BETWEEN:

(the "Company")

AND

(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:

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:

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,

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:

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:

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:

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:

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:

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:

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

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):

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

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

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:

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:

And Further:

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:

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

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):

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:

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):

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):

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.