GRIEVANCE ARBITRATION AWARD
IN THE MATTER OF AN ARBITRATION RELATING TO GRIEVANCE FILED ON BEHALF OF MR. DALE GARDNER
Pursuant to Canada Labour Code Part 1
CANADIAN NATIONAL RAILWAY COMPANY
(hereinafter referred to as the “Company” or the “Employer” or “CN”)
- and -
CAW – CANADA AND ITS LOCAL 100
(hereinafter referred to as the “Union”)
HEARING EDMONTON ALBERTA FEBRUARY 24, 2012
ARBITRATOR Len Dolgoy, Q.C.
Appearing for Company
Ron Campbell Manager, Labour Relations Winnipeg, Manitoba
Ross Bateman, Director Labour relations Toronto, Ontario
Tim Maltaiz, Sr. Mechanical Manger Edmonton, Alberta
Dale Iverson, Mechanical Supervisor Edmonton, Alberta
Appearing for Union
Brian Stevens, CAW National representative CAW Canada
Zoltan Czippel CAW Local 100 Lodge 448 Vice chair LPB
Mike Rafuse CARMAN
Dale Gardner CARMAN
Burt Wilson President Lodge 448 (Local 100)
GRIEVANCE ARBITRATION AWARD
This is an Arbitration under the Canada Labour Code, Part I, regarding a termination of the employee Mr. Dale Gardner.
The parties have agreed that there are no objections with respect to the jurisdiction of the Arbitrator to arbitrate this matter nor is there any objection to the Arbitrator.
JOINT STATEMENT OF ISSUE
On November 7, 2011, Mr. Gardner was discharged for “flagrant violation of Blue Flag rule”.
It is the Union’s contention that CN is in violation of Rules 27.1, 27.4, APPENDIX III and XVII of Agreement #12, and further contends that there was no cause to support the extreme punishment of discharge of Mr. Gardner.
The Union requested that Mr. Gardner be reinstated with full redress and that the Form 780 issued on November 7, 2011 be replaced with an appropriate level of discipline in line with past practice and jurisprudence.
The Company has denied the Union’s contentions.
A hearing was held on February 24th 2012 in Edmonton Alberta
AWARD OF THE ARBITRATOR
The facts in this matter are not substantially or materially in dispute and Dale Gardner (the “Grievor” or the “Employee”) has readily admitted his breach of the blue flag rules as has the Union.
Summation of facts:
The grievor was hired April 24th 1981 and had, therefore, over 30 years of service to the Company. At the time of the discharge the Grievor’s discipline record stood at 10 active demerits.
At 3:00 hours on Thursday October 27, 2011, the Grievor and his co–worker, Mike Rafuse, were assigned to reverse the hand brakes and angle cocks on a block of rail cars located on CS57 in the rail yards in Edmonton, Alberta in order that the rail cars would be set up for their eastern direction of travel. The Grievor was driving the service truck while his co-worker Mr. Rafuse was doing the actual work of reversing the hand brakes and angle cocks. The Blue Flag Rules govern when and how employees must protect themselves on a track. Since the work of a Car Mechanic requires the car mechanic to be working on or about freight cars inspecting, maintaining and repairing them, these rules provide the fundamental protection to allow them to do their work safely. It was not denied that this was an appropriate safety measure that Mr. Gardner disobeyed. The Grievor and Mr. Rafuse were observed by mechanical supervisor, Dale Iverson, and Mr. Gardner admitted to Mr. Iverson that he had failed to utilize blue flag protection. The Grievor had a rationale for why he did not observe the rule, but nonetheless he failed to observe it.
There is no dispute between the parties that the Grievor and his co-worker failed to lock the switch and apply blue flags and lights on the block of cars on CS57. In essence, this arbitration is about failure to apply the blue flag rules and the resulting danger in which Mr. Gardner placed his co-worker and himself as a consequence and appropriate discipline for this failure in the circumstances of this case.
Having reviewed the submissions of the parties, there is little in true dispute other than that the Union argues that sanction imposed by the Company was extremely inordinate and that there was a failure on the part of the Company to provide the due process required under the agreement.
FACTS THAT ARE RELEVANT TO THE ISSUE OF APPROPRIATE DISCIPLINE
The following facts are relevant to determining the appropriate discipline:
1. The Grievor had 30 years seniority with CN.
2. While the Grievor had previous discipline infractions, his last discipline was dated 2010/12/05, for Handbrake stop on M3479-01 car IC 766277, where the Grievor did not take off a handbrake and the train had to be stopped later on to rectify this mistake. Prior to that discipline the Grievor was disciplined on 2004/01/14 for failure to ensure proper footing in changing weather conditions. Prior to that he had discipline in 2001 for taking undue care and caution while backing up a CN vehicle and in 1990 for sleeping in a private vehicle. There were other violations but over a long career with the company, in my view there were relatively few and, since 1990, far between.
