AH - 144
IN THE MATTER OF AN ARBITRATION
B.C. RAIL LTD.
UNITED TRANSPORTATION UNION LOCALS NOS. 1778 & 1923
IN THE MATTER OF THE GRIEVANCE OF M. FRAPPIER
SOLE ARBITRATOR: Donald R. Munroe
There appeared on behalf of the Company:
Bruce M. Greyell
And on behalf of the Union:
C. S. Mulhall
A hearing in this matter was held at Vancouver, B.C., on the
November 13 & 14, 1984
The parties agreed that I was properly constituted as an arbitration board under their collective agreement with jurisdiction to resolve the issues in dispute.
On September 29, 1983, the company dismissed Marc Frappier (the grievor) from his employment as a trainman. The immediate cause of the dismissal was a “missed call” on September 7. However, reliance is placed as well on the so-called doctrine of the culminating incident.
For many years --since 1912—the company has utilized the Brown System of discipline. Under that system, employees are assessed demerit points for industrial infractions. When a total of 60 demerits is reached, the employee is automatically dismissed. (For a full discussion of the brown System, see British Columbia Railway (1982) 8 L.A.C. (3d) 233 (hope).)
Prior to September 7, the grievor had accumulated 50 points. The “missed call” of September 7 was assessed by the company as worthy of at least 10 points. Thus, the crucial figure of 60 was reached or surpassed, and a letter of dismissal was issued as a matter of course.
It is common ground that I must decide: (a) whether the grievor provided just cause for the imposition of any form of discipline; (b) if so, whether the penalty of dismissal was excessive in the circumstances; (c) if so, what other disciplinary measure(s) should be substituted as just and equitable. See Wm. Scott & Company ltd.  1 CLRBR 1.
It is also agreed that the existence or content of a prior record only becomes relevant if the company succeeds in establishing that there was a culminating incident justifying some degree of discipline.
There are two preliminary points which I should address before discussing the merits of the case. The first relates to Article 107(c) of the parties’ collective agreement. It states that:
Written reprimands and/or warning letters will be removed from employees’ personal file after a period of two (2) years from date to issue.
Notwithstanding that contractual requirement, counsel for the company sought to adduce into evidence written warnings (not involving demerit points) of greater than two years’ vintage. While acknowledging that the warnings in question fell within the substantive scope of Article 107(c), counsel advanced a number of reasons why they should be received into evidence. First, it was argued that I am required to consider the warnings as part of the totality of circumstances: Wm. Scott & company Ltd., cited earlier. Alternatively, it was submitted that I should consider the contentious warnings not for the purpose of establishing a prior disciplinary record, but instead for a proper assessment of any suggestion on behalf of the grievor of mitigating circumstances. In the further alternative, it was contended that if the warnings themselves are inadmissible, the events which resulted in the warnings may properly be the subject of evidence to show that the grievor is not a worthy candidate for sympathetic arbitral treatment.
At the hearing, I ruled against those several arguments. Briefly, my reasons are as follows. With respect to the first submission – i.e., that I am required to consider the warnings regardless of Article 107 (c) – I adopt what was said in Wire rope Industries Ltd. (1978) 19 L.A.C. (2d) 409 (J. Weiler). There, the arbitration board was confronted with a clause stating that “an employee’s record of …warnings will not be used after twelve 912) months from date of infraction.” The employer argued that even if the parties had agreed to place limits on what could be considered in a disciplinary inquiry, an arbitrator is obliged by Section 98 of the B.C. Labour Code – as interpreted in the earlier-cited Scott decision – to take note of the entire record. At p. 413, the arbitration board said this:
Nowhere does the Labour Code specify what are the relevant circumstances of each case. Nor does the code direct the parties as to what offences might be considered grounds for discipline. As we read art. 10.12, it prevents an arbitrator from considering certain items of an employee’s disciplinary record for purposes of determining whether the employer has just cause to discipline or discharge an employee. In effect, the parties have indicated that an employee’s discipline record that is more than 12 months old is simply not relevant, i.e., is not to be a circumstance which the arbitrator should consider in exercising his remedial authority under s.989d). In our view, the remedial of the arbitrator has not been usurped by the parties by the insertion of art. 10.12 into their collective agreement. An arbitrator has full authority to consider whether a particular disciplinary response is excessive and if so what should be the appropriate penalty. This authority to substitute a penalty has not been circumscribed in any way. What art. 10.12 does is simply to indicate what evidence an arbitrator may refer to in exercising his remedial authority. In so many words, the parties have indicated (to use the language of s. 98(d)) that a discipline record that dates back in excess of 12 months is “not a circumstance of the case”.
