AH - 184
IN THE MATTER OF AN ARBITRATION
BETWEEN:
BROTHERHOOD OF RAILROAD SIGNALMEN
(the ”Union”)
AND
CANADIAN PACIFIC LIMITED
(the “Company”)
IN THE MATTER OF THE GRIEVANCE OF R. A. Pellow with respect to his termination
Sole Arbitrator: J. D. O’Shea, Q.C.
There appeared on behalf of the employer:
D. W. Flicker
J .A. McGuire
I. J. Waddell
E. S. Cavanaugh
E. W. Blake
K. R. Peters
S. G.. Law
J. L. Mooney
T. McMillan
There appeared on behalf of the Union:
Paul Cavalluzzo
Mike Shuster
John Platt
Ross Pellow
A hearing in this matter was held at Toronto, Ontario, on the 6th day of June, 1980 and the 18th day of July, 1980.
AWARD
The following is a joint statement of fact and issue signed by the parties:
STATEMENT OF FACT:
Signal Maintainer R. A. Pellow was dismissed from the Company on August 20, 1979 for accumulation in excess of sixty demerit marks.
STATEMENT OF ISSUE:
In July and August 1979, Mr. Pellow was assessed the following discipline:
1 July 11, 1979 15 demerits - for “giving false information to your immediate supervisor by informing him you had just returned from Nairn when in fact you had not. Espanola, Mileage 1.8, Little Current Subdivision, June 13th, 1979.”
2 August 20, 1979 40 demerits - for “failure to inspect various crossing protection signals twice monthly as instructed, and failure to record the necessary information on battery cards, violation of Rule 280, Form 568, Maintenance of Way Rules and Instructions.”
3 August 20, 1979 40 demerits - for “failure to perform proper maintenance and repairs to crossing protection, creating a potentially unsafe condition. Denis St., Naughton, Mileage 11.70, Webbwood Subdivision, June 14th, 1979.”
The Union contends that in each instance demerit marks were awarded without just cause and excessive, resulting in the wrongful dismissal of Signal Maintainer R. A. Pellow. Mr. Pellow should therefore be reinstated.
The Company contends that, in each instance, the demerits assessed were for just cause and reasonable. Accordingly, Mr. Pellow should not be reinstated.
The duties of a Signal Maintainer my be summarized as follows:
The Signal Maintainer is responsible for the inspection , adjustments and proper maintenance of interlocking automatic block and highway crossing signals on his territory. He will report to and receive instructions from the Signal Supervisor or the Assistant Signal Supervisor, as the case may be.
The grievor was hired by the Company on August 8, 1943 and at all relevant times he was assigned to the Espanola signal Section which covered an area between and including Copper Cliff and Blind River and south from McKerrow to Little Current. During the period in question, the grievor lived in Espanola. Because of the nature of the grievor’s job, no immediate supervision was available and the Company was required to rely on the grievor’s competence and reliability.
The evidence established that the Company has consistently applied the Brown System of Discipline for over seventy years. The Brown System of Discipline is applied by most railway companies in Canada. Under the System, employees who commit disciplinary offences are assessed demerit points for their misconduct, rather than being suspended, demoted or otherwise disciplined. They accordingly suffer no financial penalty for their misconduct. Demerit points assigned for misconduct may vary from ten points to sixty points, depending upon the employee’s length of service, his previous record and the seriousness of the offence. However, while ten demerit points may be assessed at the division level, if over ten demerit points are to be assessed, the assessment must be made by the General Manager. If an employee commits the same offence a second time before the demerit points for the first offence are expunged by the passage of time, it is usual to assess double the demerit points on the second offence. Employees are always counseled at the time the demerit points are assessed against them. Up to twenty demerit points may be removed from an employee’s discipline record if twelve months elapse without discipline being imposed. Through this latter procedure, the grievor obtained a discipline-free record as of July 25, 1978. However, under the Brown System, when an employee accumulates a total of sixty demerit points, he is automatically terminated, without exception.
The grievor’s record of discipline following July 25, 1978 up to the incident which lead to his discharge reads as follows:
Oct. 19, 1978 Failure to inspect crossing protection twice monthly 20
as instructed and failure to record the necessary information
on battery record cards. Violation Rule 280, Mtce. Of Way
Rules & Instructions, Mileage 29.97, Thessalon Sd. And
Mileages 29.58, 21.20 and 18.40, Webbwood Sd., Oct. 12, 1978.
