AD HOC 316

AWARD

In this dispute, C.C. Lewis, a locomotive engineer, was given a five-day suspension on July 19, 1991 in response to an allegation that he had operated his train in excess of applicable speed limits between mileage 451.5 and 453.6 on May 29, 1991. The Union did not contest the fact that the grievor was speeding and conceded that his conduct was deserving of discipline in the sense contemplated in Wm. Scott & Co. and Canadian Food & Allied Workers Union, Local P-161 {1977} 1 C.L.R.B.R. 1 (Weiler). Its submission was that the five-day suspension must be seen as excessive when all of the relevant circumstances are examined.

The former Labour Relations Board described the test to be applied by an arbitrator in the review of a dismissal under s. 93 and s. 98(d) of the Code (those provisions remain unchanged in the current Industrial Relations Act). On p. 5 the Board wrote as follows:

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 terms of that test, the Union submission was that the penalty must be seen as excessive because it was not consistent with the disciplinary approach the Railway had taken to the offence of speeding in the recent past and, in any event, that it was clear in the circumstances surrounding the imposition of the penalty that the Railway had taken into account an irrelevant factor in determining what would constitute an appropriate penalty. In particular, the Union submitted that the Railway associated the speeding with the destruction by fire of a railway bridge which had resulted in the Railway’s main line being shut down for a period of three weeks. The initial theory of the Railway was that sparks caused by braking as the train reduced its speed had caused the bridge to catch fire. However, that theory was rejected by an investigating team made up of officials from the Office of the Fire Commissioner, the Royal Canadian Mounted Police, the B.C. Forest Service and the Railway.

The possibility that the fire that destroyed the bridge had been ignited by the freight train was specifically rejected and the conclusion was that it was an arson fire in which the bridge had been deliberately ignited. In short, there was no factual basis for relating the incident of speeding with the subsequent destruction of the bridge. That conclusion was confirmed in a report filed May 29, 1991.

On the evidence it seems clear that the Railway continued to associate the two events. In a letter sent by the Railway to the Union on September 20, 1991 at Step 2 of the grievance procedure, the following passage appears:

Although the evidence continued to indicate the cause of the fire was as a result of the speed involved and the breaking that took place to reduce his speed in an attempt to get down to permissible speed, conclusive agreement could not be reached at the time, and a lesser charge of exceeding permissible speed was broad forward.

When that comment is read in the context of the letter generally, it is apparent that the seriousness with which the incident of speeding was viewed by the Railway was influenced heavily by the destruction of the bridge. In that context, it is clear in the arbitral authorities that the onus upon an employer seeking to meet the statutory obligation to prove just cause for the imposition of discipline is to prove all relevant facts relied on to support the disciplinary initiative. Here the evidence did not support a finding that the speeding had any connection with the bridge fire and I must conclude on the evidence that giving that factor any weight amounted to the consideration of an irrelevant factor in the assessment of the appropriate penalty.

I note further that there is an expectation in the arbitral authorities, commencing with the Wm. Scott Case, that a pattern of progressive discipline will be applied so as to achieve a corrective result. In Wm. Scott & Co. the Board wrote as follows on p. 3:

Because the employer is now entitled to escalate progressively its response to employee misconduct, there is a natural inclination to require that these lesser measures be tried out before the employer takes the ultimate step of dismissing the employee, and thus cutting him off from all of the benefits associated with the job and stemming from the collective agreement.

The Railway introduced a discipline guide which applies a progressive approach to discipline and implicitly acknowledges the need to adopt a remedial approach to corrective discipline. One of the primary principles with respect to disciplinary initiatives on the part of an employer is that it must be consistent. Here the evidence disclosed that for the ten-year period between May 27, 1981 and May 29, 1991, being the date of this incident, the only discipline imposed on a locomotive engineer for the offence of exceeding speed limits was a written warning imposed on Douglas C. Rydall, on April 30, 1991. The investigation reports prepared with respect to the Rydall incident and the incident involving the grievor were filed in the hearing. Accepting the submission of the Railway that the incident in question in this dispute was more serious in its implications, it must be said that there is a considerable difference in terms of severity and disciplinary implications between a written warning and a five-day suspension without pay.

Hence, in terms of consistency, the Railway was not successful in reconciling the difference in approach taken in the two incidents, being the only two recorded incidents in a period of ten years in which discipline was imposed for that particular offence. The Railway filed evidence of instances of discipline imposed for other offences involving excessive speed, but that history did not support the conclusion that the imposition of a five-day suspension for an incident of excessive speed, albeit a serious one, was consistent with the Railway’s discipline policy.

On the facts I conclude that the incident in question was the first time any penalty greater than a written warning had been imposed on an engineman for any excessive speed offence in a period of ten years. The governing principles require that members of the bargaining unit be given reasonable notice that the seriousness with which the offence of excessive speed was regarded by the Railway had increased and that significant penalties would be imposed for future infractions. In that context there is in the arbitral authorities a concept in which inconsistencies in disciplinary patterns can be seen as lulling employees into a false sense of security with respect to how particular acts of misconduct will be perceived. See Brown and Beatty, Canadian Labour Arbitration, (1992), para. 7, 4314 p. 7-167 to 169.

In that same vein, it is incumbent upon an employer to establish just cause for the particular penalty selected. In Simon Fraser University and AUCE, Local 2, 17 L.A.C. (4th) 129 (Munroe), Mr. Munroe wrote as follows on p. 135:

I take it to be well settled that in a discipline case, the onus rests with the employer to show not only that just or proper cause existed for the imposition of a disciplinary sanction, but also for the imposition of the particular penalty selected.

Here the Railway was required to establish that it had just cause to suspend the grievor without pay for five days. On that outline of the facts, issues and authorities, I turn to a resolution of the dispute.

I conclude on all of the relevant circumstances that the grievance should be granted in part. In particular, I have concluded that a five-day suspension was inconsistent with the disciplinary approach taken by the Railway in the period prior to the imposition of the suspension on the grievor. The Railway succeeded in establishing that speeding in the circumstances present in this dispute did constitute a serious act of misconduct, but it was obligated under the principles governing the corrective approach to discipline to put employees on notice that speeding infractions would attract significant penalties in the future.

In my view an appropriate resolution of the dispute would be to reduce the penalty to a two-day suspension and provide the grievor with compensation for his wage loss for the remaining three days. I will retain jurisdiction to assist the parties in the calculation of that amount if it becomes necessary. In the result, the grievor’s discipline record should be amended to disclose that a two-day suspension was imposed for the offence in question.

It goes without saying that members of the bargaining unit who are vulnerable to accusations of excessive speed should be taken to have been put on notice that the Railway considers it a serious infraction which will attract significant discipline. That is not to say that the Railway will be relieved in future grievance and arbitration proceedings of the obligation of establishing that it had just cause to impose a particular penalty. But it is to say that the bargaining unit will be taken to have been notified of the attitude of the Railway to similar infractions and employees will not be in a position to argue, in effect, that they are taken by surprise if speeding offences attract such a penalty.

DATED at the City of Vancouver, in the Province of British Columbia, this 2nd day of November, 1992.

(signed) H.ALLAN HOPE

ARBITRATOR