Put another way, the statutory duty cast on arbitrators “to determine [whether] a dismissal or discipline is excessive in all the circumstances of the case” (Section 989d) of the Code) is not a requirement that inadmissible evidence be admitted or considered. Evidence may be inadmissible for a variety of reasons. One reason may be an agreement between the parties. As was observed in Corporation of the District of Burnaby (1983) 11 L.A.C. (3d) 417 (Hope) at 420, “It is open to the parties to negotiate provisions defining what will constitute the record of an employee and restrictions on its use.” See also City of Vancouver (1983) 11 L.A.C. (3d) 121 (Hope) in which the Wire hope award is quoted with apparent approval.
Counsel’s second submission might be characterized as a plea that the warnings in dispute be accorded at least limited relevance. The sentiments already expressed constitute a partial answer to this alternative submission. Beyond that, I think I am being asked to give arbitral sanction to a breach by the company of the clear dictates of Article 107(c). After all, if the company has complied with that provision – i.e., by removing the warnings or reprimands after the lapse of two years – the issue with which I am dealing would not even have arisen. In my view, the matter should be approached with a view to replicating the situation had the company honored the collective agreement as it ought to have done.
The last submission for the company was to the effect that, in any event, I should hear evidence about the events which produced the warnings or reprimands. In my view, that would be to finesse the clear intent of Article 107(c). In essence, the agreement between the parties is that certain features of an employee’s history with the company are simply not relevant to later questions of discipline.
That disposes of the first preliminary point. The second preliminary matter was raised by counsel for the trade union’s persistent efforts to delve into the propriety of the earlier assessments of demerit points. All such assessments were susceptible to the grievance procedure. But no grievances were filed. Yet, in his examination of some of the witnesses, counsel for the trade union sought to explore the earlier disciplinary episodes, and to show that discipline should not have been meted out. In each instance, I indicated that such could not be done. The following extract from Brown & Beatty, Canadian labour Arbitration, p. 373, is apposite:
Assuming that the employer is able to prove the existence of a culminating incident, there is a consensus that, in addition, it must show that the matter in which it relies in that record were brought to the employee’s attention before they can be raised to support the penalty imposed. Manifestly, if the employer fails to apprise the employee of those deficiencies on which it has relied in disciplining him, the employee might well claim to have been lulled into a false sense of security in assuming that the employer had tacitly condoned his pattern of behavior. Indeed, on that same premise, employers have been precluded from relying on those incidents for which no disciplinary action was invoked at the time they occurred, eventhough they may have been noted on the employer’s internal records. Furthermore, on this same premise, one arbitrator has suggested that the absence of a progressive system of discipline may affect the employer’s right to rely on earlier acts of misconduct for which no discipline was invoked at the time.
For some arbitrators it also follows from this reasoning that where an employer relies exclusively on past misconduct for which some discipline was meted out, and which was accepted by the grievor or not processed through to arbitration, generally employees will not be allowed to adduce evidence to explain away such misconduct in an arbitration proceeding based upon the culminating incident. In the result, the merits of the record are not assessed, rather it is accepted on its face as evidence of the discipline that has been imposed.
In addition to those observations, a powerful argument exists that to allow explanatory evidence concerning earlier and ungrieved discipline, and then to rely on such evidence to find that prior discipline, and then to rely on such evidence to find that prior discipline was not justifies (thereby transforming a “culminating” incident into an “isolated” incident), would in many cases be tantamount to permitting the adjudication of grievance which are manifestly and grossly untimely.
I turn now to the case itself. At the material times, the grievor was employees as a trainman. His home base was Lillooet, and he resided in the company’s bunkhouse at that location. On September 6-7, 1983, he was “on call” which meant, among other things, that he was requires to keep the dispatch office informed of his whereabouts.
