AH – 305




(the "Company")



(the "Union")




SOLE ARBITRATOR: Denis T. La Charité


There appeared on behalf of the Company:

Rick Leche


And on behalf of the Union:

Clyde Mulhall



Hearings in this matter were held in Prince George, B.C. on January 24, 1992 and in Vancouver, B.C. on February 18, 1992.


The parties agree I have the authority to hear and decide this issue.

The Grievor is R.R. Davis, a trainman at the time the incident occurred.

The issue: Was discipline excessive in all of the circumstances of the case?


There are three arrows in the Union quiver:

1. The discipline is discriminatory in view of the Grievor’s work record and all of the circumstances that prevailed on the night of the incident plus there is inconsistency in the application of the penalty;

2. The application of the existing discipline system is in violation of the Collective Agreement;

3. The Railway is in violation of Section 262 of the Railway Act by suspending the Grievor for a period of ten days.


The seriousness of the infraction of the |Grievor warrants the disciplinary response of the Railway. Under the previous disciplinary Brown System this would have incurred automatic dismissal.


There is no dispute as to the incident itself. The parties agree on the following facts:

The Grievor was the Head-End Brakeman on the northbound McKenzie switcher on January 10, 1991. Instructions were to pick up four diesel tank cars situated in the north end of the North pass 1 track at Kennedy.

Upon arrival the switcher proceeded up the south leg of the wye, cut off the tail end of the train, then proceeded with engines and five (5) cars to back down the north leg of the wye. This would allow a pickup of the four (4) tank cars from North pass 1 track.

Davis set out the four (4) tank cars to the main track, retained the other cars to the North pass I track. To complete the move the Grievor pulled the tank cars off the main track onto the Wye and the McKenzie lead. The incident that is the subject of the discipline then occurred. Mr. Davis lined and locked the south switch of the north pass track in the divergent position to the north pass track. The result was a main line switch was lined away from the main track, directing other traffic onto the north pass track.

As a result of this error a freight train proceeding north was shunted into north pass 1 and collided with the fifteen chip cars previously left there. Minor damage to engines and cars resulted.

Both the Union and the Railway agree the Grievor was in breach of CROR 104. This states:


(a) Except as provided in paragraph (b), main track switches must be lined and locked for the main track when not in use. A main track hand operated switch must display a reflectorized target, or light and target, to indicate the following:



EXCEPTION.- A light or reflectorized target need not be maintained on a main track switch in CTC and single track ABS or on a subdivision specified in special instructions.

(b) When directed by GBO, clearance, train order or special instructions, and protection has been provided against all affected trains or engines, a main track switch may be left lined and locked in the reversed position unless in charge of a switchtender or a crew member who must be in position to restore the switch to its normal position before it is fouled by a train or engine approaching on the main track.

(c) A yard switch equipped with a lock must be lined for the normal route and locked after having been used. When equipped with a target, light or reflector, it will indicate the following:



(d) Except as provided by paragraph (b), the conductor and locomotive engineer must, when practicable, ensure that switches manually operated by their crew members are left in the normal position. Other employees are not relieved of responsibility in properly handling switches.

(e) Except while being turned, each switch must be secured with an approved device.

(f) When a switch has been turned, the points must be examined and the target, reflector or light, if any, observed to ensure that the switch is properly lined.

(g) A switch must not be turned while any part of a car or engine is between the switch points and the fouling point of the track to be used, except when making a running switch.

(h) Except when switching, when a train is closely approaching or passing over a main track switch, other than a dual control switch, employees must keep at least twenty feet from the switch stand, and must, when practicable, on single track, stand on the opposite side of the track.

(i) On single track, a crew member of a train stopped on the main track to meet or to be passed by another train, will, when practicable, reverse the switch for the approaching train and protect it unless relieved by a crew member of the other train.

(j) If it is known or suspected that either of the points or any part of a switch is damaged or broken, the switch must be protected until it can be made safe for use. A report must be made to the RTC or yardmaster as quickly as possible.

(k) A train or engine must not foul a track until the switches connected with the movement are property lined, or in the case of semi-automatic or spying switches, the conflicting route is seen or known to be clear.

