SHP - 423
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY (MECHANICAL SERVICES)
(hereinafter referred to as the "Railway")
CANADIAN AUTO WORKERS, LOCAL 101
(hereinafter referred to as the "Union")
RE: POLLOCK – CAUTION
SOLE ARBITRATOR:H. Allan Hope, Q.C.
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Vancouver, B.C., on September 18, 1996.
Additional Written Submissions: September 27 and 28, 1996
I - DISPUTE
The Union challenged a "caution" imposed on the grievor by the Railway on November 2, 1992. The primary concern of the Union and the grievor was the fact that the caution was treated by the Railway as an act of discipline under the Brown System which had the effect of extending the grievor’s accumulated demerits for a further period of one year. The caution was imposed in response to the grievor’s failure to file an abstinence report that he was required to file pursuant to an agreement he had made with the Railway under its Employee Assistance Program (EAP).
The joint statement of issue filed by the parties reads as follows:
JOINT STATEMENT OF ISSUE:
It is the position of the Union that;
Therefore, the CAUTION debited against D.G. Pollock’s record should be removed and his record so adjusted.
The Company contends that the minimal discipline assessed was neither excessive nor unwarranted and denies the Union’s contentions and claim.
In its written submission the Union expanded upon that general statement of the issues to raise as a further issue the question of whether a "caution" is an act of discipline under the Brown System. The point of raising that question was that the Railway relied on the caution to extend the grievor’s accumulation of demerits for a further period of one year.
The Union also raised an additional issue in its written submission and in its submission in the hearing itself. It alleged that the facts relied on by the Railway to support the caution were privileged because they arose in the administration of the EAP and should be treated as confidential. The submission of the Union, in effect, was that any facts relating to the grievor’s participation in the program cannot be relied on by the Railway to support the imposition of discipline and, in any event, are inadmissible as proof of just cause for discipline in arbitral proceedings in which any resulting discipline is challenged.
II - FACTS
At the time of his caution the grievor was enrolled in the alcohol and drug abuse aspect of the Railway’s EAP, having been enrolled in the program approximately one year earlier on November 15, 1991. His enrollment in the EAP included his agreement to "submit reports of abstinence to (a) designated supervisor at required intervals", with a further written acknowledgement that any failure to comply with the terms of the agreement that constituted his enrollment "may result in (him) being held out of service with possible closure of his record".
Initially the grievor was required to file abstinence reports every two weeks. In April of 1992 he was advised that his reporting sequence would be reduced to once monthly. The grievor acknowledged during the investigation of the circumstances that he had failed to file an abstinence report for the month of September, 1992. He offered the explanation that he felt that the reporting sequence had been further reduced to once every two months. That explanation was not accepted by the Railway as sufficient excuse for the grievor’s conduct.
The Railway based its decision to impose discipline on the fact that in the November 15, 1991 agreement executed by the grievor, he acknowledged, inter alia, that a failure to submit abstinence reports could result in the imposition of discipline or dismissal. The Union asserted that the Railway had a different motivation. In its written submission and in its submission in these proceedings the Union raised other issues which it saw as having arisen from the investigation that gave rise to the imposition of the caution. In particular, its position was that the Railway had seized upon the failure to file an abstinence report as a rationalization of its imposition of a caution, not as a response to any implication in the facts that the failure to file an abstinence report supported the inference that the grievor had not remained abstinent.
It was in that context the Union raised the issue of confidentiality and asserted that the supplementary investigative interview conducted on November 2, 1992 involved use by the Railway of confidential information derived from the grievor’s participation in the EAP. The Union was also concerned about a question put to the grievor in that interview in which he was asked if he would agree to submit to a urine and blood test supervised by the Railway and to release the results of the test to support or refute his assertion of continued abstinence. However, as stated, the caution was imposed in response to the grievor’s failure to file an abstinence report, not his refusal to submit to a test supervised by the Railway.
