AH 249
BETWEEN:
CANADIAN UNION OF TRANSPORTATION EMPLOYEES,
LOCAL NO. 1
(the ”Union”)
AND
BRITISH COLUMBIA RAILWAY COMPANY
(the “Railway”)
IN THE MATTER OF THE GRIEVANCE OF CUNNINGHAM
Sole Arbitrator: H. Allan Hope, Q. C.
There appeared on behalf of the Railway:
James E. Dorsey, Esq.
There appeared on behalf of the Union:
Terrence L. Robertson, Q.C.
Brian Shaw
A hearing in this matter was held at Vancouver, British Columbia, on the 25th, 26th, and 27th days of November, 1987.
AWARD
I
In this arbitration the grievor, B. H. Cunningham, sought reinstatement to his position as an engineman. He was dismissed as a result of a collision that occurred on December 22, 1985 between a freight train operated by the grievor and a yard engine. The reason given for the dismissal was that the grievor was in breach of Rule 93 of the Uniform Code of Operating Rules (U.C.O.R.) which governs the operation of equipment on the Railway.
The grievor, who was first employed on August 25, 1965, was dismissed in a letter dated January 8, 1986. The substance of that letter reads as follows:
On reviewing the statement taken from you on December 27th, 1985, your responsibility pertaining to the collision between your train and the Squamish Yard on December 22nd has been established. Accordingly, your service record will be assessed sixty (60) demerit marks for the violation of the second paragraph of Rule 93, Uniform Code of Operating rules, Revision of 1962. In line with Railway policy, the accumulation of 60 demerit marks results in termination of employment with B.C. Rail Ltd.
The freight train was operated that day by a three-man crew. The crew took over the train at Brandywine Falls, a point where the rail line crosses the highway approximately 21 miles north Squamish. The crew consisted of D. W. Monteith, conductor, the grievor as engineman and Glen Bowles, a trainman who was riding the engine as head and brakeman. They relieved the previous crew at approximately 1000 hours (10 a.m.), having traveled to Brandywine Falls from North Vancouver by taxi. The train consisted of 92 fully loaded cars and was 5600 feet long. It weighed approximately 11, 000 tonnes. The collision occurred at 1057 hours, less than one hour after the crew took over.
The first communication between the train and Squamish yard came after Garibaldi, a point approximately six miles south of Brandywine Falls. Mr. Monteith advised the Squamish dispatcher by radio that the train had been OS (over switch) at Garibaldi at 1015 hours. The run south from Garibaldi to Squamish at track speeds is approximately 45 minutes. The rules provide that OS time means the time means the time when the tail end of the train has cleared a particular point. At 1015 hours the had end was more than one mile ahead of the tail end. At average speeds the head end would arrive at Squamish approximately five minutes ahead of the tail end. On that basis, the head end was due to arrive in Squamish at 1055 hours. However, the message was misinterpreted by the yard crew. They calculated the freight train would arrive at 1100 hours. It actually arrived at 1057 hours and the collision occurred.
There was little doubt on the facts that the grievor was in breach of Rule 93. That rule, in part, requires employees to maintain a proper lookout while operating equipment at restricted speeds within yard limits. The collision occurred when the train overtook and collided with the yard engine well within the yard limits at Squamish. The grievor, on his own evidence, was not maintaining a proper lookout in the period immediately preceding the collision.
The grievor said that he failed to see the yard engine, which was being operated in the same direction as the freight train, until it was approximately two car lengths in front of him, being a distance of less than 100 feet. Later in his evidence he said it could have been less than two car lengths. His train was travelling at approximately 15 miles per hour and, in the agony of collision, the grievor was not successful in applying the emergency braking system before the freight train overtook and struck the yard engine. The portion of Rule 93 has was said to have breached reads as follows:
Protection against third class, extra trains and engines is not required. Third class, fourth class, extra trains and engines must move within yard limits at restricted speed unless the main track is known to be clear.
Restricted speed is defined in the U.C.O.R. as, “A speed that will permit stopping within one-half the range of vision.” The yard engine was also subject to rule 93, falling into the category of “engines”. An engine is defined in the U.C.O.R. as “a unit propelled by any form of energy … operated from a single control, used in train or yard service”. The engineman in charge of it, H. T. Nichols, was entitled to be on the main line and to expect that the freight train could be stopped under Rule 93 before it hit his yard engine.
The Railway submitted that employees who are under an obligation to operate at restricted speed are under a coincidental obligation to maintain the capacity to react to conditions requiring a stop by keeping a constant lookout. The Union did not challenge that interpretation of the rule. The position of the Union was that the grievor’s failure to maintain a lookout was, in the circumstances, in accordance with standard operating practice and that the collision occurred because of what was described as contributory negligence on the part of a number of other employees who were involved directly or indirectly in the collision, particularly the head and brakeman, Mr. Bowles. The grievor, said the Union, believed that he had effectively delegated the obligation of maintaining a lookout to Mr. Bowles.
Mr. Bowles, the head end brakeman, did see the yard engine before the collision and warned the grievor of its presence. He said, “Brad, there’s an engine ahead of us”. The grievor said the train was then progressing around a left hand curve that would bring it into the main area of the yard at Squamish and he did not see the yard engine immediately. Nor did he sense any urgency in Mr. Bowles’ warning. He stood up to the window to look closer and to avoid the glare from the sun. He then saw the yard engine rounding the curve ahead of him. From his standing position he attempted to hit the emergency stop button. Instead he struck the brake release button. In the result, the freight train struck the yard engine with no braking action to slow the impact.
The grievor attributed his lack of immediate reaction to the failure of Mr. Bowles to use the term, “plug it”. He and a number of other experienced witnesses said that the term was used universally on the Railway to indicate the need for an emergency stop. The grievor said that is Mr. Bowles had used the expression, he would have set the emergency braking system immediately without looking. In any event, the Railway did not suggest that emergency braking, even if applied immediately, would have prevented the collision.
However, the Railway implied that the failure of the grievor to activate the emergency brakes indicated that he was not in a normal condition at the time of the collision. I will return to that assertion later. At this stage I point out that the grievor, on the evidence, appeared to have been disoriented by the fact that he was standing during the brief seconds when he tried to activate the emergency brake. It was an unfamiliar posture from which to activate the system. The grievor said that activating the emergency system was a routine thing in mountain country where unexpected obstructions, such as rock slides, occur. He said he was familiar with the procedure and had done it as often as twice as twice a week in routine operations, but from the operating position. The grievor said he struck the brake release button more than once without realizing it was the wrong button. (They are located on the same instrument panel, but the brake release button is green and the emergency brake button is red. Also, they are in different locations.) The grievor became sufficiently disoriented that he concluded in this mind that the buttons on the engine he was operating that day must have been modified and their location changed. He was so sure of that fact that he made that assertion when he was first interviewed. Ultimately he had to travel back to the wreck and see for himself that the buttons had not been modified.
There were four employees involved directly in the collision, being the grievor, Br. Bowles, and Mr. Monteith on the freight train and Mr. Nichols on the yard engine.. There were three other employees involved indirectly. They were the remaining members of the Squamish yard crew, being H. W. Crowston, the yard foreman, John J. Jellis, trainman, and R. M. Pigeau, trainman. The collision occurred on a Sunday morning when the weather was sunny. Visibility was partially obscured by the curve, but that condition was known by all employees involved in the collision. The finding I must make of the freight train, being the grievor and Mr. Bowles, failed to comply with Rule 93 in the sense that they failed to maintain a lookout so as to be able to stop the freight train before it struck the yard engine.
II
The Railway conducted an investigation into the collision in accordance with the provisions of two collective agreements. That procedure was followed because the grievor, as an engineman, belonged to a different union than Mr. Bowles and Mr. Monteith. The Railway’s investigation resulted in the dismissal of the grievor and Mr. Bowles for their breach of Rule 93. They were the only two employees disciplined. Mr. Monteith and the yard crew were found to have been free of fault.
The grievor and Mr. Bowles filed grievances through their respective unions. The Bowles grievance was advanced to arbitration before arbitrator Vincent L. Ready. His award was published on November 23, 1987. Mr. Ready granted the grievance of Mr. Bowles and reinstated him with compensation for his wage loss. Thus, if the dismissal of the grievor or some lesser penalty is upheld, he will be the only employee to have been disciplined in connection with the collision.
