BETWEEN:

(the "Railway")

AND

(The "Union")

SOLE ARBITRATOR: H. Allan Hope, Q.C.

There appeared on behalf of the Company:

Kenneth Taylor

And on behalf of the Union:

Brian McDonagh

Tom Wood

A hearing in this matter was held in Richmond, B.C., on September 18, 1995.

The position of the Railway was that the conduct of the grievor gave just cause to impose discipline upon him and that the imposition of 15 demerits was a reasonable response to the circumstances. The imposition of 15 demerits gave the grievor a total of 70, thus constituting grounds for dismissal under the Brown system of discipline. The Brown system involves the accumulation of demerits which represent an escalation of discipline. It culminates in dismissal upon the accumulation of 60 or more demerits. In short, it is an adaptation of the progressive approach to discipline urged in the arbitral authorities in which demerit points substitute for escalating penalties. The essence of the system is that employees become inured to the implication of accumulating demerit points and are thus put on express notice that their employment is in increasing jeopardy.

The position of the Union was that the Railway had failed to establish on a balance of probabilities that the conduct of the grievor on November 1, 1993 was deserving of any form of discipline. In its initial submission, its position was that the Railway was seeking to justify its decision on the basis of facts falling outside the offence alleged. Its secondary position was that the facts relied on, whatever the nature of the offence alleged, did not disclose conduct deserving of discipline. The Union’s submission was that the grievor was thus entitled to reinstatement with full compensation.

The facts from the perspective of the Railway were given in evidence by the grievor’s supervisor, Scott Walters. (The Railway’s evidence, as I will detail later, conflicted with that of the Union). At the material time the grievor was employed as a carman in the Vancouver Maintenance Centre (VMC) . Mr. Walters was the supervisor of Gang 309 and the grievor’s direct supervisor. Mr. Walters concluded during the course of the 3 p.m. to 11 p.m. shift on November 1, 1993 that the grievor and his work mate, Bernie Perez, had failed to perform their work in accordance with his instructions. He filed a written report to that effect. His report led to an investigation that resulted in the grievor’s dismissal.

Mr. Walters said in his evidence and in his report that the two carmen were assigned to perform repairs on a car identified as #8307. That car had not been spotted when the shift started. Their interim assignment, pending spotting of the car, was to perform a routine inspection on a car identified as #8306. Car #8306 had been spotted at the west end of track S-1 in the shop and car #8307 was to be spotted immediately adjacent to it on track S-2. Car #8307 was in fact spotted at that location at 4:30 p.m., approximately one and one-half hours after the start of the shift.

The grievor and Mr. Perez did not commence working on car #8307 when it was spotted. Mr. Walters, who was engaged in other duties, did not discover that fact until 6 p.m., being one and one-half hours after the grievor and Mr. Perez should have commenced work on the car. He investigated and found them still conducting the inspection of car #8306. Mr. Walters understood after a brief conversation with the grievor and Mr. Perez that they would commence work immediately on car #8307. He left and returned to the area at 6:50 p.m. when he discovered that no work had commenced on car #8307. He found the two carmen in the employee’s lunch room getting ready to make their dinner. (The lunch break was scheduled to commence at 7 p.m.).

In the second encounter the grievor explained that he and Mr. Perez had been unable to commence work on car #8307 because the tool locker available to them lacked a necessary tool and that a second locker was not available to them because it was locked. Mr. Walters left to investigate the explanation and concluded to his satisfaction that it was not accurate. one of the lockers was locked but one was open and contained the tools said to be missing. Mr. Walters returned to the lunch room at 7:20 p.m. and had a brief conversation with the grievor and Mr. Perez in which he instructed them to begin work on car #8307 without further delay.

Mr. Walters, as stated, filed a written report of the circumstances with the senior shop foreman. It was filed the following day, November 2, 1993. That report led to an investigation, including an interview with Mr. Perez on November 12, 1993 and an interview with the grievor on November 25, 1993. The grievor’s interview was conducted pursuant to a notice sent to him on November 23, 1993. It reads as follows:

(I pause to note that the f acts in the documentary and viva voce evidence adduced in the hearing by the parties went beyond those recorded in this award. In particular, considerable evidence was adduced with respect to other events in the lunch room encounter between Mr. Walters and the grievor and events relating to the work performance of the grievor and Mr. Perez during the balance of the shift. In the final analysis those facts had no relevance to the issues raised in the dispute and it has not been necessary to record them).

Returning to the chronology, discipline was issued following the November 25 investigation. It was recorded on December 3, 1993 on a discipline form upon which the Railway noted that the grievor’s record had been assessed with 15 demerit marks. However, the nature of the alleged misconduct was phrased differently than in the investigation notice. It was changed to "violation of Rule #20 Poor work performance (reference statement of November 25, 19 93)". As noted, the of fence alleged in the investigation notice was, "violation of Rule #20 - performance at work". The Railway did not see that change as a change in substance as opposed to a change that reflected the facts found in the investigation.

Also, and in the same vein, it was apparent from a reading of the discipline form that the Railway had dropped the allegation of "conduct unbecoming an employee". It was on the basis of that latter decision that certain of the lunch room events and the events later in the shift became irrelevant. In any event, on the same day, December 3, the Railway issued a second "disciplinary measure" memorandum in which it was recorded that the grievor was being dismissed for an "accumulation of demerits in excess of 60".

It became apparent in the hearing that the concern of the Railway related to its perception that the grievor, in taking the time he did to conduct an inspection of car #8206, not only took an excessive amount of time to perform a routine task, but also failed to follow the instruction to commence work on car #8307 when it was spotted. In short, the Railway saw the grievor as having exceeded by a substantial margin the reasonable amount of time required to perform the work assigned to him with respect to car #8306, and as having failed to follow his instructions to commence work on car #8307 when it was spotted, thus failing to perform his work as it had been assigned.

