IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC RAILWAY
AND
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA
(CAW/TCA)
AND IN THE MATTER OF THE GRIEVANCE
OF J.D. MARTENS (40 DEMERITS)
SOLE
ARBITRATOR:
J.F.W. Weatherill
A hearing in this matter was held at
Winnipeg on April 29, 2003.
B. McDonagh, for the union.
J. Bate, for the company.
AWARD
The Statement of Fact and Issue in
this matter is as follows:
Dispute:
Discipline - 40 demerits debited against Carman James D. Martens’ record on
July 30, 2001.
Statement of Fact:
On July 30, 2001 Carman James D.
Martens’ record was debited 40 demerits for:
“ - - leaving the Company property
without authorization and directing threatening comments of physical harm to a
fellow employee on July 12, 2001.”
Statement of
Issue:
It is the contention
of the Union that
-
the Company violated Rule 28.1 and 28.2 of the Collective Agreement by
combining two fundamentally different offences into the same investigation
thereby rendering the statement taken in connection with the issues unfair and
partial.
-
the Company did not establish wrong doing on Carman James Martens’ behalf sufficient
to give the Company cause to discipline him by debiting his record with 40
demerits.
-
Carman James Martens was treated in an arbitrary, discriminatory and an
excessive manner in regard to the 40 demerits debited against his record.
Therefore, with regard to the
foregoing, it is the position of the Union that the discipline of 40 demerits
debited against Carman James D. Martens should be removed from his record.
The
Company denies the Union’s contentions and claim.
Rule 28 of the collective agreement
deals with investigations and grievance procedures. It provides that
discipline may not be imposed on an employee until there has been a fair and
impartial investigation and responsibility established. Nothing would
appear to limit the investigation to just one head of discipline. In this
case, the alleged threat and the early departure from work by the grievor
occurred within a few minutes of each other. No objection was
taken to the investigation relating to both subjects, and I do not consider
there would have been proper grounds for such an objection in the
circumstances. There was no violation of Rule 29.
There is no doubt that the grievor
did leave work early, without authorization. The grievor advanced two
reasons for this. One was that he did not like working for the supervisor
assigned that night. The grievor considered that the supervisor watched
him excessively, or spied on him. This view was not shared by the
grievor’s work mate, and there is no evidence to support it. The
supervisor did, quite properly, check from time to time on the work being
done. The second reason given by the grievor was that he was “in immense
pain recovering from my injury and could not continue working”. There is
no evidence as to what the injury was, and it may be noted that this statement
is said to have been made at 16:50, the grievor’s shift having started at
16:00. The grievor agrees that he did not receive permission from the
supervisor to go home.
In these circumstances, I find that
the grievor did leave work early without permission. While there may be
circumstances of severe illness or accident where permission to leave may be
difficult or unnecessary to seek, no such justification has been shown in this
case. The grievor was clearly subject to discipline. His record
stood at 10 demerits for insubordination, and in all of the circumstances I do
not consider that the assessment of 20 demerits on this account was excessive.
The second head of discipline is
that of uttering threats. The essence of the company’s case in this
regard is set out in the statement of the supervisor, Mr. Chirko, in whose
presence the statements were made. The material portion of his statement
is as follows:
On July 12, 2001 a approx. 16:05 I
came out of my office in the car shop to give out the jobs for the day.
When I came onto the track I saw [the grievor] & l. Wiese sitting in
Larry’s truck just outside track W39 at the east end talking to Rick Marten.
I approached the two in the truck and was going to give them their jobs then so
I did not have to go over to the tank track to do it. When [the grievor]
saw me he told Larry if I am there to take him to the bus stop because he was
going home. He said that [he] was not going to work for me because I am
always watching him and checking up on him and he has a medical condition and
will not take it. He said he had not taken his medication either.
He thinks that I am out to get him and do not know what I am trying to
prove. He said he has everything written down everytime I come by and
what I do. He also said that I give extra treatment to my buddies like
Brad & Bruce & Rodney. He said I am at the bottom of his list
below Dino (Musto) which he wanted to put a bullet in his head. But he
would not do this to me because I have a nice kids and family. I told
[the grievor] that I am not out to prove anything and have no problem with him,
he is good worker and mechanic. Larry told me just to ignore him he was
just in one of his moods. He convinced [the grievor] to go to work at the
tank track. - - .
In his statement, the grievor’s
workmate, Mr. Wiese (Larry), said that the grievor did not say the words about
sparing Mr. Chirko because of his nice kids and family, but that he did say
that Dino Musto “was a boss he would of had no trouble putting the sights
on”. It seems the grievor last worked for Mr. Musto some seven years
previously. The grievor, with respect to these statements, said:
I can’t remember exactly what I said. I do know that what I
said was a reference in comparison as to how I felt so angry after working for
Dino then going home miserable to my family who I love, I trying to convey to
Don [Chirko] that he may feel the same way.
This incident was, quite properly,
reported (apparently the next day), to the Canadian Pacific Police, who
investigated the matter. The text of the police report is as follows:
Report of [grievor] uttering threats
against Don Chirko July 12, 2001 at 17:00. Cst. Beaudry and I attended at
the Car Dept. and took a statement from Car Foreman Don Chirko concerning
same. Mr. Chirko did not want charges laid, but wanted our service to
know about the incident. On July 15, 2001 Cst. Beaudry attended the
Weston security office with Constable K.A. Gelowitz and met with Dennis Flynn,
Car Department Supervisor. They awaited [grievor] to arrive to
work. Same arrived at 15:45 and was removed from service by Flynn while
in their presence at the office. [Grievor] was also advised that the incident
between he and Chirko verged on the edge of a criminal charge of uttering
threats. Flynn offered to take [grievor] home, which he agreed
to. Matter to be handled internally. Matter concluded.
Violence, or the threat of violence
in the workplace is a matter to be taken very seriously, and dealt with very
carefully. The matter was properly referred to the police, and at the
same time properly made the subject of a disciplinary investigation.
There is the suggestion in the material before me that the grievor made two
threats: one against Mr. Musto, one against Mr. Chirko. The threat
against Mr. Musto was not a direct one, and perhaps not one of which Mr. Musto
became aware. It would appear really to have been an expression of the grievor’s
continuing anger against Mr. Musto, anger which, justified or not, the grievor
appears to have been nurturing for years. In all of the circumstances, I
do not think it can properly be concluded that there was a real threat against
Mr. Musto. As to Mr. Chirko, while, as the police report says, the
grievor’s words may have “verged on the edge” of criminality, it is clear that
the grievor did not threaten him. While Mr. Chirko was understandably
upset by the incident, he does not appear to have considered that the grievor
had threatened to kill him, nor do I consider that the grievor’s unprovoked
angry remarks can properly be taken that way. He was, as his co-worker
said “in one of his moods”, but those moods, as the evidence shows, are a serious
matter. The company was right to treat the matter as seriously as they
did, but in the result it has not been shown that threats were in fact uttered,
and the discipline imposed on that ground must accordingly be set aside.
For all of the foregoing reasons,
the grievance is allowed in part. The 40 demerits assessed against the
grievor’s record are to be reduced to 20.
DATED AT OTTAWA, this16th day of
May, 2003.
,
Arbitrator.