AH - 156
IN THE MATTER OF AN ARBITRATION
B.C. RAIL LTD
UNITED TRANSPORTATION UNION, LOCAL 1778
IN THE MATTER OF THE GRIEVANCE OF CLYDE MULHALL
SOLE ARBITRATOR: Vincent L. Ready
There appeared on behalf of the Company:
Mr. Bruce Greyell
And on behalf of the Union:
Mr. David K. Pidgeon
A hearing in this matter was held at Vancouver , B.C., on June 6
& 30, 1986; July 22 & 31, 1986; August 1 & 20 , 1986.
The parties agreed I was properly constituted as an arbitrator under their collective agreement with jurisdiction to hear the matter in dispute.
In this case the union is seeking reinstatement of Mr. Mulhall, the grievor, who was discharged on October 21, 1985. The letter of discharge states the following:
On September 12, 1985 you were removed from the service of the Railway and charged with insubordination by refusing to follow instructions of a supervisor.
A hearing subsequently took place on October 11th,1985 after being postponed form September 16th, 1985 at the request of the United Transportation Union.
On assessing the evidence produced at the hearing, it is clear that you were instructed to push the interchange which you refused to do.
Your action constituted a clear case of insubordination and in the circumstances are grounds for dismissal. As you know, the Railway administers discipline in accordance with the Brown System of Discipline.
Accordingly, your service record is assessed sixty (60) demerit marks bringing your total demerit marks to ninety-five (95).
You are therefore advised that your services with BC Rail Ltd. Are terminated. Please arrange to return all Railway property now in your possession to the Terminal Supervisor at North Vancouver.
As is evident from the foregoing letter the events giving rise to this dispute occurred on September 12, 1985. On that date the grievor was employed as a Yard Foreman and reported for work on the 5 o’clock yard at North Vancouver, B.C. He was in charge of a train crew of 3 employees.
At the commencement of his shift the grievor was issued a switch list which required him to make several moves. Of specific importance to this case was the instruction to push 59 cars from the CN interchange into the North Vancouver “B” yard.
The grievor refused to push the cars because he felt it was unsafe to do so on several grounds, which I will explore in more detail later.
The Railway took the position that the grievor’s refusal was an act of gross insubordination, removed him from service, held a lengthy internal hearing on October 11, 1985, and finally on October 21, 1985 discharged the grievor.
The grievor commenced his employment with the Railway on February 21, 1957. His work record reveals that, over the years, he has had intermittent demerit points assessed against him. The grievor was dismissed on January 7, 1966 and was reinstated with a reduced penalty on September 13, 1966. He was dismissed again on May 19, 1967 and rehired as a new Trainman on May 23, 1975. Between 1975 and 1984 he had no demerit points assessed against his record. However, on June 18, 1984 he was involved in a head-on collision for which he was discharged. This discharge was reduced to a discipline of 35 demerit points and the grievor was reinstated on June 17, 1985. Therefore, the grievor’s discipline record, at the time of discharge on October 21, 1985, which is the subject of this grievance, consisted of 35 demerit marks.
Since his return to work in June, 1985 he had only worked approximately 20 shifts in the North Vancouver yard. This was due to his absence for Union leave to carry out his duties as General Chairman, a position he has held for several years.
The position of the Railway regarding the order to push the train can be generally summarized as follows.
The grievor ought to have carried out the order as it is management’s prerogative to control and determine the movement of trains. Moreover, the Railway asserts that similar moves have been made on numerous occasions over past years without incident and further, that if the grievor felt the use of hand signals could not accomplish the move in a safe manner, then he ought to have used radio signals to make the push.
The position of the Union and the grievor regarding the order to push the train on September 12, 1985 is that the grievor, in his position as Yard Foreman, is responsible for the safe movement of the train. In this regard he points to and relies on the Uniform Code of Operating Rules (U.C.O.R.), specifically rules 12, 103, 106, 107 and 108 which read as follows:
Signals must be given form a point where they can be plainly seen and in such a manner that they cannot be misunderstood. If there is doubt as to the meaning of a signal, or for whom it is intended, it must be regarded as a stop signal.
