IN THE MATTER OF AN ARBITRATION
VIA Rail Canada Inc.
National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada)
re: GRIEVANCE OF JEAN GUY BEAUCHAMP
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
A. Rosner – National Representative, Montreal
J. Young – Vice-President, Local 100
M. Varennes – Witness
J-G Beauchamp – Grievor
Appearing For The Company:
E. J. Houlihan – Senior Manager, Labour Relations, Montreal
D. Trubiano – Senior Officer, Labour Relations, Montreal
A hearing in this matter was held in Montreal on Monday, February 2, 1998.
This arbitration concerns a grievance against discharge, arising from two incidents of discipline. The grievor, Mr. J.G. Beauchamp, an electrician at the Montreal Maintenance Centre of the Corporation, was assessed sixty demerits for abusive language and conduct towards a fellow employee, and a further thirty-five demerits for threatening supervisors. The Union denies that the grievor threatened his supervisors. While it acknowledges that there was a verbal confrontation between Mr. Beauchamp and another employee in a cafeteria, it submits that the assessment of sixty demerits for that incident is not justified, and that in fact no discipline should have resulted. It further argues that the alleged threat made by the grievor to two supervisors was more in the nature of a foolish comment, not intended to be taken seriously, and therefore not deserving of thirty-five demerits. The Corporation maintains that the penalties assessed against Mr. Beauchamp were reasonable, having regard to the incidents themselves and to his past disciplinary record.
There is some contradiction in the evidence before the Arbitrator with respect to the facts of the first incident. It is common ground that a verbal altercation occurred between Mr. Beauchamp and employee Michel Bélanger, during the course of their lunch break in the cafeteria at or about 11:45 a.m. on April 18, 1996. The cafeteria is described as a large facility, with some twenty tables, accommodating perhaps as many as 250 people. According to a written complaint filed by Mr. Bélanger, upon entering the cafeteria he sat at his normal table, where Mr. Beauchamp was already seated. He relates that as Mr. Beauchamp was taking up a considerable space and hitting him with his elbow as he ate, he politely asked him to give him a little more space. According to Mr. Bélanger’s account, Mr. Beauchamp immediately reacted with a loud and harsh verbal attack upon him, calling him, among other things: “gros crist de porc, gros cochon, gros pourri”, telling him to stop talking to him and to go and sit elsewhere. Mr. Bélanger relates that he stayed cool, calmly told the grievor that he did not find his words appropriate, and stated that he had no intention of moving. According to his account this provoked a further outburst from Mr. Beauchamp, which resulted in Mr. Bélanger telling him that he would file a complaint. This prompted still more from Mr. Beauchamp who allegedly stated: “T’es bien mieux de ne pas te frotter ŕ moi, mon gros sale, gros hostie de porc, gros crist de cochon de pourri …”, whereupon Mr. Beauchamp left the cafeteria.
A different account of the incident is related by the grievor. Mr. Beauchamp states that he was seated alone at a twelve person table, with one space available to his left, when Mr. Bélanger arrived. He states that Mr. Bélanger removed the grievor’s lunch bag from the bench, immediately to Mr. Beauchamp’s left, and placed it on the floor, sitting himself down immediately to Mr. Beauchamp’s left. As he is left handed, Mr. Beauchamp suspects that he may have brushed Mr. Bélanger while eating, which caused him to complain. Mr. Beauchamp states that in response he simply said: “Listen, if you’re not happy just change places. There’s lots of room here, and you can see that I’m left-handed so just sit on my right and there’ll be no problem [translation].” Mr. Beauchamp states that Mr. Bélanger responded that he would not move. Mr. Beauchamp states that he then did get up to leave, and in doing so called Mr. Bélanger “mon morceau de cochon”, and left the cafeteria without finishing his meal. He states that as he was leaving Mr. Bélanger indicated that he would file a complaint, to which he responded he could do as he liked.
The account of witness Marcel Varennes tends to corroborate the evidence of Mr. Beauchamp. He confirms that the grievor was seated alone at his table in the cafeteria, and that Mr. Bélanger came and sat immediately to his left, moving the grievor’s lunch bag onto the floor in order to do so. His account differs somewhat from Mr. Beauchamp’s in that he states that after a verbal confrontation between the two, the content of which he could not hear, Mr. Beauchamp got up and moved to other end of the table, on the opposite side. According to his account some eight minutes later Mr. Beauchamp rose and left the cafeteria.