The decision to impose a caution rather than further demerits was based on the fact that the grievor, had accumulated 59 demerits and, under the Brown System, the accumulation of 60 demerits results in dismissal. Hence, the grievor would have been dismissed if any number of demerits had been given in response to his failure to file his abstinence report. The alternative selected by the Railway was to impose a "caution". The Railway saw the caution as having the effect of warning the grievor that his conduct was unacceptable and of extending his accumulated demerits for one year, but without increasing his total.
In the proceedings the Union filed memoranda issued over the years by the Railway with respect to its application of the Brown System. The Railway pointed out that the memoranda were not current, (they were dated 1950 and 1980 respectively). The Railway sought and was granted leave to file its contemporary Brown System memorandum, subject to a right in the Union to address the implications of that memorandum. The current memorandum was issued in 1994 and consists of 13 pages of detail with respect to how the Railway views and administers the Brown System. The memorandum was delivered by the Railway on September 27, 1996. It was accompanied by a brief submission with respect to the disciplinary significance of the imposition of a caution under the Brown System. Its position was that a caution is a disciplinary initiative that has the effect of extending accumulated demerits for a further period of one year.
The Union replied on September 28, 1996. The Union reply is encapsulated in the following extract from its submission:
The only time a "Caution" is mentioned in the entire (1994) document is on page 6 of Mr. Brazier’s description and it is mentioned only as "Verbal" and only in relation to absenteeism. There is no other mention of a Caution in the entire document.
The passage referred to by the Union that appears on p. 6 of the 1994 Brown System memorandum contains the phrases, "discipline could range from a verbal caution … to dismissal", and "absenteeism could be handled within a similar range of response from a verbal caution to more significant discipline". In short, the memorandum reflects the fact that the Railway views the imposition of a caution as an act of discipline. The memorandum provides for the cancellation of "up to 20 demerit marks for each twelve consecutive months’ service free from discipline".
III - POSITION OF THE UNION
As indicated, the position of the Union was that when the Railway elected to "caution" the grievor it effectively waived its right to impose discipline. That waiver, said the Union, entitled the grievor to a reduction of 20 demerits from his accumulated total effective the anniversary date of the last discipline imposed upon him. The remedy it sought was to have that reduction in demerits factored into the grievor’s discipline record.
In terms of whether the grievor’s failure to file an abstinence report was conduct deserving of discipline, the Union submitted that even if the grievor’s explanation did not excuse his failure to file the report, that failure did not amount to conduct that supported the imposition of discipline because, as stated, it was of the view that all EAP proceedings are confidential and are privileged. It was a breach of confidentiality for the Employer to rely on any aspect of the EAP to support the imposition of discipline, said the Union.
The Union pointed out that, in any event, the use of letters of abstinence had been discontinued in the EAP in favour of the introduction of a process called an "intervention meeting". Its position was that it was accepted as possible, if not likely, that persons on the alcohol and drug abuse aspect of the EAP would experience one or more relapses and that the parties should be seen as having agreed that the program should accommodate that eventuality in a supportive rather than punitive way. The "intervention meeting" served that purpose, said the Union.
The Union expressed the view that the motivation of the Railway in giving the caution to the grievor was, to paraphrase the Union’s written submission, because the Railway "was much more interested in finding a reason to discipline (the grievor)". The Union noted in that context that the Railway did not give consideration to the question of whether the grievor had in fact remained abstinent except as an afterthought, thus inviting the inference that its disciplinary initiative was not responsive to a concern with respect to whether the grievor had remained abstinent.
In addressing the issue the Union advised that it would not normally challenge the issuance of a "caution", but that it was compelled to do so in this circumstance because the Railway "contends that under the Brown System of Demerits the issuance of a caution to an employee effectively extends the time it takes for the demerits an employee has received to be diminished".
