BRITISH COLUMBIA RAILWAY
(hereinafter referred to as the “Employer”)
CANADIAN UNION OF TRANSPORTATION EMPLOYEES,
LOCAL NO 6
(hereinafter referred to as the ”Union”)
Arbitrator: H. Allan Hope, Q. C.
Counsel for the Employer: Mary Saunders, Esq.
Counsel for the Union: Terry Robertson, Esq.
Place of Hearing Vancouver, B.C.
Date of Hearing November 15 and 16, 1982
Two issues arise in this dispute. The first relates to the dismissal of the grievor, Kenneth Pickell. The second relates to the significance of a discipline system, called the Brown System, which was implemented unilaterally by the Railway but which has been in force since 1912. The grievor, at the time of his dismissal, was an apprentice heavy duty mechanic in a repair facility operated by the Railway at Prince George. The facility, called the Work Equipment shop, had two stages of supervision. The first line supervisor was Byron McDonald. The second line supervisor was Bruce Anderson. The grievor was dismissed for alleged insubordination in an incident with Mr. Anderson which occurred on January 19, 1982.
Dealing first with the Brown System; it is conceded that the System has no contractual force in the sense of having been agreed to by the Union. The Collective Agreement in force between the parties does not contain an express management’s rights clause. In the absence of such a clause, management retains the residual right to manage the enterprise, including those rights traditionally seen as incidental to the supervision and direction of the work force. But the imposition of disciplinary penalties or dismissal is not residual to management.
Discipline in the broad sense of making rules, issuing orders, supervising and directing the work and the manner of its performance and the myriad other initiatives responsive to the exigencies of production is the process whereby management has traditionally exercised its right to manage the enterprise. However, the imposition of penalties is contractual. Management at common law never had the unilateral right to impose penalties, including the penalty of dismissal.
Starting with dismissal, the right of management to terminate the contract of employment had to be found in the contract itself or as a lawful response to misconduct deemed to be a fundamental breach of the contract of employment by the employee concerned. Thus an employer who had just and reasonable cause to terminate the contract of employment in that sense was not exercising a unilateral right that was traditionally reserved to management in the management of the enterprise, he was exercising the right in law of a contracting party to rescind a contract in response to a fundamental breach of its terms and conditions by the other party. The right to terminate a contract of employment on notice was a contractual right that was either express in the contract or implied by law from it terms.
The right to impose penalties for breaches of good order and discipline did not exist at common law except to the extent that right was incorporated in the contract of employment. The subject is discussed in Wm. Scott & Co. and Canadian Food and Allied Workers, Local P-162 (1976) 1C.L.R.B.R. 1, at page 2, as follows:
“First of all, even in the absence of cause on the part of the employee, the employer could unilaterally dismiss an employee with reasonable notice, or with pay in lieu of notice. This meant that employees had no legal expectation of continuity of employment even if their performance was satisfactory and work was available. Secondly, if an employee was guilty of some misconduct at work, the employer had no other from of discipline available. The contract of employment did not entitle the employer to suspend the employee, for example.”
Where then does the Brown System fit into the applicable law and arbitral jurisprudence governing the contract of employment? The Brown System does not employ the use of disciplinary penalties. Instead, breaches of good order and discipline attract the imposition of demerit points. When a total of 60 points is reached the employee is automatically dismissed. Presumably, under the common law, the demerit system would be used by an employer as a means of recording and establishing just cause for dismissal. In current times, under what is described in the Wm. Scott Case as “Collective bargaining law”, (see page 3), the demerit System serves precisely the same function. It does not, as the Railway implied, have any particular efficacy inherent in the System itself. In particular, it does not relieve the Railway of the obligation of establishing just and reasonable cause for the imposition of disciplinary penalties or dismissal.
The submission of the Railway was that the fairness inherent in the Brown System should influence an arbitrator in the review of a dismissal. That is a sophisticated restatement of the proposition that an arbitrator, in a review of disciplinary penalties, should not interfere with the decision of an employer unless he deems the exercise of discretion to impose the penalty to be unreasonable in the sense of being arbitrary, discriminatory or in bad faith. That test is not valid in British Columbia.
This Collective Agreement is covered by the provisions of the Labour Code of British Columbia. The obligation of an arbitrator in a review of penalties under the Labour Code was considered by the Labour Relations Board of British Columbia in Wm. Scott Case at page 5 the Board said:
“For that reason, it is not legally correct for an arbitrator in a discharge case to assume that the common law definition of “cause” remains unchanged under the Code, subject only to the possibility that an arbitrator might exercise an ill-defined discretion to rescue an employee from the “normal” legal consequences of discharge and substitute a lesser penalty on “equitable” grounds. An arbitrator who approaches a discharge grievance with that reluctant state of mind is simply not proceeding in accordance with the principles of the Labour Code.”
Even in the absence of the provision of the Labour Code and its interpretation in the Wm. Scott Case, the Railway is not relieved of its obligation to establish just and reasonable cause for discipline. The Brown System is the unilateral introduction of a form of discipline code. It is not a code in the sense of setting out offences with prescribed penalties, but it is a code in the sense that it contemplates the uniform imposition of demerits for acts of misconduct, including the breach of rules, with dismissal as the automatic result when the level of 60 demerits is reached.
Perhaps the most searching study of discipline codes and their unilateral imposition was done in Lumber & Sawmill workers Union, Local 2537 and K.V.P. Co. Ltd. (1965) 16 L.A.C. 73 (Robinson). The decision is most frequently cited with respect to the general subject of work rules. A reading of the decision makes it clear that it deals with discipline and the significance of a codified or uniform approach to penalties rather than with the introduction of work rules per se. The decision and the authorities cited in it make a point that is fundamental to a consideration of the Brown System. The point is that an employer has the continuing obligation to establish on a balance of probabilities that it had just and reasonable cause to impose disciplinary penalties or dismissal on an employee.
That onus exists both with respect to proof that there was just and reasonable cause to impose some penalty and proof that the penalty selected was just and reasonable. In times past some controversy existed as to whether the obligation extended to the selection of penalty. See K.V.P. Case page 96-97. That controversy has been settled in British Columbia and elsewhere. See Wm. Scott Case page 3-5.
In that context the imposition of demerits must be seen as the imposition of a penalty. It is not a penalty in the sense of a suspension but it is a penalty in the sense of a warning. An employee has a positive right to defend his employment through the grievance and arbitration process. Where an employer takes a step that places employment in jeopardy, an employee has a right to compel the employer to establish just and reasonable cause for taking that step. Thus the imposition of demerits, the accumulation of which will lead to dismissal, is punitive discipline that raises in an employee the contractual right to grieve.
