SHP Ė 412

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP RAIL

(hereinafter referred to as the "Railway")

AND

CANADIAN AUTO WORKERS, LOCAL 101

(hereinafter referred to as the "Union")

RE Kroc Dismissal Arbitration

 

 

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

 

 

There appeared on behalf of the Company:

Ken Webb

 

 

And on behalf of the Union:

Brian McDonagh

 

 

A hearing in this matter was held in Vancouver, B.C., on May 21, 1996.

 

AWARD

I - DISPUTE

In this dispute the grievor, Pavel Kroc, sought reinstatement to his position as an electrician in the Railwayís diesel shop at Coquitlam, B. C. He was dismissed in an application of the Brown System of discipline. His dismissal followed the imposition on March 5, 1993 of 30 demerits for "insubordinate and unacceptable conduct as evidenced by your repeatedly directing abusive threats, by word and gestures, toward a supervisor". A further 30 demerits was imposed on the same date for "insubordinate and unacceptable conduct as evidenced by your refusal to answer questions during the investigative statements of January 13, January 20 and February 9, 1993". The imposition of the 60 demerits raised the grievorís total demerits to 90. The Brown System provides for dismissal upon the accumulation of 60 or more demerits.

The facts giving rise to the dismissal began on the evening of Saturday, December 5, 1992 when P.W.J. Puflett, one of the grievorís supervisors in the diesel shop, had an encounter with the grievor in the lounge of a local hotel where Mr. Puflett was having drinks with family members following dinner in the hotelís dining room. On December 8, 1992 Mr. Puflett recorded the eveningís events in a report filed with management. He reported that he went for a family dinner following which his party of four repaired to the lounge to continue what he and his wife described in the hearing as a special occasion.

[page 3]

Mr. Puflett wrote that his party entered the lounge at approximately 9 p.m. The grievor entered one-half hour later at approximately 9:30 p.m. Mr. Puflett reported that he observed the grievor speaking with Marie Jelstad, a waitress in the lounge, following which Ms. Jelstad approached his group and advised them that the grievor had made threats against Mr. Puflett. Mr. Puflett wrote that Ms. Jelstad suggested that his party leave the lounge as soon as possible in the company of employees of the lounge, "for protection". He quoted Ms. Jelstad as saying "this guy {is} deadly serious".

Mr. Puflett recorded that the grievor returned to the lounge a few minutes later with a companion and sat at a table approximately 12 feet from his table where the grievor carried on a loud conversation with his companion that included threats against Mr. Puflett. He wrote that the grievor said, "There is no way Puflett is going to run {the grievorís} life and that {the grievor would} kill {Puflett}". Mr. Puflett wrote in his statement that he and his party heard the grievorís companion ask what he was going to do and heard the grievor reply, "Its easy, you just put a gun barrel into his mouth and pull the trigger".

Mr. Puflett wrote that the grievor continued with comments in the same vein for approximately 30 minutes, after which he left the lounge, leaving his companion still seated at the table. Mr. Puflett wrote that Mrs. Puflett informed him that she had observed the grievor outside the lounge looking in through a window, and that Mr. Puflettís son informed him that while he was absent in the restroom, the grievor had rushed into the lounge and made a threatening motion toward the chair Mr. Puflett had been occupying. He then left the lounge again. Mr. Puflett wrote that a few minutes after he had returned from the restroom, the grievor returned to rejoin his companion and resume his discussion, including references to "how bad he wanted to get me outside and that I would be dead meat".

- 4 -

In response to that report, the Railway convened a formal investigation on January 13, 1993 during which the grievor was provided with a copy of the report of Mr. Puflett. The grievor declined to answer questions with respect to the allegations contained in the report on the basis that "I might incriminate myself". The position of the grievor was stated in the investigation by the shop steward representing the grievor. It is convenient to set out that position as recorded in the investigation report. It reads as follows:

It is the Unionís position that this is not in Mr. Krocís best interest to answer any questions, Mr. Puflett has filed a complaint with the RCMP for this alleged act, therefore if Mr. Kroc were to answer any questions pertaining to this investigation he would be rendering himself for a criminal charge. This statement can be subpoenaed from the Crown at any time, because this is an outside matter, Mr. Kroc has the right not to avail himself before seeking proper legal representation. Since Mr. Kroc has not been charged with anything it is the Unions position that this whole issue be dropped and be left up to Mr. Puflett and the RCMP to pursue.

