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Teacher discipline in British Columbia : implications of Bill 20 Lowry, Mavis June 1992

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TEACHER DISCIPLINE IN BRITISH COLUMBIA: IMPLICATIONS OF BILL 20 by MAVIS JUNE LOWRY B.Ed.Elem., The University of British Columbia, 1977 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS  THE FACULTY OF GRADUATE STUDIES (Educational Administration) We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA April 1992 ©MavisJuneLowry,192  In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission.  (Signature  Department of  L./1U Ptl)ir)11.A1 KLY)11111h1410 h  The University of British Columbia Vancouver, Canada  Date  DE-6 (2/88)  "2  a, 11,9...  ABSTRACT  The purpose of the study is to determine how the teacher discipline system in British Columbia changed as a result of Bill 20, the Teaching Profession Act and Revised School Act of 1987. The nature of the discipline system both before and after Bill 20 was described and the significance of changes to the education community indicated. Before 1987, teacher discipline was governed by a statutory model, pursuant to provisions of the School Act The current system, a collective bargaining model, is governed by the Industrial Relations Act, 75 collective agreements, and arbitral jurisprudence. The study reviews differences in those two systems both generally, and specifically. An analysis of legislative frameworks governing teacher discipline across Canada, as well as a brief overview of the American system, allows the conclusion that the B.C. teacher discipline system is one of a kind in North America and not likely modeled after any other on the continent. To compare the two teacher discipline systems and also to describe them in relation to theoretical concepts, the following were analyzed: (1) legal frameworks governing employer-employee relationships in general, theoretical concepts used to describe employee discipline systems, and studies of employee discipline, especially in the unionized environment and in the case of teachers, (2) decisions of all boards of reference and review commisions prior to 1988, (3) all reported B.C. teacher grievances, specifically discipline-related grievances, and arbitration awards between 1988 and 1991, (4) collective agreement provisions in effect in 1991 related to matters of teacher discipline, (5) critical arbitral jurisprudence on employee (and teacher) discipline, and (6) B.C. teacher discipline cases before 1988 which fell outside the regulated system but resulted in court decisions. The study concluded that the previous teacher discipline system in B.C. was an inferior system, unfair and patronizing at best, but biased against teachers, and open to political manipulation at worst. Only limited teacher discipline decisions prior to changes in legislation were appealed, and even then, often to inexperienced and non-objective bodies. The current system promises to provide more regulated, predictable, and fair treatment, although more knowledge, skills, training and personnel are required to manage the system.  TABLE OF CONTENTS  Page  ABSTRACT  ^ii  TABLE OF CONTENTS  ^iii  LIST OF TABLES  ^vii  ACKNOWLEDGEMENTS  ^ix  CHAPTER I: INTRODUCTION  ^1  CHAPTER II: FEATURES OF EMPLOYEE DISCIPLINE SYSTEMS: A LITERATURE REVIEW ^9 Section 1: What is Employee Discipline?  ^9  Section 2: Theories of Discipline  ^13  Section 3: Legal Frameworks Governing Employee Discipline^18 Section 4: Some Central Features of Discipline Systems  ^24  Conclusion  ^35  CHAPTER III: DISCIPLINE IN AN INDUSTRIAL RELATIONS SETTING ^38 Section 1: Central Features of Employee Discipline Within A Collective Bargaining Relationship ^38 Section 2: Critical Jurisprudence: The Application of Employee Discipline ^43  111  Section 3: Studies of Arbitration Decisions in Employee Discipline Cases ^52 ^57  Conclusion CHAPTER IV: TEACHER DISCIPLINE SYSTEMS  ^60  Section 1: Teacher Discipline Systems Across Canada  ^61  Section 2: Reported Teacher Discipline Cases  ^70  Section 3: Canadian Studies of Teacher Discipline  ^75  Section 4: American Research on Teacher Discipline  ^79  Conclusion  ^87  CHAPTER V: ANALYSIS OF THE B.C. LEGISLATIVE FRAMEWORK ^90 Section 1: A Chronology of Changes  ^91  Section 2: An Analysis of Critical Legislation  ^92  Conclusion  ^110  CHAPTER VI: A REVIEW OF B.C. TEACHER DISCIPLINE CASES BEFORE 1989: BOARD OF REFERENCE AND REVIEW COMMISSION DECISIONS ^113 Section 1: An Analysis of Board of Reference Decisions  ^116  Section 2: Review Commission Decisions  ^140  Analysis and Conclusion  ^158 iv  CHAPTER VII: B.C. TEACHER DISCIPLINE SINCE 1989: AN ANALYSIS OF COLLECTIVE AGREEMENT PROVISIONS.. ^165 Section 1: An Overview of Teacher Collective Agreements: Selection of Clauses for Analysis ^166 Section 2: Eleven Clauses Analyzed and Differences Noted ^168 ^203  Conclusion CHAPTER VIII: THE 1991 B.C. TEACHER DISCIPLINE IN OPERATION AFTER BILL 20  ^207  Section 1: Teacher Grievances After First Agreements in 1989 ^208 Section 2: Arbitration Awards Related to Teacher Discipline ^223 Matters ^230  Conclusion  CHAPTER IX: SUMMARY, CONCLUSION, AND IMPLICATIONS 235 Section 1: Summary of Findings  ^237  Section 2: Conclusions  ^255  Section 3: Implications for Practice and Research  ^265  ^269  REFERENCES  APPENDIX A: TEACHER DISCIPLINE: LEGISLATIVE FRAMEWORKS IN OTHER PROVINCES ^274 APPENDIX B: TEACHER DISCIPLINE CASES REPORTED ^281 V  APPENDIX C: LEGISLATIVE PROVISIONS CREATING THE LEGAL FRAMEWORK FOR TEACHER DISCIPLINE IN 1986....^286 APPENDIX D: PROVISIONS GOVERNING THE LEGISLATIVE FRAMEWORK RELATING TO TEACHER DISCIPLINE ^ 297 DURING THE BILL 20 INTERIM PERIOD APPENDIX E: LEGISLATIVE PROVISIONS GOVERNING TEACHER DISCIPLINE SINCE 1989 ^303 APPENDIX F: QUESTIONS USED IN INTERVIEWS WITH DES GRADY AND RALPH SUNDBY ^310 APPENDIX G: BOARD OF REFERENCE CASES IN BRIEF  ^312  APPENDIX H: REVIEW COMMISSION CASES IN BRIEF  ^346  APPENDIX I: SAMPLE CLAUSES RELATED TO TEACHER DISCIPLINE CONTAINED IN VARIOUS B.C. TEACHERS' COLLECTIVE AGREEMENTS (JUNE 1, 1990 - JUNE 30, 1992)...^358 APPENDIX J: SAMPLE GRIEVANCE REPORT  ^376  APPENDIX K: ARBITRATION AWARDS RESOLVING DISCIPLINE CASES: 1989-1991 SUMMARIES ^377  vi  LIST OF TABLES  Page Table 1: Overview of Board of Reference Cases  ^118  Table 2: Grounds for Discipline  ^120  Table 3: Seniority, Age and Work Record  ^125  Table 4: Precedents Cited in Decision  ^135  Table 5: Review Commissions and Dates  ^142  Table 6: Review Commission Outcomes, Description of Teachers ^143 Table 7: Outcomes of Employee Discipline Appeals  ^164  Table 8: Variations on Some Aspects of Grievance Procedures  ^171  Table 9: Variations on Some Aspects of Arbitration Procedures ^175 Table 10: Misconduct Provisions: General Clauses  ^178  Table 11: Misconduct Provisions: Pre-Discipline Hearing Rights, Section 15 Coverage ^181 Table 12: Discipline/Dismissal Based on Performance: Variations in Provisions ^184 Table 13: Plan of Assistance Provisions  ^186  Table 14: Variations Found in Probation Provisions Found in Teacher Collective Agreements ^188 Table 15: Can School Boards Use Forced Transfer as a Means of ^191 Discipline? Table 16: Seniority as a Factor in Board-Initiated Teacher Transfers ^193 vii  Table 17: Variation in Personnel Files Provisions  ^202  Table 18: Total Teacher Grievances and Percentage Related to Discipline: 1989-91  ^210  Table 19: Types of Teacher Discipline Grievances in B.C. 1989-91 (Three Years) ^217 Table 20: B.C. Teacher Grievance Arbitration Awards  viii  ^225  ACKNOWLEDGEMENTS  The writer wishes to express appreciation for the guidance and encouragement given in the preparation of this thesis by the chairperson of the thesis committee, Ian E. Housego, of the Faculty of Administrative, Adult and Higher Education, Department of Educational Administration, and by the other two members of the committee, Mark Thompson and David McPhillips of the Faculty of Commerce, Industrial Relations Department. Their continued interest and assistance was greatly appreciated. To Des Grady, a friend and colleague for more than 12 years, the writer is grateful for his willingness to meet and discuss this project, to answer numerous telephone calls, sometimes late at night or on Sundays, and to provide his personal accounts of dozens of teacher cases allowing them come alive for the author. Finally, to my friend, BCTF colleague, and companion, Ralph Sundby, a special thanks for his continued interest, advice, support and understanding.  ML  ix  CHAPTER 1 INTRODUCTION In May of 1987, Bill 20 The Teaching Profession Act and revised School Act, was forced through final, third reading in the province's legislature and became law. In overall terms Bill 20 could be said to have had five major effects: (1) It created a College of Teachers which all teachers and administrative officers were required to join and financially support; (2) It removed all reference to the British Columbia Teachers' Federation from the School Act resulting in loss of compulsory membership in that organization and removal of any formal recognition that the BCTF was the organization that represented teachers in all professional and economic matters; (3) It created a new optional bargaining structure for teachers (the 'union model' or the 'association model') and removed all bargaining rights from administrative officers; (4) It excluded principals and vice principals from membership in local bargaining units, essentially forcing them out of the BCTF; and (5) It removed from the Act many conditions of employment, forcing teachers to negotiate into local collective agreements, provisions providing for those repealed conditions. The scope of this paper does not permit study of all five major effects of Bill 20. It examines only, in part, the last item--conditions of  t  employment removed from the Act. Bill 20 created a new labour relations structure for teachers, including profound changes in teacher discipline provisions. The 1987 revised School Act, under the provisions of Bill 20 provided that teacher discipline was no longer governed by School Act procedures once teacher associations became unionized. By February of 1988, all 75 teacher associations in the province had certified under the terms of the Industrial Relations Act making all forms of teacher discipline subject to collective agreements and grievance arbitration. Prior to first collective agreements being in place in 1988, teacher suspensions, dismissals, and other forms of discipline were governed by legal frameworks set out in the School Act or Bill 20. Appeals of disciplinary actions taken against teachers were very limited as only dismissals or a suspension for "a period exceeding 10 days" could be appealed to a board of reference in the case of misconduct, or to a review commission in the case of dismissal for poor performance. Lesser forms of discipline such as reprimands, warning letters, or even a one week suspension could not be appealed, by law, beyond the level of the school board, the body which made the disciplinary decision in the first place. In fact, in 1984, even the basic and fundamental process of grievance arbitration, required in all non-teacher collective agreements in B.C., was held by the Supreme Court of B.C. (Justice Josiah Wood) to be outside "salaries and bonuses" and therefore not within the jurisdiction of interest arbitrators to award in teacher contracts. The B.C. Teachers' Federation became involved in political actions of various kinds on numerous occasions--as a later chapter will outline—in attempts to seek redress for aggrieved teachers who had no legal appeal rights under the School Act When first teacher agreements were ratified in 1988, discipline  2  became subject to the procedures of a collective bargaining regime. Currently, under labour legislation, even an evaluation report written by the principal, and believed by the teacher to have disciplinary implications, may be subject to a grievance procedure. But the new system is also different because Bill 20 had the effect of removing administrative officers (principals and vice principals) from union ranks. These people, for the first time, find themselves involved in discipline grievance actions in a way not experienced in the past. Administrative officers (A0s) in B.C. schools are in a unique situation in Canada in this respect since in all other provinces, except Quebec, administrators (principals) are members of the teachers' union and not, therefore, official management representatives who become a focus of teacher grievance actions. For those in the education system dealing on the front lines with teacher discipline cases, it became apparent very quickly that a new era had arrived. New procedures were immediately put in place, practitioners handling teacher discipline cases required a great deal of new information and training, and teachers had to be informed to respond in a world of labour relations with which they were unfamiliar. Collective agreements, labour law, and arbitral jurisprudence now govern the manner in which teachers can be disciplined in the province. Administrative officers in the B.C. school system and BCTF staff scrambled to equip themselves to cope in an unfamiliar labour relations culture.  