I repeat that the Union challenged the validity of the Railway’s characterization of Rule #20 and its change in terminology between the notification, in which the offence was characterized as, "violation of Rule #20 - performance at work", and the discipline note in which it was characterized as, "violation of Rule #20 - poor work Performance". Rule 20 is included in the Railway’s "Rules and Regulations Governing maintenance Personnel". It reads as follows:

The submission of the Union was that the Railway, having characterized the misconduct into which it was conducting its investigation as a breach of Rule #20, could not characterize the offence after the fact as constituting poor work performance, being an offence that it saw as falling outside Rule 20. Its position was that the Railway, realizing it could not establish a failure to follow instructions within the meaning of Rule #20, sought to recast the offence as involving poor work performance and that its imposition of discipline was thereby fatally flawed. A copy of the rules and regulations was filed in the hearing. There are 24 rules, none of which relate in any express sense to poor work performance. I will refer to that issue in more detail later.

Returning to the chronology, the Union challenged the dismissal in a grievance filed on December 28, 1993 in which it took the position that the Railway had not established just cause to impose discipline on the grievor. It sought his reinstatement with compensation for his lost wages. The grievance was not resolved and it was submitted to arbitration. The Union, in keeping with the practice between the parties, proposed a joint statement of issue with which the Railway did not agree.

In the result, the dispute proceeded without a joint statement. However, it is worth noting that in its draft statement, a copy of which was filed, the Union summarized its perception of the disciplinary initiative of the Railway as follows:

The Union’s position was that, while taking an excessive time to complete a work assignment may amount to "poor work performance", it does not amount to a failure to perform work "in accordance with instructions received from the supervisor in charge", and thus falls outside the terms of Rule #20. The facts, said the Union, do not support a finding that the grievor failed to perform his work that night in accordance with any instructions given him by his supervisor.

The Union took the position that the Railway, having conducted an investigation into an alleged breach of Rule #20, was required in imposing discipline to confine itself to conduct falling strictly within the language of that rule. Its position was that the discipline giving rise to the 15 demerits and the resulting dismissal must be seen as nullified by the Railway when it changed the allegation from a breach of Rule #20 to an allegation of poor work performance. Finally, and in any event, the position of the Union was that the conduct of the grievor on the shift in question, regardless of how it is characterized in terms of the rules, did not disclose any conduct deserving of discipline.

The Railway adduced in evidence a copy of the report dated November 2 filed by the grievor’s supervisor, Mr. Walters and of the statement given by the grievor in the investigation on November 25. During that investigation the grievor and the Union were provided with a copy of the report filed by Mr. Walters and the grievor commented on the contents of the report at length. I will refer to his comments in more detail later in the context of the Union’s submissions.

Here it is sufficient to say that the Railway, in keeping with the process adopted by the parties, relied on the documentary evidence as proof of uncontested facts and called evidence from Mr. Walters with respect to certain of the disputed facts. The principal issues of fact in dispute relate to the nature of the instructions given to the grievor and Mr. Perez at the start of their shift. If the recollection of Mr. Walters is correct, it is clear that the grievor failed to carry out his work assignment in accordance with his instructions. In his report, Mr. Walters addressed those facts as follows:

In his evidence Mr. Walters confirmed the facts asserted in his report and said that when he gave his instructions at the start of the shift, both the grievor and Mr. Perez were present and he told them to do the inspection of car #8306 until car #8307 had been spotted. He said that he estimated at that time that it would require approximately one hour to spot the car, thus affording the two employees ample time to complete the routine inspection of car #8306.

Mr. Walters said that he informed the grievor and Mr. Perez, in any event, that the inspection was to occupy them only until car #8307 was spotted and that when it was spotted they could look out the window of car #8306 and see it. Mr. Walters said, in effect, that he made it clear to them that their primary work assignment was the repairs to be done to car #8307 and that the inspection of car #8306 was to fill in time until it was spotted. In cross-examination he said that he told both employees specifically to watch for the spotting of car #8307.

The Union evidence also consisted of documents it filed, including the grievor’s statement and a copy of the statement given by Mr. Perez on November 12, 1993. In addition, both the grievor and Mr. Perez were called to give evidence. As stated, their evidence differed in certain material particulars from the evidence of Mr. Walters. I will refer to the authorities dealing with the weighing of evidence later. Here it is sufficient to say that the evidence adduced by the Railway with respect to the disputed facts is more consistent with the facts that are not in dispute than the evidence of the Union.

In reaching that conclusion I noted that not only did the account of events given by the grievor in his evidence and his statement differ on the material facts from the evidence of Mr. Walters, it also differed in some respects from the statement and evidence of Mr. Perez. Further, the evidence and statements of the grievor and Mr. Perez contained contextual inconsistencies which were difficult to reconcile with the facts asserted by the Union. Following is a summary of the principal issues of fact relating to the disputed evidence as extracted from the report and evidence of Mr. Walters and the statements and evidence of the grievor and Mr. Perez:

(A) What instructions were given at the start of the shift?

As stated, Mr. Walters reported that he gave instructions to both the grievor and Mr. Perez to perform repairs on car #8307 when it was spotted and, in the interim, to perform a top deck C inspection on car #8306. The shift in question was a train night and Mr. Walters was expecting to be absent from the area during the first hours of the shift, thus leaving the two employees unsupervised. I find on the evidence that they were aware of that fact. Mr. Walters said that he gave the location at which car #8307 would be spotted, being a location immediately adjacent to car #8306 in a position in which it could be readily observed from that car. His instructions were to move to car #8307 as soon as it was spotted.

Mr. Walters’ anticipation was that it would take approximately one hour for car #8307 to be spotted. In actual fact it was spotted at 4:30 p.m., being one and one-half hours after the start of the shift. The Railway filed documentary evidence disclosing that an average time for a top deck C inspection was 30 minutes. Mr. Walters anticipated that there would be ample time to complete the inspection before car #8307 was spotted. He said his instructions were given with both the grievor and Mr. Perez present.

