IN THE MATTER OF AN ARBITRATION
BRITISH COLUMBIA RAILWAY
THE COUNCIL OF TRADE UNIONS ON THE BRITISH COLUMBIA RAILWAY ON BEHALF OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL NO. 170
IN THE MATTER OF THE GRIEVANCE of Messrs. McNeill, Pillay, Gratton, Tara and Nand
SOLE ARBITRATOR: Dermod D. Owen-Flood, Q.C.
There appeared on behalf of the Union:
There appeared on behalf of the Company:
A hearing in this matter was held at Vancouver, B. C. September 9 and 10, 1985 October 29, 1985
At the outset of this Arbitration, both parties conceded that the Board was properly constituted and had jurisdiction.
THE QUESTION AT ISSUE:
There are before the Board, five individual grievors, namely Messrs. McNeill, Pillay, Gratton, Tara and Nand.
They were each assessed thirty (30) demerit points under the Brown System of discipline, a system of discipline that is peculiar to Railway Companies.
Each of the grievors was assessed the thirty (30) demerit points because each had allegedly disobeyed an order to report for overtime duty on Saturday, February 16, 1985.
Counsel for each of the parties had a different perception as to what was the real question at issue. Mr. Norman, for the Union, said that in his view, the question at issue basically was whether or not it was reasonable for each of the employees to decline to work overtime in the circumstances in question. Mr. Norman went on to say that if the answer to that question was in the negative, then the Board had to consider whether or not there had been, in fact, insubordination established and if there was insubordination, was the penalty of thirty (30) demerit points appropriate in each instance.
Mr. Dorsey, Counsel for the Employer, said that the question at issue was "does the Employer have the right to direct compulsory overtime and discipline for insubordination those employees who without a valid personal reason, refuse to work as directed, the overtime?" Mr. Dorsey went on to say that, of course, if there was a right to direct compulsory overtime and discipline for insubordination, then the Board had to consider whether or not the penalty was appropriate.
THE FACTS COMMON TO BOTH PARTIES:
Both parties were at one in their view that each of the individual grievors was a good, valued and normally dependable employee and that each of the employees had an unblemished record.
THE EVIDENCE AND SUBMISSIONS:
The evidence and submissions of counsel were detailed and lengthy. I have considered all of the evidence and all of the submissions. In this Award, I have highlighted those parts of the evidence and submissions which I find to be decisive of this case.
THE CASE FOR THE EMPLOYER:
The Employer’s first witness was Mr. Heinz Schmich. He was affirmed and testified as follows:
1. That he is and has been the Supervisor of the Wheel Shop at the Squamish Depot since 1971.
2. That the Wheel Shop services wheel sets consisting of axles, two wheels and two bearings. These arrive in the Shop and are processed in a continuous production line.
He said that during February, there was an urgent need for the Wheel Shop to do overtime in order to expedite the production of finished sets of wheels as there was a shortage of them in the Railway System.
3. He said that in his years at the Wheel Shop, he had followed a definite routine whenever overtime was necessary, such as happened in February, 1985. He said that the normal procedure was he and his Foreman would determine how many men would be needed for how long a period and for what days of overtime. They would then, in effect, get volunteers. If people refused, they would get other volunteers. Until the incident which gave rise to the five grievances before this Board, there never had been any problem in getting volunteers.
4. Mr. Schmich said that Mr. Dorosh, the Works Manager for the Squamish complex of B. C. Railway, instructed Mr. Schmich that the wheel situation in the Railway system was deteriorating in January and February of 1985 and it was decided by Mr. Schmich, in consultation with Mr. Dorosh, that it would be necessary to have six men work overtime during the January and February period of 1985. Overtime was worked on January 19th and January 20, 1985 on a voluntary basis.
5. Mr. Schmich said that he made a decision to endeavour to get a crew together on a voluntary basis to work overtime because of the urgency occasioned by the grave shortage of wheels in the Railway system for overtime to be worked on Saturday, February 16, 1985. On Thursday, February 14, 1985, Mr. Schmich gave orders to his Foreman to arrange for new axles to be brought in so that they would be available to be worked on during the overtime that he was going to schedule for Saturday, February 16, 1985. He also arranged for a run of wheels to be brought in. Mr. Schmich said that on Thursday, February 14, 1985, he arranged for six people who gave him commitments to work the overtime on the following Saturday. Those six people were Mr. Adolf Vetter and the five grievors already named. They all agreed on Thursday, February 14, 1985, said Mr. Schmich, to his request that they agree to work overtime on Saturday, February 16, 1985.
6. On the following day, Mr. Schmich said that he was informed that the five grievors were taking the position that they would work on the Saturday in question but only if the Union gave its consent to that work being done by them.
7. When Mr. Schmich heard about this, he then, on Friday, the 15th of February, 1985, directed his Foreman, Mr. Russell, to whom he gave a list with the names of the six people, to talk with each of them and see if they would work on the Saturday in question. Later that afternoon of Friday, the 15th of February, 1985, Mr. Russell reported back to Mr. Schmich that none of the five grievors had agreed to work the overtime on Saturday unless the Union gave its blessing.
8. Mr. Schmich said he then was in touch with Mr. Dan Pysh and Mr. Carkener of the Personnel Relations Department of Management, at Squamish. Mr. Schmich said he arranged a meeting for approximately 3:30 in the afternoon of Friday, February 15, 1985, of all of the men employed in the Wheel Shop. At that meeting which was addressed by Mr. Schmich, Mr. Schmich made clear that there was a shortage of wheels and that it was necessary for overtime to be scheduled on Saturday and that he had arranged for six people to do overtime.
9. Mr. Schmich said that he informed the meeting that the six people who had given him commitments to do overtime had reneged on their promises. He said that that was simply not good enough and if they did not do the work as required, they would each be disciplined.
