(the “Employer” or the “Company”)
With respect to the following two Union grievances involving Car Mechanic G. J. Hughes:
 grievance dated November 14, 2004 about 35 demerits imposed for insubordination on September 16, 2004; and  grievance dated January 17, 2005 about 15 demerits imposed for not wearing a face shield while grinding on October 29, 2004, which resulted in the termination of his employment for exceeding a total of 60 active demerits.
D. P. Jones, Q.C. ...............................
Brian McDonagh ...............................
Dennis Wray ..................................
Ron Campbell .................................Patricia Payne ..................................Ray Mills .....................................Bruce Nixdorf .................................
HEARD at Edmonton, Alberta on May 30, 2005. AWARD ISSUED at Edmonton, Alberta on June 9, 2005.
CAW National Representative Regional V.P., Local 100
LRM, Prairie Division LRM, Edmonton Supervisor, Transcona Shops Supervisor, Transcona Shops
The Grievor, Car Mechanic G. J. Hughes, commenced employment with the Company in September 1978. Prior to the events in question, he had 20 active demerits, and his disciplinary record was as follows:
|Sep 16/04||35 Demerits||Insubordinate conduct during discussion with a supervisor|
|Aug 11/03||5 day suspension||Insubordination and failure to follow supervisor’s instructions|
|May 14/03||20 Demerits||Excessive absenteeism|
|Mar 24/03||20 Demerits||Excessive absenteeism|
|Apr 19/01||Corrective interview||Violation of CN Safety Rule 4.3.1, failed to wear hard hat after supervisor requested him to do so|
|Mar 08/00||20 Demerits||Excessive absenteeism|
|Dec 20/99||15 Demerits||Excessive absenteeism|
|Jan 29/97||10 Demerits||Violation of CN Safety Rules General Rule 1.2|
The first grievance arises out of events which occurred shortly before quitting time on September 16, 2004. The Grievor’s supervisor, Ray Mills, described these events in an email sent at 4:23 p.m. on that day as follows:
At approximately 15:45 I was walking between track 4 and 5 to talk to another employee and noticed Mr. Hughes leaning against the car at his work site. On my return at approximately 15:47, I went up to Mr. Hughes. I told him he hadn’t moved for about 10 minutes and that he should get back to work.
Mr. Hughes replied, “What are you a moron, It’s only been seven minutes”.
I replied to Mr. Hughes that he knows the rules and that he must work till five minutes before four o’clock and that I don’t appreciate being called names. Mr. Hughes then called me a moron again and tried to goad me into an argument telling me to “go ahead and call me a name then”.
I replied that I would not call him a name and that he should return to work. Mr. Hughes then started to walk around his work area and picked up a couple of pieces of scrap.
In an interview conducted five days later, the Grievor denied saying that “it’s only been seven minutes”, calling Mr. Mills a moron a second time, or trying to goad him into an argument. He did admit that he called Mr. Mills a moron once, and apologized for his bad manners. When asked if he had anything further to say, the Grievor stated: “Mr. Mills for the 15 years that he has been a foreman has always been sarcastic and belligerent, when he came up to me I was prepared for a confrontation.” The Union steward at the interview also articulated that:
Mr. Mills has a reputation of being confrontational and it almost seems that he enjoys belittling people. He has been seen screaming at people on the track and appears to enjoy being confrontational. Mr. Hughes is owed approximately 16,000 in back wages and this might make anybody a little impatient period. Mr. Hughes has shown extreme patience in getting these issues resolved.
The Company assessed the Grievor 35 demerits for his insubordination. The Union has grieved the severity of the discipline.
In its submission at the arbitration, the Company referred to other aspects of the alleged insubordination (swearing, alleged physical threats, thrusting his watch into Mr. Mills’ face, the presence of other employees during the incident) that were not referred to in Mr. Mills’ original statement, and which were not referred to during the subsequent interview with the Grievor.
The Company submitted that the Grievor’s insolent and defiant behaviour was serious in nature and deserving of discipline, and that 35 demerits was within the reasonable range considering the nature of the incident, the Grievor’s work-related attitude and his previous disciplinary history. Mr. Campbell referred to a number of previous cases involving insubordination in the railway industry and other contexts, as well as the discussion in Brown & Beatty’s Canadian Labour Arbitration, 3d ed. at 7:3660. Mr. Campbell noted that there had been a previous incident of insubordination approximately a year earlier, which had resulted in a 5-day suspension, which justified a significant penalty for this event under the doctrine of progressive discipline. With respect to the Union’s suggestion in the grievance that the amount of this discipline violated Attachment “C” of the Memorandum of Agreement dated March 14, 2004 between the parties reinstating the previous method and standards of discipline, Mr. Campbell submitted that the assessed amount of discipline was in line with past practice and jurisprudence. Further, with respect to the Union’s suggestion that there was confusion about the amount of wash-up time allowed at the end of shifts, Mr. Campbell noted that these expectations had been set out in writing and reviewed with all employees in July 2004, and that in any event the “obey now, grieve later” principle should be applied.
