AD HOC 463
IN the MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
re: DISCIPLINE AND DISCHARGE OF S&C TECHNICIAN L.-P. ANDERSEN
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
P. Sadik – Counsel, Toronto
J. E. Platt – International Representative, Nepean
L. Couture – Secretary/Treasurer, Hemmingford
K. Kearns – System General Chairman
L. P. Andersen – Grievor
Appearing For The Company:
K. R. Peel – Counsel, Toronto
F. O’Neil – Labour Relations Associate, Concord
D. H. Schenk – District Administration Officer, Concord
D. Morin – Supervisor, Capreol
M. E. Labine – S&C Leading Maintainer, Capreol
R. T. Leclair – S&C Technician, Capreol
A hearing in this matter was held in Toronto on Wednesday, March 17, 1999.
This arbitration concerns three grievances in relation to discipline, and discharge, assessed against S&C Technician L.-P. Andersen of Capreol, Ontario. The matters in dispute are reflected in the Statement of Dispute and Joint Statement of Issue which read as follows:
On July 16, 1996, S&C Technician Mr. L. Andersen PIN 810727 was assessed 15 Demerit Marks. According to Form 780, the reason was “Failure to comply with requirements of inputting fault reports into Signal and Communications Outage Reporting System.”
On October 4, 1996, S&C Technician Mr. L. Andersen PIN 810727 was assessed 20 Demerit Marks. According to Form 780, the reason was “Failure to comply with Supervisor’s request to provide information on your involvement with an A.E.I. outage Capreol West, 16 August 1996.
On October 10, 1997, S&C Technician Mr. L. Andersen PIN 810727 was assessed discharged from Company service. According to Form 780, the reason was “For your assault of employee R.T. Leclair both physically and with a weapon, that being Pepper Spray (Bear Guard), and your assault on temporary supervisor M.E. Labine, both assaults occurring on 23 July 1997.
JOINT STATEMENT OF ISSUE:
The Union contends that the discipline assessed Mr. Andersen is unwarranted and excessive.
The Union seeks the removal or reduction of the discipline against Mr. Andersen in respect of the first two incidents. With respect to his discharge it seeks a conditional order from the Arbitrator, rather novel in its terms, which could lead to his eventual reinstatement at the discretion of the employer.
There is no substantial dispute at to the facts, including the various incidents culminating in discipline. The grievor, Lars-Peder Andersen, entered the employment of the Company in May of 1975 as a radio technician. In late 1983 he became classified as a technician in the Company’s Signals and Communications Division, assigned to Capreol, Ontario. For some eleven years his responsibilities primarily involved bench radio repairs at the Company’s office in Capreol. In January of 1994, however, radio repair responsibilities were transferred to Winnipeg with the establishment of a central Electronic Repair Centre. From that time forward Mr. Andersen saw a change in his duties at Capreol, which came to include field repair work as a Signals and Communications Technician. It is common ground that the technician classification is remunerated at a higher level than the classification of maintainer, and that part of the role of the technician is to assist maintainers in problem solving in the field inspecting and repairing the Company’s railway signals and communications system.
Without recounting the extensive detail of Mr. Andersen’s work record and prior discipline, the Arbitrator is satisfied from the evidence that the transition from duties which were largely unsupervised, involving bench radio repairs in an office generally referred to as the Radio Room, to his new field responsibilities as an S&C Technician was one which was not happily or easily accomplished. The material filed by the Company, largely unrebutted by the Union, discloses that from 1994 onwards a substantial number of small incidents gave rise to repeated notations with respect to failures of performance on the part of Mr. Andersen, some of which resulted in corrective memos and interviews. The types of conduct reproached varied from the failure to properly complete his work to ignoring directives to tidy his office and failing to properly complete documentation on work performed.
The first grievance concerns fifteen demerits assessed against Mr. Andersen for his alleged failure to report certain equipment abnormalities in March and April of 1996. It is common ground that Mr. Andersen was required to enter fault reports on the Company’s Signal and Communications Outage Reporting System (SCORS). The importance of logging problems had previously been brought to his attention on more than one occasion, by writing and e-mail from his supervisor. The record before the Arbitrator discloses that in March of 1996 Mr. Andersen was involved with two hot box detector system defaults, was well as with a problem at an AEI site at Sudbury. It would appear that the problems in question arose on March 19 and 27, and April 17, 1996. No recordings or loggings of the abnormalities into the SCORS system were made by the grievor until April 20, 1996, the same day he received a notice from his supervisor to attend a disciplinary interview in relation to those very failures of documentation.
