IN THE MATTER OF AN ARBITRATION
- and -
RAIL DIVISION LOCAL 101
GRIEVANCE RE CARMAN Y. BELANGER
ARBITRATOR. Michel G. Picher
APPEARING FOR THE COMPANY: L.G. Winslow - Labour Relations
JJ. Worrall - Labour Relations
Officer, IFS Toronto
M. Troli - Facilitator Quality
C. Trepanier - Car Foreman
F. Fazzari - Assistant Car Foreman
APPEARING FOR THE UNION: B.R. McDonagh - President, Local 101
B. Chalvin - Vice-President,
Atlantic Region, Local
1 0 1
A hearing in this matter was held in Montreal on October 26, 1992.
This is an arbitration in respect of the dismissal of an employee as
a result of an altercation involving a supervisor. The Dispute,
Joint Statement of Facts and Joint Statement of Issue, filed at the
hearing, are as follows:
Dismissal of Carman Y. Belanger, St. Luc Car Shop, Montreal,
Joint Statement of Facts
On August 23, 1991 the record of Carman Y. Belanger was debited with
forty-five (45) demerits for:
"assault on a Company Supervisor, unacceptable conduct from a
CP Rail employee, violating Personal Conduct Rules #12, 15,
19 of the Car Department, St. Luc and Rule #l-E of the
Safety and Accident Prevention Code (Form 300|-2) of the Car
Department, St. Luc, on July 11, 1991."
On August 23, 1992 Carman Y. Belanger was dismissed for:
"the accumulation of demerits."
JOINT STATEMENT OF ISSUE:
It is the position of the Union that the arbitrator must first deal
with the following Preliminary Objection of the Union prior to
considering the body of this case:
-the Company would not provide copies of statements, and all
other evidence taken, when the request was made by the Local
Chairperson, therefore Rule 28.2 of Collective Agreement
52.1 must be considered to have been violated.
-the Company utilized Rule l-E of their Form 300-2 (Safety
and Accident Prevention Rules) to facilitate the dismissal of
Y. Belanger even though said Form 300-2 was and continues to
be in dispute by notice of our Union and others.
-the investigation of the Company which precipitated the
dismissal of Y. Belanger was flawed in the following areas:
-No cross-examination allowed
-No investigation of evidence presented from Carman R.
Accordingly the investigation in question can not be considered to
have been fair and impartia|l therefore Rule 28.1 of Collective
Agreement 52.1 must be considered to have been violated.
-that the aforementioned violations have rendered the
investigation in question a nullity.
Therefore, Carman Y. Belanger should be reinstated to employment
forthwith, without loss of seniority, without loss of benefits and
reimbursed for aB time lost as provided for in Collective Agreement
Should the Arbitrator rule that the preliminary matters placed before
him have no consequence, then the following is the Union's position
with respect to this case:
-the Company has acted in an arbitrary, subjective and
excessive manner with respect to the issuance of forty-five
(45) demerits and the subsequent dismissal of Mr. Belanger.
-Mr. Belanger was provoked into reacting and be denies the
charges levied against hint
Therefore, Carman Y. Belanger should be reinstated to employment
forthwith, without loss of seniority, without loss of benefits and
reimbursed for all time lost |as provided for in Collective Agreement
The Company denies the claim.
As reflected in the above statements, Carman Belanger was
discharged for the accumulation of demerits following the assessment
of 45 demerits for his involvement in an incident on July 11, 1991.
The Company's action followed a disciplinary investigation conducted
by the Company, which included the taking of a statement from Carman
Belanger on July 16, 17 and 29, 1991. The Union raises a preliminary
objection with respect to the regularity of the investigation. It
submits that the Company failed to meet the requirements of Rule 28
governing investigations. Rule 28 provides, in part:
Except as otherwise provided herein, no employee shall be
disciplined or discharged until he has had a fair and
impartial investigation and his responsibility established.
An employee may be held out of service pending investigation
up to five working days, which can be extended by agreement
with the General Chairman.