I repeat, the K.V.P. Case is a rich resource with respect to the issues raised by the codification of discipline. On page 83 of that case the arbitrator referred to United Brewery Workers, Local 232 and Carling Breweries Ltd. (1959), 10 L.A.C. 25 (Cross). A portion of the extract cited from that decision is applicable to the issue raised in this dispute:
“The company could not, however, by the mere publication of such a bulletin, relieve itself from the responsibility of imposing discipline for just cause. The employees’ rights under the agreement cannot be impaired or diminished by a company bulletin but only by agreement of the parties. Under the agreement an employee has the right to grieve in the event that he is disciplined without just cause and an arbitrator hearing such grievance must determine whether or not just cause existed for the discipline imposed.”
The fact that the Brown System does not incorporate offences and penalties does not exclude it from that reasoning. Whether it is the use of demerits with automatic dismissal upon the accumulation of 60 demerits, or the application of prescribed and escalating penalties for particular offences, the salient point is that an employer cannot rely on a codified approach to discipline to relieve it of the obligation of establishing just and reasonable cause for the imposition of discipline or dismissal.
There is no qualitative difference between an employer using one form of progressive discipline or another. Whether it is the accumulation of warnings and suspensions pursuant to a code or the accumulation of demerits, the result is the same. It is evidence only of the view management takes of appropriate discipline. Again, the Canadian General Electric Case as cited in the K.V.P. Case outlined that conceptual approach. The following extract from the Canadian General Electric Case appears on page 82 of the K.V.P. Case:
“The Company has, however, unilaterally set out a number of plant rules with indicated penalties for infractions, and these are posted throughout the plant. In doing this the Company has given its interpretation of the scope of its disciplinary powers … While the published rules may be controlling for the Company in what they cover, they are not, of course, controlling under Agreement except as they may be found to square with ‘reasonable cause.’ “
The Brown System is a codified approach to discipline in the sense that it prescribes the imposition of demerit points as a substitute for the use of other escalating and progressive penalties. It is not codified with respect to the number of demerits for particular infractions in any formal sense but it operates in its application in a form of codification. In particular, employees are circulated on a regular basis with bulletins describing offences and the number of demerits applied in response to each offence.
The evidence was that the Railway strives to achieve consistency in the number of demerits it imposes for each category of offence with some flexibility to deal with repeat offences and to respond to the gravity of the offence within a particular category. In that sense it is no different than the various other structured approached to progressive discipline wherein there is an attempt to guide the uniform application of disciplinary penalties. As such, the Brown System incorporates the same frailty common to other codified or uniform approaches; in the final analysis the unique facts in a given instance are reviewed by an arbitrator and the existence of a uniform system of discipline is only one factor to be assessed.
The difficulty seen by the Union with respect to the Brown System in this dispute was its approach to serious offences. The system is described in a management Memorandum that contains the following comment:
“Under the Brown System of discipline, while an employee continues to be subject to dismissal for certain offences, such as insubordination, use of intoxicants or narcotics while on duty, or subject to duty, failure to carry out train orders or observe rules respecting train movements, demerit marks are placed against his record for lesser offences. A net accumulation of 60 demerits appearing on the debit side of an employees record, automatically indicate dismissal.” (underlining added)
The Union submitted that the accumulation of 60 demerits could not be viewed as establishment of just cause for dismissal whether or not the individual infractions giving rise to the demerits were challenged by grievance. In addition, the Union took the position that the employer could not impose dismissal as a response to particular infractions on an arbitrary basis as consistent with its obligation to establish just cause for its actions.
I agree with that submission and I repeat that the obligation upon an employer, regardless of any system it may adopt, is to establish just cause for its disciplinary initiatives. It cannot rely on a discipline system or code as justification for the selection of a particular penalty. The most that can be said is that the long existence of the System, the knowledge of employees of its application and its apparent long acceptance by the Union are factors to be weighed in a review of discipline or dismissal.
The person who administered the Brown System on behalf of management in this dispute was Albert Shannon, the Manager of Operations and Maintenance. He described a four step approach that he takes in the application of the System. That process is as follows:
1. An infraction occurs;
2. A statement is taken with respect to the circumstances;
3. An investigation is conducted by a management employee who determines what infraction if any has been committed and who makes a recommendation with respect to discipline in the form of the number of demerits to be assigned;
4. The recommendation is forwarded to Mr. Shannon for review. In his review he seeks to ensure that the recommendation is fair. He gives to himself the discretion to change the number of demerits up or down and to elect to impose no demerits in some circumstances.
Mr. Shannon conceded that the System is arbitrary in the sense that the accumulation of 60 demerit points results in automatic dismissal. He confirmed a personal view that the offence of insubordination is deserving of dismissal in and of itself. In that regard he was only confirming what was set out in the Brown System memorandum. The Union was critical of the imposition of arbitrary penalties. On the evidence it would appear that the approach of Mr. Shannon was arbitrary in the sense that he considered a serious act of insubordination to be deserving of dismissal. However, it was clear in his evidence that he addressed the incident more broadly.
I agree with the Union that the arbitrary selection of a penalty is a wrong approach in principle. I do not agree that the decision of Mr. Shannon was arbitrary in that sense, that is, that he considered that dismissal was the appropriate penalty simply because the offence alleged was insubordination. He certainly expressed that view but his assessment, as I said, was based on a broad consideration of the surrounding circumstances. In any event, the imposition of a penalty is not wrong simply because it is arbitrary. It is wrong only if the facts fail to disclose a just and reasonable cause for the response. That is the test I propose to apply in this review.
In arbitral jurisprudence insubordination is correctly perceived as a subjective evaluation of the attitude of an employee. In response to that subjectivity arbitrators have long found it necessary to distinguish between the gravity of acts of insubordination as to the discipline the will invite and justify.
The Railway has acknowledged that same subjectivity by identifying offences that can be categorized as forms of insubordination but are recognized as representing degrees of gravity. One such offence is characterized as “failure to follow the instructions of a supervisor”. Yet another is “failure to adhere to instructions published … “ An additional infraction of a similar nature is “failure to report for assignment”, and “failure to comply with railway instruction”. Moving to yet a different aspect of insubordination, we find “conduct unbecoming an employee”.
The Union was critical of the process whereby the offence of an employee is characterized. The management official appointed to investigate an allegation of misconduct is the person under the Brown System who determines how the infraction will be categorized. That official in this dispute was W. P. Klovance, the Supervisor of Maintenance and Way Training and Methods. He made the decision to treat the offence as one of insubordination. It was established on the evidence that is was within the discretion of Mr. Klovance to treat the circumstances as “conduct unbecoming an employee”. It was conceded further that the likely result of that characterization of the offence would have been a lesser penalty.
Mr. Shannon said he did not consider it open to him to reduce the offence from insubordination to conduct unbecoming an employee. He said that if he had been satisfied that the circumstances did not justify a finding of insubordination but did justify a finding of conduct unbecoming an employee he would have dismissed the matter entirely.
I will return to the manner in which Mr. Shannon made the decision to dismiss the grievor. For the moment, I point out that the intricacies of the Brown System and the limits of discretion Mr. Shannon placed upon himself are of little significance in a resolution of the dispute. How an employer structures, evaluates and records discipline is significant only to the extent that it turns on the vital question of proof of just and reasonable cause.
