SHP - 431
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA CANADA), LOCAL 100
RE: ASSESSMENT OF TWENTY-FIVE (25) DEMERTTS ISSUED CARMAN R. PRATT
SOLE ARBITRATOR:Michel G. Picher
APPEARING FOR THE UNION:
J. R. Moore-Gough – President Local 100
T. Wood – National Representative
R. Hanlon – Vice President Local 100
Ron Bezaire – Local Chairperson
APPEARING FOR THE COMPANY:
Greg Search – Assistant Manager, Labour Relations
Mario Di Donato – Senior Tech. Supervisor, CAR
Mark Stock – Labour Relations Officer
M.A. Skopyk – Mechanical Officer - Great Lakes District
Mike Ingle – Supervisor - Windsor
Terry Lusk – Supervisor - Windsor
A hearing in this matter was held in Toronto on February 28, 1997.
This grievance concerns the assessment of twenty-five (25) demerits for the alleged failure to follow a supervisor’s instructions. The dispute and joint statement of issue read as follows:
Appeal of the discipline of twenty-five (25) demerits assessed Carman R. Pratt for "alleged failure to follow the instructions of your Supervisor".
JOINT STATEMENT OF ISSUE:
On May 25, 1995, Carman R. Pratt was requested by his Supervisor, M. Ingle, to release Track W-113 to Transportation and to remove the blue flags at either end of the track. Carman Pratt did not immediately do so.
Carman R. Pratt was then requested a second time to release Track W-113 and remove the blue flags. He informed his Supervisor, M. Ingle, he had not completed his work.
Carman R. Pratt was then instructed to immediately remove the blue flags by his Supervisor, M. Ingle.
On June 23, 1995, Carman R. Pratt was required to attend an investigation into his alleged "failure to follow the instructions of your Supervisor on May 25, 1995."
As a result of this investigation, Carman R. Pratt was assessed twenty-five (25) demerits on July 4, 1995.
The Union appealed the assessment of discipline on the basis that Mr. Pratt had already been disciplined for the incidents on May 24 and 25, 1995, thus any further discipline would be multiple penalties for the same offence.
Furthermore, the Union appealed that Carman R. Pratt did not receive a fair and impartial investigation, such investigation was not held in a timely manner and the Company failed to establish responsibility on the part of Carman R. Pratt for the alleged offence.
The Union requests that the discipline assessed be declared null and void.
The Company denied the Union’s appeal.
The record before the Arbitrator discloses that the grievor was assigned to perform certain work involving the changing out of brake shoes and the closing of car doors on Track W-113 on the morning of May 25, 1995. As the day progressed the transportation department developed a need for the track which he was using, as a result of which he was instructed by Supervisor Mike Ingle at or about 12h00 to release the track so that it could be utilized for yard switching. He responded "No" to his supervisor, and indicated that he wished to check the numbers of the cars, to ensure that he had not missed any repairs. Supervisor Ingle immediately instructed him a second time to remove both blue flags, which he again failed to do.
It appears that at that point Mr. Pratt went to his yard repair truck, radioed the yardmaster that he was freeing the track and drove of in his truck. He drove past the east end blue flag, circled around and returned to the east end of Track W-113, where he then proceeded to drop the east end blue flag. However, he did not proceed to the west end, to remove the blue flag at that location, as would normally be standard practice. Rather, he drove his truck to Supervisor Ingle’s offlce, to which the supervisor had returned, and asked Mr. Ingle whether he also wanted him to drop the west end blue flag. Finally, he proceeded to the west end blue flag, and removed it. It appears that the entire exercise took nearly a half hour, and occasioned delay to the transportation department.
The Arbitrator finds the events disclosed in evidence to be disturbing. For reasons which he best appreciates, Mr. Pratt appears to enjoy aggravating his supervisors. There is no other rational way to understand his course of conduct in dealing with Supervisor Ingle on May 25, 1995. By the grievor’s own admission, he has a tendency to enjoy making people angry at him. It appears that he has received psychological or psychiatric counselling for his problem. In fact, the Company has allowed him time off on a regular basis for a substantial number of months, to pursue regular therapy during working hours, for this problem.
There is a limit to what an employer must endure. The material before the Arbitrator confirms that, assuming a degree of mental or emotional disability on the part of the grievor gave rise to his unusual conduct, every reasonable effort has been made to accommodate his circumstance over a substantial period of time. When, as occurred in the case at hand, the game-playing engaged in by the grievor takes the form of conduct which is tantamount to openly insulting the intelligence of his supervisor, and occasions real delay to the Company’s transportation operations, there can be little alternative but to take the necessary disciplinary steps to protect the Company’s interests.
The record discloses that on at least two prior occasions the grievor was disciplined for similar conduct. In November of 1990 he was assessed fifteen (15) demerits for failing to follow the instructions of his supervisor and, in October of 1993 he was assessed twenty (20) demerits when he walked out of a training session, contrary to direct instructions from a supervisor.
The Arbitrator cannot find that there was anything irregular in respect of the timing of the disciplinary investigation, or the notice provided to Mr. Pratt. As is evident from the record, the grievor is not an individual given to being co-operative during the course of disciplinary investigations. Nor am I satisfied that the coincidence of this matter with other disciplinary infractions which occurred on or about the same date constitutes double jeopardy. Finally, given the established practice I am satisfied that it is not appropriate for the Company to assess discipline as of the date of the investigation, rather than the date of the alleged infractions. In keeping with the Brown system of cumulative discipline, it would appear to the Arbitrator appropriate that an individual be given a one year period following an incident of wrongdoing, in which to improve his or her record.
When regard is had to the prior discipline assessed against Mr. Pratt for similar acts of insubordination, the Arbitrator can see little reason to reduce the discipline assessed against him. In the result, the grievance must be dismissed. The twenty-five (25) demerits assessed in this case, coupled with forty (40) demerits for an earlier incident concerning abusive disregard of computer equipment therefore place the grievor in a dismissible position. Again, the Arbitrator can see no persuasive basis upon which to reverse that outcome, given the general lack of remorse or concern displayed by Mr. Pratt.
Dated at Toronto this 10th day of March, 1997.
(signed) MICHEL G. PICHER