Feb. 6, 1979 Failure to keep the proper officer advised as to where 10
you could be found when subject to emergency call,
violation of General Rule T, Form 568, Mtce. Of Way
Rules & Instructions, Espanola, January 26, 1979.
Feb. 22, 1979 Failure to keep the proper officer advised when subject 10
to emergency call, violation of General Rule T, Form 568,
Mtce. Of Way Rules & Instructions, Feb. 1, 1979.
July 11, 1979 Giving false information to your immediate supervisor by 15
informing him you had just returned from Nairn when in fact
you had not, Espanola, Mileage 1.8, Little Current Sd., June 13, 1979
Accordingly, at the time of the incident which immediately preceded his discharge, the grievor had accumulated a total of forty demerit points under the Brown System of Discipline.
Mr. Mooney, the grievor’s Supervisor, testified that on June 13, 1978, the grievor called in at 8:10 a.m. and reported to Mr. Mooney that he was going to head eastward from Espanola to check flashers. Mr. Mooney’s duties took him into the grievor’s area that day and he was accompanied by Mr. McMillan, an Engineering Assistant from the Sudbury division. Mr. Mooney had some material to drop of for the grievor at the tool shed in Espanola. Mr. Mooney and Mr. McMillan arrived at the tool shed at about 12:40 p.m. and the grievor was still there. Mr. Mooney asked the grievor why de hadn’t gone east as he had earlier indicated and the grievor replied that he was awaiting the arrival of the electrician to fix the light over his desk. The grievor stated that he was going to Nairn, which is located on the line east of McKerrow, after the noon line-up from the dispatcher.
Mr. Mooney and Mr. McMillan left Espanola and traveled east to Nairn and then on to Victoria Mine. They inspected four crossings and Mr. Mooney replaced battery record cards which the grievor was required to complete each time he made an inspection. However, when they finished their duties at Victoria Mine, Mr. Mooney noticed that a box was in the back seat of his car which should have been left with the grievor. He therefore returned to Espanola to deliver the box. On returning to Espanola at 3:10 p.m., it was discovered that the grievor was still in the tool shed. When questioned, the grievor stated that he had been to Nairn where he had inspected flashers and changed the lighting arresters after which he had returned to Espanola. Mr. Mooney was suspicious of the grievor’s story and on their return, they again stopped at Narin where they discovered that the battery card which Mr. Mooney had replaced was still blank and that the crossing record book was unsigned. Mr. McMillan’s evidence corroborated Mr. Mooney’s testimony.
After further investigation, the grievor was assessed fifteen demerit points on July 11, 1979 for “Giving false information to your immediate supervisor by informing him you had just returned from Nairn when in fact you had not. Espanola mileage 1.8, Little Current Sd., June 13, 1979.”
Mr. Mooney further testified that on June 14, 1979, at 9:45 a.m., he received a report from the dispatcher that the flashers were not operating at the Denis Street crossing in Naughton. This crossing was part of the grievor’s territory and was adjacent to a sub-division and a school was located nearby.
Mr. Mooney testified that he drove to the Denis street crossing to ascertain what was wrong with the flasher. There had been previous problems at this crossing shortly before this incident and Mr. Mooney wanted to find out what was wrong. When Mr. Mooney arrived, the lights were not flashing. Mr. Mooney unlocked the case and the battery card indicated that the grievor had not been there that morning. When he examined the lights, they were very dim and they had low visibility. He discovered that three of the nine cells were missing in the bank of batteries. Mr. Mooney telephoned Mr. Law, the Signal Supervisor at Sudbury, and Mr. Law sent another maintainer with new batteries. The new batteries arrived one-half hour later. Mr. Mooney had made the telephone call from a public telephone booth located at a Texaco service station which was a few hundred feet from the Denis Street crossing. Mr. Mooney also observed that a wire had been placed on a terminal but had not been fastened by the usual washer, nut and nut lock. The eye on the wire was sitting loose on the terminal and could have vibrated off the terminal causing a malfunction. Mr. Mooney testified that it was one of the grievor’s functions to make sure that all connections are secure. The missing washer and nuts were at eye level and were readily visible. It was Mr. Mooney’s evidence that even apart from the loose terminal connection., it was the grievor’s duty to advise that he needed batteries for the crossing flashers and because of the unsafe nature of the crossing protection, the grievor should have remained at the crossing so that he could manually flag the crossing until new batteries arrived. If there had been a hydro failure, the state of the batteries would have caused them to be completely useless in about one hour’s time.
