainly not shared by the Company. A written report filed by Supervisor Kingston on October 17, 1991 reflects his belief that there was an attitude of clear indifference to the Supervisor's authority, if not belligerence, in the comments addressed to him by Mr. Bourque, both in response to the direction to return to the floor and afterwards, in the exchange which took place in the Supervisor's office.

Boards of arbitration are generally tolerant of the use of colourful language within a blue collar working environment. However, there is a clear line, understood by all employees, between the use of four letter words as a means of expressing general anger and their use as an expression of disrespect addressed to an individual. The expression used by Mr. Bourque to respond to the direction given to him by Mr. Kingston is, except in the most exceptional cases, generally used to express strong disagreement, coloured with a measure of contempt. It is, absent some full and compelling explanation, an expression which would amount to insubordination when addressed to a supervisor by an employee in response to a direct instruction.

In the Arbitrator's view that is plainly the way it was intended by Mr. Bourque in the context of events. The grievor knew, or reasonably should have known, that he was not to be on the second level at the time he was ordered back to the floor by Mr. Kingston. His language and response to his supervisor conveyed an immediate rejection of his supervisor's authority, as well as open and deliberate disregard for the rule which Mr. Kingston sought to enforce. Moreover, the irritation and impatience conveyed by Mr. Bourque to Mr. Kingston in the supervisor's office reinforces that conclusion. In common language the phrase "Do you have a problem?' uttered in the context of two persons having a confrontation, is generally understood as something less than a friendly offer of help. On the whole of the evidence, the Arbitrator is satisfied that Mr. Bourque engaged in confrontational and disrespectful language, and wilfully disobeyed a direction of his supervisor in a fashion which constituted insubordination, at the end of his tour of duty on October 16, 1991.

The issue then becomes the appropriate measure of discipline in the circumstances. Given the grievor's conduct, the Company was correct in assessing discipline for both his failure to obtain permission from his supervisor to leave his work area and for directing profane language at Mr. Kingston. In the Arbitrator's view the assessment of ten demerits is within the reasonable range of discipline for infractions of that kind.

Unfortunately, the grievor's record offers little by way of mitigating circumstances that would justify a reduction of the penalty. Prior to the events in question Mr. Bourque's discipline stood at 55 demerits. Most significantly, in the Arbitrator's view, his record discloses at least one incident of prior discipline for insubordination, on June 29, 1989. An arbitrator considering the merits of exercising his or her discretion to substitute a lesser penalty must find some reasonable basis in the evidence to do so. Where, however, the record of an employee suggests that the infraction for which he or she is disciplined is not a first offence, and where that employee's record is otherwise extensive, it is difficult to find any basis for the exercise of such discretion.

Regrettably, that is so in this case. As an employee with 55 demerits on his record, and a prior instance of discipline for insubordination, Mr. Bourque must have understood that disobeying his supervisor's instruction, and addressing him in a disrespectful fashion would attract discipline which would have the most serious consequences for his employment. In those circumstances, the Arbitrator has little basis to draw favourable conclusions in respect of the likely rehabilitation of Mr. Bourque in the future.

For the foregoing reasons the grievance is dismissed.

DATED at Toronto this 27th day of July, 1992.

(sgd) M. G. Picher

Arbitrator