BETWEEN:

(the "Company")

AND

(The "Union")

IN THE MATTER OF AN ARBITRATION BOARD established pursuant to the provisions of the Collective Agreement between the Canadian National Railway Company and the International Longshoremen’s Association, Local 1259 to deal with the grievance of one of the Association members, viz. Fultz Bagnell.

BOARD OF ARBITRATION: Judge K. L. Crowell - Chairman

R. Y. Hicks, Q.C. - Company Nominee

V. A. Morrison, Q.C. - Union Nominee

There appeared on behalf of the Company:

Mr. K. L Crump

Mr. G. C. Connors

Mr. H. Abbott

Mr W. R. Freeborn

Mr. K. Anderson

Mr. D. M. Morrison

And on behalf of the Union:

Mr. Lloyd Hare

Mr. Wm. Quirk

Mr. K. A. MacLean

Mr. Fred Patterson

Mr. Blowers Tobin

Mr. Ralph Ivey

Mr. Leonard MacNeil

Mr. Fultz Bagnell (member aggrieved)

The Board met in the Isle Royale Hotel on Tuesday, October 24th, 1961, when all of the parties herein before mentioned were present.

Able and very informative briefs were presented to the Board by both the Company and the Union and viva voce evidence was given by all parties present.

There is little dispute in the evidence submitted to the Board on matters leading up to the dismissal of Fultz Bagnell by G.C. Connors, Port Superintendent on the job.

The facts relating leading up to and the dismissal are as follows:

On the evening of September 9th of last year at about 10 o’clock, one of the two elevators at the pier in North Sydney being then in use in the loading of a ship broke down by one of its cables breaking. This caused a work stoppage with a number of employees, estimated somewhere between one hundred and one hundred and fifty congregating near the broken down elevator. Mr. G.C. Connors, Port Superintendent, was immediately contacted and shortly thereafter arrived at the broken down elevator. Shortly after the arrival of Connors, Fultz Bagnell, President of the Union, as a result of a telephone call, arrived on the scene. He immediately confronted Connors and according to the evidence of Kenneth MacLean, a witness called on behalf of Bagnell, the following conversation, in part, followed:

There is some controversy as to the words used immediately preceding the word "liar". Mr. Connors says that Bagnell’s words were "You are a God Damn Liar". In any event the words spoken were either as MacLean or Connors gives them.

Bagnell further said to Connors words to this effect the employee (naming him) who was killed on one of the elevators some two weeks previously was a returned man, having served overseas four years; where were you then?

There is further evidence, although denied by Bagnell which the Board accepts as being said, that Bagnell called Connors "yellow and that he didn’t know his job and was no good."

There is evidence that Connors was talking in a high pitched voice and that he used a disparaging remark about Bagnell; a remark not often found in print, but at times applied in an uncomplimentary manner to one who talks much while attempting to throw his weight around. Connors does not deny that he used this remark; he moreover does say that such a remark is not a part of his ordinary vocabulary and as a consequence he is very doubtful if he used such an expression.

This was more than a conversation; it was an altercation, and a very serious one, particularly since it was carried on in front of the other employees gathered there, and according to Connors, in such a loud voice by Bagnell that everybody in the shed could hear Bagnell during this altercation.

The members of the Board having heard all of the evidence given and whilst there is very little difference in the essentials, wonder how it is that all giving evidence on behalf of Bagnell did not hear Bagnell using the words "yellow and no good" which he applied to Connors during the course of this altercation, particularly since they all recalled so vividly what went on at that time. Finally to end this altercation Connors said to Bagnell "You are through" and ordered him off the wharf.

During the course of the hearing, there was a mass of evidence given as to what transpired subsequent to the time when Connors ordered Bagnell off the wharf; this the Board thinks has no bearing on Bagnell’s dismissal by Connors and as a consequence thereof all of such testimony is disregarded by the Board.

There had been a serious accident on one of the two elevators some two weeks previous to this accident. A turnbuckle had broken on this elevator allowing it to tip so that a car on the elevator went out of control and crushed an employee against the wall taking his life. Subsequently all turnbuckles were replaced and the cables checked. It was then that Connors advised Bagnell that the elevators were as safe as man could make them and when Bagnell asked him for a guarantee that those elevators would be safe, Connors referred him to the engineers looking after them. The engineer’s reply was to the effect that only "Him, above," could guarantee that there would be no breakage.

Bagnell is a man of intelligence and President of the Union. He had worked in these elevators and he knew or should have known that Connors, even though he was Port Superintendent, could not guarantee against man-made machinery breaking; consequently there was no cause or justification whatever for calling Connors a liar in respect to this breakage; much less to say in front of so many of the employees that he, Connors, did not know his job and was no good.

The Board recognizes that on the night of this accident and particularly after one of their men had been so recently killed in a similar accident, that Bagnell, as President of the Union, was under considerable strain, probably more so since he was under his doctor’s care after an accident to himself. However, this does not absolve him from carrying out his duties as President of the Union or give him the right to attack violently in a verbal manner an official of the Company; in this case, the Port Superintendent.