Purpose of the Study The central purpose of this study is to describe the changes in the B.C. system of teacher discipline which have occurred as a result of  Bill 20 and show how that one aspect of Bill 20 has created significant  3  and profound change in the educational community in this province. The study provides a clear picture of what rules govern and what processes are used to deal with teacher discipline within today's labour relations regime in the public schools, as well as how such rules and processes differ from those of the past. The study also examines the B.C. teacher discipline system as it fits within a context of employee discipline systems in general, including within the context of other teacher discipline systems in North America.  The B.C. system within a context of employee discipline systems. Before the examination of the B.C. teacher discipline system is undertaken, concepts related to employee discipline in general are reviewed in order that the B.C. system can be described within an understood context. A literature review in Chapter II examines various features of employee discipline systems in general and sets out a foundation of theories, concepts, and definitions, as well as various employee discipline system models, within which teacher discipline systems might be viewed and described. The B.C. system, both as it was before Bill 20 and as it exists now, is described and analyzed in relation to these conceptual frameworks. Chapter III examines in more depth the features of the collective bargaining regime in terms of disciplinary rules and practices in a unionized setting. For the most part, the B.C. education community has entered the industrial relations environment without notice, training, or experience. Some of the most basic rules accepted by those familiar with industrial relations management are new to this cotnmunity. To fully understand the changes that have occurred in the B.C. teacher discipline system it is also necessary to examine other teacher discipline systems. Chapter IV reviews the literature and legislation on  teacher discipline in order to answer such questions as: (1) Is the new B.C. system modeled after that found in any other province in Canada? If so, can we turn to another province for help in understanding how the B.C. system will operate? (2) What kinds of systems are used in North America in general to deal with teacher discipline? Are teachers treated in discipline matters like other employee groups? (3) What literature is available dealing with studies of teacher discipline in Canada, with categories of teacher discipline, and with results of teacher discipline appeals? How often are teacher appeals of disciplinary actions upheld or overturned? The "cross Canada" literature review undertaken in Chapter IV demonstrates the uniqueness of the B.C. teacher discipline system. That review also indicates that little has been written on the topic of teacher discipline in Canada and no major work was found dealing with the subject of the B.C. teacher discipline system in the last decade.  Examination of the B.C. teacher discipline system. This study examines the teacher discipline system in this province as it existed before Bill 20 under the School Act, and as it now exists under the Industrial Relations Act and collective agreement provisions. Relevant laws, boards of reference, review commissions, and appeal court decisions which provided the legal framework of the past, as well as laws, arbitral jurisprudence, labour relations principles, and collective agreement language which provide the legal framework at the current time are examined. Chapter V reviews the province's legislative framework of the past and present, including the interim legislation of 1987-88. The legislation governing teacher discipline matters is contained in Appendices. There were also disciplinary actions taken against teachers  5  in the past that, in law, did not warrant formal appeal to a neutral third party. Teachers took various political and job actions in response to such disciplinary actions by school boards when board of reference or review commission appeal processes were not available as appeal mechanisms. Some of these "protest action" cases, described in Chapter V. further clarify the nature of the teacher "informal" discipline system which operated under the School Act before Bill 20. Chapter VI reviews board of reference and review commission decisions to achieve four purposes: (1) A clear picture of how teacher discipline was handled in the past (before 1988) is set out and can be compared to the current system; (2) Critical precedents set out in board of reference or review commission cases which arbitrators may rely on in making future decisions are pointed out; and (3) The types of offenses which resulted in past disciplinary actions, the nature of disciplinary actions taken against teachers, and the nature of appeal decisions can all be described and categorized; and (4) A statistical record of teacher appeals provide such data as how many were successful, the male/female ratio of disciplined teachers, and characteristics of personnel involved in past appeal boards. The analysis of actual decisions provides a helpful synthesis of the formal teacher discipline system existing for three decades before Bill 20. To examine the current teacher discipline system the actual clauses found in the 75 teacher collective agreements related to matters of teacher discipline are studied. Chapter VII examines many contract clauses outlining their typical features and describing the differences found in provisions from one district to the next. These clauses are also examined to determine how different they may be from those provisions found in the old School Act That chapter demonstrates that there has been a fundamental change from one discipline system for all  6  teachers in B.C. to 75 different discipline systems based on varied collective agreement language. Finally, Chapter 'VIII looks at the new teacher discipline system in B.C. in terms of the nature of the teacher grievance system, and the nature of disciplinary grievances in particular. Teachers and school boards are now dealing with grievances on a regular basis. The chapter examines these grievances to determine how these cases compare to those pre-Bill 20 teacher discipline cases reviewed by appeal bodies of the past. The chapter demonstrates that a new and more complex era of teacher discipline is in operation and that the system has changed in a significant manner. School boards are now handling on a routine basis teacher grievances concerning alleged unfair reprimands, unsatisfactory evaluation reports, and short suspensions with which they did not deal in the past. Some discipline cases now being sent to arbitration could not have been appealed before 1988. CONCLUSION This study examines the B.C. teacher discipline system within a relevant context and provides findings of interest to teachers, school district administrators, and labour relations practitioners. The study provides the only existing comprehensive analysis of the B.C. teacher discipline system, and how it has changed, and includes a summary of all employer-initiated teacher discipline cases appealed over a thirty year period to the end of 1991. Findings in this study are compared to results of other studies of employee discipline to demonstrate the questionable nature of the pre-  Bill 20 system for teachers. The past system is shown to have provided an inferior appeal mechanism for B.C. teachers. It is demonstrated  7  from the data produced that teachers did not get fair treatment under the previous discipline system. The teacher discipline system in the new unionized environment is too new to allow firm conclusions to be drawn concerning its fairness to teachers. However, there is sufficient data provided in Chapter VIII after three years under the new regime to indicate trends. It is clear that teachers are now subject to the same processes other workers are subject to. Such a situation promises to improve considerably the ability of teachers to appeal allegations of unfair treatment and to get fair hearings and receive objective decisions. This thesis answers these questions: (1) How can the B.C. teacher discipline system be compared to other discipline systems, including other teacher discipline systems? (2) What is, and what has been, the legal framework governing the discipline and dismissal of B.C. teachers both before and after Bill 20? (3) What discipline processes were followed before 1989 and what were the results of these processes? (4) What discipline processes are required under collective agreements, labour law, and arbitral jurisprudence today, and what have been the results of arbitration cases reported? (5) What is the statistical record of past disciplinary actions against teachers in this province? and (6) What teacher discipline cases have been reported under the industrial relations system since 1989?  8  CHAPTER II  FEATURES OF EMPLOYEE DISCIPLINE SYSTEMS: A LITERATURE REVIEW This chapter establishes a foundation of theoretical concepts which define employee discipline issues and views employee discipline within the wider labour relations context. The chapter is divided into four sections: The first looks at the more general definitions underpinning concepts of employee discipline; the second deals with theories of employee discipline; the third sets out four systems within which employee discipline takes place; and the fourth reviews critical features of a discipline system. SECTION 1: WHAT IS EMPLOYEE DISCIPLINE? In this first section, the central questions examined are: What is the definition of employee discipline? How can disciplinary action be defined? and How can employee discipline be viewed, understood, or described? It is useful to examine central concepts typically understood by practitioners in the field of employee discipline and to determine those  9  definitions most useful to this study. A. A Definition of Employee Discipline Three different ways of looking at the concept of employee discipline, with a view to giving the term definition, can be found in the literature. Employee discipline can be described in terms of providing a definition of the employer-employee relationship, as self-regulation by the employees, or as one element within the broader industrial relations institutional framework.  Discipline in terms of the employer employee -  relationship. One labour relations practitioner believes that how employee discipline is handled becomes the critical factor in determining the nature of the employer-employee relationship in the workplace: Nowhere is the nature of the relationship between an employer and an employee so dependent on clear understandings than in matters having to do with discipline. It is through discipline that the employer forcefully establishes the limits of its expectations and reacts to what it believes are failures of the employees to conduct themselves in accordance with those expectations. By the same token, the employee's response to discipline gives the employer certain knowledge of the employees' beliefs as to the extent and nature of their rights and responsibilities and of their willingness to fulfill the employer's expectations. It is in this atmosphere of action and reaction that employers and employees define for each other the nature of their relationship... . The primary action tool for an employer is discipline. How it is used may determine whether the employment relationship will be positive or negative (Redecker,1989:3).  