IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN PACIFIC RAILWAY
AND NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW/TCA)
AND IN THE MATTER OF THE GRIEVANCE OF J.D. MARTENS (40 DEMERITS)
SOLE ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Winnipeg on April 29, 2003.
B. McDonagh, for the union.
J. Bate, for the company.
AWARD
The Statement of Fact and Issue in this matter is as follows:
Dispute: Discipline - 40 demerits debited against Carman James D. Martens’ record on July 30, 2001.
Statement of Fact:
On July 30, 2001 Carman James D. Martens’ record was debited 40 demerits for:
“ - - leaving the Company property without authorization and directing threatening comments of physical harm to a fellow employee on July 12, 2001.”
Statement of Issue:
It is the contention of the Union that
- the Company violated Rule 28.1 and 28.2 of the Collective Agreement by combining two fundamentally different offences into the same investigation thereby rendering the statement taken in connection with the issues unfair and partial.
- the Company did not establish wrong doing on Carman James Martens’ behalf sufficient to give the Company cause to discipline him by debiting his record with 40 demerits.
- Carman James Martens was treated in an arbitrary, discriminatory and an excessive manner in regard to the 40 demerits debited against his record.
Therefore, with regard to the foregoing, it is the position of the Union that the discipline of 40 demerits debited against Carman James D. Martens should be removed from his record.
The Company denies the Union’s contentions and claim.
Rule 28 of the collective agreement deals with investigations and grievance procedures. It provides that discipline may not be imposed on an employee until there has been a fair and impartial investigation and responsibility established. Nothing would appear to limit the investigation to just one head of discipline. In this case, the alleged threat and the early departure from work by the grievor occurred within a few minutes of each other. No objection was taken to the investigation relating to both subjects, and I do not consider there would have been proper grounds for such an objection in the circumstances. There was no violation of Rule 29.
There is no doubt that the grievor did leave work early, without authorization. The grievor advanced two reasons for this. One was that he did not like working for the supervisor assigned that night. The grievor considered that the supervisor watched him excessively, or spied on him. This view was not shared by the grievor’s work mate, and there is no evidence to support it. The supervisor did, quite properly, check from time to time on the work being done. The second reason given by the grievor was that he was “in immense pain recovering from my injury and could not continue working”. There is no evidence as to what the injury was, and it may be noted that this statement is said to have been made at 16:50, the grievor’s shift having started at 16:00. The grievor agrees that he did not receive permission from the supervisor to go home.
In these circumstances, I find that the grievor did leave work early without permission. While there may be circumstances of severe illness or accident where permission to leave may be difficult or unnecessary to seek, no such justification has been shown in this case. The grievor was clearly subject to discipline. His record stood at 10 demerits for insubordination, and in all of the circumstances I do not consider that the assessment of 20 demerits on this account was excessive.
The second head of discipline is that of uttering threats. The essence of the company’s case in this regard is set out in the statement of the supervisor, Mr. Chirko, in whose presence the statements were made. The material portion of his statement is as follows:
On July 12, 2001 a approx. 16:05 I came out of my office in the car shop to give out the jobs for the day. When I came onto the track I saw [the grievor] & l. Wiese sitting in Larry’s truck just outside track W39 at the east end talking to Rick Marten. I approached the two in the truck and was going to give them their jobs then so I did not have to go over to the tank track to do it. When [the grievor] saw me he told Larry if I am there to take him to the bus stop because he was going home. He said that [he] was not going to work for me because I am always watching him and checking up on him and he has a medical condition and will not take it. He said he had not taken his medication either. He thinks that I am out to get him and do not know what I am trying to prove. He said he has everything written down everytime I come by and what I do. He also said that I give extra treatment to my buddies like Brad & Bruce & Rodney. He said I am at the bottom of his list below Dino (Musto) which he wanted to put a bullet in his head. But he would not do this to me because I have a nice kids and family. I told [the grievor] that I am not out to prove anything and have no problem with him, he is good worker and mechanic. Larry told me just to ignore him he was just in one of his moods. He convinced [the grievor] to go to work at the tank track. - - .
In his statement, the grievor’s workmate, Mr. Wiese (Larry), said that the grievor did not say the words about sparing Mr. Chirko because of his nice kids and family, but that he did say that Dino Musto “was a boss he would of had no trouble putting the sights on”. It seems the grievor last worked for Mr. Musto some seven years previously. The grievor, with respect to these statements, said:
I can’t remember exactly what I said. I do know that what I said was a reference in comparison as to how I felt so angry after working for Dino then going home miserable to my family who I love, I trying to convey to Don [Chirko] that he may feel the same way.
This incident was, quite properly, reported (apparently the next day), to the Canadian Pacific Police, who investigated the matter. The text of the police report is as follows:
Report of [grievor] uttering threats against Don Chirko July 12, 2001 at 17:00. Cst. Beaudry and I attended at the Car Dept. and took a statement from Car Foreman Don Chirko concerning same. Mr. Chirko did not want charges laid, but wanted our service to know about the incident. On July 15, 2001 Cst. Beaudry attended the Weston security office with Constable K.A. Gelowitz and met with Dennis Flynn, Car Department Supervisor. They awaited [grievor] to arrive to work. Same arrived at 15:45 and was removed from service by Flynn while in their presence at the office. [Grievor] was also advised that the incident between he and Chirko verged on the edge of a criminal charge of uttering threats. Flynn offered to take [grievor] home, which he agreed to. Matter to be handled internally. Matter concluded.
Violence, or the threat of violence in the workplace is a matter to be taken very seriously, and dealt with very carefully. The matter was properly referred to the police, and at the same time properly made the subject of a disciplinary investigation. There is the suggestion in the material before me that the grievor made two threats: one against Mr. Musto, one against Mr. Chirko. The threat against Mr. Musto was not a direct one, and perhaps not one of which Mr. Musto became aware. It would appear really to have been an expression of the grievor’s continuing anger against Mr. Musto, anger which, justified or not, the grievor appears to have been nurturing for years. In all of the circumstances, I do not think it can properly be concluded that there was a real threat against Mr. Musto. As to Mr. Chirko, while, as the police report says, the grievor’s words may have “verged on the edge” of criminality, it is clear that the grievor did not threaten him. While Mr. Chirko was understandably upset by the incident, he does not appear to have considered that the grievor had threatened to kill him, nor do I consider that the grievor’s unprovoked angry remarks can properly be taken that way. He was, as his co-worker said “in one of his moods”, but those moods, as the evidence shows, are a serious matter. The company was right to treat the matter as seriously as they did, but in the result it has not been shown that threats were in fact uttered, and the discipline imposed on that ground must accordingly be set aside.
For all of the foregoing reasons, the grievance is allowed in part. The 40 demerits assessed against the grievor’s record are to be reduced to 20.
DATED AT OTTAWA, this16th day of May, 2003.
,
Arbitrator.