BETWEEN:
(hereinafter
referred to as the (Company”)
-and –
(hereinafter
referred to as the “Union)
_____________________________________________________________________
_____________________________________________________________________
ARBITRATOR: Sidney
G. Soronow
APPEARANCES:
FOR THE COMPANY: John H.
Bate, Labour Relations Consultant
Adrianne
McCulloch, Manager Human Resources
FOR THE UNION: Brian
McDonagh, CAW National Representative
Ken
Hares, Vice-President, CAW Local 101
AWARD
At the commencement of the hearing, the parties agreed that the
Arbitrator was properly appointed and had jurisdiction to hear and determine
this matter. This grievance was the
first of three grievances relating to the same individual.
The grievance relates to the assessment of 30 demerits to Bruce McLaren,
as set out in a Form 104 Discipline Notice dated March 14, 2005. The Form 104 describes the conduct which gave
rise to the discipline as "insubordination towards a Company Officer and
conduct unbecoming an employee for uttering a threat of physical harm in the
work place at Progress Rail". For
convenience, this grievance arbitration is sometimes referred to as the
"First Case".
The Collective Agreement contemplates that the parties will submit to
the Arbitrator a Joint Statement of Fact and Issue (the "Joint
Statement"). The purpose of the
Joint Statement is to frame the difference or issue between the parties. In this instance, it appears that the parties
may not have been able to agree upon the Joint Statement, and consequently each
party submitted a separate statement.
Before addressing any comments in respect of the underlying facts
relating to the disciplinary action, it is necessary to address a preliminary
objection raised by the Company, at the outset of the hearing. The objection raised by the Company involves
the doctrine of "laches".
Simply stated, the Company advanced the position that the Union had been
solely responsible for undue, unreasonable and unnecessary delay in bringing
this matter before the Arbitrator. It
was suggested that such undue and unreasonable delay was extremely prejudicial
to the Company and consequently that the Arbitrator should hold that the
grievance is not arbitrable.
Alternatively, the Company advances the position that if the grievances
are considered arbitrable, the Union should be bared from obtaining relief on
behalf of the grievor.
At this juncture, I pause to note that there were in fact 3 separate
cases heard by this Arbitrator in relation to Mr. McLaren. The second case involved the assessment of 25
demerits (the "Second Case") and the third case involved the
assessment of 40 demerit marks which resulted in the dismissal of Mr. McLaren
(the "Third Case"). While the
Company sought a ruling that the First Case and the Second Case were not
arbitrable based on the doctrine of laches, such position was not advanced in
relation to the Third Case.
Returning now to this issue as it relates to the First Case, the
Company's position is based upon the fact that a Step 1 grievance was filed in March,
2005, followed by the matter being progressed to Step 2 of the grievance
procedure on June 7, 2005. The Union was
dissatisfied with the Company's response at Step 2 and consequently registered
the case for arbitration, on or about June 13, 2005. The matter was not heard by the Arbitrator
until October 28, 2008.
There does not appear to be any specific provision within the Collective
Agreement which establishes a time limit for the hearing of a grievance once it
has been referred to arbitration. However, the Company's position is premised on
their assertion that the Company had tried to move the matter to an arbitration
hearing, but that the Union is responsible for delays as a result of which the
hearing did not occur on a more timely basis.
There is considerable case law applicable to the doctrine of
laches. The Arbitrator has carefully
reviewed the cases cited to the Arbitrator on this subject, however, it is
unnecessary to specifically refer to such cases. Suffice to refer to a quotation contained in
the Company's submission, wherein the Company includes a quotation from Brown
& Beatty (section 2:3210) which reads as follows:
"…the decision in each case is a matter for the
arbitrator to make on his or her discretion after considering any explanation
for the delay and its effects in terms of prejudice to the other party."
The applicable considerations on this issue are as
follows:
1. Was
there an undue and unreasonable delay;
2. The explanation for the delay as provided by the party alleged
to be responsible for the delay;
3. The
prejudice or detriment accruing to the "innocent" party.
