AH 239

 

 

 

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN:

 

 

THE CANADIAN UNION OF TRANSPORTATION EMPLOYEES,

LOCAL NO 6

 

(the ”Union”)

 

 

AND

 

THE BRITISH COLUMBIA RAILWAY COMPANY

 

(the “Employer”)

 

(HARD HAT ARBITRATION)

 

 

Sole Arbitrator:            H. Allan Hope, Q. C.

 

 

There appeared on behalf of the Employer:

                                                                Mary Saunders, Esq.

 

 

There appeared on behalf of the Union:

                                                                Terry Robertson, Esq.

 

 

 

A hearing in this matter was held at Vancouver, British Columbia, on the 27th of July, on the 6th of October, and on the 9th of November, 1982.

AWARD

I

                In this arbitration the Union sought a determination that a rule introduced by the employer Railway compelling the use of hard hats was unreasonable and thus unenforceable. The Railway raised a preliminary objection that the grievance was not arbitrable. Subsequent to the presentation of evidence and the submission of argument on July 27, 1982, the Railway sought leave to re-open the hearing by submission of further argument on the issue of jurisdiction. The Union agreed and the Railway filed a written submission in that regard on October 4, 1982. The Union filed its response on November 9, 1982. The Union filed its response on November 9, 1982.

 

                The facts giving rise to the grievance were not in serious dispute. The grievance was brought, apparently as a policy grievance, by W. R. Carkner, the former president of the Union. The letter setting forth the grievance was sent to the Railway on September 17, 1981. It reads as follows:

“The Union feels that the Railway’s present policy, with regards as to which Railway employees are required to wear hard hats, is discriminatory in nature. Under the present policy it is quite feasible to have two employees working side by side where one employee is required to wear a hard hat and the other employee is not. This situation has created several morale problems. The Union feels that if the present policy is to be continued it should be applied on a unilateral basis and not on a discriminatory basis. If the Railway disagrees with this position then the Union requests that the “Hard-Hat” rules be established on a basis of being required for specific job assignments and applied in a “common-sense” nature and that current Policy be abandoned.

 

                The preliminary objection of the Railway was that the grievance did not arise from the imposition of disciplinary penalties and did not allege a specific violation of the Agreement. I have concluded that I have the jurisdiction to determine the dispute and the preliminary objection of the Railway is overruled. Before explaining my reasoning on the jurisdictional issue, I propose to set out the surrounding facts.

 

II

                The foundation for the rule appears in a document entitled “Safety Rules” promulgated and published by the Railway. Rule 3908 of the Safety Rules reads as follows:

                “Employees must:

wear a hard hat, as furnished by the Company, properly fitted and in good condition, when working in areas where the need for head protection is required of as designated by Head of Department.”

 

This dispute relates to the Maintenance of Way Service. The “Head of Department” for the Maintenance of Way Service was F. J. Koehn. On October 7, 1980 he issued a letter to supervisors that effectively “designated” the rule with respect to Maintenance of Way employees. His directive reads in part as follows:

“Recently a Maintenance of Way employee suffered a serious head injury which very well could have proved fatal…It is mandatory that all Maintenance of Way employees wear hard hats when on Company property as per the policy, and in particular supervisors as they must set the example…Simply put it means wear your hard hats, set the example and take whatever action you feel necessary to assure all employees under your supervision do the same.”

 

The work of the Railway is such that employees of other departments overlap in their work routine with employees of the Maintenance of Way Service. The evidence was not precise but it appeared that employees of at least one other department were excused sometimes from wearing hard hats in the same work environment in which Maintenance of Way employees were compelled to wear them. Both parties conceded that a hard hat is not a comfortable item of apparel and that many employees resist the wearing or them.

 

The evidence of Mr. Koehn was that the rule was intended to be enforced without exception. He pointed out that the hard hat policy was substantially the same as the policy imposed in other railways in Canada and elsewhere. He had been deliberating the introduction of the rule for some time prior to the incident cited in his Memorandum and the incident spurred him into immediate action.

 

This Agreement does not require the Railway to discuss the introduction of safety rules with the Union. Mr. Koehn did not have such a discussion with the result that its introduction raised a number of complaints that were brought to Mr. Carkner. He raised the matter with Mr. Koehn and other officials of the Railway.