The Railway cannot say that it had just and reasonable cause to dismiss the grievor because the Brown System is fair and impartial and was properly applied. Neither can the Union say that the Railway failed to establish just and reasonable cause because the Brown System has manifest deficiencies that can and do arise in its application.
The grievor was dismissed on the allegation that he was insubordinate to his supervisor. The Railway bears the onus of establishing that the facts and circumstances adduced in evidence support the decision made, both as to its determination and as to the penalty selected. In considering that question I am bound to apply the test set out in the Wm. Scott Case. The Railway cannot succeed on the basis that it followed a discipline system of its own creation. Neither can the Union succeed because of the possibility of deficiencies in that system. The question remaining at the end of the day is whether the Railway has discharged the burden imposed upon it. In the Wm. Scott Case the three phase test is as follows:
(1) Has the employer established just and reasonable cause for some form of punitive discipline?
(2) Has the employer established that the penalty selected was just and reasonable or was the response excessive?
(3) If the response was excessive, what penalty, if any, should be substituted?
I now turn to the application of that test. In this dispute the Railway relied on the alleged insubordination as a culminating incident and sought to rely on the discipline record of the grievor to support its decision. Thus the first question to be addressed is whether the Railway has established misconduct on the part of the grievor in the final incident which was deserving of discipline.
I am satisfied without question that the conduct of the grievor in the insubordination incident was deserving of discipline. The Union raised a number of issues with respect to that aspect of the dispute that I will deal with as this Award progresses. At this point it is sufficient for me to say that the evidence with respect to the culminating incident disclosed serious misconduct on the part of the grievor that justified and perhaps demanded a disciplinary response. Having reached that conclusion, I now turn to a review of the discipline record.
The grievor commended his employment on a temporary basis in 1975. He worked for two and half months in 1975 and two months in 1976. In 1977 he commenced full-time employment and worked for nine months. He resigned in 1977 and returned to full-time employment on March 5, 1979. He remained in full-time employment until his dismissal on February 2, 1982.
His first difficulty of a disciplinary nature to which I can properly address my attention related to events occurring prior to December 21, 1981. The complaint was that the grievor had been writing graffiti on the washroom walls of the Work Equipment Shop. The graffiti was insulting to management employees. Following an investigation that I will deal with later in this Award, the grievor admitted that he was on of two employees responsible for the graffiti. The Railway elected to treat the offence as one of “defacing company property” and the grievor was assessed 20 demerits points.
On January 22, 1982 the grievor was assessed a further 20 demerit points for having been absent without leave over the period between December 24, 1981 and January 5, 1982. The imposition of that discipline was the subject of a grievance that is awaiting arbitration. I do not think it is proper or me to consider it in any respect.
The next incident that occurred is the culminating incident that I will describe in some detail later. As stated previously, the grievor was assessed 60 demerit points for his alleged insubordination. Following the incident the grievor broke the windshield of a piece of track equipment called a “speeder” and was assessed a further 10 demerit points. The items described constitute the aspects of the discipline record of the grievor that are properly before me in support of the dismissal.
I have taken one other incident into account that was not the subject of formal discipline. It was an incident that occurred during the course of the investigation with respect to the graffiti incident. The writing of graffiti was a continuing problem throughout December of 1981. On approximately December 7, 1981 the second-line supervisor, Mr. Anderson, was coordinating a management investigation aimed at discovering the authors of the graffiti. During a discussion between Mr. Anderson and a shop steward, Victor Greco, the grievor ran up to him and shouted “you assholes have no right questioning us.” Mr. Anderson said the grievor ran right at him and Mr. Greco stepped between them. He said that the grievor made a further aggressive move and was instructed by both he and Mr. Greco to go back to work. He did. Mr. Anderson is short in stature and slightly built. The grievor is tall and heavily built.
Mr. Anderson let the situation cool down. Later that same day he discussed the matter with Mr. McDonald, the first line supervisor who was directly in charge of the grievor. They concluded that it was essential to raise the matter with the grievor and advise him that his conduct was not acceptable. They spoke to the grievor. Mr. Anderson warned him that his actions constituted insubordination and that similar conduct would not be tolerated in the future. The grievor did not recall that conversation or the incident itself when he gave his evidence. He did not deny the incident or the caution he received and I accept the evidence of Mr. Anderson as to the incident and the subsequent caution given to the grievor about the repetition of similar conduct.
I agree with the Union that incidents that are not formalized in some disciplinary expression that would invite the exercise of the right to grieve should be given no weight in considering whether the employer had just cause for dismissal in the first instance. I do not agree, however, that such evidence is improperly received for purposes of establishing that the grievor was made aware of the attitude of his employer to a particular course of conduct and had been warned with respect to its repetition.
In the same vein, the Railway adduced evidence of a disciplinary letter sent to the grievor by Mr. Shannon with respect to the graffiti incident. In that letter Mr. Shannon said in part:
“Discipline action is intended to be educational and I trust that we will be able to look back on these demerit marks as being just that. This is the way I would prefer it. However, to make myself very clear, and so there will be no room for misunderstanding, I would advise you that your attitude towards the supervisory staff of the Railway must improve or you will leave no recourse but to eventually terminate your services.”
Again I limit consideration of that aspect of the discipline record to its significance with respect to whether the grievor was aware of the standard of conduct expected of him and the consequences of a failure to maintain the standard. One of the principal issues raised by the Union was the assertion that there was a “loose” attitude to supervision and that the grievor thought that defiance of supervisors was permissible conduct. It would be wrong to exclude evidence that addressed that very issue.
On that evidence I am satisfied that the grievor had been cautioned in terms that would alert any reasonable employee that disrespect and defiance of supervision would not be overlooked or condoned. In his evidence he denied having that understanding but that can be so only if he blinded himself to the clear warnings he had received.
Against that factual backdrop I now turn to the culminating incident itself. The specific facts are in dispute. The incident in question took place on January 19, 1982. Sometime prior to 9:00 a.m. the grievor arrived at the office of Mr. Anderson in the Work Equipment Shop. Mr. Anderson was meeting with the shop steward, Mr. Greco. A conversation ensued that I will detail later. During the course of the conversation the grievor made two vulgar statements in a loud voice.
There is a dispute as to the precise nature of the remarks and to whom they were directed. The grievor said the remarks were directed to Mr. Greco. Mr. Greco had the impression they were directed at him. The recollection of Mr. Anderson, supported in its material particulars by Dorrit Andersen, a secretary whose work station was outside his office, was that the grievor was speaking to Mr. Anderson and that he said “you guys are a bunch of lying assholes”. That statement was followed by a further statement that incorporated a much utilized crudity that is frequently expressed symbolically by gesturing with a raised finger. The statement was accompanied by that gesture on this occasion.