Except as otherwise provided in this Rule, when an
investigation is to be held, the employee will be given at
least one day's notice of the investigation and will be
notified of the time, place and subject matter of such
investigation. This shall not be construed to mean that the
proper officer of the Company, who may be on the ground when
the cause for such investigation shall be prevented from
holding an immediate investigation.
When employees are required to make statements on matters
affecting the Agreement, Company working rules or
compensation a duly authorized representative of the
employee shall be present except that when employees are
required to make statements on matters not affecting the
Agreement, Company working rules or compensation, the
employee may have a fellow employee or an accredited
representative of the Union present.
Copies of statements, stenographic reports and all other
evidence taken shall if requested, be furnished to the
employee and, if present to his authorized representative.
The Union submits that the Company failed to provide the grievor with
a fair and impartial investigation in several ways. Firstly, it
alleges that the Company wrongly failed to provide copies of the
statements of supervisors concerning the incident, 24 hours in
advance of the commencement of the taking of Carman Belanger's
statement Secondly, it alleges that the rules contained in the
Company's Form 300-2 (Safety and Accident Prevention Rules) should
not have been applied against Carman Belanger, as those rules are
presently disputed by the Union. Thirdly, the Union submits that the
procedures followed during the course of the taking of the statement
of the grievor, including the denial of the right to cross-examine
the written statements of supervisors, the fact that the statement of
an employee who is a member of another union was taken without his
union representative being present or to allow the grievors union to
be present during the taking of the statement of that employee also
violate the standards of Rule 28. Lastly, the Union takes exception
to the fact that at least one person, Mr. R. Harland, should have
been examined by the investigating officer. On these grounds the
Union submits that the investigation should be considered a nullity,
and that the discharge of Carman Belanger should therefore be
rescinded, with full compensation to the grievor.
The Arbitrator has substantial difficulty with the preliminary
objections of the Union. The material before the Arbitrator reveals
a fundamental philosophical difference between the Union's officers
and the Company's officers as to the nature and purpose of the
investigation. The Union's officers, and in particular District
Chairperson G. Lemyre, would characterize the investigation
procedures under Rule 28 of the collective agreement as the
equivalent of the discovery process in a civil trial or suggest that
it is comparable to a preliminary criminal hearing. The reasons for
that characterization are evident in the exchanges between Mr. Lemyre
and Mr. M. Troli the Company's investigating officer. At question
and answer 40 of the investigatiorn when asked why he wished the
opportunity to cross-examine supervisors, Mr. Lemyre gave perhaps the
best expression of his view of the nature and purpose of the
proceedings. He responded:
I am asking for these people to be present because I think
the memos and the statement are all being interpreted in one
way. There is a lot of information missing from the memos
and the statement such as Mr. Fazzari's attitude and
behaviour on the evening of July 11, 1991. I want to find
whether these memos are not part of a conspiracy against Mr.
Belanger, and for the purposes of my own personal
investigation. I would like to meet these people, one by
one, in this office, while we are are here, in order to
clarify certain points.
Mr. Lemyre went further, and at question and answer, 75 when asked to
specify his objection to the investigation he answered as follows:
Yes, it is unfair, since the investigating officer is an
employee for the employer's side, just like the other persons
involved about whom we had objections. I refer you to the
investigation, where certain passages describe injustice
toward me or the refusal of certain steps requested by myself
and my representative.
In essence, Mr. Lemyre wished to utilize the investigation process to
substantiate his own suspicion that there was a conspiracy among the
supervisors aimed at Mr. Belanger. His position went so far as to
submit that there is unfairness in the fact that the investigating
officer is himself a member of management.