Clearly there was a significant delay between the matter being referred
for arbitration and the actual hearing of the matter. In general terms, the Union asserts that
there was a common practice of "warehousing" grievances and that
there is a pattern of historical conduct where grievances have been allowed to
sit for years, until both parties agree to have the case proceed to hearing. Furthermore, the Union asserts that
notwithstanding the regular contact between the parties (and substantial
correspondence that flows between the parties) this issue was not raised by the
Company in a timely manner and was raised for the first time either at, or
shortly before the arbitration. The
Union raised other explanations for the time lapse, however, it is unnecessary
to further review the Union's explanations.
It goes without saying, that the grievance process is, in a general
sense, anticipated to provide an expeditious forum for the ultimate
determination of the matter through arbitration. Unfortunately, far too often significant
delays occur, which may be attributable to various factors, including the
number of grievances pending between the parties and insufficient staff
availability to handle a multiplicity of arbitrations.
Regardless of the issue of delay, in order to hold that a grievance is
not arbitrable there would have to be a material and serious element of
prejudice [or detriment] to the "innocent" party. I am not satisfied that the Company has
suffered any such prejudice, and indeed, when questioned on this subject by the
Arbitrator, the Company was unable to describe any material or serious
prejudice. In view of the foregoing, it
is the determination of the Arbitrator that the grievance in the First Case is
arbitrable.
Before returning to a consideration of the 30 demerit discipline, it
would be appropriate to again refer to the fact that even though the matter may
be arbitrable, the issue of delay could still further arise in the context of
diminishing or altering the relief to be granted, should the grievance be
successful.
Returning now to matters relevant to the merits of the grievance, it
should firstly be noted that Mr. McLaren, at the time of the discipline, was a
rail car mechanic at the Progress Rail facility in Winnipeg, Manitoba. Mr. McLaren had accumulated service of 27
years, firstly with Canadian Pacific Railway and secondly with Progress Rail.
Prior to the incident giving rise to this grievance, Mr. McLaren
("McLaren") had been disciplined on 3 prior occasions, in February,
1980, August, 1984 and March, 1998.
These 3 disciplinary occasions gave rise to a total of 20 demerits, however,
at the time of the discipline giving rise to this grievance, his discipline
record stood at zero demerits.
It is the Company's position that on the morning of February 14, 2005
Don Swaikoski ("Swaikoski") spoke to McLaren concerning production
requirements with specific reference to bolsters and that McLaren, in response,
suggested that there was not a staff person who could meet the standards
referred to by Swaikoski. According to
the Company, approximately one and a half hours later at 9:40 a.m., McLaren
approached Swaikoski and in a loud and agitated voice stated:
"It took ten hours, but I finished it. And, I work for CP not Progress Rail. I don’t need no fuckin boss telling me about
production standards, I am calling Joanne and I am going home on stress
leave."
Recognizing
that McLaren was in an agitated state of mind, Swaikoski suggested that McLaren
leave and go home. According to
Swaikoski, as McLaren was walking away he further stated "and fuck you
too".
Approximately
35 minutes after the above confrontation, an employee reported to Swaikoski
that McLaren had stated in front of several employees that he was going home
and that he had a gun at home and he was going to pop somebody or shoot
somebody. The employee who reported to
Swaikoski did not want his name used.
Consequent
upon this information (which had been reconfirmed to a manager, Hans Thrien, by
the unnamed employee) R. Wosley, Progress Rail General Manager, contacted
McLaren at his residence and advised him he was being held out of service
pending the results of a formal investigation.
These
events were followed by two telephone messages from McLaren, the first of which
included the following (according to the transcript prepared by the Company):
"I thought it was a good idea that I left because I was very
upset. What you said to me and it was
very inflammatory and I will write it down and I did and it's February 14 and
you write down what I said to you which is fine, I am on medication, and just
don’t fuckin need anybody like you know blau, blau blau you know okay."