10. Mr. Schmich said that the next speaker was Mr. Wayne Carkener who repeated what Mr. Schmich had said and said that if the six people in question did not work, it would result in discipline. It was made clear, said Mr. Schmich, that the people were not going to work and at the conclusion of the meeting he, Schmich, tried to talk with some other people, including Jim Osborne and Malcolm McEwen, to see if they could be persuaded to get people to work. He also spoke to Adolf Vetter who was one of the six who had given a commitment and who, in fact, did work the overtime on the Saturday in question.
11. After work, on Friday, February 15, 1985, Mr. Schmich said he tried to contact, by telephone, each of the six men in question. He contacted Mr. Nand who told him that he would work overtime on Saturday providing the Union agreed. Mr. Tara said the same thing. Mr. Bisla said that he would work providing his eye which had been troubling him was all right. On the following morning, Saturday, February 16, 1985, Mr. Bisla said he couldn’t work because of his eye. Mr. Schmich said that he was unsuccessful in his attempts to contact the grievor, Mr. Pillay, who lives in Vancouver as he, Schmich, did not happen to have a Vancouver phone number for him. Likewise, he did not have a phone number for Mr. Gratton and did not make contact with him. Mr. Schmich said he did not get any reply when he tried to phone Mr. McNeill. Mr. Vetter phoned Mr. Schmich and said that if he was needed, he would work. Mr. Vetter did, in fact, come in and do the work in question.
12. The following Monday, the 18th of February, 1985, Mr. Schmich took part in the decision with Mr. Dorosh, Mr. Carkener and Mr. Dan Pysh, which resulted in the thirty (30) demerit points.
In cross-examination, Mr. Schmich conceded that on all prior occasions, people had been permitted to turn down requests to work overtime with or without giving reasons. This was the first occasion, Mr. Schmich conceded, that discipline had ever been meted out and that was because the overtime in this case was put to the employees on a mandatory as opposed to a voluntary basis. That was made clear to the employees on Friday, the 15th of February, 1985.
Mr. Schmich, in cross-examination, was positive that he had received commitments from each of the five grievors on Thursday, February 14, 1985 to work overtime. Mr. Schmich, in cross-examination, made clear that he mentioned that the need to do the overtime was because of an emergency situation caused by a shortage of wheels in the system. He said he mentioned the emergency factor on Friday, February 15, 1985 and not as Mr. Norman suggested in cross-examination, on Thursday, February 14, 1985.
Mr. Schmich said that if he hadn’t obtained the voluntary commitments on Thursday, February 14, 1985, he would have there and then raised the matter with the Superintendent of the Squamish Works, Mr. Dorosh. Mr. Schmich insisted, notwithstanding a vigorous cross-examination, that the fact of the matter was that prior to the meeting on the Shop floor of the afternoon of February 15, 1985, he, Schmich, had only approached six people, including the five grievors already mentioned. If people like Mr. Osborne were approached, said Mr. Schmich, they were approached after the meeting on the Shop floor.
In cross-examination, Mr. Schmich testified that at the meeting, Mr. Carkener explained to everybody that the Company needed five people for overtime and if the Company didn’t get the people for overtime, the Company was going to designate people to work on Saturday and if designations were ignored, then those who ignored them would be disciplined. He said that the meeting resulted in an uproar with various people objecting to overtime being worked.
Everyone, said Mr. Schmich, was shouting out that they would not work overtime unless the Union agreed.
Mr. Schmich went on to say that Mr. Carkener appealed to people generally to work overtime but it was made clear by the people at the meeting that no one would work overtime unless the Union agreed. Mr. Carkener said he did not know why the Wheel Shop men took this attitude because, as he put it at the meeting, the Company was going back to the bargaining table.
Mr. Schmich went on to say that after the meeting in the washroom area, he tried desperately to get some people together to make up the overtime team. Everyone he spoke to made it clear that as far as the bargaining unit was concerned, they had no intention of defying Mr. Schmich as their Supervisor, it was simply that the overtime issue was part of a larger problem.
Mr. Schmich did not deny that he may have asked another member of the bargaining unit, Manfred Neubert, to work overtime.
Mr. Schmich also did not deny that the grievors, Nand and McEwen, were both trying, during the meeting, to contact a Shop Steward so that a Shop Steward could attend.
Mr. Schmich said that apart from asking Mr. Neubert to work overtime, a request that was made shortly after 4:00 o’clock, namely after Mr. Neubert had finished work, he also asked a Mr. Osborne to work overtime. Both Mr. Neubert and Mr. Osborne refused to work overtime.
Mr. Schmich testified that either on Friday afternoon, after work, or at the latest, on Saturday morning, he spoke to Mr. Nand, the grievor, by telephone, and warned him that if he didn’t work overtime on Saturday, there could be disciplinary action. Mr. Nand told him, on Saturday morning, that his daughter was ill and he, Nand, had to drive his wife and daughter to the Hospital.
Mr. Schmich said that he approached a Mr. Bisla after work late on Friday afternoon and asked him to work overtime. Mr. Bisla said that he would let Mr. Schmich know on Saturday morning whether or not he could work. The problem, said Mr. Bisla, was that his eye was troubling him. On Saturday morning, Mr. Bisla told Mr. Schmich that because of his eye trouble, he could not work.
Mr. Schmich said that he cannot recall whether or not he passed onto Mr. Dorosh, the Works Manager, Mr. Nand’s explanation for not working on Saturday. It is possible, he said, that he may have mentioned it.
Mr. Schmich, when cross-examined about EXHIBIT 3, the letter of discipline that was given to each of the grievors by him, he emphasized that clear and unambiguous instructions were given to work overtime to the grievors, both by himself and Mr. Carkener on Friday, February 15, 1985. He conceded that EXHIBIT 3, inasmuch as it also refers to February 14, 1985 in that respect, is not technically, completely accurate.