When switching is being performed either in road or yard operation, signals should be given, or relayed directly to the engineman. Conductors and yard foremen are responsible for seeing that the work is so organized and that trainmen and yardmen are in proper position to give or relay such signals accordingly.
When cars are being pushed by an engine under control of hand signals, the disappearance from view of the member of the crew lights by which signals controlling the movement are being given must be regarded as a stop signal.
In the event of failure of radio equipment, or communication is interrupted during switching operations, the movement must be stopped at once and no further movement made, except as authorized by hand signals, or until radio communication restored.
Crews of trains or engines clear of main track must not give a proceed signal to an approaching train or engine.
When cars are pushed by an engine, except when switching or making up trains in yards, and even then when conditions require, a member of the crew must be on the leading car and in a position from which signals necessary to the movement can be properly given.
When cars not headed by an engine are passing along a public road or over a public crossing at grade which is not adequately protected by gates or otherwise, a member of the crew must be on the leading car to warn persons standing on, or crossing, or about to cross the track.
No part of a car or engine may be allowed to occupy any part of a public crossing at grade for a longer period than five minutes, and a public crossing at grade must not be obstructed by switching operations for more than five minutes at a time.
When necessary to cut trains at public crossings at grade, except where a member of the crew is to protect the crossing, or where other protection is provided, cars or engines must not be left standing within 100 feet of the traveled portion of the public road.
Where special instructions require that switching movements over certain public crossings at grade be protected by a member of the crew, such protection must be provided by a member of the crew from a point on the ground at the crossing until the crossing is fully occupied.
When a train or engine passes over any public crossing at grade protected by automatic signals or automatic gates, it will be necessary before making a reverse movement over the crossing for a member of the crew to protect the same.
Before making switching movements over unprotected public crossings at grade where the engineman’s view of the crossing is obscured, arrangements must be made for a member of the crew to be in position to observe the crossing and give signals to the engineman as necessary.
At public crossings at grade at which there are automatic warning devices to indicate the approach of trains or engines on the main track, movements over such crossings on other than main tracks, must not, unless otherwise provided, exceed ten miles per hour from 100 feet distant until the engine or leading car has passed over the crossing.
At public crossings at grade referred to in time table instructions, where protection devices are required to be operated by use of push buttons or other appliances, movements must not obstruct the crossing until protection devices have been operating for at least twenty seconds.
Trains will run under the direction of their conductors. When a train is run without a conductor the engineman will perform the duties of the conductor.
Conductors, enginemen, and pilots if any, are responsible for the safety of their trains and the observance of the rules and under conditions not provided for by rules must take every precaution for protection. This does not relieve other employees of their responsibility under the rules.
Trains or engines must move with extreme care when meeting or passing a train carrying passengers which is receiving or discharging traffic at a station. They must not pass between such train and the platform at which traffic is being received or discharged unless the movement is properly protected.
In case of doubt or uncertainty the safe course must be taken.
Mr. Mulhall insists that he never did refuse to move the train. In fact, he argued that on several occasions he offered to pull the train and, failing that, he would push it if his supervisor would accept the responsibility for this procedure. The latter was refused by the Railway.
The Union also asserts that because of the length of the train it was not possible to give clear hand signals, i.e. the Trainmen would have gone out of sight from each other because of the curvature of the track.
Similarly, the Union asserts that if the train was pushed at that time of day there was a greater potential for passengers milling around the station either to board the Bud Car (passenger train) or the Royal Hudson. The Union’s position is that if the train was being pushed and required to stop for an emergency the slack operation on a 59 car train clearly has the potential of causing serious damage and harm to the public, which would be a violation of U.C.O.R. Rule 107.
The union advanced a similar argument regarding public road crossings during rush hour traffic at the time the move was to take place. In its view this is an additional violation of U.C.O.R. Rules 12, 103 and 108.
