SHP640

 

BETWEEN:

 

 

PROGRESS RAIL/CANADIAN PACIFIC RAILWAY

(hereinafter referred to as the (CompanyĒ)

 

 

 

-and Ė

 

 

 

CAW / TCA CANADA, LOCAL 101

(hereinafter referred to as the ďUnion)

 

 

 

_____________________________________________________________________

 

AWARD

_____________________________________________________________________

 

 

 

 

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:

 

"Öthe 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 donít 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 donít 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 donít 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 wasnít really paying attention, so I donít 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 donít 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 doesnít 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 donít 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 donít 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 donít 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 doesnít 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