The evidence in this dispute included transcripts of the evidence given by some of the witnesses in the hearing before Mr. Ready. In addition, there were a number of documents filed that consisted of investigative statements of witnesses interviewed by the Railway. The parties agreed that the transcript evidence was admissible in this hearing for all purposes but that I was not bound by the findings of fact made by Mr. Ready.
The facts in dispute were complicated to some degree by the conduct of a second investigation into the collision which was commenced after the dismissal of the grievor and Mr. Bowles. It was initiated on the instructions of M. C. Norris, the president of the Railway, in response to rumours that alcohol and speed had been factors in the collision. The first investigation revealed no indication of either of those factors and neither factor was relied on by the Railway to support its decision to dismiss the grievor and Mr. Bowles in the first instance. That second investigation became abortive with the death of Mr. Monteith, who died before he could be interviewed. However, alcohol and speed continued to be something of a factor in the dispute.
The alcohol allegation was that Mr. Bowles had a bottle of liquor in his possession. Emanating from that allegation were questions about whether the grievor was aware of Mr. Bowles’ alleged possession of alcohol and whether alcohol figured in the collision. No finding was made Mr. Ready in the Bowles Arbitration with respect to alcohol. Nor did he make a finding with respect to speed except that the speed of the train was the responsibility of the grievor as engineman. The speed issue consisted mainly of a suggestion that the grievor, as an engineman, was reputed to be “speeder”. No evidence of that fact was adduced. I will return to those two factors later.
Separate from the alcohol and speed issue, the Railway urged in this hearing that the facts supported a finding that the grievor reported for work on the day in question when his competence to perform his duties was either impaired or affected by lack of sleep or consumption of alcohol the night before, or a combination of both factors. It was in that context that the Railway questioned the grievor with respect to his failure to activate the emergency braking system. The grievor denied that his condition was other than normal. I will review his evidence in that regard later. At this stage it is sufficient to identify the grievor’s condition as one of the issues raised by the Railway.
III
Employees on the Railway, as indicated, are governed by various rules, the most significant of which are those contained in the U.C.O.R.. That code is in force on most if not all railways in North America. The U.C.O.R. is augmented by the General Operating Instructions and by the BC Rail Timetable, an operating document that is revised from time to time and which provides specific instructions governing the movement of equipment in the various subdivisions of the Railway.
Rule violations are acknowledged generally as being a proper basis for imposing industrial discipline on employees. The requirements with respect to disciplining and dismissing employees for rules violations were reviewed extensively in KVP Co. Ltd. (1965), 16 L.A.C. 73 (Robinson). In this dispute all of the requirements set out on p. 85 of that decision were met. In fact, it was clear that Rule 93 was well known by all employees involved in the movement of equipment on the Railway and that it was recognized as one of the most important safety rules in force in an occupation where strict compliance with rules is a vital element of safe operations.
The U.C.O.R. provided that the freight train was under the direction of the conductor, Mr. Monteith. Next in the hierarchy was the grievor has engineman. Mr. Bowles, as head and brakeman, was subject to the direction of both the grievor and Mr. Monteith. The rule setting out the hierarchy reads as follows:
106. Trains will run under the direction of their conductors. When a train is run without a conductor the engineman will perform the duties of the conductor . Conductors, enginemen, and pilots if any, are responsible for the safety of their trains and the observance of the rules and under conditions not provided for by the rules must take every precaution for protection. This does not relieve other employees of their responsibility under the rules.
When the collision occurred Mr. Monteith was in the caboose at the tail end of the train. The train, as stated was 5, 600 feet long, meaning that Mr. Monteith was located more than one mile from the head end. He was in communication with the head end by radio but it was obvious that he could not be held responsible in any direct sense for the failure to maintain a proper lookout. However, he was in charge of the train and was accountable for its movements to the extent that they were under his direction or within his control.
The discipline system in force at the time was the Brown System. That system has been in force in the railway industry in North America for many years. It is a sophisticated system but it incorporates only two components, demerits and dismissal. The escalation of penalties deemed essential to the remedial goal of progressive discipline is achieved under the system by increasing the number of demerits. Employees knew that when they reached sixty demerits, they would be dismissed.
The application of the Brown System by the Railway has been held to be subject to arbitral review under the principles set out by the prior Labour Relations Board in Wm. Scott & Company Ltd. and Canadian Food and Allied Workers union, Local P-162 [1077] 1 C.L.R.B.R. 1 (Weiler). On p. 5 of that decision the Board said:
… arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss the employee an excessive response in all of the circumstance of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?
The Brown System was seen as potentially incompatible with the principles set out in Wm. Scott & Company. See: British Columbia Railway and Canadian Union of Transportation Employees, Local #6 (Pickell) (1982), 8 L.A.C. (3d) 250. In any event, the system was not directly in issue in this dispute and it was conceded that the dismissal of the grievor was governed by the Wm. Scott & Company principles. Thus, the first question was whether the Railway had succeeded in establishing conduct on the part of the grievor that was deserving of some form of discipline. In addressing that question the Railway clearly relied on the grievor’s admitted breach of rule 93 as constituting conduct deserving of discipline.
In particular, the grievor’s failure to comply with rule 93 resulted in a collision that caused property damage in excess of two million dollars and exposed him and his fellow employees to the risk of death or serious bodily injury. Mr. Bowles was the only person injured in the collision. (He spent approximately nine months off work on WCB leave.) But the potential for more serious injury or death was clearly present and the collision would not have occurred if the grievor had maintained a proper lookout.
It was less clear whether and to what extent the Railway relied on the grievor’s alleged unfitness and Mr. Bowles’ alleged possession of alcohol as factors revealing conduct deserving of discipline separate and apart from the breach of Rule 93. Possession or consumption of alcohol at work or reporting for work under its influence are prohibited by the U.C.O.R. and the Railway’s own operating rules. Breaches of those rules are considered grounds for dismissal by themselves. The Railway did not seek in any formal sense to expand its reasons for dismissing the grievor. However, the development of the issues makes it prudent to address them in the context of the governing principles.
Returning to those principles, the position of the union was that even if there was evidence of conduct deserving of discipline, the circumstances mitigated against dismissing the grievor. For reasons I will set out shortly, I am of the view that the Railway succeeded in proving conduct on the part of the grievor that was deserving of discipline and that the real question was whether his dismissal was an excessive response to the circumstances. In Wm Scott & Company the board directed arbitrators to consider that question in light of any factors of mitigation present in the circumstances. On pp. 5 the Board said:
[U]usally it is in connection with the second question - is the misconduct of the employee serious enough to justify the heavy penalty of discharge? - that the arbitrator’s evaluation of management’s decision must be especially searching…
………………………………………………………………………………………………
The point of that over-all inquiry is that arbitrators no longer assume that certain conduct taken in the abstract, even quite serious employee offences, are automatically legal cause for discharge.
In conjunction with those comments the Board set out five aspects of mitigation that arbitrators should address. earlier in its decision the board recited with apparent approval a ten-point list of factors of potential mitigation set out in Steel Equipment Co. Ltd. (1964). 14 L.A.C. 356 @ p. 357. In this dispute the Union argued that if the conduct of the grievor was seen as deserving of any discipline, there were factors present that mitigated his conduct so as to render dismissal an excessive response. In that context it should be noted that the concept of mitigation includes factors that can mitigate the seriousness of the offence itself and those that mitigate against imposing a penalty in response to serious misconduct because of matters unique to the grievor, such as his employment and discipline record.
The question of mitigation should be assessed on the understanding that the issue in the review of a dismissal is whether the employment relationship can be restored. That question was addressed in British Columbia Railway Company and Canadian Union of Transportation Employees, Local #6, September 4, 1987, unreported. In that decision the arbitrator said as follows on p. 26:
The basic issue to be addressed in the arbitral review of a dismissal is whether the facts support a finding that the conduct of the grievor was inconsistent with a restoration of the employer-employee relationship. See: Re Raven Lumber Ltd. and International Woodworkers of America, Local 1-363 (1986), 23 L.A.C. (3d) 357 (Munrose); B.C. Telephone Co. (1978), 19 L.A.C. (2d) 98 (Gall) @ p.103 and Finning Tractor and Equipment Company Limited (1984), unreported, (McColl), as cited in B.C. Rail Ltd. and United Transportation Union, Locals 1778 and 1923 (Mazur), July 21, 1986, unreported, (Ready).