Mr. Schmich said that apart from Mr. Carkener, Mr. Rick Leche, of the Personnel Department of the Company, was also present at the meeting. The Union representative, though he was asked to attend by phone, was unable to get to the Shop until ten minutes after the meeting had concluded.
Mr. Schmich took part in the Management meeting which resulted in the decision to assess each of the grievors thirty (30) demerit points.
Mr. Schmich said that in his view, the thirty (30) demerit points was too heavy a penalty but nevertheless, notwithstanding that, he expressed the opinion that there should be some penalty in order to emphasize that orders to work overtime must be obeyed.
Mr. Schmich expressed the view that a written reprimand to each of the grievors would, in his opinion, be sufficient to bring the message home to each of them.
The next witness was Mr. Brian Russell. He was affirmed and testified as follows:
1. That he is and has been the Wheel Shop Foreman since July of 1983. He stated that prior to the incident that resulted in this Arbitration, in his experience, overtime had always been scheduled on a voluntary basis.
2. That on Thursday, February 14, 1985, he, Russell, was given a list of people by his Supervisor, Mr. Schmich, and Mr. Schmich said that each of the people named in the list had undertaken to work overtime on the following Saturday.
Mr. Schmich further asked Mr. Russell to order the axles, bearings and wheels, etc. so that they would be available for the work in question. Mr. Schmich told Mr. Russell to double check that everybody on that list would be working overtime on the Saturday in question.
3. Mr. Russell then on Friday, the 15th of February, 1985, in the afternoon, checked with each of the men named in the list and they all made clear that none of them had any intention of coming in to work overtime on the Saturday in question due to problems between the Union and the Company in regard to negotiations for the Collective Agreement.
Mr. Russell then relayed the refusal to work overtime to Mr. Schmich.
4. Mr. Russell missed the beginning of the Shop floor meeting and when be got there, Mr. Schmich was already introducing Wayne Carkener and Rick Leche from the Company Personnel Office. Mr. Russell said that Mr. Carkener told the meeting that due to the wheel shortage, the Company needed five or six men to work overtime and that they would be assigned the work. Mr. Carkener made clear that if people wouldn’t do the overtime, there would be discipline.
The third witness called by the Company was Mr. Daniel Pysh, the Manager of Labour Relations. He testified about the Brown System which was filed as EXHIBIT 4.
He explained to the Board that the Brown System of discipline is part of the fabric of British Columbia Rail. It is a form of discipline that utilizes a point system of demerit points.
Sixty (60) demerit points means dismissal. The lapse of one year, if the record is clear, means that twenty (20) points are removed by virtue of effluxion of time.
British Columbia Rail has sent out various educational bulletins setting out the number of points that may be assessed. Thus for a trainman who falsifies a Worker’s Compensation Board claim, he is assessed thirty (30) points. A trainman who fails to report for duty is assessed twenty (20) points. A trainman who refuses a call is assessed twenty (20) points. A pipefitter who is absent without authority is assessed twenty (20) points. A warehouseman who fails to report for duty is assessed twenty (20) points. A section man who refuses duty and does not follow a Supervisor’s instruction is assessed twenty (20) points.
It is to be noted that a machinist’s helper and a machinist are all assessed thirty (30) points in cases of insubordination.
Mr. Pysh said that normally a Union representative would be present at a meeting with the employees if dismissal was a possibility but when Mr. Carkener and Mr. Rick Leche attended the meeting on Friday, February 15, 1985, at the Shop floor, the purpose of their attendance was to inform the men at the meeting that there would be discipline unless the orders to work overtime were carried out. In that sense, said Mr. Pysh, the meeting was not a disciplinary hearing of the type that would ordinarily be attended by a Union representative.
Mr. Pysh said that he took part with Mr. Rick Leche at the meeting that decided on the thirty (30) demerit points for each of the grievors. In supporting the decision to impose thirty (30) demerit points, Mr. Pysh said he looked at the records of the grievors and noticed that they were all good employees whose records were unblemished and that some of them had long service. He also took into account the fact that he felt the grievors were, in this case, the "meat in the middle of the sandwich", the sandwich being the dispute over the breakdown in collective negotiations between the Union and the Employer.
In cross-examination, Mr. Pysh said that he did not know that the grievor, Nand, had told the Supervisor, Heinz Schmich, that he, Nand, could not come in to work overtime due to his daughter’s illness.
Mr. Pysh said that nobody in the group knew that with the exception of Mr. Schmich.
Mr. Pysh said he was aware of the problem with Mr. Bisla who didn’t work the overtime because his eye was bothering him.
Mr. Pysh said he did not know that Mr. Osborne and Mr. Neubert had both declined to work overtime.
Neither did Mr. Pysh know that Malcolm McEwen had refused to go to the lunch room for the meeting when it was proposed to have the meeting in the lunch room.
Mr. Pysh further said that he was not aware that every single man at the meeting had, in fact, refused to work overtime.
THE CASE FOR THE UNION:
The first witness called by the Union was Jim Osborne. He testified as follows:
1. That he is presently and was at the material time, a machinist in the Wheel Shop at Squamish. He said that on all occasions in the past when he has been approached re overtime, it has always been on a voluntary basis.
2. Mr. Osborne said that Mr. Schmich approached him in regard to overtime for Saturday, the 16th of February, 1985. Mr. Schmich approached him on Friday, the 15th of February, 1985 and Mr. Osborne said he would not be available. No mention was made to him of discipline in that conversation by Mr. Schmich.
3. Mr. Osborne went on to say that he was present at the meeting on the Shop floor. He said a certain amount of shouting took place at it and that the message that came through loud and clear from the meeting, from all the men, was that no one would work overtime though, Mr. Osborne added that he, Osborne, was not specifically asked at the meeting if he would work overtime.
