BETWEEN:

(the "Employer")

AND:

(the "Union")

ARBITRATOR: K. R. MARTIN

DATE OF HEARING: MONDAY, JANUARY 11 1988

PLACE OF HEARING: INN OF THE NORTH, PRINCE GEORGE B.C.

DATE OF AWARD: FEBRUARY 2 1988

On March 5th 1937, A. Stefanick, the acting Assistant General Car Foreman, issued a memorandum to both of the Grievors which, under the terms of the Discipline Procedure in use by the Employer, was regarded as a letter of reprimand or warning letter.

Both the employees grieved the letters and asked that they be removed from their personal files.

At the time of the incident on March 19th 1987, Marino was an experienced Carman with over 8 years service with B.C. Rail; Irvine was a Carman Trainee who had worked for the railroad for something in excess of two years. Neither employee had any disciplinary record. Marino had been elected as a shop steward for his area. Both employees worked on the afternoon shift of the Employer’s operation at Prince George.

As Carmen, both employees were responsible for the inspection of rail cars as they passed through the Prince George area. Where it was determined that repairs were required, it was necessary to make out a "bad order" sheet. Those sheets identified the car by number, the owner of the car, whether the car was loaded or empty, the type of car, e.g., box or flat, but, most importantly, the defects or repairs required on the job and, finally, the routing of the cars as to where they were to be sent for repairs. Basically, there are two routes for the execution of repairs. The easier, simpler repairs are performed in the "yard" – the more complicated ones are referred to the Repair Shop.

In designating the destination of these card, the terms "yard" and "rip" were used in filling out the "bad order" sheets. The determination of the route was left to the discretion and judgement of the Carman.

From the Railway’s point of view, the more cars that could be repaired in the yard, the more cost effective would be the results. Cars which were diverted to the "rip" for repairs inevitably were out of service for a period of five (5) or more days, whereas "yard" repairs involved turnovers of a day or two.

Evidence indicated that this system was in effect in the Fall of 1985 but that difficulty was being encountered in getting the Carmen to make the designation "rip" or "yard" repair as ordered by the Employer.

On April 16th 1986, the General Car Foreman, M. Wojtula, sent a memo to all shift supervisors which read as follows:

On July 15th 1986 and again on January 28th 1987, a further memo was issued, this time to the Carmen themselves, by A. Stefanick, Acting Assistant General Car Foreman, it read as follows:

One of the repairs that frequently required attention was the replacement of "bottom rod safety support". The "BRSS" as it is referred to, was a metal device installed under the carriage, the purpose of which was to prevent damage to parts of the braking system which, otherwise, might, under some conditions, fall and be dragged under the train.

There were two types of BRSS – one which required bolts and nuts and frequently the use of a welding torch to remove the old bolts and nuts, and a newer type which could be attached with the use of clips and which was much easier and quicker to handle. There was conflicting testimony as to when the new type of BRSS was introduced, although it is clear it was certainly after August of 1986, for, at this time, an award was made to an employee for suggesting the adoption of this type of BRSS. It can be assumed therefore that the new type came into effect either in the Fall of ’86 or early in 1987.

At any rate, at the time in question, there is no doubt that both types of BRSS were being used and that, when the older type came in, requiring repair, it was replaced with the newer type with its clip fastener.

It was the opinion of the Employer that BRSS repairs should. always be referred to the "yard" for action. The evidence of the employer witnesses was that those orders lad been given to all employees. It was the Employers’ contention that, despite the orders to refer all these repairs to the yard section, Marino and Irvine deliberately were referring them for "rip" repair. Consequently, on March 5th 1987, the following letter was sent to both the employees:

It was the evidence of Stefanick and Wojtula, the General Car Foreman, that, while no written order had been issued telling the employees always to assign those repairs to the yard, such orders were given verbally to the employees and that all employees were well aware of them. They viewed the actions of Marino and Irvine as insubordination, deliberately refusing to obey a Company direction. Further, they suggested that the reason for this was because of a previous warning letter that had been issued to another employee who worked on their afternoon shift.

It was Stefanick’s evidence that, in discussions with Marino over the letter, Marino had said to him that he didn’t feel that ‘the Employer had dealt with Mark Erickson properly’, (Mark Erickson being the employee who previously was issued a warning letter).

It was Stefanick’s evidence that he had spoken to both Marino and Irvine in the period of tie two weeks preceding March 4th and both were fully aware that all BRSS repairs must be referred to the yard.

Under cross-examination, Stefanick insisted that he had a discussion with Irvine about two weeks prior to March 5th, "maybe as early as the second or third week in February". He remembered it, because at that time, he had been discussing with Irvine the question of a safety valve test. He then testified that he had discussed the problem with Marino approximately a week after his discussion with Irvine.

