AH 268

 

 

 

BETWEEN:

 

CANADIAN UNION OF TRANSPORTATION EMPLOYEES,

LOCAL NO 6

 

(the ”Union”)

 

 

AND

 

BRITISH COLUMBIA RAILWAY

 

(the “Railway”)

 

 

 

 

 

 

 

 

Sole Arbitrator:       H. Allan Hope Q.C.

 

 

 

 

 

 

 

 

 

 

(No title page with original)

AWARD

I

            The union alleged that the grievor in this dispute, Barrett Ervin, had been demoted without just cause from his position as section foreman at Exeter. The employer operates a railway in British Columbia and Exeter is one of the territorial sections into which the rail line is divided for purposes of track maintenance. The grievor had been a section foreman for approximately thirty-five months spread over a period of seven years, thirty-three of which were at Exeter. He was first appointed as a foreman on July 4, 1979 and was demoted on November 4, 1986 in circumstances I will relate shortly.

 

            The railway said that the demotion was non-disciplinary and was imposed in response to the assessment of management that the grievor was not able to carry out the duties of a section foreman. Its alternative position was that if the demotion is seen as having been an act of discipline, the grievor’s performance as foreman justified that response. The facts were unusual in the sense that the initial demotion imposed on November 4, 1986 was for one year. It was then made permanent. The railway’s position, in effect, was that a permanent demotion was justifiable because the grievor was incapable of meeting the work standards required of a section foreman.

 

            The union’s position was that the railway was required to show just cause for the demotion, whether it was seen as disciplinary or non-disciplinary, and that the railway had failed to discharge that onus. In any event, said the union, if the grievor’s performance is seen as having fallen below an acceptable standard, then the railway failed to take the steps necessary to advise the grievor that his performance was below an acceptable standard and to apprise him of the fact that his position as section foreman was in jeopardy if his performance did not improve.

 

            The railway’s initial position was that the grievor had not been demoted. That position was not pursued in argument, but the facts giving rise to it need to be explained. It arose from the fact that employees represented by this union are divided into nine departments, each of which is divided into a number of job classifications. Employees hold seniority in the various classifications that qualifies them to bid on vacancies in that classification. The grievor’s “demotion” consisted of removing him from the section foreman seniority list. However, prior to his removal, the grievor had used his classification seniority as a machine operator to bid on a machine operator vacancy at a rate of pay higher than that of section foreman.

 

            The railway submitted on these facts that no demotion had occurred. However, the removal of the grievor from the section foreman’s list prevented the grievor from claiming vacancies in that classification. The removal from the list was initiated in response to a recommendation that the grievor be “demoted”. The compelling inference was that the railway saw the grievor’s removal as a demotion in the sense that he removed from access to a position for which he had earned recognition in the form of classification seniority. Whether or not that is seen as a demotion in the strict sense, the arbitral jurisprudence developed for the review of demotions has application by close analogy.

 

            Turning to the facts, the grievor’s immediate supervisor in the period preceding the grievor’s demotion was Earl Langille, the assistant roadmaster at Exeter. The position of the union was that the grievor’s demotion arose as a result of harassment by Mr. Langille. I will review that allegation in more detail later. Mr. Langille at one time worked for the grievor as a sectionman in the section gang at Exeter. He was appointed as assistant roadmaster at Exeter in March of 1986. It was not clear when he had worked as a sectionman under the supervision of the grievor, but it must have been at least one year prior to his appointment as assistant roadmaster. In any event, he formed a low opinion of the grievor’s abilities as a section foreman while he worked under him and appeared to have carried that opinion with him when he was appointed assistant roadmaster at Exeter.

 

            Mr. Langille described the grievor as being slack and careless about the manner in which he performed his work. But Mr. Langille was by no means the only management official who had grown critical of the grievor’s performance. The grievor had already experienced some to the difficulties that led to his ultimate demotion before Mr. Langille arrived. The assistant roadmaster before Mr. Langille was Manuel Alves. He described the grievor as performing sloppy work. He said that he never completed his work and that he sometimes performed it in an unsafe manner. Mr. Alves was quite damning of the grievor. He said that he was not reliable and was frequently late and frequently absent. He said that he did not consider him capable of performing satisfactorily as a section foreman.