That issue requires an objective review of the facts and circumstances to determine, (leaving aside the issues of alcohol and speed), whether the conduct implies an inability on the part of the grievor to meet or maintain a satisfactory level of work performance or conduct. In Mr. Ready’s decision in the Mazur Arbitration, he cited the following extract from the decision of Mr. McColl in Finning Tractor:
The issue is not whether or not the Grievor should be given a further chance to rehabilitate himself, or whether the Employer is compelled to permit the Grievor … access to such rehabilitation, but whether of not, having regard to all of the circumstances, the employment contract is capable of restoration to the benefit of both parties. That is an objective test based upon the evidence before the tribunal charged with making the decision.
In this dispute, then, the question was whether the facts were inconsistent with a finding that the grievor, despite his misconduct, was capable of meeting and maintaining a proper standard of safe operations on the Railway. The legal burden of proving just cause reposes on the Railway throughout in any case of a dismissal said to be for cause. But where the Railway has established conduct that amounts prima facie to just cause for dismissal, an evidentiary burden arises in the individual grievor to adduce facts that mitigate against imposing a dismissal in the particular circumstances. In particular, individual grievors must establish that, notwithstanding the misconduct giving rise to their dismissal, they can be relied on to meet and maintain an acceptable standard of conduct in the future. In that sense of the abstract, one can say that where a grievor’s breach of Rule 93 results in a major collision, the onus will fall to that grievor to establish factors that support a finding that he can be relied on to perform his duties safely in the future and, in any event, that his reinstatement is consistent with the Railway’s right to deter similar misconduct. I turn now to the facts relied on by the Union to mitigate the grievor’s breach of Rule 93.
IV
The Union argued first that while the collision would not have occurred if the grievor had maintained a proper lookout, it was equally clear that it would not have occurred if a number of other employees had followed standard practices. Those failures to follow standard practice can be summarized as follows:
(1) The head end brakeman, Mr. Bowles, should have known in the circumstances that the grievor’s attention was diverted and he should have been maintaining a lookout.
(2) The head end brakeman should have been maintaining a lookout in any event.
(3) The conductor, Mr. Monteith, should have checked by radio with the yard at Squamish to determine if the main line was clear.
(4) Mr. Monteith, who did advise the yard at Squamish by radio of the time he left Garibaldi, (1015 hours), should have made it clear that the time he gave related to the tail end and not the head end.
(5) The yard crew, having been informed that the OS (overswitch) time that the train left Garibaldi was 1015 hours, should have realized before they started the switching movement that they could not complete it before the freight train arrived.
(6) The yard crew, knowing that the freight train was due to arrive, should have communicated with the train by radio to advise its crew of the presence of the yard engine on the main line.
On the evidence, the standard practice of employees was to take all of the precautions outlined above. I note in that context that the grievor said, in addition, that it was a frequent if not standard practice for enginemen to contact the yard to determine the status of the main line. He did not follow that practice on the day in question. It was clear that if any one of the several precautions had been taken, the collision would not have occurred. The Union relied in particular on the failure of Mr. Bowles to maintain a lookout. The grievor’s evidence was that as the train started down the straight stretch of track immediately preceding the curve upon which the collision occurred, he spoke to Mr. Bowles and told him, “I’m going to go through the train orders”. Reviewing train orders was a routine and necessary task performed repeatedly by enginemen in the course of a work assignment. There was nothing unusual in the grievor’s actions.
The grievor said that Mr. Bowles should have known from his comment that he was expected to maintain a lookout while the grievor’s attention was diverted to the train orders. Apparently what actually happened was that Mr. Bowles was reviewing the timetable for Squamish subdivision and was not watching ahead. The Union urged in this dispute that Mr. Bowles had conceded in his own hearing that he knew that the grievor would be reading his train orders. But, from the transcript of Mr. Bowles evidence in that hearing, it would appear that he had not heard or had not understood that comment. Following is an extract from that transcript:
Q And while you were having this discussion, Mr. Cunningham was checking his train orders, was he?
A I believe he was. I couldn’t see, you know, what he was doing there, but I had been told that he was.
Q Well, was he or wasn’t he?
A I don’t know what he was doing. I mean I can’t see what’s doing from - - - I assume that he was checking with his orders to see about number 14, but as I said before, he’s sitting behind the console, and I can’t see what he’s doing there.
The inference to be drawn is that at the crucial time neither employee was maintaining a lookout. Mr. Bowles said in his hearing that his attention was diverted for a few seconds when he commenced reading the timetable. The clear implication was that he was not watching in the period immediately prior to the collision. Mr. Bowles, as I will develop in more detail later, conceded in his own hearing that, quite apart from anything said to him by the grievor, one of his principal duties in the circumstances was to maintain a lookout. However, the evidence did not support a finding that the grievor had clearly communicated to Mr. Bowels that he was relying on him to maintain a lookout as the train approached the main part of the yard.
The grievor, as between himself and Mr. Bowles, was responsible for the head of the train and had the responsibility to ensure that it was being operated in compliance with the rules. That does not mean that the grievor’s apparent honest belief that Mr. Bowles was maintaining a lookout should be ignored as a factor of mitigation . I will review it later in that context. It is to say that the evidence did not support a finding that he had effectively delegated the task of keeping a lookout to Mr. Bowles. It would appear that train crews do develop a level of unspoken communication. There was ample evidence of that fact led by the Union from experienced employees. But that does not relieve the engineman of the obligation to ensure that a proper lookout is being maintained.
Returning to the yard crew, there were facts that should have alerted them to the immediate approach of the freight train. In particular, trains in that subdivision are preceded by a patrolman on a speeder. In this dispute, the speeder arrived just as the crew was approaching the main line in the first part o the movement of cars across the main line from one siding to another. That should have alerted the yard crew to the close proximity of the freight train and caused them to contact the train crew by radio.
Further, all members of the yard crew knew from experience that the running time from Garibaldi was approximately 45 minutes. They should have questioned the OS time instead of assuming it referred to the head end. The collision, as stated, took place at 1057 hours. If the yard crew had correctly calculated the arrival time of the freight train they would have warned the freight train of their presence by radio. In any event, if they had been following standard practice, they would have advised the freight train of their presence by radio.
V
The Railway argued that Rule 93 was reasonable having regard to the nature of operations on the Railway and that it amounted to an absolute prohibition against operating in yard limits at any speed that did not permit employees to bring their equipment to a stop within half the range of their vision. The Railway said that breaches of the rule were so serious in their implications that dismissal was a just and reasonable response regardless of the circumstances. The Railway’s argument was tied to the fact that Rule 93 is relied on by all employees as constituting their ultimate protection while working within yard limits.
The point was made in graphic terms by Mr. Crowston, the yard crew foreman, in his evidence in the proceedings before Mr. Ready. Mr. Crowston was extremely reluctant to admit any fault. He conceded that he had departed from standard practice by not communicating with the freight train but his position was that he was entitled to rely on the fact that the freight train crew would comply with Rule 93. He made that point again with respect to the fact that he made the mistaken assumption that the OS time at Garibaldi was the head end and not the tail end. Mr. Crowston said that the practice, despite the rules, was for trains to communicate the head end time so that other persons using the main line would be able to calculate when a train was due to arrive.
Nevertheless, Mr. Crowston insisted that he was entitled to rely on the fact that the freight train would comply with Rule 93 when it entered yard limits. The following exchange took place in his evidence:
Q And so the fact that the train arrived - - Number 18 arrived at 10:56 is totally consistent with the fact that it would have an OS time of 10:15 at Garibaldi, that’s exactly when you would have expected it to arrive?
A There’s a possibility.
Q And the reason is the fact that your train was out there was because you miscalculated the times and you thought you had four to five minutes longer to make the move than you really did, correct?