The grievor, in Q. 11 of his statement, said in effect that he received the instructions from Mr. Walters and that he then relayed those instructions to Mr. Perez. He said the assignment was "to thoroughly inspect the top deck of car #830611" and that "there will be rubber backs later to change out on S-211". The latter comment was a reference to car #8307, although the grievor said that he was not given the car number or the location on track S-2 at which it would be spotted. He said he was told by Mr. Walters that it "will be hours" before the car could be spotted.

The grievor said he was told that his assignment on car #8306 was limited to an inspection and that the midnight shift, being the next shift, would do any work required to be done. He said he was then told by Mr. Walters that he would return after the "rubber back" car, being car #8307, was spotted on S-2 and would then give him his second assignment. He said he was then given the inspection sheets for car #8306. He said Mr. Walters returned to car #8306 at 6:45 p.m., at which time he identified car #8307 as the next assignment.

Mr. Perez, in effect, said in his statement that he was present at the start of the shift when Mr. Walters gave his instructions. That was the thrust of his statement even though he was not asked expressly if he was present. In particular, he said in Q. 12 that his first assignment was the inspection of car #8306. In Q. 15 he said that he was not assigned work on any other car at the start of the shift but did receive a second assignment "after 7 o’clock". He contradicted that answer in Q. 25 when he was asked, "Were you given another assignment to work on the 8307, E inspection at the start of the shift?" He replied, "Yes". Mr. Perez then volunteered the explanation that in the initial assignment, car #8307 had been improperly identified as car #8308 and, "We were looking for the wrong car-it was actually 8307".

Mr. Perez changed his statement in his evidence. In his statement he did not say that he received his work assignments from the grievor rather than Mr. Walters. In his evidence, he said that Mr. Walters told him he would have to work with the grievor and he then received his work assignments from the grievor. In particular, he said that the grievor told him that they would "have to do the inspection [of car #8306) while waiting for the rubber back (car #8307". In short, the initial statement of Mr. Perez, which was given approximately two weeks before that of the grievor after Mr. Perez had been given an opportunity to review notes he had made and to review the report of Mr. Walters, differed from the statement later given by the grievor, and, in his evidence, Mr. Perez gave a different account and one which was more in line with the statement given by the grievor.

(B) What instructions were given for car #8306?

Mr. Walters said that the grievor and Mr. Perez were instructed to perform a top deck C inspection. The Railway filed a copy of the instructions for a CCOL top deck C inspection and other documentary evidence disclosing that the average time required to complete a top deck C inspection is 30 minutes. As stated, Mr. Walters said that the primary assignment for the grievor and Mr. Perez that shift was to perform the repairs to car #8307 and the assignment to inspect car #8306, in effect, was an interim assignment intended to occupy the time while car #8307 was being spotted.

In his statement the grievor said that he was instructed "to thoroughly inspect the top deck on the 8306". He said that when he was given the assignment he asked Mr. Walters about a document called a 1502 form. It became clear that 1502 forms are prepared by train crew members to indicate any defects found in a car when it is in service. The grievor expressed the understanding that when there is no 1502 form accompanying top deck C inspection sheets, a more thorough and time-consuming inspection must be performed.

The grievor said that he asked Mr. Walters about the 1502 form at the start of the shift and Mr. Walters replied that he did not know where it was. On that basis, the grievor concluded that a more elaborate inspection was required. In particular, he said that a CCOL top deck C inspection conducted with the 1502 forms, "can vary from 40 minutes to anywhere on the plus side". He said that, "if the 1502 sheets are not attached it can vary from 2 hours plus". In short, the grievor said that the absence of a 1502 form caused him, without further inquiry or further instructions, to extend a routine inspection that normally requires an average of 30 to 40 minutes to 3 hours and 40 minutes.

Mr. Perez said in his statement that his first assignment on the shift in question was, "car #8306 inspection". He said that the instructions were to do the inspection while waiting for the "rubber back" and that he and the grievor had followed those instructions. In his evidence, he said, "We were waiting - it took so long" for car #8307 to be spotted. In short, his explanation for the time spent on the inspection of car #8306 was that it was extended pending the spotting of car #8307. That explanation was inconsistent with the evidence of the grievor and with the uncontested facts relating to the time car #8307 had been spotted. In any event, both Mr. Perez and the grievor were aware that the inspection of car #8306 was to fill in time pending the spotting of a second car upon which they were to perform repairs.

The evidence of Mr. Walters and the Railway was that 1502 sheets are not given to employees, they are retained by the supervisor and work required to be performed in response to the 1502 sheets is assigned specifically. Its evidence, in effect, was that there was no discussion with Mr. Walters about 1502 sheets that shift and that the assignment was to conduct a routine inspection pending the spotting of car #8307, with instructions to then move to that assignment.

(C) Why did the inspection of car #8306 take 3 hours and 40 minutes?

As stated, the evidence of Mr. Walters was that the inspection of #8306 was an interim assignment pending the spotting of car #8307. Such inspections are routinely conducted in approximately 30 minutes and nothing in his exchanges with the grievor and Mr. Perez caused him to anticipate that the inspection would continue beyond the time when car #8307 was expected to be spotted. His conclusion in his report and his evidence was that the grievor and Mr. Perez had simply failed to follow his instructions and that there was no satisfactory explanation for the excessive time spent on the inspection of car #8306.

The grievor’s explanation for the protracted inspection was two-fold. The first was his assumption that something other than a routine inspection was required because of the absence of a 1502 form. The grievor’s basis for that belief was not clear. He spoke of what he asserted to be a practice, but, on the evidence of the Railway, no practice existed in which employees conducting top deck C inspections were given 1502 sheets, nor was there any form of standing instructions that required a different form of inspection to be conducted in the absence of a 1502 sheet. Certainly the check list governing a CCOL top deck inspection filed in evidence does not contain any such direction.

