BETWEEN:

(the "Company")

AND

(the "Association")

SOLE ARBITRATOR: J. L. Dubinsky, Q.C. – Chairman

A. Gordon Cooper, Q.C. – Company Nominee

Lorne O. Clarke – Association Nominee

There appeared on behalf of the Company:

W. Hodges – Labour Relations Assistant of Montreal

A. W. McCulloch – Assistant Director, Investigation Department of Montreal

W. Fraser – Special Agent, Investigation Department, North Sydney

D. J. Currie – Special Agent, Investigation Department, North Sydney

And on behalf of the Union:

C. A. Regan – Solicitor

N. A. MacAulay – National Treasurer

J. McLeod – Member of Grievance Committee

R. A. Leach – Grievor

Len Hawkes – President of the Moncton Local

Arthur George – Member of the Moncton local

Donald Morrison – Member

A hearing in this matter was held at Sydney, Nova Scotia, on November 7, 1966.

The Canadian National Railway Company, to which I shall hereinafter refer to as the Company and the Canadian National Railways Police Association, to which I shall hereinafter refer to as the Association entered into a Collective Bargaining Agreement, dated February 23, 1966, with an effective date of November 1, 1965. This Agreement was to remain in force until December 31, 1967, and thereafter subject to sixty days’ notice in writing from either party thereto of its desire to revise, amend or terminate it, which notice may be served any time subsequent to November 1, 1967.

A dispute having arisen between the parties, a Board of Arbitration was established pursuant to the said Collective Bargaining Agreement. The Company nominated Mr. A. Goron Cooper, Q.C., Barrister of Halifax, Nova Scotia, and the Association nominated Mr. Lorne O. Clarke, Barrister, of Truro, Nova Scotia, as their respective nominees to the Board. These nominees chose J.L. Dubinsky, Q.C., Barrister, of Glace Bay, Nova Scotia, as the Chairman.

The Board met at Sydney, Nova Scotia, on November 7, 1966, at which time representatives of the parties were presents. The Company was represented by Messrs. W. Hodges, Labour Relations Assistant of Montreal; A.W. McCulloch, Assistant Director, Investigation Department of Montreal; W. Fraser, Special Agent, Investigation Department, North Sydney; and D.J. Currie, Special Agent, Investigation Department, North Sydney.

The Association was represented by Messrs. C.A. Regan. its Solicitor; N.A. MacAulay, National Treasurer; J. McLeod, member of Grievance Committee; R.A. Leach, the grievor; Len Hawkes, President of the Moncton Local: Arthur George, a member of the Moncton local; and Donald Morrison, a member of the Association.

At the meeting of the parties held on November 7, 1966, it was initially agreed between the parties:

(1) The Board was properly constituted; and

(2) The grievance had been properly processed.

At the meeting held by the Board in Sydney, the parties were given a full opportunity to be heard in detail concerning the matters in dispute. Both parties were given an opportunity to call witnesses and did so, and these witnesses gave evidence on oath. Each party was given an opportunity to ask questions of the other and make all relevant observations each wished. Both written and oral submissions were made to the Board.

Following the meeting in Sydney, at which the evidence adduced by the parties was heard and transcribed, the members of the Board had private meetings and examined and studied in detail the transcript of evidence, the representations and the submissions made by the parties in an attempt to receive the difficulties given rise to the grievance. It is as a result of these discussions and deliberations that this report has been prepared and is now presented.

The facts are well known to the parties and materially are not in dispute. I shall not attempt to recite the facts giving rise to the grievance, apart from making what I consider to be appropriate relevant references to the evidence given before us.

I shall now deal with what I consider to be the four points on which this Board must make findings.

It is to be noted at the outset that the said Collective Bargaining Agreement does not contain a specific so-called management clause. Is, therefore, the suspension meted out by the Company to the employee Leach, a member of the Association, a fit subject of arbitration by this Board. In other words, have we jurisdiction to deal with this problem under Article 15.1 of the Agreement, under which the Board was set up.