3. It is not in question that the Grievor breached the CN safety rule and that this rule is important and in place for a valid reason.
4. The statement of supervisor Dale Iverson, when he wrote up the incident describes the response of the Grievor and the incident as follows [Exhibit 3 of the Employer’s Brief and Exhibit 2 of the Union’s Brief]:
“Oct 27 approximately 03:00 I assigned Mike Rafuse and Dale Gardner CS57, the task was to reverse the hand brakes and angle cocks, getting the block swap ready to go east. I gave them this job via the radio and on my way back to the office, I drove down CS57 roadway. I came upon their truck and noticed Dale in the truck and Mike applying a hand brake from the ground and the wrong side of the car. So he was standing in between the car and stretched over the coupler. As I stopped to talk to them, Mike got back in the truck and they proceeded to follow me. I then carried on to the end of the track to talk to them there. As I reached the end of the track I realized their (sic) was no blue flags protection on either end of the track. I approached Mike and Dale to discuss this extremely unsafe act and was met with much resistance. Dale did not say anything at all, although Mike had a lot to say. He did not seem concerned in the least bit, he told said “just right (sic) me up or what ever you need to do”. Dale”
5. Supervisor Iverson’s comment was subject to some observation on the part of Union counsel. Union counsel suggested that Mr. Iverson should have said something to the employees when he first met up with them having realized that there was no blue flag on the eastern end of the train. It is my view that it is not absolutely fair to say that supervisor Iverson should have realized that there was no blue flag on the eastern end of the train as it may well have not been apparent to him that the employees were working without blue flag as it was only when he saw fully observed the situation and realized that there was no blue flag on the west side of the train that he would have considered the failure to blue flag the train. It was only when he reached the end of the track that he realized that there was no blue flag on either end of the train. I do however point out that it is inaccurate to suggest that Supervisor Iverson commented that Dale Gardner provided resistance as he said that Dale did not say anything at all. As to Mike Rafuse, I suspect it is true that he may have been somewhat belligerent, but after all he had been caught in a breach of the rules and I put this down to bravado and nothing more than that. A bit of posturing but frankly of a mild nature and I do not consider this a significant factor in light of what resulted.
6. After the incident, the Grievor continued to work for the remainder of his 10 hour shift followed by two additional scheduled 10 hour shifts in his rotation before he was advised that there would be a disciplinary investigation at the conclusion of the second of these shifts.
7. The investigation took place in the presence of a representative for the union, Rob Martin. The investigation was conducted by Rob Henderson. It took place on 2011/10/31 at 8:00. It is not clear to me who actually assessed the discipline of the dismissal although the Form 780 was signed by Ray L. MacDonald and it is indicated that it was prepared by Rob Henderson and that the discipline assessed was discharge. The Form 780 was dated 2011/11/07 [Exhibit 11 of the Employer’s Brief and Exhibit 3 of the Union’s Brief]. There were no actual facts in the Form 780 relating to what happened other than to say that Mr. Gardner was discharged for flagrant violation of Blue Flag rules. I note that Rob Martin was also present for the Rafuse investigation later that morning.
8. At the hearing, Dale Gardner readily admitted his responsibility for breach of the Blue Flag rules. He admitted to knowing the Blue Flag Protection rules. He felt that despite the rules, he was protecting his co-worker because the train was not going to move because the brakes were set up and that in effect he was also on the lookout and he could see to the east and he had no fear that the train would move as the brakes were set up. He said that with respect to the west “I couldn’t prevent anyone from coming in, the train couldn’t move because the brakes were applied also the east end angle cock was open so you could not pump the brakes off.” In essence what he thought was that if a train came in from the west and hit this train the impact couldn’t move the train.
9. After the discharge, a letter was written by Dale Gardner dated November 21, 2011 to CN Alberta Zone Mechanical Car Walker Yard [Exhibit 18 of the Employer’s Brief]. The letter read as follows:
“To Gerry Harder
I would like to apologize for my recent failure in following the company procedure regarding placing the blue flags on CS57. I am very aware of the importance of these flags. After much deep thought I remembered the look of Ernie Dearie’s face when he told us of Rick Adams injury. I want you to know that I see it put you in that very position. I was trying to save a step which in hind sight was careless. If I could reverse that decision the flags would be in place. I understand this was my fault and given another chance it will never happen again.
I would also like to say that on the day of my statement I was not well rested and if I came across as cold or blunt that was not my intention. I have always valued my position at CN and if given the opportunity I can work safely following company procedures. I appreciate the time that you have taken to read my appeal. If you have any questions, please contact me at 780-456-9490.
10. There was a suggestion by Union counsel that CN was not taking the issues of the blue flag infraction that seriously as they allowed Dale Gardner to work for the rest of his shift and two more shifts prior to advising him of the disciplinary investigation. I am not sure if that is correct or not as Ron Campbell suggested that this failure to immediately suspend was due to the inexperience of Supervisor Iverson. Given the nature of my decision herein, I do not hold much weight on this fact one way or the other.
