IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

-and-

THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA)

LOCAL 100

(the “Union”)

RE:  DISCIPLINE OF RAIL CAR MECHANIC D. FENECH

ARBITRATOR:  MICHEL G. PICHER

APPEARANCES FOR THE COMPANY:

Susan Blackmore               - Senior Manager, Labour Relations

Jennifer Darby                     - Associate, Labour Relations

Matthew Cobb                      - Mechanical Supervisor

APPEARANCES FOR THE UNION:

Drew Ratajewski                  - Regional Vice-President, CAW Local 100

Robert Davis                        - Lodge 110 Chairperson, CAW Local 100

Dave Fenech                        - Grievor

A hearing in this matter was held in Toronto, Ontario on May 8, 2013.

AWARD

            This arbitration concerns the assessment of 30 demerits to Rail Car Mechanic Dave Fenech for insubordinate and disrespectful conduct.  The nature of the dispute is reflected in the Dispute and Joint Statement of Issue document, filed with the Arbitrator at the hearing, which reads as follows:

DISPUTE:

The assessment of 30 demerits to Car Mechanic Dave Fenech for “conduct unbecoming towards Supervisor Cobb, Supervisor Cheeseman and Supervisor Cook during the job briefing on May 26, 2012 at the start of your shift.”

JOINT STATEMENT OF ISSUE:

On May 26, 2012, at approximately 005, Mr. Fenech went home after comments were made which Supervisor Matt Cobb was giving a job briefing concerning “on-boarding.”  And employee investigation was held on May 28, 2012, after which Mr. Fenech was assessed with 30 demerits.

The Union contends that the discipline assessed is unjust and requests that the 30 demerit points be expunged and that Mr. Fenech be made whole for wages not paid to him on the date in question.

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

FOR THE COMPANY:                   FOR THE UNION:

Susan Blackmore                            Drew Ratajewski

Sr. Manager Labour Relations      Regional Vice-President

            The grievor, Mr. Dave Fenech, is a Rail Car Mechanic with some 31 years of service to the Company.  At all times material to this grievance he was employed as a car mechanic at Macmillan Yard in Concord, Ontario.

            The material before the Arbitrator confirms that Mr. Fenech was involved in a job briefing on May 26, 2012 conducted by Mechanical Supervisors Jim Cheeseman, Adam Cook and Matthew Cobb.    The job briefing appeared to contain a follow up discussion of the “on-boarding” process which had been addressed in a prior meeting on May 24, 2012, dealing with the familiarization and orientation of newly hired employees.  It does not appear disputed that Mr. Fenech entertained a degree of skepticism about the Company’s approach to the training of apprentices.  Not long into the comments of Supervisor Cobb, the grievor interrupted him with a negative comment, which caused Mr. Cobb to ask him not to interrupt.  Notwithstanding that caution, the grievor again interrupted approximately a minute later, to again be reproached by Supervisor Cheeseman.  A third interruption occurred when Mr. Fenech registered another verbal protest to the effect of:  “They’ll never learn, they are just taught to run, this is stupid, I should just go home.”

            The foregoing comment prompted Supervisor Cobb to ask the grievor if he wanted to go home.  When Mr. Fenech replied in the affirmative, the supervisor then told him to go.  It appears that shortly thereafter, in the process of leaving as he was entering a building where supervisors Cobb, Cheeseman and Cook were standing on the entranceway stairs, Mr. Fenech opened the door and was heard to call out:  “Fucking Morons!”  Shortly thereafter Supervisor Cobb approached the grievor in the change room directing him to meet with the supervisors in the East Repair Centre office once he was changed from his work clothes.  It does not appear disputed that the grievor did not comply with that instruction and shortly thereafter he departed the property.

            Following a disciplinary investigation the grievor was assessed with 30 demerit points for conduct unbecoming towards the three supervisors.

            During the disciplinary investigation the grievor denied having addressed the impugned comment to the supervisors.  During the course of the interview he responded that what he did say was:  “What do these guys take us for, a bunch of morons?”  The Union’s representative submits that that is what was said and that no discipline should have issued to the grievor.  In an alternative submission, the Union submits that if in fact the phrase alleged was used by the grievor, it was in the nature of “shop talk” which should not have attracted any discipline.