In this context then, employee discipline can be defined as one of the fundamental tools in establishing a workplace environment.  Discipline as self regulation. Employee discipline in this second context, is defined as the extent to which employees are self-disciplined or self-regulated due to their high level of commitment and motivation  10  within a workplace. When viewing employee discipline in this manner "the external imposition of disciplinary action need only occur where discipline, in this former sense, has broken down" (Adams,G.,1979:5). In this context, disciplinary action constitutes steps taken to enforce conformity to established rules in the workplace to which "disciplined workers" adhere. Looking at discipline in this fashion then, dictates that the terms "discipline" and "disciplinary action" be given quite different and distinct meanings. In workplaces where the workforce is especially productive, the word "discipline" can be used as "an adjective to describe the state-of-being of the workforce, or the character of the work environment" as in a disciplined workforce (Redeker,1989:4). Redecker discusses the difference in concept between philosophies of "I will discipline you" and "I expect you to be disciplined". Discipline as one element within the industrial relations institutional framework Another way to look at employee discipline is to see where it fits within the wider context or within "the institutional framework of industrial relations" (Kochan, Katz, and McKersie, 1986:17). These authors claim their three level, three-tiered framework is based on "the key premise that industrial relations' processes and outcomes are determined by a continuously evolving interaction of environmental pressures and organizational responses" and that "choice and discretion on the part of labor, management, and government affect the course and structure of industrial relations systems"(13). They claim their three level, three-tiered framework, included below, provides the broad conception desired and illustrates how effects of higher level activities or decisions can explain behaviour and outcomes at a lower level or tier. For example, to take the issue of teacher discipline in B.C., the model allows one to see how government policy changes at the top  11  level (giving teachers full collective bargaining rights), led to further Three Levels of Industrial Relations Activity ^ ^ Government Level^Employers Unions Macroeconomic Long-term^Business strategies Political strategies and strategy and^Investment strategies representation political strategies Policy Making Human Resource policies Organizing strategies strategies ^ ^ Labor Law and Collective^ Bargaining Collective Barg. Personnel Policies ^ Administration and Personnel^Negotiations strategies Policy^Strategies ^ Contract Administration Workplace and^Supervisory Style ^Labor Standards ^ Worker participation Individual^Worker ^Worker partici^ work Organization^Participation ^ Job design and ^pation and individual rights Relationships^Job Design and Organization Work organization (Kochan, Katz, McKersie:17)  changes in the second tier at the government level in terms of adopting new School Act provisions, which in turn had an impact on employers (school boards) and the union (BCTF and local associations) in other levels and tiers of action. The revised system of dealing with teacher discipline is manifested at all three levels and in the three tiers of the model. The model could be used, the authors claim, to identify "apparent inconsistencies and internal contradictions in strategies and practices occurring at different levels". They believe their framework "encourages analysis of the roles that labor, management, and government play in each other's domain and activities" (19). B. A Definition of Disciplinary Action A disciplinary action may be defined both in terms of what it is and what it is not. Because employee terminations arise in non-disciplinary  12  contexts, it is necessary to determine which terminations constitute disciplinary action and which do not. Different rules will apply in either case (Zack and Bloch,1983:138). Of the three objective reasons for terminating the services of an employee, only one can legitimately be defined as grounds for taking disciplinary action. Termination of employees can occur "where the services of the employee are no longer required; where the employee quits or does not return to work; or where the employer is justified in discharge due to conduct" (Willes,1976:4). Several authors emphasize that a reduction in workforce (layoff) is not discipline, and that only the third reason given above constitutes disciplinary action (Willes,1976:4; Zack and Bloch,1983:138; and Paterson and Deblieux,1988:78). Brown and Beatty state that traditionally "the essence of a disciplinary sanction lay in its potentially negative impact on the employee's work record" (1988:7-155). Disciplinary action then, as distinct from employee discipline, is an action taken by the employer against the employee to enforce conformity with employer expectations. This action may be a termination or any lesser form of action which reflects negatively on the employee's record. A layoff, however, is not a disciplinary action.  SECTION 2: THEORIES OF DISCIPLINE Theories of employee discipline found in the literature can be categorized under two general headings: (1) theories based on the relative weight given to the rights of individuals versus the rights of management or the organization, and (2) theories based on the style of application of disciplinary actions. The four theories discussed below have been categorized in this manner.  13  A. Theories Based on the Relative Weight of the Rights of Individuals v. Rights of Management Two theories found in the literature, Phelps' theory and the Coye and Belohav theory, are similar in that each describes employee discipline models in terms of philosophies or viewpoints, and each sees three ways to view or evaluate discipline based on models developed in relation to various management theories. Each sees three "viewpoints" in terms of the relative weight given to the rights of employees versus the rights of management or the organization.  Phelps' theory. In Phelps (1959) view, employee discipline can be described as adhering to one of "basically three philosophies.., depending on one's view of the relative weight to be given the rights of individuals versus the needs of the organization"--authoritarian, anarchic, or discipline by due process. The authoritarian philosophy of discipline occurs in its pure form when "both judgment and execution are by the responsible authority, with no provision for appeal--or at most only personal and exceptional arrangements are made for review" (1). The prime requirement of the employee in this view is to be obedient. In the "anarchic", or second philosophy of discipline, the rights of the individual are supreme. This means the conduct of the subordinate is selfdetermined, "...the responsible authority in such circumstances either permits free choice by subordinates as a matter of policy or has insufficient power to enforce his rulings, with the result that they are challenged at will" (2). The third and intermediate position, 'discipline by due process', "is based on a body of recognized rules and is administered under some form of juridical procedure". The key factor in this due process model is "formality and publicity" (3). He goes on to outline the concepts of due process which he advocates. 14  Phelps' theoretical framework of three discipline systems-authoritarian, anarchic, and due process--is perhaps overly simplified if the pure forms only are imagined. Put on a continuum, however, his concepts are useful in providing a measuring device in discipline system evaluation. To what extent are the rights of the individual employee given consideration? Where on such a continuum would the system under study fit? Where on such a continuum would two systems fit in relation to each other?  The Coye and Belohav theory. The theory by Coye and Belohav, hypothesizes that discipline can be linked with ethics and that "three viewpoints" will then be identified which describe discipline in organizations (1989:156-61). The first viewpoint, "disciplinary perspective", is based on the Frederick Taylor model of scientifically selected, developed, and managed workers. If employees cannot perform, it is due to a lack of self-discipline, and they are fired. The organization as a whole is seen as more important than the cost represented by the exit of one worker. In this model the rights of employees are given little or no weight. The second viewpoint, the "adjustment approach", based on the Lillian Gilbreth psychological school, proposes that management look for causes and motives behind worker infractions. Identified abuses of human rights are said to be the force behind this movement. The authors claim the theory of "progressive discipline" is an outgrowth of this line of thinking. A great deal of weight is given to individual rights in this second model. The third viewpoint, the "integrative focus", grew out of the work of Chester Barnard and Mary Parker Follet and is a broader perspective whereby the individual worker is thought to be in need of internal and external adjustment to the organization. The individual's goals should not necessarily be seen as being in  15  conflict with the goals of the organization. This third "viewpoint" attempts to find a middle ground in terms of weight given either to the individual employee or to management and the organization. B. Theories Based On Style of Application of Disciplinary Actions The theories of employee discipline described by both Redecker and by Zack and Bloch involve descriptions based on the type of processes used in a workplace to apply disciplinary sanctions. The Redecker theory. Redeker's theory says there are two possible types of employee discipline found in the workplace: punitive and nonpunitive. "The traditional or punitive approach to discipline is a system of ever-increasing penalties"... the goal being "to force employees to comply with the employer's rules and policies" (1989:73-80). He is highly critical of the punitive approach which he claims "does not stimulate a desire to achieve",.., spotlights problem employees", and is "destructive to employee's feelings of self-worth". He denigrates progressive discipline, the "primary tool of all punitive systems" as being "adversarial", and claims the only reward for an employee in such a system lies in "not being subject to more discipline". The system does not work, he claims, because "supervisors don't like it and resist doing it". He believes white-collar employees are "too sophisticated or responsible to be threatened with punishment", and that supervisors, feeling demeaned in such an environment, simply give up and do not discipline at all. Redeker is an ardent advocate of "nonpunitive" discipline which he describes as that in operation at Union Carbide, Shell Oil, Exxon, AT&T, General Electric, and Amoco (81-84). In such systems the "emphasis is 16  placed on employer-employee responsibilities." Attention is focussed on problems, not on employees, and on the future, not on the past. Key features of the system are encouragement, positive reinforcement, job retention, and cooperation. "The direction of the employer-employee relationship is horizontal--adult-to-adult--not downward as in a parent and child relationship." He provides a comprehensive outline as to how such a system should work in practice, the key feature being supervisoremployee "conferences", where together they outline the problem and plan a solution they are both responsible for implementing. Employees, with problems, may face the ultimate "decision day" however, when they must consider whether they wish to continue present employment. The employee must either commit himself or his employment is terminated. "The choice is his. The employer is not doing anything to him"(90). The Zack and Bloch theory. Finally, in the work by Zack and Bloch (1983: 145-58), the authors look at discipline in terms of three types of management response, "immediate discharge", "progressive discipline", or "some other action", each occasioned by one of three categories of disciplinary offences. The first category of offences include acts defined as being "seriously offensive" or "destructive of the employment relationship", and are referred to as the "cardinal violations" which give grounds for immediate discharge. Theft, fighting with a supervisor, or falsification of employment information, are listed in this category. The second category of offences, such as insubordination, arise because employees are "wrong solely because of prescriptive rules". The authors claim the precepts of "progressive discipline", whether explicitly set forth in a labour agreement or not, are readily applied in this area (155).  