There is, in the opinion of the Board, nothing more conducive to the breaking down of discipline than to have an employee, particularly one having some authority over other employees, vilifying one in authority over him and the other employees, by calling him a liar and saying in front of and in the presence of other employees that he did not known his job and was no good.

Where there is no discipline there will eventually be no company, and, where there is no company, there are no jobs. This is recognized by the negotiators of the Collective Agreement entered into by the Company and the Union in Article 3.1:

The Board is of the opinion that the conduct of Bagnell is insubordination of a most serious kind, and if permitted to go unchecked, would eventually break down discipline affecting the efficient operation of the Company.

In the words of His Honour Judge E.W. Cross in a some what similar labour dispute between the UAW and Ford Motor Company reported in Labour Arbitration Cases Vol. 3, page 891:

and further on

The Board, after a careful and exhaustive examination of the material submitted and the evidence adduced, concurs in the action of the Company in dismissing Bagnell.

The Board realizes that this is a grave decision to arrive at; the taking away from a man, for the time being, his livelihood, affecting not only himself but his family. However, after serious consideration of all the circumstances as disclosed by the evidence, it is apparent that there is no other adequate alternative and therefore dismissal is justified.

The grievance is, accordingly, dismissed.

DATED this 27th day of October, A.D. 1961.

Chairman Member

IN THE MATTER OF AN ARBITRATION BOARD established pursuant to the provisions of the Collective Agreement between the Canadian National Railway Company and the International Longshoremen’s Association, Local 1259 to deal with the grievance of one of the Association members, viz. Fultz Bagnell.

Report of V.A. Morrison, Board Member

November 6, 1961.

The facts of the case are as follows:

Mr. Fultz Bagnell was an employee for the Canadian National Railway at North Sydney, Nova Scotia, employed as a Freight Handler Stevedore. He is also the President of Local 1259, International Longshoremen’s Association, North Sydney. On June 27, 1960, Mr. Bagnell was suspended by the Canadian National Railways for a period of six months. However, Mr. Bagnell was still President of the Union and it was necessary for him to carry on his duties as President.

Late in August, 1960 one of the Union members of the North Sydney Terminus Wharf was killed because of a faulty elevator caused by a turnbuckle failure on Number 2 elevator. On September 9, 1960 Mr. Bagnell, who was not on the wharf at that time, was notified that another accident had occurred on Number 2 elevator. On this particular occasion the elevator cable had broken. The elevator was carrying three men but fortunately they narrowly escaped serious injury.

Mr. Bagnell, carrying out his duties as President of the Union immediately went to the wharf to investigate the circumstances. It would seem from the evidence taken that Mr. Bagnell was in a very excited mood, inasmuch as it seemed to be a repetition of the previous accident. The men on the wharf were apparently in an indignant mood, because as they said in their evidence they felt that the Company did not care about the safety of the men. Mr. Bagnell went directly to Mr. Connors, the Superintendent of the North Sydney operations who had previously arrived on the scene and engaged in an angry discussion with Mr. Connors which was heard by a number of witnesses. According to the witnesses, many of whom gave evidence before the Arbitration Board, there was a verbal exchange between Mr. Connors and Mr. Bagnell and then Mr. Bagnell decided to leave the Terminus Wharf. It should be pointed out here that all of the witnesses who testified on behalf of Bagnell were workmen employed at the wharf and they swore that Mr. Bagnell was leaving of his own volition before the CNR Policeman arrived. There was some contradiction on this in the testimony of witnesses on behalf of the Company. However, the Company submitted in their brief and in their argument that Bagnell was not dismissed for anything that occurred after the verbal exchange with Mr. Connors, the Dock Superintendent.

Therefore, there is no necessity of going into the events that took place after Mr. Bagnell left Mr. Connors. However, I should not let the opportunity pass to point out that the Company’s handling of the matter was deplorable. From the evidence of most of the witnesses it would appear that the appearance and actions of the CNR Policeman were provocative and that he unnecessarily man-handled Fultz Bagnell, the President of the Union.

With regard to the verbal exchange between Mr. Connors and Mr. Bagnell it would appear that a certain amount of bad language was used by both parties. Certainly, Mr. Bagnell admits that he may well have used bad language as that was his ordinary everyday manner of talking. Mr. Connors admitted that he was "no angel" but that he did not clearly recall using bad language. The evidence of nearly all the workmen who gave direct testimony was to the effect that both men were very excited, both of them were shouting at the top of their voices and that one man was as bad as the other. The Company alleged that Mr. Bagnell called Port Superintendent Connors a "liar", "yellow" and "no good" and also that he knew nothing. Mr. Bagnell admitted calling Connors a "liar" but more emphatically denied that he’d told him, he was "yellow", that he "knew nothing" and was "no good". Mr. Bagnell was corroborated in this by the evidence of all the employees who testified with the exception of Mr. Anderson.

In any event there were two statements made by Mr. Connors which were agreed upon by witnesses of both parties. The first was that Mr. Bagnell did call Mr. Connors a "liar". The second is that Mr. Bagnell pointed out to Mr. Connors that the employee who had been killed on the previous occasion of the elevator breaking had been a man who served overseas and fought for his country and was killed because of faulty equipment on the docks in North Sydney. He followed this up by making some reference to the fact that Mr. Connors had not served in the Armed Forces during the war.