A second investigative meeting was conducted on January 20, 1993 in which the grievor was given a copy of the report of the proceedings on January 13. He was represented in those proceedings by the local chairman of the predecessor union, who reiterated the position of the Union and, once again, the grievor declined to answer any questions with respect to the incident alleged in the Puflett report on the basis that his answers may incriminate him. The position of the Railway recorded in those proceedings was that it had the right "through an investigation to inquire into anything which affects or may affect the operation or administration of the property for which {the Railway} is responsible". A final investigation was conducted on February 9, 1993 in which substantially the same exchange took place between the parties.

[page 5]

Following the first investigative meeting on January 13, Kurt Schillinger, the manager of the hotel on duty on the evening in question, and the waitress, Ms. Jelstad, were interviewed by B.A. Congdon, the manager of the Coguitlam diesel shop. Mr. Schillinger was quoted as having confirmed that Mr. Puflett and his party appeared to be afraid that {the grievor} would hurt them and that he had escorted them to their car when they left. In a written statement, Mr. Schillinger indicated that he had escorted the Pufletts to their vehicle at approximately 11:30 p.m. at their request. He wrote that he had spoken with the grievor that evening and, in response to a question with respect to, "what was going on" he quoted the grievor as having said that "he was upset" because "they {the Railway} were opening his locker at work without his knowledge". Ms. Jelstad was described as having demonstrated reluctance to discuss the incident in question, although she did observe that the grievor "had been recently barred from the lounge for abusive language". Support for findings relied on by the Railway was given in evidence in the hearing by Mr. and Mrs. Puflett. In particular, Mr. Puflett confirmed the accuracy of his report.

The practice of the parties is to assert facts in the form of written submissions and to call evidence with respect to assertions of fact that are in dispute. The Unionís submission was augmented by evidence given by Steve Baryluk, Dave Greenaway and André Durena. Their evidence did not address the events at the hotel. It was directed at an assertion by the Union that the grievorís conduct had been provoked by Mr. Puflett. Mr. Baryluk said that he had been informed by Brent Pollinger, a labourer, that an incident had occurred prior to the grievorís dismissal in which Mr. Pollinger had been instructed by Mr. Puflett to remove a lock from a locker used by the grievor. The incident occurred during the conversion of a tool area where tradesmen had access to lockers in which they stored personal tools. Mr. Baryluk was advised by Mr. Pollinger that the grievorís lock was the only lock removed.

[page 6]

The issue of the removal of locks was understood by the Railway to relate to a bulletin posted in the diesel shop on March 2, 1992, approximately nine months before the incident that gave rise to the grievorís dismissal. On that occasion, all employees were advised that a routine locker inspection would be conducted on March 9, 10 and 11, 1992 and that employees were advised that locks would be cut off if they were not left unlocked to facilitate the routine inspection. The evidence of Mr. Baryluk indicated that there was another incident involving the grievorís locker. The evidence of Mr. Puflett was that he had nothing to do with the locker inspection of March 1992 or the removal of locks. The incident related by Mr. Baryluk was not tied to a specific date. In any event, no complaint was made to the Railway and no grievance was filed with respect to any locker incident.

The Union also led evidence to the effect that Mr. Puflett was not liked or trusted as a supervisor. It led that evidence as support for the conclusion that the grievorís actions were provoked by Mr. Puflett and were thus mitigated in terms of their seriousness. In terms of the hotel incident itself, the Union filed a copy of a letter written by Ms. Jelstad on May 9, 1996 in which she disagreed with certain of the facts asserted by the Railway with respect to the incident, and, by implication, with certain of the statements attributed to her by the Railway. The assertions in her letter were contradicted in the main by evidence given viva voce by Mr. and Mrs. Puflett in the hearing. The grievor did not give evidence.

II - THE RAILWAYíS POSITION

The letter written by Ms. Jelstad and the evidence with respect to removing the grievorís lock amounted to hearsay which, as stated, was contradicted in evidence given viva voce by Mr. and Mrs. Puflett. The arbitral view taken with respect to hearsay evidence is summarized in Brown and Beatty, Canadian Labour Arbitration, (1996) , para. 3:4310, p. 3-48. In particular, the arbitral view is that hearsay evidence cannot be relied on to prove disputed facts, particularly facts that are the subject of contrary evidence given viva voce and subject to cross-examination in a hearing. The Railwayís position, in effect, was that the evidence given by Mr. And Mrs. Puflett must be preferred over hearsay evidence.

[page 7]

The Railway argued that the events as described by Mr. Puflett in his statement had not been answered by the grievor in the investigation or the hearing. In the result, said the Railway, the grievorís actions must be seen as an extreme and unexplained act of insubordination involving threats against a supervisor that had criminal implications. That conduct was not mitigated by the facts surrounding it, said the Railway, and it justified the imposition of 30 demerits.