Finally, the grievor did not indicate in his evidence that he had sought to confirm his decision to make a more intense inspection with any of his supervisors. The only reference he asserted in that context was his statement that he was instructed to do a thorough inspection and that he had asked Mr. Walters about the presence of a 1502 sheet. Those assertions were not in accord with the evidence of Mr. Walters and seem unlikely in light of the surrounding circumstances.

Mr. Perez did not address that issue in the direct sense in his statement or in his evidence. However, in his evidence he made an oblique reference to the question of why the inspection took the time it did. He said that he and the grievor were instructed to do the inspection while waiting f or the "rubber back", being the car #8307 assignment and, as stated, that they continued waiting because it took so long for the car to be spotted. In short, his explanation for the time taken for the inspection was the delay in spotting car #8307.

Mr. Perez, when asked about 1502 forms, said he was not familiar with upper deck inspections. In that same context, Mr. Perez said that he and the grievor were informed by Mr. Walters after they had completed the inspection of car #8306, a time he placed at 7 p.m. , that car #8307 had "just been spotted". He said they were instructed to go to car #8307 after lunch. In short, he reinforced his earlier statement to the effect that the time taken to inspect car #8306 was attributable to the delay in spotting car #8307.

(D) When did Mr. Walters return to the work area after giving his initial instructions?

Mr. Walters said he returned at 6 p.m. where he expected to find the grievor and Mr. Perez working on car #8307. When he did not find them working on that assignment, he went to car #8306, where he confronted them. He quoted the grievor as saying, "We are just finishing up here. Is the other car spotted yet?" He said he told the two employees that the car had been spotted for almost two hours and that it was readily visible from the windows of car #8306. At the request of the grievor, said Mr. Walters, he left to open the S-2 tool locker and he then left the area to complete his other duties with the expectation that the grievor and Mr. Perez would begin work on car #8307.

The grievor, in his statement, denied that Mr. Walters returned at 6 p.m. He said he returned at 6:45 p.m. He also denied that he had asked about car #8307. He said that it was Mr. Walters who raised that subject by saying that "the switch crew had spotted the car that required two rubber back bearings to be renewed". He said he then asked Mr. Walters to give him the car number and inquired about its location on S-2. He did agree that he had asked Mr. Walters to open the tool supply locker on S-2.

Mr. Perez, in his statement, also denied seeing Mr. Walters at 6 p.m. In Q. 15 he implied that he first saw Mr. Walters after 7 p.m. In particular, he gave no indication in his statement of having seen Mr. Walters in car #8306 at 6:45 p.m. as alleged by the grievor. As stated, the implication arising from his statement was that the assignment to work on car #8307 was given "after 7 o’clock". That statement was contradicted in Q. 25 when he said that the car #8307 assignment was given at the start of shift, but with respect to car #8308, an error that was corrected at some later time. In Q. 27 Mr. Perez said that he and the grievor continued to work on car #8306 between 6 and 7 p. m. Again he made no reference to seeing Mr. Walters at 6:45 p.m. or any earlier time. When asked in his statement if he recalled the grievor asking Mr. Walters to open the S-2 tool box, he said the request was made at 7 p.m. during the lunch hour. However, he changed that statement in the hearing.

In his evidence Mr. Perez said that Mr. Walters came to car #8306 around 6:30 to 6:45 p.m. He then volunteered the statement that it was the second time he had seen Mr. Walters since Mr. Walters had given Mr. Perez and the grievor their instructions. Mr. Perez said that after the encounter with Mr. Walters at 6:30 to 6:45 p.m., "we went to work on the rubber bearing on the next car". He then corrected that to say, "we took our lunch break and then went to the next car". That account of time and sequence was in conflict with his statement in which he said he went for his lunch break at 6:55 p.m.

(E) What events surrounded the move from car #8306 to car #8307?

Mr. Walters said in his statement that when he encountered the employees at 6 p.m. in car #8306, he confirmed to them that car #8307 had been spotted for almost two hours. He said he was then asked to open the tool locker on S-2. He went and opened the locker and then left the work area, returning at 6:50 p.m. Once again he could not see any signs that work had commenced on car #8307. He then went to the lunch room where he found the grievor and Mr. Perez, "getting ready to make their dinner". He said that the grievor offered the explanation that he and Mr. Perez were unable to work on car #8307 because the S-2 lock-up did not have a required socket and they needed the S-1 locker opened to get one.

Mr. Walters went to check those facts. He discovered that the S-2 locker was open and had the socket and other tools needed to perform the work. He also checked the S-1 locker and confirmed that it was locked, which was a departure from the usual practice. He returned to the lunch room after lunch at 7:20 p.m. where he informed the grievor and Mr. Perez that, "(T)hey had better get downstairs and get some work done. I told them the tools they were looking for are all in the cupboard in S-2 and that they always were".

The grievor said that when Mr. Walters arrived at car #8306 at 6:45 p.m. and informed him that "the switch crew had spotted the car that required two rubber back bearings to be renewed", he asked Mr. Walters to open the S-2 tool locker to facilitate the repairs on that car, being car #8307. In the narrative part of his statement, he said that he and Mr. Perez then left the car, "myself to return the work package and (Mr. Perez) to check to see if the (S-2) locker was open and bring the tools required to the work location and then we were going for lunch".

In Q. 26, the grievor said, "I took the work package for the 8306, was going to use the downstairs washroom, but the janitor was cleaning the washroom, so I used the upstairs washroom, walked down the hallway and into the lunch room to get a drink of water". He went on to say that he found Mr. Perez in the lunch room and was informed by him that a necessary socket was missing from the S-2 locker. He said Mr. Perez said, if he saw Scott Walters, could he ask him to open the locker on S-1.