CONSIDERATION OF EVIDENCE AND SUBMISSIONS
The appropriate arbitral framework to review a discharge grievance is that which is set out in re William Scott & Company Ltd. (1977), 1 C.L.R.B.R. 1. In short, the William Scott case requires an arbitration board to pose the following questions:
1. Has the grievor given just and reasonable cause for some form of discipline?
2. If the answer to question 1 is “yes”, what alternative measure should be substituted as just and equitable?
3. If the answer to question 2 is “yes”, what alternative measure should be substituted as just and equitable?
Regarding question 1 above, a factual determination must be made on the evidence to determine if there is just and reasonable cause for discipline.
In this case certain factual determinations must be made to determine whether or not the grievor was insubordinate, i.e. whether or not the refusal to push the train as opposed to pulling it, in all of the circumstances, constitutes a violation of the well established “work now, grieve later” principle.
Generally speaking it must be said that where orders are given by supervisors they should be adhered to. Otherwise we would have management by debate instead of civilized authority. Simply stated the work is to be carried out and if an order is in contravention of the collective agreement redress can be sought and achieved under the grievance procedure. However, there are some expectations to the general application of the rule and on my reading of the arbitral authorities the most common exceptions are set out in the well known text of Brown and Beatty at page 439:
As noted, exceptions to this general principle have been developed where the employee would not be able to secure adequate redress through the grievance and arbitration process if she were obliged to conform to the instructions given by the employer regardless of their propriety or reasonableness. In these circumstances, arbitrators have taken the view that the immediate harm the employee would suffer in being required to comply with such orders is more compelling than the employer’s interest in maintaining production and its authority. In the result, it is now generally recognized that an employee is entitled to refuse to follow his supervisor’s instructions where such instructions would endanger his health and safety, require him to perform an illegal act, or in the case of a union official, result in irreparable harm to the interests of other employees. However, in erecting these specific exceptions, arbitrators have expressly stated that the employee bears the onus of proving that her circumstances fall within one of them, and that she communicated the reasons for her refusal to the supervisor involved.
Many arbitrators have said that these specific exceptions are not to be unduly extended so as to permit them, for example, to enable employees to challenge indirectly the propriety of a particular work assignment and more generally the employer’s right to manage its business. such matters, it is said, may be questioned directly through the grievance and arbitration process rather than by way of a defense to an allegation of an improper refusal to comply with the employer’s instructions. However, if a satisfactory resolution as to the validity of a particular work assignment, such as contracting out, could not be achieved by filing a grievance in the usual manner because, for example, of difficulties in assessing damages and providing full relief after the event, the essential premise of the governing principle could not be met and the rule itself would have to give away. As well, several arbitrators seem to have recognized that in certain circumstances, where, for example, the order given obviously and unambiguously violates the collective agreement, the rule ought not to apply. Obviously, this exception, which has been characterized as another instance in which the grievance and arbitration procedure is inadequate to remedy the harm a grievor would suffer if she were obliged to obey, would not embrace an order which, while of dubious validity, was not so unreasonable as to be untenable. Finally, some arbitrators, involving what has been characterized as the “disproportionate harm” exception, have taken the view that where the refusal to comply does not affect the employer’s ability to maintain production, or challenge its symbolic authority, the conduct of the grievor should not be viewed as serious or even as being insubordinate. Between these two alternatives, it seems that for the majority of arbitrators a finding that the grievor did not intend to challenge the employer’s authority, that he did not act with a blameworthy state of mind, or that the employer’s production was unimpeded by the refusal, will affect the severity of the penalty that may properly be imposed, rather than justify the complete exoneration of the employee.
In instances where an employee legitimately invokes one of the expectations to the general principle, an issue may arise as to her remedial entitlements. In this regard, at least one arbitrator has expressed the view that unless the agreement expressly provides that the employer is obliged to make work available to its employees and the employee in fact made himself available to perform other work, where he justifiably refuses to perform a particular work assignment, he will not be entitled to claim damages for the loss of earnings occasioned by the employer’s improper assignment. However, another board has suggested that where the employees do make themselves available for other assignments, the rule should be otherwise. As well, where the collective agreement makes special provision for the payment of employees in such circumstances, foe example, in a call-in pay provision, it may, depending upon the language of the agreement, require the employee to establish that the work was in fact unsafe and not simply that his belief that it was so was a reasonable one.