The Railway submitted further that the refusal of the grievor to answer questions put to him in the investigation constituted a separate act of insubordination that justified the additional penalty of 30 demerits. Its position, in effect, was that the process of investigation agreed to by the parties in the collective agreement imposed a contractual obligation on employees to answer questions about the facts surrounding any incident that supported an investigative initiative. The statement made by Mr. Puflett, said the Railway, constituted serious misconduct on the grievorís part that both invited and required an explanation from him. His refusal to answer its questions constituted misconduct, said the Railway, and the imposition of 30 demerits was reasonable in the circumstances.

III - THE UNIONíS POSITION

The Union took a number of positions that it saw as either challenging or diminishing the significance of the facts relied on by the Railway. In particular, the Union challenged the assertions made in Mr. Puflettí s report and by Mr. and Mrs. Puflett in evidence with respect to the comments and conduct of the grievor on the night in question. The Union viewed the fact that the incident occurred in a lounge as inviting the conclusion that the parties had been consuming alcohol and were under its influence. The Union also viewed the fact that there was entertainment in the lounge as indicating that there must have been a high noise level which would interfere with the capacity of Mr. Puflett and his party to hear the grievorís comments.

[page 8]

The Union invited the further conclusion that the allegation that Mr. Puflett had ordered the removal of a lock from the grievorís tool locker was seen by him as a provocation that served to mitigate the seriousness of the grievorís conduct on the night in question. In the same vein, the Union urged that the evidence that Mr. Puflett was not well-liked or trusted offered an explanation for the grievorís conduct. The Union said, in effect, that Mr. Puflettís lack of popularity and the removal of the grievorís lock supported a finding that he had provoked the actions of the grievor on the night in question. The Union relied in that regard on Canadian Labour Arbitration, para. 7:4412.

In terms of the general issue, the Union relied on the principles of mitigation as recited in Canadian Labour Arbitration, para. 7:4400; Steel Equipment Co. Ltd., (1964) 14 L.A.C. 356 (Reville) @ pp. 356-8; and Wm. Scott & Co. Ltd. and Canadian Food & Allied Workers Union, Local P-162, {1977} 1 C.L.R.B.R. l, {1976} 2 W.L.A.C. 585 @ pp. 4-6. In the submission of the Union, relevant to the issue of mitigation was the fact that the grievor was an employee with long-service and a relatively good discipline record. The Union argued that the facts supported a finding that the incident in question was not premeditated, was isolated, and was provoked by the actions of Mr. Puflett in removing the lock on his locker. Its further position was that dismissing the grievor was an extreme penalty in terms of its economic impact on him and that some form of remedial discipline rather than dismissal was appropriate.

The Unionís position on the 30 demerits issued in response to the grievorís refusal to answer questions in the investigative hearing was that it did not constitute conduct deserving of discipline. Its position was that employees cannot be compelled upon pain of discipline to answer questions that may incriminate them. Its submission was that a refusal to answer incriminating questions is not recognized in the arbitral authorities as an independent ground for the imposition of discipline. Employees are entitled, said the Union, to decline to answer questions that they see as placing them at risk in terms of civil or criminal liability.

IV - DECISION

I agree with the submission of the Union that the Railway lacked just cause to impose 30 demerits on the grievor in response to his refusal to answer questions during the three investigative interviews. The relevant provisions of the collective agreement governing investigations require that an employee be afforded a fair hearing. That provision contemplates procedural fairness and I agree that the contractual obligation to participate in an investigation does not deprive employees of the right to refuse to answer questions that may be incriminating. In particular, such a refusal is not recognized in the authorities as a separate act of misconduct that justifies the imposition of separate discipline. Nothing in the investigative provisions creates a higher obligation in employees of the Railway. Rather, the consequences where employees fail to explain circumstances that require an explanation are to be measured in terms of the seriousness with which misconduct will be viewed.

Both aspects of that general issue were addressed in Tober Enterprises Ltd. and U.F.C.W. Local 1518, (1990) 7 C.L.R.B.R. (2d) 148 (Bruce) and Tober Enterprises Ltd. and U.F.C.W., Local 1518, (1990), 10 C.L.R.B.R. (2d) 67 (Pylypchuk). Ms. Bruce addressed the disciplinary implications of a refusal to answer incriminating questions. On p. 156 she wrote:

[page 10]

After thoroughly reviewing the submissions of the parties, the Panel is satisfied a failure to explain misconduct, particularly where the employee also faces criminal or quasi-criminal charges, cannot amount to an independent cause for discipline. In my view, the obligation to explain only gives rise to evidentiary consequences and must, therefore, be described as an "opportunity" to explain behaviour. While the consequences of remaining silent may ultimately lead to dismissal, the failure to explain, standing alone, does not constitute just and reasonable cause for discipline. (emphasis added)