The grievor said that while he was talking with Mr. Perez, Mr. Walters came into the lunch room and he then relayed the message about the missing socket, got a drink of water and then went back to the shop floor to put the car #8306 work package on a clipboard. He said he did not return to the lunch room until 7:05 p.m. The grievor did not give the time sequence for those events, nor did he give an account of what he was doing between when he left the lunch room and when he returned at 7:05 p.m. In his statement he contradicted himself, saying that the employees, "never came up to the lunchroom before ( 7 p.m.) and all employees left at approximately (7:20) hours". That statement was difficult to reconcile with his statement about meeting Mr. Perez in the lunchroom at 6:50 p.m., the admission of Mr. Perez that he was there at 6:55 p.m. and the grievor’s statement that he was there at 7:05 p.m., not 7 p.m. and thus unable to say when other employees arrived.

Mr. Perez, in his statement, said in Q. 19 that the inspection on car #8306 was completed, "around 7 o’clock". He said in Q. 25 through Q. 28 that he and the grievor had been given the assignment to work on car #8307 at the start of the shift but they were given the wrong car number, being car #8308 rather than #8307. As stated previously, he said, "then after that (Mr. Walters) told (the grievor) that wasn’t the right car that it was 8307". He said that he and the grievor were still inspecting car #8306 between 6 p.m. and 7 p.m. and he said that Mr. Walters asked the grievor to open the S-2 tool cabinet "at (7 p.m.) during the lunch time".

Mr. Perez said nothing about examining the S-2 locker and finding the socket missing, or about asking the grievor to inform Mr. Walters about the missing socket or to open the S-1 locker. In Q. 33 through Q. 35 he said that after lunch he and the grievor went to car #8307. When asked if he had all of the tools required to perform the job, he said that they were missing "a pinch bar". In the final analysis, neither Mr. Walters nor Mr. Perez agreed with the grievor’s statement with respect to the missing socket. Mr. Walters said that it was the grievor who said the socket was missing. Mr. Perez said nothing about a missing socket in his statement or his evidence. His only comment, as noted, was that "a pinch bar" was needed, but in that context he did not say that he had asked the grievor to inform Mr. Walters of that fact.

In any event, in Q. 30, Mr. Perez said that he had gone for lunch at 6:55 p.m. because Mr. Walters had said that it was alright, "to go there at 5 toll. That answer conflicted with other statements he had made to the effect that between 6 and 7 p.m. he and the grievor continued to work on the inspection of car #8306. Further, his recollection that the grievor had asked Mr. Walters to open the S-2 locker at 7 p.m. during the lunch hour was inconsistent with the evidence of both Mr. Walters and the grievor. once again, the significance of his evidence is not whether it supported the evidence of Mr. Walters, it is that it failed to support the evidence of the grievor. Further, the fact that aspects of his evidence changed between his statement and the hearing raised questions that affect the reliability of both his evidence and the evidence of the grievor.

In considering the conflicts in the evidence between the Railway and the Union, the proper test to be applied is the one articulated in Farnya v. Chorny, (1952] 2 D.L.R. 354 (B.C.C.A.). On pp. 356-8 O’Halloran, J.A. wrote an oft-cited passage relating to the principles governing the assessment of credibility in cases of conflicting evidence. It is cited in Canadian Labour Arbitration (1995), on pp. 3-60 and 61. Following is an extract appearing in that text:

Applying that test to the evidence in this dispute, I note that for the account of the grievor to be accepted, it would be necessary to accept that Mr. Walters, knowing he was going to be absent from the area during the early hours of the shift and that the grievor and Mr. Perez would be unsupervised, told them to wait until he returned before receiving their second and principal assignment.

I note in that context that it was clear from the evidence of Mr. Perez that he expected Mr. Walters to be absent for much of the shift because it was train night. He also agreed that he knew that he and the grievor would be unsupervised while Mr. Walters was absent. He also agreed that he knew how to contact Mr. Walters or some other supervisor if he required any clarification of the work assignment. Finally, it is noted that the grievor had himself worked as a supervisor and can safely be assumed to know how to have obtained direction or clarification if it was required.

In detailing the facts, I turn next to the grievor’s discipline record. As stated, the Railway relied on the record to support the grievor’s dismissal. The record was summarized in the evidence as follows:

Relying on the accumulation of demerits, the Railway dismissed the grievor. That is, in the decision to dismiss, the grievor’s record, including prior incidents involving breaches of Rule #20 and incidents of poor work performance, were relied on, not only in terms of the accumulation of demerits, but as support for the conclusion that the grievor’s pattern of conduct made dismissal a reasonable response quite apart from the application of the Brown system.

The Railway cited De Havilland Aircraft of Canada Ltd. and United Automobile Workers, Local 112 (1970), 22 L.A.C. 13 (Johnston) in support of the proposition that an employer can establish time standards for the performance of work assignments and can impose discipline for a failure to meet the standards. It next cited Canadian Pacific Limited (CP Rail) and Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, Board of Adjustment #14, CROA Case No. 1484, March 11, 1986 (Kates) in support of the contention that the grievor, in terms of the arbitral authorities, had been given ample warning in the form of his demerits with respect to the consequences of failing to maintain an acceptable standard of conduct and work performance. The Railway also relied on the decision of Mr. Kates to support the conclusion that a disregard of job responsibilities can constitute just cause for the dismissal of an employee.

Finally, the Railway relied on Canadian Pacific Limited and the Canadian Division Brotherhood Railway Carmen of the United States and Canada, March 11, 1987, unreported (Weatherill) , to support the proposition that a dismissal based upon an accumulation of demerits can constitute just cause in the absence of circumstances that mitigate the implications of that accumulation of demerits. In its submission, the facts invite the conclusion that the grievor, in his failure to respond to discipline, had proven himself incapable of maintaining an acceptable standard of conduct and performance.