Before delving into the “work now, grieve later” principle and the exceptions, if any, to be applied in this case I feel it necessary to put the events of September 12, 1985, as well as subsequent events, into context.
The evidence reveals that the grievor first raised his concern vis-a-vis pushing the train with Mr. Popp, Coordinator, shortly after receiving the switch list. Mr. Popp passed the grievor’s concern along to Mr. Behnish, assistant General coordinator. On a second occasion shortly thereafter the grievor again raised his concern about pushing the train and was told it was to be pushed. To use Mr. Behnish’s evidence “I again told Popp that was the way it was to be done, it was to be pushed into the yard after the crew completed unloading the barge”.
On a third occasion the grievor raised the issue with Coordinator Popp who in turn raised it with Behnish. Only this time Behnish contacted his supervisor, Mr. Ertman, who confirmed that the grievor was to push the train. As well, Ertman at this time dispatched Mr.Popp to instruct the grievor to push the train and if he had any more problems with the grievor to let him know. Shortly thereafter Mr. Behnish returned to Mr. Ertman and asked him to speak to the grievor which he did at the yard office in the presence of Mr. Behnish. This was a short conversation. It only confirmed what everyone at this point already knew - that the grievor was refusing to push the interchange because he felt it unsafe to do so.
At this point Mr. Ertman phoned his superior, Mr. Rowland, to brief him on the events. Mr. Rowland advised Mr. Ertman to contact Labour Relations for direction, which he did. He spoke to Mr. Pysh, Manager of Labour Relations, and apprised him of the events. Mr. Ertman explained to Mr. Pysh that Rowland had advised him to contact Pysh for direction as to what to do in the event the matter could not be resolved. Mr. Pysh advised Mr. Ertman to phrase and pose the following to the grievor:
1. I am giving you an instruction.
2. Do you understand this instruction?
3. Do you understand you will be subject to discipline if you do not follow this instruction?
Then Mr. Ertman returned to the lunch room and met with Behnish and the grievor. Ertman asked the grievor if he was refusing to push the interchange as instructed to which the grievor answered he was, “it was unsafe”. Ertman then asked why the grievor did not use a radio. The grievor replied “that another employee had been disciplines in Prince George for something to do with a radio and that he (the grievor) presently had 35 demerit points and would put himself in a position where he’d be subject to more demerit points”.
At this point Mr. Ertman stated to the grievor that “We have a pretty good working relationship in the North Vancouver yard and we get along. We work 5 hours and have 3 hour quit and we don’t want to disrupt the relationship we have. I just want to get the job done”.
Ertman then pointed out to the grievor “that if we have any problems with a rumble or dissension that the crews would work the full 8 hours and that we didn’t want to be instigators of such an action”. As I understand the forgoing evidence, it was referring to the historical practice in the rail yards of returning home as soon as your work is completed and receiving a full 8 hours pay for the shift.
In any event, the grievor’s response to Ertman was that “it never bothers him to work 8 hours”. The grievor’s also advised Mr. Ertman at this point that he (the grievor) had been in touch with the Ministry of Highways and that he was responsible for the movement of the train. The grievor also told Ertman that if he (Ertman) would take responsibility for the movement that he would push it, to which Ertman responded in the negative and told the grievor he was responsible for the move.
Ertman again posed the 3 questions outlined above on 3 separate occasions to which the grievor responded in the affirmative to the questions posed. Ertman then phoned Mr. Pysh once again to update him on events to which Pysh dictated the precise wording to be used in the event it was necessary to remove the grievor from service. Ertman returned to the lunch room and posed the 3 questions once again. The grievor’s response was the same. He was then removed form service at 9 o’clock a.m.
Before leaving the premises the grievor asked for the charges in writing. Ertman advised him that he wasn’t sure if the charges were failing to follow orders or insubordination.
Ertman then called Mr. Pysh once again and Pysh decided it was insubordination. It should also be noted that at this time the grievor was quite upset. He threatened to picket the operation and further said that he was going to the Labour Relations Board.