11. Was Dale Gardner afforded due process, as required under the collective agreement, due to CN’s failure to provide the statement (disclosure) of Mike Rafuse that arose from the investigation of Mr. Rafuse, which immediately followed the Dale Gardner investigation.
12. The argument of the Union was that if due process, as mandated in the collective agreement, is not followed, then the investigation in the matter is not conducted in a fair and impartial manner as per the requirements of the collective agreement.
13. In the formal appeal dated November 14, 2011, there is no specific reference to the procedural failure of CN in terms of providing complete disclosure, however as there was reference to Rule 27.1 of the collective agreement in the appeal and it was extensively argued by Mr. Stevens at the appeal, I will address this issue.
Rule 27.1 of Agreement #12 states the following:
“Except as otherwise provided herein, no employee shall be disciplined or discharged until they
have had a fair and impartial investigation and their responsibility established. …”
Rule 27.2 of Agreement #12 includes the following:
“At or prior to the commencement of the hearing, the employee (and the authorized representative if present) will be provided with a copy of all the written evidence as well any oral evidence which has been recorded and which may have a bearing on the their involvement. Sufficient time will be allowed the parties to peruse the evidence. However it is not the intention of this to delay the investigation process due to an unreasonable amount of time taken to peruse the evidence. The employee and the authorized representative will have the right to hear all of the evidence submitted and will be given an opportunity through the presiding officer to ask questions of the witnesses (including Company officers where necessary) whose evidence may have a bearing on their involvement. Where witnesses cannot be present, arrangements will be made to permit them to be questioned upon request, where practicable. The questions and answers will be recorded and the employee and the authorized representative will be furnished with a copy of statements and all other evidence taken. In the event that the Company obtains new evidence having a bearing on the employee’s responsibility, and prior to the assessment of discipline, a copy of such evidence will be provided to the employee, and to the duly authorized union representative.”
14. Mr. Stevens provided three decisions of Arbitrator Michel G. Picher in support of his position that the failure to provide the copy of Mr. Rafuse’s investigation made the proceedings against Mr. Gardner void ab initio.
15. In Case No. 4081 between Bombardier Transportation Canada Inc. and Teamsters Canada Rail Conference, dated January 12, 2012 [Exhibit 14 of the Union’s Brief], a discipline proceeding was found to be void ab initio. In that case, an investigatory statement was taken from another employee on the same day as the grievor and the statement of a third employee was taken five days later. Unlike in the arbitration before me, in that case, there was no admission of guilt of the part of the grievor. Furthermore, I have to point out that the union representative in the arbitration before me was the same union representative to the Rafuse investigation. It is not clear in Case 4081 that the Union representative was the same person in each matter.
16. In Case No. 4081, Adjudicator Picher states:
“It is well established jurisprudence of this office that the failure to notify an employee of the evidence of another individual which may have a bearing on his or her responsibility, during the overall investigation of an incident, constitutes a failure to meet the standard of a fair and impartial investigation and vitiates any discipline which might result. … I am compelled to the conclusion that the Company failed to meet the standard required by article 9 of the collective agreement and reflected in the jurisprudence noted. The grievor was entitled to know, in advance, of the investigation of his fellow employee, whether or not that individual’s statement might be positive or negative towards him, to be present at that investigation and to be provided a copy of the employee’s statement. Regrettably, it is clear that the grievor was given no notification of Mr. Athauda’s investigation nor was he given a copy of Mr. Athauda’s statement prior to the commencement of his own investigation.”
17. In Case No. 4083 between Bombardier Transportation Canada Inc. and Teamsters Canada Rail Conference [Exhibit 16 of the Union’s Brief], respecting the 3-day suspension assessed to the grievor, K Skeene, a suspension was overturned as void ab initio for failure to disclose. However, in that case, the failure to disclose was relevant and obligatory under section 9.1(e) of that particular collective agreement which required the following:
“9.1(e) The notification shall be accompanied with all available evidence, including a list of any witnesses or other employees, the date, time, place and subject matter of their investigation, whose evidence may have a bearing on the employees responsibility.”
18. In that case there was video tape and a misleading statement by the investigating officer, who states to the employee in effect “I have viewed a video that shows you were speeding. You must trust me about that as the video will not be provided to you.” This statement according to Arbitrator Picher was misleading and of course there is the obligation to provide the relevant material. I subscribe and adhere to the fundamental principal of disclosure of all relevant materials. However, a distinction has to apply to the disclosure in the event of an admission of guilt. The circumstances must be examined. Certainly it is not incumbent on the employer to take the steps of complete disclosure in the event of an admission of guilt unless, of course, the employer has information in its possession which would somehow change the admission of the employee. The information must have a relevant bearing on the employee’s involvement. Fundamental to disclosure is relevance.