4. On the following Monday morning, namely the 18th of February, 1985, Mr. Osborne inquired from the Supervisor, Mr. Schmich, why he, Osborne, had not been disciplined for refusing to work overtime and Mr. Schmich explained to him that the difference between his case and that of the grievors was that the grievors had given commitments to work overtime whereas he, Osborne, had never undertaken to work overtime on the day in question.
In cross-examination, Mr. Osborne said that both Mr. Carkener and Mr. Schmich made it clear that if the overtime wasn’t worked, then there could be discipline. But at the same time, Mr. Osborne said, he did not understand that he personally would be disciplined. In fact, he then went on to say, he didn’t really understand that anybody would be disciplined.
The second witness called by the Union was the grievor, Mr. Malcolm McEwen. He testified as follows:
Mr. McEwen said that he is positive that at the meeting on the Shop floor on Friday, he was not asked by Mr. Schmich to work overtime.
In cross-examination, Mr. McEwen said that on Thursday, February 14, 1985, he was asked to do overtime for Saturday, February 16th, and Sunday, February 17, 1985. He refused the request.
Mr. McEwen also said in cross-examination that if he was ever ordered to do overtime, he would consult with the Union representative as to whether or not he would carry out the order.
The third witness called by the Union was Keshwa Pillay.
He testified that he works as a machinist at the Wheel Shop and lives in North Vancouver commuting to Squamish as part of a car pool.
He said that normally whenever he has been asked to do overtime, it has been on a voluntary basis.
On Thursday, February 14, 1985, at approximately five minutes to 4:00 o’clock in the afternoon, he was approached by Mr. Schmich and asked if he intended to work overtime on the following Saturday. Mr. Schmich explained that there was a need for the overtime to be done because of a declared emergency. Mr. Pillay insisted that he didn’t give an answer to the request that he work overtime. He simply said that he would have to let Mr. Schmich know the following day. Mr. Pillay said he gave no definite commitment.
The next day, Friday, February 15, 1985, Mr. Pillay expected Mr. Schmich to come and check with him since he had promised to give Mr. Schmich an answer as to the overtime question on Friday. However, Mr. Schmich did not check with him. Mr. Russell did check with him and Mr. Pillay told Mr. Russell that he would not work overtime on Saturday.
Mr. Pillay was at the Shop floor meeting and he said that Mr. Carkener told the meeting that overtime workers were needed on what he, Pillay, understood from what Mr. Carkener said, on a voluntary basis. He said that Mr. Carkener called for volunteers and no one responded.
Mr. Carkener, he said, then said five people would be assigned to work overtime on a compulsory basis. Mr. Pillay says that as far as he knows, no one was, in fact, assigned to work overtime. Mr. Pillay said that nobody called him over the weekend and he had no intention of challenging the authority of his Supervisor, Mr. Schmich.
In cross-examination, Mr. Pillay said he wasn’t sure if there was a consensus or not existing among the Union members that nobody in the Union would work overtime in the Wheel Shop on the day in question. However, he conceded that at the meeting addressed by Mr. Carkener, the men were told by him that if they did not do the overtime in question, they would be disciplined.
In further cross-examination, Mr. Pillay conceded that it was clearly the consensus among the Union members at the meeting that nobody would work overtime.
In re-examination, Mr. Pillay said that he only got one day’s notice of the request for overtime from Mr. Russell and that wasn’t enough time for him to make arrangements re his car pool transportation.
The next witness was Mr. Sukhram Nand. He testified as follows:
1. That he is a machinist in the Wheel Shop and in his experience prior to this incident, overtime has always been scheduled on a purely voluntary basis.
2. Mr. Nand said that on Thursday, February 14, 1985, at approximately 3:43 p.m., his Supervisor queried him if he was willing to work overtime that weekend. Mr. Schmich told him that Mr. Dorosh, the General Manager of the Squamish Works, was going to impose an emergency. Mr. Nand replied that if the work was necessary because an emergency had been imposed and there was written evidence of this and it was approved by the Union, then in those circumstances only would he work overtime.
3. The next day, Friday, February 15, 1985, Mr. Russell approached Mr. Nand and Mr. Nand made it clear that he was not willing to work overtime on that weekend.
4. In regard to the meeting on the Shop floor, Mr. Nand made it clear that Mr. Carkener told the meeting that there was a shortage of wheel sets and as a result, an emergency but Mr. Nand said that Mr. Carkener called for what he, Nand, understood to be volunteers for overtime. He further said that Mr. Tara told Mr. Carkener that if there was an emergency, he must receive written notice that it was an emergency. Mr. Nand attempted to get the Shop Steward to come to the meeting.
Mr. Nand further said that Mr. Carkener explained to the meeting that if there were no volunteers, then five people would be assigned to work overtime. Everyone, he said, made it clear to Mr. Schmich that they would not work overtime.
5. Later on Friday evening, Mr. Nand said he received two telephone calls from Mr. Schmich. Mr. Nand said that when he got home that evening, he found his daughter was ill and had to be taken to Hospital for medical treatment. Mr. Nand said that in any event, he would not have shown up for work.
6. In the telephone conversations, Mr. Nand made clear that he had no intention of showing up for work.
7. At five minutes past 8:00 o’clock on Saturday morning, Mr. Schmich phoned Mr. Nand and again requested him to come in. Mr. Nand said he repeated that he had to bring his daughter to the Hospital. Mr. Nand said he felt he was really the "meat in the sandwich" between the Union and the Company.
In cross-examination, Mr. Nand said that Mr. Michael Suter, the Union representative, had told him that overtime was a voluntary question which was up to the individual to decide for himself.
The next witness for the Union was Paul Gratton.
