BETWEEN

(hereinafter referred to as the "Railway")

AND

(hereinafter referred to as the "Union")

SOLE ARBITRATOR: H. Allan Hope, Q.C.

A hearing in this matter was held in Vancouver, B.C., on September 18, 1996.

The Union challenged that decision in a grievance dated October 20, 1989. The issues were defined by the parties in their joint statement of facts and issues as follows:

• Supervisor Giesbrecht provoked a reaction from D.G. Pollock with respect to this matter
• the Company acted in an arbitrary and excessive manner with respect to the discipline issued.

The Union’s alternative position was that if the grievor’s conduct was deserving of discipline, the circumstances mitigated its seriousness and relieved it of its disciplinary implications. Its position was that the grievance should be granted and the 30 demerit marks expunged from the grievor’s discipline record.

[page 3]

On August 29, 1989 the grievor received a pay cheque which did not include statutory holiday pay for August 7, 1989. In place at that time was a court order that required the Railway to deduct a specified sum from the grievor’s wages each month to fund family maintenance payments he was required to pay. Apparently the existence of that order led to some confusion with respect to the grievor’s entitlement to be paid statutory holiday pay in the incident in question. The nature of that confusion was not explained in the proceedings.

The order requiring deduction of maintenance payments had been in place for a number of years and there was nothing in the facts to indicate a basis for confusion with respect to its application. In any event, when the grievor noticed the shortage in his cheque, he approached his staff coordinator to obtain a money order compensating him for the statutory holiday pay that had been withheld. That process was well established between the parties as a procedure designed to implement the requirements of Rule 19.3 of the collective agreement. It reads as follows:

[page 4]

On the facts, the Railway failed to comply with that provision in the sense that the grievor did not receive the money order he was entitled to receive until seven days after he had applied for it. He did not grieve that breach of the agreement. However, on his next pay cheque on September 12, the grievor again found that his pay cheque was short by an amount equivalent to one day’s pay. His understanding was that the Railway had deducted from his cheque the amount that had been advanced to him in the money order to pay him his statutory holiday pay entitlement in the previous pay period.

The grievor again approached his staff coordinator to request a money order to compensate him for that deduction. He was informed by his staff coordinator that the "legal department" would have to authorize issuance of a money order because of the court order requiring a regular deduction for family maintenance payments. The grievor left that initial meeting with the understanding that the staff coordinator would take immediate steps to obtain the necessary authorization from the legal department. However, when he inquired the following day, September 13, 1989, he understood that the coordinator had taken no steps to obtain authorization to pay him the wages he was entitled to receive.

The grievor was under considerable financial pressure at the time and was experiencing other stresses. It was his perception that the staff coordinator had taken a cavalier approach to his problem, indicating that the grievor’s plight was of little concern to him. That led to the grievor engaging in an argument with the coordinator. The circumstances as perceived by the Railway were described in a memorandum prepared on September 13 by the coordinator. It reads as follows:

[page 5]

A second memorandum prepared the same day by Mr. Lunoch was filed and supported the essential details of the memorandum filed by the coordinator.

The view of the encounter as perceived by the Union and the grievor was described in the Union’s submission as follows:

[page 6]

In terms of whether the grievor threatened to put his supervisor "into the ground", or some variation of that threat, it is noted that the grievor, as indicated in the written submission, informed the Union that he did not recall threatening his staff coordinator. In this hearing he professed a similar lack of recall. However, he did not deny that he wrote the following comment in an appeal prepared for the Unemployment Insurance Commission:

The facts favour the conclusion that the grievor did indeed threaten his staff coordinator and that he attacked him verbally in a manner which was persistent and out of keeping with the protocol that is implicit in an employer-employee relationship.

The Railway relied on a series of decisions in which threats similar to the one uttered by the grievor in this dispute had been recognized as support for disciplinary initiatives. They included VIA Rail and Canadian Brotherhood of Railway, Transport and General Workers, October 14, 1987, CROA Case No. 1701 (Picher); Canadian National Railway and United Transportation Union, December 14, 1988, CROA Case No. 1858 (Picher); Canadian Pacific Ltd. and Brotherhood of Maintenance of Way Employees, March 13, 1996, CROA Case No. 2715 (Picher) ; CP Rail and CAW, Local 101, June 18, 1996, unreported (Hope) ; and MacDonald’s Consolidated Ltd. and Retail Wholesale Union Local 580 (1990) 14 L.A.C. (4th) 379 (McKee). Its submission was that threatening a supervisor is perceived as a serious act of misconduct that justifies a significant disciplinary response.

In urging that the facts supported the conclusion that the Railway had just cause to impose discipline on the grievor and that the facts justified the penalty selected, the Railway noted that the grievor had persisted throughout the proceedings, including this hearing, in laying blame for the incident upon his supervisor rather than accepting the fact that his conduct was improper and apologizing for it.

The Union urged that the circumstances did not support the contention that either of the two supervisors present at the time took the comments of the grievor seriously. Its submission was that it was apparent on the facts that the grievor and his supervisor, who were well known to each other, were engaged in a heated argument arising from the failure of the Railway to pay the grievor his full wage entitlement in circumstances which were extremely provocative. The Union relied on a series of decisions to support the contention that where conduct which is otherwise insubordinate and threatening is provoked, the provocation can justify and excuse the conduct.

I agree with the Union’s submission that the failure to deal expeditiously with the grievor’s wage deficiency did serve to mitigate the seriousness of his insubordination. It is accepted that wage defficiencies are a serious matter and can be expected to provoke strong reactions from employees. The seriousness of such deficiencies has been addressed in express terms in this collective agreement in Rule 19.3. In this dispute the Railway was in breach of that rule in the previous pay period and the repetition of the same error in the very next pay period could be expected to be extremely provocative, particularly in the case of the grievor. He was experiencing financial difficulty that left him living from pay cheque to pay cheque.

[page 8]

The least obligation on the Railway in the circumstances was to make a concerted effort to rectify the problem and to demonstrate those efforts to the grievor. Accepting that the Railway did take steps to address the deficiency, it was not apparent that those steps were demonstrated to the grievor. Moreover, while the Railway’s internal difficulties may explain the failure to comply with Rule 19.3, they do not excuse that failure in terms of its contractual obligation to comply with the rule.

It was implicit in the Railway’s submission that management considered its explanation with respect to the legal department to constitute an adequate explanation for the delay in complying with the rule. It was not an adequate explanation. The grievor was entitled to expect more and to receive more. In short, his frustration and anger was entirely predictable and was justified by the facts.

However, while the circumstances serve to mitigate the grievor’s actions, they do not excuse his conduct. His aggressive behaviour and his threats were serious acts of misconduct that justified a disciplinary response. That is, the threat as described by him in his own terms was sufficiently serious to support the imposition of discipline. Hence, the question is one of what penalty is appropriate in all of the circumstances.

In my view, a penalty of 15 demerits can be seen as sufficient to balance the fact that the grievor committed a serious act of insubordination but that his conduct was responsive to significant provocation. In the result, the grievance is granted in part and the grievor’s discipline record will be amended to reflect the reduction in demerits.

DATED at the City of Prince George, in the Province of British Columbia, this 15th day of November, 1996.