 

            It would appear that the grievor was first appointed as a foreman at Exeter on May 11, 1981. Over the next five and one-half years the grievor spent approximately three years as foreman there. His most recent period had been for ten months from January 2, 1986 to November 4, 1986. It was on November 4 that he was demoted. Notice of his demotion was given to him in a letter dated November 4. That letter reads as follows:

It has come to my attention that in the opinion of your Track Maintenance Engineer, your qualifications as a Section Foreman are lacking. There is documentation from you Assistant Roadmaster relating to incidents in October (16th and 17th) where on two occasions after performing your work you left the main track in a dangerous condition. Your Track Maintenance Engineer has recommended that your qualification as a Foreman be revoked with a review of your performance in one years time as to possible requalification. I concur with his recommendation and am herewith advising you that your Foreman’s qualification is revoked.

 

The railway, as stated, took the position that the demotion was non-disciplinary . Its alternative position was that if the removal was seen as disciplinary, the railway had just cause to make that initiative. The position of the union was also expressed in the alternative. It first submitted that the railway has no right to impose any form of demotion because the collective agreement does not give it that right. It next submitted that the demotion was disciplinary and that the railway lacked just cause for its initiative. In the final alternative, the union said that if the removal was seen as non-disciplinary, once again, the railway lacked just cause for taking the action it did.

 

Arbitral authorities are uniform in their recognition of the right of an employer to impose both a disciplinary or non-disciplinary demotion on  employees in appropriate circumstances, whether or not that right is recognized in the collective agreement. I will review the authorities later. At this stage, I reject the union’s first position and observe that the initial issue to be addressed is whether the demotion of the grievor was disciplinary or non-disciplinary.

 

A non-disciplinary demotion occurs when an employer removes an employee from a position when the employee proves incapable of performing the duties of his position and where the inability to perform those duties is due to factors beyond the employee’s control. A disciplinary demotion occurs when an employer removes an employee from a position as an act of discipline where the employee fails to perform the duties of his position to a satisfactory standard and it is presumed that the employee’s failure is within the employee’s control and hence has the potential to be redressed through the imposition of discipline.

 

At some stage the employer will be required to make a judgement as to whether particular circumstances will be addressed in a disciplinary or non-disciplinary fashion. Its judgement in that regard will be subject to review in a subsequent arbitration. Here the clear implication was that the employer concluded that the conduct of the grievor was culpable and was capable of being redressed by discipline. The letter of November 4 carried that clear implication. Both the letter and the initiatives of the railway that preceded it were disciplinary. The initial demotion was said to be for one year, a decision inconsistent with the conclusion that the grievor was incapable of performing his job. It was consistent with a conclusion on the part of the railway that he could perform it and that he needed serious discipline to bring home to him the implications if he did not meet and maintain an adequate standard of performance. In short, the demotion must be seen as an act of discipline. I turn next to a review of the facts that gave rise to that decision.

 

 

II

            Filed in evidence was a copy of the grievor’s discipline record. Prior to his demotion, the discipline was imposed under a discipline code called the Brown system. See British Columbia Railway and Canadian Union of Transportation Employees, Local 6 (1983), 8 L.A.C. (3d) 233. Subsequent to the demotion the railway introduced a new discipline code which is published in booklet form under the name, “Guidelines Respecting the Discipline of Unionized Employees”. It includes a provision with respect to “disciplinary and non-disciplinary demotion”. In that section, the railway appears to have adopted the arbitral principles prevailing with respect to the use of a demotion in response to culpable and non-culpable work performance that falls below an acceptable standard.

 

            The introduction of that new system overlapped the demotion of the grievor in the sense that notice was given to the bargaining unit on October 3, 1986 that a new system of discipline would be introduced effective January 1, 1987. The new system was pending prior to the grievor’s demotion but was not introduced officially until after the demotion. The position of the union was that the employer was bound by the principles inherent in the new system despite the fact that it was not in place officially until after the demotion. However, that issue would appear to be academic.

 

            The arbitral principles fashioned with respect to the review of disciplinary and non-disciplinary demotions applied with equal force to the Brown system as they now apply to the current discipline guide. I will return to that issue later. Returning to the grievor’s discipline record as of the date of his demotion, from the period between January  15 and September 19, 1986, he received 60 demerits and a caution under the Brown system. On the evidence, 60 demerits under the Brown system left an employee vulnerable to immediate dismissal. The grievor conceded in his evidence that he was aware of that fact and knew, in effect, that his employment was in jeopardy. Ordinarily the railway would have taken steps to dismiss the grievor on the basis of his 60 demerits. The implication in the evidence was that there was a hiatus during the changeover from the Brown system during which it was not rigidly applied.