19. Many facts have a bearing on the case. Only those that are relevant need to be disclosed. Rule 27.2, which details the requirement of the disclosure of oral evidence, requires oral evidence to be provided which has a bearing of the employee’s involvement. In the event of an admission of culpability on the part of the employee, does the statement of a co-worker, which does not contradict or otherwise detract from the employee’s admission of culpability, have any bearing on the involvement of the employee. Only in a most academic fashion.
20. In this instance, the disclosure argument is being raised as a technical defense, which was raised at this adjudication. In addition, the Rafuse investigation was certainly available to the Union representative, as he was present when the investigation took place. Furthermore, I note that Rule 27.2 does not specify how the employee is to be furnished the statement. If the employee is aware of the statement through his Union representative, is it appropriate to then use this technicality to overturn a decision?
21. It is my view that in order to interpret Rule 27.2 one must consider the evil it is intended to address and that is of course, failure to disclose relevant matters by the employer. The rule is clear that if the new evidence has a bearing on the employee’s responsibility or culpability, then, prior to the assessment of discipline, a copy of such evidence will be provided to the employee, and to the duly authorized union representative.
22. In the case of an admission, it is my view that the evidence of the co-employee’s statement has no bearing on the employee’s rights unless there is something in the statement that could have changed the employee’s admission or the discipline assessed to the employee (or at least was reasonably or even possibly capable of changing the employee’s admission or the discipline assessed to the employee). I therefore respectfully reject this aspect of the Union’s application. I caution that this was an excellent argument and it has merit. Failure to disclose relevant information would be, as arbitrator Picher stated, grounds to void the discipline ab initio. However in circumstances where (1) the Union representative has heard the investigation and has in effect decided himself that the investigation has no bearing on Mr. Gardner’s case; and (2) the relevancy of the information is not argued or proven, I do not believe that the evidence from the Rafuse investigation has any bearing on Mr. Gardner’s responsibility and for the reasons given, I accept that the employer properly disclosed all evidence which may have a bearing on the Grievor’s involvement.
This leads to the substantive issue in this arbitration:
Was the discipline of discharge appropriate and can it be sustained.
23. The Employer and the Grievor and the Union all agree that Mr. Gardner did violate the Blue flag rule. Mr. Gardner gave reasons for feeling that his fellow employee, Mr. Rafuse, was not in danger and Mr. Gardner was acting as his protector and watching for movement. Question 22 from the investigation:
“Q: How were you protecting the west end of the train?
A: I was making sure no movement came in from the East end while Mike was applying handbrakes. The brakes were set-up in dynamite condition on the entire train. The train couldn’t move.”
24. The Union’s position is that Mr. Gardner does not deserve to be discharged and lose his 30 year career at CN for his poor judgment in this case. The Union asserts that the discipline given to Mr. Gardner was excessive and outside the established norm. The Union contends that Mr. Gardner understands the Blue Flag rule and accepts responsibility for his actions. This was Mr. Gardner’s first Blue Flag violation in his 30 years of service with CN. The Union asserts that discharge was not needed to correct his behavior.
25. The rationale advanced by the Employer must be examined in relationship to the facts to determine if the Employer has advanced an argument that sustains the Employer’s decision to discharge the Grievor. The first argument that was advanced by the employer was that Mr. Gardner flagrantly and recklessly violated CN’s Blue Flag rules. While it is true and admitted that the rules were violated, does that in and of itself warrant discharge? For example, an individual can flagrantly disobey any number of laws, like jay walking or even operating a vehicle at a speed in excess of the speed limit, without severe repercussions. Does the flagrant disobedience of a law or rule make such action reckless? I think not. That does not mean that the law or rule has not been broken and that a sanction or punishment against the guilty person is unwarranted. However, every flagrant breach of the law or rule does not automatically mean that the underlying behavior was reckless. Furthermore, unless there is a mandatory sanction associated with breaching a particular law, the mere breach of the law or rule should not automatically result in severe or prescribed sanction. Instead, the circumstances of the case must be examined.
26. The Company has argued that the behaviour in question involved a reckless disregard for Mr. Gardner’s and Mr. Rafuse’ s safety. For the Company to establish that the flagrant violation of the rule was also a reckless disregard requires the company to prove that the act was in fact reckless. We heard evidence that the employees considered the risks and at the time thought that their actions were safe. It was only on reflection that the possible consequences even crossed Mr. Gardner’s mind.
27. The Company did not provide any evidence that the misconduct was reckless. No expert testified or provided a statement that there was a real danger to which the employees were exposed. Perhaps there was danger, but no evidence of that was presented. There was the anecdotal apology of Mr. Gardner, but that was an apology and a promise to behave in the future. Yes, there appears to have been a serious injury in the past, but were the circumstances that gave rise to that injury identical or applicable to this case? I heard no evidence to that effect. To the contrary, there was evidence that the train could not move and that there was no danger.
28. Was it correct that the train could not move? I do not know. However, if the employer is alleging that the behavior is reckless and could have created a dangerous situation for the employees, it must provide evidence of it. Is it common knowledge in the railway industry that disregard for the Blue Flag rule is reckless? Based on the evidence presented to me, I don’t know.