He testified that he is a machinist’s helper at the Wheel Shop and that overtime has always been, save in this instance, on a voluntary basis.
He said that just before 4:00 o’clock on Thursday, February 14, 1985, Mr. Schmich approached him and asked him would he do overtime and he, Gratton, said he couldn’t give an answer as he would have to check with his wife. Mr. Gratton denied giving any commitment to work overtime. Mr. Gratton said that due to pre-existing plans, he, Gratton, had a personal commitment that prevented him from coming in to work overtime on Saturday but he never mentioned that to Mr. Schmich.
Mr. Gratton gave much the same description of the meeting on the Shop floor as that given by Mr. Nand.
Mr. Timoteo Tara then testified.
He testified that he was a machinist and that overtime, in his experience, had always been handled on a voluntary basis. He said Mr. Mike Suter of the Union had spoken to the bargaining unit and explained to him that in the view of the Union, the question of overtime was really a matter of freedom of choice. He gathered from that that it was purely a voluntary issue.
He said that he was approached on Wednesday, the 14th of February, at approximately 3:00 o’clock by Brian Russell, the Foreman, to work overtime and that he did not commit himself at that time to working overtime.
He said that his reason for not giving a commitment was that in his understanding of the situation, the Company was not bargaining in good faith with the Union. He denied categorically that anybody approached him to work overtime on Thursday, February 14, 1985, but he says that Mr. Schmich queried him sometime around lunch time on the 15th of February, 1985 as to whether or not he would work overtime and he, Tara, told Mr. Schmich that he felt he was between two pressures pulling in opposite directions. Mr. Tara said that no mention was made to him then by Mr. Schmich of discipline.
He described the meeting on the Shop floor and said that Mr. Carkener was asked to certify in writing that the emergency, in fact, existed and Mr. Carkener had said that he didn’t have to certify anything in writing but that there was an emergency.
Mr. Tara said that he made clear to Mr. Schmich just before quitting time on Friday that he would not come in and work overtime and Mr. Schmich never mentioned anything specifically to him about discipline at that time. Mr. Tara said that he had no intention of challenging Mr. Schmich’s authority.
In cross-examination, Mr. Tara said that Wayne Carkener did say at the meeting that if the overtime was not worked on a voluntary basis that discipline would be the result.
The next witness was Mr. Don McNeill. He testified as follows:
1. That he is a machinist’s helper in the Wheel Shop and that overtime has always been on a voluntary basis.
2. He said that on Wednesday, February 13, 1985, his Supervisor approached him and asked him if he would like to work overtime on Wednesday night. Mr. McNeill said yes and then the Supervisor later returned and cancel led the overtime as they couldn’t get together a big enough team to make overtime feasible.
3. On Thursday, February 14, 2985, no overtures, said Mr. McNeill, were made to him about working overtime by Mr. Schmich or indeed anyone else.
4. On Friday, February 25, 2985, Mr. Russell approached him at 1:00 o’clock and inquired if he would like to work overtime on Saturday. Mr. McNeill said he would not work overtime as he wasn’t well and there was flu going around the shop and it was getting to him.
5. Mr. McNeill described the meeting with Mr. Carkener and said that Mr. Carkener made clear that there was an emergency but that Mr. Carkener declined to put the emergency in writing and never clarified, said Mr. McNeill, the nature of the emergency. He said that after the meeting, he was approached along with Neubert and Tara by Mr. Schmich and the request that he work overtime was reiterated and they all refuse it.
6. On the following Monday, the 18th of February, 1985, McNeill worked but he was away from work on Tuesday, February 19, 1985 as he was sick.
THE ADDRESS OF COUNSEL FOR THE EMPLOYER:
In summary, Mr. Dorsey, Counsel for the Employer, said that the grievors clearly understood what was at issue and that things were coming to a head over the matter of overtime and that if they didn’t work overtime, they would be liable to discipline. He said that the evidence was capable of bearing no other inference other than that.
The fact, he said, that the grievors were the "meat in the sandwich" is no excuse of the disobeying of lawful orders.
He said that the Brown System has been part of the disciplinary system of British Columbia Railway since 1912 and it makes clear that the understood penalty for an act of insubordination is thirty (30) demerit points. He observed that twenty (20) of these points will be remitted in February of 1986.
Mr. Dorsey said that it is true that there is no express Management’s rights clause in the Collective Agreement but nevertheless, there are provisions in the Collective Agreement which limit the right of the Employer insofar as ordering overtime is concerned. Therefore, this Board must conclude that there is an express right to order overtime. That follows, he said, from the fact that there are limitations on that right set out in the Collective Agreement.
He referred the Board to the decision of J.D. O’Shea, Q.C. in Re Bridge & Tank Co. of Canada Ltd. (Hamilton Bridge Division) and United Steelworkers, Local 2537 (1976), 11 L.A.C. (2d) 301 where at page 303, the Board in considering a Collective Agreement which contained certain provisions restricting overtime but did not contain a provision expressly granting the right to order overtime, held:
Our interpretation of the intent of the parties as expressed in the collective agreement appears to be bolstered by the general rule that overtime work is compulsory unless a contrary intention is expressed in a collective agreement. In this regard, see Re Kimberly-Clark of Canada Ltd. and United Papermakers and Paperworkers, Local 256 (1973), 3 L.A.C. (2d) 278 (Brown); Re Canadian Industries Ltd. and Allied and Technical Workers, Local 13328 (1974), 6 L.A.C. (2d) 256 (Ferguson) and Re Adams Mine Cliffs of Canada Ltd. and U.S.W. (1975), 8 L.A.C. (2d) 204 (O’Shea).