With the greatest respect for the zeal exhibited by Mr. Lemyre, the
Arbitrator cannot sustain his view of the nature and purpose of the
process contemplated within Rule 28 of the collective agreement. The
procedures under that rule have a two-fold purpose which involves a
balancing of the interests of the Company and of the employee. On
the one hand, the Company is to have an opportunity to question the
employee who is the subject of the investigation, prior to making a
decision with respect to the possible assessment of discipline. On
the other hand, it provides to the employee, and his union, a minimum
degree of due process, whereby the employee has at least one day's
notice of the investigation and the matter to be investigated, the
assistance of an authorized representative of the union and, if
requested, copies of all pertinent statements, reports and other
(evidence in the possession of the investigating officer which may be
used against the employee. The right to a fair and impartial
investigation implies that the employee be afforded the opportunity
to respond to the statements or evidence in the possession of the
Company, and be given the opportunity to make a full answer and
The process so contemplated is not a trial nor a hearing which must
conform in all respects with judicial or quasi-judicial standards.
It is, rather, an information gathering process fashioned, in
accordance with the requirements of the collective agreement, to give
the employee the opportunity to know the information gathered, and to
add to that information before any decision is taken with respect to
the assessment of discipline. This conception of the process under
Rule 28 of the collective agreement has been reflected in prior
arbitral awards. In SHP 254, an award in respect of a grievance
between the Canadian National Railway Company and the Sheet Metal
Workers International Association dated November 24, 1988, Arbitrator
Weatherill was called upon to deal with an objection by the Union to
the effect that the standard of a fair and impartial investigation
had been violated because the right to cross-examine was denied. At
p.6 of the Award Arbitrator Weather made the following observations:
It was argued that the company was in violation of Rule 28 of
the collective agreement, in that at the investigation of
this matter, the grievor was not provided with an opportunity
to cross-examine the persons who had made reports on the
incidents described. It is true that that opportunity was
not provided. The grievor was shown the reports and asked
for his comments. I do not consider that Article 28 requires
more. The investigation is not a trial. It should provide
the employee with an opportunity to give his side of a
matter, but it need not involve (although it may do so), the
cross-questioning of others by the grievor or his
representative. Such reports, it may be noted, do not have
any authoritative effect simply by virtue of' their being
presented at the investigation, and if, following an
investigation, discipline is imposed and a grievance then
filed, the onus will of course be on the employer to make out
its case against the grievor. The persons in question did
give evidence at the hearing of this matter, and they were of
course subject to cross-exarriination. In my view, there was
no violation of Rule. 28.
In my view the foregoing passage correctly reflects the nature and
purpose of Rule 28. It should be stressed, as noted by Arbitrator
Weatherill that the protection of the employee in respect of access
to the full protection of neutral adjudication resides in the right
to progress a grievance to arbitration for final and binding
determination by a third party. There is nothing in the language of
Rule 28 to suggest that the parties intended the disciplinary
investigation to be conducted on the model of an arbitration or a
quasi-judicial hearing. Significantly, the grievor and the Union
retain the right to insist upon the strict proof of any case against
the grievor at arbitration, where the right of cross-examination is
fully provided. For the foregoing reasons the Arbitrator cannot
sustain the objection of the Union with respect to the decision of
the investigating officer to refuse to Mr. Lemyre the right to
question the Company's supervisors on their written reports.
I am likewise satisfied that there was no violation of Rule 28 in the
decision of the Company not to take a statement from Mr. Harland.
The fact that the investigating officer accepted the filing of a
letter from the Union by Mr. Harland is, in my view, sufficient
compliance with the requirements of Rule 28. Nor can I find any
requirement in Rule 28 which would require that the copies of
statements and other evidence be provided to the grievor or his local
chairperson 24 hours in advance of the investigation, as contended by
the Union. It may be arguable that an employee is denied a fair and
impartial investigation if he or she is confronted with great volumes
of written material and asked to reply to them without being given a
sufficient opportunity to review their contents. However, that is
manifestly not what occurred in the instant case. It is clear that
the statements of the supervisors, which are not lengthy, were
provided to the grievor and his union representative at the outset of
the proceedings, and that a sufficient adjournment of the proceedings
was accorded to them to review their contents. There is no prejudice
disclosed in the procedure followed, and I cannot find any violation
of the standard of a fair and impartial investigation in the way the
Company's officer provided the documentation to the grievor and his
Can the preliminary objection succeed on the alternative basis that
the Company applied the safety and accident prevention rules against
the grievor? I think not. As the Arbitrator understands the Union's
objection, it submits that the Company could not unilaterally
establish the rules, effective August, 1990, as they had previously
been entitled "guidelines". For the purposes of this grievance, and
without prejudice to any other grievance which may be pending, I can
see no substance in that objection. At issue is the application of
Rule l(e) which reads as follows:
Conduct your work in an orderly and safe manner.
