SHP668

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-CANADA) AND ITS LOCAL 100

(the “Union”)

 

 

RE:  CONDUCT UNBECOMING GRIEVANCES OF

P. RUMAK AND G. LAW

 

 

SOLE ARBITRATOR:                   MICHEL G. PICHER

 

 

APPEARANCES FOR THE COMPANY:

Ron Campbell                       - Manager, Labour Relations

Sanjay Bahl                           - Assistant Superintendent

Kevin Kopp                                     - Assistant Track Supervisor

 

 

APPEARANCES FOR THE UNION:

Brian Stevens                        - National Representative

Les Lilley                                - Vice-President, Local 100 Prairie Region

Peter Rumak                          - Grievor

Gilbert Law                                      - Grievor

 

A hearing in this matter was held in Winnipeg, Manitoba on June 23, 2011.

AWARD

 

            This grievance concerns the assessment of 40 demerits and 30 demerits, respectively, to Heavy Duty Mechanics Peter Rumak and Gilbert Law, as well as some five days held out of service pending their investigation for what the Company concluded was conduct unbecoming and insubordination towards Company officers on June 23, 2010.  The outline of the dispute in issue is reflected in the Company’s Exparte Statement of Dispute and Statement of Issues, filed at the hearing, which reads as follows:

 

DISPUTE:

 

Violation of Rule 27, 35, Appendix III and XVIII of Agreement 12 as a result of the Company assessing 40 and 30 demerits respectfully as well as time out of service pending the investigation to serve as a suspension to Mr. Rumak and Mr. Law for conduct unbecoming.

 

EXPARTE STATEMENT OF ISSUE:

 

Mr. Rumak and Mr. Law were insubordinate to Company officers on June 23, 2010.  The Company conducted an investigation in accordance with Article 27 of Agreement 12 on June 29, 2010.  Following the investigation the Company assessed the discipline noted above.  The Union alleged that the Company violated Rules 27, 35, Appendix III and Appendix XVIII.  The Company denied the Union’s allegations.

 

            The discipline assessed against the grievors arises from a single incident, estimated to have lasted no longer than five to ten minutes, during the day shift on June 23, 2010.  On that date the grievors were assigned to work repairing the Sand Tower located outside the Symington Diesel Shop.  They were joined in that assignment by Heavy Duty Mechanic K. Johnston.  On that day Company Supervisors were conducting a safety blitz generally on the property.  The record confirms that at some point between 10:00 and 11:00 AM two Company officers, Assistant Superintendant Sanjay Bahl and Assistant Track Supervisor Kevin Kopp encountered the three Heavy Duty Mechanics when the latter group was standing outside the Symington Locomotive Reliability Centre (LRC).

 

            It appears that as Mr. Bahl alighted from the vehicle in which he and Mr. Kopp were travelling, having stopped near the location of the three employees, he lit a cigarette while some distance away.  I accept that Mr. Law then called out to Mr. Bahl, an individual with whom he worked before his promotion into management, questioning the fact that he was smoking in that location.  While it appears that a number of drums containing oil, oil filters and other chemicals were standing along the wall of the building, there is no prohibition against smoking posted there and, as reflected in the photographic evidence presented, including a picture of cigarettes littering the ground, it seems to have been a common location for employees taking a smoke break.

 

            Unfortunately, what ensued, was a discussion between Mr. Law and Mr. Rumak, on the one hand, and Mr. Bahl and Mr. Kopp on the other, a conversation which grew more and more heated and laden with profanities.

 

            After a careful review of the statements of all four participants in the conversation, I am satisfied, on the balance of probabilities, that the narrative statements provided by Mr. Bahl and Mr. Kopp accurately reflect what occurred.  The statement of Mr. Bahl reads as follows:

 

At approximately 10:15 on Wednesday June 23, 2010, Supervisor Kopp and myself were at the Diesel Shop on the North East side of the Trip Center by the Ladder tracks.

 

Three shop staff employees were standing outside, Gil Law, Peter Rumak and Kim Johnson.  They said something to me along the lines of asking me what I was doing there.  I did not hear the employees very clearly, so I walked up to them to introduce myself and explain I was conducting a safety blitz.  Supervisor Kopp followed my approach.