Article 15.1 provides:

I am not satisfied that Article 15.1 by itself gives us jurisdiction to arbitrate the differences that have arisen between the parties herein in respect to this dispute. Had, for example, the words or any disputed issue been inserted after the word ‘thereto’ in the fifth line of Article 15.1, there would have been no difficulty insofar as our jurisdiction is concerned.

I feel that Section 19 of the Industrial Relations and Disputes Investigation Act, R.S.C. 1952 c. 152 is pertinent. Section 19 is as follows:

19 ( 1 ) Every collective agreement entered into after the 1st day of September, 1948, shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or persons bound by the agreement or on whose behalf it was entered into, concerning its meaning or violation.

McRuer, C.J.H.C. in Re Polymer Corporation and Oil, Chemical and Atomic Workers International Union, Local 16-14 (1961) 26 D.L.R. 609 at page 614 says:

The statute (The Industrial Relations Act) goes further and provides that if such a clause is not in the agreement the Labour Relations Board established under the Act shall upon the application of either party prescribe a provision for such purpose and a provision so prescribed shall be deemed to be a term of the collective agreement. The intention of the statute is clearly expressed in s. 19 (3) which I repeat:

As in the Polymer case, so here to, neither of the parties has applied to the Labour Relations Board to have the scope of the Agreement enlarged to comply with s. 19(1) insofar as the subject matter of this dispute is concerned.

Notwithstanding all the above, it is my judgement and I so find that this Board does have jurisdiction to arbitrate the difference that arose over Leach’s suspension for the following reasons:

(a) Both parties expressed their mutual and unequivocal consent that this Board hear the evidence of this grievance and render a decision; and

(b) Both parties agreed the Canadian National Railways Investigation Department Educational Manual, although not specifically incorporated in the Collective Agreement, has relevance, at least to the point that this Board can examine and consider its contents. It was argued before us that Article 23.1 which says: This Agreement respecting rates of pay and rules governing working conditions of Constables and Sergeants, represented by the Canadian National Railways Police Association supersedes all rules, understandings, agreement and practices heretofore in effect … does away completely with the aforesaid Manual. With deference, I am not convinced that Article 23.1 has that effect and I feel that this argument was not seriously pressed on us. In any event, the Manual was placed before the Board as an Exhibit.

(c) Various references are made throughout the Collective Agreement to the matter of discipline.

The Association argued that the grievance should be allowed because the grievor was not given thirty-six hours prior notice of the starting time of his assignment. The evidence confirms that he was not given thirty-six hours prior notice as is required by Article 6.3.

I find this argument fails for two reasons:

(a) The grievor did not grieve this lack of prior notice within ten working days as he must needs have done in accordance with Article 14.2 of the Agreement. Had he done so, this grievance would have been properly before the Board.

(b) Both parties have been ignoring this specific forewarning provision over some considerable time. In the grievor’s testimony we find at p. 8 the following:

In the evidence of Special Agent Fraser, we find at p. 46:

With great respect to Mr. Regan’s submission on p.69, I cannot find that the grievor has any basis for complaint because he was not given thirty-six hours notice. He did not have to go to work that night if he felt physically unable to do so and I am satisfied that he went to work, notwithstanding the short notice, because he feared his job would be in jeopardy. To quote Mr. McCulloch on p.57:

On the contrary, I find that the grievor went to work quite willingly. It is my opinion that but for the events that later transpired that morning, the matter of proper notice would never have been raised by him on this occasion.

In passing, I should like to record my admiration for the splendid esprit de corps that evidently existed between Company and Association as was shown by the willingness of the employees to meet any situation that arose from time to time. It is the sincere hope of the Board that the parties will continue to cooperate at all times in the future notwithstanding this arbitration.

On the night in question the grievor, while on duty, was found asleep in a patrol car. The grievor himself testified on p. 10:

While I commend the grievor for his complete frankness before the Board and although there may have been mitigating circumstances to which I shall refer below, I wish to record my view that sleeping while on duty cannot be tolerated. I adopt the language of Mr. Hodges at p. 65 "The Company must rely on its police officers to remain alert and watchful at all times. A constable who is asleep on duty not only betrays the trust placed in him but also jeopardizes the security of Company personnel and property as well as that of the general public." For the above reasons, I am satisfied that a suspension from duty was a proper penalty to be imposed and this case and I so find.