The
Company conducted a formal investigation.
During that process, the unnamed witness was the subject of a question
and answer interview. The witness's
version during the interview was substantially different from what he was
alleged to have said in his earlier interview with Swaikoski and Thrien. The witness suggests that there was some
misinterpretation or misunderstanding and that McLaren had not made specific
reference to a gun, although there may have been some perceived threat relating
to a gun.
Additional
to the unnamed witness, four other employees working in the same facility were
the subject of a formal interview/investigation. All denied any knowledge. A further employee was interviewed and the
following question and answer occurred:
"Q12: Have you ever heard McLaren mention anything
about a gun or a rifle since he returned to work at Weston in December, 2004?
A12: Yes he has said things along that line. I don’t recall exactly what he has said but I
recall him saying he has been off work for about 4 years and has lost a lot of
money and has lost his house and then he said something along the lines that it
makes you want to bring in a gun. I
wasn’t really paying attention, so I don’t recall the exact words."
The same
witness was asked whether he thought McLaren was serious about bringing a gun
to work and responded in the negative.
McLaren
was himself the subject of a formal investigation interview. While admitting that he had spoken in a loud
agitated voice during his conversation with Swaikoski, he described the
conversation in the following words:
"I walked by Don and I said I finished my bolster in ten hours, I
am going home, and I wish you would back off.
I said I don’t feel good."
During
the interview, McLaren further denied having referred to a gun on February 14,
2005 or making any threatening comments.
He further denied that he had ever made any comments at work that he had
a gun or planned to shoot someone. He
further denied ever having told an employee that he has a gun at home and that
he might pop somebody or shoot somebody.
He further denied referring to a gun in the terms referenced above by
the second witness. When confronted
concerning his voicemail message (above referred to), he simply indicated that
he doesn’t remember leaving a voicemail message.
As a
result of this circumstance, Progress Rail determined that McLaren was in fact
insubordinate toward Swaikoski and that his conduct was unbecoming for making
threats of physical harm in the workplace, and consequently an assessment of 30
demerit marks was processed.
For its
part, the Union suggested that the Company improperly held McLaren out of
service for an extended period of time in an arbitrary, discriminatory and an
excessive manner. In support of this
position, the Union relies on Rule 28.1 of the Collective Agreement. The provisions of Rule 28 are attached as
Appendix "1" to this Award. As
will be noted, the first sentence of 28.1 reads as follows:
"No employee shall be disciplined or discharged until he/she has
had a fair and impartial investigation and his/her responsibility
established."
The Union
interprets this first sentence of Rule 28.1 as bestowing an extraordinary
requirement on the Company and (according to the Union) unless and until the
Company has established responsibility of the employee it is investigating, it
cannot discipline or discharge such employee.
It is
appropriate at this juncture to indicate that in the view of the Arbitrator,
the Union is reading too much into this sentence and treating it as if it means
the responsibility has to be established to the satisfaction of a third
party. In the Arbitrator's view, the
first sentence merely means that the Company has to be satisfied that
responsibility has been established to the Company's satisfaction, prior to
discipline or discharge.
The Union
takes the position that when McLaren returned to work (after his significant
absence) it was on a graduated basis and with restrictions. There was an attempt to imply that the work
that McLaren was performing may have been outside of his restrictions and
therefore may impact on whatever conduct McLaren then engaged in. However, no sufficient evidence was brought
forward as to his restrictions or how the work he was doing on the day in
question would be construed as outside of the restrictions. While reference was made to the duty to
accommodate, there is insufficient factual underpinning to justify any
conclusion that the Company failed to adequately accommodate. That having been said, there is always the
potential the McLaren may have felt there was an issue as to his
restrictions.
During the
investigation interview, McLaren was asked the following questions and gave the
following answers:
"Q30: Document A indicates you said "I don’t
need no fuckin boss telling me about production standards." Do you understand raising your voice and
using profanity toward you supervisor can be considered insubordination?
