IN THE MATTER OF AN ARBITRATION

BETWEEN: VIA RAIL CANADA INC.

AND: NATIONAL AUTOMOBILE, AEROSPACE,

TRANSPORTATION AND GENERAL WORKERS

UNION OF CANADA

AND IN THE MATTER OF THE GRIEVANCE OF M. FISETTE

BEFORE: J.F.W. Weatherill

A hearing in this matter was held at Montréal, May 3, 2000.

A. Rosner and R. Brosseau, for the union.

D. Trubiano and E. Houlihan, for the company.

AWARD

The grievor, who had been hired by the predecessor employer on March 18, 1981, and whose classification was that of Electrician, was discharged on October 29, 1998, as a result of an incident which occurred on October 20, 1998. This incident led the company to assess the grievor 10 demerit marks for being absent from his work station, as well as 30 demerit marks for using abusive language towards his supervisor. At the time, the grievor's discipline record stood at 55 demerits. The assessments in question gave the grievor a total of 95 demerits, and he was discharged for that accumulation of demerit marks.

The company raises a preliminary objection to my hearing this matter, referring to a "last chance" agreement made with the union and which resulted in the reinstatement of the grievor following his discharge on an earlier occasion. The agreement is set out in a letter from the company to the union, dated January 6, 1994. It is as follows:

"As a consequence of a medical examination conducted by Corporation doctors, it has been determined that Mr. Fisette's behaviour is not rooted in the abuse of alcohol or non-prescription drugs. The inference that is drawn from this is that Mr. Fisette must be otherwise motivated to engage himself in his anti-social activities. We are, however, cognizant of that when he applies himself, Mr. Fisette does produce acceptable work. With that in mind, coupled with the fact that he has been unemployed for eight (8) months, the Corporation is prepared to reconsider his reinstatement into service, conditional upon the following:

1. Time out of service from April 5, 1993 would be served as an uncompensated suspension.

2. Upon his reinstatement on January 10, 1994, his discipline record will stand at fifty-five (55) demerit marks and, subsequently, he will be compensated a maximum of four (4) weeks at the equivalent of the weekly indemnity benefit

3. Should he engage in insubordinate behaviour of the type which led to his April 5, 1993 discharge, Mr. Fisette will, after appropriate investigation, be discharged.

4. If the Corporation demonstrates to the Brotherhood that such misbehaviour was not as a result of supervisory actions such as harassment, Mr. Fisette will forego the opportunity for final and binding arbitration."

The grievor returned to work pursuant to this agreement - although he himself did not sign it, he clearly took advantage of its provisions - and was without discipline until March of 1995, when he was suspended for thirty days for using abusive language towards a co-worker. Thereafter he was without discipline for one year. He received a written warning for smoking in October, 1996. In October, 1997, was assessed 20 demerit marks for "inadequate behaviour and abusive language". (It may be noted that the company does not appear to have invoked the "last chance" agreement at that time). In September of 1998, the grievor was given a written warning for leaving work without permission, and later in that month was given a further warning for smoking. The events giving rise to the present grievance occurred in October, 1998.

The "abusive language" aspect of the last incident would appear to be "insubordinate behaviour of the type which led to his April 5, 1993 discharge", as contemplated in the "last chance" agreement. The material before me does not suggest that the grievor's alleged misbehaviour on the occasion now in question was "as a result of supervisory actions such as harassment", and it is, then, at least arguable that the grievor, and the union, should be taken to have foregone the opportunity for final and binding arbitration.

I do not, however, decide the matter on this ground. It is now some six years since the "last chance" agreement was signed, and over four years had passed at the time of the events in question. It is, I consider, important that such agreements generally be respected, but in the instant case the agreement appears to be of indefinite duration, and has not been relied on by the company on at least one occasion when it would appear that it might have been. For these reasons, and having regard as well to the conclusion which I reach in this matter in any event, I consider it best to make no determination on the preliminary objection.

There are several aspects of the incident or incidents on October 20, 1998 which are to be considered. At the start of the shift, when the supervisor approached employees to assign them work, the grievor, speaking to others about their lottery group, said, in the hearing of all, that he did not want a supervisor in the group because "je ne veux pas de Christ de boss dans notre groupe". This was indeed offensive language, although taken in isolation, and considering that the grievor's personality must have been known, would not of itself call for any substantial discipline.

Subsequently, however, both with respect to the assignment of a working partner and of a particular task, the grievor continued to comment and protest to the supervisor in unacceptable blasphemous language which could not be considered simply "shop talk", but which was gross and unacceptable in any working conditions. For this, the grievor was clearly subject to a substantial disciplinary measure.

Following one of his outbursts, the grievor left his immediate work location and went to speak to two other Electricians who were working a short distance away. Nothing suggests that this adversely affected the work that the grievor was required to do, in any significant way. It was, I think, really a part of the one incident and would not in itself attract the imposition of discipline. The assessment of 10 demerits on this account was, I consider, unjustified, and the grievance is allowed in that respect.

30 demerits is a heavy penalty for the offence of insubordination. This was, however, an offence for which the grievor had been disciplined on several occasions, as noted above. Even leaving aside whatever continuing force the "last chance" agreement might have, the grievor's record stood at 55 demerits, including 20 demerits assessed for a similar offence the year before and not counting a thirty-day suspension before that. To reduce the penalty assessed in the instant case to, say, 20 demerits would have no effect on the ultimate outcome of the instant case, and in any event, having regard to the whole record, and to the continuing nature of the grievor's outbursts, it is my view that there was just cause for the penalty assessed here. Accordingly, the assessment of 30 demerits is upheld. There was, I find, just cause in all of the circumstances for the discharge of the grievor for accumulation of demerit marks.

For all of the foregoing reasons, the grievance is dismissed.

DATED AT OTTAWA, this 11^th day of May, 2000.

_____________________,

Arbitrator.