As stated, the Union filed a copy of the Brown System dated September 25, 1950 which provides for the imposition of demerits or a warning, but with no mention of a caution. The Union pointed to paragraph 3 of the September 25, 1950 memorandum which reads as follows :
3) For every twelve calendar months of continuous good service free from demerit mark discipline, twenty (20) demerit marks will be deducted from the total number any employee has accumulated. (emphasis added)
The submission of the Union was that the phrase, "free from demerit mark discipline", cannot be read as including a "caution". Its submission is that the phrase requires an initiative that results in the imposition of one or more demerit marks, or, at the least, the imposition of a warning. (In the 1950 memorandum, a warning is listed as the designated response to a first offence of being absent from duty without permission or legitimate reason) . The Union then filed the Brown System memorandum dated March 4, 1980 in which the Railway had outlined various aspects of its application. The Union noted that in that updated version there was no contemplation of the use of a caution as a disciplinary initiative. The position of the Union was that if a caution was intended to be a form of discipline, it would have been mentioned in the exhibits filed in which the Railway outlined the system and its application.
The Union placed great emphasis on the issue of confidentiality and privilege. Its position, in effect, was that the Railway was bound by confidentiality and could not rely on incidents occurring in the administration of the EAP to support disciplinary initiatives. Alternatively, its position was that having elected to impose a caution, the Railway had waived the right to deny the grievor the demerit reduction he had earned through his service.
IV - POSITION OF THE RAILWAY
The position of the Railway was that, far from acting to the prejudice of the grievor, the imposition of a caution was for the sole purpose of protecting him from the accumulation of more demerits, thus triggering his dismissal. Its assertion was that "cautions" had been part of the Brown System for many years and had always been treated by the Railway as extending the one year period required for the reduction of existing demerits. This was the first occasion, said the Railway, when the Union had challenged that practice. The Railway included the following extract in its written submission:
Mr. Pollock was fully aware that he was already in a precarious position, having been previously warned, in conjunction with Company policy, that his job was in jeopardy. The last letter outlining the grievor’s precarious position was issued to him on June 29, 1992, advising the employee that his record stood at 59 demerit marks and that "any misdemeanors resulting in further assessment of discipline could bring about the termination of your employment."
In short, the Railway’s position was that the use of a caution was an integral part of its application of the Brown System and employees and the Union must be taken as having known that cautions were treated as being disciplinary for purposes of administering the system.
In terms of the assertion of confidentiality, the Railway said that there is no agreement between the parties or provision which expressly or implicitly extends privilege or confidentiality to the type of agreement entered into by the grievor under the EAP. Its position was that the interpretation advanced by the Union would mean that an employee enrolled in the EAP could make a commitment with respect to future conduct, including the filing of abstinence reports, and escape any discipline initiated by the Railway in response to a failure to abide by the conditions the employee had accepted. That, said the Railway, was not an interpretation that was consistent with the circumstances or the language at issue.
V - DECISION
The circumstances do not support the contention that the facts with respect to the administration of the EAP are confidential and are thus privileged in the sense urged by the Union. Certainly there is no question that the cloak of confidentiality extends over the facts generated in the administration of the EAP. Even in the absence of an express agreement with respect to confidentiality, the facts generated in such a program would meet the test of confidentiality as it has been addressed in the arbitral and common law authorities.
In particular the authorities acknowledge that the "Wigmore Rules" apply to documents and records generated in circumstances where an issue of confidentiality arises. See Re Government of Province of British Columbia and British Columbia Government Employees’ Union (Lowery), (1992) 28 L.A.C. (4th) 237 (Bird). Commencing on p. 242, Mr. Bird addressed the principles that govern the consideration of a claim of privilege based upon the confidentiality of a communication sought to be adduced in evidence. That decision, and the decisions considered by Mr. Bird in his analysis, relate to communications contained in documents, but the same principles apply with respect to any form of communication generated in circumstances to which the cloak of confidentiality applies. But a reading of the authorities makes it clear that, in this dispute, facts generated external to the EAP program do not meet the test defined in the Wigmore Rules. That is, the rules do not protect an employee against adducing facts directed at disclosing that contractual commitments were made by the employee in the course of enrolling in the program or that the employee acted in breach of those commitments.