He also commended the decision of Arbitrator Larson in Re Corporation of the City of Nanaimo and Canadian Union of Public Employees, Local 401 (1981); 30 L.A.C. (2d) 304 at page 31, where Mr. Larson held:
As was stated by the board in the Canadian Industries case, supra, the arbitral jurisprudence supports the proposition that the performance of overtime work is compulsory unless the terms of the collective agreement make it voluntary. It assumes that overtime is part of the regular work regimen and that the assignment of it falls within the normal prerogatives of management. In those terms, a refusal to accept an overtime assignment is measured against the jurisprudence governing a refusal to accept any work assignment.
Mr. Larson went on to hold at page 312 as follows:
The Canadian Industries case, supra, suggested that where a collective agreement does not make overtime voluntary, even a past practice to the contrary does not derogate from its compulsory nature. That conclusion is consistent with all the jurisprudence relating to past practices that are not consistent with the provisions of a collective agreement. Barring an estoppel or an ambiguity, either of the parties to a collective agreement is entitled to insist upon adherence to the provisions of the collective agreement without reference to the past practice.
Mr. Dorsey went on to refer the Board to Re Teamsters Union, Local 141, and M. Loeb (London) Ltd., (1972) 24 L.A.C. 300 where at page 302, the Arbitration Board held:
The evidence indicated that on isolated occasions an employee might agree to work overtime and then change his mind some time before the end of the regular shift or he might commence working the overtime and then advise his foreman that he wished to leave. In such cases, the employee would so advise his foreman who would not generally object. However, such a situation did not occur on the night in question where 10 employees who had agreed to work changed their minds and left without any notice to their foreman. The grievor and the union witnesses would have us believe that this was not uncommon and that by sheer coincidence 10 employees had a change of mind almost simultaneously without any reference to the decision of the others and punched out within three minutes of each other … In any event, we are satisfied that in this case the decision to walk out was not a mere coincidence and that these employees with the grievor as their spokesman, refused to work the overtime as an objection to the part-time help working …
Mr. Dorsey also reminded the Board of the principle set out by Brown and Beatty, Canadian Labour Arbitration, page 434, paragraph 7:3610, where dealing with a refusal to follow instructions, the authors said:
One of the most basic and widely accepted rules of arbitral jurisprudence holds that employees who dispute the propriety of their employer’s orders must, subject to the considerations which follow, comply with those orders and only subsequently, through the grievance procedure, challenge their validity.
Mr. Dorsey, in dealing with the essential ingredients that it is incumbent upon an employer to establish in order to support a case of insubordination, referred the Board to Brown and Beatty, Canadian Labour Arbitration, page 437, paragraph 7:3612, where the authors said:
Essential ingredients. Apart from the circumstances in which the general principle has been found to be inappropriate, arbitrators have generally insisted that to sustain an allegation of insubordinate conduct of this type, the employer must prove that an order was in fact given, that it was clearly communicated to the employee by someone with the proper authority, and that the employee actually refused to comply. In fact, even where there is no specific order addressed to the employee, if the arbitrator concludes she must have been aware of the duties expected of her and refused to discharge them, discipline will likely be found to have been properly invoked. As well, most, though not all, arbitrators have adopted the view that the absence of a subjective intention to defy management, or the lack of a blameworthy state of mind, does not justify the employee’s refusal to comply with the supervisor’s orders, although it may serve to lessen the seriousness of the misconduct.
Mr. Dorsey also referred the Board to the decision of H. A. Hope, Q.C. in Re British Columbia Railway and Canadian Union of Transportation Employees, Local 6 (1982), 8 L.A.C. (3d) 233, where Mr. Hope in considering the effect in the Wm. Scott case and the Brown System of discipline, said that notwithstanding the Brown System of discipline, there is an onus on the Employer.
Mr. Hope said on this subject at page 236:
That onus exists both with respect to proof that there was just and reasonable cause to impose some penalty and proof that the penalty selected was just and reasonable.
In conclusion, Mr. Dorsey urged the Board to do three things.
Firstly, hold that the threshold question was whether or not overtime can be directed on a mandatory basis and to answer that question in the affirmative, that indeed, it can be directed on a mandatory basis.
Secondly, to find that the grievors were directed to work overtime and did refuse.
Thirdly, to hold that the penalty of thirty (30) demerit points under the circumstances was appropriate and not excessive.
THE ADDRESS OF COUNSEL FOR THE UNION:
Mr. Norman, in summary, said that from the Union point of view, there should have been no discipline imposed of any nature and if there should have been discipline imposed, which was not admitted but denied, then the discipline that was imposed was too severe.
The mandate of the Board was to decide what was, in essence, a case of discipline as opposed to an interpretation case.
The threshold issue upon which the Board must make a finding is clear, said Mr. Norman. Was there an order made directing overtime and was that order unreasonably disobeyed?
Mr. Norman went on to say that the Union position was that the Employer must show that a precise and clear order had been given and the Employer had failed to show that.
If that was so, then there could be no question of there being, in fact, any reneging by anyone of a commitment to work overtime.
Mr. Norman also observed that it was clear that Messrs. Neubert, O’Neill and Osborne were asked to work overtime and had not done so. It was clear that Mr. Daniel Pysh, the Head of Industrial Relations for the Company, was not aware of that. Mr. Norman said that Messrs. Neubert and Osborne had been asked to work overtime and had refused with impunity.
That fact seemed to militate in favour of the Board concluding that even on the incident in question, it was not made clear that overtime was being directed on a mandatory basis.
Mr. Norman said that if it was true that the Supervisor had commitments, why then was it necessary for him to direct Mr. Russell to check the commitments to see if they were going to be honoured.
Each of the grievors deny that they gave any commitment.
The Board should hold that there was no order to work overtime but merely a request and that, in any event, no commitments were given.