 

            In any event, the history of the grievor’s accumulation of demerits and the caution was as follows:

            January 15, 1986 - Absent without authority - 20 demerits;

            June 18, 1986 - Absent without authority - caution;

            September 6, 1986 - Absent without authority - 20 demerits;

            September 19, 1986 - Causing safety hazard - 20 demerits

 

            The grievor did not file a grievance with respect to the imposition of any of that discipline. He said he gave consideration to challenging the safety infraction but did not file the grievance on the advice of the union. Apparently the reasoning was that the incident could be addressed in the context of the demotion. However, the grievor was informed of the imposition of the 20 demerits for the safety violation in a memorandum dated October 1, 1986 and the demotion did not occur until November 4, 1986. The grievor took no action to challenge the safety incident during the intervening period. The date of his discussion with the union in which he expressed the view that he was considering filing a grievance was not given in evidence, but obviously it did not occur until November 4 when the grievor was first informed of the decision to remove him from the section foremen’s classification seniority list.

 

            As stated previously, the demotion decision was communicated to the grievor in a letter dated November 4, 1986. There was nothing to indicate that the grievor did not receive the memorandum with respect to the safety violation in a timely fashion. The grievance procedure provides that a grievance must be initiated within 28 days of the event giving rise to it. The clear implication was that the grievor’s first approach to the union with respect to the safety incident occurred more than 28 days after the discipline was imposed. I am not required here to consider the application of the time limit provisions of the collective agreement. But a failure to challenge the imposition of discipline is of significance in arbitral review of subsequent discipline. Here I must concluded that the grievor did not challenge any of the discipline imposed on him, including the safety violation issue.

 

            The union sought to challenge the validity of all of the discipline. However, as indicated, it is contemplated in the arbitral authorities that where an employee fails to challenge discipline at the time of its imposition, the discipline record must stand in subsequent discipline proceedings. That is, an employer cannot be put to a defence of disciplinary initiatives when they have been incorporated without challenge into the employee’s discipline record. Where the discipline imposed is not challenged, the employer is entitled to rely on the discipline record in subsequent proceedings. That principal of arbitral jurisprudence is addressed sufficiently in general terms in Brown and Beatty, Canadian Labour Arbitration (1984) para. 7:4314 @ p. 479 where the authors wrote as follows:

[W]here an employer relies exclusively on past misconduct for which some discipline was meted out, and which was accepted by the grievor or not processed to arbitration, generally employees will not be allowed to adduce evidence to explain away such misconduct in an arbitration proceeding based upon the culminating incident. In the result, unless the earlier incident which gave rise to a disciplinary sanction itself is the subject of an unresolved grievance, the merits of the record will not be assessed. Rather it is accepted on its face as evidence of the discipline that had been imposed.

 

            In these proceedings, to the extent that the discipline record of the grievor was a legitimate factor for the railway to consider, the record must stand. I will return to that issue later. At this stage I emphasize that where an employee feels that he has been dealt with unjustly, the employee is required under the grievance procedure to challenge the discipline or to face the prospect that in future proceedings the discipline record will be accepted as written. That principle is important in the interests of both parties. The converse of the principle is that where an employer fails to take and to record a disciplinary initiative in response to perceived misconduct or unacceptable work performance, the employer will not be permitted to rely on that conduct to support subsequent initiatives. That was made clear earlier in the same paragraph in Canadian Labour Arbitration where the authors wrote on pp. 477-78 as follows:

Conversely, if the employer fails to apprise an employee of those deficiencies on which it has relied in disciplining him, the employee may be able to claim he was lulled into a false sense of security in assuming that the employer had tacitly condoned his pattern of behaviour. Thus, while recognizing that the effect of such a ruling may require the employer to impose formal discipline for what otherwise might be regarded as insignificant matters, the principle is thought to be required to avoid any “misunderstanding on the part of the employee as to the potential consequences of continued behaviour of the kind complained of”. Indeed, on that same premise, employers have been precluded from relying on those incidents for which no disciplinary action was invoked at the time they occurred, even though they may have been the subject of oral warnings and/or noted on the employer’s internal records.