17  A third category, referred to as "other offenses," includes events which, do not readily fit into the normal disciplinary context and may not be categorized as reflecting "fault" on the part of the employee. Excessive absenteeism for bona fide reasons, or poor workmanship, for example, raise problems for employers to deal with in various creative ways. "Absenteeism because of bona fide illness,.. .alcohol and drug addiction, may not be readily classified among the general run-of-themill disciplinary events; ...suspending a person or imposing discipline of one type or another will hardly cure a disability or illness (158)."  Summary of theories. The four theoretical frameworks which clarify concepts concerning employee discipline then, fall into two categories outlined above. The theory either looks at employee discipline in terms of categories of philosophies concerning the relative weight of rights given to individual employees versus rights of the employer in the workplace, or the theory looks at how specific disciplinary actions by employers can be categorized.  SECTION 3: LEGAL FRAMEWORKS GOVERNING EMPLOYEE DISCIPLINE Employee discipline can occur within any one of three general legal frameworks governing the employer-employee relationship: [1] a relationship governed by the common law of master and servant, [2] a relationship bound by statute, or [3] a collective bargaining relationship. Willes (1976), Adams (1979), Harris (1980), Paterson and Deblieu (1988), and Adams, Ade11, and Wheeler (1990), all focus their discussions of employee discipline system concepts in relation to the particular legal framework governing the employer-employee relationship in effect. The critical issue for them becomes whether or 18  not the relationship is a master-servant one, subject to common law principles; whether it is governed by some employment statute, or whether it is a collective bargaining relationship. Different rules will apply in disciplinary cases, they point out, depending on the legal framework. A brief description of each of the three legal frameworks follows. The collective bargaining relationship is dealt with in more detail in Chapter III. A. Discipline Within the Relationship Governed By The Common Law of Master and Servant George Adams (1979) provides the best summary of features of the employer-employee relationship under the Canadian law of master and servant. He states that within this legal framework is found "inadequate protection accorded to employee interests". The courts allow dismissal, without notice, for a broad spectrum of employee actions including misconduct with "distinctions not made between different types" and without a requirement for cause. Intermediate steps--reprimand or suspension--are seen to be not relevant. There is "a single minded pursuit of the employer's interest", with employers not required to provide an employee with reasons or justification for a dismissal. There is "no protection against arbitrary dismissal". Reasonable notice, however, is required and employees dismissed without cause and without notice are entitled to compensation for the proper period of notice only. An employee under master and servant law has no contractual right to a job and there is a "complete failure to tailor solutions to both the nature of the misconduct and the individual employee involved" (8-11). The court (Justice Monnin) in Aitken v Frontier School Division 1983-85, a Manitoba teacher dismissal decision, explained employee discipline procedures under common law: 19  Under the common law an employer can dismiss an employee for any reason the employer thinks proper--or indeed, for no reason at all. The sole issues which arise are the extent of the notice to which the employee is entitled, or the amount of payment in lieu of notice. The common law of the employer is often circumscribed by collective agreements, individual employment contracts, human rights legislation.. .or other statutory restrictions. The exercise of the common law right to terminate an employee's services is not a judicial or quasi-judicial function, and it does not normally involve concepts of procedural fairness or natural justice (cited in Czuboka, 1985:188).  Within the common law then, there is an unrestricted right of employers to discipline (Baer, 1972: 6), employees have no access to an internal appeal process, cannot expect to have a disciplinary penalty reduced, and cannot expect to get his/her job back. Harris (1980) points out that "traditionally, [under Canadian common law] the finding of cause in favour of the employer within an action alleging wrongful dismissal has led to the single conclusion that the employee has failed to prove his entitlement to reasonable notice of the termination, thus depriving him of any damage claim" (63). The key difference between American and Canadian common law principles is that in the United States, the employer may terminate "employment-at-will" or common law contracts without notice or reason, whereas, in Canada, there must be "reasonable notice" unless the other party's conduct gives cause for termination (Adams, Adell and Wheeler,1990:597). But changes have taken place in the American common law concept of employee discipline. "Two events have significantly eroded an employer's ability to fire an employee: a dramatic increase in protective legislation", and employees' wrongful dismissal actions which have won large awards from employers (Paterson and Deblieux,1988:77). Another American author explains how "dissatisfaction with management's inequitable treatment of employees" under common law principles, resulted in unjust discipline becoming one of the "prime  20  stimuli for unionization" (Zack,1989:19-02). Zack claims that under a collective bargaining regime "protection against unjust discipline or discharge was given to unionized employees with little effect upon unorganized employees".  B. Discipline Within a Relationship Bound by Statute Law It is this context of an employment relationship governed by a specific statute, that this paper will look more closely at in Chapter VI. The discipline system for B.C. teachers under provisions of the pre-Bill 20 School Act falls within this second model of employment relationship. In a "statute law" legal framework, the employment relationship depends on the interpretation of the Act in question. A statute such as the School Act creates administrative bodies (school boards) to which are delegated the authority, by the provincial government, to make administrative decisions. School boards then, are characterized as having a "judicial" or a "qi asi-judicial" function and required to follow the rules of natural justice or due process in terms of dealing with employees in disciplinary matters (G. Gall, 1977:261). Under statute law only the courts may enforce an authoritative interpretation, and therefore, any appeals from decisions of such administrative bodies as school boards are heard by the courts. In an employment relationship then, where a statute law governs, the common law may apply in a particular instance when the statute law does not happen to cover (Nicholls, 1981:26). A problem of jurisdictional uncertainty may occur which can only be resolved by the courts. In some instances, disciplinary decisions and decision-making processes of a school board may reflect those found in common law, and in others, more like those found in a collective bargaining regime.  21  The relationship created by a particular statute can only be defined by examining various aspects of the statute itself and any court rulings concerning decisions made by administrative bodies under the statute. When the rights of an individual are affected by the decisions of such an administrative tribunal, the tribunal's decision may be reviewed or even quashed by the courts. Later in this paper some teacher discipline cases that were quashed by the courts, under the Judicial Review Procedure  Act, because school boards did not adhere to the principles of natural justice in dealing with teachers, are reviewed.  C. Discipline Within the Collective Bargaining Relationship Chapter III of this paper examines in a more detailed fashion the nature of the collective bargaining relationship, or industrial relations environment. In this section only a brief overview is given to illustrate the essential distinction between the employee discipline system in a collective bargaining relationship as compared with the two systems outlined above. Phelps (1959) introduces his book, Discipline and Discharge in the  Unionized Firm, with this opening statement: "In no aspect of personnel relations has the impact of unionization been more pronounced than in matters relating to the discipline and discharge of employees." In the same vein Willes (1976) states "the rules or laws that apply to union and non-union settings often differ substantially, and perhaps in no area is this more evident than in the area of discharge and discipline" (1). Unlike in the two legal systems outlined above, three parties are involved in the collective bargaining relationship--the union, the employer, and the employee. The employment relationship, in terms of how employee discipline must be handled, is outlined in a labour statute,  22  which in B.C. is the Industrial Relations Act R.S.B.C., 1979 c. 212. In addition, negotiated terms and conditions, which must be in writing and must be signed by both parties, also apply. This negotiated collective agreement is required to provide a third party arbitration mechanism rather than the courts as a means of resolving differences (section 93). Management in B.C. may discipline or discharge only for "just cause", in accordance with section 93 of the Industrial Relations Act, and any arbitrator reviewing a disciplinary decision will get to "the real substance of the matters" (section 92) in determining if the employer acted properly in dealing with the employee. Arbitrators have extensive powers, such as the power to reinstate or vary the penalty (section 98), and their decisions are final and binding (section 104). Brown and Beatty (1988) suggest that a collective bargaining regime also gives options to employers in that "prior to ...collective bargaining, and the wide-spread inclusion of 'just cause for discipline', the right of an employer to discipline its employees was governed by common law principles; ...the employer's disciplinary sanctions were limited to severing the employment relationship either for cause or, in the absence of cause, upon proper and reasonable notice" (p. 7-1). One of the basic purposes of a collective bargaining agreement is to modify the employer's disciplinary power under the common law, and require the employer to deal justly with all employees when taking disciplinary action (Baer,1972:6). The standard under collective bargaining in both the U.S. and Canada is that employers are forbidden to dismiss without 'just cause' (Adams, Adel, and Wheeler,1990:598). The collective bargaining relationship introduces the notion of a continuing relationship, or of an expectation of tenure, and penalties other than dismissal are preferred in order to "rehabilitate" the employee  23  and thus the continuing nature of the employment relationship. An excellent summary of this issue was written by Nancy Morrison, Vice-Chair of the Labour Relations Board in the 1976 Hiram Walker decision: The recent decision of the Labour Relations Board in Simon Fraser University and the Association of University and College_ Employees. Local 2, 16/76, explored the mandate and guidance now given to a Board under this section of the Code. Such a Board need not be "diverted" by "legal rules drawn from the common law of contracts or the relationship of master and servant" (page 10). Thus, it should be clear now that the historical and common law position has been altered radically. We are no longer talking in terms of traditional masterservant relationships, where an employee had no expectation of tenure, let alone fringe benefits of employment such as health and welfare plans, seniority, grievance and arbitration procedures available, etc. The reasoning of Mr. Justice Laskin in the Court of Appeal decision in the Port Arthur Shipbuilding case has now been translated into statute law under the B.C. Labour Code. Now, an employee does have tenure, and rights, and in the event of discharge, each case must be looked at in relation to the particular collective agreement in existence between the parties, and all the other factors having to do with that person's employment. Under collective agreements today, a different environment exists; there is a continuing relationship, where an employee has an expectation of continued employment. The old common law position no longer applies to situations where collective agreements are in existence (cited in Bird: 1977:73).  