The position of the Railway on the merits of the culminating incident was to the effect that the circumstances required the grievor to give a satisfactory explanation for requiring 3 hours and 40 minutes to perform a routine inspection which normally requires approximately 30 minutes to perform. Its position, in effect, was that the grievor failed to provide a satisfactory explanation for the excess time he had taken to perform the inspection of car #8306. In that context, the Railway relied on the fact that the grievor, in taking 3 hours and 40 minutes, not only exceeded the usual time required for that task, but ignored the instruction of his supervisor to move to car #8307 as soon as it was spotted.

Thus, said the Railway, the grievor’s explanation, at its best, only accounted for 1 hour and 30 minutes of time and failed to address the fact that he did not follow the instructions given to him by his supervisor. It was clear, said the Railway, that the inspection of car #8306 was assigned to the grievor as a fill-in assignment pending the spotting of car #8307, upon which he was to perform necessary repairs. Its submission in effect, was that, his failure to comply with that instruction brought the circumstances within the scope of Rule #20 and, in the absence of any explanation, constituted just cause for dismissal.

The Union submission on the facts was based on an acceptance of the account of the incident given by the grievor. The Union saw those facts as having been corroborated by the evidence and statement of Mr. Perez. The Union next relied on the difference between the Railway’s investigative notice and its discipline notice to support its contention that the Railway was seeking to impose discipline for an offence different from the one alleged at the time the offence was said to have occurred. As stated, the Union argued that Rule #20 does not encompass an allegation of poor work performance. In its written submission the Union wrote as follows:

The Union submitted that under Rule #27.1 of the collective agreement, the Railway is required to hold "a fair and impartial investigation" and to establish the employee’s "responsibility" for the misconduct alleged before discipline or dismissal can be imposed.

The Railway had failed to establish that the grievor was responsible for any misconduct falling within Rule #20, said the Union. Its submission was that Rule #20 is limited to incidents involving a failure to follow a supervisor’s instructions and that no such incident had been proven.

In that same vein, the Union submitted that under Rule #27.2 the Railway is required to give notice of an investigatory meeting to an employee which includes, inter alia, "the subject matter of such investigation". The Railway, by citing a breach of Rule #20 as constituting the "subject matter", relied, said the Union, on a rule which does not encompass the facts upon which the demerits and the dismissal were imposed.

In response to the allegation that the grievor took an excess amount of time to complete the inspection of car #8306, the Union relied on Brown and Beatty, Canadian Labour Arbitration (1995), para. 7:3520 on p. 7-112.9 to 112.10 for the proposition that "it may not be sufficient for the employer simply to establish that the employee’s performance failed to satisfy the normal requirements of the job in order for it to validly invoke its disciplinary powers". In that context, the submission of the Union was that the Railway had failed to establish that the time taken for the inspection of car #8306 was unreasonable.

The Union also relied on the extract on p. 7-112.10 which reads:

The Union’s submission in that context was that the Railway had failed to establish any "responsibility" on the part of the grievor for the length of time taken to complete the inspection assignment. On the facts, said the Union, the inspection was not routine and, in any event, the time required was explained by the grievor in terms of the failure to provide him with the 1502 forms, thus extending the amount of work required. In addition, said the Union, the grievor had been instructed to wait in car #8306 until he was given his next assignment and, when he received it, he moved to car #8307.

On the facts I find that the grievor and Mr. Perez were informed at the start of their shift that their principal assignment was to perform the repairs to car #8307 and, pending the spotting of that car, they were to perform a routine inspection of car #8306. I further find that the grievor and Mr. Perez failed to follow those instructions in the sense that car #8307 was spotted one hour and thirty minutes into their shift and they did not commence work on it until after 7:20 p.m.

Both parties agree that the grievor and Mr. Perez took 3 hours and 40 minutes to perform the inspection assignment. Further, both parties agree that a routine top deck C inspection requires much less than the time taken. (The grievor did not accept the 30 minute average, but did agree that an inspection could occupy as little as 40 minutes) . In short, there was no dispute that if the inspection had been done in a routine fashion, it could have been done easily within the one hour and 30 minutes that passed while car #8307 was being spotted.

On the facts, then, there was an obligation on the Union to explain why the grievor took 3 hours and 40 minutes to complete the inspection and why he did not commence work on car #8307 as soon as it was spotted. That is not to say that there was an onus on the Union in terms of the issue of just cause. That onus remained on the Railway at all times. Rather, there was an evidentiary burden that arose to meet the Railway’ s evidence that the grievor, in effect, had embarked upon a protracted inspection of car #8306 that went far beyond his instructions. Similarly, there was an evidentiary burden upon the Union to meet the Railway’s assertion that the grievor had failed to begin work on car #8307 when it was spotted.

The explanation offered by the grievor was not satisfactory. I accept the evidence of the Railway that the standard procedure with respect to car inspections is for the supervisor to retain the 1502 forms and to record any defects on the instruction sheet given to the carmen assigned to repair the defects. I also accept the evidence of the Railway that the grievor and Mr. Perez were instructed to commence work on car #8307 when it had been spotted. In the result, I find that the grievor, in breach of Rule #20, failed to follow the instructions given to him by his supervisor.

There was no doubt on the evidence that the primary assignment for the grievor and Mr. Perez on that shift was to complete the repairs on car #8307. I accept the evidence of Mr. Walters that he expected that spotting the car would take approximately one hour and that the work routine on that shift required him to be absent for the first part of the shift. Hence, to accept the recollection of the grievor, it would be necessary to accept that Mr. Walters, having advised the grievor and Mr. Perez that the primary assignment would be the repair of a second car, and knowing he would be absent from the work area when that car would be spotted, not only left without giving that assignment to the grievor and Mr. Perez, but instructed the grievor to remain on his interim assignment until he, Mr. Walters, returned.