Subsequent to his discharge the grievor, by letter dated September 19, 1985, requested the Chief inspector of the Ministry of Transportation and Highways to conduct an investigation into the incident on September 12, 1985. Specifically, the grievor’s letter states “…Therefore I am requesting that M.O.T.H. under the Railway Act of B.C. under the Industrial Health and Safety Regulations Section 8.24 (11 through 71) inspect an unsafe condition that existed on the morning of September 12, 1985 on B.C. Rail…”.
The ministry of Transportation and Highways assigned 2 of its inspectors, Messrs. Howbold and Deciccio, to conduct the investigation. During the investigation all of the crew who worked with the grievor on September 12, 1985 as well as all management personnel mentioned earlier in this award were interviewed except Mr. Pysh. At page ii of their report to the Ministry (tendered as Exhibit 14 at the hearing and dated June 5, 1986) the investigators reached the following conclusions:
A review was made of all information received and all pertinent documents were analyzed. A synopsis of the events was prepared in order to have an understanding of what transpired.
As a result of the investigation the following was concluded with respect to the incident in question.
1) No unsafe conditions were identified during the time work was actually being done.
2) Concerns for the safety of the train crew and public were identified as existing at the Pemberton Avenue crossing because of the heavy flow of traffic using the crossing.
3) Potentially unsafe conditions which would place the train movement, the employees and the public in jeopardy were identified the greatest concern being for the safety of passengers at the railway station where extreme care must be exercised by the train crew.
4) No operating rules were violated during the time work was actually being done.
5) The potential did exist for rules violation. If the yard foreman had followed the request to push the cars as requested by supervisors the yard foreman would have placed himself in a position of being responsible for violating rules and committing an unsafe act. The yard foreman’s suggested alternative to pull cars would have complied with the rules and would have been safe.
6) An additional concern is for the safety of passengers on the station platform waiting for the arrival of the Royal Hudson Steam Train. These people could be injured by walking around on the track or coming on contact with a passing rail movement.
Also on pages 26, 27 and 28 of their report it is stated:
3. Were there any potentially unsafe conditions which would place the train movement, the employees, or the public in jeopardy?
(a) The investigation pursuant to the Railway Act revealed that the potential for an unsafe condition clearly existed in that:
(i) It has requested by management that the train be pushed and as a result the locomotive horn, bell and headlight would not be available for warning the public of the approaching movement.
(ii) Slack action in a 59 car train created by brakes being applied to a pushing locomotive (cars without brakes) would result in between 30 - 40 feet of movement. Therefore, the train would continue at least this far before braking began. This would not occur when pulling the cars as braking would begin immediately and cars would run up against the breaking locomotive as opposed to running away from it.
(iii) The Locomotive Engineer when pulling cars is in a position to act instantaneously should he become aware of the need to warn persons on or near the tracks or to stop the train should it be required.
(iv) Buff forces would be of concern when pushing such a length of train up-hill and around switches and curves. This end of the yard has experienced accidents in the past because of track conditions.
(v) For the reasons noted above, and due to the safety appliances being on the locomotive, pulling should be considered the normal mode of operation.
(b) It has been the policy of this ministry to use the WCB, I.H. & S. regulation as a reference where Ministry regulations do not improve standards. If the Ministry was to use WCB, I.H. & S. Regulations, Section 8.24 the following could be noted.
(i) while the work process review did not occur specifically as laid out in section 8.24, it appears to the undersigned that the process broke down in section 3 in that the employer did not investigate the alleged unsafe condition. In this instance it could be considered that management was unjustified in removing him from service (based on their not following a complaint/ alleged incident review process).
(ii) In addition, if the review was conducted by the ministry staff pursuant to Worker’s Compensation Board 8.24 Section 5, it would have been concluded that serious concerns for safety did exist (see further discussion of this incident pursuant to the Railway Act).
Any further safety concerns for the crew and the public were not in jeopardy because the work did not take place because of the removal form service of the yard foreman.
4. Were operating rules actually violated?
No operating rule was identified as being violated during the time work was actually being done.
5. Did a potential exist for rules violation?
(i) Had the foreman carried out the movement as instructed by his supervisor he would have violated rules 103, 107 and 108.