 

The perceptions of Maintenance of Way Service employees was that they were being singled out for the imposition of the hard hat rule. Mr. Carkner said the rule was disruptive and had provoked a serious morale problem. He said he discussed the issue with management on numerous occasions. Mr. Koehn agreed, saying that the hard hat rule came up in practically every discussion he had with Mr. Carkner after its introduction. The goal of the Union was to have some form of joint committee struck to consider the issue of policy with the hope that the problem could be reconciled. The Railway officials resisted that initiative and this grievance was brought as a result.

 

The first position taken by the Railway confounds the principle of “work now - grieve later”. The Railway said, in effect, that the only manner in which any unrest raised by the unilateral introduction of a work rule could be addressed by employees would be breaching the rule and challenging any disciplinary response.

 

The clear finding to be made on the evidence was that the rule was unilaterally introduced during the currency of the existing Agreement and that its introduction and application resulted in employee unrest and dissatisfaction. The rule was challenged on the basis that it was unnecessary as a safety measure as evidenced by the fact it was enforced in a sporadic and discriminatory fashion, and it was unreasonable and invalid.

III

In developing its jurisdictional argument the Railway first relied on the provisions of the Agreement governing the grievance and arbitration procedure. Those provisions read in part as follows;

“12.1 In this Agreement, unless the context otherwise requires, “grievance” means:

(i) Any dispute of difference between the Railway and the Union governing the discipline, suspension or dismissal of an employee, bound by the Agreement, and

(ii) Any dispute or difference between the persons bound by the Agreement concerning its interpretation, application, operation, or any alleged violation thereof , including any question as to whether any matter is arbitrable.”

The Railway submitted that the grievance did not fall into either category. It pointed out that the grievance fell outside of Article 12.1 (i) because no discipline had been imposed and fell outside of Article 12.1 (ii) because no breach of a provision of the Agreement had been alleged and no issue of its interpretation, application, or operation was raised within the meaning of the provision.

 

                The grievance mechanism introduced into an agreement is not within the exclusive contractual discretion of the parties. Se.93 of the Labour Code of British Columbia imposes on all parties an obligation to provide a mechanism for the resolution of disputes during the currency of a collective agreement. Article 12.1 (ii) repeats in substance the language of Sec. 93 (2) of the Code. The interpretation of that language must be governed by the spirit and intent of the Code and the industrial relations principles inherent in it.

 

                The requirement of the parties to provide a mechanism for the resolution of disputes without stoppage of work is an obligation imposed in the public interest. The credibility of the process mandates the existence of some effective means of having disputes resolved. The least requirement resulting from that clear principle of the Code is a liberality in the interpretation of Sec. 93.

 

                The extent to which the industrial relations principles of the Code should guide an arbitrator in an assessment of his jurisdiction was contemplated by the Labour Relations Board of British Columbia in Okanagan Federated Shipper’s Association vs. Vernon Fruit Union and B. C. Interior Fruit and Vegetable Workers Union, Local 1572 (1977) 1 C.L.R.B.R. 21 @ page 75:

“A fundamental policy of the Labour Code is that grievances under a Collective Agreement must be resolved without resort to stoppages of work by either side…but if grievance arbitration is to be a successful antidote to wildcat strikes or other forms of industrial unrest, the arbitrator must be able to come to grips with the real merits of the grievance under the terms of the Collective Agreement…”

 

The submission of the Railway that the language of Article 12.1 requires the Union to challenge discipline or allege a breach of a specific provision of the Agreement as a condition precedent to jurisdiction is unduly confining. I am unable to find any indication in the applicable arbitrable jurisprudence that would support that obligation. There is no doubt that the jurisdiction of an arbitrator is limited to the interpretation and application of the Agreement and that the arbitrator is enjoined from altering, amending or adding to the Agreement. The enjoinder operates, however, in the exercise of jurisdiction and not by way of proscription.

 

There is a distinction between the right to pursue a remedy and the granting of the remedy. In the application of that distinction it may well be that an arbitrator will dismiss a grievance on the ground that the remedy sought is unavailable under the provisions of the particular collective agreement. To hold that the grievance is beyond his jurisdiction, however, he must find that it raises an issue that is clearly outside the contractual relationship.