On August 20, 1979, the grievor was assessed forty demerit points for the following offence: “Failure to perform proper maintenance and repairs to crossing protection, creating a potentially unsafe condition, Denis St., Naughton, Mileage 11.70, Webbwood Sd., June 14, 1979.”
The evidence also established that Mr. Law had caused the following notice to be distributed to all Signal Maintainers, including the grievor, on October 11, 1978:
“The following is a reminder of my letter of October 12, 1972 concerning inspection of crossing protection signals and block signals.
Crossing protection signals twice monthly spaced approximately a maximum of 15 days including approach track circuit batteries. When traffic density and switching warrant, more frequent inspections should be considered. Signatures in the record book will be consistent with each inspection and dates of each correspond. Should a failure of any nature be reported to the Signal Maintainer, whether an occurrence of an accident of not. A prompt inspection will be made of all circuits at said crossing.
Block signal power supplied (batteries), inspection should not exceed 30 day periods. Where time and other demanding duties permit, more frequent inspections should from the routine. As soon as possible after electrical storms, an inspection for the purpose of restoring of breakers or fuses that may have opened will be carried out. Inspections will be3 recorded on the battery card.
Above instructions are consistent with Rules 280 and 285 Maintenance of Way, rules and Instructions.
Advise this office when these instructions are read and understood.
The Company also adduced evidence which established that the grievor had failed to inspect crossing protection signals twice monthly as directed. Since he had been previously disciplined for this offence on October 19, 1978, and was assessed twenty demerit points at that time, when he was again disciplined for the same offence eon August 20, 1979, his penalty was doubled. Accordingly, on august 20, 1979, the grievor was assessed forty demerit points for the following offence: “Failure to inspect various crossing protection signals twice monthly as instructed and failure to record the necessary information on battery card, violation of rule 280, Form 568, Mtce. Of Way Rules & Instructions.”
Since the eighty demerit points which were assessed on august 20, 1979 brought his accumulated total to one hundred and thirty-five demerit points, he was dismissed for accumulating in excess of sixty demerit points.
The grievor testified that he was fifty-two years of age, married and was the father of four children who were eleven to twenty-nine years of age. It was his evidence that he moved from Chapleau to Espanola in November, 1977, however, his family did not move with him. He testified that he experienced family problems during 1978 and 1979 because his wife complained that he spent too much money on alcohol and was not paying for the support of his family. This dispute resulted in a separation agreement. He testified that he drank a twenty-six ounce bottle of rye plus several beers each day after work. There were some mornings when he didn’t feel like doing much work.
He further testified that he had had a drinking problem while he worked in Chapleau. He was caught drinking on the job while in Chapleau and although his wife, the Assistant Superintendent and the Superintendent at Chapleau talked to him about his drinking problem, he did not believe that he had a problem with drink at that time. He also acknowledged that during the investigations of some of the offences described above, he was hungover and didn’t care what happened to him or what was recorded against him.
He further testified that he now accepts the fact that he will “have to straighten up pretty soon” because he has messed up everyone’s life. It was his evidence that he has cut down on his drinking. He stated that he is now prepared to attend the program for alcoholics at St. Joseph’s hospital in North Bay, however, while he acknowledged that drinking had caused him problems, he did not really accept the fact that he might be an alcoholic.
The grievor candidly acknowledged that he wasn’t doing his job properly during 1978 and 1979 and that “I was sluggish in a lot of ways”.
There was also evidence that the grievor was a public spirited person who had sponsored baseball teams, was a member of various clubs and service organizations and was past President of the Conservative Riding Association. In December, 1979, he started a poolroom in Espanola.