Altercations and horseplay are prohibited.
The Union has advanced no basis upon which it can be responsibly
concluded that the above rule can be said to be in violation of the
rights of employees under the terms of the collective agreement.
While it appears that the rules in question are being challenged by
the Union as being in contravention of the Canada Labour Code, that
is an issue beyond this tribunal's jurisdiction. As reflected in the
arbitral jurisprudence, there are certain constraints placed upon an
employer in the formulation, dissemination and enforcement of plant
rules (see e.g. K.V.P. ltd. (1965), 16 LA-C. 73 (Robinson); General
Spring Products (1968), 19 LA-C., 392 (Weatherill)). There is,
however, nothing in the material before me to suggest that there has
been any violation of the standards contained in the jurisprudence.
The rule in question is reasonable, an indeed is one of general
application in any safety sensitive industry. Moreover, as is
evident before the Arbitrator, there was no mechanical or automatic
application of the rule as it relates to the assessment of discipline
against the grievor. It is clear that the Company gave due
consideration to the facts of the altercation as well as to the
grievor's prior service and disciplinary record before assessing 45
demerits against him. For these reasons the Arbitrator cannot
sustain the objection of the Union with respect to the application of
Company Form 300-2 to the circumstances of Mr. Belanger.
I turn to consider the merits of the grievance. It is not denied
that an altercation between the grievor and foreman F. Fazzari took
place on July 11, 1991. On that day the grievor was scheduled to
work the 2300 to 0700 hrs. tour of duty at the St. Luke car
department. By way of background, it is necessary to understand
certain prior events which occurred on July 5, 1991. During the
course of the griever's shift on that date he and a fellow employee
had cause to question the work assignment being given to their night
crew. The grievor and his workmate, Mr. Robert Harland, were of the
opinion that the night shift crew were given a disproportionate
amount of work on changing adaptors, which is a particularly heavy
kind of task, as compared with the day shift and afternoon shift
employees. The statement of Mr. Harland, filed in evidence,
discloses that when Mr. Harland inquired about it afternoon
supervisor Fazzari responded to him, in a laughing tone, that it was
work that was being left for the night shift because "... they were
good at it and that his men did not have to strain themselves to do
it". Shortly thereafter, on the 5th, when Mr. Belanger addressed an
inquiry to Mr. Fazzari about the work assignment the supervisor
responded to him in an offhand tone, saying "Hey, you are very good
for having found that by yourself. You're a good carman and if you
don't like it, do not change them. It is not my problem." According
to Mr. Harland's statement, when Mr. Belanger indicated that that was
no way to speak to an employee, Mr. Fazzari left, saying "I don't
give a damn." Mr. Belanger was clearly unhappy with the tone and
manner of foreman Fazzari.
The two men again encountered each other on the evening of July 11,
1991. At or about 2lH30 Mr. Belanger attended at the planner's
office. It appears that he related to relieving foreman C. Trepanier
his concerns about the apparent unfairness of the assignment of
adaptor work to the night shift employees. According to the
statement of Mr. Trepanier, Mr. Belanger had raised his concerns
about that issue with him on July 5, 1991 and had then told him that
he did not appreciate the manner in which foreman Fazzari, who was
then planner on the afternoon shift, had answered him. While Mr.
Belanger and Mr. Trepanier were engaged in that conversation Mr.
Fazzari entered the planner's office.
At that point Mr. Trepanier questioned Mr. Fazzari as to why the
adapters had been left for the night shift. When Mr. Fazzari gave
the explanation that his crew had first done loaded cars, Mr.