SECTION 4: SOME CENTRAL FEATURES OF DISCIPLINE SYSTEMS In this last section of this chapter, four central features of a discipline system are examined. The first three relate to a fundamental procedural question in terms of employee discipline. What is the process? A fair process for individual employees involves the application of (1) principles of natural justice, (2) just cause requirements before disciplinary action is taken, and (3) discipline applied in a progressive manner. The extent to which such fair procedures are absent will situate the discipline system under study on the theoretical continuum toward the authoritarian model. The extent to which principles of natural justice, just cause, and 24  progressive discipline are upheld, provide an evaluation yardstick of a discipline system. The categories of discipline used to explain or describe a discipline system, is a fourth fundamental feature discussed in this section. A number of categorization systems are outlined which assist in viewing B.C. teacher discipline cases.  A. The Concept of Natural Justice or Due Process Natural justice is said to be founded on natural law which "represents what the law would be if equality for all men, and justice between them, were the prime considerations of society" (Nicholls, 1981:26). A body of principles known as natural justice, or 'due process' in the United States, has developed which apply in at least two of the discipline systems outlined above. In either a collective bargaining relationship, or in many circumstances within a system governed by statute law, these principles are applicable. The extent to which natural justice is legally required to be provided to employees in a disciplinary system by the employer, becomes a major feature of that discipline system and one critical way of evaluating it.  Rules of natural justice. There are two fundamental rules of natural justice or due process, under which there are many sub-rules (G. Ga11,1977:265). The first rule (audi alteram partem) is a requirement that there be a fair hearing, including such sub-rules as the requirement of notice, time to prepare a case, the right to be represented, the right to rebut the other side's evidence, and the right to cross-examine witnesses. The second rule (nemo judex in sua causa) requires that there be an absence of bias. Blacks Law Dictionary (1990) states "due process of law implies the  25  right of the person affected thereby to be present before the tribunal which pronounces judgment upon.. [one, and to]...have the right of controverting, by proof, every material fact which bears on the question of right in the matter...". Six requisites of any system of due process have been identified: "The first requisite of due process is notice of the standards set by the employer and the effects of violating them"; the second is that "the charge be factually accurate"; the third requires that "the employee be allowed to know all of the facts of the charge against him or her"; the fourth involves an employee's ability to raise a defense at a hearing; the fifth is that "a credible grievance or dispute resolution procedure" be provided; and finally, "due process requires that employees have the right to appeal disciplinary actions to an impartial decision maker or body" (Redeker,1989:61-69). Natural justice in the collective bargaining regime. Within the context of a collective bargaining relationship arbitrators are "committed to due process" but "demonstrate their desire for a procedure that meets the dictates of fair play without slavish adherence to the legalisms that bedevil judicial procedings" (Zack, 1989:19-6). Munroe (1978), Chairman of the B.C. Labour Relations Board, presented a paper to a Continuing Legal Education Conference, in which he discusses the notion of natural justice within the B.C. context. He explains how the B.C. Labour Code amendments of 1975 had the effect of expelling the courts, judges, and such legal concepts of the common law as the "parol evidence rule" allowing arbitrators to dispense natural justice without being "tied up in legal knots". For example, they can determine when extrinsic evidence will be admitted and considered. However, collective agreement language may have the effect of 'giving away' certain rights to natural justice the employee might otherwise have.  26  What elements of natural justice are present in an arbitration within the industrial relations framework? Five can be listed: First, the arbitrator must "determine the reasonableness of the [employer's] rules"; second, s/he must see to it that "notice has been provided to the employee of the charges leveled against him or her"; third, a "fair hearing must be conducted", where the grievor is given a right to "confront and crossexamine the accuser"; fourth, hearsay evidence must not form the basis of critical decisions; and fifth, the "burden of proof in discipline cases requires the employer to prove "its action was for just cause (Zack, 1989:19-7). Arbitrators may also be concerned with whether there has been administrative natural justice or due process in the handling of the discipline and the processing of the grievance.  B. The Concept of Just Cause 'Just cause' refers to the substantive nature of the actual grounds cited by the employer for taking disciplinary action against an employee. The employer must have 'just cause' for taking disciplinary action against an employee in accordance with the law in the collective bargaining setting in B.C. In the other discipline systems described above that same type of requirement does not exist. In a common law of master and servant relationship the employer may dismiss without cause. As long as notice has been provided in that system, the employee has no recourse. In a relationship under statute law there may, or may not, be a requirement for just cause, or the requirement may apply in some disciplinary actions but not in others. Until the particular relationship and law in question is examined, the question is open. Chapter VI will examine the extent to which the School Act provisions of the pre-Bill 20 era provided a system of just cause procedures for B.C. teachers.  27  Adams (1979) claims the original purpose of a just cause requirement was to "provide the kind of job security employees lacked at common law"(12). Brown and Beatty (1988) state: ...most collective agreements fetter an employer's right to discipline its employees by expressly requiring it to prove that it had just or reasonable cause for the discipline it imposed. Arbitrators are agreed that to satisfy this standard in instances of dismissal an employer must affirmatively establish that as a result of some misconduct or disability the grievor has demonstrated his incompatibility or has seriously prejudiced or injured the reputation or some other legitimate interest of the employer (7-23).  Brown and Beatty also point out that there may be a statutory 'just cause' requirement, as indeed there is in the B.C. Industrial Relations Act, (section 93), and that such a requirement forces an arbitrator to evaluate not only the basis for discipline, but also the justness and reasonableness of the penalty applied (p.7-5). A highly respected American arbitrator, Harry H. Platt is often quoted as saying that the best way for arbitrators to determine what 'just cause' means is to "...decide what reasonable men, mindful of the habits and customs of industrial life and of the standards of justice and fair dealing prevalent in the community, ought to have done under similar circumstances and in that light to decide whether the conduct of the discharged employee was defensible and the disciplaty penalty just" (cited in Baer, 1972:28).  Zack claims one component of just cause requires an examination of the relationship between the infraction and the employee's job performance and that another "extends to the determination of what remedy is appropriate to return the employee to the position that he or she would have occupied but for the penalty improperly imposed by the employer" (1989:19-13).  28  C. The Concept Of Progressive or Corrective Discipline A third critical feature of a discipline system which can serve as a measure to evaluate that system is the extent to which the principles of progressive or corrective discipline are upheld or applied. A system which places value on employee tenure will give employees a second chance in the event of some transgression. In the common law relationship, the concept of progressive discipline is absent. In a relationship established under a specific statute the concept may, or may not be implemented. Within the collective bargaining regime the principle is firmly adhered to. Krashinsky and Sack explain the doctrine of progressive discipline: ...disciplinary penalties ought to be progressive in nature, since the purpose of industrial discipline is to correct misconduct and restore a viable employment relationship. While there are no hard and fast rules, many employers begin with a verbal warning and, if there is further misconduct, proceed to a written warning; if the employee's misconduct continues, a one-day suspension may be issued, followed by a three-thy suspension, and then a longer period of suspension. A final warning is usually given before discharge. This does not mean that, in a serious case, discharge cannot be immediately imposed, but ordinarily discharge is regarded by arbitrators as a measure of last resort (1989:5).  Rehabilitation and corrective discipline. A number of authors associate the concepts of rehabilitation and correction with the concept of progressive discipline. Zack appears to use the terms corrective discipline and progressive discipline as though they are synonymous. With regard to corrective discipline he says ...through escalated penalties, [corrective discipline] opens the door to rehabilitation and the opportunity to restore [the employee's] standing and continue his employment. For the employer, providing the opportunity for an employee to profit from discipline by reforming his behavior also brings benefits (1989:19-12).  