(ii) Had the foreman made the movement as he intended it would have been completed in a safe manner with no rule violations.
6. Additional concerns.
An additional concern is for the general safety of passengers on the station platform waiting for the arrival of the Royal Hudson Steam Train. These people could be injured by walking around on the track or coming in contact with a passing rail movement.
It becomes quite evident that Howbold and Deciccio’s supervisor Mr. Christensen, was not ad idem with these conclusions. Specifically, Christensen stated as follows in a letter to the Union dated March 6, 1986:
This Branch has investigated the matter you brought to my attention by your letter dated September 19, 1985, pursuant to the Railway Act of British Columbia.
The investigation has concluded that there were approved rules in place to safely push the string of cars referred to in your letter from the north Vancouver interchange into the North Vancouver yard.
The Worker’s Compensation Board regulations do not formally apply to the British Columbia Railway and no comments are offered pertaining to the application of section 8.24 of those regulations.
Similarly, the Ministry published a report (Exhibit 16, dated June 25, 1986) which set out the same position as the March 6, 1986 letter on page 18:
In considering available information, the sequence of events and the interpretation of the rules and instructions, the following has been concluded.
1. No unsafe conditions or occurrences were specifically identified during the time work was being done. No violation of Rules or instructions was identified.
2. There were no concerns for the safety of employees or the public since approved rules were in place to safety push the string of cars from the North Vancouver interchange into the north Vancouver yard.
The following question arises out of the evidence:
1. Did the grievor give just and reasonable cause for some form of discipline, i.e. was the grievor insubordinate?
2. To determine #1, I must determine if the grievor’s conduct under these circumstances constituted an exception to the “work now, grieve later” principle.
As may appear evident, this has not been an easy case to decide. On the one hand several dedicated and long term members of the railway’s supervisory and management team testified as to why they felt the push was safe, and why they felt the grievor was insubordinate. On the other hand, Mr. Mulhall is an experienced and long time railroader who holds strong beliefs as to why it was unsafe to push the train on September 12, 1985.
One of the real difficulties facing the parties is the fact that there is no outlet or mechanism to resolve the type of “stand off” position the parties found themselves in on September 12, 1985. It becomes quite evident that upon learning of Mulhall’s refusal to push the train the Railway immediately invoked what it strongly felt was management’s prerogative to decide how and when moves are to be made. It also emerges from the evidence of the Railway’s witnesses that such moves are quite common and have been made over a number of years. Moreover, it can be said on the evidence that the Railway’s witnesses viewed Mulhall’s refusal as a direct challenge to their authority rather than a safety matter.
On the other hand, Mulhall holds that a number of unsafe incidents, derailments, etc., have occurred in the north Vancouver yard since 1980 and has very strong views as to his responsibilities require him to determine the safe course in which to move the train. To support is his view, the Union entered in evidence numerous letters of discipline to other trainmen for abdicating responsibility - for example, exhibit 28B which is a letter of discipline to another trainman on a previous occasion written by Mr. Shannon, a former Manager of Operations and Maintenance of the Railway, wherein he states “As a foreman, it is your responsibility to ensure the safe movement of traffic which you are handling.”
Unfortunately, following his suspension from service Mulhall’s strong views extended to threats to picket and to go to the Labour Relations Board, which certainly reinforced management’s view that he was creating a challenge to their authority rather than being seriously concerned about safety.
Additionally, there is a considerable difference between the parties as to whether or not the WCB Regulations are applicable to the Railway. While I am not going to decide that issue, suffice to say that Regulation 8.24 of the WCB Regulations or some other mechanism, such as an on the spot investigation by embers of the Company/Union safety committee, would provide an orderly outlet to resolve issues of this nature.
I find the Railway’s second response to Mulhall on September 12, 1985 regarding the discussion about taking away the early quit - “if orders are challenged” - disturbing. This, in my view, was not a proper response to the issue raised by Mulhall.
In the result, both sides became polarized in their respective beliefs resulting in Mulhall being removed from service for alleged insubordination.