 

The Railway urged a narrow interpretation of the term “discipline” as it appears in Article 12.1 (i). Discipline is the term that defines the fundamental relationship between an employer and an employee whereby the employer directs the activity of the employees in the conduct of the work. The employer-employee relationship is a disciplined relationship. It may be worth repeating two of the standard definitions of discipline as they appear in the Oxford Concise Dictionary:

“(1) discipline…behavior according to established rules.

 (2) discipline…punish, chastise.”

 

The introduction of a rule that governs the conduct of employees while at work is a form of discipline in the broad sense. In some collective bargaining relationships work rules are introduced unilaterally with no express provision for penalties for infractions. In some relationships work rules and penalties for infractions are interwoven in the form of a discipline code. Either approach constitutes a disciplinary initiative.

 

The term “discipline” as used in Article 12.1 (i) is not limited necessarily to the imposition of penalties. Where an employer unilaterally introduces a rule governing the conduct of employees during the currency of a collective agreement with the expectation that the rule will be enforced and the union challenges the rule, there is raised “a dispute … governing the discipline … of an employee” within the meaning of Art. 12.1 (ii).

 

Where the union challenges the right of the employer to impose a new rule on an existing contractual relationship there is raised a “dispute or difference … concerning the interpretation, application, operation or alleged violation” of the agreement within the meaning of Art. 12 (ii). The first requirement of a rule unilaterally introduced during the currency of a collective agreement is that it be consistent with the terms of the agreement. An arbitrable issue is raised when that consistency is challenged, as is the case in this dispute. For the reasons given, I am of the view that the objection to jurisdiction must fail insofar as it relies upon an interpretation of the grievance and arbitration provisions.

 

IV

The principal argument advanced by the Union in support of the grievance was that there is an implied term in all collective agreements that the employer will not introduce unilaterally a rule that is unreasonable. In support of its position the Union relied upon the following decisions; Re Corp of District of North Vancouver and International Association of Fire Fighters (1974) 6 L.A.C. (2d) 203 (MacIntyre); Re Lumber and Sawmill Workers’ Union local 2537 and KVP Co. Ltd. (1965) 16 L.A.C. 73 (Robinson); Re County of Athabasca and Alberta Teachers’ Association (1978) 19 L.A.C.. . (2d) 1 (Sychuk). In particular, the Union relied on an oft-quoted passage from the KVP Case at page 85, a portion of which reads as follows:

“A rule unilaterally introduced by the Company, and not subsequently agreed to by the Union, must satisfy the following requisites:

(2)           It must not be unreasonable.”

 

The test  in the KVP Case is limited to the imposition of disciplinary penalties. It does not propose a test of reasonableness for the introduction of a rule. That understanding of the decision is made clear in a reading  of the case itself and the authorities cited by the arbitrator in support of the test of reasonableness. (See page 83 - 84.)

 

While it is not determinative, that is the view taken of the decision by the distinguished authors of Canadian Labour Arbitration. The following passage appears at page 151 after a consideration of the decision:

“Reformulated, these criteria may be said to require that any plant rules which are unilaterally promulgated must not be inconsistent with the terms of the collective agreement, that their enforcement not be unreasonable, and that they must be brought to the attention of those intended to be regulated by them.” (Underlining added)

 

The arbitrator in the KVP Case relied on the decision in Canadian General Electric Co. Ltd. and United Electrical Workers Local 524 (1951) 2 L.A.C. 668, (Laskin). That decision made it clear that reasonableness with respect to a work rule was measured only in the context of the imposition of discipline for a breach of the rule, not the introduction of the rule itself. A portion of the extract, as cited on page 83 of the KVP Case, reads:

“In a particular instance of discharge the Company’s action must find acceptance in an arbitration Board’s view of reasonable cause … this Board is not called upon to dictate to the Company how it should formulate its rules. The Board’s function is to deal with a particular application of

discipline for an assigned cause.”

(Underling added)

The distinction is important because  “reasonableness” in the imposition of disciplinary penalties or dismissal for breach of a rule is qualitatively different from the test of “reasonableness” urged by the union in this dispute.

 

It is imprudent to apply the KVP Test to the making of plant rules as opposed to their enforcement. The decision is addressed to a single and narrow principle. That principle is that an employer cannot unilaterally introduce a discipline code that incorporates penalties for the breach of defined rules and have those penalties bind the union or an arbitrator. The narrowness of the issue in the KVP Case was defined by the arbitrator on page 75 as follows:

“… a challenge by the Union of the right of the company to unilaterally introduce rules and regulations of this nature which necessitate termination of employment.”