 

Mr. Kopp asked one employee Mr. Law if he was familiar with the company policy on safety boots and how they should be laced up.  Mr. Law replied in his own words “I don’t give a fuck, I have 20 days left, go ahead and write me up.”  Mr. Kopp pointed out that Mr. Law was conducting himself in an insubordinate manner.  Mr. Law disagreed and said he was not.  Mr. Kopp pointed out that he was cursing, confrontational and unwilling to follow company policy.  Mr. Rumak at this point told us that this was “bullshit”.  He said how can we come up and talk to him about laces when I was not wearing a hard hat.  We tried to explain that I was from Transportation.  He did not want to listen and starting (sic) calling bullshit again.  Mr. Rumak said something along the lines that if something falls (from above) is it going to know that I am a Transportation Employee.  Both Mr. Law and Mr. Rumak were very loud and aggressive.  Mr. Law kept repeating that “you get paid a lot for this” in a derogatory fashion.  At one point he explained that it was him that did the work, implying that we as Supervisors did not do any work.  Mr. Rumak told us that he had worked here a long time and asked us how much time we had?  Mr. Kopp explained he had 25 years to which Mr. Rumak responded in a very sarcastic manner “whoopty doo” and when we have 100 years like the three of them we could come and talk to them.  He also told us that this was a “criminal mindset”.  Mr. Rumak cursed several times during his tirade.  It was explained by myself again that he was being confrontational and insubordinate.  Mr. Rumak said go ahead and write me up.  I did not know the name of the employee at the time and asked him for his name.  He came right up to my nose and less than an inch away, in a very aggressive and threatening manner.  He told me his name and repeated his pin # 882814 to me twice and asked if I could understand that.

 

Three other Supervisors, Chris Joachim, Troy Ducharme, and James Moran had approached the situation just prior to me asking for his name, they witnessed Mr. Rumak approach me in an aggressive and threatening manner.  At that point Mr. Rumak turned and walked away towards the diesel shop.  I spoke to Mr. Joachim a Supervisor at the LRC to have him contact Rudy Boekler, inform him of the situation and to remove the employees from the property.  During the discussions with the employees both Mr. Law and Mr. Rumak were very disrespectful, aggressive in nature and completely unprofessional.

 

Mr. Kopp’s statement is as follows:

 

As I remember,

 

On June/23/2010 at appx. 10:15 Sanjay Bahl and I approached 3 employees at the north east corner of the diesel shops.  Sanjay was the first to meet them.  When I came up to them I noticed that 2 of the three employees had there (sic) pant legs outside their boots and were not tied up to the top rung.  I asked the one employee (who I would soon learn was Gil Law) if he was aware of the policy that states boots will be tied up to the last whole (sic).  The employees said “I don’t give a fuck I have 20 days left, go ahead and write me up.  I said OK consider it done.  He started to “Go Off”.  By that I mean he got real angry real fast.  He made it clear that he was not happy about this comment with his body language, facial expressions and demeanour.  He was using vulgarities and became confrontational.  Accusing me of making “Good money to do this”.  I took that as though he was trying to insult my duties.  He seemed to want to belittle us and the money we make doing our duties, as he said the same thing over and over, sanjay and I were trying to remind him of the policies CN has in place for safety, which only seemed to aggravate him more, we were accused of “Having the nerve” pointing out that Sanjay had no hard hat on.  (Keep in mind that Vulgarities were used throughout the entire confrontation).  Both men (Later I would learn that the second the second individual was named Peter Rumac) were commenting of the B&*^S*&T of the whole thing.  I told Gil that he was being insubordinate.  He asked “how do you figure?”  I explained that he was showing anger towards us, he was swearing at us and basically being confrontational.  At that point Gil seemed to back off a little, mumbling about the money we make for this.  I explained that we do allot more than just “This” and was asked by Mr. Rumac in what I would describe as a condescending, Oh, yeah?  And how long have you been with the company.  I said 25 years.  To which he replied “Whoop de doo” with his finger waving in a circle pointed towards the sky.  The he said that HE had 35 years!!!  I felt as though he was minimizing my service with CN.  We were talking safety polices in regards to the laces and the fact that the transportation policy does not require a hard hat.  He accused us of having a “Criminal Mind set” twice.  I asked him if he was accusing me of being a criminal.  He said no.  Just that I was thinking like one.  Gil made a comment around this time that stated “He was the one that did the work” implying that we did not.  Still going on about the money we make “Doing This”.  Sanjay told Peter and Gil that they were being insubordinate and confrontational.  Peter said I don’t care write me up.  Sanjay asked him for his I.D.  And that is when Mr. Rumak got right up in his face and with a raised voice and a frown upon his face said PETER RUMAC 882814 CAN YOU UNDERSTAND THAT MUCH, 8812814 CAN YOU UNDERSTAND THAT!!!!!!!!