 

In short, neither party can expect to have it both ways with respect to the management of discipline and grievance process. An employee who fails to challenge discipline when it is imposed will not be in a position to challenge it later when the facts are stale and where, in the case of a discipline record of any significance, permitting the employee to challenge it would require the employer to justify a series of disciplinary initiatives in a single hearing. On the other hand, an employer that fails to take appropriate disciplinary action sufficient to put the employee on notice that his conduct or performance is unacceptable will not be in a position to rely on such conduct or performance in future proceedings.

 

As with discipline that is not challenged, to permit an employer to reach back to such incidents would compel the employee to attempt to defend himself against allegations when the facts are stale and the events are over. Not only would the revisitation of past events place one or the other of the parties at a disadvantage in dealing with issues that should be confronted when they are fresh, but it would have the effect of unduly protracting the hearing. In the result, I find that the discipline record must stand as written. I make a similar determination with respect to a series of events recorded on what the parties referred to as “form 1516”. The purpose of the form is set out on its face as follows:

This form is to be used when an employee is verbally corrected [on] account [of a ] rule violation or unsafe act.

 

The grievor received a series of five such forms in the period between September 9 and October 31, 1986. The incidents overlap the discipline record to some degree. The form makes provision for it to be signed by the employee and a copy delivered to him. The grievor’s signature appeared on only one of the five forms. On the other forms there was a notation indicating that the grievor had refused to sign. Initially the grievor said in his evidence that he had not seen any of the five forms. That is, he did not immediately recognize his signature on the one form on which it appeared.

 

It was implicit in the evidence that the grievor had instructed the union that the signature was not his. I say that because evidence given by the union earlier in the proceedings included an opinion that the signature appearing on the form was not that of the grievor. In advancing that opinion, a comparison was made with the signature of the grievor on other documents filed in evidence. I note by way of aside that opinion evidence is only of assistance where it is presented by a person qualified to express it in the sense of possessing expertise in the subject matter of the opinion. That was not the case with respect to the handwriting opinion tendered by the union in this dispute.

 

In any event, while the grievor had obviously instructed the union that he had not signed the form, he conceded in cross-examination that it was his signature. That admission and the fact that he was clearly wrong when he said that he had not seen that particular form, coloured his evidence that he had not seen the other forms. I did not conclude from the evidence that the grievor was deliberately misstating the facts. However, I did conclude from that evidence and from other similar disputed facts that the grievor was possessed of an unreliable memory and that many of the events surrounding the imposition of discipline on him and cautions given to him with respect to his work performance, for whatever reason, had failed to make an impression on him.

 

In any event, I accept that the grievor received copies of each of the five forms, even though he was unable to recall them. On that finding, I note that the substance of the “verbal corrections” given to the grievor were as follows:

(1)        September 9, 1986 - failing to show up for work on Saturday Sept 6/86. I will not be calling on you for anymore call outs.

(2)        September 18, 1986 - violation rule 25 of form 1142. Improper loading frog on push car causing push car to derail and frog ended up down grade.

(3)        October 16, 1986 - failing to complete job resulting in mainline being left in dangerous condition. Mainline SW stand left one bolt one side two spikes other side. Was told to finish spiking but still had not done so.

(4)        October 17, 1986 - leaving mainline in dangerous condition. North switch chip track Weldwood rail left higher than mainline.

(5)        October 31, 1986 - poor workmanship - failing to complete job resulting in track not being maintained to standard.

 

The September 18, 1986 form made reference to the incident for which the grievor received twenty demerits for what was perceived as a safety infraction. Three of the four remaining forms dealt with other aspects of poor workmanship. The fourth, being the form of September 9, 1986, dealt with the grievor’s failure to report for work for an overtime shift that he had agreed to work. That incident led to a letter to the grievor from the railway dated September 15, 1986, and was the incident that gave rise to the imposition of twenty demerits for the grievor’s second AWOL offence.