Following the dispute on the Wharf the Company proceeded to lay criminal charges against Mr. Bagnell, all of which were dismissed in Court. There is no point in going into these matters inasmuch as the Company relied solely on the conversation which took place between Mr. Bagnell and Mr. Connors on the Wharf as the cause for dismissal.

It would appear that the only statements upon which the Company can rely for the dismissal of Mr. Bagnell would be the use of the word "liar" and his remarks regarding Mr. Connors War Service in regard to the death of the other employee on the occasion of the turnbuckle giving way in the elevator.

Now, just how serious was the language used by Mr. Bagnell? It must be admitted that the use of the word "liar" is not the most diplomatic way of addressing a Company officer. Bagnell, however, in his evidence, and it is apparently supported by the evidence of the other employees, used the word "liar" because he felt that Mr. Connors had guaranteed him the safety of the elevator which had broken and that he had passed this guarantee of safety along to the men. However, on the wharf on the night of the dispute, Mr. Connors said that he could not guarantee mechanical equipment. Mr. Bagnell, at this point called him a "liar". This, I think, is a fair interpretation of what took place.

Here, then, is a situation where the President of the Union comes down to the Wharf on the occasion of the second accident with the same piece of equipment where one man had already been killed and the lives of others had been endangered, demanding an explanation from the Superintendent of the Wharf. I think it is entirely reasonable to assume that Mr. Bagnell was justified in being angry; that he was justified in being disturbed at this situation, and that certainly if he felt that Mr. Connors had lied to him about the safety of the elevator then it is understandable why he would call him a "liar". The use of the word "liar" in circumstances such as these where apparently both men were excited, both men were shouting at each other, should not I think, be given the serious interpretation that has been given it, both by the Company and by the other members of the Board, even though it was perhaps supported by the use of bad language.

I am familiar with the working habits of the workers in the Cape Breton Industrial area and am quite familiar with their mannerism and their usage of slang English. It would seem to me that the language of Mr. Bagnell was not excessive under the circumstances. Certainly any reference he might have made to Mr. Connor’s lack of war service was prompted by the fact, as he said, that he had lost a good friend who had served overseas for his country and who was also a good citizen. The remark was a rather childish one and an unnecessary one, as Mr. Bagnell himself admitted on the stand. Certainly it was not of such seriousness as to sustain dismissal against Bagnell.

We must also consider all of these statements and the argument in light of the fact that Bagnell came down to the Wharf not as an employee of the Company, but as President of the Union. He was not talking to Mr. Connors as an employee to his boss, but as a representative of a large body of working men whose lives had been placed in danger by faulty equipment. Mr. Bagnell, as President of the Union had a duty to speak to Mr. Connors. The Company alleges that no leniency should be shown Mr. Bagnell because of the fact that he was already serving a suspension. This, to me, would seem to be an argument on behalf of Bagnell inasmuch as if he was under suspension at the time, he certainly was not a workman insulting his Superior Officer. He was there as a Representative of his Union and not as a worker in any way, shape or form. Certainly it seems that some leeway should be given to the President of the Union in the case of circumstances such as this. The circumstances to which I refer are of course the fact that this same Number 2 elevator proved faulty on two different occasions. In between the first and second accidents, the Company did, or at least should have, inspected the equipment for flaws. The fact that they did not discover these flaws, certainly does not speak well for the care shown by the Supervisory staff of the Railway in that area.

It seems to me a senseless thing to say that the flaws in the elevator could not be discovered except by the use of certain equipment. THE COMPANY SHOULD HAVE HAD THESE ELEVATORS TESTED BEFORE ALLOWING THE MEN TO USE THEM. I think that in future such precautions will probably be taken but a little too late to save the life of one workman and a little too late to save the employment of one Fultz Bagnell.

I believe that any number of men in far less trying circumstances might well have used the same language as Bagnell did. It is not important to this Board to endeavour to find out Mr. Connors’ degree of responsibility in the accident. To me the important point is not whether Connors was directly or indirectly responsible but the fact that he represented Management to the President of the Union and that the President of the Union made his views known to the Representative of the Company, and perhaps in rather forceful fashion. To me the action of the Company dismissing Fultz Bagnell is unrealistic, indicates a lack of knowledge of the habits and customs of workmen in the Cape Breton Industrial area, and inhumane. Certainly I, as a member of the Board, would have been prepared to go along with a short suspension for Mr. Bagnell in order to keep him employed at the Wharf. I would have done this reluctantly inasmuch as I felt, at the time of the sittings of the Board and feel even more strongly now that no punishment of any kind should have been merited, and that Mr. Bagnell’s actions, although perhaps not wise, were not unjustifiable. The dismissal is a most brutal and inhumane action on the part of the Company. For my part I cannot share the opinion of the majority of the Board and certainly will not join in their report.

Therefore, it is my conclusion that Mr. Bagnell should be reinstated to his job with full pay back to December 27, 1960.

All of which is respectfully submitted

Board Member