In the evening of September 6, in the company of his girlfriend, the grievor checked into the Reynolds hotel – Room 11 – which is a matter of a few hundred yards from the company’s bunkhouse. At 11:22 the following morning, September 7, the grievor spoke by telephone to Bob Stierle, a crew dispatcher at Lillooet, to inform him where he could be found in the event he was required. The following are extracts of the conversation (the time and content of telephone calls to and from the dispatch are easy to ascertain because of the company’s requirement that all such calls be recorded):
Stierle - 1122; Hello.
Frappier - Hello. Frappier here at Lillooet.
Stierle - Yes Marc.
Frappier - Yeah could you give…what time do you figure on the VO here?
Stierle - I don’t know I tried to get a lineup out of Bill Witt and he told me was too and he hung up on me.
Frappier - Oh is that a fact eh?
Stierle - Yeah.
Frappier - Could you give me a call at ahhh…Room 11 at the Reynolds Hotel?
Stierle - Is that where you are?
Frappier - Yup. So I’ll be sleeping from now on…
Stierle - So you’re going to stay there for awhile?
Frappier - No! No!
Stierle - Yeah I know. So it’s just the one night?
Frappier - Yup.
Stierle - Okay Marc… I’ll put down Room…
Frappier - 11
Stierle - 11…
Frappier - So you don’t know what time the VO is going to be, but you know where I’m at.
Stierle - Exactly.
Frappier - Thank you sir.
Stierle - Okay, bye bye Marc.
Frappier - Bye.
I should note that the “VO” is a train which originates in North Vancouver and passes through Lillooet
where it changes crew on its way to Prince George. That was the train to which the grievor expected to be assigned at some point in the afternoon of September 7.
I should also record that the grievor placed the telephone call to dispatch office from the lobby of
the Reynolds Hotel. That is because the individual rooms do not have telephone extensions. Of course, that meant that the grievor would have to rely on the good offices of the hotel desk clerk, as well as the crew dispatcher, to receive the anticipated call to work. Apparently, the utilization of such “third parties” is not uncommon, and the grievor is not being faulted on that account.
Following his telephone conversation with Stierle, the grievor returned to Room 11. About 30 minutes later, Stierle was advised that Lillooet crew (including the grievor) would be required for the “VO” at 1:55 that afternoon. Accordingly, he telephoned the desk clerk at the Reynolds Hotel. The following conversation ensued:
Bartender - Good afternoon. The Reynolds Bar.
Stierle - Hi. Could I have room number11 please?
Bartender - Oh, just a minute I got to put you through to the lobby.
Desk Clerk - Afternoon lobby.
Stierle - Hello. Could I have room number 11 please?
Desk Clerk - Room number 11?
Stierle - Ah humm.
Desk Clerk - He’s not in.
Stierle - Pardon.
Desk Clerk - Can’t get him up. I’ll try again.
Stierle - I just talked to him .. He’s .. He’s gotta be there. He’s expecting a call here for a train.
Desk Clerk - Okay. Hang on. - 1 ½ minute delay
Desk Clerk - Hello.
Stierle - Hi.
Desk Clerk - He doesn’t answer his door.
Stierle - At room number 11?
Desk Clerk - That’s right.
Stierle - Is that …ummm…room made out to a Mr. Marc Frappier?
Desk Clerk - Yes it is.
Stierle - Well, he’s playing games with me then.
Desk Clerk - Well…
Stierle - Is he supposed to be (cut off by Desk clerk)
Desk Clerk - He doesn’t answer his door so uhh…there’s nothing I can do.
Stierle - and he doesn’t have a phone there?
Desk Clerk - Nope.
Stierle - Humm…Okay, thank you.
Desk Clerk - Okay.
Stierle - Bye, Bye.
A few minutes later, Stierle asked a fellow employee, Bill Witt, to see whether the grievor had returned to the company’s bunkhouse. Witt checked and reported that such was not the case. Stierle also asked Witt to go to the Reynolds Hotel to ascertain with certainty whether the grievor was in Room 11. For some reason, Witt declined that request.
The next anyone heard from the grievor was at 6:17 that afternoon when he called the company’s offices and spoke to a crew dispatcher named Ron Dorland. The conversation was as follows:
Dorland - Crew Dispatcher.
Frappier - Yeah. Marc Frappier at Lillooet uhh…what happened to the VO?
Dorland - Well you missed a call for it Marc.
Frappier - Oh. Uh…Did the Crew Dispatcher last uh…early this morning there didn’t he have a message on it?
