SHP 371

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP RAIL

(the "Company")

- and -

CAW-TCA CANADA,

RAIL DIVISION LOCAL 101

(the "Union")

GRIEVANCE RE CARMAN Y. BELANGER

ARBITRATOR. Michel G. Picher

APPEARING FOR THE COMPANY: L.G. Winslow - Labour Relations

Officer, Montreal

JJ. Worrall - Labour Relations

Officer, IFS Toronto

M. Troli - Facilitator Quality

Support

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.

AWARD

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:

Dispute

Dismissal of Carman Y. Belanger, St. Luc Car Shop, Montreal,

Quebec.

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.

Harland.

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

52.1.

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

52.1

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:

28.1

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.

28.2

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

explanation.

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

representative.

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

circumstances.

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

of 1991.

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

award.

DATED at Toronto this day of November, 1992.

Michel G. Picher - Arbitrator