IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC RAILWAY COMPANY

(the "Company")

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 101

(the "Union")

RE: DISCIPLINE ASSESSED CARMAN D. DEAN, TORONTO

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.

AWARD

The evidence before the Arbitrator confirms that during the tour of duty of Carman Dean in Agincourt Yard on November 14, 1997 a degree of confusion and uncertainty arose with respect to the proper blue flagging of trains that Mr. Dean and others were assigned to work on. The memorandum of Supervisor Gregg Cutts, filed in evidence, relates that he received an angry telephone call from Mr. Dean relating to the issue of flagging. During the course of the conversation he states that Mr. Dean said: “You’re fucking playing with us, if you keep playing with me this way, I’m fucking going home.” It appears that Mr. Cutts invited Mr. Dean to come to his office to discuss the matter, which the latter immediately did.

It does not appear disputed that there was a confrontation between the two individuals in Mr. Cutts’ office. It is also not disputed that during the course of that conversation Mr. Dean pushed Mr. Cutts in the chest, causing him to be propelled backwards, according to Mr. Cutts’ account into an adjacent refrigerator. Standing alone the facts so related would clearly justify the assessment of discipline against Mr. Dean. It barely needs stating that there is no place for physical violence in the workplace, whatever the circumstances.

However, when a full review is made of all of the facts, there are mitigating factors which do bear on the measure of discipline appropriate in the circumstances. Firstly, it does not appear disputed that the cause of Mr. Dean’s anger was a safety related issue, having to do with the timely and orderly deployment of blue flags and blue lights to secure the train consists that Mr. Dean and his crew were to work on. It appears that in light of an earlier fatality in the workplace there was a substantial degree of tension among employees and supervisors with respect to safety practices. While safety concerns do not justify resorting to violence, the grievor’s state of mind is a relevant factor.

Of greater importance in relation to the issue of mitigation is Supervisor Cutts’ own admission that during his verbal altercation with Mr. Dean in the office he took a deliberate step forward, placing his hands on his hips, assuming the same posture as the grievor. While Mr. Dean maintains that Mr. Cutts in fact bumped him in the chest twice during their exchange, I do not consider it necessary to resolve that contradiction in the evidence, as Mr. Cutts denies the bumping. The fact remains that Mr. Cutts did engage in a provocative gesture, the effect of which was to generate a defensive response from Mr. Dean. While it is true that Mr. Dean would have done better to simply leave the room, and that his physical pushing of Mr. Cutts cannot be justified, I am satisfied that the whole of the circumstances do demonstrate elements of provocation which bear in mitigation of the penalty appropriate in the circumstances.

In the result, while I am satisfied that the grievor did use inappropriate language towards his supervisor during the course of their telephone conversation, and that he physically pushed him during the verbal confrontation in the office, the assessment of twenty demerits is, on the whole, excessive when regard is had to the mitigating factors discussed above. When the factors reviewed above are coupled with the fact that the grievor had a clear record at the time of the incident and no prior record of confrontational behaviour, the Arbitrator is satisfied that ten demerits should be substituted for the discipline assessed, with the grievor’s record to be adjusted accordingly.

Dated at Toronto, November 22, 1999

_________________________________________

MICHEL G. PICHER

ARBITRATOR