            The Union’s representative stresses that there are some six different narratives with respect to the descriptions of what occurred as recorded in the investigation.  While he does not deny that there were interruptions of the job briefing by Mr. Fenech, he stresses that those were motivated more by the grievor’s frustration than by any intentional disrespect of his supervisors.  Additionally, he submits that if in fact the phrase “Fucking Morons” was used, it must be understood as  within the context of “shop language” and that at no time did Mr. Fenech specifically address that comment to any of the supervisors directly.  The Union’s representative submits that in the circumstances the assessment of 30 demerit points was excessive, and draws to the Arbitrator’s attention the approach taken by Arbitrator Weatherill in SHP 571, where 15 demerits were assessed in reduction of a penalty of 25 demerits.  In that case, the employee did, as the Arbitrator found, “… address foul language toward a supervisor as he passed him in the corridor on the way to lunch, addressing him as a ‘fucking idiot’.”

            The Company submits that the 30 demerits assessed against Mr. Fenech is an appropriate penalty.  It stresses that he has not admitted to any wrongdoing and remains unrepentant for what he said and did.  Its representative argues that in light of his prior discipline record, the assessment of 30 demerits was appropriate in all of the circumstances.  With respect to insubordination and conduct unbecoming, the Arbitrator is referred by the Company to a number of precedents, including CROA 3666, 3105, 3880 and 3922.

            The Company’s representative stresses that in the case at hand the words used by the grievor, which she maintains were addressed to the supervisors then in his presence, clearly crossed the line from “shop talk” into offensive and unacceptable behaviour which did merit discipline.

            Upon a review of the materials, I am compelled to agree with the Company that the grievor did use the expression “Fucking Morons”, as he passed the supervisors.  With the greatest respect, I do not accept his explanation, and I am satisfied that he intended those words to directly express his own view of the supervisors, and possibly the apprentice orientation policy they were explaining during the course of the job briefing.

            I also accept the suggestion of the Company’s representative, that the grievor’s misconduct had two dimensions:  firstly, his repeated interruption of the supervisors as they attempted to present the concept of the “on-boarding” process for the training and orientation of apprentices and, secondly, the abusive and unacceptable phrase “Fucking Morons” which the grievor uttered in the near presence of the three supervisors.

            What, then, is the appropriate disciplinary response?  In my view there are mitigating circumstances to be considered in this case.  Not least among those is the fact that the grievor has registered some 31 years of service with a relatively good disciplinary record.  In all of that time, prior to the incident here under review, he received demerits on only two occasions, and at no time was he ever disciplined for disrespectful conduct towards any supervisor or other employee.

            In my view the facts of instant case are substantially similar to those reviewed by Arbitrator Weatherill in SHP 571.  In that case, much as in the instant case, an employee passed a supervisor and uttered the words “fucking idiot”.  Arbitrator Weatherill found in that case that the comment was not intended in a threatening manner against the supervisor, albeit it was clearly insubordinate.  By reason of the grievor’s record and the nature of the incident the discipline there was reduced to 15 demerits.

            I am satisfied that the same result is appropriate in the instant case.  While I am compelled to conclude, on the balance of probabilities, that the grievor’s ill-advised comment was intended to describe the supervisors and to be overheard by them, it clearly had no threatening dimension.  Further, in light of his prior record which is devoid of any such conduct, it appears to be an isolated incident which reflects poor judgement on the part of the grievor in the heat of the moment.  Given that his prior 31 years of service had never involved any similar form of misconduct, I am satisfied that the assessment of 15 demerits would have sufficed to bring home to the grievor the importance of remaining at all times respectful of his supervisors, and refraining from disrupting their job briefings to register critical or negative comments.

            For the foregoing reasons the grievance is allowed, in part.  The Arbitrator directs that the 30 demerits assessed against the grievor be reduced to 15 demerits. I consider that compensation for the partial day is not appropriate as the grievor’s comments invited his being sent home.  I retain jurisdiction in the event of any dispute concerning the interpretation or implementation of this Award.

Dated at Ottawa, Ontario this 21st day of May, 2013.

__________________________________

Michel G. Picher

Arbitrator