On an examination of the record the Arbitrator is satisfied that the grievor offered no good explanation for his failure to record problems within the SCORS system, as was his obligation. In the result, I am not inclined to disturb the Company’s decision to assess fifteen demerits for that infraction, to be added to the ten demerits previously recorded against the grievor’s record. The grievor knew, or reasonably should have known by reason of prior cautions and interviews addressed to him, that his failure to properly record and document outages and equipment breakdowns was reasonably viewed by the Company as a serious matter, in respect of which he would be subject to progressive discipline.
The second assessment of demerits was made on October 4, 1996, when Mr. Andersen was assessed twenty demerits for unacceptable performance. The material before the Arbitrator discloses that Mr. Andersen was apparently unable to solve a problem at an AEI site at Capreol West, where an outage occurred on or about August 6, 1996, although he worked on the problem for some two days. It was eventually solved by another technician with two hours’ work. When Supervisor D.J. Morin sought a full explanation from Mr. Andersen of his failure to resolve the outage, no information was forthcoming, as a result of which a further disciplinary statement was scheduled for October 3, 1996. At the time of the investigation the grievor was compelled to admit that he had provided no explanation or documentation to explain his involvement with the Capreol West AEI outage or his failure to repair it. As appears from the investigation, Mr. Andersen then expressed the view that his supervisor was “out to prove [him] incompetent”. Unsatisfied with his explanation, based largely on Mr. Andersen’s suggestion that he had been hampered by defective parts, the Company assessed twenty further demerits against his record.
On the basis of certain of the statements made during the course of the disciplinary interview by Mr. Andersen, counsel for the Union submits that he evidenced feelings of paranoia, and general suspicion towards his supervisors. While counsel does not suggest that those feelings were justified, he submits that they may have clouded the grievor’s judgement and affected his ability to properly perform the work assigned to him. He further submits that the assessment of twenty demerits was excessive in the circumstances, given the relatively trivial nature of the offence.
Again, with the greatest respect to the position of the Union, the Arbitrator has difficulty sustaining this aspect of the grievance. It does not appear that the gravamen of the offence committed by Mr. Andersen was his inability to solve the problem assigned to him, so much as his recidivist failure to provide an adequate explanation in a timely manner. There also appears to be some concern on the part of the Company that if the grievor was burdened by defective parts, that problem would be traceable to his own failure to order and stock such parts in a proper and timely manner. On the whole, the Arbitrator cannot see any reasonable basis to disturb this further assessment of discipline, which I am satisfied was made in a manner consistent with general principles governing the assessment of progressive penalties for the purposes of rehabilitation.
The last incident which is the subject of these grievances involves a disturbing episode of violence. The evidence discloses that on July 23, 1997 Mr. Andersen entered into an argument with fellow employee R.T. Leclair. It appears that on the day prior Mr. Leclair was dispatched to repair an outage which Mr. Andersen had been unable to fix. During the encounter, which occurred in Mr. Leclair’s office, Mr. Andersen attempted to snatch away a circuit board from Mr. Leclair. Being unsuccessful, immediately afterwards Mr. Andersen threw two electronic printed circuit boards at Mr. Leclair, who was then seated with his back to the grievor. The circuit boards struck Mr. Leclair on the back of the head. When he rose to confront Mr. Andersen the grievor immediately punched Mr. Leclair in the face and, when Mr. Leclair moved to follow Mr. Andersen who was then leaving the office, the grievor turned and kicked Mr. Leclair in the shin. It may be noted that in the subsequent disciplinary investigation Mr. Andersen did not deny throwing the circuit boards at his co-worker, or that they struck him in the back of the head.
Mr. Andersen then proceeded down the office corridor where he entered another office occupied Mr. M.E. Labine, an S&C Leading Maintainer who was then fulfilling the functions of a temporary supervisor at Capreol. Mr. Andersen also attacked Mr. Labine, shoving him against a cabinet and kicking him on the knee, whereupon he left the building.
Mr. Andersen then proceeded to his personal truck parked outside the administration building. He there retrieved a cannister of pepper spray, known as “Bear Guard”, intended to protect against bear attacks. He re-entered the administration building, returning directly to Mr. Leclair’s work station. He then demanded that Mr. Leclair surrender the circuit board, a piece of equipment which Mr. Leclair had already explained to Mr. Andersen was being kept as a spare for a Company equipment site. The grievor then advanced towards Mr. Leclair and sprayed him in the face, just after Mr. Leclair had called for two other co-workers to come to his rescue.