Following a disciplinary investigation, the Corporation assessed the dismissable level of sixty demerits against Mr. Beauchamp for the cafeteria incident. It justifies that measure of discipline on the theory that what occurred was a culminating incident which, viewed against the grievor’s background of prior discipline for abusive language towards supervisors, on some four occasions, as well as an extensive suspension for abusive language and threats to a fellow employee, and two verbal reminders, albeit not disciplinary, in September of 1993 and April of 1995, with respect to the use of abusive language, discharge was appropriate in the circumstances.
The Union submits that the incident discloses a measure of provocation by Mr. Bélanger, given the corroborative account of Mr. Varennes, which indicates that Mr. Bélanger sat immediately next to Mr. Beauchamp, moving his lunch bag to the floor to do so, thereby setting up the conditions for the encounter that ensued. Its representative stresses that the grievor’s disciplinary record contained no demerits at the time of the incident, and argues that the assessment of a full sixty demerits for the incident is plainly excessive. He submits that given the account of the incident related by Mr. Beauchamp and corroborated, in part, by Mr. Varennes, no discipline whatsoever should have issued.
The second incident flows from the first. It appears that following the cafeteria incident Mr. Bélanger complained to his supervisor, Mr. Livingstone, about Mr. Beauchamp’s comments. Mr. Livingstone next met with the grievor’s supervisor, Mr. Lussier. It appears that both supervisors then spoke to Mr. Beauchamp, advising him of the complaint received from Mr. Bélanger, and the unacceptability of the conduct related. It seems they then counselled Mr. Beauchamp to avoid meeting with Mr. Bélanger, leading him to believe that that would be the end of the matter. It also appears that Mr. Livingstone advised Mr. Bélanger that nothing further would come of the incident unless he filed a formal written complaint. Mr. Bélanger did so on his next working day, April 22, 1996.
Having received the formal written complaint from Mr. Bélanger, management decided to suspend the grievor, on the same day, pending a disciplinary investigation into the allegations. Operations Supervisor Richard Proulx and Maintenance Foreman Pierre Lussier then proceeded to the grievor’s work bench to advise him that a complaint had been received and that he would be suspended pending the investigation. The two supervisors accompanied Mr. Beauchamp to his locker, and then to the parking lot to leave the premises. They relate that on the way to the parking lot, when Mr. Lussier reminded the grievor of the entrance to use when he returned for his investigation, Mr. Beauchamp responded to the effect that he might come back with a gun. According to the account of the supervisors, when Mr. Lussier immediately responded that that was not something that he should be saying, and that it was precisely words of that kind which had got him into trouble, Mr. Beauchamp immediately replied “Come on, guys, it was just a joke [translation]”. The supervisors agree in their account that the grievor immediately thereafter offered to both of them to join him for a beer, an invitation which they declined.
The supervisors filed a written report of the parking lot incident, dated April 25, 1996. They explain their decision to do so in the following terms:
Vu les antécédents de Monsieur Beauchamp, nous avons cru qu’il était de notre devoir de ne pas ignorer ces propos menaçants et de vous en informer.
It appears from the foregoing that the supervisors felt that the grievor’s previous record was such that his statements should be taken seriously.
It should be noted that the grievor’s account of his remarks to the two supervisors is somewhat different. The Union’s representative stresses that the suspension of an employee in the circumstances disclosed, based only on the letter of Mr. Bélanger, was unprecedented. He draws to the Arbitrator’s attention the evidence of Mr. Beauchamp, which is that he was at all times friendly and civil with Mr. Proulx and Mr. Lussier as they were exiting the premises. Mr. Beauchamp relates that after the supervisors told him that he should enter by the Ash Street entrance when he returned for his disciplinary interview, when one of them called out that he had something additional to say, Mr. Beauchamp replied “I suppose that you’re going to tell me that I shouldn’t come to the interview armed. [translation]”. He further relates that he immediately told them that his comment was simply meant as a joke, and that he did invite them to join him for a beer.
The Corporation’s supervisors reported the incident to the police, which resulted in a criminal charge against the grievor of uttering death threats and threatening bodily harm to Pierre Lussier. A review of the transcript of the criminal court judgement rendered on June 5, 1997 by Judge Micheline Corbeil-Laramée reveals that the grievor was fully acquitted of the charge. The learned judge found that on the evidence it was clear that the grievor experienced some frustration and anger, and that even accepting that he used the words attributed to him by Mr. Lussier, that he immediately indicated that his comments were a joke and that no offence was intended, offering to buy the supervisors a beer. On that basis the learned judge found that the evidence was not sufficient to establish that the grievor had any intention to intimidate or cause fear in the two supervisors.