The members of this Board have spent many hours, individually and in joint conferences, considering and studying the evidence in detail, the precedents available by reference to judicial decisions, the many reported labour arbitration cases on the subject, and the comments and observations of those who have written treatises on the power of an arbitration board to alter and vary the penalty imposed on the suspension of an employee.

In the labour arbitration cases to which Mr. Regan referred us, we find Boards of Arbitration altering penalties imposed by employers on employees. However, Mr. Regan, excellent labour lawyer that he is, is the first to admit that the decisions in these cases apply to the particular facts dealt with by various Boards and certainly there are decisions of arbitration boards holding otherwise. Mr. Regan referred us to the Polymer case which I have mentioned above, a decision which has been upheld by the Supreme Court of Canada. Mr. Regan argues that if in that case, the power of an Arbitration Board to award damages, a step decidedly beyond the issue submitted to it but one taken in order to bring about a final settlement, was upheld by the Supreme Court of Canada, that by analogy, this Board may alter the penalty imposed if in its opinion such an alteration is warranted. I am impressed with the submission and I, therefore, find that this Board has the power to alter and reduce the penalty if there are mitigating circumstances. It may be in order to mention that Mr. Hodges made these remarks on pp. 81 and 82 as follows:

In my opinion, the evidence discloses a number of mitigating circumstances of which, in my humble opinion, the first one – item (a) – is the most significant and which even by itself would have inclined me to the finding I make below.

This is established in Leach’s evidence, found on page 7, and has not been challenged or denied by the Company.

I am not unmindful of the special status which a policeman holds in a community and how very important it is for him to be of good behaviour. Yet my judgement, a policeman who for ten years serves his employer faithfully and well with not the slightest mark against him is deserving of having that hitherto good record stand him in good stead when he commits an offence. Particularly is this so when the offence, although serious, is not one which normally consider as being of a "criminal" nature, such as for example, theft, mischief or indecent acts.

(b) The grievor had only six hours’ notice of change of shift.

On page 9, in his evidence, we find:

(c) The grievor had only two hours sleep before going to work.

On page 9, he testifies:

Special Agent Fraser, in his testimony on p. 46, acknowledges this to be a mitigating factor.

On p. 20 we find in the grievor’s testimony:

On p. 22, in Mr. McAulay’s evidence, there is the following:

The above is confirmed by Mr. McLeod on p. 28:

As to Mr. Currie’s position, Mr. McLeod states on p. 29:

It may be noted that Mr. Currie was present at the hearing before the Board but was not called to testify.

(f) There is precedent in the Company’s records for less than thirty days’ suspension for a similar offence.

Mr. McCulloch, in answer to a question whether other constables, committing the same offence, received a different punishment, says on p. 55:

On p. 61, the same witness says:

(g) There was no evidence of any other improper conduct on the grievor’s part, e.g., drinking.

Accordingly, I find the suspension of thirty days duration is too long. In my judgement, the grievor should have been suspended for fourteen days from the date of the infraction and I so find. I direct that the grievor be paid the lost wages he normally would have earned had he not been suspended for more than fourteen days. I further direct that no demerit marks be given in addition to the fourteen days suspension imposed.

The members of this Board wish to record their appreciation for the efforts of the parties in presenting their arguments and evidence to the Board. We are especially grateful to Mr. Regan for his comprehensive presentation and to Mr. Hodges who, though not a member of the Bar, acquitted himself well.

DATED at Glace Bay, Nova Scotia, this 28th day of December, 1966.

Chairman Member

Member

COMMENTARY: The grievor was called for special duty at North Sydney yards and during his tour of duty was found asleep in the patrol car. The Board found that Constable Leach was guilty as charged but because of extenuating circumstances reduced his period of suspension.