Belanger interjected to express to Mr. Fazzari that he had not liked
the way the foreman had replied to him in the previous week. While
there are slight variations in the accounts of the witnesses to the
exchange that ensued, the Arbitrator is satisfied that the account of
planning clerk F. Ripolo is reasonably objective and reliable.
According to his statement the discussion between Mr. Belanger and
Mr. Fazzari "...started to heat up". Mr. Fazzari told Mr. Belanger
that he did not owe him any explanation, and that he was not the
Vice-President of the Company. Mr. Belanger then raised his voice
saying "Don't act smart just because there are people around". Mr.
Fazzari went on to say "I don't have to explain anything to you, and
besides, you have no business being here at this time. Get out.".
Although it is not clear when he did so, it does not appear disputed
that Mr. Belanger invited Foreman Fazarri to go out into the parking
lot and settle the matter man- to-man. This offer was not accepted,
and Mr. Trepanier made at least one attempt to calm the grievor down.
His effort was without success, however, and Mr. Belanger finally
reached across a counter and grabbed Mr. Fazarri by his smock, in the
area of his chest or throat. At that point Mr. Trepanier shouted at
him several times to let Mr. Fazarri go, which the grievor did. Mr.
Belanger then left the office.
What principles are to be applied in such a case? It is
well settled that physical violence, or the threat of physical
violence, is unacceptable in the workplace. This is doubly so when
it is aimed at a supervisor in a manner which involves
insubordination. Such conduct is plainly deserving of a serious
degree of discipline. In assessing discipline, however, all
factors must be taken in to account including the employee's state
of mind and the mitigating influence of provocation (Re Canon
Ltd. (1975), 9 L.A-C. (2d) 391 (Shime)).
In the case at hand, the Arbitrator cannot condone the conduct of Mr.
Belanger. Whatever grievance he may have had with respect to the
assignment of work, or to his feeling that foreman Fazzari lacked
respect in his tone towards him, he should have availed himself of
other means to express his complaint and seek redress. The handling
of problems of that kind are the specific responsibility of shop
stewards and Union officers. It was plainly wrong for Mr. Belanger
to carry his complaint with respect to Mr. Fazarri's conduct directly
to him, in a circumstance in which a flare-up was easily predictable.
Whatever the merits of the grievor's feelings towards Mr. Fazzari,
he, like any supervisor or employee, is entitled to work free of any
apprehension of physical violence or the threat of physical violence
from anyone in the workplace. If this matter were to be disposed of
strictly on the basis of what transpired in the Planner's office on
the evening of July 11, 1991 the Arbitrator would be inclined to the
view that the grievor was deserving of serious discipline, and that
the assessment of 45 demerits was not unreasonable in the
The issue of substance, however, is whether there are mitigating
circumstances which would justify the reduction of the penalty
assessed against Mr. Belanger. After a careful review of all of the
evidence, I am satisfied that there are. Firstly, it is not disputed
that the grievor was under a high degree of stress because of a
difficult family circumstance. In the year previous his wife had
given birth to a baby with serious physical defects. This had
necessitated Mr. Belanger spending extensive periods at home as a
support to his spouse. It is common ground that he was provided
periods of leave from the workplace for that purpose. At the time of
the incident of July 11, 1991 his wife was again pregnant, and was
extremely fearful for the birth of their second child. The
Arbitrator accepts the evidence tendered by the Union confirming that
at the time in question Mr. Belanger was suffering a high degree of
personal strain because of those circumstances.
Secondly, I must accept the argument of the Union that the facts
disclose a degree of verbal provocation on the part of Mr. Fazzari.
Firstly, the account of what transpired on July 5, 1991 stands
unrebutted by any evidence adduced by the Company. Although it
appears that the investigating officer who was given a copy of Mr.
Harland's statement subsequently obtained a memorandum from Mr.