(Underlining added.)

 

In the decision the arbitrator specifically affirmed the right of management to make rules consistent with the terms of the collective agreement provided that right had not been bargained away. (See page 81.) In rendering his decision the arbitrator kept within the concept of reasonableness as I have defined it. On page 98 he concluded the rule was invalid on five grounds. His reasoning as to reasonableness reads as follows:

“The rule in question is unreasonable because under the guise of improving the efficiency of the company operations it imposes the most drastic penalty possible, i. e., discharge of the employee to correct a situation which has no real relation whatever to work production or discipline in the day to day work of the employees but which represents more of an annoyance than a matter of any substantial cost to the company.”

It is not entirely clear but it would seem that the invalidity of the rule, except for an alternative consideration of the principle of di minimus non curat lex, was determined on several ground and that the unreasonable nature of the penalty was only one factor. In my view the determinative question with respect to the unilateral introduction of a rule is whether the rule is in breach of any provision of the collective agreement or is inconsistent with its terms.

 

V

                In meeting that aspect of the Union argument, the Railway returned to its jurisdictional argument and submitted that an arbitrator has no jurisdiction to imply any term in a collective agreement and , in particular, has no jurisdiction to imply a term that rules unilaterally introduced must be reasonable. The Union relied on the County of Athabasca Case for the proposition that an arbitrator does have the jurisdiction to imply a term in the collective agreement. the railway sought strenuously to distinguish that case. Its first submission was that the arbitrator in the County of Athabasca Case misapplied a decision of the Supreme Court of Canada, Winnipeg Teachers’ Association No. 1 of Manitoba Teachers’ Society v. Winnipeg School Division No. 1 (1976) 1 W.W.R. 403.

 

                The Railway relied on a number of decisions of the Labour Board of British Columbia for the proposition that a collective agreement had to be in writing. See: University of British Columbia and Canadian Union of Public Employees, Local 11 (1976) 2 C.L.R.B.R. 13; Corporation of the City of White Rock and Canadian Union of public Employees, Local 402-01 (1978) 1 C.L.R.B.R. 525; and British Columbia Forest Products Limited (Caycuse Logging) and International Woodworkers of America, Local 1-80, May 16, 1980, unreported.

 

                Those decisions confirm a principle with respect to the jurisdiction of arbitrators that I enshrined in the Labour Code itself. That principle, as stated previously, is that an arbitrator has no jurisdiction to alter, amend or add to a collective agreement. I do not find it useful to equate that principle with the contention that an arbitrator has no jurisdiction to imply a term in a collective agreement. It is only when an arbitrator implies a term that alters, amends or adds to the agreement that he exceeds his jurisdiction. There is no principle of arbitral jurisprudence to my knowledge that holds that all of the rights and obligations of the parties under an agreement must appear in the express language of the agreement itself.

 

                The task of any arbitrator in the interpretation of the collective agreement is to uncover the intentions of the parties with respect to the application of the agreement to a given set of circumstances. Not  infrequently that intention will arise by implication from the language used, the practice of the parties or other relevant circumstances surrounding the dispute. Whether that process is seen as implying terms into the agreement or is designated by any of the other names by which the interpretative exercise is identified, it is governed at the jurisdictional level by the prohibition against altering, amending or adding to the agreement. In carrying out that process it is not a question within existing jurisdiction in the exercise of the arbitral function.

 

                In the Winnipeg Teachers Association Case the broadness of the interpretative function can be inferred from the reasoning of Laskin, C. J. at page 417 - 18 as follows:

“Almost any contract of service or collective agreement which envisages service … can be frustrated  … if it be the case that nothing that has not been expressed can be asked of the employee. Before such a position can be taken, I would expect that an express provision to the effect would be included in the contract or in the collective agreement. Contract relations or the kind in existence here must surely be governed by standards of reasonableness in assessing the degree to which an employer or a supervisor may call for the performance of duties which are not expressly spelled out.”

 

Laskin, C. J. then went on to hold that the issue raised as to whether or not the performance of the disputed services was an implied obligation of the employees under the collective agreement was an issue suitable for resolution by arbitration. From that decision it seems clear that the Supreme Court of Canada contemplated a jurisdiction in an arbitrator to interpret a collective agreement with respect to contractual obligations that are both express and implicit.