Dorland - Yeah. They went to the room in the Reynolds. There was no answer, and they looked for you in the room at the bunkhouse and couldn’t find you there either, so they had to call someone else.
Frappier - Oh, what room did they look for in the uhh…Reynolds?
Dorland - Oh, I don’t know. I wasn’t here at the time. Whatever room you told them.
Frappier - Oh for Christ’s sakes. Yeah, well…Huh. Must of went to the wrong room I guess. I told them 11. Anyway, okay thanks Ron.
Dorland - Okay.
Frappier - Bye.
Dorland - Bye.
Two days later, on September 9, the grievor had a brief discussion with his supervisor, Maurice Isackson. The grievor assured Isackson that he had been in Room 11 when Stierle was trying to track him down. Isackson suggested that they speak to the desk clerk, Gordon Coultes. The grievor accepted that suggestion, and the two walked to the Reynolds Hotel where they found Coultes on duty. After the usual salutations, the grievor walked out of earshot. He testified that he took that step back so that Isackson would not think he was seeking to intimidate or influence Coultes in his answers to Isackson’s questions.
In any event, Isackson’s testimony was that Coultes was “sure of the room” – i.e., that he had knocked on the correct door. According to Isackson, Coultes said his memory was assisted “because several people had been looking for [the grievor].”
On September 21, Isackson conducted a disciplinary hearing pursuant to a provision of the collective agreement which requires “a fair and impartial hearing” before an employee is disciplined or dismissed. Consistent with the company’s requirements, a transcript was prepared and preserved. The transcript is quite lengthy, and I do not intend to fully reproduce it. I am asked by counsel for the company to pay particular attention to the grievor’s assertion, which we know to be incorrect, that he had called the dispatch office in the evening of September 6. In fairness, the grievor later corrected that statement by saying:
…I also wish to say that I meant to call the Crew office in the late hours of [September 6] but I now realize my girlfriend must have made me forget all about that. Then, when I got up…around 11:20 or so I realized I had forgotten to call…the night before.
One other feature of the transcript should be noted. The trade union representative at the disciplinary hearing was Robert Samson. Near the conclusion of the hearing, Isackson asked Samson whether he wished to make any comments on the case. Samson replied that:
I went and saw Gordon the desk clerk who was on duty that day and I informed him how serious this investigation was and he said he couldn’t conclusively say that he had in fact knocked on door 11 and it may have been door 12. He had three calls to make approximately the same time and in the confusion may have knocked on the wrong door.
In explanation of those comments, Samson testified that he spoke to Coultes on the morning of September 21 to see whether Coultes was thoroughly satisfied that he had knocked on room 11. In the course oh his reply, Coultes indicated the above-noted lack of certainty. In cross-examination, Samson acknowledged that he told Coultes that the grievor’s job might ride on Coultes answers to his questions; further, that Coultes might be subpoenaed to a subsequent hearing. As counsel for the company observed, in such circumstances it might be tempting for someone in Coultes’ position to give answers favorable to his interrogator, regardless of the veracity of those answers.
Over the next few days, the matter was considered by Isackson and his superiors. Finally, on September 29, the grievor’s record was assessed 10 demerit marks for “miss[ing] call for own crew ordered for 1355, September 7, 1983”. As I indicated at the outset, that brought the grievor to a total of 60 demerits, which the result that a letter of dismissal was issued.
On the evidence of Isackson and Albert Shannon, Manger of Operations & Maintenance, the decision to discipline the grievor for the incident of September 7 – i.e., the culminating incident – flowed from a disbelief of the grievor’s assertions to the effect that he was ready, willing and available to accept the call to work. More than once, the grievor told Isackson (and repeated in testimony) that he (the grievor) would have heard and responded to any knock on the door to Room 11. However, Isackson and his superiors rejected those assertions, and preferred the initial statement of the desk clerk, Coultes, that several knocks on the door to Room 11 after his call to Stierle, either fell into deep sleep without regard to his employment obligations, or simply ignored the subsequent knocks on the door because he did not wish to go to work.
The grievor’s credibility, both as to the events of September 7 and generally, was addressed in the testimony of Isackson and Ted Teichman, the Manager of Labour Relations. Isackson said that on July 1, 1983, the grievor had missed a call; that initially the grievor claimed he had not heard the knock on his door because he was asleep; that later grievor admitted lying about the incident and acknowledged that he had heard the knock but chose not to respond.