In my view, Mr. Walters’ account of events was more likely and, given the inconsistencies in the evidence of the grievor and Mr. Perez, is to be preferred. On that basis, I conclude that when the grievor embarked upon a protracted inspection of car #8306, and when he failed to move to car #8307 when it was spotted, he was acting contrary to the instructions given by Mr. Walters. That is not to say that the evidence supports the conclusion that the grievor deliberately disregarded his instructions in the sense of acting insubordinately. Rather, as I will detail later, the grievor reflected an attitude of animosity toward his supervisor, Mr. Walters, and appeared to have elected to interpret his instructions as requiring a protracted examination of car #8306. His least obligation was to clarify those instructions before embarking on a course of action that was inconsistent with his work assignments.

In terms of the Union’s submission with respect to Rule #27 of the collective agreement, I conclude that Rule 27.1 should be applied in the context contemplated by Arbitrator Weatherill in Canadian Pacific Limited and Railway Carmen on p. 6 where he wrote as follows with respect to a similar provision:

Rule #27.1 does not impose a requirement on the Railway to establish "responsibility" as a condition precedent to the imposition of discipline or dismissal in any adjudicative sense. The process contemplated is one in which the Railway makes a decision which is then subject to scrutiny in the grievance and arbitration process with respect to whether the investigation was "fair and impartial" and whether the facts proven established the responsibility of the employee concerned sufficient to justify the imposition of discipline or dismissal.

That is, the process is an investigatory one for which the Railway remains accountable, but the decision as to whether to impose discipline in a given circumstance is for the Railway to make, subject to challenge in the grievance and arbitration process. The provision does not require the Railway to pass an intermediate test of fairness in deciding whether an employee’s conduct is deserving of discipline. Its obligation is to establish that it had just cause for any action it takes.

Similarly, the requirement in Rule #27.2 for the Railway to give notice of the "subject matter of an investigation" is to be seen as a requirement that the employee concerned be informed of the allegation against her or him sufficient to equip the employee to protect her or his interests in the investigation process. The notice in question was admittedly cryptic but it did identify the circumstances which were to be investigated and the misconduct alleged. Further, the provision does not prohibit the Railway from imposing discipline in response to its findings in the investigative process.

Hence, the fact that the Railway, following the investigation, elected to characterize the misconduct of the grievor as involving poor work performance did not amount to a change in the reasons given for the imposition of discipline.

An employee is entitled at every stage of a disciplinary proceeding to know the nature of the allegations of misconduct made against her or him and to have a full opportunity to answer any such allegations. Further, steps in the disciplinary process, including investigative interviews, must meet the test of procedural fairness. Finally, an employer who imposes discipline on the basis of particular allegations of misconduct is restricted with respect to trying to support its actions on some other ground. Here the grievor was given a full opportunity to know and confront the allegations of misconduct made against him and the Railway, having given its reasons for imposing discipline, did not seek to change them.

In any event, I agree with the submission that Rule #20, of necessity, accommodates issues of poor work performance in the sense that poor work performance can consist of a failure to adhere to defined or acceptable standards. Hence, while the wording of Rule #20 is less than precise in terms of the conduct it encompasses, it cannot be read as excluding the notion that a failure to perform work in accordance with instructions received, in some circumstances at least, amounts to poor work performance. Further, it cannot be said that the rules posted by the Railway are exclusive in the sense of prohibiting the Railway from taking disciplinary action with respect to misconduct that falls outside the rules. Hence, the Railway, having alleged poor work performance as a basis for imposing discipline, was entitled to seek to support that allegation.

There was no indication that the grievor or the Union were misled as to the facts that formed the basis for the imposition of the demerits or the fact that the incident was then treated as a culminating incident in the sense that it triggered a reliance on the grievor’s discipline record to support his dismissal. In any event, the report filed by Mr. Walters includes the assertion that the grievor failed to work on car #8307 when it spotted and that assertion is consistent with Rule #20, being a rule which requires employees to follow instructions given by their supervisors.

In the result, I conclude that the Railway established that the grievor’s conduct was deserving of discipline. I further conclude that the imposition of 15 demerits was consistent with the principle of progressive discipline inherent in the Brown system. That is, when the discipline record of the grievor is reviewed and the f acts are taken into account, there was just cause to impose the penalty of 15 demerits. The question raised on those facts is whether the accumulation of demerits constituted just cause for dismissal.

A dismissal in a collective bargaining relationship governed by the Canada Labour Code is subject to the exercise of discretion set out in s. 60(2) of the Code. It reads as follows:

The application of that provision was considered in Re Canadian National Railway Co. and United Transportation Union (1995) 43 L.A.C. (4th) 124 (Picher). The arbitrator wrote as follows on p. 135:

The subject of mitigation is addressed in Canadian Labour Arbitration, para. 7:4400, p. 7-173 to 7-176 citing Steel Equipment Co. Ltd. (1964), 14 L.A.C. 356 at pp. 340-41 and Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162 (1977) 1 C. L. R. B. R. 1 (Weiler) . Encompassed in the 15 mitigating f actors included in the extracts selected by the authors from those two decisions are:

The seriousness of the offence that gave rise to the grievor’s dismissal emerges largely from the context of his discipline record and the inference to be drawn from his repetition of Rule 20 violations. Taken in isolation, the offence itself was not sufficiently serious to justify dismissal. While a failure to follow supervisory instructions is accepted in the arbitral authorities as a basis for disciplinary intervention, its seriousness depends on the extent to which the actions at issue can be seen as a deliberate flouting of authority. Here there is some room for doubt on that issue. In particular, the facts invite the speculation, if not the conclusion, that the grievor had a poor relationship with his supervisor, Mr. Walters, and that his lengthy inspection of car #8306 resulted from perversity rather than defiance or malingering.