 

The grievor was perceived by the railway as having an attendance problem generally. That problem was reviewed in connection with the warning imposed on him on June 18, 1986. It was noted at that time by P. R. Rebagliati, the track maintenance engineer having responsibility for the region, that while his absenteeism in 1985 and 1986 had been unacceptably high, personal problems experienced by the grievor of which the railway had knowledge offered some measure of explanation for the absenteeism and that his attendance in the first six months of 1986 had been reasonably good. On the basis of that perceived improvement, the railway elected at the time to caution the grievor rather than discipline him with the imposition of further demerits. However, when he was again absent without leave on September 6, 1986, being the incident to which previous reference was made, the railway imposed a further twenty demerits upon him.

 

The immediate circumstance that gave rise to the demotion (referred to in some of the authorities and by these parties as the culminating incident), was the incident recorded in the form 1516 of October 16, 1986. That form referred to two incidents, one occurring on October 14 and one on October 15. Those incidents became the subject of a report by Dominic Celli, the track maintenance engineer, to F. E. Kimball, the assistant chief engineer of the railway. The report was dated October 21, 1986 and contained the recommendation that caused the grievor to be demoted for one year. That report and recommendation reads as follows:

Attached please find memos from Assistant Roadmaster E. Langille stating dangerous conditions left by Section Foreman B. Ervin at Exeter by not completing the assigned work. On October 14, 1986 Foreman Ervin changed out a defective headblock tie and failed to re-spike or re-bolt the switch stand firmly to the tie. On October 15, 1986, Foreman Ervin and his crew changed out a defective frog and failed to secure the rail coming out of the chip track that normally bolts down to heel of frog. This rail was left loose and four to five inches higher than the mainline rail.

 

The nature of these incidents could have caused a serious derailment if they were not detected by the Assistant Roadmaster and corrected. I believe that Foreman Ervin does not understand the seriousness of the condition left out or he does not care. Mr. Ervin has had an alcohol related problem, I believe he has been through the program at least once, he continues to miss work by phoning in sick usually just before starting time. As a Section Foreman, Ervin is unreliable, irresponsible and above all unsafe. My recommendation is to demote B. Ervin to the position of a Sectionman for a year and at time we would reassess his performance accordingly.

 

As stated, the union response to the allegations of poor work performance and improper conduct that formed the substance of the decision to demote the grievor was to challenge the facts upon which it was based. Leaving aside those aspects of the discipline record and the record of warnings that were not challenged under the grievance procedure, I make the general observation that the railway’s criticism of the grievor’s standard of work performance was valid.

 

Evidence of the grievor’s general performance in the months preceding his demotion was given by Mr. Alves and Mr. Langille, the two assistant roadmasters having supervisory authority over him. The “culminating incidents” were recorded in a series of photographs taken by Mr. Langille. A considerable issue developed over the validity of the criticism that give rise to the demotion. The union adduced opinion evidence based upon an examination of the photographs with respect to whether the conditions giving rise to the criticism were “unsafe” in the sense of placing railway traffic at risk of derailment. The union consensus in the evidence was that the workmanship at issue was not up to railway standards but was not unsafe. But, whether or not it was unsafe, the fact that it was below standard for a significant period of time and that the grievor had not responded to corrective discipline was sufficient to support the railway’s criticism.

 

At this stage I offer the view that whether the workmanship was unsafe, which would appear to be a subjective evaluation, is not at issue. Standards are fixed by the railway and a section foreman is expected to meet those standards. The standards themselves are the resource by which the condition of the track is judged. A failure to maintain a proper standard is considered to be a serious matter. There is a standard practice circular (SPC-50) issued by the railway with respect to the duties of a track foreman. The obligation of a section foreman is set out in s. 1(e) and s. 1(f) as follows:

(e)        Section Foremen … are responsible for the safe condition of the track structure, right-of-way, grade crossings, turnouts, drainage facilities, and fences on the territory or projects assigned to them.

 

(f)        They must be familiar and comply with all of the maintenance requirements as stated in this circular and in “Rules of Maintenance of Way Department”, and shall maintain their sections or territories at all times in accordance with these requirements.

 

There is no doubt on the evidence of all witnesses that the grievor, in the incidents concerned, was not meeting those expectations. In short, the grievor, even on the evidence of the union, was not performing to a satisfactory standard and, in the opinion of the railway, was permitting unsafe conditions to exist. Those are serious deficiencies in an employee charged with the responsibilities of a section foreman and the concern of the railway was understandable.