Teichman testified that a few months ago, the grievor came to his office in North Vancouver, seemingly to plead for his job, the last steps of the grievance procedure (prior to arbitration) not having resulted in his reinstatement. Teichman’s evidence in chief was as follows:
He [the grievor] came to my office. He said he wanted to apologize because the railway had been so good to him, and that he had lied during his investigation. I surmised that he wanted to get back as an employee.
The grievor acknowledges the fact of conversations both with Isackson and Teichman. But he denies any suggestion that he lied (either with respect to July 1 or September 7) or admitted doing so.
The critical factual issue, in determining the existence or otherwise of a culminating disciplinary event, is whether the desk clerk, Coultes, knocked on the door to Room 11. On that critical point, the company seeks a finding in its favour based on the following point, the company seeks a finding in its favour based on the following cumulative considerations. First, it is submitted that the grievor was shown to lack credibility. Second, there appears to have been at least one prior episode of the grievor sleeping through, or ignoring, a call for work. Finally, there is hearsay evidence that Coultes knocked on the door to Room 11 as requested by Stierle.
I will deal with each of those considerations in turn. As for the grievor’s readability, I must frankly state that some features of his testimony were troubling. Also troubling is the evidence of Isackson and Teichman, both apparently credible witnesses, about admissions of deceit (although the admission to which Teichman testified lacked specificity – i.e., it is hard to draw from Teichman’s testimony an admission by the grievor to lying on a particular point during the investigation of the alleged infraction of September 7). But even assuming that I cannot be confident about the grievor as a witness, does that assist in proving the narrow but important fact issue: whether the desk clerk knocked on Room 11? In the final analysis, that question still remains. One cannot leap automatically from a finding that the grievor’s evidence is not reliable to the conclusion that the hearsay evidence is not reliable of Coultes’ activities 9as given by Isackson and Stierle) must necessarily be trustworthy – especially in light of the contradictory hearsay evidence by Samson.
On this aspect of the case, the decision of the Supreme Court of B.C. in Pacific Western Airlines, Vancouver Registry No. C821898, is instructive. There, the court was dealing with an application to set aside an arbitration award in which the dismissal of an employee for a series of alleged thefts had been upheld. One issue before the court was whether there was any evidence before the arbitrator to support his finding that the employee was the guilty party. In that connection, McEachern, C.J. defined the notion of “no evidence” in the following terms (at p.5):
“No evidence” in this context does not necessarily mean a complete absence of any admissible evidence. Here there was admissible evidence upon a crucial fact or ingredient without which there is no basis for a conclusion or inference of guilt.
From that definitional premise, the court considered whether the arbitrator had erred in utilizing the employee’s disbelieved denial as a major basis for concluding that the employee was indeed guilty of the alleged infractions. At p.5, McEachern, C.J. said this :
…[Counsel for the employee] also argues that the disbelieved denial of the [employee] does not prove guilt, and that the proper approach for a tribunal in such circumstances is to put such evidence to one side ,and for the tribunal to ask itself whether, apart from such denial, the party carrying the onus has established his cage…Regina v. Stokes, CA820376, Unreported, August 18, 1982 (B.C.C.A).
I tend to think …that [counsel for the employee] is right when he argues that the arbitrator on the first ground was decided without evidence…
The precise circumstances in Pacific Western may or may not bear perfect analogy to the case at hand. That is not important. Rather, the significance of the decision lies in its reminder to adjudicators that considerable caution must be exercised in transforming general conclusions as to credibility into specific findings of fact. In the end, the party bearing the onus must prove its case, and rarely will that be accomplished simply by showing that the other party’s witnesses are not reliable.
The second circumstance I am asked to consider is the fact of a similar incident in the recent past. In the jargon of lawyers, “similar fact evidence” may sometimes be utilized for the resolution of factual issues. However, I do not understand counsel for the company to be suggesting that the strict criteria for reliance on such evidence are satisfied in the instant case. In any event, I am unable to regard the earlier incident as cogent or adequate proof that the desk clerk knocked on the door of Room 11 at about noon on September 7.
