ADHOC 290

IN THE MATTER OF AN ARBITRATION

BETWEEN:

BC RAIL

(hereinafter referred to as the "Railway")

AND:

CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL 6

(hereinafter referred to as the "Union")

(Sutherland & Kainth Arbitration)

Arbitrator: H. Allan Hope, Q.C.

Counsel for the Employer: David Cox

Counsel for the Union: Terrence Robertson, Q.C.

Place of Hearing: Vancouver, B.C.

Date of Hearing: November 15, 1991

©b69r A W A R D

©b69r I

The grievors in this dispute received a five-day suspension without

pay as a result of a collision on August 25, 1989 between a train and

a maintenance vehicle at a location on the main line of the railway

approximately 30 miles south of Williams Lake. The position of the

Union is that the Railway failed to establish any conduct on the part

of the grievors which was deserving of discipline and had therefore

failed to establish that it had just cause to impose the suspension.

on the day in question the two grievors were part of a three-man

section crew which was under the direction of acting assistant

foreman Earl Flaspohler. The three men were working on the track

and were some distance away from the maintenance vehicle when the

collision occurred. There were no injuries, but there was property

damage of an unspecified amount. The foreman was found negligent in

the circumstances giving rise to the accident and was suspended for

ten working days. He did not challenge the suspension or the finding

of negligence.

In suspending the grievors, the Railway alleged that they were in

breach of an implied safety rule and that their breach had caused the

accident in the sense that if they had complied with the rule the

accident would never have occurred. The rule in question arises from

two rules contained in the Maintenance of Way operating Instructions.

Those rules read as follows:

(46) (A) Before fouling or occupying the main track, the

employee in charge of the track unit shall read the

line-up aloud to all other occupants of the track

unit and ensure that they have a proper

understanding of the contents of the line-up.

(B) If the employee in charge fails to comply with the

line-up, the other occupants of the track unit

shall immediately remind him of its contents.

Mr. Flaspohler, as I will detail shortly, did not read the line-up to

the grievors. He told them about the first train he expected to

arrive in their area. They did not inquire further. Mr. |Flaspohler

made an error that I will also detail shortly. The Railway took the

position that the grievors were under a duty to inquire about the

line-up. The position of the Union was that the grievors were under

no obligation to question the foreman' s actions. The Union

submitted in the alternative that if such a rule existed, the Railway

had not sought to enforce it on any consistent basis and, in any

event, had never imposed discipline on anyone other than the foreman

in circumstances where a collision occurred between a train and other

equipment. The evidence of the Union was that collisions between

trains and other equipment of varying degrees of severity were a

relatively common occurrence on the Railway and that there had never

been an occasion when an employee other than a foreman had been

disciplined.

Evidence was given on behalf of the Railway by Peter Rebagliati, the

superintendent of track maintenance, who said that from the

perspective of safety and operational credibility, it was essential

that all persons working on the rail line be aware at all times of

what traffic was expected. The Union did not disagree with that

submission. Its argument was that the grievors were acting in

accordance with standard practice at all material times and that they

were not in breach of any express terms of any of the rules relied on

by the Railway. An appreciation of the issues raised by the dispute

requires a recitation of the material facts.

©b67r II

The foreman, Mr. Flaspohler, was a sectionman with limited

experience as an acting assistant foreman when the incident occurred.

He had been absent on vacation for a period of six weeks and had only

recently returned prior to the accident. On the morning of August

25, in accordance with the rules, he listened to the dispatcher in

North Vancouver broadcast the line-up for the day. In accordance

with standard practice, he wrote the line-up down on a form provided

by the Railway and attached the form to a clipboard. While he

attended to the line-up, the two grievors loaded the tools and other

supplies |necessaryfortheday'sworkintothemaintenancevehicle.

As stated, he did not read the line-up to the grievors. It was

conceded in evidence by the Railway that its policy was to limit the

writing down of the line-up to foreman and assistant foreman. That

was seen as a productivity choice made so as to avoid the prospect of

a large number of employees preparing their own written record of the

line-up. In the result, the grievors had no direct knowledge of the

line-up.

When Mr. Flaspohler had obtained the line-up, he and the grievors

drove to the site of their first work assignment for the day. As

stated, it was located 30 miles south of Williams Lake. It involved

filling a small hole and raising the line. The maintenance vehicle

was a specially equipped pick-up truck capable of operating on roads

and on the rail line. En route to the work site, Mr. Flaspohler

told the grievors that the first train in their area would be one of

two trains in the line-up that day which were regular in the sense

that they |travelled the line every day. One was a northbound train

and the other a southbound. For employees working north of Williams

Lake, the routine was that the southbound train, being Number 2

arrived first, followed by the northbound train Number 23. For

employees working in locations south of Williams Lake, because of the

difference in distance, the routine was reversed. That is, the

northbound train, Number 23, arrived first, followed by the

southbound train, Number 2.