29  Redecker does not approve of progressive discipline, which he calls a punitive system, and instead advocates rehabilitation which he regards as a positive aspect of the non-punitive discipline system (1989:56). Bruce Young says there are three themes of modern punishment in industrial jurisprudence: rehabilitation, correction, and individualization, and that of these three themes "the corrective aspect is the paramount one" (1978:36). While some would claim rehabilitation has no place at all in industrial discipline, he says, recent efforts to deal with alcoholism in the work force would attest to the fact that "close parallels can be drawn between such correctional themes and industrial discipline". George Adams (1979:27) talks of the concept of corrective discipline as being punishment that is "tailored to allow the offender to learn from his mistake". It is also sensitive to the fact that "an employer usually has to spend money in recruiting employees, and, following recruitment, must bear training costs". He makes much of a leading decision by Prof. Arthurs in Canadian Carborundum Co. Ltd., (1973) 5 L.A.C. (2d) 29. He quotes Arthurs: In light of all of these circumstances, we must ask ourselves whether the imposition of the penalty of discharge upon the grievor serves any useful purpose. Modern correctional theory provides us with at least three bases for evaluating the appropriateness of the penalty imposed: reformation, deterrence, or punishment. As to reformation, it can hardly be said that the grievor is being "reformed" if his relationship with the company is severed. So far as the company is concerned, he has ceased to exist. As a deterrent to other employees, we do not believe that the discharge of the grievor was either necessary or effective. Employees would equally have been put on notice of their probable fate for the use of physical or verbal abuse if the grievor had been merely subjected to significant suspension. More importantly, we do not believe that isolated and unpremediated outbursts of this kind are likely to be discouraged by the imposition of penalties. Almost by definition, an employee will not engage in this kind of conduct unless he loses his head. If an employee is so angry that he does this, he is unlikely to ponder plant rules, to address himself to the example represented by the fate of the grievor. For employees who might be so minded, it will suffice if we announce in this award that any future outbreak of violence may be dealt with much more severely, and that employees are now deemed to be put on notice that they must not have  30  recourse to such methods as were used by the grievor in order to assert what they claim to be their legitimate interests. And, finally, to place this matter in perspective, it must be remembered that even in the absence of a precedent, or specific rule outlawing violence, employees have managed to conduct their daily dealings with supervision without recourse to physical abuse (1979:31-2).  The progressive discipline process. Adams' discussion, along with the other sources, indicates that arbitrators may take any one of several approaches to the concept of progressive discipline, but makes it clear that under a collective bargaining regime and industrial relations law, there is to be no element of surprise in terms of disciplinary action. An employee should normally be warned (first verbally and then in writing), and then suspended (first for a short period and then a longer one), before a discharge will be upheld--except in unusual cases. Some arbitrators may take a rehabilitative approach and others will not. But as Adams states, any one of these approaches, corrective or rehabilitative, "is more sensitive to employee interests than was the law of master and servant and each is based on the premise that employees can be made to correct their ways through incremental doses of punishment" (1979:36).  D. Categories of Discipline A central feature of a discipline system is the nature of discipline described in that system in terms of grounds for action taken against an employee. Such grounds for action become the categories of discipline which are used within that disciplinary system to describe, record, or to make applicable rules concerning. These grounds are categorized in numerous works, often as chapter titles in labour relations books dealing with the broad subject of employee discipline.  Brown and Beatty categories. Brown and Beatty, the leading  31  authority in labour relations in English-speaking Canada, has categorized the numerous grounds for employee discipline in their Chapter 7, "Discipline" (1988:7:3000) under seven major headings, some with numerous sub-headings: (1) Off duty behaviour [7:3010], (2) Attendance at Work (Culpable Absenteeism) [7:3100] -failure to explain absence -unauthorized absence -failure to apply for a leave -leaving work without permission -lateness (3) Employee Disability (Non-culpable or Innocent Absenteeism) [7:3200] (4) Theft and Dishonesty [7:3300] -falsification of records (employment, production, attendance, medical forms, application forms, etc.) -failure to explain -infidelity, untrustworthiness, and conflict of interest (5) Deviant Behaviour [7:3400] -sabotage -criminal conduct -criminal charges -fighting and assault (6) Poor Work Performance [7:3500] -incompetence (culpable and non-culpable) -insufficient and/or careless work -unsuitability -unacceptable personal appearance -use of intoxicants at work -detrimental activities -failure to co-operate (7) Insubordination [7:3600] -refusal to follow instructions -refusal to work overtime -refusal to cross a picket line -concerted refusals -insolent, unco-operative behaviour, obscene language  Categories used by Young, Redecker, and Baer. Bruce  Young (1978), in his book dealing with how Canadian arbitrators view employee discharge, organizes his discussion under 24 chapters--the first an introduction and the following 23 chapters, discipline categories. While many of his categories are similar to those of Brown and Beatty, a  32  few are different: "Illegal Strikes", "Union Activity", "Quit or Discharge?", "Company Rules"," Safety"," Sleeping on the Job", "Horseplay", and "Moonlighting", for example, each warrant separate chapters in Young's book. American, James Redeker, uses 16 discipline categories in his book (1989, Part III). One of his categories not already listed above is "gambling". Baer (1972) uses a number of unusual categories in his book: "loafing", "feuding", and "garnishments". Discipline categories for nurses. Marilyn Steven, who studied disciplinary actions taken against Canadian nurses, categorized grounds for action first in terms of the venue of the charges and then the grounds. As in the case of teachers, nurses are subject to grievance arbitration resulting from employer discipline, criminal lawsuits, discipline procedures of the profession, and civil lawsuits (1988:63). Steven categorized types of cases under the "arbitration" category as follows: Arbitration cases: (40 cases in Canada between 1973-87) 1.suspension cases -insubordination -neglect of duty -absenteeism. 2. dismissals: -incompetence (general and medication errors) -use of Alcohol or drugs -insubordination^ -for religious reasons -neglect of duty^ -Miscellaneous -professional misconduct -absenteeism  Steven tried to link categories of discipline uncovered in her study to several industrial relations and labour relations models, but failed because there were clear distinctions as to what is expected of professionals, and because the different types of penalties imposed on nurses and not clearly taken into account in those other models (78).  33  Categories of Discipline for Teachers In both American works and in one Canadian study categories of discipline for teachers are discussed. It seems clear that the relevant statute governing teacher discipline will determine the categories used. Discipline categories for American teachers. Floyd Delon claims 25 legal grounds for dismissing a teacher are contained in various U.S. statutes. Those most frequently listed are immorality (found in statutes in 34 states), incompetency (31 states), neglect of duty (28 states) cause or just cause (26 states), insubordination (22 states), and inefficiency (18 states). He claims there are such unusual grounds for teacher dismissal or suspension contained in statute as "profanity", "for teaching sex education", "failure to display the flag", "failure to take a loyalty oath", or for "failure to teach Texas history" (1977:11-13, 17). Another, and separate body of law, deals with powers given to various professional practices commissioners to revoke teacher certificates. Delon discusses six reasons provided in case law in this category under the headings "contract violation", "fraud", "immorality", "criminal conviction", "Un-American activities", and "failure to meet academic requirements" (20-8). Discipline categories for Manitoba teachers. Czuboka's analysis (1985) of what he claims to be all 18 teacher terminations occurring in Manitoba between 1969 and 1985 are discussed in sufficient detail allowing them to be categorized as follows: incompetence (7 cases), layoffs (3 cases), insubordination (2 cases), immoral conduct (2 cases), refusal to teach in the French language (1 case), conduct unbecoming a teacher (1 case), inappropriate student discipline (1 case), and  34  absenteeism/off-duty conduct combined (1 case). It is clear that categories of discipline may differ for teachers depending on the nature of laws governing grounds for dismissal, or on whether or not the disciplinary action in question is subject to a collective bargaining regime, a specific education statute, a professional certification review panel, civil or criminal law. It is also evident that a study of the actual employee discipline cases, the nature of the employee work, and/or the applicable law, must be undertaken before categorization can be done meaningfully and a particular classification scheme designed for a specific group of employees such as B.C. teachers.  CONCLUSION In this second chapter, critical issues related to the general notion of employee discipline were canvassed with a view to establishing a foundation of concepts to guide the rest of this study concerning B.C. teacher discipline. In the first section, a search for a general definition of "employee discipline" found three ways to look at the term. Discipline can be seen as a tool to create the workplace environment or culture, it can be seen as a form of self-motivation by the employee, or it can be viewed as only one element within the broader industrial relations institutional framework. The first section of the chapter also looked at the definition of "disciplinary action" as a distinct term referring to an action by the employer against the employee which has a negative impact on the employee's work record. A layoff is not a disciplinary action. These definitions confirm that a study of teacher discipline in B.C. need not review teacher layoffs, but that all actions against teachers that have created, or may establish, negative work records must be reviewed. It is interesting to combine the concepts of discipline contained in the  35  second section dealing with theories of discipline with those in the third section outlining the three legal frameworks. Those systems of discipline described under the statute law relationship and under the collective bargaining relationship would fit into Phelps' theoretical framework as "the due process models". Yet the two systems will differ and can be placed on a continuum in relation to each other in some fashion. Further analysis of those two systems and the particular School Act system in question, will determine where they fit on this continuum in relation to each other. The common law of master and servant legal framework describes an employee discipline system which could be situated on Phelps' continuum at the authoritative end of his theoretical model or could serve as an example of Coye and Belohav's "disciplinary perspective" model. So it is evident that the legal frameworks governing employee discipline can be matched against the theoretical models and located on a Phelps' type of continuum to describe their distinctive characteristics in relation to each other. In the last section of the chapter, four central features of discipline systems were discussed. The concept of natural justice or due process is critical in an evaluation of any discipline system. The extent to which a "statute law relationship" system, for example, fits on Phelps' theoretical continuum, will depend on the extent to which natural justice for employees is legally enforceable. This concept as a key yardstick then, may be applied to measure the B.C. teacher discipline systems examined in this thesis. In the same way, the 'just cause' and 'progressive discipline' principles also can be used as yardsticks to measure B.C. teacher discipline systems in terms of the extent of fair processes provided teachers. Categories of discipline have become fundamental descriptors in much of the literature dealing with employee discipline. Those  36  categories selected as appropriate to describe a particular employee groups' discipline system, however, depend on the nature of the employees and the work they do, specific legislation which may exist governing employee discipline in that sector, and the types of employee offences which normally attract discipline within that employee group. A study is required of both the actual discipline cases relevant to the employee group and the governing legislation, before a discipline category system can be selected or designed to help describe the system for that group. Discipline categories are appropriately set out after a study, then, and not before.  