Ms. Andersen concluded the statements were directed to Mr. Anderson because she heard his name used in conjunction with the crudity. Mr. Anderson reached that conclusion because the grievor was looking at him when the statements were made, because the grievor moved toward him and made the finger gesture at him and because the crudity included his name. He said his immediate response was to advise the grievor he was “out of service”. That expression identifies the imposition of a suspension pending the investigation of disciplinary action.
Mr. Greco did not disagree in substance with the recollection of Mr. Anderson except with respect to his perception of to whom the remarks were addressed and the use of the name, “Anderson”. He was unsure but he thought the word used was “asshole”, not “Anderson”. His understanding was that the remarks were directed towards him. He was looking down when the comments were made and did not look up until he heard Mr. Anderson respond to the remarks by saying, “That’s it, Pickell, you’re out of service for insubordination.”
To put the confrontation in perspective it is necessary to return to the graffiti incident. During the course of the investigation of that incident photographs were taken of the graffiti by a constable in the employ of the Railway. I previously made reference to the December 7, 1981 incident when the grievor was cautioned with respect to insubordination.
On December 7, prior to the incident, the first-line supervisor, Byron MacDonald, told the grievor about the photographs and said they were to be sent to the Crime Detection Laboratory in Vancouver for purposes of comparing the graffiti handwriting with the handwriting of employees of the Work Equipment Shop. Later it was learned that the photographs did not develop properly. It was unclear whether they were to be developed by the Crime Detection Laboratory or whether the Union was told incorrectly that the photographs had been developed already and had been sent away. Whatever it was told, the union was of the understanding that the photographs had been developed and had been forwarded. That remained its understanding until January 19, 1982. Mr. Greco learned from the Railway constable that morning that the photographs the constable had taken had not turned out. Mr. Greco advised the grievor that there were no photographs. The grievor became extremely upset, according to Mr. Greco.
On December10th the grievor had admitted his complicity in the graffiti incident, as did one other employee, George McDonald. On December 21, 1981, an investigation was conducted and the grievor formally admitted his complicity. Prior to that, on December 17, 1981, George McDonald had been the subject of a similar investigation and had made a similar admission. The grievor had made a specific request to see the photographs when he gave his statement on December 21, 1981. They had never been produced. I accept the evidence that Mr. McDonald and the grievor volunteered their participation in the incident.
In his evidence the grievor was curiously ambivalent about the photographs. He said the photographs played no part in his decision to admit the incident. Later he said he became outraged when he learned there were no photographs. He explained his outrage by saying that the Railway had made him a promise to produce them and should have kept its promise. Specifically, he said, “When Greco told me there were no pictures I became outraged. I thought the company had made a promise and should stand by it.”
He then said, “Truthfully, I figured Greco was on the take, that he was working with the company in this matter and he had set up the men with the pictures.” The only two men who could have been “set up” were the grievor, who said the photographs did not influence his admission, and George McDonald. Mr. McDonald gave evidence. He made no mention of the photographs and said nothing to indicate he had any continuing interest in them. I find the totality of the Union evidence on the photographs to be somewhat incoherent. I have gone into it in some detail because the Union relied on it to some extent as evidence of provocation of the grievor.
In any event, after Mr. Greco told the grievor there were no photographs and he had experienced his outrage, the grievor encountered his direct supervisor, Byron McDonald and complained to him about the absence of photographs. The sense Mr. McDonald got from the conversation was that the grievor was suggesting he had been tricked. Mr. McDonald then advised him that Mr. Anderson had taken some photographs of the graffiti.
It was that information that sent the grievor to the office of Mr. Anderson. According to Mr. Anderson the grievor arrived and interrupted him and Mr. Greco, demanding to know whether he had graffiti photographs and insisting he produce them. Mr. Greco and the grievor said that Mr. Anderson admitted having photographs and that he taunted them by opening an office drawer, showing the photographs, and then refusing to produce them. Mr. Anderson said he told Mr. Greco and the grievor they could have the photographs if his supervisor, Arnold Hanson, approved the production of them. In any event, the shouting incident then occurred, resulting in the suspension of the grievor.
Mr. Greco gave evidence that he had been under some criticism from employees by reason of not having determined whether photographs actually existed and that suggestions had been made that he was cooperating with management. On the evidence of both parties Mr. Greco had been anxious to obtain the photographs. I accept that Mr. Greco and the grievor were anxious to see the photographs. I do not accept that the remarks of the grievor were intended to apply solely to Mr. Greco.
I do accept the evidence of Mr. Anderson that his name was used expressly. The most that can be said for the circumstances is that the grievor intended to encompass both Mr. Greco and Mr. Anderson in his condemnation. The grievor himself confirmed that view in the evidence. He said with respect to the “lying assholes” reference that, “I was referring to the whole world, both sides, the Union and the Company had lied to me”. He did insist that the finger gesture and the obscenity that accompanied it were directed at Mr. Greco but I accept the evidence of Mr. Anderson that the gesture and the attention of the grievor were directed at him.
The Union characterized the events as limited to the use of profanity and name calling with no express or implicit challenge to supervisory authority. In particular, the Union adduced considerable evidence to the effect that the direction of profanity and insults towards supervisors, both in jest and in anger, was commonplace in the Work Equipment Shop and did not attract discipline. The use of profanity in the incident was of only marginal significance. The grievor engaged in what could be described as “telling off” his supervisor. The profanity was incidental to that enterprise and a finding that he was insolent in the course of his conduct is the least inference to be drawn. I accept the evidence of the two supervisors, Mr. Anderson and Mr. McDonald, that insolence and rude conduct of the kind demonstrated by the grievor on the day in question was not customary in the shop and that when it occurred it was addressed critically and a caution given.
I have no doubt on the evidence of the union witness that rough and profane humor was very much a part of the daily work environment and that supervisors were sometimes drawn into that form of exchange. But a number of aspects of the evidence confirmed that a line existed which, when crossed, drew a critical response.
The question of when something is said seriously and when it is said in jest is so much a function of nuance and inflection that testimony with respect to such events is subject to both misinterpretation and exaggeration. Whatever incidents of jest may have occurred from time to time in the shop, I accept that neither Mr. Anderson nor Mr. McDonald took them as challenges to authority or insolence but accepted them as part of the structured camaraderie that develops between supervisory and bargaining unit employees who work in close contact. There is a rough etiquette in every work environment that succeeds to the extent that all employees maintain some perception and respect for the supervisory function and the need to maintain it.
I accept the evidence of the Union witnesses, including the grievor, as having been given in good faith in the sense that there was no intentional attempt to deceive. But the quality of the evidence was flawed by the fact that it was subjective and retrospective in large measure and reflected the self-serving interests of the grievor. It is to be expected that favourable recollection will intrude where the subject matter of the evidence permits and where the adversarial nature of the proceedings is a prominent factor.