 

Nor was the union unanimous in its view that the conditions depicted in the photographs were not unsafe. John Rowe, a section foreman, looked at the photographs and said that he would not leave a track in the condition depicted in the photographs because it was unsafe. He said that he would either repair the condition or, if he could not repair it, he would contact the dispatcher so that everyone using the track would be advised of the condition. Other union evidence, as stated, was to a contrary view as to whether the condition was actually unsafe. But, again as stated, there was not evidence to indicated that the conditions were not contrary to track standards, and subjective opinions as to safety cannot substitute for a measurement or performance against defined standards.

 

III

            I turn next to a consideration of whether the facts support the initiative taken by the railway. The principles governing the review of a disciplinary demotion are those set out in Wm. Scott & Company Ltd. and Canadian Food and Allied Workers Union, Local P-162 [1977] 1 C.L.R.B.R. 1 (Weiler). Those principles were fashioned with respect to the arbitral review of a dismissal, but have been broadly adapted to the issues raised in an arbitral review of the imposition of discipline. However, care must be taken in that adaptation to acknowledge the difference between acts of discipline and a dismissal. In a later decision of the board, Molson Brewery Limited vs. Brewery Workers Local Union #300, (1979), 37/39, unreported, MacIntyre, the board wrote at p.6:

Wm. Scott has become the locus classicus in dismissal cases. This is not surprising, since it was this Board’s first review of the scope of dismissal arbitration. It may be, however, that it has been uncritically applied in some cases, or relied upon for more than it necessarily implies. With respect to the present case, it must be remembered that Wm. Scott was a dismissal case, and the circumstances to be reviewed when the total severance of the employment relationship is at stake may be more global - - both for an against the employee – than when the question is the particular matching of a relatively minor employer discipline to employee misconduct.

 

In short, an important factor in the review of discipline, assuming that conduct deserving of discipline is established, is a consideration of the nature and seriousness of the offence and the nature of the disciplinary response. On that scale, one would assume that a demotion would be reviewed as serious discipline requiring proof of conduct that made such a response appropriate. In that context it is worth noting that an employer is required to establish just cause to impose some form of discipline and, further, to establish just cause for the particular penalty selected. That is the case in arbitral jurisprudence generally. It was discussed in K.V.P. Co. Ltd. vs. Lumber and Sawmill Workers Union (1965), 16 L.A.C. 73 (Robinson). The arbitrator wrote as follows:

There has been a difference of opinion upon this matter but the prevailing rule now appears to be established that where the question arises whether or not the penalty was for just cause, the company must establish just cause not only for the imposition of a penalty but for the imposition of the particular penalty imposed.

 

Some question has arisen as to whether the test articulated in Wm. Scott & Company has resulted in a different approach in British Columbia. That test appears on p. 5, as follows:

[A]rbitrators 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 circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?

 

On that test, it has been urged that where the facts disclose conduct deserving of discipline, it falls to the employee to establish that the discipline selected was excessive. But that is not the case. There is a continuing obligation on an employer to prove on a balance of probabilities, not only that it had just cause to impose the penalty selected, be it dismissal or some lesser penalty. That is made clear by the board in the following passage as it appears on p. 7:

 

Having found as a matter of fact that [the grievor] had engaged in immediate conduct which warranted discipline, the arbitration board must then decide whether the form of discipline selected by the employer - discharge - was or was not excessive in all of the circumstances. Such features as the employee’s motivation, attitude, and disciplinary record are directly relevant to the question of whether the employee was justly dismissed by the employer in the first place. They should not be relegated to a secondary level of inquiry in which the arbitrator must be persuaded that there are good and sufficient reasons for relieving employees of the fate which is allegedly required as a matter of law for their immediate offence. (emphasis added)

 

Applying that reasoning in this dispute, the obligation on the railway was to establish that it had just cause to demote the grievor for one year and, further, that it had just cause to make the demotion permanent at the end of that year. My immediate reaction is that the decision to demote the grievor permanently cannot be defended as an act of discipline. A permanent demotion requires evidence that an employee is incapable of performing to a satisfactory standard. A permanent demotion is only available where the facts sustain a finding that the employee concerned lacks the capacity to perform the job.

 

The initial demotion, as stated, was clearly perceived as disciplinary by the railway and nothing occurred thereafter to alter the facts that gave rise to that decision. The railway called evidence that the grievor had attracted criticism in his role as a machine operator after his demotion, but that evidence was irrelevant to the question of whether he lacked the capacity to perform as a section foreman. Further, the railway relied on the fact that the grievor had chosen to work as a machine operator after his demotion, when the railway’s expectation had been that he would work as a sectionman during his demotion so as to refresh his skills with respect to what was required of a section foreman. However, that expectation was not communicated to him at the time.

