©b59r AD HOC 140

©u42rIN THE MATTER OF A GRIEVANCE INVESTIGATION

©u42rPURSUANT TO SECTION 112 OF THE B.C. LABOUR

©u17rCODE IN A DISPUTE

BETWEEN: THE BRITISH COLUMBIA RAILWAY COMPANY (Hereinafter Referred

To As "The Company")

AND: THE UNITED TRANSPORTATION UNION, LOCALS NO. 1178 AND 1923

(Hereinafter Referred To As The "Union")

Section 112 Investigator: Brian Foley

Appearing For-The Company: D. Pysh, D.Sawchuk, A. Shannon

Appearing For The Union: C. Mulhall, R. Sharpe

Date of Meeting With The Parties: October 21, 1983 at Vancouver,

B.C.

Date of Written Report: October 28, 1983

ISSUE: Policy Grievance - Pay Entitlement Of Employees Withheld From

Service Pending A Disciplinary Hearing

©b69r I

By agreement between the Company and the Union, the undersigned was

appointed under Section 112 of the B.C. Labour Code to investigate

grievances and make written recommendations to the parties for their

resolution. In September 1983, the parties requested a

recommendation with respect to the pay entitlement of employees

withheld from service by the Company pending a disciplinary hearing.

A meeting with the parties was held in Vancouver on October 21, 1983.

At this meeting, the parties agreed that the grievance investigator

was properly constituted and had the jurisdiction to deal with the

matter in dispute. In addition, the parties agreed that the

investigator's recommendations would be final and binding.

©b67r II

The Company's disciplinary procedure is based on the demerit points

system. Before any disciplinary action is taken by the Company, a

hearing is held to determine if discipline should be imposed. That

approach is set out in Clause 107(b)(iv) of the collective

agreement. That clause provides as follows:

" An employee will not be disciplined or dismissed until a

fair and impartial hearing has been held and until the

employee's responsibility is established by assessing the

evidence produced and no employee will be required to assume

this responsibility in his statement or statements. A

hearing shall be held and the employee advised in writing of

the decision within 15 days time from the time the report is

rendered, except as otherwise mutually agreed."

In some circumstances, when the Company becomes aware of an alleged

offence by an employee, the Company decides to withhold the employee

from service until a hearing has been held pursuant to Clause

107(b)(iv). The period between the date of the employee being

withheld from service and the finalization of the hearing process

generally ranges from a few days to two weeks. In such cases, the

employee is not paid his regular salary while the hearing process is

pending. The Union argues that the employee is in fact being

"disciplined" when he is withheld from service without pay. In the

Union's view, it is a violation of Clause 107(b)(iv) to impose any

penalty on the employee until the hearing process has been concluded.

The Company argues that withholding an employee from service is not a

disciplinary measure and the action is specifically covered by the

provisions of Clause 107(b)(vi). That clause provides as follows:

" An employee is not to be held off unnecessarily. Layover

time will be used as far as practicable. An employee who is

found blameless or an employee called by the Railway as a

witness, will be reimbursed for time lost, in accordance with

Part (a) of this Article."

The Company points out that if an employee is found blameless

following-the hearing process, he is reimbursed for all time he was

held out of service without pay.

©b66r III

The parties are agreed that the Company is entitled to withhold an

employee from service if the alleged offence is of such a nature that

he cannot reasonably be continued in service until his guilt or

innocence is determined --- they are agreed that some alleged

offences such as the use of intoxicants on duty, gross

insubordination, theft, etc. substantially undermine the employee's

effectiveness in the work environment and the problem cannot, in some

circumstances, be met by anything other than withholding the employee

from service. The parties are also agreed that there must be good

and sufficient cause for withholding an employee from service - the

action of withholding from service must be seen to be a reasonable

and defensive course of action in the circumstances at hand --- it is

a serious action which should only be used in exceptional

circumstances.

However, the Union argues that an employee who is withheld from

service is entitled to continue to be paid until the hearing process

pursuant to Clause 107(b)(iv) is completed. The Union argues that it

is unfair and unreasonable to impose a financial penalty upon an

employee (i.e., by withholding him from service and discontinuing his

salary) until it has been determined as a result of the hearing

process whether or not discipline is to be imposed upon him. The

Union submits that Clause 107(b)(iv) is clear on its face and can

only mean that an employee must be paid for all time he is held out

of service up to and including the day of the hearing and until the

decision respecting discipline has been rendered by the Company. In

support of its argument the Union refers to the "guarantee"

provisions contained in Articles 201, 212, 308 and 401; it is the

Union's view that these articles do not permit the reduction of

salary now imposed on employees by the Company when employees are

withheld from service.

The Company does not agree that withholding an employee from service

pending the hearing process under Clause 107(b)(iv) is a disciplinary

action. Rather it is submitted that disciplinary action is only

taken once the hearing process has concluded --- until the hearing

takes place and its results are assessed by the Company, discipline

cannot and is not imposed. The Company argues that the wording under

Clause 107(b)(vi) leads one to the conclusion that employees held out

of service will not be paid during the period they are held out of

service --- emphasis is placed on the provision that an employee who

is found blameless as a result of the hearing process will be

"reimbursed for time lost".

Finally, the Company argues that the Union is attempting to achieve

through arbitration what it was unsuccessful in achieving in past

rounds of negotiations.

©b67r IV

It is a generally accepted principle that discipline can only take

place after "a proper assessment of all the pertinent factors

214; Godin; 1969). That point was also made by arbitrator

" The imposition of penalties by management is a

quasi-judicial function that must be undertaken with an

awareness of all important factors that would make sure

action appears reasonable in an impartial review."

Clause 107(b)(iv) of the collective agreement in the present case

prescribes the means for "a fair and impartial hearing" before

discipline is imposed. That being the case, the action by the

Company of withholding an employee from service pending the

finalization of the hearing process under Clause 107(b)(iv) cannot be

considered discipline within the terms of the collective agreement.

Rather, it might well be termed a non-disciplinary suspension from

service in that it suspends final judgment as to whether discipline

should be imposed pending the outcome of the hearing process.

If I Consider Clause 107(b)(iv) by itself in isolation from the other

provisions of the collective agreement, the union's argument would

certainly be persuasive. Clause 107(b)(iv) is silent as to whether

employees should continue to be paid when held out of service and,

considering that clause in isolation, I might be led to the

conclusion that it is only fair, just and reasonable to continue an

employee's salary until the company decides whether or not discipline

is appropriate.

However, clause 107(b) cannot be considered in isolation from the

other provisions of the collective agreement, specifically clause

107(b)(vi). It is my responsibility to interpret the collective

agreement as a whole, to give meaning to a collective agreement

provision by assessing the wording in terms of all the provisions in

the entire collective agreement.

In my view, the reference in clause 107(b)(vi) to the fact

that an employee found blameless 'will be reimbursed for time lost"

must lead to the conclusion that employees withheld from service are

denied salary when so withheld.

Reading 107(b)(iv) and 107(b)(vi) together, I have concluded that the

company is entitled to deny salary payment to an employee withheld

from service. Whether that the Company has the right to take that

action pursuant to the terms of the collective agreement. In

reaching this conclusion, I have also considered the union's argument

that the "guarantee" provisions included in a number of articles do

not permit the reduction of salary imposed when employees are

withheld from service. I cannot agree with the union's arguments in

this regard. there is no tie-in between the guarantee articles and

the provisions of clause 107(b)(iv) and 107(b)(vi). I would

recommend that the union's grievance be denied.

All of which is respectfully submitted.

Dated at Vancouver, British Columbia, this 28th day of October, 1983.

BRIAN FOLEY

INVESTIGATOR