AH – 36
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN NATIONAL RAILWAYS POLICE ASSOCIATION
IN THE MATTER OF THE GRIEVANCE OF Constable R. A. Leach
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.
1. — JURISDICTION OF THE BOARD
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:
15.1 When either party requests that any grievance regarding the interpretation or alleged violation of the terms or provisions of this agreement, amendments or supplemental agreements thereto be submitted to arbitration, it shall make such request in writing to the other party to this Agreement. Such request shall be made within thirty days from the final step of the grievance procedure set forth in Article 14.
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.
(2) Where a collective agreement, whether entered into before or after the 1st day of September, 1948, does not contain a provision as required by this section, the Board shall, upon application of either party to the agreement, by order, prescribe a provision for such purpose and a provision so prescribed shall be deemed to be a term of the collective agreement and binding on the parties to and all persons bound by the agreement and all persons on whose behalf the agreement was entered into.
( 3 ) Every party to and every person bound by the agreement, and every person on whose behalf the agreement was entered into, shall comply with the provision for final settlement contained in the agreement and give effect thereto.
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:
Although the precise terms of a collective agreement are not imposed by law, the law requires that it shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all disputes between the employer and employees concerning the meaning of the agreement or violation of the agreement.
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:
s.19 (c) Every party to and every person bound by the agreement, and every person on whose behalf the agreement was entered into, shall comply with the provision for final settlement contained in the agreement an give effect thereto.
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.
2. — ARTICLE 6
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:
Q. I believe I was asking you Constable whether you were aware of the notice that is required in usual circumstances for the change of shift ?
A. Yes sir.
Q. In general practice, has that been followed ?
A. No sir.
Q. And when it has not been followed, have you made any objections previously ?
A. No sir.
Q. Is there any particular reason why not ?
A. Well, I would like to cooperate with the management on the Northside and if they changed our shifts, we normally went out and performed our duties on short notice.
Q. Now perhaps you have heard someone here this morning say that when you were called for that assignment you could have refused to go. Is that correct?
A. Well, it is not the normal procedure. We don’t normally – when we are ordered out to work, we normally go.
In the evidence of Special Agent Fraser, we find at p. 46:
Q. If a man is called out for duty, if he is not ill, the proper thing is for him to come, is it not?
A. Our relationship at that time was exceptionally good and it worked both ways. We, I will admit that we did call in and change shifts without 36 hours’ warning but they weren’t complaining about it. They accepted it and in turn other concessions were granted for this.
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:
… any man that has said he is not fit for duty, he’s never been forced out to my knowledge.
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.
3. — THE SUSPENSION OF THE GRIEVOR
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 waiting for this train to pick up I slouched own in the front seat of the patrol car and I did dozed off.
Q. Did you doze off intentionally?
A. No sir
Q. And what were you next aware of?
A. Special Agent Fraser rapped at the window of the patrol car at approximately ten minutes to five in the morning.
Q. How long then would you have been asleep?
A. Sometime after the coal train pulled in. It was 3:10.
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.
4. — EXTENT AND DURATION OF PENALTY
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:
If the Board feels that this man was improperly disciplined, if it feels that either a lesser or greater penalty should have been inflicted, we will accept the recommendations of this Board... we’re not quarreling too much about that... However, there’s no dispute on the power of the Board, sir. We agree that if the Board recommends that this discipline should be reduced, which we don’t believe it should be, we will accept as binding the ruling of the board …
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.
(a) The grievor Leach had a hitherto unblemished record during the ten years of his employment with the Company.
This is established in Leach’s evidence, found on page 7, and has not been challenged or denied by the Company.
Q. How long have you been so employed?
A. Ten Years. Approximately ten years.
Q. During your employment with the Canadian National Railways have you ever been previously suspended?
Q. Have you received any demerit marks?
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:
Q. And so you went fishing. What time did you return to your home?
A. A little after 6 p.m.
Q. An when you returned home, did your wife have a message for you?
A. Yes, she informed me that Mr. Currie had called twice. She was to notify me when I came home to go to work at 12:01 a.m. that night.
(c) The grievor had only two hours sleep before going to work.
On page 9, he testifies:
A. After the children were put to bed, I laid down for approximately 2 hours.
Special Agent Fraser, in his testimony on p. 46, acknowledges this to be a mitigating factor.
Q. Would you say the fact that Constable Leach had not had sleep that day and had not expected to be called out that night is a mitigating circumstance in his falling asleep?
A. Well, if the man didn’t have the proper rest, I certainly would.
(d) Granted that wherever a policeman’s tour of duty may take him, it is essential that he be always on the alert, nevertheless the fact is that on this particular night, it was the wharf and shed area that was of most particular concern to Special Agent Fraser; and the grievor had been assigned to another and less troublesome patrol area. The further fact is that there was no evidence presented of there having been on the grievor’s patrol area that night any accident or theft or any damage whatsoever to the employer taking place during the grievor’s lapse from duty.
(e) The grievor’s superior in the area did not consider his offence as deserving more than demerit marks, and apparently the same held true for the Moncton office.
On p. 20 we find in the grievor’s testimony:
Q. You mentioned that someone told you that when you gave the statement that you would probably receive some demerits, Mr. Currie, I believe?
A. Yes sir.
Q. What was the nature of that conversation?
A. Well sir, at that time I was led to believe that it wasn’t as serious as it turned out, receiving a suspension. I thought that we got this straightened out, the worst that would happen would be some demerits handed down for my having committed an offence against rule 2.
On p. 22, in Mr. McAulay’s evidence, there is the following:
Q. At the time following the incident, did you have any conversations with Mr. Currie in regard to the punishment that would be given?
A. Previous to Constable Leach’s statement being taken, I was verbally informed by Mr. Currie that the sentence to be handed out would be nothing more than demerits.
The above is confirmed by Mr. McLeod on p. 28:
... Sunday evening I went to see Mr. Currie and I asked him about it and he informed me that he had been talking to Moncton and that Constable Leach was only going to be assessed demerits. I was quite concerned. I said this seems to have gotten away to a serious thing and he assured me that he had been talking to Moncton and that he was going to be assessed demerits.
As to Mr. Currie’s position, Mr. McLeod states on p. 29:
A. Well Mr. Currie supersedes Mr. Fraser in rank. He is the senior man and he is the man in charge and I assumed that he would be the man that would make any decisions in this regard and so therefore I went to him to get exactly their side of the story. Since I was the grievance man and I was asked to assist or help Constable Leach and so that’s why I went to him to get their full story and I mentioned to him the circumstances and so on and I thought they were going to treat it rather harshly and this is when he told me he was talking to Moncton which is our regional headquarters.
Q. Is it your impression that in the chain of command that Mr. Fraser is in turn responsible to Mr. Currie?
A. Definitely, yes.
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:
A. The punishment varied but approximately, the same. I know we had two discharge cases, two resigned while under investigation and the other two, one is 30 days suspension and the other one is 14 days plus demerit marks, 20 or 25.
On p. 61, the same witness says:
A. … There has been one case I know of, it was sleeping, there was some demerits plus a few days suspension.
(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.
J. L. Dubinsky A. Gordon Cooper
Lorne O. Clarke
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.