29. The Company has also alleged that Mr. Gardner has a history of not following Blue Flag rules. In addition, the Company has argued that:
“Mr. Gardner’s premeditated violation of CN’s Blue Flag Rules and his conscious choice to perform his duties in a manner he chooses to consider adequate warranted a harsh penalty as his actions were deliberate and repetitive and demonstrated a disregard of fundamental safety rules. Mr. Gardner acknowledges that there were other circumstances where he ignores the safety rules and has a history of unsafe acts.”
30. Those statements are not fully accurate. I do not see a significant history of unsafe acts over the 30 years of Mr. Gardner’s employment. I see no past Blue Flag rule infractions in regards to Mr. Gardner. He has a hand break discipline in 2010, a written reprimand for failure to ensure proper footing in changing weather conditions in 2004 an infraction in 2010 re undo care and attention in 2001. and nothing between 1990 and 2001.
31. I have reviewed the decisions and case law provided by Mr. Campbell for guidance in determining whether the conduct of Mr. Gardner was worthy of discharge.
32. Mr. Campbell cited BC Railway Company v. C.U.T.E., Local No. 1,  B.C.C.A.A.A. No. 11 [Cunningham Arbitration], a decision of Arbitrator H Alan Hope, Q.C. [Exhibit 17 of the Company’s Brief]. Mr. Campbell relied on this case for the following comments of Arbitrator Hope on the issue of recklessness:
“It seems apparent that an employee capable or reckless disregard of fundamental safety rules is a poor candidate for reinstatement to an employment relationship where a proper attitude to safety is an essential qualification for employment.”
33. Arbitrator Hope makes the following observation in regards to this issue at paragraph 63:
“63 As stated, the essential question in an arbitral review of a dismissal for breach of a safety rule is the extent to which an employee who has breached the rule can be relied on to work safely in the future. Obviously an employee who has been reckless in his disregard of the rule is not a likely candidate for rehabilitation of the relationship. The same inference does not necessarily arise with respect to employees who have been negligent. The law makes a distinction between recklessness and negligence. Both involve a departure from an acceptable standard of care, but recklessness involves conduct that the perpetrator knows or ought to know involves an immediate risk. Negligence, on the other hand encompasses a spectrum from careless to mere inadvertence.”
34. I go back to the analogy of jaywalking. It is a conscious choice to break the law and jaywalk, but for jaywalking to also be reckless, additional factors have to be taken into account such as traffic conditions or other factors pertaining to the risks involved.
35. In this matter before me, I am not at all sure that the rule breaking of Mr. Gardner was reckless. Arbitrator Hope at paragraph 65 describes this distinction in the following manner:
“65 The distinction made there can be applied to breaches of rule 93 where an employee may act recklessness in breach of the rule as compared with an employee who acts in breach of the rule but not in any deliberate assumption of risk. There is no distinction in industrial discipline equivalent to the distinction between strict liability legislation and the criminal law. (Although it seems clear that deliberate breaches of rule 93 could, in some cases sustain criminal charges). But arbitral jurisprudence does recognize that the particular facts in a breach of a safety rule can mitigate the act in an application of a rationale similar to that which distinguishes between recklessness and negligence. That is, the extent to which the facts imply that the particular grievors knew or ought to have known that their actions involved risk to the lives or safety of persons or damage to property will determine the gravity with which their misconduct is to be assessed in terms of their reliability in the future.”
36. Mr. Gardner expressed a sincere belief at the investigation that there was no risk to Mr. Rafuse or himself. No objective evidence was provided at the investigation or at this arbitration that would refute that or suggest that at the time in question Mr. Gardner knew or ought to have known that he was putting himself or his fellow employee at risk. What Mr. Gardner wrote later in retrospect is another matter going to another issue. There was no evidence that at the time of the incident Mr. Gardner was reckless. Does breaking the blue flag rule of itself make Mr. Gardner negligent or reckless or must there be other factors. Does speeding in a vehicle automatically mean negligence or recklessness?
37. In the Cunningham Arbitration, Cunningham was discharged as a result of a collision between a freight train operated by the grievor and a yard engine. The rule breached by the grievor was that he failed to maintain a proper lookout while operating equipment at restricted speeds within yard limits. The grievor, by his own evidence, was not maintaining a proper lookout in the period immediately preceding the collision. This was a very serious failure on the part of the grievor and the sanction imposed was a one year suspension with no loss of seniority. The sanction was in keeping with previous similar incidents and sanctions.