37  CHAPTER III DISCIPLINE IN AN INDUSTRIAL RELATIONS SETTING This chapter reviews relevant literature for the purpose of describing critical features of the industrial relations system governing disciplinary matters in a unionized workplace which now apply to teachers for the first time in the province's history. The collective bargaining regime as it applies to employee discipline is outlined below in three sections. The first provides an overview of the central features of an employee discipline system within a collective bargaining relationship and enlarges on the cursory discussion of the previous chapter which described, in general terms, this discipline system in relation to others. The second section examines some critical arbitral jurisprudence, and the third section reviews some studies of relevant arbitration decisions.  SECTION 1: CENTRAL FEATURES OF EMPLOYEE DISCIPLINE WITHIN A COLLECTIVE BARGAINING RELATIONSHIP This section will not examine B.C. labour law, as that is done in detail in Chapter V. The objective of this section is to examine those unique 38  and distinct features of an employee discipline system within a collective bargaining relationship which clearly differentiate that system from other employee discipline systems.  A. Five Critical Features: An Overview The concepts of 'natural justice' and 'just cause' while having different meanings, often come together as the intertwined procedural and substantive features of the labour relations grievance system. The concepts refer to the process used and the grounds for discipline. Natural justice procedures within a collective bargaining relationship are based on those specific and critical features of the system which have developed. At least five critical features of an employee discipline system within the collective bargaining relationship make that system distinct in relation to other systems and relate to the unique concepts of natural justice or due process. First, a separate and distinct labour statute governs; second, a grievance arbitration system is the mechanism of appeal; third, a significant role is played by arbitrators; fourth, a body of arbitral law or jurisprudence has developed and is highly influencial in decision making; and finally, negotiated collective agreements play a central role in the process.  Labour law. In B.C. the Industrial Relations Act, examined in Chapter V, must be observed by employers and employees alike in matters of employee discipline. This body of law applies to B.C. teachers for the first time, with disciplinary decisions now subject to review in accordance with labour law rather than general administrative law and the courts. Provisions in the Industrial Relations Act governing employee discipline are substantively different from those contained in  39  the School Act which applied to teacher discipline matters before 1988. The grievance arbitration system. A second critical feature of the collective bargaining relationship is the grievance arbitration system, the unique appeal mechanism which allows decisions of the employer to be reviewed by an independent body. The inclusion in labour statutes of a mandated system of binding grievance arbitration has been described as "the quid pro quo for the prohibition on strike action during the term of a collective agreement" (Weiler, 1980:91). The grievance arbitration system also means that employees may not go to the courts to contest a disciplinary decision of the employer. Weiler claims "the institution of private labour arbitration may be the most telling illustration of the spirit of autonomy and self-government which pervades collective bargaining relationships in North America" (1980:94). In B.C. all unionized workers in a bargaining unit have access to compulsory third party arbitration in terms of appealing any discipline decision of the employer. The role of arbitrators. A third critical feature of the discipline system in a collective bargaining regime involves the central role played by arbitrators. Independent, neutral arbitrators review employer decisions based not only on whether a fair process was followed in disciplining an employee, but on whether the correct decision was made by management in taking the disciplinary action. Arbitrators have the power of the courts to issue decisions, to force compliance with their decisions, and as well, additional power to order reinstatement or vary a disciplinary penalty. Arbitrators are neutral in the sense that both parties to the dispute must agree on the single arbitrator, or in the case of a three member arbitration board, on the chairperson. Arbitrators are selected because of their reputations as fair, unbiased, knowledgeable members of  40  the labour relations community. Both parties understand in selecting an arbitration chairperson that thorough understanding and knowledge of arbitral jurisprudence and labour law is required. To those in the B.C. education community, this means the involvement of people in teacher discipline appeals who have not been involved in the past. Arbitral jurisprudence. The thousands of arbitration decisions over the past few decades have developed into an impressive and distinct body of precedent, or arbitral jurisprudence, now looked to for guidance in arriving at decisions on grievance matters, including employee discipline cases. This extensive body of law has come to require such specialized expertise to interpret and apply that the system of grievance arbitration, once designed to be applied by lay persons from the two parties involved in a dispute, now relies on an army of labour lawyers and industrial relations experts (Weiler J.,1984:160-161). Gandz states: The rulings of arbitrators, labour boards, and the courts who have reviewed arbitration cases comprise a 'common law of arbitration'. As Brown and Beatty state it "These awards have come to shape and direct not only the drafting of clauses in new collective agreements by providing a point of reference as to how certain problems have been determined by arbitrators in the past, but also they bear upon the resolution of future grievances" (cited in Anderson and Gunderson, 1982:296).  Young claims arbitrators "are not as judges, bound by precedents but, because so many arbitrators have a legal background, they do set considerable store by precedent" (1978:4). While arbitral jurisprudence may not be as binding to arbitrators as high court decisions are in judicial proceedings, the jurisprudence is so influencial, those administering collective agreements or dealing with employee grievances would ignore it at their peril. Arbitral jurisprudence provides guidance to arbitrators as they implement 'just cause' principles in the industrial relations setting. For 41  example, arbitrators generally will be critical of discharge cases in which an employee is unable to perform satisfactorily in a new position resulting from a transfer. "It just isn't cricket to fire a guy who worked well in one department but could not cope with his assignment in another" (Young,1978:201). Another aspect of the 'just cause' principle in industrial jurisprudence is that the same rules may not apply in all cases. Palmer makes this point in quoting from a 1956 Carrothers decision: "...It has been said that an individual ought not to be judged as if he were a crowd, that legal rights of parties ought not to be dictated by apprehension induced by imaginative speculation as to possible implications a decision may have for future relations" (1978:189).  In other words, it can be expected that each arbitrator will apply the principles of 'just cause' as deemed fit in the individual circumstances before him/her and in accordance with his/her selection of, or reading of, the relevant arbitral jurisprudence. Collective agreements. Finally, the employee discipline system within a collective bargaining relationship is distinct and unique because disciplinary matters are critically dependent on the nature of a collective agreement negotiated freely between the two parties, union and employer. "Only in cases of collective agreements, may a binding agreement exclude the jurisdiction of the courts" (Harris, 1980:184). In B.C., as in other provinces, all collective agreements, by law, must contain a grievance provision ending in arbitration or some similar dispute resolution method and this provision will be the appeal mechanism in employee disciplinary matters. However, these grievance arbitration procedures may differ in many ways as Chapter VII will show in terms of teachers' grievance provisions.  42  In B.C. as well, the law requires an employer to have just cause for discipline and such a provision is required in the collective agreement. An arbitrator reviewing a discipline case, will review all relevant provisions of the collective agreement and make a decision not only in accordance with the law and relevant jurisprudence but also in accordance with all those relevant collective agreement provisions.  SECTION 2: CRITICAL JURISPRUDENCE: THE APPLICATION OF EMPLOYEE DISCIPLINE Critical arbitral jurisprudence which has come to be accepted as guiding principles in dealing with employee discipline matters within a collective bargaining relationship comes from "leading decisions", some issued by labour relations boards after reviewing arbitration awards which have been appealed, while others are arbitration decisions themselves. Leading decisions are typically decisions of well known and highly respected labour relations experts which contain clear, well reasoned rulings, incorporating interpretation and review of the law and related precedent-setting decisions. This section of this chapter outlines some of that critical jurisprudence as it defines employee discipline issues and sets out guiding principles. Because arbitral jurisprudence dealing with discipline is so extensive, only a flavour of it can be given in this paper. The section is in two parts; the first dealing with critical jurisprudence relating to culpable discipline, and the second dealing with non-culpable discipline jurisprudence.  A. Culpable Discipline McPhillips and Knight define culpable behaviour as "actions which are blameworthy or have occurred through the intentional actions of the employees" (1990:1). Types of offenses categorized as culpable behaviour 43  would be such offenses as theft, insubordination, or criminal conduct. In the language of the pre-Bill 20 School Act of B.C. such cases were defined as teacher misconduct. In such cases, the employee's actions are seen to be deliberate, could have been avoided, and could be alleviated by progressive discipline. It is not always readily apparent that an employee action is culpable in nature and this aspect of a case, defining the offense, may be the subject of some debate. For example, in the case of employee absenteeism, such a case is culpable in nature if the employee was not ill and did not have a valid reason to be away from work. Where the employee was found to be ill, the absenteeism case is non-culpable. The exact reason for absenteeism may be argued and its definition in terms of being culpable or not, uncertain. The William Scott Case. The principles guiding arbitral review of culpable discipline cases are contained in the leading William Scott decision [(1976) 1 Can LRBR 1]. Perhaps no other case has had more impact on employee discipline in B.C. than this leading 1976 case, a B.C. Labour Relations Board decision by Chairman Paul Weiler. The William Scott case is more frequently cited than any other B.C. discipline decision and is recognized across Canada as providing the correct model for reviewing the justness of disciplinary decisions within a collective bargaining relationship. Within this leading decision can be found the three questions arbitrators must pose in reviewing discipline cases, an outline of all the factors which must be canvassed in determining an appropriate penalty, an explanation of the principle of corrective or progressive discipline, reference to the philosophy of the culminating incident, and an outline of the purpose and philosophy of B.C. labour legislation as it deals with employee discipline in contrast to a common law legal framework.  