A I have yard limit boards there that allow me to make that move.
Q Oh, that miscalculation is relieved by the yard limit board?
A It better be.
All of the witnesses, including those whose evidence was filed in transcript form, indicated a similar understanding. Everyone is bound by Rule 93 within yard limits, everyone relies on others to comply with the rule, and the safety of everyone is at serious risk when the rule is ignored. I am in agreement with the submission that any breach of the rule would constitute a serious breach of discipline. I will defer until later a consideration of whether dismissal is justified in every case. Before doing so, I propose to deal with the allegations that alcohol or speed may have been a factor in the collision.
As stated, those allegations arose after the grievor and Mr. Bowles were dismissed. The allegations were investigated by Mr. Pysh. However, his investigation was never concluded because Mr. Monteith, the conductor died. Mr. Pysh gave extensive evidence in this hearing but did not suggest that his abortive investigation had resulted in any material change to the facts insofar as the grievor was concerned. That is not to say that the questions that caused the second investigation were not pursued vigorously by the Railway.
Statements were taken in the second investigation from all available witnesses. One of those witnesses subsequently gave evidence in the Bowles Arbitration that Mr. Bowles had been in possession of a bottle of liquor on the day in question . The grievor did not give evidence in the Bowles hearing. In these proceedings the grievor agreed that he had been told by the yard crew member after the collision that a bottle of liquor existed. But he said that he had no knowledge of its existence, either before or after the collision. Certainly no bottle of liquor was ever recovered and no other witness gave evidence of having seen it as opposed to having been told that it existed. No mention was made of the liquor allegation in the decision of Mr. Ready in the Bowles Arbitration.
Neither Mr. Bowles nor the yard crew member who said he saw the bottle were called as witnesses in this hearing but, as stated, transcripts of their evidence were filed. Mr. Bowles denied that he had possession of a bottle of liquor. Witnesses who saw Mr. Bowles said that aside from his injury he did not appear to be impaired or unfit for duty. Similarly, persons who saw the grievor at the scene of the collision offered no suggestion that he appeared unfit for duty. In short, there was no physical evidence found to corroborate the evidence of the yard crew member that a bottle of liquor existed or that either member of the head end crew was unfit for duty.
I was not informed as to whether submissions were made with respect to alcohol in the Bowles Arbitration, but Mr. Ready, who had the evidence before him, made no findings with respect to whether it had proven that Mr. Bowles had been in possession of a bottle of liquor or the significance of the liquor allegation in terms of the case against the grievor. Presumably that was because the evidence available to prove that a bottle of liquor existed did not develop conclusively in either hearing.
But that is not to say that there was any impropriety in the Railway raising the issue. The circumstances surrounding the collision were at least unusual and perhaps bizarre. On the facts an 11,000-tonne train operated by an experienced engineman accompanied by an experienced trainman overtook and ran down a yard engine in broad daylight on a clear day within yard limits where the rules and common sense required that alertness and vigilance be maintained to prevent any such collision.
The evidence invoked a picture of an engineman and trainman sitting in the cab of a mile-long freight train travelling in yard limits with neither of them maintaining a lookout and with both of them oblivious to the fact that the other was not maintaining a lookout. Even without the assertion that Mr. Bowles had possession of a bottle of liquor, the urge to seek an explanation beyond that given by the employees themselves was an expected response in the circumstances. And once the liquor assertion was made, the Railway was duty bound to investigate it. The bizarre circumstances of the collision, the fact that it occurred coincidental with the commencement of the Christmas season, the rumours that alcohol was involved and the early assertion that Mr. Bowles was in possession of a bottle of liquor, all support an obligation in the Railway to provide a thorough investigation of the allegation , both prior to and during the hearing.
Having said that, it was equally clear that the evidence in this hearing and the evidence filed from the Bowles Arbitration failed to prove that alcohol was a factor in the collision. Nor should any suspicion be permitted to linger over the proceedings in that regard. The adjudicative process exists in part to resolve such issues. The Railway, to the extent that it intended to rely on any inference that the grievor or Mr. Bowles were not in a fit condition to perform their duties on the day in question, was obligated to call the evidence upon which it relied in support of that fact and have the evidence tested and weighed.
I repeat, Mr. Ready made no finding in the Bowles Arbitration that Mr. Bowles was unfit for duty. Further, the transcript evidence filed in these proceedings did not support such a finding when read in conjunction with the evidence given viva voce in this hearing. Even if one were to accept that Mr. Bowles was in possession of a bottle of liquor on the day in question, and he denied that allegation, the evidence did not support a finding that he had consumed any of it or that the grievor was aware that he had it. Nor was there any evidence that Mr., Bowles had demonstrated any incapacity in the period before or following the collision. Here the evidence failed to support a finding that the condition and conduct of Mr. Bowles on the day in question was anything other than normal.
As stated, further questions were raised as to whether the grievor had received proper rest and whether he had been consuming alcohol to excess on the evening before the accident. They also suffered from a deficiency in evidence. The Railway, in urging that the grievor was not fit for duty, adduced evidence of a tape recording of three telephone conversations made between the grievor and the Railway’s crew dispatcher on the evening of December 21 and early morning of December 22. All conversations with the crew dispatcher are recorded. The first conversation was at 2357 hours (11:57 p.m.) on December 21. On that occasion the grievor was seeking the telephone number of his brother who is an employee of the Railway and who was located at Fort St. John. The grievor explained that he lived with his daughter who had gone to visit relatives for the Christmas season, taking with her a book containing family telephone numbers. It was for that reason that he contacted the crew dispatcher to obtain the telephone number.
The second call was made by the grievor at 0416 hours (4:16 a.m.) on December 22. In that call the grievor inquired whether there was a work assignment for him that day. He was informed that he would be called at 7:00 a.m. for a relief assignment. The third call came from the dispatcher to the grievor at 0558 hours (5:58 a.m.). the crew dispatcher advised the grievor that he would be working a relief assignment in which he, Mr. Monteith and Mr. Bowles would be relieving the prior freight train crew at McGuire. The actual relief point, as indicated, was a highway crossing at Brandywine Falls. It is a point between McGuire, which is located at Mile 67.2 from North Vancouver, and Garibaldi, which is located at Mile 59.5.
In addition to the tape recording, transcripts of the three conversations were filed in evidence. The Railway invited me to find from the grievor’s tone of voice on the tape that he was suffering from fatigue, the consumption of alcohol or a combination of both factors. However, I was not able to draw any inferences from the tape recording. Certainly the transcripts did not disclose any apparent lack of acuity or comprehension on the part of the grievor. The transcript of the last telephone call illustrates the point.
That conversation, as stated, was initiated by the crew dispatcher, who telephoned the grievor to advise him of his pending assignment. The grievor said that he was awake when the call came, having awakened prior to his call at 4:16 a.m. and having remained awake. The tape recording disclosed that there were several rings before Mr. Cunningham answered the telephone. He said that he was in the shower when the call came. The transcript of the conversation commences with the grievor answering the telephone and it reads as follows:
Cunningham: Hello
Crew Office: Hello Bard
Cunningham: Yah!
Crew Office: Yah! Crew Office Brad, relief this morning for 7:00 o’clock looks like McGuire.
Cunningham: Yah! Oh! McGuire eh!, no problem, okay thanks a lot.
Crew Office: Okay 7:00 o’clock.
Cunningham: You bet.
Crew Office: Thanks, bye.
The grievor gave an account of his movements in the hours before his telephone calls with the crew dispatcher. He said that he had arrived off a work assignment the previous day at approximately noon. He booked for rest and slept for three or four hours, arising in the early evening. He went out and had a small quantity of beer at a local pub, returning home at approximately 2200 hours (10:00 p.m.). He spent the next two hours watching television and reading before telephoning to the crew dispatch office to obtain his brother’s telephone number. He then went to bed, waking at approximately 4:00 a.m., when he made his second telephone call to the crew dispatch office.
