ADHOC 290
IN THE MATTER OF AN ARBITRATION
BETWEEN:
BC RAIL
(hereinafter referred to as the "Railway")
AND:
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL 6
(hereinafter referred to as the "Union")
(Sutherland & Kainth Arbitration)
Arbitrator: H. Allan Hope, Q.C.
Counsel for the Employer: David Cox
Counsel for the Union: Terrence Robertson, Q.C.
Place of Hearing: Vancouver, B.C.
Date of Hearing: November 15, 1991
©b69r A W A R D
©b69r I
The grievors in this dispute received a five-day suspension without
pay as a result of a collision on August 25, 1989 between a train and
a maintenance vehicle at a location on the main line of the railway
approximately 30 miles south of Williams Lake. The position of the
Union is that the Railway failed to establish any conduct on the part
of the grievors which was deserving of discipline and had therefore
failed to establish that it had just cause to impose the suspension.
on the day in question the two grievors were part of a three-man
section crew which was under the direction of acting assistant
foreman Earl Flaspohler. The three men were working on the track
and were some distance away from the maintenance vehicle when the
collision occurred. There were no injuries, but there was property
damage of an unspecified amount. The foreman was found negligent in
the circumstances giving rise to the accident and was suspended for
ten working days. He did not challenge the suspension or the finding
of negligence.
In suspending the grievors, the Railway alleged that they were in
breach of an implied safety rule and that their breach had caused the
accident in the sense that if they had complied with the rule the
accident would never have occurred. The rule in question arises from
two rules contained in the Maintenance of Way operating Instructions.
Those rules read as follows:
(46) (A) Before fouling or occupying the main track, the
employee in charge of the track unit shall read the
line-up aloud to all other occupants of the track
unit and ensure that they have a proper
understanding of the contents of the line-up.
(B) If the employee in charge fails to comply with the
line-up, the other occupants of the track unit
shall immediately remind him of its contents.
Mr. Flaspohler, as I will detail shortly, did not read the line-up to
the grievors. He told them about the first train he expected to
arrive in their area. They did not inquire further. Mr. |Flaspohler
made an error that I will also detail shortly. The Railway took the
position that the grievors were under a duty to inquire about the
line-up. The position of the Union was that the grievors were under
no obligation to question the foreman' s actions. The Union
submitted in the alternative that if such a rule existed, the Railway
had not sought to enforce it on any consistent basis and, in any
event, had never imposed discipline on anyone other than the foreman
in circumstances where a collision occurred between a train and other
equipment. The evidence of the Union was that collisions between
trains and other equipment of varying degrees of severity were a
relatively common occurrence on the Railway and that there had never
been an occasion when an employee other than a foreman had been
disciplined.
Evidence was given on behalf of the Railway by Peter Rebagliati, the
superintendent of track maintenance, who said that from the
perspective of safety and operational credibility, it was essential
that all persons working on the rail line be aware at all times of
what traffic was expected. The Union did not disagree with that
submission. Its argument was that the grievors were acting in
accordance with standard practice at all material times and that they
were not in breach of any express terms of any of the rules relied on
by the Railway. An appreciation of the issues raised by the dispute
requires a recitation of the material facts.
©b67r II
The foreman, Mr. Flaspohler, was a sectionman with limited
experience as an acting assistant foreman when the incident occurred.
He had been absent on vacation for a period of six weeks and had only
recently returned prior to the accident. On the morning of August
25, in accordance with the rules, he listened to the dispatcher in
North Vancouver broadcast the line-up for the day. In accordance
with standard practice, he wrote the line-up down on a form provided
by the Railway and attached the form to a clipboard. While he
attended to the line-up, the two grievors loaded the tools and other
supplies |necessaryfortheday'sworkintothemaintenancevehicle.
As stated, he did not read the line-up to the grievors. It was
conceded in evidence by the Railway that its policy was to limit the
writing down of the line-up to foreman and assistant foreman. That
was seen as a productivity choice made so as to avoid the prospect of
a large number of employees preparing their own written record of the
line-up. In the result, the grievors had no direct knowledge of the
line-up.
When Mr. Flaspohler had obtained the line-up, he and the grievors
drove to the site of their first work assignment for the day. As
stated, it was located 30 miles south of Williams Lake. It involved
filling a small hole and raising the line. The maintenance vehicle
was a specially equipped pick-up truck capable of operating on roads
and on the rail line. En route to the work site, Mr. Flaspohler
told the grievors that the first train in their area would be one of
two trains in the line-up that day which were regular in the sense
that they |travelled the line every day. One was a northbound train
and the other a southbound. For employees working north of Williams
Lake, the routine was that the southbound train, being Number 2
arrived first, followed by the northbound train Number 23. For
employees working in locations south of Williams Lake, because of the
difference in distance, the routine was reversed. That is, the
northbound train, Number 23, arrived first, followed by the
southbound train, Number 2.
Mr. Flaspohler had little or no experience working south of Williams
Lake and neither did the two grievors. He confused the two routines
and, in explaining the line-up to the grievors, informed them that
the first train they could expect was northbound Number 2. The two
grievors did not question that assertion and took no steps to check
the line-up or to require Mr. Flaspohler to read it to them. The
submission of the Railway was that the grievors were under an implied
obligation to require him to read the line-up, and, having had it
read to them, were required under the provisions of Rule 4 6 (B) to
point out to him that he was in error in expecting the southbound
train ahead of the northbound train. The theory of the Railway, in
short, was that if the grievors had required the foreman to read the
line-up to them, they would have detected his error and would have
cautioned him under Rule 4 6 (B) about the imminent arrival of
northbound train Number 23.
