SHP 571





BETWEEN:†††††††††††††††††††††††††††††††††††††††† CANADIAN NATIONAL RAILWAY COMPANY










SOLE ARBITRATOR:††††††††††††††††††††††† J.F.W. Weatherill



A hearing in this matter was held at Winnipeg on October 9, 2003.



B. McDonagh, for the union.


K. Guiney and D. Fisher, for the company.




†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† AWARD




The Dispute and Joint Statement of Issue in this matter are as follows:





30 demerits debited against the record of Car Mechanic J. Rindall, Employee # 175436 and in addition an eight (8) day suspension on February 25, 2002, Transcona Car Shop, Winnipeg.







Statement of Fact:


On February 25, 2002 J. Rindallís record was debited with 30 demerits and he was also suspended for eight days for :


ďAbus[ive] language and insubordination directed towards a supervisor.

Suspension (February 15 - February 22, 2002)Ē.


Statement of Issue:


It is the contention of the Union that:


- The Company did not establish wrong doing by Car Mechanic J. Rindall sufficient to debit his record with 30 demerits and also suspend him for eight (8) days for the same infraction.


- The Company has disciplined Car Mechanic J. Rindall twice for the same alleged infraction.


- Car Mechanic J. Rindall was treated in an arbitrary, discriminatory and an excessive manner in regard to his record being debited with 30 demerits and his also being suspended for eight (8) days for the same alleged infraction.


- Therefore, with regard to the foregoing, it is the position of the Union that:


- the thirty demerits recorded against Car Mechanic J. Rindallís record should be removed; and


- Car Mechanic J. Rindall be reimbursed forthwith, full redress for all wages, benefits and losses incurred as a result of his suspension, including, but not limited to, interest on any moneys owing.


The Company denies the Unionís contentions and claim.


The grievor has been employed by the company since 1976, and at the time of the incident in question, his discipline record stood at 25 demerits.† Those demerits were assessed in respect of an offence similar to that alleged in the present case, in February 2001, and would perhaps have been reduced by the passage of time had the grievor not been laid off from November 20, 2001 to January 11, 2002.

From the material before me, I conclude that there was in fact an incident of insubordination at the time in question.† The grievor did, I find, address foul language toward a supervisor as he passed him in the corridor on the way to lunch, addressing him as a ďfucking idiotĒ.† This was not just shop talk, but was deliberately offensive, and was properly the cause for discipline.† I do not consider, however, that the grievor can properly be considered to have uttered any sort of threat against the supervisor, nor that the supervisor could reasonably have considered (although he may naturally have been concerned), that any serious threat had been uttered.


The deliberate direction of foul language against a supervisor constitutes insubordination.† Insubordination is not limited to cases of improper refusal of a direct order, but may generally include cases where the authority of management is deliberately undermined.† That was the effect of the grievorís conduct and language in this case, and I have no doubt that he was properly subject to discipline in the circumstances.


I do not consider, however, that under the Brown system of discipline, in effect on the property, it was appropriate both to assess demerits and to suspend the grievor pending investigation.† The Brown system is one of progressive discipline involving the assessment of demerit points.† In exceptional circumstances, employees may be suspended pending investigation, but on the material before me I am not persuaded that such circumstances obtained in the present case.† It should not be said, however, that the grievor was penalized twice for the same offence.† The penalty was, rather, a complex one, which in some circumstances may have been justified, but in the present case was not.


Had I considered that the grievor had in fact uttered a threat against the supervisor, I would agree that the assessment of 25 demerits would be appropriate.† Since that is not the case, having regard to the nature of the incident and the grievorís record, it is my conclusion that a penalty of 15 demerits would not have gone beyond the range of reasonable disciplinary responses to the situation.




Having regard to the foregoing, it is my award that the assessment of 25 demerits be reduced to one of 15 demerits, and that the grievor be reimbursed for loss of earnings and benefits during the period of his suspension.† This is not a case in which an award of interest should be made.



DATED AT OTTAWA, this 27th day of October, 2003,



Original signed by: J.F.W. Weatherill††† †,