The Union objected to the expansion of the description of the events in question beyond that which was contained in Mr. Mills’ contemporaneous description thereof and which was discussed during the disciplinary interview. It described the event as “a one-time derogatory comment made by Mr. Hughes which he states ... that he should not have said”. At the disciplinary interview, both the Grievor and the Union Steward noted the Supervisor’s reputation for a confrontational attitude. Even if the Grievor’s comments amount to insubordination, it is a minor type of insubordination, and should only attract a minor penalty. Mr. McDonagh referred to a number of previous cases involving no or little discipline for minor incidents of insubordination, as well as Brown and Beatty’s discussion of the appropriate penalty for such minor offences.
In dealing with this grievance, I am not prepared to take into account any of the additional allegations about the incident which were not contained in Mr. Mills’ original description of the events and were not put to the Grievor during the interview process.
In my view, there is no doubt that the Grievor’s response to Mr. Mills was insolent and insubordinate. However, taken by itself, I would characterize the nature of this insubordination as minor, and not an outright, serious and public defiance of authority that would undermine good order in the workplace. While even minor forms of insubordination can properly attract discipline, there must be a proportionality between the nature and character of the insubordination and the discipline. In the present case, I think that 35 demerits (more than half of the allowable 60 active demerits) is too severe for the type of insubordination described by Mr. Mills. By itself, I would have thought that 20 demerits would have been proportional to the offence and sufficient to bring home to Mr. Hughes the fact that his behaviour was inappropriate.
In some cases, progressive discipline might justify the imposition of greater discipline for an event which, by itself, would attract lesser discipline. Although the Grievor was suspended for five days for insubordination approximately one year before this incident, it does not follow that progressive discipline is required in the present case or would justify an increased penalty. There is no evidence of a continuum of insubordinate behaviour; two incidents separated by a year do not necessarily constitute a pattern. Accordingly, in my view there is no justification to increase the discipline beyond the 20 demerits which I identified in the previous paragraph as being appropriate for the incident viewed on its own.
Accordingly, my award is that the first grievance is successful, and the number of demerits for the event on September 16, 2004 are reduced from 35 to 20.
The second grievance involves an incident on 27 October 2004 when the Grievor was grinding on a car with the face shield of his PPE helmet up—a safety violation for which he was assessed 15 demerits. Because this took his active demerits over the allowable 60, it resulted in the termination of his employment.
The Company had distributed a revised version of CN’s Safety Rules to all employees in June 2004. The Grievor was one of only 6 out of 307 employees who had refused to sign a document confirming that they had received, read and agreed to comply with the rules in the safety manual. As a result, Superintendent Martynuk personally reviewed each rule in the Safety Manual with Mr. Hughes over a number of weeks to mid-August.
On September 21, 2004, Superintendent Nixdorf had observed the Grievor grinding with the face shield in an upright position, and had counselled him about this violation of the safety rules (which the Grievor acknowledged).
In accordance with the Company’s discipline policy, Superintendent Martynuk interviewed the Grievor on October 20, 2004 after the Grievor had accumulated more than 40 active demerits as a result of the incident described in the first grievance above, to make certain that the Grievor was aware of his precarious position concerning his employment if he were to receive more than 60 active demerits.
On October 27, 2004, the Grievor was working on the day shift on a project repairing the steel plate floors on Gondola-type cars. Supervisor Nixdorf observed him grinding on the southwest corner top rail of a car with his face shield in an upright position. The Company assessed the Grievor 15 demerits for this safety infraction.
For the Company, Mr. Campbell submitted that there was no doubt that the Grievor’s action breached the Company’s safety rules, and that he was aware of the applicable rule. Safety rules must be complied with 100% of the time. Fifteen demerits is well within the recognized range for this type of safety infraction. In addition, a harsher penalty would be justified under the doctrine of progressive discipline, as this was not his first safety infraction and he had been recently counselled about this very type of breach. There were no mitigating factors. Mr. Campbell referred to a number of previous arbitral decisions about discipline for breaches of safety rules.
For the Union, Mr. McDonagh pointed to the Grievor’s explanation during the disciplinary interview that he wears bifocal safety glasses so needs to raise the face shield to see what’s going on, and he just absent-mindedly started grinding without lowering the shield. This incident should be treated as a minor infraction; 15 demerits was unreasonable. Mr. McDonagh referred to a number of previous arbitral decisions dealing with appropriate discipline for minor infractions of safety rules.
I am not inclined to alter the 15 demerits imposed by the Company on the Grievor for this infraction of the safety rules. There is no doubt that the relevant rule required the face shield to be in place whenever any grinding took place. There is no doubt that the Grievor knew this rule—he had been counselled on this very rule shortly before this incident, and had been taken through the safety manual earlier in the summer. As I have noted before, safety is not negotiable and not optional; safety rules must be complied with 100% of the time.
As a result of the outcome of these two grievances, the Grievor would have had 55 active demerits as of October 27, 2004, and therefore would not have been subject to dismissal under the 60-demerit rule. The Grievor’s employment shall be reinstated, and he shall be made whole financially.
I retain jurisdiction to settle the amount of any compensation payable, as well as any other issues related to the implementation of this Award.
SIGNED, DATED AND ISSUED at Edmonton, Alberta on June 9, 2005 by:
D. P. Jones, Q.C., Sole Arbitrator