The grievor said in his evidence that he had received ample rest and that he was under no disability or impairment when he commenced the trip to Brandywine Falls. In order to accept the submission of the Railway it would be necessary for me to reject the grievor’s sworn testimony. I repeat that reporting for duty while under the influence of alcohol is a serious breach of the rules. Hence, the finding urged by the Railway would require proof to a high degree of probability because of the nature of the allegation and the inherent improbability that an experienced Railway employee would report for work in a condition that violated the rules and thus exposed him to dismissal. Further, I must concluded that it is inherently unlikely that a responsible Railway employee would expose himself and his fellow employees to the dangers associated with reporting in such a condition.
In order to disbelieve the grievor it would be necessary for me to draw inferences from the circumstances, such as the sound of his voice on the tape recording, and accept those inferences over his sworn testimony. The evidence given by the grievor was not improbable in the context of the remainder of the evidence. In particular, no allegation that he had been in an unfit condition was made during the course of the original investigation of the circumstances. The grievor was seen and interviewed by management officials and others immediately following the collision and there was no intimation that he was perceived as being in an unfit condition in those encounters. Hence, there was no factual basis for rejecting his evidence that he was fit for duty on the day in question and that he had not received adequate rest. In summary, I am of the view that the only conduct deserving of discipline that the Railway succeeded in proving against the grievor was his failure to comply with Rule 93.
VI
The Railway argued that the breach of Rule 93 was itself sufficient to sustain the dismissal. As stated, it based that submission on what it saw as an overriding need to deter employees with respect to any breaches of the rule because of the devastating potential inherent in such breaches. In support of its submission the Railway relied on a prior decision between the Railway and another of the unions in the multi-union bargaining unit. In that decision, British Columbia Railway and Canadian Union of Transportation Employees, Local 6 (Janzen Arbitration) , July 15, 1985, unreported, the arbitrator cited arbitral authority for the proposition that deterrence can sustain a dismissal where the misconduct is extremely serious and where there is a compelling need to discourage its repetition.
The subject of deterrence was discussed in another decision between those same parties, being British Columbia Railway and Canadian Union of Transportation Employees’, Local 6 (1983), L.A.C. (3d) 233. That decision cited the reasoning of Prof. Burkett and Prof. Adams for the propositions that, “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”. Prof. Burkett had an opportunity to review that general proposition in a recent decision, Re Regional Municipality of Ottawa-Carleton and Canadian Union of Public Employees, Local 503 (1985), 18 L.A.C. (3d) 292. In that decision he said as follows on p. 299:
The union nominee states in his addendum that deterrence is not a proper consideration for meting out discipline in a labour relations setting governed by a collective agreement and suggests that the majority, in the interests of deterrence, has condoned the employer “making an example” of this employee. I beg to differ. Where an employee commits a capital offence such as theft, assault or sabotage, the employer has a legitimate interest in fashioning a response that will serve as a warning to others that the misconduct was serious and will not be condoned by the employer.
The Railway said that the reasoning in those decisions has application to a breach of Rule 93. In particular, it took the position that a breach of safety rule that had implications in terms of serious property damage or risk to the lives and safety of employees was a serious offence in the context contemplated in those authorities. In that regard the Railway referred to the following comments made on p. 26 in the Janzen Arbitration:
It would be difficult to find an offence which more particularly invites that reasoning than a circumstance where an employee is careless or negligent in a manner which exposes himself and other employees to a risk of death.
The Railway’s position was that dismissal was the only effective deterrent in such circumstances. That submission must be assessed in light of the Wm. Scott & Company principles which hold that conduct, regardless of how serious, should not be viewed automatically as just cause for dismissal. That is not to say that breaches of Rule 93 would never be cause for dismissal. A deliberate breach of the rule might very well be cause for dismissal. Obviously there can be a range of conduct that constitutes a breach of the rule ranging from recklessness to inadvertence. I am of the view that an important factor in reviewing a dismissal imposed in response to a breach of the rule is the nature of the breach. As stated, the essential question in an arbitral review of a dismissal for breach of a safety rule is the extent to which an employee who has breached the rule can be relied on to work safely in the future. Obviously an employee who has been reckless in his disregard of the rule is not a likely candidate for rehabilitation of the relationship. The same inference does not necessarily arise with respect to employees who have been negligent. The law makes a distinction between recklessness and negligence. Both involve a departure from an acceptable standard of care, but recklessness involves conduct that the perpetrator knows or ought to know involves an immediate risk. Negligence, on the other hand encompasses a spectrum from carelessness to mere inadvertence.
There is, as stated, a pronounced difference between recklessness and negligence and the manner in which they are treated in the law. A discussion of that difference occurs in the decision of the Supreme Court of Canada in O’Grady v. Sparling [1960] S.C.R. 804, 33 C.R. 293, 33 W.W.R. 360, 128 C.C.C. 1, 25 D.L.R. (2d) 145. On p. 208, speaking for the majority, Judson, J. adopted an extract from the 17th edition of Kenny’s Outlines of Criminal Law, including the following passage which is apropos the submissions made and issues raised in this dispute:
The difference between recklessness and negligence is the difference between advertence and inadvertence; they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence.
The distinction made there can be applied to breaches of Rule 93 where an employee may act recklessly in breach of the rule as compared with an employee who acts in breach of the rule but not in any deliberate assumption of risk. There is no distinction in industrial discipline equivalent to the distinction between strict liability legislation and the criminal law. (Although it seems clear that deliberate breaches of Rule 93 could, in some cases, sustain criminal charges.) But arbitral jurisprudence does recognize that the particular facts in a breach of a safety rule can mitigate the act in an application of a rationale similar to that which distinguishes between and negligence. That is, the extent to which the facts imply that particular grievors knew or ought to have known that their actions involved risk to the lives or safety of persons or damage to property will determine the gravity with which their misconduct is to be assessed in terms of their reliability in the future.
In that context, care must be taken to understand that a breach of the rule is not invested with the strictures of presumed recklessness simply because it may have involved carelessness or that the consequences were , in retrospect, foreseeable. I make that observation in response to the Railway’s observation that the law makes a presumption of fact that persons will be taken to have intended the reasonable and probable consequences of their acts. That presumption will not operate to make a careless act a reckless one unless there is evidence of deliberate or conscious assumption of risk in the sense, at the least, of a marked departure from an accepted standard.
The fact that carelessness does not amount to recklessness was considered in the context of the civil law in Canadian Indemnity Co, v. Walken Machinery & Equipment Ltd. [1976] 1 S.C.R. 309. At issue in that case was the public policy implications of a finding that an act of negligence had been criminal in nature. In assessing that submission Pigeon, J., speaking on behalf of the court, said as follows on p. 313:
As Judson J. said in O’Grady v. Sparling, at p. 808: “It is a difference in kind and not merely one of degree”.
There the court contemplated that the mere fact that there was negligence in particular circumstances did not justify imposing the sanctions upon it that would be imposed if it was proven to have been reckless or deliberate. Included within the scope of a deliberate act of negligence was the presumption of fact arising in the law that people intend the probable consequences of their acts. Hence, the fact that circumstances, when viewed in hindsight, are capable of supporting an inference that a particular result should have been foreseen is not sufficient to invest an act of carelessness with a presumption that it was reckless.
One must be careful in importing principles of law into the unique field of arbitral jurisprudence, but those principles can be applied in appropriate circumstances to guide arbitrators in the fashioning of an adjudicative response to particular facts. With that caution in mind, I am of the view that it is appropriate in the review of a dismissal imposed in response to a breach of Rule 93 to weigh the nature of the breach and consider its implications in terms of whether a particular grievor can be relied on to maintain a proper standard of safety in the future.
Here the finding I must made on the facts is that the grievor honestly believed that Mr. Bowles understood that he was required to maintain a lookout and believed that he was maintaining a lookout in the circumstances preceding the collision. In short, there was no implication that the grievor had deliberately placed his train at risk or that he was conscious of the fact that he was in breach of Rule 93. In the same vein, it was clear that he was careless or negligent in the sense that he did not take adequate steps to ensure that a proper lookout was being maintained.
In reaching that conclusion, I agree with the submission of the Railway that the fact that other employees may have departed from standard practices which had developed on the railway or that Mr. Bowles was in breach of Rule 93 was irrelevant to a determination of the dispute, either in a consideration of whether the grievor was himself in breach of the rule or as factors of mitigation in reviewing the circumstances. I accept the submission of the Railway that the grievor was not entitled to rely on anyone else to relieve him of the obligation to comply with the rule. In fact, if the grievor had acted in deliberate breach of the rule because he was relying on others to follow standard practices, his conduct would constitute a more serious breach of the rule than the facts otherwise revealed.