Counsel for both sides submitted numerous authorities. In particular, strong submissions were made regarding the “work now, grieve later” principle and the exceptions to the general application of the rule.
Did the grievor’s conduct under the circumstances constitute an exception to the general rule of “work now, grieve later”?
I find the grievor held an honest belief that to push the train under the circumstances could honestly endanger the safety of, not necessarily himself, but certainly other people who may be milling around the passenger depot or at the public crossing and for whose safety he, as Yard Foreman, was responsible under Rule 107. Although the grievor’s concern was over safety, the safety issue is in conjunction with his responsibility for the safe operation of the train more than it is with concern for his own personal safety.
As to whether his concern for the safety of the public was reasonably held, I have closely examined the evidence of Howbold and Deciccio as well as the two reports, Exhibits 14 and 16, and the contents of Exhibits 15 and 17.
The major difficulty I have with the differences in the two reports as well as Exhibit 15 is that Exhibit 15 (supra) was dated march 6, 1986 and sent to the union three months before Howbold and Deciccio submitted their report (Exhibit 14 on June 5, 1986) to the author of Exhibit 15. I have further difficulty understanding how the two reports could be so fundamentally different when in fact Howbold and Deciccio conducted the investigation described in both reports. For instance, at page 18 of the subsequent ministerial report dated June 25, 1986, there is a considerable difference in the conclusions. Moreover, both Howbold and Deciccio appeared at the hearing and gave evidence that they made their findings and conclusions contained in Exhibit 14 based on what they found during their investigation. In fact, Howbold’s evidence revealed that when he drafted Exhibit 14 he had been advised of Mr. Christensen’s differences with his findings by virtue of the lather’s comments in an internal document (Exhibit 17). Yet, in giving evidence Howbold stood by his findings in Exhibit 14. Howbold also stated that when he prepared Exhibit 16, he did so under specific directions and guidelines of the Chief Inspector, Mr. Christensen, attended at the hearing and was not called as a witness to explain the discrepancies of the two reports.
In view of the foregoing, I find as a fact that the conclusions reached in Exhibit 14 must be given weight over the conclusions in Exhibits 15 and 16. I find therefore on this point that if the grievor had pushed the train on September 12, 1985 he would have violated Rules 103, 107 and 108 (supra) and had he made the pulling movement he suggested there would have been no rule violation. To buttress this finding again refer to Exhibit 14 at pages 27 and 28:
5. Did a potential exist for rules violation?
(i) Had the foreman carried out the movement as instructed by his supervisor he would have violated rule 103, 107 and 108.
(ii) Had for foreman made the movement as he intended it would have been completed in a safe manner with no rule violations.
Rule 108 states clearly that in case of doubt or uncertainty the safe course must be taken. There is no dispute that he was responsible for the train movement as Yard Foreman. Additionally, the U.C.O.R. rule 107 requires him to use extreme caution when movements are made near a train station.
Having found the grievor’s concerns to be bona fide under the circumstances (by examination of M.O.T.H. documents and evidence), do these concerns constitute an exception to the “work now, grieve later” principle?
The grievor clearly treated his responsibility for the safe movement of the train very seriously and under supervisory order to move the train in a manner which he felt to be unsafe, he volunteered to follow the order if the supervisor would relieve him of the responsibility for this movement. The Railway refused to absolve him of responsibility. In so doing, the Railway denied the grievor an opportunity to comply with their order and at the same time protect his concern that the order was a violation of the U.C.O.R. regarding the safe operation of the train.
This refusal by the Railway, in effect, put the grievor in a position where he would have had no avenue of redress for his own conduct, should there have been an accident involving the general public arising out of the push movement of the train. In this regard I refer to Brown and Beatty at pgs. 434 and 435:
One of the most basic and widely accepted rules of arbitral jurisprudence holds that employees who dispute the propriety of their employer’s orders must, subject to the considerations which follow, comply with those orders and only subsequently, through the grievance procedure, challenge their validity. This general principle of arbitral jurisprudence has been applied in industrial, educational, and hospital settings, and to professional as well as other employees. While it has been recognized that professional employees as well as persons who perform skilled trades may hold positions of particular responsibility, have obligations to professional codes, and are expected to exercise some degree of independent judgment as to the performance of their duties, nevertheless, where others are better qualified to assess the reasonable of an order, and certainly where superiors expressly take responsibility for their consequences of complying with their orders, the “work first and grieve later” principle has been determined to govern their behavior as well. In other words, any assertion of an independent judgment by professionals ultimately must also stand the test of arbitral review.