(l) Unless otherwise directed by special instructions:

(i) the normal position for a main track switch at the end of two tracks is when such switch is set for a train or engine leaving single for two tracks to operate with the current traffic,-

(ii) the normal position for a main track junction switch is when such switch is set for a train or engine to operate as a through movement on one subdivision.

(m) When a train or engine diverges from a main track, the switch used must not be restored to its normal position until the movement has cleared the fouling point.

(n) When a crossover is to be used, the switch in the track on which the train or engine is standing must be reversed first. Both switches must be reversed before a crossover movement is commenced and the movement must be completed before either switch is restored to normal position.

(o) Where a switch point lock is provided, it must be locked when the switch is not in use. Employees must familiarize themselves with the locations of switch point locks.

(p) At an electrically-locked hand operated switch, instructions posted at the switch or in special instructions, will govern the operation of the switch and entry to the main track or interlocking route.

I have set out Rule 104 in its entirety. There can be no doubt failure to adhere to its provisions can jeopardize both life and property and is an extremely serious offence. The Union, Railway and the Grievor are in agreement on this point.


Mr. Russ Dennis Ward, Manager of Operations North stated that the Grievor was a good employee with a good work record. Nevertheless the potential grave consequences of a violation of CROR Rule 104 are such that the maximum penalty imposed justify a ten (10) day suspension. On cross-examination he was clear that the criteria of Exhibit 2 was taken into consideration. Exhibit 2 is a pamphlet titled B.C. Rail Guidelines Respecting the Discipline of Unionized Employees. He did emphasize that the penalty was necessitated by a further reason: "We want to put the point home as a deterrent to other employees".

Mr. Wayne Robert Cartner, Regional Coordinator, Railway Labour Relations, reiterated the importance of Rule 104 and the possible consequences of its breach, this could result in major injury or death. At one point in his career he was President of CUTE Local 6 and testified that such violation under the previous Brown System resulted in long suspensions or even dismissal.

Therefore it is necessary to not only implement corrective action but the punishment must be a deterrent to other employees. Mr. Cartner discussed Exhibit 4 - a book of documents indicating the discipline imposed for violation of Rule 104. There are eight (8) such incidents in total. All but two (2) resulted in a ten (10) day suspension. The evidence surrounding these two are of significance. In the case of Mr. Howard an initial suspension of ten (10) days was reduced to eight (8) days. In the case of Mr. Grant the same offence resulted in a five (5) day suspension. Mr. Cartner, in his position with Labour Relations, argued forcefully that the penalty should be a ten (10) day suspension. But, as he put it,

a stubborn supervisor didn’t concur, he said Grant was a good long term employee, he wouldn’t accept our input and he made it a five (5) day suspension.

His response to Union evidence that the Railway approach to discipline is discriminatory in general as management personnel do not receive the same penalties as union members was as follows:

There is a different system of discipline for Union members and management personnel. Exhibit B.C. Rail Guidelines Respecting the Discipline of Unionized Employees was published to comply with the Industrial Relations Act and to meet principles outlined in the William Scott case.

Management personnel are governed by the Employment Standards Act or the common law. This avenue is not open to Union members. The discipline is handled differently because the groups come under different laws.


Mr. Ray Davis spoke of his 28 years of service as of June 1992. His last discipline was twenty (20) years ago. He feels the penalty is unjust because of the viciously cold weather that night, he worked alone for approximately forty-five (45) minutes, and the pickup of cars was different than usual. This is because it involved dangerous or hazardous goods. All of this combined set the stage for the improper lining of the mainline switch. He stressed that he had not forgotten to line the switch but that all of the above circumstances took him off guard sufficiently that he did not check the points or the switch target.

In support of his grievance he also testified that on his next trip he ran a test experiment to show that the train which struck the cars in question on the night of the incident should have responded in more alert fashion thereby stopping short of the cars in the siding.

In cross-examination he was quick to agree to the violation; as he said:

Without thinking I lined it back and locked it. It is a fundamental part of my job … I am aware of the consequences. I realized it is a serious offence, I personally suffered more, the guilt was bad enough.

He felt he needed help that night but agreed he didn’t ask for any.