A30: Yes.
Q31: Did you speak with any other staff members
before leaving work on February 14, 2005
A31: I went to my locker room and someone asked me
what had happened, and I said I am going home, I'm upset and that was it.
Q32: Who were you speaking with in the locker
room?
A32: Ed, I don’t know his last name.
Q33: Do you know Ed's occupation?
Q33: No, not really, he has a locker close to me.
Q34: Document A indicates that as you were walking
away following your conversation with Don Swaikoski you said "and fuck you
too". Did you say these words?
A34: No, I said back off.
Q35: Do you understand that using profanity like
this toward your supervisor can be considered insubordination?
A35: yes.
Q36: Document A indicates that before leaving work
on February 14, 2005 you said words to effect that you had a gun at home and
you were going to pop somebody or shoot somebody. Did you say words like this?
A36: No. I don’t own a gun and never have owned a
gun."
It is
interesting to note the McLaren acknowledged that raising his voice and using
profanity towards a supervisor can be considered insubordination. This kind of acknowledgment occurs in the
answer to questions 30 and 35.
When
confronted in question 36 about the allegation that he indicated that he had a
gun at home and that he was going to pop somebody or shoot somebody, he was
asked whether he said words of this character.
His indication that he doesn’t own a gun and never has owned a gun does
not, however, respond to a question whether he did or did not make the statement. Any comment about using a gun, is a serious
matter and immediate harm results, whether or not the individual in fact owns a
gun or even if he does not actually intend to carry out a shooting.
Having
considered all of the material before me, including the case law provided, I
have concluded that McLaren's conduct towards Swaikoski was not appropriate
both in raising his voice and (as I conclude) engaging in the use of some
profanity. McLaren himself recognized
that this kind of conduct could be considered insubordination. By his own admission, McLaren acknowledges
having spoken in a loud and agitated voice.
Of concern, as well, is the voicemail message left on February 14,
2005. There is no reason to believe that
there is an error in the transcription of that message. Interestingly, McLaren when confronted with
this transcription during his interview, appears (through his response) to not
even remember leaving a voicemail message, which raises a concern as to the
clarity or accuracy of his recollections.
The
discipline assessed by the Company was premised as well, upon the Company's
belief that McLaren, on February 14, 2005 had stated to several employees (or
in front of several employees) that he was going home and that he had a gun at
home and he was going to pop somebody or shoot somebody. Obviously, if such statement was made, it
reflects a very serious situation and a threat to the well being of the people
at the plant. That said, I am not
satisfied that there is adequate evidence from which I could conclude that such
statement was made on February 14, 2005.
There is certainly some evidence that McLaren may well have made a
comment about a gun, or use of a gun, at some time subsequent to his return to
work. However, the discipline in this
case, was clearly based upon McLaren's conduct on February 14, 2005, even if
the discipline form did not specifically reference that date.
In the
result, I am satisfied that there was culpable behaviour on the part of McLaren
(which justifies disciplinary sanction) both in respect of the manner in which
he dealt with Swaikoski on the day in question and in respect of the voice mail
message. I do, however, take into
account that there may have been some element of frustration on the part of
McLaren in doing the bolster job and as well, that he may, to some degree, have
believed that some of the work was inconsistent with his restrictions.
Based on
all of the foregoing, I hold that the grievance is successful in part. The assessment of 30 demerits is set aside
and a discipline of 20 demerits is substituted in its place. I do not consider that the delay in the
grievance being the subject of an arbitration hearing should constitute a bar
to the reduction of the assessment of demerits.
I reserve
jurisdiction to deal with any question that might arise in relation to the
implementation of this Award.
Lastly, I
would like express my sincere appreciation and thanks to both parties for their
skill, competence and clarity in presenting their respective positions and
arguments, all of which were of great assistance to me in making my decision.
Dated at
Winnipeg, Manitoba this 25th day of May, 2009.
SIDNEY G. SORONOW,
Sole
Arbitrator