The rationale for this general principle is said to lie in the employer’s need to be able to direct and control the productive process of his operations, to ensure that they continue uninterrupted and unimpeded even when controversy may arise, and in its concomitant authority to maintain such discipline as may be required to ensure the efficient operation of the plant.
Arbitrators have taken the position that their recognition of the employer’s right to maintain production and to preserve its symbolic authority is neither inconsistent with, nor prejudicial to, the legitimate contractual rights of the employees because in the vast majority of circumstances they can secure adequate redress for any abuse of authority by the employer through the grievance and arbitration process. However, as a corollary of those basic premises, arbitrators have consistently confirmed that employees are not bound by the general principle when adequate redress cannot be secured through grievance and arbitration process.
I find, because of the foregoing, Mr. Mulhall’s refusal to push the train did constitute an exception to the general rule of “work now, grieve later”.
I now turn to the issue of whether the grievor was insubordinate
It must be remembered that when Mulhall first raised his concern about pushing the train he was neither offensive nor disrespectful in any way. However, he was met with an immediate order to push the train and it is true that his later behavior, i.e. threatening to picket and go to the Labour Relations Board, were clearly improper in particular in light of his responsibilities as General Chairman of the Union. Nonetheless, the Railway at no time prior to suspending him form service made any attempt to objectively consider his reasons for refusal.
There is no doubt that the railway felt his refusal to push the train was an underlying irritant to the efficient operation of its yard. But that does not preclude his right to raise issues of safety if he feels it necessary to do so. Moreover, Mulhall never did refuse to move the train. He offered on several occasions to pull the train but the Railway insisted he push the train; and, as indicated earlier, on one occasion he made it very clear to the Railway that he would push the train providing the Railway accept the accompanying responsibility, and this arrangement was refused by the Railway.
Because of the foregoing, I am unable to conclude that the grievor was intentionally insubordinate in all of the circumstances. This conclusion is dependent on the fact that, in the final analysis, the grievor is the person who is responsible for the safe movement of the train.
I have been aided in this conclusion by Exhibit 14 which, as indicated earlier in this award, makes certain conclusions which support the grievor’s concerns.
Having found the grievor was not insubordinate, and therefore did not give just and reasonable cause for discipline in the circumstances with respect to the matter of his refusal to push the train, I turn to the issue of his threats to the Railway officials following his suspension form service. I find his behavior was wholly inappropriate for an employee and even more out of line for the grievor, who holds both a leadership position in the Union and a position of a responsibility as a Yard Foreman with the Railway. In both positions, Mr. Mulhall should provide constructive guidance by example to other employees in all matters having to do with the employee/employer relationship. The grievor chose to provoke matters further with his outbursts, rather than attempt to settle them down which, no doubt, had an impact on his supervisors.
However, having found he was not insubordinate prior to his suspension from service, and only provocative following the suspension, my criticism of Mr. Mulhall stands for the record but does not constitute grounds for discipline.
In summary, I find:
1. He held an honest belief which was buttresses by neutral investigators appointed by the M.O.T.H. that the order to push the train was unsafe.
2. Under the circumstances, that belief and the way he conveyed it to management prior to his suspension constituted an exception to the “work now, grieve later” rule.
3. He was not intentionally insubordinate prior to being removed from service.
4. There is no cause for discipline.
5. Therefore he is to be reinstated forthwith. During the course of the hearing counsel for both parties agreed that, in the event of reinstatement, the matter of compensation and benefit entitlements be referred back to them for resolution. In any event the parties are unable to resolve these matters, I shall remain seized to resolve them.
It is so awarded.
DATED at Vancouver, British Columbia this 16th day of October, 1986.
Vincent L. Ready