Finally, there is the hearsay evidence.* There is no doubt that arbitrators are not limited to evidence which is admissible in a court of law:
*As the reader may by now have inferred, the desk clerk, Coultes, did not give evidence. Unfortunately, some time ago he suffered an incapacitating stroke. Obviously, no adverse inference can be drawn against either party for the fact that he was not called to testify. However, that does not make the evidence of his activities on September 7 any less hearsay or any more reliable.
Section 101(a) of the Labour Code of B.C. But the acceptance of hearsay into the evidentiary record is one thing; reliance thereon for pivotal findings of fact is quite another thing. In Palmer, Collective Agreement Arbitration in Canada, Butterworks, 2nd Ed,. pp. 87-88, the “general position” is summarized in the following fashion:
Generally speaking, the hearsay rule is followed in arbitration proceedings. Consequently, hearsay evidence will ordinarily be ruled inadmissible. In fact, arbitrators are not required to so limit themselves. Thus, although arbitrators are permitted to accept hearsay, it is only done reluctantly and in circumstances where it expedites the hearing and does not seriously disadvantage the party not calling such evidence
In practice, it is often wise to so act. Hearsay is by its very nature suspect; its acceptance can extend hearings to great lengths, and in the end, as has been noted earlier in this chapter, it may perhaps be valueless or worse. Again, as has been noted, although arbitrators need not refuse to consider anything but first-hand evidence, they should be careful to apply the best evidence rule whenever possible…
The reason why hearsay is “suspect” is amply demonstrated in the present circumstances. As I have already noted, I am confronted with conflicting hearsay: from Isackson and Samson. Which is the more reliable? At best, I am left in a state of uncertainty which only the presence of the witness and his exposure to examination and crass-examination could resolve.
I have distinguished between the reception of hearsay and reliance thereon in the fact finding process. That distinction has been elevated to a point of law. In Nanaimo School Board  1 CLRBR 39, the Labour Relations Board of B.C., acting in it’s review capacity under Section 108 of the Labour code, propounded the following two propositions (at p.43): (a) uncorroborated hearsay evidence should not be preferred to direct sworn testimony; (b) hearsay evidence alone should not be permitted to establish a crucial and central fact. In setting forth those rules of arbitral conduct, the Labour board adopted the following passages from the Ontario Divisional Court’s decision in Consumer’s Gas Co. (1973) 40 D.L.R. 509 at 512:
It is observed that the board in this case made a finding of fact excluding, in effect, the evidence of the grievor and relied exclusively on hearsay evidence, some of which evidence was in conflict. Such evidence may well be admissible by reason of the subsection of the Labour Relations act…referred to, but it must be borne in mind that in cases of this type the burden is on the employer to show that the employer acted properly in the discharge of the employee, and in order to satisfy that burden in this case the employer, in effect, relied exclusively on hearsay evidence. Even though that evidence may well have been admissible we are all of the view that the employee did not receive a fair hearing in the circumstances. His counsel had no real opportunity to cross-examine on the evidence that was presented.
In my view, to all intents and purposes, I am being asked to rely exclusively on hearsay evidence for the ascertainment of an essential and disputed fact. If I have misused the word “exclusively”, it cannot be denied that hearsay is the principal basis upon which I am asked to decide a crucial factual issue in favour of the party on whom the burden of proof lies. That is a dangerous course for an adjucator especially where, as here, the consequences on the other party would be onerous – loss of employment. It is a course which I must reject.
I appreciate that it is not particularly satisfactory for a case to be decided largely on the basis of the law or policy surrounding the reception or utilization of evidence. It can be frustrating for the parties to the arbitral process. Nevertheless, in the circumstances and for the reasons expressed, I cannot conscientiously find that the grievor “missed a call” in the blameworthy sense. Accordingly, I must hold that just cause for discipline for the events of September 7 has not been established. In view of that holding, which is to the effect that a culminating incident has not been shown, it is unnecessary to record in detail the grievor’s prior record. It is also unnecessary to address the question of the proper relationship between the brown System of discipline and an arbitrator’s remedial mandate.
The grievor is to be reinstated to his employment as a trainman with 10 demerit marks removed from his record. The matter of back pay and benefits is left to be determined and calculated by the parties. I retain jurisdiction to resolve any disputes in that connection.
DATED AT VANCOUVER, B.C., THIS 26 DAY OF NOVEMBER, 1984.
Donald R. Munroe