 

In any event, I agree with the union in that context that if the railway’s intention had been to refresh his skills, it would have been more reasonable to require him to work for a period of time as an assistant foreman. In short, I conclude that the railway failed to bring to the facts in this dispute into the category of a non-disciplinary demotion. The railway conceded that the rationale was set out in Re Wire Rope Industries Ltd. and United Steelworkers, Local 3910 (1984), 13 L.A.C. (3d) 261 @ pp. 267-8, correctly described the criteria by which a demotion is to be judged with respect to whether it was disciplinary or non-disciplinary. Applying the authorities set out in that decision to the facts in this dispute, I conclude that the demotion was disciplinary.

 

IV

            I turn now to a determination of the grievance. I am of the view that the railway intended the demotion to be disciplinary and intended for it to last for a duration of one year. That conclusion is compelled by the circumstances and by the railway’s own correspondence with respect to the reason for the discipline and its duration. I agree with the submission of the union that the demotion cannot be viewed as non-disciplinary and that the railway failed to establish that the grievor is incapable of meeting and maintaining  an acceptable standard as opposed to having established that the grievor was not maintaining that standard.

 

            The union submitted that the railway had failed to prove conduct that would support a demotion of any kind, but I do not agree. The misconduct proven against the grievor was job-related and was of a kind that supports, and perhaps even invites a demotion. The union said that the grievor was not warned about the consequences of his actions and should have been told specifically that if he did not improve his performance he faced possible demotion. But there was ample warning in the various disciplinary initiatives taken against the grievor to bring home to him that he was not performing to an adequate standard and that his position was in jeopardy.

 

            It is correct to say that he was not specifically warned in advance that he might be demoted but he was repeatedly warned that his job performance and attendance was not acceptable. In that context I return to my earlier observation that the grievor did not appear to appreciate the significance of disciplinary initiatives taken against him. In some instances the grievor had no apparent recollection of the initiatives taken against him and did not demonstrate that he had fully appreciated the vulnerability of his position until he was finally demoted.

 

            In that context I agree with the railway that the demotion might very well have saved the grievor’s employment. He was accumulating the kind of discipline record that will sustain an ultimate dismissal. But the grievor was curiously unresponsive, or at least ambivalent, during the accumulation of that record. It had little remedial effect upon him and it seems that if he had not been demoted, the pattern of discipline would have continued, perhaps to the point of dismissal.

 

            When I say that the grievor did not respond to the discipline, I am not overlooking the submission in these proceedings that his difficulties arose as a result of discrimination against him by Mr. Langille. The assertion that poor performance is the result of discrimination is not an unusual response in cases of disciplinary demotions. But such an allegation requires a high degree of proof because critical supervision is readily perceived by employees as harassment. The subject was discussed extensively in Wire Rope Industries @ pp. 265-68. There the discrimination was attributed to anti-union bias. But the same analytical principles apply to any consideration of an allegation of discrimination.

 

            One essential and invariable feature of the managerial role is the need to provide critical supervision and , where necessary, to impose discipline on employees whose performance is unsatisfactory. The fact that criticism and discipline occurs is not sufficient to support an allegation of discrimination or personal bias. Here the union attributed the initiatives taken against the grievor to a personality clash between the grievor and his assistant roadmaster, Mr. Langille. A number of witnesses were called by the union to establish that Mr. Langille was habitually abusive to employees under his supervision and, in at least one case, had grabbed an employee during a confrontation.  Mr. Langille denied ever having used force with employees. He conceded that he spoke to them in a manner that could be construed as abusive. The clear implication from the evidence was that Mr. Langille’s style of supervision was aggressive and that he saw it as part of his job to ensure that employees working under his supervision achieved a designated level of work during the course of a day. It was fair to conclude on the evidence that he was not a popular supervisor.

 

            Moreover, it was quite apparent that Mr. Langille considered that the grievor was deficient as a section foreman with respect to the goals he set for his crew and the example he gave to them in terms of productivity initiative. The union perspective was that Mr. Langille, for some reason that never became apparent in the evidence, had decided to “ride” the grievor and that it was his harassment of the grievor that caused the pattern of conduct that gave rise to the demotion. In his evidence the grievor indicated that he had the same perception, but to a lesser degree than what was urged by the union.