At the worst, there was confusion and poor communication. In such a case, the Employer is not entitled to succeed. The Employer’s case, said Mr. Norman, did not meet the test enunciated in numerous cases and Summarized by Palmer in his text "Collective Agreement Arbitration in Canada", page 320, where Palmer wrote:
1. What is Insubordination?
Quite simply, insubordination might be defined as the flouting of a clear order of a person in authority. In general, then, there are three initial components of a charge of insubordination:
(a) there must be a clear order understood by the grievor;
(b) that order must be given by a person in authority; and
(c) the order must be disobeyed …
Mr. Norman also referred the Board to Re Hunter Rose Co. Ltd. and Graphic Arts International Union, Local 28-B (1980), 27 L.A.C. (2d) 338 where the Board found at page 345:
This order cannot have been considered to have been a clear order because the initial request by Mr. Hadida appears to have been more in the nature of a plea with the grievor than an order … In such circumstances, a firm order which was more than just a question or request for help is required … For these reasons, this Board does not consider that the requirement of a clear order, necessary for finding insubordination at law, was present in the incident.
Applying those dicta by analogy, Mr. Norman went on to say that it is evidence that at the meeting on the Shop floor, the men did not know whether or not Mr. Carkener was assigning work on a mandatory basis or merely making a plea for volunteers.
Mr. Norman also urged upon the Board that other people had declined the request to work overtime over and above the five grievors.
That being the case, it would be discrimination to permit the Employer to single out the five grievors and let the other people off. In that regard, Mr. Norman referred to Palmer’s text entitled "Collective Agreement Arbitration in Canada", page 238, where the learned author wrote:
Central to the theory of just cause is the view that employees can only be disciplined or discharged for their own shortcomings; an employer cannot make `examples’ of employees by picking persons at random or, failing to find a specific culprit in a group of employees, disciplining all of them or imposing discipline vicariously.
Mr. Norman said that this Board should draw an inference from the failure of the Employer in this case to call key material witnesses, namely Mr. Carkener and Mr. Rick Leche who were present at the Shop floor meeting.
Mr. Norman referred to many cases including Re Humpty Dumpty Foods Ltd. and Retail, Wholesale, Bakery & Confectionery Workers’ Union, Local 461 (1981), 3 L.A.C. (3d) 112 where the various factors that constitutes whether or not it is a reasonable excuse to refuse an order to work overtime were considered, including such matters as the amount of notice given to the employee, the availability of other employees and the cause of the overtime assignment.
Mr. Norman’ further submitted that there was an essential ingredient which an Employer must prove if the Employer alleges insubordination, namely that there was on the employee’s part an intent to defy the Employer. In that regard, he referred to several cases, including Wm. Scott & Company Ltd. and Canadian Food and Allied Workers Union, Local P-162, (1977) 1 Can. L.R.B.R. 1 where at page 4, the Board held:
Circumstances negativing intent, e.g. likelihood of the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it.
He also referred to the decision of H. A. Hope, Q.C. in Re British Columbia Railway and Canadian Union of Transportation Employees, Local 6 (1982), 8 L.A.C. (3d) 233 where Mr. Hope at page 244 held:
No direct challenge in the sense of a refusal to obey an order is necessary to sustain the inference of defiance.
That means, says Mr. Norman, that there most be evidence of a challenge to the authority of the employee and there was no such evidence which was worthy of acceptance in the case at bar.
Mr. Norman commended to the Board the decision in Re Firestone Steel Products of Canada and United Automobile Workers, Local 27 (1975), 8 L.A.C. (2d) 164 where it was held at page 167:
There can be no insubordination unless there is some intentional and purposeful defiance of a legitimate management order …
He also urged upon the Board that this was a case where estoppel arose in two aspects. He said that the past practice was clearly and had always been that overtime was voluntary as opposed to mandatory.
That being so, he said, the doctrine of estoppel must be considered and that it was a tool which served two purposes. It meant that the Employer cannot suddenly change from voluntary to mandatory. It also was an aid to interpretation of the Collective Agreement. He urged upon the Board the decision in Re Corporation of the City of Penticton and Canadian Union of Public Employees, Local 608 (1978), 18 L.A.C. (2d) 307, where at page 317, the Board defined estoppel as:
In the words of a noted Canadian arbitrator, Dean Arthurs, "to use a common metaphor, you are not allowed to let someone go out on a limb so that you can saw him off": see Re City of Toronto and Civic Employees Union, Local 43 (1967), 18 L.A.C. 273 at p. 280
This definition was in effect applied by Professor Hickling in Teamsters Local 351 and Tree Island Steel Co. Ltd. where at page 23, Professor Hickling found:
The basis of estoppel appears not to be the suffering of an immediate detriment by the person relying on a statement or promise, but the injustice he would suffer if the person making such statement or promise were permitted to change his mind.
Mr. Norman said that the doctrine of estoppel has been broadened in its scope and really involves the concept as Professor Hickling found in Re United Brotherhood of Carpenter Joiners of America, Marine and Shipbuilders, Local No. 506 and Burrard Yarrows Corporation, at page 28:
In essence it rests upon what Mr. Bird describes in the Psychiatric Nurses case, supra, as "old-fashioned but still current notions of what is just." That does not mean palm tree justice. Although the equitable doctrine of estoppel is flexible, and expanding, it is exercised on certain well defined principles …
Mr. Norman then set out the principles that were pertinent to the case at bar and urged upon the Board the reasoning to be found in Re CN/CP Telecommunications and Canadian Telecommunications Union (1981), 4 L.A.C. (3d) 205, where at page 208, the Board held:
The first issue is a question of fact. The question is whether there was a practice or course of conduct which, reasonably construed, could have induced the union to believe that the employer would not insist on its strict legal rights under art. 30 and the weekly indemnity plan.