The implication of antipathy between the grievor and his supervisor is found in his evidence and in the narrative part of his statement following Q. 48 where the grievor made a detailed series of complaints about the conduct of Mr. Walters that ranged from petty to serious. For example, he alleged that Mr. Walters routinely absented himself from the work place for the two-hour period between 4 p.m. and 6 p.m. In his evidence he sought to tie those absences to the fact that Mr. Walters’ wife works for the Railway in a nearby building, the implication being that Mr. Walters spends two hours each shift visiting with his wife. Another of the more serious complaints was an accusation that Mr. Walters had challenged the grievor by asserting that he could best him in a fight.

The Union did not pursue the complaints in the hearing and no evidence was called to support them. Nor was there any indication that the complaints had been communicated to the Railway prior to the investigative statement. Commenting on the allegations in this award is not because they achieved credence. Any allegation of impropriety made by an employee must be proven. Here, as stated, no proof was offered. The significance of the complaints in the award is limited to examining them for the insight they offer into the grievor’s apparent hostility toward Mr. Walters and speculating on the extent to which his attitude may have affected his conduct in the culminating incident that led to his dismissal.

I conclude that the grievor, while he failed to follow his instructions, was not shown to have simply refused to follow them. Rather, fixing on the absence of a 1502 form, he rationalized his actions on the basis that they represented a defensible interpretation of his instructions. That conclusion mitigates the grievor’ s conduct in the sense that it raises the possibility that some form of discipline can be substituted for dismissal which is consistent with the principles and goal of progressive discipline.

In considering that question, it should not be presumed that antipathy to a supervisor mitigates overt acts of misconduct. Employees are obliged to accept supervision regardless of their personal feelings toward a particular supervisor. Leaving aside supervisory actions involving improper or unlawful conduct, discrimination and other acts of provocation, (all of which must be strictly proven) , employees must take their supervisors as they find them. (See Canadian Labour Arbitration (1995) , para. 7:4410 to para. 7:4414). However, the implication that the grievor was responding poorly to supervision is a factor that mitigates his conduct on the shift in question in the sense that it offers the prospect that, if he is able to achieve a positive attitude and response to supervision, he can be expected to achieve and maintain an acceptable standard of conduct.

I repeat, the evidence invites at least the speculation that the antipathy felt by the grievor towards his supervisor affected his conduct. That speculation is strengthened by the lack of any reasonable explanation for the grievor’s conduct other than perversity. It is difficult to believe that an employee in the grievor’ s precarious employment position would consciously decide to ignore the instructions of his supervisor. The image the grievor projected was that of a disgruntled employee who was unwilling to provide his supervisor with any cooperation in knowing and understanding what instructions he had been given. That pattern of conduct is one that should yield to remedial discipline.

I note in that context that a review of the grievor’s discipline and work history does not compel the conclusion that he is incapable of accepting supervision and working to an acceptable standard. His record discloses that he worked for a number of years to the apparent satisfaction of the Railway, including promotion to a position as a supervisor. The first recorded incident of discipline did not occur until October 12, 1990. In the following two and one- half years, he incurred discipline on four further occasions, two of which involved violations of Rule #20.

In terms of the grievor’s ability to respond to remedial discipline, between April of 1992 and the offence at issue in this dispute approximately 18 months later, the grievor’s only breach of discipline was what would appear to be a minor violation of Rule #20 for which he was assessed five demerits. In April of 1993 he was counselled with respect to the implications of his discipline record and it was a further seven months before the incident giving rise to his dismissal occurred. Hence, while his discipline record indicates episodic incidents involving his response to supervision, it does not compel the conclusion that the grievor is incapable of maintaining an acceptable standard of performance.

Turning to the last criterion, there is significant economic hardship to be found in the grievor’s dismissal in the sense that replacement employment is a doubtful prospect in the current employment market. The grievor has a number of years of railway service and has a family to support. In addition, the facts in the dispute constitute a foolish basis upon which to lose valuable employment, particularly in these uncertain times. Finally, the circumstances surrounding the grievor’s dismissal should bring home to him in forceful terms the fact that he must change his attitude to supervision.

In short, the circumstances invite an application of the "last chancel’ approach acknowledged by Mr. Kates in CROA Case No. 1484. Implicit in that approach is a acceptance by the grievor that his employment is at risk. That is, his employment is in his hands and he is in a position to demonstrate the value he places upon it.

It can be expected that he will accept that a decent level of cooperation and positive response to supervision is required of an employee, particularly a skilled tradesman who is expected to bring a measure of craftsmanship, professionalism and initiative to his duties.

In terms of a substitute penalty, the Brown system contemplates the imposition of demerits as an alternative to other penalties. It is my understanding that, under the system, the passage of time since the grievor’s dismissal would have the effect of reducing his demerit level. In keeping with that system, an appropriate substitute penalty is to maintain the grievor at 55 demerits upon his reinstatement. That is, the grievor’s discipline record is to remain as it stood on the date of his dismissal and any reduction in demerits will have to be earned on the basis of service occurring after his reinstatement.

In addition, the circumstances do not support an order for compensation. In that context, the reasoning expressed in North York General Hospital and CUPE (1982), 6 L.A.C. (3d) 368 (Teplitsky) @ pp. 372-3, is apropos the facts in this dispute. Mr. Teplitsky wrote in part on p. 373:

Here the circumstances make it inappropriate to impose an order for compensation on the Railway. In the result, the substitute penalty appropriate in the circumstances is reinstatement without loss of seniority, but without compensation and with a demerit level effective the date of reinstatement of 55 demerits. On that basis, the grievance is granted in part.

DATED at the City of Vancouver, in the Province of British Columbia, this 10th day of November, 1995.

ARBITRATOR