Events then moved quickly. The grievor immediately exited the building, returning the pepper spray to his truck. Meanwhile the two employees summoned by Mr. Leclair attended to him and called 911 for assistance. Shortly after ambulance attendants appeared to treat Mr. Leclair, upon discovering what had occurred Assistant District Manager, Engineering, S.J. Clark confronted Mr. Andersen, who had returned to the administration building. He insisted that the grievor provide him the spray can, to assist the paramedics in determining the appropriate antidote. The grievor complied with that request, after which he was advised by Mr. Clark that he was out of service pending a disciplinary investigation. Fortunately there were no lasting injuries to Mr. Leclair and he required no further treatment from the ambulance attendants as the effects of the spray wore off fairly quickly.
CN Police were advised of the incident, and eventually involved the Sudbury Regional Police, who were cautioned that the grievor was a known gun collector. Mr. Andersen was criminally charged, and on July 21, 1998 pleaded guilty of one charge of assault with a weapon and a further charge of possession of a weapon. He was made the subject of a restraining order in respect of former co-employees and was given a suspended sentence of twelve months.
The grievor was given notice of a disciplinary investigation originally scheduled for July 29, 1997 arising out of the pepper spray incident. Following Mr. Andersen’s failure to attend the scheduled investigation, the matter was rescheduled and a statement was eventually taken from Mr. Andersen on September 30, 1997, the grievor then being accompanied by a Union representative and a further witness. The thrust of Mr. Andersen’s defence, which the Arbitrator rejects, is that he was provoked and initially assaulted by Mr. Leclair. He stated, in part, that he pepper sprayed Mr. Leclair as the latter was rising from his chair, because Mr. Andersen then feared for his own safety. During the course of the investigation statements from other employees, including members of the grievor’s own bargaining unit, confirmed their own fear of being required to continue to work with him. Mr. Andersen was discharged effective October 10, 1997 as a result of his assault on both Mr. Leclair and Mr. Labine.
It is well settled that the assault of one employee by another can, in appropriate circumstances, lead to the most serious of disciplinary consequences. Further, in such cases, the introduction of a weapon is generally seen as a serious aggravating factor. (See, e.g., Re Automotive Industries, Weston Division and Amalgamated Clothing & Textile Workers Union, Local 1813 (1992), 27 L.A.C. (4th) 251 (M. Levinson); Re General Tire Canada Ltd. and United Rubber Workers, Local 536 (1983), 10 L.A.C. (3rd) 289 (Swan); and CROA 1975 (M.G. Picher).)
Counsel for the Union makes an innovative and compassionate submission in the case at hand. He does not attempt to diminish the gravity of the actions of Mr. Andersen. Rather, he stresses to the Arbitrator that the grievor, who did not attend at the hearing, has through the entire piece behaved in an irrational manner suggestive of a severe emotional and/or mental disorder which should be seen as explaining his actions and mitigating the disciplinary consequences. Counsel for the Union submits that an examination of the record of the three incidents, culminating in Mr. Andersen’s discharge, confirms that he suffers from a condition of paranoia, labouring under the belief that his co-workers and supervisors consistently attempted to prove him incompetent, in an effort to undermine his job security. Counsel submits that that is the only rational basis upon which the admittedly irrational actions of Mr. Andersen can be understood. He hastens to add that the Union makes no suggestion that there is any substance to the alleged delusions of Mr. Andersen with respect to being persecuted by fellow employees and supervisors. Rather, he submits that the grievor’s failure to seek assistance, either individually or through the Company’s EFAP program, and his similar rejection of such suggestions advanced by the Union, confirm that there is reason to believe that his conduct is the result of an emotional or mental condition beyond his control, and that he should therefore not be made the subject of an unconditional termination of employment.
Counsel for the Union concedes that the argument so made is entirely undocumented. Because of the grievor’s refusal to cooperate, the Union is without any professional or medical opinion to sustain its suggestion that Mr. Andersen suffers from a clinical condition which is a substantial mitigating factor that would justify an arbitral order which could lead to his return to work. Additionally, counsel stresses that the Union does not seek Mr. Andersen’s reinstatement at this time. Rather, he requests the Arbitrator to issue an order whereby the Company is given the discretion, to be exercised in good faith, to reinstate Mr. Andersen into his employment upon being presented with satisfactory medical or professional evidence to confirm firstly that his actions were the result of an emotional or mental disability, and secondly that his condition has been satisfactorily treated to the point that he can safely return to employment with the Company, in such capacity as may be appropriate to his personal circumstances, including a position other than that from which he was discharged, but for which he is qualified.