Before dealing with the facts of the two incidents, the Arbitrator deems it important to review the grievor’s disciplinary record, as relates his unfortunate tendency towards excessive language and a tendency to irritate fellow employees and supervisors. Mr. Beauchamp, who is now sixty years of age, was hired into CN as an electrician in June of 1978. He was assessed twenty demerits in August of 1981 for abusive language towards his supervisor. At or about the time of his transfer into service with VIA Rail, in March of 1985, he was again assessed ten demerits for “unacceptable behaviour and abusive language towards a supervisor”. The same infraction resulted in the assessment of twenty demerits on January 27, 1987. A further twenty demerits was registered for abusive language spoken to a supervisor on December 29, 1988.
On June 20, 1990 Mr. Beauchamp was terminated following the assessment of sixty demerits for a charge of abusive language and threats to fellow employees. That incident became the subject of a grievance, and ultimately of an arbitration award of Arbitrator Harvey Frumkin, dated June 4, 1992. The award relates that on June 8, 1990 the grievor became a continuing irritant towards two other employees who were attempting to perform work involving the replacement of a compressor motor. It seems that the grievor mocked and ridiculed the way they were going about their work, which caused them to complain to a supervisor. Notwithstanding warnings to stay away from the two employees, Mr. Beauchamp kept returning to the location where the other two employees were assigned. On one occasion, when one of the employees warned the grievor to stay away from them, at a time when it appears that the grievor was holding his penknife in his hand, Mr. Beauchamp reportedly stated “I’ll kill you”. It appears that when the incident was reported, and the grievor was suspended pending further investigation, as he left the office of the maintenance superintendent, the grievor again said he would kill the employee in question, a comment which was allegedly repeated over the telephone in a personal call to the same employee that evening, a call apparently made for the purpose of trying to make up.
Arbitrator Frumkin found that there was no substance to the suggestion that the grievor intended a serious threat of death or physical harm. He noted that the fact that the grievor had his penknife in hand, an item he used as a tool in stripping wires and for cleaning his nails, at the time of the verbal exchange with the employee was more coincidental than intentional. At pp. 7-9 Arbitrator Frumkin comments as follows:
The circumstances were such that the fact of the Grievor having the pen knife in his hand was in no way related to any intended exchange with Mr. Kucey who, entirely unprovoked, approached the Grievor from some distance. In this regard it is to be assumed that Mr. Kucey had been so sensitized to the Grievor's presence by the events of that morning, that he believed that the Grievor's purpose in exiting the unit could only have been further harassment and interference in his work. It was for this reason that Mr. Kucey, of his own accord, as he testified at the hearing, suddenly decided to approach the Grievor simply to warn him to refrain from any interference in the work being performed by Mr. Beaudoin and himself.
The Arbitrator accepts that the Grievor's response was as Mr. Kucey described it. But the response was strictly a verbal one and the pen knife just happened to be apparent while the threat was uttered. As far as the Arbitrator is concerned, the pen knife played no role in the threat, nor was there any intention that it play a role. Mr. Kucey may have perceived it as intimidating, but such a perception could in no way have been justified in the circumstances. The Grievor did not take out the pen knife for the occasion, nor was it exhibited in an offensive or aggressive manner. It was the Grievor who was approached by Mr. Kucey and not the reverse and Mr. Kucey was quite able to return forthwith to his work site to confer with Mr. Beaudoin. The utterance of the Grievor, in whatever form it may have taken, given its context and the background circumstances, simply does not take on the form of a threat that should have been taken at face value.
Nor does the Arbitrator doubt the evidence of Mr. Kucey upon the matter of subsequent threats. But these were uttered after the fact, when a man's job had suddenly become the issue by reason of a course of action that he believed to be completely unwarranted. One such threat was uttered in the heat of the moment, minutes after the Grievor was instructed to return home, and a second threat uttered during the course of one or a series of telephone calls over which the Grievor invited Mr. Kucey to accompany him and his wife to be for a coffee to discuss the matter. On the whole, the Arbitrator accepts the utterances attributed to the Grievor, but upon close scrutiny and appreciation of the context and individuals involved, believes quite strongly that they amounted to little more than empty words. This is not to say that the utterances were not serious and that words, whether intended or not, can be intimidating, but the Arbitrator cannot say that there was any real or genuine intent on the Grievor's part to in any way harm or injure Mr. Kucey.