Fazzari giving his side of the incident of the 5th, that document was
never supplied to the Union or to Mr. Belanger. In the Arbitrator's
view it was received by the investigator in violation of Rule 28 of
the collective agreement and I must accept the submission of the
Union's representative that it is not admissible in these
proceedings. What remains, therefore, is unrebutted evidence that
Mr. Fazzari used a mocking and derisive tone towards Mr. Belanger on
July 5, 1991, when the latter attempted to voice concerns to him
about the distribution of assignments as between the afternoon and
the night shift employees. It should be stressed that the evidence
concerning the griever's anger at that incident is confirmed by the
statement of Mr. Trepanier, a Company witness. He acknowledges that
Mr. Belanger had expressed his concern to him about the tone used by
Mr. Fazzari on July 5th.
In the Arbitrator's view it is somewhat telling that Mr. Trepanier
did not view the inquiry being made by Mr. Belanger as inappropriate
or impertinent. That is clearly the conclusion to be drawn from the
fact that he did seek an explanation from Mr. Fazzari when he entered
the planner's office. Unfortunately, Mr. Fazzari conveyed a
different attitude. It is true, of course, that Mr. Belanger is not
the Vice-President of the Company. It is equally true, from a
technical standpoint, that Mr. Fazzari is under no obligation to give
him an explanation of assignments. It may also be true that the
grievor had "no business" in the literal sense, being in the planners
office at the time in question. Unfortunately, it was ill considered
for Mr. Fazzari to assemble all of those elements in a single pointed
answer to the grievor when he knew, or reasonably should have known,
that Mr. Belanger had a genuine concem about the fairness of the work
assignments being left for night shift employees. From the viewpoint
of Mr. Belanger, given the mocking tone used by Mr. Fazzari in their
earlier conversation of July 5, 1991, the derisive reply given by Mr.
Fazarri when Mr. Belanger indicated that he had not liked his tone
can be fairly seen as provocative. To borrow the expression of the
arbitrator in the Canon award, it appears on the whole of the
evidence that both Mr. Fazzari and Mr. Belanger were responsible for
the escalation of events.
The evidence further discloses that shortly after the incident the
grievor expressed regret for his actions. The statement of Mr.
Trepanier confirms that Mr. Belanger called him at approximately 11:
15 hrs. and related to him that he was under stress because of
personal problems and that he was willing to apologize to Mr.
Fazarri. On the whole, the outburst by Mr. Belanger appears to have
been an uncharacteristic, spur of the moment event. There is nothing
in his prior discipline which suggests an unruly or insubordinate
nature, or any involvement in an altercation with another employee or
supervisor. An employee of 10 years' service, Mr. Belanger had no
demerits against his record at the beginning of 1990. He thereafter
incurred demerits, all relating to absenteeism, some of which are the
subject of pending grievances. In the result, the only confirmed
discipline on the grievor's record at the time in question was the
assessment of 20 demerits for a period of absenteeism in the spring
When all of the above factors are considered, the Arbitrator is
inclined to accept the submission of the Union's representative that
the instant case merits a mitigation of the penalty. The grievor's
personal circumstances and stress, the provocation disclosed in his
two encounters with Mr. Fazzari on July 5 and 11, 1991, his remorse
and willingness to apologize, as well as the fact that this was a
spur of the moment outburst which was out of character for the
grievor, are all factors which, in my view, contribute to the
conclusion that a degree of discipline short of discharge is
appropriate in the circumstances. Having regard to the seriousness
of any assault in the workplace, however, the Arbitrator does not
deem this the case for an order of compensation. I am satisfied that
the dislocation suffered by the grievor through a period of sustained
suspension will have the necessary rehabilitative effect and that he
can be returned to productive service with the Company.
For the foregoing reasons the grievance is allowed, in part. Mr.
Belanger shall be reinstated into his employment forthwith, without
loss of seniority and without compensation for wages and benefits
lost. I retain jurisdiction in the event of any dispute between the
parties having regard to the interpretation or implementation of this
DATED at Toronto this day of November, 1992.
Michel G. Picher - Arbitrator