In the employer’s view there was not and for at least two reasons. Firstly, it took the position that because the benefit was not consistently provided to all of the members of the bargaining unit, there was no established or "ascertainable" practice on which the union could rely. And secondly, even if there was, the employer argued that the union could not reasonably have relied on it because it fully realized it was only in the nature of a gratuitous benefit provided by the company and not a legal obligation to which it was bound.
With respect to the existence of a practice or course of conduct, I have no doubt that one existed and that it was definitely ascertainable. The best evidence of its existence and the details of its particulars lies in paras. 10 and 11 of the parties’ agreed statement of facts …
In summary, on estoppel, Mr. Norman said that the collective bargaining relationship between the parties was of long-standing and its foundation was mutual trust.
Was it, asked Mr. Norman, fair for one party to unilaterally change its mind abruptly late on a Friday afternoon as happened here and suddenly, without notice, make overtime mandatory when previously, it had always been voluntary?
Mr. Norman went on to say that even if discipline was justified, which is not admitted but denied, the Board should consider whether or not, if it was justified, the penalty was excessive. In that regard, he referred the Board to the decision of H. Alan Hope, Q.C. on the Brown System in Re British Columbia Railway and Canadian Union of Transportation Employees, Local 6 (1982), 8 L.A.C. (3d) 233 where at page 236, Mr. Hope in considering the Brown System, held:
… the salient point is that an employer cannot rely on a codified approach to discipline to relieve it of the obligation of establishing just and reasonable cause for the imposition of discipline or dismissal.
Mr. Norman said that notwithstanding the Brown System providing for thirty (30) demerit points for insubordination, the plain fact is that the Employer has to justify that that penalty was not excessive. Mr. Norman doubted the power of the Employer to order overtime and said that, in fact, it didn’t have that power but could only order overtime within the four corners of the precise provisions of the Collective Agreement dealing with overtime and in any event, he said, if Management is going to change the procedure and make overtime compulsory, it must given reasonable notice of the change.
Mr. Norman went on to distinguish the cases cited by Counsel for the Employer.
THE CONCLUSION OF THE BOARD:
In my view, the law is clear and further this is a case that in reality falls to be decided upon the evidence.
I have considered all the evidence. I have observed the demeanor of the witnesses. I have noted the difficulty that some of the witnesses had in recalling details. I am forced to the ineluctable conclusion and I so find that Mr. Schmich did receive, as he has alleged, a commitment from the five grievors and the sixth person, Mr. Adolf Vetter, to work overtime on Saturday, February 16, 1985. I further find that he did indeed give a list of those who had given that commitment to his Foreman, Mr. Russell, who did indeed check with the five grievors as to whether or not they would honour that commitment.
I find that the five grievors individually told Mr. Russell that they would not honour that commitment. That they were going to renege on that commitment and that they did, in fact, renege on that commitment.
I further find that at the Shop floor meeting, Mr. Schmich and Mr. Carkener made clear that unless the commitments which had been reneged were, in fact, honoured, there would be discipline. This was made clear to the five grievors at that meeting. Nevertheless, the five grievors were, as some of them put it, the "meat in the sandwich". They were caught between two conflicting forces and elected in each instance of their own volition under the circumstances to decline to work the overtime to which each of them had originally given a commitment.
That being the case and having considered the evidence in respect to each of them as individuals, I have to conclude that each of them was individually guilty of insubordination. In my view, the refusal to work overtime of each of the individuals was a deliberate action made with intent to disobey a Company order and for no other reason.
Some of the individuals have put forward different personal excuses. I do not accept their evidence on the personal excuses for the reasons that I have already mentioned.
This case is to be decided, in my view, on the facts. The facts in this case are clear and unequivocal. A commitment was given. That commitment was reneged upon in each instance. The five grievors were notified that unless they reinstated their commitment, there would be discipline. That being so, there clearly was insubordination by each of the five.
The right of management to order overtime, in my view, is clear in these circumstances. The fact that the Collective Agreement makes provisions restricting that right is in itself a recognition that the right to order overtime exists, save where it has been restricted by the express terms of the Collective Agreement, notwithstanding the lack of an express Management rights clause.
I accept and follow the decision of Arbitrator Dalton Larson in Re Corporation of the City of Nanaimo and Canadian Union of Public Employees, Local 401 (1981), 30 L.A.C. (2d) 304 where at page 312, he held that the past practice of voluntariness re overtime notwithstanding that the Collective Agreement does not expressly provide that overtime is to be on a voluntary basis, does not derogate from the right of management to order compulsory overtime.
Management, in my view, had the right and exercised that right and was disobeyed.
I now pass to whether or not the punishment of thirty (30) demerit points was excessive. I have no hesitation in finding that bearing in mind the individual circumstances and evidence pertaining to each of the individual grievors.
I bear in mind the guiding but not conclusive or binding principles of the Brown System of discipline.
The grievors here were in each and every case the "meat in the sandwich". The Brown System, it is true, suggests thirty (30) demerit points for insubordination.
But this Board must look beyond mere codes. That type of insubordination was this? It was insubordination which was perhaps, in some ways, analogous to refusing a call, missing a call or being absent without authority. Those are all infractions which under the Brown System merit twenty (20) demerit points.
The grievors each had excellent records. Their Supervisor, Mr. Schmich, thought that thirty (30) demerit points was excessive and that a mere remand would suffice.
I find the penalty in each instance to be excessive. In each case, I set aside the penalty of thirty (30) demerit points and substitute in lieu thereof, a penalty of twenty (20) demerit points. Accordingly, the grievances are allowed to that extent. I find that in each case, a penalty of twenty (20) demerit points, bearing in mind all the relevant circumstances and the Wm. Scott case is an appropriate and proper penalty for each of the individuals and I so award.
DATED at the City of Victoria, in the Province of British Columbia, this 5th day of December, 1985.
(signed) Dermod D. Owen-Flood, Q.C.