Assessed on the level of probability, it is improbable on the evidence that daily discipline in the Work Equipment Shop could have deteriorated to the level expressed in the Union evidence without affecting production and without discovery and reaction by senior management. Management witnesses are equally prone to self-serving evidence and I accept that more leeway was given employees than Mr. Anderson conceded. He was more tolerant in his approach to discipline than other supervisors might be. But I cannot draw the inference that he would overlook the type of incident that gave rise to the dismissal of the grievor or any similar incident.
The Union stressed one incident that occurred between Mr. Anderson and George McDonald, the other participant in the graffiti affair. On the evidence it was extremely serious. Apparently Mr. McDonald made threatening gestures to Mr. Anderson with a steel implement called a “flex bar” and directed foul language to him. It was a clear challenge to authority and it as done in the presence of other employees on the shop floor.
Mr. McDonald gave evidence about the incident and, in cross-examination, said that Mr. Anderson had approached him after the incident and told him his conduct was unacceptable and should not be repeated. He confirmed that he apologized for his conduct. He then went on to say that he thought his conduct was acceptable and that he should be permitted to verbalize his frustration if he felt harassed.
He said he did not think he had understood that he should not conduct himself in that manner in future and concluded by saying it was never established that he should not behave that way again. His evidence and his attitude were difficult to understand in the context of the employer-employee relationship.
The cause of his extraordinary behaviour was that changes had been made in the procedures for the replacement of tools. It is difficult to equate the alleged provocation with the extreme reaction, but it was consistent with the work attitude expressed by Mr. McDonald. In his evidence he gave no indication that he felt his conduct was unacceptable and he demonstrated the same propensity that was demonstrated by the grievor for shifting the blame for his conduct from himself to management.
The remaining Union witnesses were supportive of the position taken by the grievor with respect to the looseness of supervision in the shop but demonstrated a more mature sense of their responsibilities and a willingness to abide by them. Mr. Greco, for instance, described an incident he witnessed between George McDonald and Mr. Anderson. Apparently Mr. McDonald addressed a foul name to Mr. Anderson as he was walking by. Mr. Anderson told Mr. Greco to talk to Mr. McDonald and point out to him that his conduct was not acceptable. Mr. Greco did approach Mr. McDonald and told him not to behave that way. He said he told him “Don’t do that - if you do it - you’re going for a statement and there will be nothing the Union can do for you.” The term “going for a statement” is used to describe the imposition of discipline. That perception by Mr. Greco, the shop steward, of the seriousness of uttering of a single insulting word to a supervisor is inconsistent with a general view on the part of employees in the shop that similar and more serious conduct was acceptable.
Another aspect of the evidence that strongly refutes the inference urged by the Union is the existence and role of Byron McDonald as the direct supervisor of the crew on the shop floor. He occupied that position throughout the relevant period. On the evidence it was not suggested that Byron McDonald would tolerate the type of conduct that was asserted as being commonplace.
Mr. Greco, for example, had witnessed the incident between George McDonald and Mr. Anderson involving the flex. He said he discussed the matter with Byron McDonald later and he quoted Byron McDonald as having said, “If that had happened to me he (George McDonald) would be fired right now. I don’t care what Bruce (Anderson) did - it would be insubordination right now - he would be fired.”
Further insight into the attitude of Byron McDonald as a supervisor was given by Mr. Greco when he told about an incident that occurred shortly after Mr. McDonald was appointed to his position. He said he used a crude name in jest when addressing Mr. McDonald and Mr. McDonald stopped him. According to Mr. Greco, Mr. McDonald said to him, “Don’t talk to me like that. - You have to respect my position - I respect yours.”
Mr. Greco emphasized that he had used the term in a joking fashion and did not intend it to be derogatory. I cannot assume from the evidence of Mr. Greco and the other Union witnesses that Byron McDonald would tolerate any form of insolence or rude language directed at him. Mr. McDonald was the supervisor in direct contact with the employees on a daily basis on the shop floor. I cannot reconcile his presence, his role and his attitude with subjective description of the disciplinary atmosphere in the shop given in the union evidence. I am left to conclude, as stated, that the evidence was exaggerated unconsciously in the understandable anxiety of the witnesses to come to the aid of a union brother in trouble.
Byron McDonald was an impressive witness. He said he was present when the grievor returned from the incident that led to his dismissal. He found the grievor slamming doors and putting his tools away, obviously upset. When he inquired as to the reason, the grievor told him he had been pulled out of service for calling Bruce (Anderson) a liar. That evidence is inconsistent with the suggestion that the grievor was directing his remarks solely to Mr. Greco.
Byron McDonald said that the grievor went on to speak about Mr. Anderson in scathing and foul terms. Later the grievor approached Mr. McDonald and asked him to approve a day off for union business. In view of the circumstances, including the fact that the grievor had been taken out of service, Mr. McDonald refused. He said the grievor became extremely upset and began calling down management. In particular, he described management, including Mr. McDonald as a “bunch of assholes”. Mr. McDonald said he continued swearing at management and, “I’ll be back. If you think I’ve (screwed) you in the past - I’ll give you a good (screwing) - I’ll be back.” In the actual quotation the grievor used the more vivid term. That evidence must be weighed in considering whether the grievor was defiant of the authority of his supervisors.
I do not say that there were no incidents established in evidence in which formal discipline was excused. The George McDonald incident was one where Mr. Anderson elected to warn the grievor informally. A similar approach was taken by Mr. Anderson with respect to the first incident with the grievor when he warned him rather than impose formal discipline.
There was another incident on which evidence was given by Mr. Greco. It occurred in 1980 shortly after Mr. Anderson was appointed to his position. Mr. Greco was meeting with Mr. Anderson and a more senior supervisor over a controversy that had developed the previous day. On his understanding of the events of the previous day Mr. Greco accused Mr. Anderson of being a liar and accompanied his accusation with a choice selection of foul language. He was not disciplined for the incident.
There were other incidents described from which the Union invited the inference that employees assumed and were entitled to assume that they would not be disciplined for conduct similar to that of the grievor. I do not agree that the evidence sustained that inference. On the general thrust of the evidence I accept that incidents took place but that employees generally understood and accepted the obligation to accept supervision.
In the incident with Mr. Greco, for example, the facts revealed that he and Mr. Anderson had worked together in the bargaining unit and in the Union. The incident occurred shortly after Mr. Anderson was promoted to his position. It occurred in the presence of a senior supervisor for whom Mr. Greco expressed respect. It occurred in the context of union-management relations with respect to employee dissatisfaction that Mr. Greco felt could be shaping up into job action. it is not unusual to find a greater latitude at that level of dialogue than in the usual employer-employee contact. In any event, one would presume that if a senior supervisor saw fit to let the matter go by it was not deemed sufficiently serious in its context to warrant serious discipline. I repeat, Mr. Greco himself refuted a general understanding that defiance of authority was acceptable conduct when he cautioned George McDonald that if he indulged in that behaviour he would be disciplined and the Union would be unable to protect him.