 

Both employees were still mad waiving their arms and repeating vulgarities when they walked away.  This was witnessed by 3 other managers who happened upon the scene.  Troy Ducharme, James Moran and Chris Joachim.  The 3rd employee was Kim Johnson did not partake in the tirade.  He was conducting himself in a professional manner.

 

            As is clear from the above account of the events, Mr. Law, with some 34 years of service and Mr. Rumak, with 33 years, were not pleased with Mr. Kopp having indicated to Mr. Law that his safety boots were not properly laced up.  Unfortunately what ensued was a quickly deteriorating conversation closely akin to schoolyard name calling.  Very simply, the grievors apparently felt that Mr. Bahl was smoking where he should not and was not wearing a hard hat where he should.  In that context they were visibly unhappy at being instructed on safety by the two Supervisors in question.

 

            As indicated above, I am satisfied that there was no prohibition against smoking at the location where the conversation occurred.  Nor does the evidence confirm, as the Union would have it, that the outdoor area was one in which the Supervisors would be required to wear hard hats.  There was plainly no overhead work occurring at that point in time.  While the grievors obviously did not take kindly to being given safety pointers by individuals they viewed as junior and less important than themselves, they were nevertheless under an obligation to deal with Company officers with civility and respect, an obligation that was obviously respected by Mr. Johnston.  I am satisfied that on the evidence before me they were openly disrespectful of Mr. Bahl and Mr. Kopp and thereby rendered themselves liable to discipline for disrespectful conduct and insubordination.

 

Nor can the Arbitrator sustain the objection of the Union that the grievors were denied a fair and impartial investigation.  There is no suggestion in the material before me that they were deprived of any evidence or of any opportunity to offer rebuttal to the statements of the Supervisors which were placed in evidence in the Company’s investigation.  Indeed, the record reflects that the grievors’ Union representative had the opportunity to put questions to Assistant Superintendent Bahl and both employees recorded that they were satisfied with the manner in which the investigation was conducted, albeit that might not be dispositive.  On the whole I am satisfied that the questions put by the investigating officer were not unfair or inconsistent with the conduct of a fair and impartial investigation.  The Union’s objection is therefore dismissed.

 

            The only issue of substance is the appropriate disciplinary response.  Both grievors were immediately removed from service, which prompted a five and a half day loss of work pending the completion of the Company’s disciplinary investigation.  That investigation resulted in the assessment of 40 demerits against Mr. Rumak and 30 demerits against Mr. Law.

 

            The first question is whether it was appropriate to remove the grievors from service, as the Company did.  Given the context in which the events occurred and the actions of the grievors, I am satisfied that it was.  There does not appear to be any dispute that, notwithstanding the reminder given to Mr. Law with respect to the lacing of his safety boots, there was no attempt on his part to correct his boot lacing nor obviously any encouragement in that direction given to him by Mr. Rumak.  The evidence indicates that after Mr. Rumak had provided his name and identification number to Mr. Bahl both grievors simply turned and left the scene, having effectively told the two Company officers that they would not obey their directions, whether those directions might be in relation to complying with rules relating to safety boots or to not being disrespectful and insubordinate.  In that circumstance I find it difficult to second guess the Company’s decision that the best course of action was to simply remove the two individuals from the workplace, if for no other reason than to avoid any further confrontation from them.

 

            I have more difficulty with the assessment of a heavy burden of demerits against the two grievors, however.  Their effective suspension for the equivalent of a working week is, in my view, a serious penalty, albeit a fitting one, perhaps coupled with a reasonable level of demerits.  However, given the long service of both employees, neither of whom appears to have had any behavioural issues for some 20 years, the imposition of 30 and 40 demerits is in my view excessive.  I am satisfied that in both cases 15 demerits would have been sufficient, combined with the five day suspension, to communicate to the grievors the importance of respecting safety rules and especially respecting Company officers.

 

            The grievance is therefore allowed, in part.  The Arbitrator directs that the records of the grievors be amended to reflect the assessment of 15 demerits for conduct unbecoming and insubordination towards Company Supervisors on June 23, 2010, with their time held out of service to also stand.

 

            I retain jurisdiction in the event of any dispute concerning the interpretation or implementation of this Award.

 

           

 

 

Dated at Ottawa, Ontario this 29th day of June, 2011.

 

 

 

_____________________________

Michel G. Picher

      Arbitrator