 

            The grievor said that the territory included in the Exeter section was in extremely poor condition and was awaiting upgrading. He said that there was a great deal of maintenance work required and the crew was too small to keep up with the demand. He said that Mr. Langille made his job difficult by dealing directly with the men in his crew, by interfering in work assignments he had made as foreman and by not giving him sufficient time to finish one job before he was assigned to another. However, throughout the period involved, (being from March to November of 1986), the grievor did not complain to the union about the supervisory conduct of Mr. Langille and no grievances were filed alleging harassment or discrimination by Mr. Langille.

 

            On the evidence, Mr. Langille was not the only supervisor who found the grievor’s performance to be deficient. Moreover, the criticism of the grievor initiated by Mr. Langille and recorded in the various disciplinary initiatives under the Brown system was neither trivial nor contrived. As noted, an allegation of bad faith or discrimination on the part of a supervisor requires a high level of proof and the evidence in this dispute, which consisted primarily of the evidence of the grievor, fell far short of establishing that Mr. Langille had singled him out for unfair treatment. The perception of the grievor that he was being hard-pressed was buttressed to some degree by the evidence of his assistant foreman, Paul Papineau. But the evidence of Mr. Papineau, as with the evidence of the grievor, was largely subjective and was evidence of perception rather than fact. Neither the grievor nor Mr. Papineau denied the fact that the grievor’s performance was below the standard fixed. As noted earlier, if the discipline imposed on the grievor was seen by him as unfair and discriminatory, he should have challenged it by filing a grievance.

 

            The union made a further submission that the demotion imposed upon the grievor was discriminatory in the sense that other section foremen had fallen below what the union perceived as an acceptable standard of performance and had not been demoted. However, the concept of discrimination as a basis for vitiating discipline requires that the circumstances be the same. In fact, it is a relatively narrow concept. If, for example, a number of employees are involved in essentially the same act of misconduct, discriminating between them as to the penalty imposed requires justification.

 

            But, in order to sustain an allegation of discrimination, the union must first establish that the facts are the same. In this dispute the circumstances upon which the union relied in support of its allegation of discrimination were not in any way analogous in the sense contemplated in the authorities. I observe by way of general comment that it would be extremely difficult to establish that circumstances as between two section foremen, particularly those involving allegations of poor work performance, were sufficiently similar to justify a requirement for similar disciplinary treatment where the discipline imposed is a demotion. The numerous subjective and judgmental factors involved carry the potential for permutations that make any meaningful comparison a dubious exercise at best. I conclude that the railway demonstrated just cause to demote the grievor for one year.

 

            Left remaining is a determination of what the current status of the grievor is to be. The demotion, as stated, was expressed as being for a period of one year which would have expired on November 4, 1987. I am of the view that it was beyond the discretion of the railway to impose additional conditions on the reinstatement of the grievor after the term of his demotion had expired. That does not mean that the grievor is entitled to be reinstated to the position at Exeter. His demotion consisted of his removal from the classification seniority list for section foreman. He is entitled to be reinstated to his position on the list. But he was not removed from the position at Exeter. He left that position voluntarily to bid into a machine operator’s vacancy.

 

            Once the grievor has been restored to the classification seniority list, he is entitled to bid on vacancies as a section foreman on the basis of his seniority. He will carry with him his disciplinary record and will be subject to the close supervision that must be expected of an employee with his history, but no basis was established for extending his demotion.. The union suggested that a proper response for the railway may have been to require the grievor to work for a period as an assistant foreman. That may be a step the grievor will want to impose on himself, bearing in mind that the deficiencies in his performance were real enough. But it is not a condition I can impose.

 

            The grievor was removed from the list for one year. The railway was justified in taking that step. But the year has expired and no proper basis was established for extending it. In the result, the grievance is granted in part. The grievor is entitled to be restored to the list effective immediately and to bid on vacancies as they arise. I will retain jurisdiction to assist the parties in implementing the decision if that becomes necessary.

 

Dated at the City of Prince George, in the Province of British Columbia, this 26th day of August, 1988.

H, ALLAN HOPE, Q.C. - Arbitrator