Nor did the finding that the grievor was unaware that he was acting in breach of the rule excuse his failure to ensure that a proper lookout was being maintained. But that fact did mitigate the circumstances in terms of the implications with respect to whether the grievor can be relied on to operate safely and in compliance with the rules in the future. An isolated and inadvertent breach of a rule is not inconsistent with a restoration of the employment relationship. That same conclusion was reached in the Janzen Arbitration. On p. 27 that arbitrator said as follows:
I repeat my view that the conduct of the grievor, in the absence of mitigating factors, would constitute just cause for dismissal. Here the factors of mitigation include a perception that the incident was isolated and was a departure from the usual conduct of the grievor. The evidence was that the grievor had a good safety record and a good attitude towards safety.
The work and discipline record of the grievor in this dispute indicated that this incident was a departure from his usual standard of work performance. His work and discipline record were excellent, a fact recorded somewhat ironically in a letter he received from the Railway on one of only two occasions that he was disciplined in more than twenty years of services. The letter was dated August 20, 1985 and it reads as follows:
Your performance record has come to the attention of management as a result of “Failure to report for duty July 31, 1985, on Train No. 1”. With your considerable experience as an engineman and employee of the Company, plus your excellent work record has not gone unnoticed. You are acknowledged to be not only an above average employee but a conscientious one. Your contribution to the Company by showing these characteristics is, needless to say, greatly valued. While normally a matter in failing to report for duty would result in discipline being assessed, the company has decided not to do so in view of your otherwise excellent attention to this matter. We do not need to remind you of the seriousness of failing to report for duty, however, we are confident there will not be reoccurrence.
In summary, the facts giving rise to the collision mitigate its seriousness in the sense of disclosing that the grievor did not act consciously in breach of the rule. Further, his pervious record and his assessment as an employee by the Railway were factors that support a conclusion that the breach of the rule was an isolated incident that did not imply an inability to perform satisfactorily in the future.
VII
The Union urged that there was another factor of mitigation arising from the circumstances. That factor was the existence of what the Union described as a “tradition” in the industry whereby employees involved in collisions resulting from a breach of the operating rules would, in effect, be given a lengthy suspension and then reinstated without compensation but without loss of seniority.
The application of the tradition varied in response to particular circumstances but there was no question about its existence. Presumably it arose from the fact that the Brown System did not provide for suspensions and therefore left employers with the choice of dismissing employees in the face of serious misconduct or retaining them in employment and imposing demerit points upon them. In any event, the existence and general structure of the tradition was addressed by D. M. Pysh, the Railway’s manager of labour relations. In his evidence he said as follows:
Q Mr. Pysh, what can you tell Mr. Hope about your understanding as manager of Labour Relations of the enginemen’s perception of them being dismissed and staying dismissed?
A Generally in North America there has been a tradition over the years technically with respect to rules violations and engineman dismissed and not grieving his case to the arbitration stage would be reinstated after a fairly lengthy suspension, or not suspension but a fairly lengthy - -
Mr. Robertson: That was a Freudian slip there, Mr. Pysh.
A It most certainly was. After a fairly lengthy period of dismissal;, generally running from one to two years.
The Arbitrator: One to two?
A To two years. Usually in the instances where the employee was reinstated, there is a valued employee, one with a reasonably good discipline record. If the case was progressed through the grievance steps to arbitration, generally the case was lost at arbitration, that individual would stay dismissed.
Mr. Pysh said that the tradition was not formalized in any sense or reduced to writing. He said, in effect, that its application in the ordinary course arose on the level of tacit understanding. That is, an employee who committed a breach of the rules that resulted in a collision would be dismissed, a grievance would be initiated on his behalf and the grievance would be held in abeyance. Ultimately a union official would approach management to petition the reemployment of the employee. The employee would then be restored to his employment without loss of seniority.
Mr. Pysh gave evidence of a number of instances in which employees who had been dismissed for rule violations by the Railway were reinstated to their employment. He agreed that he could not recall, either from his own knowledge or his research of the records of the Railway, of more than one instance of an employee who had been dismissed for a violation of the operating rules in a collision who was not subsequently reinstated to his employment. He said he thought there had been one such occasion but he could not recall the circumstances and he did not say that the single instance was inconsistent with the tradition as it had been explained.
Mr. Pysh agreed further that there were at least three instances in which employees of the Railway had been returned to service in apparent response to the tradition after six months, twelve months and two years respectively. I don’t propose to review those prior incidents in any detail, although they were addressed at some length in the evidence. It was quite apparent that each incident differed as to its facts. However, to the extent that any pattern was discernible, the prior approach of the Railway to matters of this kind was to keep the employee out of service for a period from six months to two year. In making that observation I note that the evidence disclosed that not infrequently the bargaining weight of the Union was used to obtain the reinstatement of an employee, usually during collective bargaining when the Union leverage had a ready application.
The existence of the tradition was well known to the employees. It was apparent that the expectation of the grievor in the circumstances was that if he and the other employees were found to have been in breach of Rule 93, they would be removed from service for two years. Following is an extract of the grievor’s evidence with respect to a discussion he had at the scene of the collision with other employees:
Q Yes. And that it was during that conversation that you indicated to Mr. Jellis that you thought you were going to be out of work for two years?
A If he’s going to be a walking tape recorder, he should be accurate. What I said there was that we might be out for two years, and that included the yard crew. That’s everybody. That’s shop talk. I meant everybody. I didn’t say I; I said we. That was including Mr. Jellis.
The Railway submitted that it was not bound by that “tradition” and that it had been terminated in the wake of the collision giving rise to this dispute. I repeat that the collision was investigated in accordance with the procedure for such investigations set out in the two collective agreements by Mr. Shannon, the hen manager of operations and maintenance. I am of the view that the Railway, having vested him with ostensible authority, was bound by his decision.
As stated, in the period following the collision rumours began circulating that liquor and speed had been involved in the incident, causing Mr. Norris to instruct Mr. Pysh to reopen the investigation. The precise date of those instructions was not available, but the fist interview conducted by Mr. Pysh in the new investigation appears to have been done on February 14, 1986, approximately five weeks after the previous investigation had been completed and the grievor and Mr. Bowles had been dismissed. In commenting on the initiation of that second investigation, Mr. Pysh said as follows:
Q When did you become first involved with respect to discipline or the investigation relating to this incident?
A It was after the head-end brakeman and the engineman had been dismissed. Mr. Norris called me into his office and advised that myself and Dennis Sackett, and Ed Wilcox would re-open the investigation into the collision because of rumours that had been circulating regarding alcohol being involved in the accident and speed.
Q And what was your mandate, Mr. Pysh?
A My mandate was to speak to anyone and everyone that I could regarding what their knowledge was of the collision and the events leading up to the collision.
He said coincidental with those instructions, which presumably came in February of 1986, that he was instructed by Mr. Norris that the tradition with respect to the reemployment of employees dismissed for rule infractions involving collisions was to be discontinued. In explaining the decision to dispense with the tradition, Mr. Pysh said as follows:
Q Did he [Mr. Norris] explain to you what process B.C. Railway had gone through to arrive at the decision to break with tradition?
A I believe that he was becoming more and more concerned with the amount of accidents that were taking place over the last ten or twelve years where negligence on the part of the employees was involved for no apparent reason. He wanted to bring home to people that it has got to stop.
That decision was not communicated to the Union for approximately one year. It was communicated when Edward Patenaude, the Union’s general chairman, was informed by a Railway official that the grievance file don behalf of the grievor was out of time. The grievance had been filed in a timely fashion but the Union had not pressed it, preferring to await the outcome of the Bowles Arbitration. The last document filed in evidence with respect to the grievance was a letter to the Union dated March 10, 1986 from the Railway ‘s then manager of operations and maintenance, J. C. Trainor. In that letter he advised the Union that they should pursue the grievance in accordance with the grievance procedure provisions of the collective agreement.