The grievor testified that he had been drinking heavily at the time of the Nairn incident. He also testified that he may have misunderstood what Mr. Mooney had asked him on June 13, 1979. It was his evidence that he the intended to go to Nairn at about 4.30 p.m. that day because he had pre-arranged the trip so as to meet his son who was scheduled to be there at that time.
He further testifies that he thought the protection device at the Denis Street crossing was adequate until he was able to obtain other batteries. It was his evidence that he had tried to reach the dispatcher by the public telephone a couple of times but since the line had been busy, he decided to leave the Denis Street crossing and go and do other work.
The grievor also testified the he never drank on the job. However, he acknowledged that his job required that he be on stand-by twenty-four hours a day and that he was paid extra for stand-by duties. He further acknowledged that it was up to the employee to take the first step towards obtaining a cure for alcohol problems and that while he has considered taking such a step, he had not taken that step up to the time of the hearing.
Reverend Arnold, a clergyman from North Bay, testified on the grievor’s behalf. Rev. Arnold was stationed in Chapleau between 1966 and 1972 and came to know the grievor’s family at that time. He knew the grievor to be a heavy drinker since the grievor’s wife asked Rev. Arnold for his assistance about 1970.
Rev. Arnold was aware of the program for alcoholics conducted by St. Joseph’s in North Bay and knew of three or four people who had completed the program and were cured. He also worked closely with two Alcohol Anonymous groups. Rev. Arnold acknowledged that St. Joseph’s has its share of failures and that AA has a twenty-five percent success rate.
It was Rev. Arnold’s view that the grievor is a heavy drinker who has had a problem with alcoholism for many years. However, he testified that he could never get the grievor to recognize that he had a problem with booze. It was the grievor’s position that he could handle it. Rev. Arnold testified that in order that there be any real hope for a cure, the person must admit that he is an alcoholic.
The Company argued that the arbitrator should uphold the Brown System of Discipline. Even if the arbitrator were to decide that less demerit points should have been assessed for the last three incidents that lead to the grievor’s discharge, it was the Company’s position that each incident justified the assessment of some discipline. Accordingly, even if the number of points were reduced for the last three incidents, it was the Company’s position that whatever the points assessed for these incidents of misconduct would of necessity exceed twenty in number and would therefore cause the grievor’s accumulated demerit point total to exceed the sixty and therefore the Company would have satisfied the onus of establishing that it had just cause to terminate the grievor. In support of its argument, the Company relied on the reasoning contained in an award between the parties dated October 16, 1978 in the grievance of E. G. Mayhew (Weatherill), unreported.
Counsel for the Union, in a very sincere and persuasive argument, took the position that the Brown System of Discipline is not engraved on tablets of stone but is subject to the discretionary authority vested in the arbitrator by the provision of Section 157 (d) of the Canada Labour Code, to substitute a lesser penalty. While counsel for the Union suggested that there may have been some misunderstanding on the part of the grievor with respect to the Nairn incident on June 13, 1979, he acknowledged, as the grievor candidly admitted, that the grievor’s performance during 1979 was subject to discipline.
However, it was argued on the grievor’s behalf that he had been a reasonably satisfactory employee between 194(3 or 8) and 1978 when his problems with alcohol began to adversely affect his performance and his attitude towards his work. It was also argued that the grievor, because of his marital problems and his discharge, has now been forced to recognize that he has a problem with alcohol which hi is now prepared to do something about. He has not only cut down his consumption of alcohol but is prepared to undergo treatment for his condition.
It was therefore argued, on behalf of the grievor, that because of the grievor’s thirty-five years service with the Company, his activities in community affairs and the fact the he now recognizes that he has a drinking problem, that the arbitrator should exercise his discretionary authority under the Canada Labour Code by substituting a period of suspension in lieu of the last series of demerit points assessed against the grievor. It was the Union’s view that there are cases where a separation from employment may be better corrective discipline than the assessment of demerit points under the Brown System of Discipline.
It was therefore argued that if the grievor was reinstated upon certain conditions, such a direction would cause not only the grievor, but the company and Union as well, to fully accept their responsibilities in this matter since the grievor’s poor performance was only a manifestation of the real problem, i.e., his heavy drinking.