Counsel for the Company strenuously resists the submission of the Union. He argues that it is not the place of the parties, or of the Arbitrator, to make uninformed or undocumented suppositions about the mental or physical state of a grieving employee. He adds that, by the Union’s own admission, there is no jurisprudential precedent for the remedy which it seeks in this case. Noting that psychiatrists themselves may often differ as to a particular diagnosis, counsel for the Company suggests that the approach suggested by the Union is fraught with danger. He stresses that that is especially so where, as in the instant case, the grievor has not consented to an argument being made with respect to the state of his emotional or mental health, and has expressed no endorsement of the approach suggested by his bargaining agent.
I turn to consider the merits of the competing positions so argued. Firstly, there can be no doubt but that Mr. Andersen did engage in a calculated act of violence of a type which would plainly sustain discharge, absent clear mitigating evidence to explain or diminish the consequences of his actions. Secondly, as counsel for the Company stresses, there is no evidence whatsoever before the Arbitrator in the way of a documented professional opinion, viva voce expert testimony or otherwise, to confirm the Union’s suggestion that Mr. Andersen must have been labouring under some form of emotional or mental disability. By the standards of the established jurisprudence, the grievor’s actions would give ample justification for his discharge, and the material presented would offer little, if anything, by way of mitigating evidence to support a reduction of the penalty. The evidence establishes beyond contradiction that Mr. Andersen violently assaulted two employees, and that in respect of one of them his actions reflect something more than a spur of the moment outburst. As regards Mr. Leclair, Mr. Andersen first struck him from behind, in the back of the head with thrown objects, and then proceeded methodically to his truck, returning with pepper spray with which he assaulted him, without physical provocation and without any subsequent remorse. His failure to cooperate with the Union or to attend at the arbitration hearing do little to dispel the most negative impression of his actions, and tend to give substance to the expressed fear of several employees who insist they will not work any longer in his company.
The Arbitrator well appreciates the sense of human compassion which motivates the remedial argument put forward by counsel for the Union. It is indeed arguable that the grievor’s statements and conduct, viewed over an extended period of time, would give a reasonable person cause to be concerned about his emotional or mental stability. The remedial submission made by the Union, however, raises fundamental jurisprudential questions which go to the heart of the arbitration process and the most fundamental role of a board of arbitration.
For many years arbitrators have ruled and written thoughtfully about their own remedial powers, and how to deal with the “troubled employee”. The arbitral jurisprudence has evolved, sometimes in advance of statute law, to recognize the need for compassion in dealing with employees with physical or mental disabilities. However, the evolution of arbitral thought in this area has always developed in a manner consistent with the fundamental role of the arbitration board as the adjudicator of contractual conflicts, and not as a social agency that can act beyond such jurisdiction as is conferred upon it by the parties or by statute. Arbitration as we know it is based on the judicial model in which burdens of proof are upon the parties, evidence is advanced and conclusions of fact and law, as well as remedies, are grounded in objective evidence gathered and presented by the parties. It is manifestly not an inquisitorial system in which the arbitrator uses his or her remedial authority to gather evidence or to assist in its creation.
It would, of course, be open to parties to a collective agreement to give arbitrators the jurisdiction to make remedial orders on supposition, without the kind of evidentiary basis that has traditionally been required. The scholarly literature suggests, however, that labour arbitrators should not venture onto such ground without the agreement of the parties. Much of the debate in recent years concerning the remedial discretion of arbitrators has focused on the weight to be given to post-discharge evidence. That evidence, however, is generally clear and presentable at the arbitration hearing. I know of no precedent which would base a remedial order on post-hearing evidence, the very production of which would be prompted by the remedial order itself. In my view, to venture in the direction of making remedial orders without a responsible evidentiary basis risks compromising the perceived neutrality of the tribunal and undermining the very integrity of the arbitral process. (See, generally, L. Fuller, “Collective Bargaining and the Arbitrator” (1963) Wisconsin L. Rev. 3; P.C. Weiler, “The Role of the Labour Arbitrator: Alternative Versions” (1969) U. of T. L.J. 16; P.C. Weiler, “The Remedial Authority of the Labour Arbitrator: Revised Judicial Version” (1974), 52 Canadian Bar Review 29; D.R. Nolan and R.I. Abrams, “The Labor Arbitrator’s Several Roles” (1985) 44 Md. L. Rev. 873; George Nicolau, “The Arbitrator’s Remedial Powers”, in Arbitration 1990, New Perspectives on Old Issues, Proceedings of the 43rd Annual Meeting, National Academy of Arbitrators (Washington: B.N.A. 1991 at 73); Kenneth P. Swan, “The Arbitrator as Social Engineer” 1998 Labour Arbitration Yearbook (Toronto, Lancaster House, 1998 at 3.)