 

A similar jurisdiction was contemplated by the Labour Board of British Columbia in the Cayuse Logging decision. In that case the Board considered the role of the arbitrator where the language was unclear or failed to address a specific application to particular circumstances. On page 4 the Board said:

“In such a case, the board has indicated that the arbitrator should not throw up his hands in despair, but should draw a reasonable inference of the presumed intent of the parties, had they addressed their mind to this one particular case… If one piece is missing from the jigsaw puzzle, the rest of the picture may indicate the color of the missing piece. But, that is a far cry from painting a new picture.”

(Underlining added)

 

In each case the intention of the parties with respect to any restriction on the introduction of rules must be sought in the language of the agreement and any extrinsic evidence properly admissible as an aid to interpretation. Such an intention could arise by implication . It follows that I reject the submission of the Railway that the grievance is beyond my jurisdiction by reason only that the Union sought to rely on an alleged implied term of the Agreement.

 

VI

                I will now turn to the real issue in dispute, that is, whether the introduction of the hard hat rule was a breach of the collective agreement or inconsistent with its terms. Stripped to its essentials, the argument of the Union in this dispute was that the Railway was not entitled to institute a rule during the currency of an  agreement compelling employees to wear safety gear without the prior agreement of the Union unless the rule was reasonable. In the view of the Union the action of the Railway was high handed and required employees to wear hard hats in circumstances where the head gear was uncomfortable and was entirely unnecessary. It was in that context that the Union saw the rule as unreasonable.

 

                In arbitral jurisprudence the term unreasonable is normally equated with the exercise of a discretion in a manner that is arbitrary, discriminatory, or in bad faith. The answer to the Union allegation that the rule was arbitrary and discriminatory is that it is an irrelevant consideration. In the exercise of its right to manage the enterprise an employer is not subject to a test of reasonableness unless the agreement prescribes such a test. This Agreement does not contemplate such a test either expressly or implicitly.

 

                That is not to say that the absence of an express or implied term requiring that rules be reasonable exhausts the rights of a union. The bad faith test, for one, remains. In addition, a rule will be struck down if the rule is such that it is beyond the contractual competence of the employer to impose unilaterally. Arbitrators approach the questions of bad faith or contractual competence in various ways employing various terminology. Some of those various approaches were considered in Bank of British Columbia vs. Union of Bank Employees, Local 210, B.C.S.C., (1982) 3 W.W.R. 772 and in a decision of the Ontario Court of Appeal considered in that decision. See page 733, citing Re: Metro. Toronto Police Assn. (1981) 124 D.L.R. 3(d) 684. Macfarlane, J. referred to that decision and, on page 733, he stressed the following extract from it:

“If, however, the majority of the Divisional Court in the Marsh case were purporting to lay down a general rule, that all decisions of management pursuant to a management rights clause which do not contravene any other provisions of the agreement must stand the further test whether in the opinion of an arbitrator they were made fairly and without discrimination, then with respect we do not agree.”

In that decision Macfarlane, J. addressed the bad faith test on page 736 in the following terms:

“The question is not whether there was an appearance of arbitrariness to what management did, but whether what management did was in breach of the terms of the collective agreement. Management must, of course, have acted genuinely. They must not have manipulated the terms of the agreement to defeat the legitimate rights of employees.”

(underlining added)

In this dispute there is no evidence to indicate bad faith on the part of the Railway. The rule had existed for a considerable period of time in the Safety Rules. Its implementation by Mr. Koehn was in accordance with standard railway practice and within a perceived danger to which Mr. Koehn responded. Nothing about the rule or its introduction would imply bad faith in the sense contemplated in arbitral and judicial jurisprudence.

 

                Left remaining is the question of whether the introduction of the rule was within the contractual competence of the Railway. In raising that issue the Union relied on the North Vancouver Fire Fighters Case. That case dealt with whether the employer could make certain rules as to personal grooming as a condition of employment. The in that case was described at page 204 as follows:

“As yet the question is hypothetical since no disciplinary action has been taken upon the directive, but the employees take the position that the directive constitutes an unreasonable invasion of their right to wear their hair as they choose.”

In that case the employer sought to justify the disputed rule on four grounds that are summarized on page 207. Two of those grounds were:

“1.           The fire chief has the authority, derived from the municipal by-law, to make the rules and regulations.