38. The Employer argued that as arbitrator I should consider the issue of “blatant disregard deterrence.” The Employer relied on the case of Re British Columbia Ferry Corp. and B.C. Ferry and Marine Workers’ Union, 37 L.A.C. (4th) 332 [BC Ferry], J. Korbin (Arbitrator) [Exhibit 19 of the Company’s Brief]. Mr. Campbell summarized as follows at Paragraph 64 of the Employer’s written submissions:
“BC Ferry involved the dismissal of two employees following a tragic incident resulting in the deaths of 3 passengers, the arbitrator considered that where safety procedures were blatantly disregarded, and where the grievor knew or ought to have known that this placed the safety or lives of passengers and employees at risk, and where it is not a case of mere inadvertence, but careless (sic) or negligence, the ultimate question of whether or not the employment relationship can be restored was considered. The arbitrator further considered that discipline of a punitive nature as a means of achieving general deterrence against the repetition of the conduct by other employees is justified, and sometimes general deterrence is the overriding concern; sometimes the issue is one of determining the extent to which the employer’s interest in general deterrence should properly override the principle that discipline should be corrective.”
39. Mr. Campbell argued in Paragraph 66 of Employer’s written submission that:
“It is the Company’s position that the arbitrator should, like in the BC Ferry case, allow the dismissal to stand for blatantly disregarding safety rules without mitigation based on service, age, or prior discipline record. Mr. Gardner knew or ought to have known that no blue flagging placed himself and his partner in danger. He took a short cut to save time, such behavior cannot be condoned.”
40. It is important to compare the failings of Mr. Gardner to the failings of the employees in the B.C. Ferry decision to compare how the arbitrator treated the BC Ferry employees relative to how CN treated Mr. Gardner. I note that there were two discharged employees in the BC Ferry matter. In coming to a conclusion that one of the employees should remain discharged, Arbitrator Korbin made the following comment at pages 343 and 344:
“Even though I have found that just cause for discipline existed and that dismissal was appropriate given the nature and severity of the conduct, ultimately, in keeping with Wm. Scott and Alcan Smelters, supra, the question that I must answer is whether or not the employment relationship can be successfully restored. I am of the view that it cannot.
The breach in this case is extremely serious and, more importantly, the nature of the breach extends beyond mere carelessness. Mr. Mutton blatantly disregarded those procedures implemented by the employer which were designed to protect public safety. The employer has a right to determine procedures, provided that he does so in a fashion that complies with the collective agreement, and to expect that employees will comply with them. This is particularly true where the procedure is introduced in the interests of public safety. I have found that the grievor Mutton was aware of the procedures but did not comply with them. Further, he did not take steps to resolve the apparent conflict between the written procedures and what he says he had been told to be the correct procedures.
Of further concern was the evidence that the grievor had previously witnessed an incident (on another sailing) in which the passenger ramp had not been cleared prior to the departure of a vessel. I accept counsel for the employer’s assertion that this incident, in and of itself, should have made the grievor particularly sensitive regarding compliance with proper clearance procedures.
Throughout the hearing of this matter, Mr. Mutton refused to accept any responsibility for the accident and maintained that clearing the ship was the responsibility of the tower and the chief officer. An employee’s failure to accept responsibility is unfortunate. However the improper placement of responsibility on the shoulders of others by a responsible party is especially damaging to the relationship between a grievor and the employer. It is difficult to envision a continuing relationship between the parties in such circumstances. Finally, there simply do not exist mitigating circumstances which might work in this employee’s favour sufficient to overturn the dismissal. In all of the circumstances, and having regard to the importance of the public trust, I am not persuaded that a lesser form of discipline should be substituted in this case.”
41. The second dismissed employee issue before Arbitrator Korbin was the other grievor, Mr. Anderson. Arbitrator Korbin found that Mr. Andersons’s mistake was done in neither a careless or reckless fashion (the finding was momentary carelessness). The Arbitrator made the following observations at page 345-347:
“Nevertheless, grievor Anderson’s error in judgment was a critical one which resulted in drastic consequences. On its face, Mr. Anderson’s conduct may well have constituted just cause for dismissal, but, pursuant to Wm. Scott which was adopted in Alcan Smelters, supra, I have a statutory obligation to the grievor to weigh all of the circumstances in totality, and to consider those circumstances which might mitigate in favour of restoring the employment relationship.
At the time of the incident, Mr. Anderson was in his 18th year of service with the employer. His employment record is exemplary. …
In determining whether the employment relationship can be restored, the question becomes whether Mr. Anderson will ever make a mistake similar to the one made on August 13, 1992. First I do not thick the error was willful in any way. Further, I was struck by the remorse demonstrated by this individual in the course of the proceedings. Mr. Anderson is obviously deeply troubled by the events that transpired on August 13, 1992. In his own testimony, he freely accepted responsibility for the tragedy that occurred. I have no reason to doubt his sincerity. In short, I do not believe he would repeat the same error.
I was also impressed by Mr. Andersons’s candor before me. The evidence reveals that he was equally candid before the Nemetz commission. Not only was Mr. Anderson frank in his testimony concerning his own involvement in the accident, but his evidence, in my view, assisted the commission to find the true cause of the tragic accident. He did not burden the commission or this board with excuses for his behaviour, nor did he distract either with incidental information. The candor and honesty of a grievor is a legitimate and, indeed, a critical consideration when assessing the appropriateness of discipline.