Mr. Patenaude said that he had meetings with Mr. Trainor from time to time thereafter during which Mr. Trainor said that the grievance should be left in abeyance. The matter came to a head, he said , when Mr. Trainor reversed his position during a meeting in March of 1987 and advised the union that the time limits had run out on the grievance. That position led ultimately to a meeting with Mr. Norris. Mr. Patenaude said that in that meeting Mr. Norris made it clear to the union that the tradition was at an end. He said Mr. Norris also indicated with a degree of emphasis that the tradition would not be followed in this dispute and that he did not favour the reemployment of the grievor and Mr. Bowles.
On those facts, the Union submitted that the Railway was seeking unilaterally to change an approach to discipline that it and the railway industry had pursued for many years. The Union’s submission, in effect, was based upon one of the mitigation criteria required to be addressed by the Labour Relations Board in Wm. Scott & Company. That criteria was expressed by the Board as follows on p.6:
(v) Is the discharge of this individual employee in accord with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment (an issue which seems to arise particularly in cases of discipline for wildcat strikes)?
The submission of the Union was that the proposed departure from the tradition was contrary to the policy, adopted by the Railway in similar cases over the years. The Union urged that when the grievor was dismissed by Mr. Shannon, he was dismissed with the same tacit understanding that had always prevailed in such cases that he would be reemployed after a suitable period of dismissal. In support of that understanding, the Union filed in evidence an extract form the records of the Railway prepared by Mr. Shannon on January 8, 1986, being the date the decision was made to dismiss the grievor. The dismissal record includes what is described as the “rehire code”. The form contains the following four possibilities with respect to the rehire potential of an employee:
1. Yes
2. No
3. Provisional
4. Probation
Mr. Shannon indicated, “yes”, on the grievor’s form, an answer the Union took to mean that the grievor, even at the time of his dismissal, had been approved for rehire by the very official who conducted the investigation into the circumstances surrounding the collision. I should note by way of aside that the handling of the investigation by Mr. Shannon became controversial and was believed by Mr. Pysh to have figured in his subsequent dismissal from the Railway. I will return to the significance of the “tradition” later.
VIII
The final matter for consideration is the decision in the Bowles Arbitration and its effect on the case against the grievor. The decision of Mr. Ready must be considered in two respects. First, the principles enunciated by the former Labour Relations Board in Board of School Trustees, School District No. 57, Prince George and Int’l Union of Operating Engineers, Local 858 [1977] 1 C.L.R.B.R. 45 (Weiler) @ p.50, have application in the sense that the Bowles Arbitration dealt with the same subject matter as this dispute. Secondly, as noted earlier, there is an arbitral principle that an employer must be consistent in the discipline it imposes and I am of the view that some pressure exists to ensure that arbitral reviews of discipline have a similar measure of consistency where the same incident is at issue.
This dispute is unique in my experience in the sense that the employees involved were represented by separate unions and separate arbitrators were selected to review the disciplinary penalties imposed. In my view it is important that this decision remains sensitive to the need to maintain consistency in the application and review of disciplinary decisions involving the same incident. Having said that, I note immediately that the material facts differ substantially as between the grievor and Mr. Bowles, a fact noted by Mr. Ready. He concluded that Mr. Bowles as head end brakeman was neither in charge nor operating the train at the material time. On that basis he concluded that absolving the conductor, Mr. Monteith, from responsibility for the collision rendered the dismissal of Mr. Bowles discriminatory within the context of the arbitral authorities.
However, Mr. Ready distinguished the facts as between Mr. Bowles and the grievor. The parties agreed that I was not bound by his findings of fact, but I note the following observation made by him on p. 17:
In accordance with the U.C.O.R. generally, all members of a train crew have responsibility for the train’s operation. But it must be emphasized that the Engineman is the person who is actually in control of the train’s speed and therefore in a practical sense he has the primary onus for ensuring adherence to Rule 93 (i.e. the Conductor is in the rear of the train and the head end Brakeman is not in “the driver’s seat”.
Earlier in his reasons Mr. Ready concluded that all members of the freight crew were in breach of Rule 93. On p.15 he said:
Notwithstanding the foregoing, it must be remembered that the crew of train #18 had a primary responsibility under U.C.O.R. 93, above, to have sufficient control of their train so that they could stop within one-half of the range of vision. The main purpose of the rule is to be able to cope with the unknown. Irrespective of the contributing factors by the yard crew referred to above, there was a significant lack of judgement on the part of the crew of train #18 which resulted in the collision. I find that Crew #18 did contribute to the accident by not adhering to Rule 93. The clear onus was on Crew #18 to be under control at all times within yard limits just as the onus is on the yard crew to be under control within yard limits. Crew #18 were obviously not in control pursuant to U.C.O.R. 93.
That finding was amply supported in the evidence adduced before him and filed before me in transcript form. Following are extracts taken from the evidence of Mr. Bowles:
271 Q Yes. And what were you doing then besides occupying that chair?
A Well, I would be watching ahead, and if there was any switches further down in the yards that had to be line forced, or anything of that nature.
272 Q Yes?
A Doing what a brakeman does.
273 Q Yes? Anything else?
A No.
274 Q So what a brakeman does and what you job was to watch, right?
A That’s right.
279 Q And your job from the time you sat down until that train got into the yard and stopped was to keep a look out?
A That’s right, front and back. And watching for the train itself, that here was no defects in it.
389 Q And you know that it’s the head-end brakeman’s responsibility if the engine was going too fast in the yard limits to tell him that?
A That’s right.
427 Q Yes? And that vision is head-end vision?
A Yes.
428 Q Yes. And your sole responsibility and job at that time after coming off the Mamquan Bridge was to keep a look-out?
A Not my sole responsibility, no.
429 Q No? You had other responsibilities, didn’t you?
A Sure.
430 Q To tell Mr. Cunningham to slow down if he was going too fast?
A If I thought he was, yes. Also to watch the train.
431 Q and rule 93 is intended to protect against all eventualities, isn’t it?
A It would appear to be, yes.
437 Q And while he has control of the throttle you provide that second set of eyes to keep a look-out?
A Yes.
525 Q And you weren’t at fault?
A Well, the way that rule is written, 93, it’s black and white. I was on the train , I suppose I violated rule 93, according to that.
In short, Mr. Bowles, by his own admission, was required to maintain a lookout and had not maintained a lookout at the critical time. Mr. Ready did not reinstate him on the basis that he was not in breach of Rule 93 or that being in breach of Rule 93 was not conduct deserving of discipline. Mr. Ready, as stated, made his finding on the basis that the Railway had failed to impose discipline on the conductor, Mr. Monteith. He said as follows on p.15-16:
The most puzzling and troubling aspect of this question is that if, as the Employer alleges in its reasons for termination given to the grievor (set out above), the grievor violated rule 93, then why did the Conductor of this crew not receive any discipline? As pointed out earlier, it is the Conductor who is in charge of the train and in his absence, the Engineman. In my view, the most that the grievor can be guilty of, in the circumstances of this case, is not applying the emergency brake which was located on his side of the engine. He did, however, react. His evidence is that when he noticed the yard crew engine he immediately alerted the Engineman of train #18 who, for whatever reason, appears not to have applied the emergency brake …
………………………………………………………………………………………………
In light of all the circumstances of this case, I find that as the Conductor was not disciplined for wrongdoing for the movement of the train, likewise the grievor must be exonerated of wrongdoing.
Apparently Mr. Ready concluded that Mr. Bowles’ failure to maintain a lookout was not an action for which he could be held accountable independent from the accountability of the grievor as engineman and Mr. Monteith as conductor. Mr. Ready also appeared to have concluded on the facts before him that the question of what speed constituted restricted speed in given circumstances was one over which the grievor as engineman had direct control. I repeat for convenience a portion of the extract from Mr. Ready’s decision that was relied on by the Railway to distinguish the conduct of the grievor from that of Mr. Bowles. On p.17 he said:
But it must be emphasized that the Engineman is the person who is actually in control of the train’s speed and therefore in a practical sense he has the primary onus for ensuring adherence to Rule 93 (i.e. the Conductor is in the rear of the train and the head end Brakeman is not in “the driver’s seat”.