After due consideration, the Arbitrator perceives the events of June 8, 1990, as an unfortunate exchange which developed on a hot day between an employee who lacked the good sense to realize that his ill‑conceived commentary could only serve to annoy, irritate and incline fellow employees working under arduous conditions to overreact at what would inevitably become a breaking point and another employee who, by his nature, would have been particularly sensitive to such commentary. When the breaking point was reached the result was an uncalled for warning by Mr. Kucey and an uncalled for threat uttered by the Grievor, from which point the exchange took on a new and unjustified perspective when management was called on to investigate what really amounted to no more than a petty dispute between two somewhat immature individuals over work procedures. The consequences, of course, were most unfortunate for the Grievor and as far as the Arbitrator is concerned, were somewhat disproportionate to the gravity of what actually took place.
Arbitrator Frumkin determined that it was appropriate to reinstate the grievor in the circumstances, without compensation. At p. 10 of the award he reasons as follow:
The Grievor was an employee of twelve years' standing. He was not a violent man, although his record is far from exemplary and does manifest evidence of occasions in the past when his manner of dealing with fellow employees was abusive and insulting. This very manner and approach of the Grievor, as exhibited during the course of the incident which led to his discharge, was at the root of the incident which occurred on June 8, 1990, so that the Grievor must shoulder most of the blame for what transpired thereafter. This said, however, this is not a case of an employee who introduced a weapon into the work place for the purpose of threatening another or who uttered threats with any intent or conviction. Mr. Kucey, sensitized by what had taken place earlier that morning, may have perceived the threats as serious, a perception which was highly subjective and certainly questionable. The decision of the Company is based upon what it regarded as a serious threat accompanied with an offensive weapon and a corresponding intent, but as far as the Arbitrator is concerned, these elements, grave as they would certainly be, are simply not present. For these reasons the Arbitrator is inclined to believe that the incident was blown out of all proportion in terms of its gravity and that the assessment of sixty demerit marks and the consequences that such assessment carried were both unjustified and inappropriate to the circumstances so that reinstatement is clearly indicated.
I deem it important to record the above award, as it is necessary to place the incidents which are the subject of the instant grievance in a proper context. Significantly, it would appear that Supervisors Proulx and Lussier may not have fully accepted the conclusion of Arbitrator Frumkin to the effect that the verbal threat made by Mr. Beauchamp was not intended as a serious death threat. That would appear to flow from the final paragraph of their letter of complaint which cites the grievor’s prior record as a justification for reporting what they perceived as a further threat. Also, in his letter of April 21, 1996, Mr. Bélanger states “I take the threats made by Mr. Beauchamp very seriously [translation]”. As Mr. Bélanger did not testify at the arbitration hearing, the Arbitrator has no basis upon which to understand what Mr. Bélanger means by threats made against him by Mr. Beauchamp. The evidence is devoid of any direct threats towards him, and such utterances as might be viewed as a threat were made only later, out of Mr. Bélanger’s presence, on April 22nd. Mr. Bélanger’s letter, dated April 21, 1996, seems to indicate that his greatest offence was taken at the porcine references used by Mr. Beauchamp, and the repeated use of the word “fat”, “which made of me the subject of jokes and sarcasm by certain other employees, especially following the proliferation of threats towards me by Mr. Beauchamp [translation]”. It is not clear, on the evidence, whether Mr. Bélanger makes any real distinction between insults and threats. Whatever Mr. Bélanger’s intention, there can be little doubt, as reflected in the record, that the two supervisors appear to be under the questionable impression that Mr. Beauchamp had previously suffered a lengthy suspension for uttering a serious death threat against an employee. I am satisfied that that perception somewhat coloured their reaction to the grievor’s conduct in respect of the incidents which are the subject of this arbitration.
The first matter to be addressed is the confrontation in the lunch room.
The Arbitrator has some difficulty accepting the gravity attributed to the cafeteria table incident of April 18, 1996 by the Corporation. I am satisfied, on the balance of probabilities, that the account of events corroborated by Mr. Varennes is accurate, and that Mr. Bélanger, for reasons he best appreciates, moved the grievor’s lunch bag to the floor and sat immediately next to him at a table which was otherwise empty. There is, in my view, little doubt that the grievor would have raised his voice and used abusive language towards Mr. Bélanger when the latter asked him to give him more room, and refused to move himself. While it may be that the incident caused some embarrassment to Mr. Bélanger, it is difficult to characterize it other than as a petty, almost childish, encounter between two employees who should have known better. Bearing in mind that the grievor then had a clear disciplinary record, it is far from obvious to the Arbitrator that the complaint made by Mr. Bélanger, a complaint which, it may be noted, caused no initiation of formal disciplinary action by his supervisor when it was first related verbally, would have justified the immediate removal of the grievor from the workplace, an effective suspension pending a disciplinary investigation. While I am satisfied that the incident does reveal an excessive reaction to Mr. Bélanger on the part of Mr. Beauchamp, it is difficult to avoid the conclusion that Mr. Bélanger showed equally poor judgement and insensitivity in moving the grievor’s lunch bag onto the floor and placing himself in the one seat at the otherwise vacant table, immediately to Mr. Beauchamp’s left, bearing in mind that Mr. Beauchamp is left handed. It is also not insignificant, in the Arbitrator’s view, that in the face of what occurred it was the grievor, and not Mr. Bélanger, who withdrew from the scene.