U.S. arbitrators Marvin F. Hill and Anthony V. Sinicropi well expressed the contractual constraint on remedies in cases involving the discharge of troubled employees. In “Remedies, Troubled Employees, and the Arbitrator’s Role”, Proceedings of the 42nd Annual Meeting, National Academy of Arbitrators (Washington, B.N.A. 1990 at 160). At p. 169 they comment as follows:
It seems safe to conclude that as the parties adopt new policies to deal with troubled employees, arbitrators will react and formulate appropriate remedies when it is determined that there is a nexus between the employee’s problem and the conduct at issue. They are, however, unlikely to plow new ground and adopt expansive policies and remedies (read therapeutic model) which have not been contemplated by the parties.
In the Canadian system of industrial relations arbitration is a statutorily sanctioned process for the resolution of contractual disputes. At its heart, it involves the final and binding resolution of a dispute by the weighing of evidence and the consideration of competing arguments submitted by two litigating parties. Implicit within that system is the understanding that a board of arbitration is charged with deciding the dispute before it on the basis of the evidence and arguments advanced. Within that process, either party can be hampered by its inability to have access to certain evidence, whether in the form of documents or witnesses. To a limited extent, boards of arbitration are given powers of production, and subpoena powers, to bolster the effectiveness and efficiency of the arbitration process. Such powers are not granted, however, to allow the adjudicator to “help” either party to make its case in whole or in part. Rather, they are an intrinsic part of traditional rules which have evolved under the common law to ensure the orderly unfolding of a hearing in a manner consistent with fairness and due process, and in keeping with the neutrality of the tribunal.
Arbitrators must remain mindful of the limitations of this role, if the credibility of the system is to endure. Upon careful reflection, I must conclude that the request put forward by the Union in this grievance, however well intended, goes beyond the legitimate limits of what a board of arbitration can or should do. For the best of motives, counsel for the Union in effect asks this tribunal to become active in assisting the Union to get the grieving employee to admit to a mental disability and to obtain treatment in furtherance of his reinstatement. So understood, the remedial direction sought by the Union in this case is, without any prior medical evidence, tantamount to assisting the Union by notifying the grievor that if he should change his course of conduct, obtain a professional or medical diagnosis and follow the appropriate course of treatment, he may eventually satisfy conditions which will lead to his reinstatement. To follow such a course would take the Arbitrator beyond being a judge of objective evidence, to being an instrument to change, influence or develop the evidence in a manner that would advance or improve the case of one of the parties. Quite apart from the obvious difficulties, stressed by counsel for the Company, of a board of arbitration involving itself in speculative psychiatry, such a course of conduct risks dragging the adjudicator into the heat and dust of the arena, in a manner that would undermine the credibility of the arbitration process, and which is plainly not mutually endorsed by the parties.
Absent agreement to the contrary, orders of reinstatement, however conditional, must be based on proper supporting evidence which confirms a likelihood of rehabilitative success. For the reasons touched upon above, it is unwise, and in my view incorrect, for a board of arbitration to become, by its remedial order, an agency actively engaged in attempting to change the very facts that govern the merits of the dispute before it. While such constructive endeavours may be the appropriate province of an employer, a union or a mediator, they do not properly lie within the authority of an arbitrator absent the agreement of the parties.
The Arbitrator is without any documentary medical evidence to establish, even prima facie, that the grievor suffers from an emotional or mental disability with a causal nexus to the unfortunate conduct which resulted in his discharge, or that he is willing to co-operate with any rehabilitative efforts. In the circumstances, for the reasons related, I am compelled to decline to make the finding and remedial request sought by the Union, however well intended. The grievance must therefore be dismissed. Needless to say, however, given the length and quality of the grievor’s service, nothing in this award would preclude the Company from considering his reinstatement in such circumstances and subject to such future conditions as it might, in its own discretion, consider appropriate.
Dated at Toronto, April 6, 1999
(signed) MICHEL G. PICHER