  2.           In addition, under the collective agreement, the Fire Department has managed rights to control and direct operations, and to direct the working forces, etc. (art. 1, s.2).”

It is implicit in the decision that there was no provision in the agreement, express or implied, that limited the right of the employer to introduce rules unilaterally. On page 209 the arbitrator said:

“On the first point it is clear, and conceded by the union, that management has the right to issue rules for the control and direction of operations and the direction of operations and the directions of the working forces.”

Thus the issues addressed in the case were similar in some respects to the issues raised in this dispute. In particular, the rule in question was within the discretion of management. Clearly it was introduced in good faith. Nevertheless, Prof. MacIntyre appeared to find that the rule was invalid because it is was unreasonable. That finding, on its face, would appear to contradict the decision in the Bank of B.C. Case and the Metro Toronto Police Commissioners Case.

 

                But a close reading of the case indicates that Prof. MacIntyre was responding to a line of authority that questions whether a rule introduced unilaterally during the currency of an agreement is introduced within the contractual competence of the employer. Prof. MacIntyre relied on the KVP Case. The question of contractual competence of the employer to introduce rules was summarized in the KVP Case on page 107, as follows:

“The company rule in question as written was beyond the competence of the company to introduce unilaterally several years after the grievor commenced his employment with the company.”

 

At first blush there seems to be little distinction between the concept of reasonableness and the concept of contractual competence, but there is a vital difference that must be addressed when the nature of the dispute requires it. The question turns on an understanding of management’s rights. The right to manage the enterprise is residual to management, whether or not those rights are spelled out in the agreement. Management’s rights are lost only in the collective bargaining process and they do not have to be secured in the language of the agreement. See Canadian Labour Arbitration, Brown and Beatty, at page 168 - 169:

“For example, where the issue pertains to management’s traditional right to manage the enterprise and direct the work force, it is commonly said that management is free to do so as it sees fit subject to any express terms providing otherwise, and so long as it acts in good faith and in a manner which does not jeopardize the integrity of the bargaining unit.”

But management’s rights are not divine rights. In the collective bargaining process the parties are equal and it is incorrect to assume that management is “free to do as it sees fit.” If is, as the extract provides, limited to initiatives that fall within the traditional right to manage the enterprise and direct the work force. Management stands in no higher position than any other party to a contract with respect to a right to unilaterally impose further terms and conditions on the other contracting party. No such right exists.

 

                Any rule that is introduced and enforced by the use of penalties becomes a condition of employment in the sense that an employee who refuses to comply with the rule faces the possibility of ultimate dismissal. Thus compliance with the rule is a condition of continued employment in the real sense. The only means whereby the unilateral imposition of a condition of employment in that sense is justified is if its imposition is a legitimate exercise of the residual or contractual right of management to manage the enterprise.

 

                In the North Vancouver Fire Fighters Case, Prof. MacIntyre considered a line of authority that identified rules that fall outside the contractual competence of an employer. Those rules fall generally into the category of an “unnecessary and hence unjustifiable intrusion into their (the employees) private life…” In addition to the cases on grooming, a similar approach has been taken with respect to the wearing of uniforms, name badges, personal searches, security surveillance and other matters not directly related to the exigencies of production.

 

                In both the KVP Case and the North Vancouver Fire Fighters Case the rules in question were seen, at least implicitly, to exceed the reasonable exercise of management’s rights. The two cases differ in that the KVP Case dealt with discipline and the North Vancouver Fire Fighters Case, as in this dispute, dealt with the introduction of a rule. Nevertheless, the two cases address a common theme. In the KVP Case the arbitrator, by implication, compared the rule with those that fall within the ordinary purview of management’s rights. He later found that the rule could not be justified as a proper exercise of management’s rights. At page 95, he said:

“… discipline, imposed by employers upon employers for breach of management rules has concerned rules relating to the conduct of the employees which would detrimentally affect the production of the plant or management operations or the safety of the employees or of company property or the general discipline in the plant and matters of a similar nature.”