Both Marino and Irvine, in their evidence, denied having had the discussions with Stefanick prior to the issuing of the warning letters. It was their evidence that the discussions took place after the warning letters were issued sometime shortly thereafter. Further, it was their evidence that, when they received the letter, they took it as a criticism of the fact that they had not marked whether it should be "yard" or "rip", when, in fact they knew that they had so marked. It was not until Marino approached Stefanick in his office that he realized the reason for the letter was because they had referred the BRSS to the "rip" instead of to the "yard".

The union produced three other witnesses who were Carmen operating in the Prince George office, all of whom testified that they had never received instructions either in written form or verbally that all BRSS repairs must be sent to the "yard". Those three witnesses (each of whom had different opinions about where was the proper place to repair BRSS nevertheless were unanimous in their opinion that they had received no advice that they must refer those types of repairs into the "yard".

There is no doubt in my mind that Stefanick believes that he had made it plain to the employees that all BRSS repairs were to he referred to the yard and that such advice was given well before March 4th. Furthermore, he believes that he had specific conversations with both Irvine and Marino prior to that date to advise them of this. It is my opinion that the weight of evidence throws great doubt as to whether those conversations took place before or after March 4th.

Stefanick in his testimony related the discussion with Irvine by tying it into a discussion he had had with Irvine over the safety valve test. The only evidence we have before us with respect to when such a safety valve test was placed in the "bad order" record was on March 4th. In his evidence, Stefanick insisted that this was not the safety valve test request to which he referred, but it is the only one we find in the evidence.

The Employer submitted a list of BRSS repairs appearing in the "bad orders" from February 1st until the end of May. It is obvious from this list that, after March 4th, all the BRSS orders were sent to the "yard". Prior to that time, there was an even division between those which were sent to the yard and those which were sent the "rip". It was the Employer’s argument that, in that period, all but two of the cars which were sent to the "rip" were sent there by the afternoon shift. During the period of February 1st through March 4th, Bruce Irvine was involved in assigning those repairs both to the "yard" and to the "rip". Marino at no time appeared to assign any of the repairs to the "yard". Marino in his evidence did not deny this. He nevertheless was of the opinion that up to March 4th, it was left to his discretion, as to where those repairs should be sent and that it was his view that that particular type of repair should be sent into the "rip" area.

Marino, in his evidence, also stated that, while he was having a discussion with Stefanick about the warning letter, Wojtula came out from his office and, in a heated exchange, suggested that if the Union was going to continue to put in grievances, they could expect a continuation of warning letters.

While this statement was not denied by Wojtula, I give it little credence as being important to the present arbitration.

The Employer has issued, for the use of its supervisors and the understanding of its employees, a booklet entitled, "Guidelines Respecting the Discipline of Unionized Employees". The following are some quotations from that publication which, in my view, are pertinent to the issue in hand, and are consistent with the views of the Arbitrating Authorities.

• Letter of reprimand/warning letter
• Suspension without pay for varying periods, depending on the circumstances in any particular case
• Dismissal

On the balance of evidence before me, I cannot find that this took place. There was certainly no need for the type of order that is being disputed to be in writing, but if it is not in writing, it must be clear that it has been properly presented to the employees before they are disciplined for failing to obey.

At another point in the Company book on discipline, the following statement appears:

The evidence of the employees in this case was that, even after Marino and Irvine were disciplined, the only way that they learned of the order to send all the BRSS repairs to the yard was by word of mouth.

The booklet further states:

• a statement of the misconduct in specific not general terms
• the consequences of continued misconduct in emphatic terms
• encouragement to the employee to correct the shortcoming.

An examination of the letter itself being placed on the file certainly does not convey the misconduct which is claimed by the Employer.

Finally, the booklet makes this statement:

• consistent with the provisions of the collective agreement reasonable
• clear and unequivocal
• consistently applied
• well publicized and made known to all employees

The rule in question certainly is not inconsistent with the provisions of the collective agreement. It is not in itself unreasonable but rather is clear and unequivocal and certainly since March 4th, has been consistently applied. It was not, however, well publicized and made known to all employees.

In accordance with the usual reasoning as outlined in the Wm. Scott award, I find that no reason for discipline exists. I therefore find that the letters of warning should not have been issued and order their removal from the files.

Two final points. It is obviously now clear to all employees that all the BRSS repairs should be referred to the "yard". That is a legitimate order and must be complied with. The reason for the ordering of the removal is not to question the legitimacy of the order, but because I find there is doubt as to whether the order was properly communicated to all employees.

Secondly, despite the fact that I have ordered the removal of the letters from the files, it should not be forgotten that the objective of discipline is to change behaviour. It would appear that that objective has been reached in this case.

Dated at Vancouver, B.C. this 2nd day of February, 1988.

Arbitrator