To be sure, the Corporation is justified in looking to the grievor’s prior record in considering the appropriate discipline to be assessed against Mr. Beauchamp for the incident in the cafeteria on April 18, 1996. While the grievor’s history of prior verbal altercations and abusive language would, in that circumstance, justify a more severe measure of discipline, weight must also be given to the fact the he had no demerits against his record at the time of his encounter with Mr. Bélanger. The Arbitrator cannot accept that an employee of twenty years of service, with a clear record at the time, merited sixty demerits and summary dismissal for a petty verbal altercation with another employee who himself exhibited questionable judgement. In my view the assessment of twenty demerits for the cafeteria table incident would have been appropriate in the circumstances.
Somewhat greater concern arises with respect to the ill-advised words used by Mr. Beauchamp when he was being escorted from the premises by Supervisors Proulx and Lussier. Upon a review of the record, the Arbitrator shares the conclusion of the criminal court judge, namely that the grievor had no intention of making a serious death threat, and that that should have been reasonably evident to the two supervisors. As to the words used, the Arbitrator is inclined to prefer the account of the supervisors, which would suggest that the grievor off-handedly remarked “Maybe I could come back with a gun” when they reminded him of the time and place of the disciplinary investigation. Given the grievor’s immediate retraction, and offer of sharing a beer, however, I cannot conclude that they were justified in their opinion that the words were intended as a serious threat, justifying the bringing of criminal charges, in addition to the assessment of thirty-five demerits.
The case before the Arbitrator discloses that Mr. Beauchamp is an individual given to foolish utterances who has repeatedly been obnoxious towards fellow employees and supervisors, becoming a thorn in the side of many in the workplace over the years. Like any employee, however, he is entitled to be judged on the merits of his conduct in any matter relating to a specific disciplinary penalty. In assessing the appropriate disciplinary penalty, regard must be had to the length of his service, as well as to all of his prior disciplinary record, including the fact that his record was discipline free at the time of the incidents on April 18, 1996, and had been so apparently since June of 1995. There is, in the entire scenario disclosed, a measure of overreaction to the conduct and words of Mr. Beauchamp, reminiscent of the facts in the prior arbitration award, in which Mr. Frumkin found the grievor’s discharge to be “disproportionate to the gravity of what actually took place.” Those words, in my view, fairly characterize what occurred in the instant case, although the grievor is plainly not without fault.
For the reasons noted above, the Arbitrator is satisfied that twenty demerits should be substituted for the sixty demerits assessed against Mr. Beauchamp for his verbal confrontation with Mr. Bélanger in the cafeteria on April 18, 1996. I am satisfied, on the balance of probabilities, that Mr. Beauchamp did not intend a serious threat towards Mr.. Lussier, Mr. Proulx, or indeed Mr. Bélanger, by the thoughtless “joke” he uttered as he was being escorted from the premises, and that the Corporation should reasonably have understood that to be the case. I cannot sustain the assessment of thirty-five demerits against Mr. Beauchamp, or the discharge of the grievor for the combined incidents. In my view, the facts reflect an error of judgement on the part of both the grievor and the Corporation, as regards Mr. Beauchamp’s comment in the parking lot, plainly not intended as a serious threat. However, given his prior experience of the penknife incident, Mr. Beauchamp should have appreciated that any reference to weapons on his part might well be viewed as other than a joke, and could have serious repercussions. By the same token, in light of the findings of Mr. Frumkin in the prior incident, and the actual words used by Mr. Beauchamp, which the criminal court easily concluded involved no sinister intention, the summary discharge of this twenty year employee for the combined events of April 18, 1996 was clearly excessive.
The Arbitrator therefore determines that the grievor is to be reinstated forthwith into his employment, with compensation for wages and benefits for one-half the period of time between the date of his removal from duty and his reinstatement, with the balance to be recorded as a suspension for irresponsible and unacceptable language directed towards supervisors Proulx and Lussier. The grievor’s disciplinary record shall stand at twenty demerits as of the time of his reinstatement, for the use of abusive language towards Mr. Bélanger.
The Arbitrator retains jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this award.
Dated at Toronto, February 20, 1998
(signed) MICHEL G. PICHER