Mr. Flaspohler had little or no experience working south of Williams

Lake and neither did the two grievors. He confused the two routines

and, in explaining the line-up to the grievors, informed them that

the first train they could expect was northbound Number 2. The two

grievors did not question that assertion and took no steps to check

the line-up or to require Mr. Flaspohler to read it to them. The

submission of the Railway was that the grievors were under an implied

obligation to require him to read the line-up, and, having had it

read to them, were required under the provisions of Rule 4 6 (B) to

point out to him that he was in error in expecting the southbound

train ahead of the northbound train. The theory of the Railway, in

short, was that if the grievors had required the foreman to read the

line-up to them, they would have detected his error and would have

cautioned him under Rule 4 6 (B) about the imminent arrival of

northbound train Number 23.

The circumstances in this dispute are governed by the principles

outlined by the former Labour Relations Board in ©u14rWm. Scott and

©u64rCompany Limited and Canadian Food and Allied Workers.' Union,

©u12rLocal P-162 (1977) 1 C.L.R.B.R. 1 (Weiler) . In particular, the

Board set out the following test on p. 5:

... 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

circumstances of the case? Finally, if the

arbitrator does consider discharge excessive, what

alternative measure should be substituted as just

and equitable?

In that decision the Board was addressing the principles governing an

arbitral review of a dismissal, not the imposition of discipline, but

the principles have been applied in numerous subsequent decisions

involving discipline. Here the submission of the Union is that the

facts failed to meet the first aspect of that test in that it failed

to disclose conduct deserving of discipline in the first instance.

As stated, the Railway relied on what it saw as the breach of an

implied rule to support its case. Its position was based on its

interpretation of Rules 46(A) and (B). Its submission was that the

rules, read together, required employees to insist that their foremen

read the daily line-up to them. It is clear from a reading of them,

neither rule makes that express requirement. Rule 46(A) requires

the foreman to read the line-up to the crew. Rule 46(B) requires

crew members to remind foremen of the contents of the line-up. The

rules do not address what obligation is imposed on employees where

the foreman does not read the line-up to them.

The Railway said that their obligation, by implication, is to require

the foreman to comply with Rule 46(A) . The union said that the

rules did not require the grievors to insist that their foreman read

the line-up, particularly where, as here, the foreman told them of

the first train expected in their area. In any event, said the

Union, it was clear on the evidence that the Railway had not sought

to enforce that obligation, assuming that one existed, on any prior

occasion.

The obligation of an employer seeking to impose discipline for a

(Robinson) , on p. 85 as being subject to the following criteria:

A rule unilaterally introduced by the company, and

not subsequently agreed to by the union, must

satisfy the following requisites:

1. It must not be inconsistent with the collective

agreement.

2. It must not be unreasonable.

3. It must be clear and unequivocal.

4. It must be brought to the attention of the

employee affected before the company can act on it.

5. The employee concerned must have been notified

that a breach of such rule could result in his

discharge if the rule is used as a foundation

for discharge.

6. Such rule should have been consistently

enforced by the company from the time it was

introduced.

4:1500 @ pp. 4-11 ff for a discussion about the onus on employers

who seek to rely on a breach of rules to support the imposition of

discipline. Here there was no question about the publication of the

rules, but the rules relied on do not address the particular

circumstance in express terms. That is, Rule 46(A) imposes an

obligation on a foreman to read the line-up to his crew and Rule 46

(B) requires crew members to remind the foreman of any impending

traffic if he fails to respond to the line-up. I agree with the

Railway that an employee who has been qualified under the rules and

who is therefore presumed to be acquainted with them cannot wilfully

blind himself to breaches of the rule by his foreman without risking

the imposition of discipline.

But here the facts do not support a finding that the grievors did

ignore a breach of the rules by the foreman or wilfully blind

themselves to conduct on his part that constituted a clear breach of

the rules. In particular, the evidence disclosed that there were

varying approaches to the obligation of a foreman to write down the

line-up and communicate it to persons working under his supervision.

Included in those approaches, and perhaps the most common approach,

was the one adopted by the foreman in this dispute. That is, it was

a common practice known to the Railway for the foreman to write down

the line-up and to advise his crew of the traffic to be expected on

a train by train basis.

Here the evidence of the Railway fails to meet the criteria in KVP

Co. Ltd. which requires proof of a clearly stated rule and a clear

breach of the rule. In addition, the facts proven in evidence by the

Railway were deficient in the sense that the Railway did not

establish that the implied rule, accepting that it existed, had been

consistently enforced over the years. In that same vein, the Railway

failed to establish that employees had been disciplined for a failure

to require their foreman to read the line-up to them. In the result,

the Railway failed to prove conduct deserving of discipline and the

grievance is granted. The grievors are entitled to be compensated

(Baigent) ; upheld on appeal, (1982) 3 C.L.R.B.R. 87 (Somjen) and

to have their discipline record amended by removing the notation of

the suspension. I will retain jurisdiction to assist the parties in

calculating the amount of compensation if that becomes necessary.

DATED at the City of Vancouver, in the Province of British Columbia,

this 25th day of November, 1991.

ALLAN HOPE Q.C. - Arbitrator