I am mindful of the importance of maintaining the public’s trust. Such trust must be earned and carefully maintained. This trust in the overall safety of public services must, however, be considered in light of those circumstances that weigh in favour of the grievor. As stated earlier, notwithstanding the severity of the misconduct and the tragic events that followed, I have a statutory obligation to consider all of the circumstances to determine whether they mitigate against the penalty imposed. Those circumstances are, in this unusual case, sufficient to warrant substitution of a lesser disciplinary penalty. …
I believe that the employment relationship can be restored. In the result, therefore, I find the penalty imposed was excessive in all the circumstances.”
42 In the case at hand, Mr. Gardner has accepted full responsibility, Mr. Mutton in B.C. Ferry did not, but Mr. Anderson in B.C. Ferry accepted responsibility. Arbitrator Korbin states, and I agree, that blaming others and refusing to take responsibility for one’s actions makes it very difficult to restore the employment relationship. Mr. Gardner has taken responsibility for his actions and he has expressed remorse and indicated that he has learned from his error. He asks for a second chance.
43. There was a willful disregard for public safety proven against Mr. Mutton in the B.C. Ferry case, whereas in regards to Mr. Gardner’s behaviour there was a breach of rules but it was not proven that the disregard of the rules was reckless and could or may objectively lead to a catastrophic or dangerous situation. Mr. Gardner was cooperative, as was Mr. Anderson in B.C. Ferry. It is my view that based on that decision, the case for discharge is not supported by B.C. Ferry .
44. Mr. Campbell relied on Canadian General Tower Ltd. and U.S.W.A. Local 862 (Re), 74 C.L.A.S. 16 MacDowell (Arbitrator) [Exhibit 20 of the Company’s Brief], for the principal that an employer’s need for general deterrence can outweigh a mitigating factor of length of service. This is so even where the grievor expressed deep regrets, experienced financial circumstances and marital difficulties and had difficulty finding other employment. In that case, MacDowell concluded:
“168 I have carefully weighed the considerations discussed in the Phillips Cables, together with the thorough and thoughtful submissions of counsel for the union. I agree with arbitrator Adams that one should approach a discharge case with considerable care - particularly where the discharge involves a long service employee. I also accept that the grievor is genuinely sorry for what has happened, and he has had a hard time of it, since his termination.
169 However the forgoing considerations must be balanced against the nature of grievor’s conduct, the legitimate interests of the company, and the grievor’s continuing inability to recognize the seriousness of what has happened. All of these factors point strongly in favour of letting the discharge stand.”
45. There are circumstances wherein a discharge will stand in the face of long term employment if the circumstances are such that the discharge is justified.
46. I have also considered Casco Co. and U.F.C.W. Loc. 617P, Re, 38 L.A.C. (4th) 353 D.R. Williamson (Arbitrator) [Exhibit 20 of the Company’s Brief], in which arbitrator Williamson concluded as follows:
“the grievor has been with the employer for four and three-quarters years. While this cannot be regarded as a long period of service, the grievor does have a clean disciplinary record. However, the act of smoking in a hazardous area is a grave one which, when coupled with the grievor’s conduct prior to and subsequent to the incident in misleading the employer of the true nature of his actions, makes this a situation where it is not appropriate for the arbitrator to exercise his discretion in mitigating the penalty imposed by the employer.”
47. In the case of Mr. Gardner, there was no such misleading of the employer, and no evidence that the Grievor knew at the time of the infraction that the breach of the rules would lead to danger. The Casco decision does not support the discharge in the within arbitration.
48. In light of the foregoing, I have not found that the employer has established an infraction by the Employee so grievous as to justify the penalty of discharge. I also note that the Employer has not brought forward any decisions from CN that would provide me with a precedent of discharge being a suitable and comparable sanction in the circumstances and that the discharge was in keeping with past CN practices.
49. The Union has brought forward a series of disciplinary rulings involving CN, in which demerits were issued for Blue Flag infractions. It was argued by the Company that we do not know the substance of the cases that the Union has brought forward or the magnitude of the Blue Flag infractions. While that is true, it is all the evidence that I have.
50. The Employer has relied on case law and texts such as Canadian Labour Arbitration, Brown and Beatty (4th edition) but in my respectful view they do not support the actions that they have taken.
51. In the letter from CN addressed to Zoltan Czippel, Vice President Mountain Region (the Union)[Exhibit 13 of the Company’s Brief], the Employer asserts that the results of the Grievor’s actions could have been catastrophic. However, this statement is not evidence that this specific breach of the Blue Flag rules could have been catastrophic, rather is an assertion of an opinion that may or not be true. The Employer asserts that the Company assessed discipline that is clearly in line with past practice and jurisprudence. No past practice discipline cases relevant to Blue Flag violations were provided in the letter and none was provided by CN at the adjudication. How can an arbitrator determine if the discipline is in keeping with past practice unless past practice is provided in evidence at the arbitration?