On another point, the facts developed in the hearing fail to disclose any factual basis for the grievor having reached the conclusion that his requirement to file monthly abstinence reports had changed. Hence, I conclude that his failure to file an abstinence report was without valid excuse. The submission of the Union to the effect that the Railway did not appear concerned with respect to whether the grievor had actually remained abstinent does not address the issue. His EAP contract required him to file a report with respect to his continued abstinence. His failure to do so entitled the Railway to discipline him and the question is whether the penalty selected was appropriate. It is clear that a caution was a minimum penalty and it cannot be seen as an excessive response to the circumstances.
Turning in that context to the question of whether a caution is a disciplinary initiative under the Brown System, it is worth noting that the Brown System has no contractual force. It is not a discipline code agreed to by the parties. It is a discipline code which was introduced unilaterally by the Railway and which the Railway is free to interpret and restructure, subject only to proof of facts that disclose that the Union and individual employees have been kept informed of the code and its implications in terms of acts of alleged misconduct. The significance of a discipline code unilaterally introduced by an employer was addressed by Professor Bora Laskin as he then was in Canadian General Electric Co. Ltd. and United Electrical, Radio, and Machine Workers of America, Local 524, (1951) 2 L.A.C. 688. On p. 689 he wrote:
The Company has … unilaterally set out a number of plant rules with indicated penalties for infractions, and these are posted throughout the plant. In doing this the company has given its interpretation of the scope of its disciplinary powers. It is unnecessary in this case to determine how far the Company, by publishing certain rules, is estopped from relying on other gounds for discipline. While the published rules may be controlling for the Company in what they cover, they are not, of course, controlling under the Agreement except as they may be found to square with "reasonable cause" (emphasis added)
In terms of that analysis, the significance of the Brown System is that it represents an assertion by the Railway of its discipline policy, including penalties to be expected with respect to particular employment offences. The Railway is bound by it only to the extent that it purports to provide a code that employees can rely on as notice of the disciplinary implications of particular acts of misconduct. A quick review of the 1950 document indicates that it falls far short of embracing all possible areas of employee misconduct and, by implication, the Railway was free to fashion demerit penalties in response to particular acts of misconduct as an exercise of its discretionary right to impose discipline on employees in response to proven acts of misconduct.
The Railway’s approach to discipline is articulated in considerable detail in the 1994 Brown System memorandum filed by the Railway on September 27, 1996. The Railway describes its goal in applying the system as remedial rather than punitive. The use of a caution as opposed to the imposition of demerits which would trigger immediate dismissal is in keeping with that goal. The 1994 memorandum was not in force at the time the events in this dispute took place, but the policy of the Railway with respect to the disciplinary implications of a caution was not shown to have changed.
In viewing the Brown System in that light, the fact that the term, "caution", is not included in express terms or the absence of an express acknowledgement that the issuance of a caution will extend to an existing demerit record does not support the conclusion that the Railway is prohibited from taking that stance. The Brown System, in effect, reflects the arbitral principles of progressive discipline and the doctrine of the culminating incident. As stated, one of its purposes is to inform employees of the disciplinary policy of the Railway. In that context, cautions have been treated for a number of years as having a disciplinary implication and there is nothing in the various Brown System memoranda that disagrees with that practice. The practice served as notice to employees that if their conduct resulted in a caution, it would extend their accumulated demerits for a further period of one year. On the facts, it cannot be said that the grievor was misled as to the implications of a caution or of his right to challenge it by grievance.
I conclude that the facts support the finding that the grievor’s failure to file an abstinence report was conduct deserving of discipline, that the caution imposed on him was not an excessive response to his misconduct, and that the caution was disciplinary and thus extended his accumulation of demerits for a further period of one year. In the result, the grievance is dismissed.
DATED at the City of Prince George, in the Province of British Columbia, this 15th day of November, 1996.
(Signed) H. ALLAN HOPE, Q.C.