In general terms, assessing the balance of probabilities, I am persuaded that Mr. Anderson and Byron McDonald did not indulge conduct of an insubordinate nature and if the grievor had persuaded himself that he was entitled to carry on in the fashion he did, it was because he was blind to the warnings he had been giving and the common sense of his role as an employee.
A second submission by the Union was that the behavior of the grievor was spontaneous and responsive to provocative circumstances. The provocative circumstances alluded to were the fact that the grievor had been denied access to the photographs of the graffiti in an allegedly taunting fashion and, on the day in question, having been told by Mr. Greco that the photographs were not available, was then told by Byron McDonald that photographs had been taken by Mr. Anderson and were in existence.
If the grievor found those circumstances provoking, the provocation was of his own making. Mr. Greco was his shop steward and was quite capable of handling the matter. In fact, Mr. Greco told the grievor at the commencement of the confrontation that he would handle the matter. I repeat my earlier statement that I cannot understand the attitude of the grievor with respect to the photographs and his sense of injury. The entire reaction to the investigation of the graffiti incident is difficult to reconcile. Listening to the Union evidence I sensed the view that Union members had been victimized in some manner by the fact that the employer conducted an investigation into an incident of continuing misconduct. Mr. Greco referred to it as harassment. That view is incomprehensible to me. It was the Railway that was the subject of injury, not the Union or its members.
The grievor expressed himself as incensed that the photographs would have been withheld from him and he continued to throw the accusation of liar around with abandon, with no apparent perception that he was the root cause of the problem, and apparently unable to accept the fact that the employer was perfectly entitled to investigate his activity. He took the extraordinary position that the employer was prohibited from investigating his misconduct pursuant to the discipline provision of the Collective Agreement. The attitude is properly described as nonsense.
In order for provocation to be available as a factor to mitigate insubordination the alleged provocation must disclose some impropriety on the part of management and must be such that it would inspire a reaction in a reasonable man. Nothing in the circumstances indicated to me that the grievor was acting reasonably in his reaction. As to whether there was any impropriety on the part of management, it would have been better if management, having said it would produce the photographs, had attended to producing them with some dispatch or had explained their absence. That falls more into the category of laxity than impropriety. One can understand why Mr. Greco would be annoyed by that laxity. He saw his credibility as being questioned. Even so, annoyance is the reaction one might anticipate. Outrage is quite outside the realm of expectation as a reasonable response. Mr. Greco described the situation accurately himself when he said in his evidence:
“I asked Arnold Hanson for the pictures. He said they had not been developed. I thought it was funny. Hanson said, ‘I’ll get you the pictures’ I said, “What the hell, the guys are guilty - it’s no big deal, but if you have them, we want them’.”
Mr. Greco said that later a feeling surfaced with some employees that no photographs existed and that he was “in cahoots” with management. He thus became more anxious to see the photographs. The person who was thought to have them was Const. McMillan, the Railway constable in charge of the investigation. There was nothing to indicate a concern had ever been expressed to Mr. Anderson or that Mr. Anderson had withheld the fact that he had photographs of his own. The grievor never did explain his view that both union and management had lied to him. That distorted view, unfortunately was reflective of his general attitude to management.
Insubordination is an extremely serious offence because it strikes at the heart of the relationship. Good order and discipline is vital to the maintenance of production and there is no requirement more fundamental to the maintenance of the relationship than a proper attitude of respect and cooperation. Some of the evidence of the Union indicated that the employees in the shop, at least some of them, considered it a battleground in which they were free to assert and fight for rights totally outside the usual grievance process.
As far as the evidence indicates, the first time Mr.. Anderson was aware of the interest of the Union in photographs was when he was confronted by the grievor. he readily conceded that he had photographs and that he would produce them if their production was approved by Mr. Hanson. It is difficult to see in the circumstances why Mr. Greco would be upset by those circumstances. It is impossible to understand why the grievor would be upset. To borrow the expression of Mr. Greco “it was no big deal”. The only way in which the “outrage” of the grievor can be reconciled is if one accepts the theory that he had been “set up” in the graffiti investigation. If that was the basis of his outrage then he presented a curious set of values.
Both Byron McDonald and Mr. Anderson said the grievor, at one time or another, had denied any participation in the graffiti incident. The grievor sought to explain that denial by saying that when he was asked he had not participated in writing the graffiti but he commenced writing after he was asked. I do not accept his evidence in that regard.
The inference I draw is that the grievor would not have volunteered his complicity in the graffiti incident if he had not thought that his participation would be discovered. He conceded that he had not been truthful in the course of the investigation into the breaking of the windshield of the speeder. In that instance, however, his deception was recorded in a statement signed by him and produced in evidence at the arbitration.
I don’t think I am being cynical when I say it does not surprise me that an employee would be untruthful in seeking to avoid the imposition of discipline that may affect his employment. What I do find remarkable is the attitude of the grievor implicit in his evidence that it was alright for him to lie to his Employer but it was outrageous if his Employer had sought to trick him into admitting misconduct that he had cheerfully denied. In the evidence it was emphasized that the grievor was angry and felt frustrated when he confronted Mr. Anderson that day. I repeat, if that was so, and apparently it was, his anger arose from circumstances of his own making.
Physically the grievor is a large man. In his evidence he made the astonishing statement that he was “proud of my might - I like to show it off”. He also described himself as a very aggressive person and suggested that his conflict with his supervisor, Mr. Anderson, was that Mr. Anderson was a small man with a need to belittle a big men. If that observation was based on something other than the impressions of the grievor, it was not revealed in the evidence. What it did reveal was a basic hostility to supervision and authority. On the general question of the discrimination the grievor saw against him on the part of Mr. Anderson, it must be noted he had worked under Mr. Anderson for a lengthy period of time. His difficulty was restricted to the three months prior to his dismissal. On at least one occasion Mr. Anderson overlooked serious misconduct that could have resulted in serious discipline.
I should not leave the subject of provocation without drawing the distinction between it as a mitigating factor and aggravation, which can itself be a form of mitigation. Provocation implies a response to some conduct on the part of management that lessens the implications of an act of misconduct. It was pointed out in the evidence that the work in the Work Equipment Shop can be aggravating and frustrating. There may be a host of reasons why a person is aggravated by circumstances that have nothing to do with provocation as that concept is understood in lay an in arbitral jurisprudence.
The significance of aggravation as a factor of mitigation is that it implies that, because of the aggravation, the misconduct of the employee was not reflective of his usual standard of work performance. Again, however, I can find nothing in the evidence that would mitigate the conduct of the grievor on the basis of aggravation or frustration. The crude attack on authority mounted by the grievor in the circumstances remained inexplicable in the evidence.
In fact, the grievor made it clear that if he was aggravated and frustrated it was because he did not approve of the manner in which he was being supervised. The very essence of an act of insubordination is a challenge to supervision and the grievor revealed the clear attitude that he was entitled to challenge supervision any time he did not agree with the manner of its exercise. Far from constituting a mitigation of the implication of his conduct., his apparent aggravation by supervision underscores his inability to understand the need for supervision and his duty to accept it.