Mr. Eric Williams, Chairman of Local 1923 commented he had consultation meetings with management personnel in January and October of 1991 regarding the Railway’s discipline policy. He felt it was both erratic and too severe. This creates an inconsistency in the discipline system. He recounted a number of incidents in support. He stated that, as a result, some twenty-two (22) days of discipline were "rolled back" on a without prejudice basis. Basically he feels in too many instances punishment does not fit the crime.

Mr. Clyde Mulhall, the UTU General Chairman, is unequivocal in his opinion the Union has never accepted the Railway’s discipline policy implemented in 1987, to replace the Brown System. He elaborated on Mr. Williams’ testimony as to the inconsistencies in the application of the existing disciplinary system. He added the Grant and Davis incidents are an example of the discriminatory aspect of the application. Mr. Grant received a five (5) day suspension, Mr. Davis a ten (10) day suspension.

Mr. Martin Howbold, Senior Inspector of Railways, Engineering and Inspection Branch, Ministry of Municipal Affairs and Housing was subpoenaed to testify by the Union.

He outlined how the Railway obtained authority to implement the CROR, Time Table and Special Instructions. This is because, except for Section 1, the Railway is exempt from Part II of the General Operating Rules and are granted separate certificates for operational purposes under the Railway Act.

The Railway has the authority to discipline employees but the Ministry (Minister) has the right under Part III of the General Operating Rules to directly discipline enginemen (this appears to be a rare occurrence). Basically his department maintains a monitoring role in ensuring public and employee safety.

Part 36 Sections 261 and 262 of the Railway Act allow a railway, with Ministerial approval, to make bylaws, rules and regulations respecting operations of the railway and the authority to prescribe a penalty not exceeding $40.00 for any violation of them. Some are applicable to employees and to the general public. To his knowledge the penalty section has never been invoked.


Counsel for the Union agreed Davis erred on the night in question but emphatically notes the Grievor’s excellent record with the Railway, the inclement weather, he worked alone, the different switch required that evening, and the fact that Davis did not forget to line the switch. He was extremely conscious of his duty in this regard. The momentary lapse was due to a set of extrinsic factors that should be, and should have been, given more consideration in the penalty assessment.

Further, two employees previously in breach of Rule 104 had not received ten (10) days’ suspension, Mr. Howard - eight days, Mr. Grant - five days.

The Union seeks a foundation for the second argument in the guarantee provisions of the Collective Agreement. Counsel states these terms must have the effect of preventing suspension otherwise they fail to achieve their purpose, that of guaranteed pay under the appropriate clauses. Therefore the application of the discipline system is in contradiction and must fall.

Thirdly, the Railway is bound by Section 262 of the Railway Act. Counsel for the Union says that this section precludes the Railway from imposing any other penalty that results in a monetary loss. Section 262 reads:


262. The company may, for the better enforcing of the observance of those bylaws, rules or regulations, thereby prescribe a penalty not exceeding $40 for any violation of them.

Counsel for the Union draws on language from Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. Ltd., (1965) 16 L.A.C. 73 where (at page 82): the Arbitrator states:

Where the parties to the Collective Agreement have agreed to the company rules which are referred to it or attached to the Collective Agreement by way of appendix then it is clear that a breach of such rules so agreed to will be followed by the agreed upon penalty and the arbitration board will not interfere.

Counsel points out that this is not the situation between the UTU and B.C. Rail.

In further support of the Union position Arbitrator Hope’s words are referred to in Re British Columbia Railway and Canadian Union of Transportation Employees, Local 6, (1982), 8 L.A.C. (3d) 233. At page 235 he comments on the above decision:

Perhaps the most searching study of discipline codes and their unilateral imposition was done in Re Lumber & Sawmill Workers’ Union, Local 2537 and KVP Co. Ltd, (1965), 16 L.A.C. 73 (Robinson). The decision is most frequently cited with respect to the general subject of work rules. A reading of the decision makes it clear that it deals with discipline and the significance of a codified or uniform approach to penalties rather than with the introduction of work rules per se.