The circumstances in this dispute are governed by the principles
outlined by the former Labour Relations Board in ©u14rWm. Scott and
©u64rCompany Limited and Canadian Food and Allied Workers.' Union,
©u12rLocal P-162 (1977) 1 C.L.R.B.R. 1 (Weiler) . In particular, the
Board set out the following test on p. 5:
... arbitrators should pose three distinct
questions in the typical discharge grievance.
First, has the employee given just and reasonable
cause for some form of discipline by the employer?
If so, was the employer's decision to dismiss the
employee an excessive response in all of the
circumstances of the case? Finally, if the
arbitrator does consider discharge excessive, what
alternative measure should be substituted as just
and equitable?
In that decision the Board was addressing the principles governing an
arbitral review of a dismissal, not the imposition of discipline, but
the principles have been applied in numerous subsequent decisions
involving discipline. Here the submission of the Union is that the
facts failed to meet the first aspect of that test in that it failed
to disclose conduct deserving of discipline in the first instance.
As stated, the Railway relied on what it saw as the breach of an
implied rule to support its case. Its position was based on its
interpretation of Rules 46(A) and (B). Its submission was that the
rules, read together, required employees to insist that their foremen
read the daily line-up to them. It is clear from a reading of them,
neither rule makes that express requirement. Rule 46(A) requires
the foreman to read the line-up to the crew. Rule 46(B) requires
crew members to remind foremen of the contents of the line-up. The
rules do not address what obligation is imposed on employees where
the foreman does not read the line-up to them.
The Railway said that their obligation, by implication, is to require
the foreman to comply with Rule 46(A) . The union said that the
rules did not require the grievors to insist that their foreman read
the line-up, particularly where, as here, the foreman told them of
the first train expected in their area. In any event, said the
Union, it was clear on the evidence that the Railway had not sought
to enforce that obligation, assuming that one existed, on any prior
occasion.
The obligation of an employer seeking to impose discipline for a
breach of rules was described in ©u27rKVP Co. Ltd. and Lumber &
©u34rSawmill Workers' Union, Local 2537 (1965), 16 L.A.C. 73
(Robinson) , on p. 85 as being subject to the following criteria:
A rule unilaterally introduced by the company, and
not subsequently agreed to by the union, must
satisfy the following requisites:
- It must not be inconsistent with the collective
agreement.
-
It must not be unreasonable.
-
It must be clear and unequivocal.
-
It must be brought to the attention of the
employee affected before the company can act on it.
- The employee concerned must have been notified
that a breach of such rule could result in his
discharge if the rule is used as a foundation
for discharge.
- Such rule should have been consistently
enforced by the company from the time it was
introduced.
And see Brown & Beatty, ©u28rCanadian Labour Arbitration, 1991, para.
4:1500 @ pp. 4-11 ff for a discussion about the onus on employers
who seek to rely on a breach of rules to support the imposition of
discipline. Here there was no question about the publication of the
rules, but the rules relied on do not address the particular
circumstance in express terms. That is, Rule 46(A) imposes an
obligation on a foreman to read the line-up to his crew and Rule 46
(B) requires crew members to remind the foreman of any impending
traffic if he fails to respond to the line-up. I agree with the
Railway that an employee who has been qualified under the rules and
who is therefore presumed to be acquainted with them cannot wilfully
blind himself to breaches of the rule by his foreman without risking
the imposition of discipline.
But here the facts do not support a finding that the grievors did
ignore a breach of the rules by the foreman or wilfully blind
themselves to conduct on his part that constituted a clear breach of
the rules. In particular, the evidence disclosed that there were
varying approaches to the obligation of a foreman to write down the
line-up and communicate it to persons working under his supervision.
Included in those approaches, and perhaps the most common approach,
was the one adopted by the foreman in this dispute. That is, it was
a common practice known to the Railway for the foreman to write down
the line-up and to advise his crew of the traffic to be expected on
a train by train basis.
Here the evidence of the Railway fails to meet the criteria in KVP
Co. Ltd. which requires proof of a clearly stated rule and a clear
breach of the rule. In addition, the facts proven in evidence by the
Railway were deficient in the sense that the Railway did not
establish that the implied rule, accepting that it existed, had been
consistently enforced over the years. In that same vein, the Railway
failed to establish that employees had been disciplined for a failure
to require their foreman to read the line-up to them. In the result,
the Railway failed to prove conduct deserving of discipline and the
grievance is granted. The grievors are entitled to be compensated
for their wage loss and interest in the terms prescribed in ©u7rBritish
©u68rColumbia Hydro & Power Authority and Int'l Brotherhood of Electrical
©u19rWorkers. Local 258©u22r (Re: Shayne Emerson) , 5 L.A.C. (3d) 179
(Baigent) ; upheld on appeal, (1982) 3 C.L.R.B.R. 87 (Somjen) and
to have their discipline record amended by removing the notation of
the suspension. I will retain jurisdiction to assist the parties in
calculating the amount of compensation if that becomes necessary.
DATED at the City of Vancouver, in the Province of British Columbia,
this 25th day of November, 1991.
ALLAN HOPE Q.C. - Arbitrator