The Union submitted that the incident giving rise to dismissal, even if it was directed at Mr. Anderson, was not a challenge of the authority of management but was merely abusive. The Union relied on the following description of the offence of insubordination as set out in Canadian Labour Arbitration, Brown and Beatty at page 359 - 360:
“There appears to be general agreement that conduct and language which are insolent towards and contemptuous of members of management will amount to insubordination where such behavior involves a resistance to or defiance of the employer’s authority. From this it has been suggested that if the obscene and abusive outbursts are the result of a momentary flare-up of temper, and therefore, do not challenge the employer’s authority, the imposition of disciplinary sanctions would not be justified. Furthermore, in determining whether the quality of the grievor’s remarks fall within the ambit of and can be characterized as insolent and defiant behavior, regard may be had to the nature and mode of expression utilized and tolerated in the plant. Assuming that the language used can be viewed as insolent and contemptuous towards management, it appears from the awards that standing alone insolent remarks usually merit some minor disciplinary sanction, whereas if such language were accompanied by a refusal to work or threats or an assault on a supervisor, more severe disciplinary sanctions, including discharge, may be justified. Indeed, it has been held that discharge was appropriate where the insulting language directed at a fellow employee was so intimidating as to cause the latter to leave the employ of the company. In determining the appropriate penalty that may be invoked in any of these circumstances, in addition to considering the common idiom of the business and the intention of the person using the language, arbitrators have also had regard to the presence or absence of provocation, the behavior pattern of the grievor, his length of service, the context in which the remarks were made, and the effect of the grievor’s behaviour on plant morale. Furthermore, if for whatever reason the employer perceived the employee’s behaviour to be of such marginal significance as to induce him to advise the employee to simply forget the entire incident, an arbitrator would probably conclude that the misconduct had been condoned and that the imposition of any subsequent disciplinary penalty was unwarranted. Finally, and although not properly characterized as contemptuous or insolent behaviour, where an employee is simply unable to cooperate with or is continually antagonistic towards his employer, a number of arbitrators have found such behaviour to be justifiable grounds for discipline.”
The Union submitted on the basis of that extract that the facts in evidence did not reveal a direct challenge or any challenge of the authority of the Railway. I do not agree that a direct challenge of authority is necessary to support the finding of insubordination. Nor do I agree that the circumstances amount to shop talk or abuse directed at a supervisor. On the facts I find that the grievor left his work area without permission. He went to the office of Mr. Anderson, again, without permission or invitation. He knew that permission was required on both counts. There was some suggestion that he may have had or may have thought he had permission but that is not in accord with the general thrust of the evidence. I accept the evidence of Mr. Anderson that when the grievor arrived he demanded to see the graffiti photographs and when he was refused he made the statements previously set out in this Award.
When I measure that conduct against the authorities with respect to what constitutes insubordination I find that it reflects a serious act of insubordination and a challenge to supervision. I do not think that the extract relied on by the Union from Canadian Labour Arbitration supports the broad assertion that the insubordination must entail a direct assertion that the insubordination must entail a direct challenge of the authority of the employer in express terms. A review of the cases cited in the extract supports that conclusion.
In particular, Hiram Walker & Sons Ltd. and Distillery Workers, Local 61 (1973) 4 L.A.C. (2d) 291 (Adams), contains the following qualification on page 302:
“and insolence has been equated to insubordination … Beatty testified that he considered Westwood’s remark - “picking my nose” to be insolent. Does Westwood’s remark represent a defiance of authority and is Beatty’s characterization reasonable?” … In light of these rather unique set of facts, it becomes very difficult to characterize Westwood’s remark as insolent and insubordination, and I decline to do so.”
Read in context, Professor Adams contemplated that insolence is itself insubordination and a defiance of authority. No direct challenge in the sense of a refusal to obey an order is necessary to sustain the inference of defiance.
In my view the Hiram Walker Case restates conventional arbitral wisdom. That wisdom is that in the dialect unique to a work place, words and conduct that may otherwise appear insolent and defiant will be deprived of that implication if surrounding facts refute the intention to defy authority. In the Hiram Walker Case it was disclosed that the grievor and the supervisor in question had known each other for 19 years, had worked side by side for 13 of those 19 years as workmates and, in the last six years after the supervisor was promoted, they continued to be friends, to drink together and to exchange quips. The questionable remark, an innocuous remark at best, was not out of character with that relationship and was not consistent with an insolent or defiant attitude.
There is no doubt that standards of acceptable conduct vary from one work location to another and that words and deed capable of being interpreted as insubordinate cannot be taken out of context in order to sustain that inference.
To the extent the submission of the Union is limited to the proposition that words and conduct capable of being interpreted as insolent and defiant can be explained away, I agree. The concept with which I have difficulty is that words that are insolent and defiant are somehow removed from the concept of insubordination because they do not express themselves as a direct challenge to the authority of the employer.
Insubordination, broadly speaking, is conduct contrary to good order and discipline. It is an extremely serious offence. It is not limited to a refusal to obey an order a challenge of authority in the direct sense. The concept of “shop talk” has little to do with the circumstances involved in this dispute. The use of profanity and jesting with supervisors is commonplace in the working world. An employer who seeks to stop that continuing pattern of conduct at some moment in time and use it to justify the imposition of disciplinary penalties will encounter difficulty in arbitral review.
But I reject the Union’s submission that the incident in question was simply an example of “shop talk” that had been accepted for a lengthy period of time in the Work Equipment Shop. In my view there was no inference to be drawn other than the fact the grievor had no respect for authority, had no perception that he could not wander around the plant as he pleased challenging his supervisors and was both insolent, defiant and disrespectful in the incident in question.
In many ways the conduct of the grievor was qualitatively more serious than an employee refusing to obey a direct order. The conduct of the grievor went directly to the credibility of supervision itself and indicated an attitude on the part of the grievor that he could behave as he pleased. He both implied and expressed the view that the quality of supervision in the Shop was unacceptable and he was both angered and alienated when no steps were taken to resolve the situation to his liking. The presence of such an attitude expressed by so forceful a personality constituted a fundamental challenge to the discipline of the work place and the right of management to supervise that activity.
I have no hesitation in finding that the penalty imposed was not excessive in the circumstances. In reaching that conclusion I am not called upon to consider the question of a substitute penalty. In reviewing the question of the appropriateness of the penalty, however, I have given consideration to the presence of any mitigating factors that would dictate a lesser penalty. For the reasons given I have been unable to find any factors of mitigation that would compel an exercise of discretion in favour of the grievor.
I am bound to say that the principal factor that dictates against a mitigation of the penalty was the evidence of the grievor and the manner in which he gave it. Absent from his evidence was any sense of wrong doing. He was arrogant and continued to press the view that he had been wrongly treated. When the issue of whether he had apologized for his conduct arose the grievor said that he had considered and rejected an apology unless the Railway was prepared to apologize to him for what he characterized as his harassment and poor treatment by management.