Counsel then draws attention to the language in Re British Columbia Railway Co. and Canadian Union of Transportation Employees, Local 6, (1982), 8 L.A.C. (3d) 250. At page 261 where Arbitrator Hope discusses management’s rights. He notes:

At first blush there seems to be little distinction between the concept of reasonableness and the concept of contractual competence, but there is a vital difference that must be addressed when the nature of the dispute requires it. The question turns on an understanding of management’s rights. The right to manage the enterprise is residual to management, whether or not those rights are spelled out in the agreement. Management’s rights are lost only in the collective bargaining process and they do not have to be secured in the language of the agreement. See Brown & Beatty, Canadian Labour Arbitration. at para. 4:2300, pp. 168-9:

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

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

Arbitrator Hope discussed the principle enunciated in a number of cases and concluded, arising out of the Metro Toronto Police Com’rs. decision that:

… the decision makes it clear that the issue is not whether the disputed art of management is reasonable but whether it is within the contractual rights of the employer to initiate.

Against this background the Union raises the guarantee provisions under such Articles as 201, 308 and 401 (Rule 15).

It is the Union view that these Articles do not permit the reduction of salary imposed on employees after the assessment of discipline, ipso facto, the Railway is in breach of the Collective Agreement.


Counsel for the Railway points out that any violation of such rules as CROR 104 is negligence. The consequence of such negligence could result in a tragic ending. The operation of switches in compliance with this Rule is one of the most basic and fundamental duties that a trainman must perform in his day to day work.

The Grievor is a trainman of some 26 years of relatively discipline free service with the Railway. He is viewed as a fully experienced "professional trainman". These factors were considered in arriving at the decision to suspend the grievor.

The extremely serious nature of the Rule violation warrants both corrective discipline as well as deterrence to others.

In response to the Union argument that the disciplinary system is in breach of the Collective Agreement refers to three awards of previous arbitrators.

Arbitrator Ready in B.C. Railway (Redden grievance) made the following comment (at page 7):

During the two years that it has been in effect the Railway has imposed suspensions without pay on the employees in the Union’s bargaining unit. Exhibits tabled at the hearing support the conclusion that the union accepted the new disciplinary system, even if that acceptance was with reluctance.

He goes on to quote the language of Arbitrator Hope in Award 29 L.A.C. (3d) (at page 353):

The guidelines initiated by the Railway contemplate an enlightened and avant garde approach to discipline. In any case, the application of the principles it contains, as indicated, will be subject to review in each case. Further, no evidence was led in the hearing that would support a finding that the new Code has been challenged generally or had been placed in contest by the Union in this dispute. I repeat that I am not aware of any principle that prohibits an employer from unilaterally eliminating one discipline code and substituting another in its place.

And in a dispute under Section 112 of the Labour Code Investigator Brian Foley concluded:

In my view, the reference in Clause 107(b) (vi) to the fact that an employee found blameless ‘will be reimbursed for time lost’ must lead to the conclusion that employees withheld from service are denied salary when so withheld. Reading 107(b) (iv) and 107(b) (vi) together, I have concluded that the Company is entitled to deny salary payment to an employee withheld from service. Whether that action is fair and equitable is another matter … the Company has the right to take that action pursuant to the terms of the collective agreement. In reaching this conclusion, I have also considered the Union’s arguments that the guarantee provisions included in a number of articles do not permit the reduction of salary imposed when employees are withheld from service. …

In reply to the Union stance that Section 262 of the Railway Act provides a statutory bar on the Railway’s right to discipline under its present form Counsel draws attention to three separate Acts that effect Railway operations. These are the Railway Act, British Columbia Railway Act and the Industrial Relations Act. If there is any overlap as to disciplinary measures taken the first position in law is that statutory edicts should be complementary rather than contradictory.


A consideration of evidence and argument leads to the following conclusions:

Mr. Martin Howbold has indicated how the Railway is granted the authority to operate; this includes the right to discipline. The Ministry (Minister) adopts a monitoring role to rules and regulations that are in place, and are adhered to, to ensure safety for the public as well as employees.

The language of Section 262 does permit the Railway to fine either an employee or a member of the public (where applicable) a penalty not exceeding $40.00 for any violation arising out of bylaws, rules and regulations permitted under Section 261.