52. Mr. Campbell has asked me to consider the issue of Mr. Gardner’s rehabilitative potential and has relied in part on the principal from Canadian Labour Arbitration, Brown and Beatty (4th edition). At paragraph 83 of the Company’s written submissions, he cites paragraph 7:4422 of Brown and Beatty Re Rehabilitative potential:
… The critical question for arbitrators using a corrective approach is the Grievor’s capacity to conform to acceptable standards of behaviour in the future. To answer this question requires an assessment of the Grievor’s ability and willingness to reform and rehabilitate himself or herself so that a satisfactory employment relationship can be reestablished.
In a word, an arbitrator must decide whether the person is “redeemable”. …
In assessing whether a viable employment relationship can be re-established, arbitrators put great weight on whether the employee has tendered a sincere apology and/or expressed real remorse. …
Conversely, where a person refuses to admit a true statement of what must have been the facts … arbitrators are less likely to rate his or her future employment prospects highly. Similarly, where the problems underlying the grievor’s misconduct are ongoing, and the risk of recidivism are high … or where the employee’s disciplinary record shows that he or she is unlikely to change his or her behaviour and become a satisfactory employee.”
53. There is no evidence before me other than that Mr. Gardner has been a decent employee with no blue flag demerits, and relatively few demerits in the past ten years and even over a career as a whole. In addition, I am of the view that Mr. Gardner was candid and admitted his breach of the rules, although he had his explanations to why he broke the rules. It is admitted that there was a breach and that safety may have been risked, however, there is no evidence of a willfulness to place anyone in jeopardy or recklessness towards the safety of others. Based on the above, I am of the view that this Employee can well be rehabilitated and that discharge was excessive.
54. I have been asked to provide a decision on the Brown system of discipline. I do need to go further than to accept that the goal of the discipline system is remedial rather than punitive. When I look at the discipline that was meted out in the past, I see a system of demerits being utilized. While it is fully open to me to order a suspension, there is no evidence before me that a suspension in these circumstances, namely where there was a reasonable, though unacceptable, justification for violation of the rule, where there was candor in admittance of the error and where there was a sincere apology, that anything more than demerits should be issued in place of discharge.
55. In looking to the examples provided by the Union in paragraph 21 of its written submissions, I note the following:
i. In the case of DM Horne, 20 demerit points were assessed by CN for “failure to follow blue flag rules while performing a #1 Air Break test”. Unfortunately, the form 780 is too difficult to read to get the complete reasons.
ii. Alan Digby was assessed 20 demerits by CN for blue flag violation in the citation it states “Note that you failed to follow blue flag rules as you commenced a #1 Air Brake… (note again illegible). Subsequently Alan Digby was assessed 15 demerits.
iii. Jason Dumontier was assessed a 3 day suspension for failure to properly display a blue flag while inspecting a freight car.
iv. R. Hamilton was assessed a 2 day suspension for failure to display a blue flag while working on freight cars.
56. There were other cases of 10 demerits for similar infractions.
57 In SHP 445 CPR and National Automobile, Aerospace, Transportation and General Workers Union of CANADA Local 101 Re Grievance of Carman D. Coady, in dealing with the second head of discipline involving the failure to apply blue flag protection, Arbitrator Picher determined; “ Firstly, it does not appear substantially disputed that for a number of years the failure to properly provide a blue flag for track protection, while treated seriously, was not normally dealt with by the assessment of ten demerit s in all cases. It seems, however, that commencing in 1994, prior to the incident giving rise to this grievance, that at least two employees received demerits for a similar infraction. Of more importance, I think, is the length of the grievor’s service, and the fact that his record is devoid of any prior infraction involving the failure to properly protect his work area with blue flags or blue lights. This is in other words. A first offence by the grievor with respect to the flagging obligation found within rule 42 of the collective agreement. Significant as well, is that the grievor had almost twenty five years of service at the time he was assessed the demerits which led to his discharge for accumulation. While the arbitrator has no difficulty accepting that it is appropriate for the Company to assess demerits for the failure to provide flagging protection vital to the safety of carmen’s operations, it is less than clear that the incident in question could not, in light of the grievor’s long service, have been adequately dealt with otherwise, and in particular by the assessment of a lengthy suspension to bring home to the grievor the precariousness of his record and importance of working safely”
58 The Union has suggested that the standard range is 10 to 20 demerits. Based on the cases before me I have to agree that that is the case.
The grievance is therefore allowed. I direct that the discipline assessed against Car Mechanic Dale Gardner be reduced to 10 demerits with compensation to be paid in full for wages and benefits lost, lost cumulative service and pension benefits and that the records related to this matter be revised to reflect this decision.
I retain jurisdiction with respect to interpretation or implementation of this Award.
Len Dolgoy Q.C. March 26, 2012