Mr. Ready did not have the advantage of hearing the evidence of the grievor. On the facts before me the speed of the train was only an incidental factor in the collision. That is, the evidence did not disclose that the train was being operated at an excessive speed for the circumstances or that its speed was excessive in terms of normal operating conditions. The train was expected to travel the distance from Garibaldi to Squamish in 45 minutes. If anything, it took longer than 45 minutes. When the train left Garibaldi, the head end was approximately five minutes ahead of the tail end. Assuming a trip time of 45 minutes, the head end would have arrived at Squamish yard at between 1055 hours. Estimates vary, but the collision occurred at either 1056 or 1057 hours. In short, the train, was running within the average speed of freight trains for the run from Garibaldi to Squamish.
As noted previously, one of the rumours giving rise to the opening of the second investigation was a suggestion that excessive speed was a factor. The facts adduced in evidence refuted that suggestion. Mr. Bowles said in his evidence that he was obligated and would have warned the grievor if he thought the speed was excessive. Statements taken from Mr. Monteith in the first investigation addressed that issue and he was reported as having denied any excessive speed. The grievor was questioned and said his speed was normal for the circumstances. Finally, as noted, the time required to travel from Garibaldi to Squamish was normal or slightly longer than normal.
The only inference available to be drawn on the evidence was that speed per se was not a factor in the collision. The collision occurred because of the failure to maintain a lookout, not because it was going too fast to stop within half the range of the vision of the crew. The same can be said with respect to the failure to activate the emergency braking system. That failure may have affected the severity of the collision, but the evidence did not support a finding that activating the emergency brakes when the yard engine was finally seen would have avoided the collision.
In the result, the finding made by Mr. Ready was not inconsistent with the finding I made in this hearing that the cause of the collision was the failure of the head end crew of the freight train to maintain a proper lookout as the train entered Squamish yard. That failure was a breach of Rule 93 and thus constituted conduct deserving of discipline on the part of the grievor. The basis upon which Mr. Bowles was reinstated was not available to the grievor. Whatever diminished responsibility existed with respect to Mr. Bowles, the grievor had direct responsibility to ensure full compliance with Rule 93, including the maintenance of a proper lookout. I was not required to adjudicate on the conduct of the grievor. But once again, the decision of Mr. Ready was not inconsistent with the finding dictated by the evidence adduced before me.
Mr. Bowles acknowledged in his transcript evidence that he was under an obligation to maintain a lookout. The fair inference on the evidence was that he was not maintaining a lookout while his attention was diverted to the timetable. In short, his actions and his lack of communication paralleled that of the grievor. But his failure to maintain proper communication and a proper lookout were matters to be addressed by Mr. Ready and, in any case, did not relieve the grievor of his obligations under Rule 93. Nor could the fact that the conductor was not disciplined be seen as an act of discrimination with respect to the grievor.
IX
I repeat my earlier view that breaches of Rule 93 could involve a broad spectrum ranging from conduct amounting to criminal negligence to momentary inadvertence. I agree with the Railway that events themselves will determine whether there has been a breach of the rule. That is, if a collision occurs in circumstances where restricted speed applies, the fact that the equipment failed to stop short of a collision will imply that the operator of the equipment, for whatever reason, was not operating so a s to be able to stop within half the range of his vision. In such circumstances, the evidentiary burden will shift to the employee to establish that the failure to stop was not a breach of the rule. In this dispute the grievor’s explanation did not meet the prima facie breach of the rule established by the Railway.
But the evidence did disclose that the breach arose by reason of carelessness and a failure to communicate, not recklessness. In seeking to place a breach of the rule within the spectrum from recklessness to inadvertence, a logical first step is to determine whether there was a deliberate assumption of risk. One assumes that it would require unique circumstances to excuse a deliberate breach of the rule and that the reasonable expectation would be that dismissal would be deemed appropriate in these circumstances. It seems apparent that an employee capable of a reckless disregard of fundamental safety rules is a poor candidate for reinstatement to an employment relationship where a proper attitude to safety is an essential qualification in an employee.
Here the clear implication was that the breach of the rule, while careless, was not deliberate or willful. A next logical step is to fix the nature of the breach within the spectrum of negligence or carelessness. While there are no degrees as between recklessness and negligence, there are clearly degrees within those separated components. Just as a deliberate breach of the rule may be more or less flagrant with respect to the degree of risk incurred, the want of care implicit in a negligent or careless breach of the rule can vary. Here the evidence indicated that the negligence of the grievor was in the nature of an oversight or a failure to communicate effectively. The grievor was not conscious of the breach of the rule, although he clearly lacked diligence in ensuring that a proper lookout was maintained in circumstances where the imminence of danger was demonstrated only too graphically by the passage of events.
Accepting that a reckless breach of the rule would sustain dismissal but that a careless breach might respond to the concept of mitigation, it becomes necessary to consider the significance of the “tradition”. I am of the view that it would be contrary to well established arbitral principles governing the imposition and review of industrial discipline for the Railway to depart from its prior approach to such offences. That is not because the Railway is not free to change its disciplinary policies and programs where those changes are not in breach of any provision of the collective agreement. It is because the Railway should not initiate changes until employees have been put on notice with respect to them.
In summary, I am of the view that the breach of the rule by the grievor arose by inadvertence and that there were factors present that mitigated against imposing the extreme penalty of dismissal upon him. In particular, he had a lengthy work history in which he had operated in apparent safety and in apparent compliance with the rules. The breach was an isolated incident that did not defeat the presumption arising from that long service that the grievor was capable of meeting and maintaining an acceptable standard of safety. Hence, I am of the view that dismissal was an excessive response.
In considering the question of a substitute penalty, I am of the view that the Railway’s traditional approach to such offences and the range of penalties imposed should guide me. Within that range, I am of the view that a suspension without pay for a period of one year would have been an appropriate penalty. The grievor’s breach of the rule was serious in terms of his failure to ensure that a lookout was maintained at a critical time. It was also serious in terms of its consequences. Further, I consider the factor of deterrence to be of singular importance in an offence involving a breach of Rule 93. I do not agree that deterrence is not a proper factor to weigh in assessing penalties in industrial discipline. Even in cases where the departure from an appropriate standard is seen as inadvertent, it must be acknowledged that an obligation to take care is an obligation that responds to discipline in the sense of emphasis on the importance of the obligation.
I can’t conclude in common sense or on the arbitral authorities that deficiencies in acceptable standards of performance cannot be redressed by the use of discipline. One must presume that where employees are made aware of the need to remain alert and attentive, they will approach their duties with a sense of the importance of the importance of that requirement. For example, one can presume that the grievor will never in future fail to ensure that a proper lookout is maintained or that he would have failed in that regard if the consequences of such a lapse have been brought home to him in the graphic terms that attended this dispute.
Where the stakes are high as those at risk in Rule 93, the use of heavy penalties is not conceptually at odds with the principles of industrial discipline, the goal of which is to ensure that a proper standard of work performance is met and maintained. In that context, a suspension of one year should be sufficient to emphasize the importance of the rule, both to the grievor and to other employees. In selecting that penalty I note that previous penalties ranged from six months to two years before reinstatement was effected. The pattern of reinstatement, on the evidence, appeared to have arisen as much in response to the bargaining opportunities and strength of the union as in response to any analysis of the offence. But, accepting that two years before reinstatement was considered appropriate in the most serious of cases, a one-year suspension would appear to respond to the circumstances present in this dispute.
In imposing the penalty in this dispute it is important to note that the Railway has initiated changes in its disciplinary structure. The penalty I selected reflected the Railway’s previous approach. The Union has been put on notice that the Railway will not be bound by the “tradition” in future. This award should not be read as binding the Railway to a particular disciplinary pattern in future disputes. Subject to that rider, the grievance is granted in part, and the grievor is entitled to be reinstated to his employment without loss of seniority and to receive compensation for his lost wages during his time off work in excess of the period of suspension. I will retain jurisdiction to assist the parties in calculating compensation if that becomes necessary.
Dated at the City of Vancouver, in the Province of British Columbia, this 6th day of January, 1988.
H. ALLAN HOPE, Q. C. - Arbitrator