One must note that this is not a mandatory provision restricting any provincial Railway to this remedy. It is directory or permissive. A railway may utilize this avenue or section for the better enforcing of the bylaws, rules or regulations created under Section 261. Statutorily this gives a Railway the authority to prescribe a monetary penalty not exceeding $40.00 for the violations. But the power is discretionary. The mandatory provision is solely the amount after an invocation of the section.

Mr. Howbold testified that to his knowledge B.C. Rail had never utilized Section 262. There was no evidence that the Railway has acted under this section. This union arrow falls short of its mark.

Counsel for the Union argues that the guarantee clauses in the Collective Agreement are a bar to any discipline or suspension of the grievor.

Counsel for the Railway relies on the principle res iudicata citing the previously noted cases that bear on this point.

Brown and Beatty Canadian Labour Arbitration captures the prevailing principle as is stated at paragraph 1:3000:

… Thus, while recognizing that there is no operative doctrine of stare decisis, prior awards in similar cases have been given substantial persuasive weight by arbitrators. However, in assessing the precedential effect of prior decisions, arbitrators have distinguished between the binding effect of past awards under the same agreement between the same parties, the impact of awards of other arbitrators in like circumstances, and the consequences of judicial decisions.

With respect to the first of these, where precisely the same grievance is brought a second time by the same party or grievor, arbitrators have applied the doctrine of res judicata and have held the second grievance to be inarbitrable. As well, some arbitrators have held themselves strictly bound where the same term of the same agreement is raised for interpretation a second time, although this may not be so if they are of the view that the decision in the earlier award was "clearly wrong". The prevailing view has been summarized as follows:

It is not good policy for one Board of Arbitration to refuse to follow the award of another Board in a similar dispute between the same parties arising out of the same Agreement where the dispute involves the interpretation of the Agreement. Nonetheless, if the second Board has the clear conviction that the first award is wrong, it is its duty to determine the case before it on principles that it believes are applicable.

Of course, if the issues are not precisely the same, then this policy will be weakened and will more readily give rise to reasoned distinctions.

The guarantee provisions were raised as an issue before Investigator Foley. The guarantee provisions are found in Articles 201, 308 and 401 (Rule 15).

The instant argument is analogous to that before Investigator Foley. It was the Union view the guarantee provision articles did not permit the reduction of salary imposed on employees when withheld from service pending an investigation.

In the present issue the union applies the argument to the time off work after discipline has been assessed e.g. the ten (10) day suspension of Mr. Davis after an investigation had taken place.

Further the Railway says Arbitrator Ready has made a finding of fact that the Union has accepted the disciplinary system albeit reluctantly.

There is a distinction in the fact pattern that was before Investigator Foley and the main thrust of the Ready decision centred around a disclaiment of the meaning of fine/suspension.

For the nonce, if I suspend any possible effect of these decisions and view the question in isolation:

Do the guarantee provisions support a bar to the disciplinary system in its present form?

Canons of construction are fundamentally the same in any forum of law. Brown & Beatty expresses it thus:

It has often been stated that the fundamental object in construing the terms of a collective agreement is to discover the intention of the parries who agreed to it. As one arbitrator, quoting from Halsbury’s Laws of England, stated in an early award:

The object of all interpretation of a written instrument is to discover the intention of the authority, the written declaration of whose mind it is always considered to be. Consequently, the construction must be as near to the minds and apparent intention of the parties as is possible, and as the law will permit

And Further:

But the intention must be gathered from the written instrument. The function of the Court is to ascertain what the parties meant by the words they have used, - to declare the meaning of what is written in the instrument, not of what was intended to have been written; to give effect to the intention as expressed, the expressed meaning being, for the purpose of interpretation, equivalent to the intention.

Accordingly, in determining the intention of the parties, the cardinal presumption is that the parties are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions …

Close scrutiny of the guarantee provisions do not reveal expressly or impliedly that it was the intention of the parties that a wage indemnity under certain circumstances would also provide a guideline for, or obstruction to, disciplinary measures.

I am mindful that I cannot alter or vary a Collective Agreement.