Mr. Pylypchuk dealt with the question of whether an employer can rely on a failure to offer an explanation as a factor to be measured in the selection of a penalty imposed in response to conduct that is otherwise deserving of discipline. He rejected a submission by the union that imposing discipline on the grievor for his failure to explain apparent misconduct was the equivalent of disciplining him for exercising his right to remain silent. On p. 79 Mr. Pylypchuk wrote:

Balanced against the interests of the Employer are the interests of the grievor, including his right to remain silent. However immutable that right may be, there is nothing in law which requires that right to be automatically subsidized by the Employer. In weighing the competing interests, the arbitration panel took note of the fact that proceedings against the employee were stayed in May 1989, but the employee continued to remain silent until the arbitration hearing. Under the circumstances of this case, the arbitration panel concluded that, with regard to the issue of back pay, the equities lay with the Employer.

The consequences for an employee who declines to offer an explanation in circumstances where the employeeís conduct requires one are two-fold. First, the employee will not be in a position to have any facts that mitigate the alleged misconduct included in a review of any penalty imposed in response to the employeeís conduct. Secondly, a failure to provide an explanation when one is required may be construed in particular circumstances as a failure on the part of an employee to acknowledge her or his misconduct in terms which would mitigate in favour of reinstatement. Here the facts adduced by the Railway required an explanation from the grievor. The failure to offer an explanation supports the determination by the Railway that the grievorís actions constituted an extremely serious act of insubordination.

The incident in question occurred away from the work place, but it fell generally within the scope of off-duty conduct that justifies the imposition of discipline. See Re Emergency Health Services Commission and Ambulance Paramedics of British Columbia, CUPE. Local 873, (1987) 28 L.A.C. (3d) 77 (McColl) and Re Air Canada and Intís Assoc. of Machinists Local 148, (1973) 5 L.A.C. (2d) 7 (Andrews). It is clear that the incident, whatever its inspiration, arose out of the work place relationship. Employers have an obligation to take reasonable steps to protect employees from harm and, in any event, the grievorís conduct amounted to an extreme challenge to authority that justified the Railwayís disciplinary intervention.

The submission of the Union that the conduct of the grievor was provoked was speculative and was not based on facts established in the process. In particular, the grievor did not explain his motivation. In any event, it would require a significant act of provocation to balance out the actions of the grievor. Here the facts relied on by the Union as constituting provocation, even if proven, would not explain the grievorís conduct in terms which would mitigate its seriousness. A test of reasonableness applies to the arbitral concept of provocation. That is, the acts relied on as constituting provocation must be seen as conduct that could be expected to provoke an adverse response in employees generally.

[page 12]

Here the conduct relied on by the Union did not meet the test. It was remote in time and, in any event, was minor when measured against the grievorís extreme reaction. That extreme reaction gave an impression of instability that was not addressed or explained by the grievor. In short, the absence of facts which would support a finding that the incident was isolated and would not be repeated was itself just cause for dismissal. In any event, the grievorís failure to explain his actions deprives the submission of provocation of a factual foundation.

A similar difficulty assails the Unionís submission with respect to mitigation. Certain of the submissions made were supported by admitted facts or reasonable inferences from admitted facts. That is, the grievor had relatively long service and his discipline record did not disclose any similar act of misconduct. Further, it can be assumed that the dismissal would impact adversely upon him. However, the critical factors of mitigation relied on by the Union lacked substance because they relied on facts only the grievor could establish. Hence his failure to address the incident left the Union bereft of facts to support its submissions, even assuming that the facts asserted by the Union could be seen as mitigating the grievorís actions.

In terms of the penalty selected, the failure of the grievor to explain conduct that required an explanation invites the speculation that no reasonable explanation existed and, perhaps, that the grievor was unable or unwilling to confront the fact that his conduct was wrong. In any event, it was for the grievor to meet the implications of his misconduct in terms which would support the conclusion that the employment relationship could be restored. He did not meet that obligation. In the result, I conclude on the facts that the 30 demerits imposed in response to the grievorís insubordination was well within an acceptable range of responses.

[page 13]

In light of that finding, the fact that the Railway failed to prove just cause to impose the additional 30 demerits for refusing to answer questions is academic. There was ample justification to impose 30 demerits for the conduct proven against the grievor, thus bringing his total to 60. It was extremely serious conduct in terms of the spectrum of conduct that falls within the ambit of insubordination and could very well have justified the imposition of a greater number of demerits. His ultimate failure to explain his insubordination mitigates against an exercise of the discretionary right of reinstatement. In the result, the grievance is dismissed.

DATED at the City of Prince George, in the Province of British Columbia, this 18th day of June, 1996.

(signed) H. ALLAN HOPE, Q.C.

ARBITRATOR