(the “Employer”)








(the “Union”)


(Frank De Oliveira Grievance KM10147)





ARBITRATOR:                                                                Vincent L. Ready


COUNSEL:                                                                     Jennifer Love

                                                                                       for the Employer


                                                                                      Brian Stevens

                                                                                      for the Union


HEARING:                                                                      February 7 and 8, 2012

                                                                                      Winnipeg, Manitoba


DECISION:                                                                     March 16, 2012











The parties agree that I am properly constituted as an arbitration board with jurisdiction to determine the matter in dispute.



Appeal of discipline and accumulation of demerit marks assessed to the record of Frank De Oliveira, the grievor.



During the scheduled morning coffee break on October 15, 2010, Supervisors Dave Ball and John Pontes arrived in the lunchroom to inform the employees about an evacuation near Area 4.  Employee Pat Briere inquired as to why Diesel Mechanics were going into the yard and working by themselves.  Supervisor Pontes indicated that they were likely going to assign an apprentice to work with Mr. Jeff Kuczma in the yard that day, which prompted Mr. Frank De Oliveirato interject that this was favouritism.  This began an animated discussion between the grievor and Jeff Kuczma, ending with both of them leaving the lunchroom separately and without further incident.


A number of investigations took place in advance of the grievor’s October 29, 2010 investigation.  Following Mr. De Oliveira’s investigation, he was issued 30 demerits for “engaging in a verbal altercation with a fellow employee, at Winnipeg Locomotive Reliability Centre lunchroom on October 15, 2010”.


The Union contends that the investigation was not fair and impartial as required by Rule 28.1 and that the discipline assessed was without just cause and should be removed from the grievor’s file.


The Company disagrees with the Union’s contention and has declined the Union’s grievance.




Article 28.1 clearly states that no employee shall be disciplined or discharged until he/she has had a fair and impartial investigation and his/her responsibility established.  Based on the information presented by Counsel for both parties, I am convinced that the investigation was fair and impartial.  While the Union may have wished that additional employees were interviewed, there is no evidence of bad faith or that the outcome of the investigation was in any way predetermined.


Turning to the appropriate response to the incident itself, arbitration boards traditionally ask three questions when assessing a disciplinary response.  First, did the grievor’s conduct give rise to just cause for some form of discipline?  Second, if so, was the disciplinary response of the employer appropriate having regard to all of the circumstances; and, third, if the discipline chosen by the employer was excessive, what is the appropriate discipline to be imposed.


Under the circumstances, I conclude that the grievor’s actions gave rise to just cause for discipline.  The altercation at issue involves an exchange during which the grievor suggested, after some verbal bantering in the lunchroom, that they “take it outside”.  There is no doubt in my mind that an offer to take it outside was an invitation to settle the matter in a more physical way.  Therefore, I agree with the Employer that the invitation was intended to escalate the nature of the altercation from verbal to physical.  As such, it is important to send a clear and definitive message to the grievor, and all employees, that such aggression will not be tolerated.


I accept that there are mitigating factors such as the absence of any history between the two employees, no clear cut provocateur and the fact that neither one of them felt threatened.  Ultimately, despite the actions of both Kuczma and the grievor, the matter did not escalate.  In addition, the fact that the grievor is a 20 year employee must be considered to be a mitigating factor which demonstrates that he is able to behave appropriately and has done so for a sustained period of time.  However, his behaviour on October 15, 2010 was inappropriate.


Violence and/or the threat of violence between employees constitutes unacceptable conduct.  Employees need not work in fear of being accosted or threatened by co-workers.  The employer has every right, and indeed has a responsibility to intervene and take action to ensure this does not occur.  [SHP Case No. 459 (Picher)].


Violence in the workplace is a serious safety concern and employers have the right to treat any such threat to workplace safety in a serious manner.  The workplace is not a tea party in that momentary flare-ups may happen but even though the incident did not involve physical injury, the nature of the offense is a serious disciplinary infraction which will normally attract a significant disciplinary response because it creates an atmosphere that interferes with an employer’s legitimate business interest in maintaining a safe and productive workplace.  [CROA Case No. 2129; SHP 459].


The jurisprudence clearly indicates that the purpose of discipline is to correct inappropriate workplace behaviour.  The grievor was assessed 15 demerit points fairly recently, on July 29, 2010 – approximately three months prior to the present incident – when he was involved in a verbal altercation on June 7, 2010.  The grievor did not contest those demerits.  Normally, a second similar situation would merit a more severe disciplinary response in the Brown System of discipline.


However, with respect to the submissions related to the doubling of demerit points, I find those submissions to be irrelevant because it is for the arbitration board to determine the appropriateness of discipline imposed for any given infraction.  That is, after making a determination as to whether the conduct of the grievor warranted discipline in the first instance, the arbitrator must weigh all of the mitigating factors such as the seriousness of the offense; consideration of whether the conduct was premeditated or a momentary emotional aberration; the length of service with the Employer; whether more moderate forms of corrective discipline have been attempted without success; and other mitigating factors.  This list, while not exhaustive, provides a proper framework with which to judge the present circumstances.


Applying the foregoing analysis to the facts at hand, it is apparent that the grievor’s conduct in the present case mirrors his earlier conduct for which he received 15 demerit points.  What is noteworthy is that the previous employment infraction occurred within three months of the present infraction.


In all of the circumstances, I am satisfied that the issuance of 30 demerit points was appropriate.  Accordingly, the grievance is dismissed.


It is so awarded.


Dated at the City of Vancouver in the Province of British Columbia this 16th day of March, 2012.

                                                                             Vince Ready's Signature (blue) 20001


                                                                             Vincent L. Ready