(the "Company")



(the "Union")



Sole Arbitrator:        Michel G. Picher


Appearing For The Union:

Abe Rosner                        – National Representative, CAW, Montreal

Ron Laughlin                       – Regional Vice-President, Eastern Region, Local 101



Appearing For The Company:

John Bate                            – Labour Relations Officer, Calgary

Dave Guerin                       – Labour Relations Officer, Calgary

Gilles Pépin                        – Labour Relations Officer, Calgary



A hearing in this matter was held in Montreal on November 16, 1999.


The grievor, Mr. W. Hnatiw, employed as a carman at the Company’s Agincourt Yard in Toronto, was assessed twenty demerits for incidents which occurred on November 28 and December 5, 1997.

The incident of November 28 involved alleged abusive and insolent behaviour on the part of the grievor in speaking with members of management. Upon a review of the facts of the incident, the Arbitrator cannot sustain the Company’s position. The incident is related in a memorandum prepared by Supervisor M. Eaton. He states that the exchange occurred during the course of a conversation between himself and several employees who had raised a protest about the safety of the work which was assigned to them. Among their concerns was the fact that a consist of cars they were assigned to work on had remained coupled to a live locomotive. They were also concerned about an unannounced train movement and the failure of a locomotive to ring its bell at a crossing. The confluence of these events within approximately thirty minutes caused the employees, including Mr. Hnatiw, to report their views to Mr. Eaton who, it appears, indicated that an investigation would be delegated to another supervisor, Mr. B. Scarlett who would be attending at work later that night. It would appear that that response, perceived by Mr. Hnatiw to be an avowal of inaction, prompted a remark on his part that the police would be called if the Car Department failed to deal with the problem, as the Transportation Department “… has laid a trap.” Although his intention has never been clarified, Mr. Eaton then said to Mr. Hnatiw that he should be careful about what he said “… because everything will be documented.” That prompted the grievor to respond “I don’t give a fuck, I’m tired of this bullshit.”

In the Arbitrator’s view what transpired was an expression of grave frustration on the part of Mr. Hnatiw, firstly in the face of three dangerous conditions which he and his workmates were compelled to confront, and secondly in light of a comment by Mr. Eaton which, on its face, could be interpreted as a threat against any employee who might choose to raise the matter to the level of a formal complaint. While the words chosen by the grievor were obviously colourful, and in the nature of strong shoptalk, they were not intended as a personal affront to Mr. Eaton, and in the Arbitrator’s view could not reasonably have been taken as such. They are, on their face, an expression of frustration with the report of safety concerns in the workplace being met with a comment which could be interpreted as a threat. In the circumstances I am satisfied that there was no insubordination or insolence intended by the grievor, and that no discipline is justified for the event of November 28, 1997.

The Arbitrator’s conclusion is somewhat different as regards the incident of December 5, 1997. It appears that on that day the grievor was approached by Supervisor C. Calow, who wished to have the grievor sign a document relating to three absences from work, for the purposes of the enforcement of an absenteeism policy. When Mr. Hnatiw realized that on one of the three occasions he was properly absent on a scheduled day off, he responded angrily to Mr. Calow that the Toronto Yard management were “… a bunch of fucking assholes who knew nothing about running a business”, or words to that effect. While the grievor denies those words, it is not denied that he then turned from Mr. Calow and flatulated in his direction, although he maintains it was not deliberate.

In the Arbitrator’s view the facts as related by the Company are to be preferred to the denials of the grievor, as concerns the incident of December 5, 1997. I am satisfied that on the whole the grievor did demonstrate a degree of unacceptable disrespect in his communication with Mr. Calow, both verbally and otherwise. In the result, the assessment of ten demerits for that incident is appropriate. The grievor’s record shall be adjusted accordingly.

Dated at Toronto, November 22, 1999