It was difficult to pick out of his evidence what he considered to be harassment. The most significant theme was his allegation that he had been discriminated against in the supervision of his apprenticeship. If there was some mismanagement of his apprenticeship it was not established in evidence. His comments on his apprenticeship had the flavour of rationalization rather than a legitimate complaint. His reaction to the graffiti incident and the discipline imposed upon him established his continuing inability to appreciate the fundamental nature of the employer-employee relationship.
A fundamental question that arises when an arbitrator reviews the imposition of a penalty in response to conduct deserving of discipline is whether the facts and circumstances sustain the inference that the employee is capable of resuming his employment and performing to an acceptable standard. Nothing in the evidence sustains that inference in this dispute.
The parties were in agreement that the grievor is a good employee with respect to his ability to perform the work. In addition, I agree with the submission of the Union that the grievor demonstrated an apparent ability to respond to supervision until the series of incidents occurred in the three months preceding his dismissal. But the evidence of the grievor erased any favourable inference that could be drawn from that aspect of this work record.
He did not accept any responsibility for his actions and his repeated assertion was that the fault lay with his supervisors. He did insist that he would be able to return to the Work Equipment Shop and work under the supervision of Mr. Anderson and Mr. McDonald but, apart from that bald statement, nothing in his demeanor or evidence indicated that the incident was uncharacteristic of him or that his attitude had undergone some change. He said his dismissal had brought home to him the fact that he could not behave in that fashion, but the thrust of his evidence continued to be that of an aggrieved person whose rights were somehow compromised. Absent from his evidence was an indication that he understood his obligations and was prepared to meet them.
Finally, in my view, the reinstatement of the grievor would contradict a demonstrable need for deterrence of similar conduct. The attitude of the employees in the Work Equipment Shop who were called to give evidence was disturbing in the arbitral context. To the extent that their attitude reflects the prevailing attitude, then the reinstatement of the grievor would serve to the disadvantage of both parties. The grievor was not alone in his apparent view that there is some obligation in management to supply a pattern of supervision that met his liking and that he was free to expound his views as aggressively and disrespectfully as he pleased. In some work relationships it is necessary to repeat the now celebrated comment of Prof. Shulman, a prominent American arbitrator, with respect to the fundamental nature of the employer-employee relationship. His comment was cited in Lake Ontario Steel Co, Ltd. (1968) 19 L.A.C. 102 (Weiler) at page 108. A portion of the extract reads as follows:
“ … an industrial plant is not a debating society … production must go on. And someone must have the authority to direct the manner in which it is to go on until the controversy is settled. That authority is vested in supervision. It must be vested there because the responsibility for production is also vested there; responsibility must be accompanied by authority. It is fairly vested there because the grievance procedure is capable of adequately recompensing employees for abuse of authority by supervisors.”
That concept of the employer-employee relationship is totally out of balance with the vigilante approach that was employed for the expression of employee discontent in the Work Equipment Shop. It seems inevitable that further discipline will follow against other employees if that misconception with respect to labour relations is not corrected. It is in that context that I see deterrence as a significant element of the resolution of this dispute. In that regard I adopt the comments with respect to the factor of deterrence expressed by Prof. Adams in E. B. Eddy Forest Products Ltd. and Lumber and Sawmill Workers Union, February 24, 1978, unreported. In that decision Prof. Adams said
“on the other hand, some forms of conduct are so serious and so fundamentally opposed to the requirements of a productive work-force that an overriding concern for general deterrence may well be justified. In these situations boards of arbitration had to decide whether the concept of progressive or corrective discipline must give way to an approach that will impress upon members of the work force the seriousness of misconduct. In these cases then, and this grievance is one of them the issue is one of determining the extent to which the Employer’s interest in general deterrence should properly override the aforementioned principle that discipline should be corrective.”
That reasoning is apposite to the facts in this dispute. It is regrettable that a young man with many positive attributes as an employee should have moved onto the wrong foot and stamped it so persistently. It was conceded that he was a good employee with the exception of his attitude.
I agree with the Union that aspects of the investigation and the decision to dismiss the grievor were flawed. Mr. Klovance, for instance, refused to accept statements proferred by the Union at the formal investigation. That was wrong. Having selected the investigation process, the Railway should conduct it fairly, Mr. Klovance formed the impression the Union was attempting to frustrate the enquiry but he should have agreed to hear what was said by persons present during the incident and should have considered what was said.
Mr. Shannon, as stated previously, had it in his mind that serious act of insubordination was deserving of dismissal. He raised the demerits recommended by Mr. Klovance from 40 to 60 points. I agree with the union that the decision he made was that the incident was deserving of dismissal and the assignment of demerits was, at least by appearance, an assessment that responded to that prejudgment. The view Mr. Shannon took of the seriousness of the incident was arbitrary in the sense that is was based on the report of Mr. Klovance. The refusal of Mr. Klovance to accept statements tendered to him, at the least, raised a question as to its impartiality.
In other circumstances those issues may well have had a bearing on the outcome of this arbitration. But, as I said, the fundamental issue is whether the Railway discharged the onus of establishing just and reasonable cause for dismissal. Mr. Shannon, who made the decision, was responding to a very serious act of misconduct. He did give due consideration to the work record of the grievor and he did not respond to any apparent bias or otherwise act in bad faith.
In any event, any flaws in approach were submerged by strong evidence of a flagrant and persistent attitude of defiance on the part of the grievor. As stated previously, it was the grievor himself who decided the issue. He brought his attitude with him to the arbitration. For whatever reason he has developed a perception of his role and is rights as an employee that is badly out of step. To reinstate him would be to ignore the clear inference to be drawn from his evidence and inflict an employee on the Railway who continues to reject authority and challenge supervision.
The now celebrated statement of Prof. Shulman that an industrial plant is not a debating society does not contemplate a work environment that is dictatorial or require employees to be submissive. The balance to that statement was given recently by Prof. Swan in Canada Packers, Inc. and U.F.C.W., Local 114P, October 22, 1982, unreported. He said, “… an industrial plant is not a debating society. On the other hand, neither is it a para-military organization …”
As that observation implies, discipline in an industrial plant is maintained by the exchange of a decent level of respect between supervisory and bargaining unit employees. Respect, in that context, is not extended or withheld on the basis of personalities. It is the necessary etiquette of people who must work together and who must accept their diverse roles and responsibilities. It is no answer, as the grievor implied, to say, “I do not respect my supervisor.” It is his obligation as an employee to extend respect. If he cannot do so he must leave.
An employee is not obligated, as Prof. Swan so graphically stated, to become servile or subservient. But he must be prepared to accept authority and adopt a posture of at least token respect. The grievor made it abundantly clear that he did not have that capacity, at least in the Work Equipment Shop, and there is no alternative but to dismiss the grievance.
Dated at the City of Vancouver, in the Province of British Columbia, this 20th day of December, A. D. 1982.
H. ALLAN HOPE, Q. C.