For the Union to succeed therefore there must be some way to "connect the dots" so to speak between wage guarantee articles and the existing disciplinary system. There is no language or bridge that so indicates in the Collective Agreement.

As such is the case I look to the legitimacy of the discipline system itself. As Arbitrator Hope has expressed, supra:

The right to manage the enterprise is residual to management, whether or not those rights are spelled out in the agreement. See Brown and Beatty - Canadian Labour Arbitration at paragraph 4:2300 pp. 168-9.

A research of arbitral law results in the same conclusion as Arbitrator Hope, supra:

I repeat that I am not aware of any principle that prohibits an employer from unilaterally eliminating one discipline code and substituting another in its place.

This union arrow too falls short of its target.

Addressing the merits of the case invokes the three questions posed in William Scott & Sons, Co. Ltd, {1977} 1 Can. LRBR I (BCLRB):

1. Has the grievor given just and reasonable cause for some form of discipline by his Employer?

2. If the answer to question #1 is yes, was the discipline imposed an excessive response under all of the circumstances?

3. If the answer to question #2 is yes, what alternative measure should be substituted as just and equitable?

The transgression of the grievor is a grave one. Counsel for the company refers to the view of Arbitrator Albertini in B.C. Rail - and - Teamsters 213 (1988) unreported:

I subscribe to the belief that arbitrators should refrain from fine tuning discipline providing it falls within a reasonable range even if they are so inclined.

In an ordinary situation of assessment or review of discipline I am in agreement.

But discrimination is a well developed principle in arbitral jurisprudence. Brown and Beatty (at paragraph 7:4414):

Discrimination. Arbitrators have generally been sensitive to the basic principle that similar cases must be treated in a like fashion, which simply reflects a universal precept of fairness and justice. Accordingly, in assessing the reasonableness of a sanction imposed on an employee, arbitrators have regarded the penalties invoked by the employer in similar circumstances in the past as tending to reveal the actual concern that management has for such behaviour. Accordingly, when an employee is able to prove that other employees who engaged in the same conduct for which he was disciplined were either not disciplined at all, or suffered much less severe disciplinary sanctions, arbitrators generally will find the employer to have discriminated against that employee even though it may be established that the employer did not act in bad faith or did not intend to discriminate against her personally …

Mr. Howard, in breach of CROR 104, initially received a ten (10) day suspension. On a without prejudice basis the union successfully negotiated a reduced penalty of eight (8) days. Due to these circumstances this situation does not impact on the ten (10) day suspension given Mr. Davis.

However, it was agreed in evidence that another employee, Mr. Grant, received a five (5) day suspension for basically the same infraction of CROR 104. Although this may have been over the protestations of the Railway’s Labour Relations staff the company ultimately made the decision.

The Railway appears to recognize this principle in Exhibit 2 (at page 8):

Impartiality - The same disciplinary approach must be applied to all employees without personal favouritism. The surest way to undermine a discipline program is to discipline some employees but not others. It is a normal and understandable instinct for a supervisor to be more lenient with employees with whom he is particularly friendly. However, employees are quick to spot inequities in the handling of disciplinary matters. The employee’s sense of unfair treatment is probably the greatest when friendship is seen as the cause of disciplinary favouritism.

The Union also argued strenuously that the principle of discrimination must encompass the difference in penalties allocated to management personnel and union members, but as Mr. Eric Williams stated, when he acted in a supervisory capacity, he lost the protection of the Collective Agreement.

There can be different forms of discipline or punishment for management personnel and for union members, the latter protected under the Industrial Relations Act and a Collective Agreement.

I can also understand the grievor’s motivation in seeking relief by utilizing a second trip as a test experiment to support a reduced penalty. But there can be no mistake that other train crews or other employees had no influence on the grievor’s conduct in breaching CROR 104.

A breach of CROR 104 is certainly of sufficient magnitude and consequence to warrant a ten (10) day suspension. But impartiality or even-handedness is a test the Railway must face.

In view of the disparity in penalty between two employees for essentially the same infraction Mr. Davis’ penalty is reduced to a five (5) day suspension.

Dated at Vancouver, British Columbia, this 30th day of July, 1992.