 

In the North Vancouver Fire Fighters Case the rule was characterized on page 211 as:

“However, when a unilateral management rule imposes personal appearance restriction, especially those whose effect carries on after working hours, the onus lies on the employer to justify the rule as reasonable… “

Again it is implicit that the arbitrator did not see the introduction of the rule as an exercise of traditional management’s rights. The safety aspect in the North Shore Fire Fighters Case was not directly in issue. The rule purported to regulate personal grooming and hair styles. Safety became an issue because it was one of the reasons assigned by the employer in defense of its introduction of the rule. The fundamental issue was whether the rule was a proper exercise of the traditional right of management to manage the enterprise. In that regard the rule is distinguishable from the rule in this dispute.

 

                In the Metro Toronto Police Commissioners Case, Houlden, J. A., reviewed the steps taken by an arbitrator where the collective agreement did not speak to the precise issue in dispute. On page 686 Houlden, J. A. said:

“Since the collective agreement contained no express provision dealing with the matters in dispute, the arbitrator then proceeded to consider if they constituted a violation of the management rights clause.”

 

In that case management’s rights were addressed in the agreement itself. The same approach applies in agreements, such as this one, where management’s rights are residual. In that case the court determined that where the act complained of fell within the discretion of management it could not be questioned on the grounds of reasonableness in the sense of being arbitrary, discriminatory or unfair.

 

The case did not consider the further question of whether the disputed act fell outside the ordinary purview of management’s rights because it did not arise on the facts. But the decision makes it clear that the issue is not whether the disputed act of management is reasonable but whether it is within the contractual right of the employer to initiate. In the context of the applicable principles it does not matter if the disputed act is the unilateral introduction of a rule or some other purported exercise of the discretionary right to manage the enterprise. If the act is within traditional limits of the right to manage the work force the question of reasonableness does not arise.

 

If the act, on its face, falls outside those matters traditionally associated with the management of the enterprise, the employer will be obliged to show that it is compatible with the reasonable exercise of management’s rights. That apparently anomaly is explained and reconciled in Denison Mines Ltd. and United Steelworkers of America, Local 5762 (1973) 2 L.A.C. (2d) 186 (Krever). That case dealt with a rule that intruded on the privacy and personal grooming of employees, a matter seen by arbitrators as beyond the rights residual to management in the direction of the work force. The arbitrator brought the matter back within the aegis of management’s rights by finding that it was justified as a safety measure. On page 191 he said:

“As a reasonable rule respecting safety and not the personal appearance of employees, it is not subject to the criticism inherent in the reported arbitration awards cited to the board at the hearing.”

The difference between this dispute and the North Shore Fire Fighters Case and the Denison Mines Case is that the disputed rule in this arbitration is not outside those rights seen traditionally as residual to management.

 

                Safety is an example of the dilemma posed by the question of who should run the work place. Safety has the potential to create extreme controversy. This dispute is an adequate testimonial to that potential. It is a critical aspect of the discipline of the work environment and somebody must make and implement the necessary decisions if a proper standard of safety is to be maintained. Quite apart from the applicable arbitral jurisprudence, common sense dictates that safety rules must be arbitrary. Obviously hard hats will be worn in many circumstances, perhaps even the vast majority of circumstances, where they are an entirely unnecessary precaution. Undoubtedly there may be other ways to achieve an adequate level of head protection. Prior to the introduction of the hard hat rule it was optional in employees as to whether they would wear hard hats. Many of them did. The decision to make it mandatory was not capricious. It may very well be an excessive and unreasonable measure in the eyes of employees. The point is, who should decide what level of precaution is necessary and who should decide when it should be worn. That right and duty can be shared between an employer and a union by Agreement. In the absence of agreement it is the prerogative o f management. That is the case under the provisions of this Agreement. That being so, I have the jurisdiction to entertain the grievance but I do not have the jurisdiction to grant the remedy sought. In the result the grievance is dismissed.

 

                In dismissing the grievance I must confirm that the issue before me does not relate to the imposition of discipline for breaches of the hard hat rule. The test of reasonableness set out in the KVP Case would apply to any such discipline. This dispute relates only peripherally to that subject. If the union is correct that the Railway has discriminated in the enforcement of the rule, that would be a factor to consider in the imposition of discipline. What has been determined in this dispute is that the introduction of the rule is a valid exercise of the right of management to direct the manner in which the work will be performed. A review of any future discipline would commence within that presumptive framework.

 

                Dated at the City of Vancouver, in the Province of British Columbia , this 14th day of December, A. D. 1982.

 

                                                                                                                H. ALLAN HOPE, Q. C. - Arbitrator