The Union therefore requested that the arbitrator direct that the Company reinstate the grievor in the position of Signal Maintainer with full seniority but without compensation, if he is able to establish that he had successfully completed the program at St. Joseph’s in North Bay, or any other similar program which the Company selects. The Union further requested that once reinstated, that the grievor be placed on a one year probation period which would enable the Company to be reassured of his cure and during this period, the arbitrator should retain jurisdiction in order to assist the parties if they experience any difficulty implementing such an award, after which period the arbitrator’s jurisdiction would be terminated. During the one year period, the grievor would be required to participate in any available on-going program such as the AA program. During this period, the Union would also be required to undertake to keep in close contact with the grievor and to use its best efforts to ensure that his problem is resolved.
In the alternative, if the arbitrator is of the view that it would be too risky to reinstate the grievor in the position of Signal Maintainer, the Union asked the arbitrator to direct that the Company reinstate the grievor in some other job where closer supervision was available, subject to the conditions outlined above.
During the argument, the parties agreed that at age sixty-five, the grievor would be entitled to the full pension benefits to which his service entitled him at the time of his discharge. However, if he was not reinstated, the grievor would not have the benefit of the service credits he would otherwise earn nor the benefit of the higher earnings during the five year period prior to age sixty-five on which to base his pension benefits.
Having considered all the evidence and the representations of the parties, I find that the grievor was guilty of the parties, I find that the grievor was guilty of misconduct on each of the three occasions for which the Company imposed demerit points in July and August, 1979. I further find that even if I were to exercise my discretionary authority under the Canada Labour Code and substitute lesser demerit points for each incident, a reasonable and judicious application of my discretionary authority would require that the total demerit points for the three incidents would considerably exceed twenty in number. Accordingly, whatever demerit points might be reasonably substituted for the points assessed by the Company, in view of the fact that the grievor had accumulated forty demerit points prior to June, 1979, I am satisfied that his accumulated demerit points would exceed sixty in number as of august 20, 1979.
The only real issue in this case is whether I should exercise my discretionary authority in the manner suggested by counsel for the Union by substituting a period of suspension in lieu of the last series of demerit points assessed by the Company under the Brown System of Discipline. Although I am satisfied that I have the necessary authority under the Canada Labour Code to substitute a penalty other than that of demerit points contemplated by the Brown System of Discipline, in view of the lengthy and consistent practice of applying the Brown System, it would take a very special case to justify a departure from that System. While the grievor’s thirty-five year service is a factor which would tend to establish a special case, it is not, of itself, sufficient to cause me to find, because of all the circumstances, that a special case exists which would justify the setting aside of the Brown System of Discipline. Although counsel for the Union did everything in his power to convince me that it would be appropriate to substitute another penalty, counsel cannot do everything. In the final analysis, the evidence must establish that the grievor has demonstrated, in some tangible way, that my discretionary authority should be exercised in his favour. While the grievor has stated that he is prepared to undergo treatment for alcoholism, he never actually admitted to being an alcoholic. The best (or worst) that he would admit, is that he is a heavy drinker. However, the evidence established that he has been a heavy drinker since a t least 1970. His problem with alcohol did not commence in 1978 as he would have us believe. Although he was invited by members of supervision to participate in a program for alcoholics prior to his discharge, he refused to do so. Even though he experienced marital breakdown long after his drinking problem began, he still took no steps to attempt to obtain a cure. Again, he has not attempted to obtain professional help for his problem since ehis discharge even though almost one year has elapsed.
While it may be that the grievor can cure himself (and hopefully he can), it must be recognized that the completion of an alcohol abuse program is no guarantee of a cure.
Finally, there must be some finality to procedures such as this. To prolong this process on the basis of promises given at an arbitration hearing would, in my view, be an abuse of process. Had the grievor taken some active and substantial step to remedy the cause of his unsatisfactory performance within the same time frame as the date of his discharge, I would have been amenable to accepting the Union’s invitation to substitute a lesser penalty with the Company. However, I find no real evidence that the grievor made any substantial effort in this regard.
I therefore find that I should give effect to the Brown System of Discipline.
Since the grievor accumulated well in excess of sixty demerit points as of August 20, 1979, I find that the Company has established just cause to discharge the grievor.
My award therefore, is that the grievance is dismissed.
Dated at Toronto this 24th day of July, 1980. Signed by the Sole Arbitrator