44  Adams states "arbitrators are almost unanimous that three distinct questions should be asked "in accordance with those included in William Scott" (1979:22-3). Krashinsky and Sack (1989:14) review the three  William Scott questions which have guided the central examination in culpable discharge and discipline cases: 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? (also see Wm.Scott & Co.., [1977] 1 Can LRBR 1 [Weiler], 5).  Weiler claims in relation to his question two, "that the arbitrator's evaluation of management's decision must be especially searching" and these questions should be posed: (i) How serious is the immediate offence of the employee which precipated the discharge (for example, the contrast between theft and absenteeism)? (ii) Was the employee's conduct premeditated, or repetitive; or instead, was it a momentary and emotional aberration, perhaps provoked by someone else (for example, in a fight between two employees)? (iii) Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history? (iv) Has the employer attempted earlier and more moderate forms of corrective discipline of this employee which did not prove successful in solving the problem (for example, of persistent lateness or absenteeism)? (v) Is the discharge of this individual employee in accord with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment (an issue which seems to arise particularly in cases of discipline for wildcat strikes)? Wm.Scott, supra, 5-6)  This decision outlines what Weiler states are the "oft-quoted, but still not exhaustive, canvass of the factors" taken from" Steel Equipment Co Ltd. (1964), 14 L.A.C. 356" (Reville). This list of factors, like those questions above are commonly used by arbitrators to evaluate the employer's disciplinary action and determine the appropriate penalty: 1. The previous good record of the grievor. 2. The long service of the grievor.  45  3. Whether or not the offence was an isolated incident in the employment history of the grievor. 4. Provocation. 5. Whether the offence was comtnited on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated. 6. Whether the penalty imposed has created a special economic hardship for the grievor in the light of his particular circumstances. 7. Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination. 8. Circumstances negativing intent, e.g., likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it. 9. The seriousness of the offence in terms of company policy and company obligations. 10.Any other circumstances which the board should properly take into consideration, e.g., (a) failure of the grievor to apologize and settle the matter after being given an opportunity to do so; (b)....(Wm. Scott, supra, 4).  The principle of progressive or corrective discipline is set out in this decision, both in the list of factors above (item iv) and when Weiler states "because the employer is now entitled to escalate progressively its response to employee misconduct, there is a natural inclination to require that these lesser measures be tried out before the employer takes the ultimate step of dismissing the employee..." (Wm.Scott ,3). Krashinsky and Sack point out that Weiler's principles force a closer examination of the disciplinary penalty meted out by the employer than ever before. They quote what they claim is a key statement in Wm. Scott Arbitrators no longer assume that certain conduct taken in the abstract, even quite serious employee offences, are automatically legal cause for discharge.. .Instead, it is the statutory responsibility of the arbitrator, having found just cause for some employer action, to probe beneath the surface of the immediate events and reach a broad judgment about whether this employee, especially one with a significant investment of service with that employer, should actually lose his job for the offence in question (Krashinsky and Sack, 1989:14).  Allan Black, then Vice-Chair of the B.C. LRB, sums up the connection between the William Scott case and the review of culpable conduct in his review of the 1982 Canadian Liquid Air decision:  46  The Labour Relations Board has, through the decision of Wm. Scott, supra, attempted to establish a framework in which arbitrators should view dismissals which are alleged to have been based on an act or acts deserving reproachment or punishment. Such acts may include, but are not limited to, the elements of omission, negligence, and malfeasance. However, all such acts contain the essential element of culpability or blameworthy behaviour [(1982)1 Can LRBR, 360].  The doctrine of the culminating incident. One principle of arbitral jurisprudence that provides guidance to arbitrators in reviewing culpable discipline cases, also referred to in Wm. Scott, is the doctrine of the culminating incident. Krashinsky and Sack explain this doctrine: An employer is not permitted to discipine or discharge an employee simply on the basis of a review of the past disciplinary record. An employee may be disciplined or discharged only when he or she has committed an act which itself warrants discipline. Once such a "culminating incident" is established, the employer is entitled to consider the entire record of the grievor in determining the penalty. Thus, although an employee may have committed a relatively minor act of misconduct when seen in isolation, the employer is entitled to rely on the entire disciplinary record of the employee in assessing the appropriate penalty, unless the collective agreement provides for the cleansing of the employee's record after a specified period of time. If the discharge is for non-culpable conduct, such as absenteeism due to illness, a specific incident must occur which warrants a review of the employee's record before discharge action can be taken (1989:5).  Adams defines the culminating incident as being a subsidiary doctrine to that of corrective or progressive discipline. He states, "corrective discipline is premised on providing employees with an opportunity to learn from their mistakes; the culminating incident concept identifies those employees who are unlikely to profit from another opportunity" (1979:28). Palmer (1978:223) concludes, "...once an employee commits an act which would expose him to any discipline, however slight, such an act opens his total record for consideration by an employer". The culminating incident has been described as the "last straw" which enables the employer to invoke the employee's past record as the basis for  47  discharge (Young, 1978:255-6). Owen Shime says in Re: North York  General Hospital and CUPE, 5 L.A.C. (2d) 45: "The culminating incident need not be major--it may only be of minor significance but it permits the employer to say he has had enough of the particular employee and need not tolerate him in the work force any longer, because of the combination of past misdeeds, together with the final incident..."  The KVP rules. In reviewing a case of culpable conduct, such as insubordination, discussed above, another arbitral rule developed from more than 25 years of jurisprudence, outlines the principles arbitrators universally adopt in reviewing the employer's workplace rules. An employee may be determined to be insubordinate because a workplace rule was not followed. In the precedent setting decision involving the  KVP Co. Ltd. and Local Union 2537, (1965) 16 L.A.C. 73, Arbitrator Robinson spelled out the criteria for dismissal on the basis of unilateral company miles: I--Characteristics of Such Rule: A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites: 1. It must not be inconsistent with the collective agreement. 2. It must not be unreasonable. 3. It must be clear and unequivocal. 4. It must be brought to the attention of the employee affected before the company can act on it. 5. 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. 6. Such rule should have been consistently enforced by the company from the time it was introduced (cited in Young, 1978:221).  Bruce Young concluded, "Judge Robinson's observations,.., had a profound impact on arbitral thinking thereafter" (1978:222). Employers in a collective bargaining relationship must be aware that disciplinary action based on 'breaking the rules' will inevitably result in arbitral review based on the KVP jurisprudence.  48  B. Non-culpable Conduct Two elements of non-culpable employee conduct are looked at in this section. The definition of non-culpable conduct is examined, and the principles of arbitral jurisprudence which are applied in a review of the employer's disciplinary actions in non-culpable cases are outlined.  What is non-culpable conduct? Arbitral jurisprudence would dictate that in the case of an employee who is unable to meet employment requirements because of some physical or mental capacity, such failings on the part of the employee are non-culpable in nature, and therefore, action taken against such an employee may not be considered to be "discipline" (Gall, 76:87). An employee's conduct may be defined as nonculpable when absenteeism related to alcoholism is involved, for example, or when poor work performance is related to an inability to do the work for some reason beyond the employee's control. Punishment or progressive discipline may not be seen to be appropriate in such cases. While non-culpable behaviour does not result from a fault on the part of the employee, it does refer to behaviour which is, however, not acceptable from the point of view of the employer (McPhillips, Knight, and Shetzer1990:1). Employers are within their rights to deal with employees who are incompetent or unable to perform. However, the standard of arbitral review differs, Black states in Canadian Liquid Air. is obvious that the direction to arbitrators found in Wm. Scott, supra, cannot logically and properly be applied to the action of an employee and the reaction of an employer to conduct which can truly be termed "non-culpable". ...Where employee conduct has been assessed as "non-culpable" or not blameworthy, different considerations apply when examining the reactions of an employer. It is difficult to apply the concept of fault to an employee who, through some physical or mental impairment, or simply through genuine inability or lack of competence, fails to attend the work place, or, once he or she is there, inadequately performs the work which is expected of him or her  49  (1982,1 Can. LRBR:361-2)  McPhillips, Knight and Shetzer point out that in cases of employee suspension or discharge for non-culpable conduct the standard of review is now seen to be something other than the application of the William Scott 'rules'. They claim the most frequently cited case involving nonculpable incompetence is Edith Cavell Private Hospital (1982) 6 L.A.C. (3d) 229 (Hope). Because this is a fairly recent B.C. case, not yet a decade old, the evolutionary or shifting nature of arbitral jurisprudence is indicated. Arbitral review of non-culpable cases. McPhillips and Shetzer (1990), in their recent study, "Culpable and Non-Culpable Incompetence: A Canadian Arbitral Perspective", point out that in cases of "incompetence", or "non-culpable, inability to perform the tasks", and where there is also present an inability to respond to disciplinary action, the Edith Cavell and/or the National Harbours Board cases (both Allan Hope awards) have become accepted tests in arbitral review. The "eight conditions" set out in National Harbours Board are referred to in several recent B.C. teacher cases and are included here: (a) Has the employer identified in objective terms the nature of the work to be performed and the standard expected? (b) Has the employer established that the employee was aware of the standard? (c) Has the employer established that the work performance of the grievor was below that standard? (d) Did the employer provide supervisory direction to the employees to assist him in achieving the standard? (e) Did the employer take reasonable steps to move the employee into other work within the bargaining unit that was or might have been within his qualifications and competence? (f) Did the employer bring home to the grievor the fact that his performance was unsatisfactory and that dismissal might result from a continued failure or  50  inability to meet the standard? (g) Did the employer afford the grievor a proper opportunity to challenge its assessment of his work or file a grievance? (h) Does the evidence support the inference of a continuing inability on the part of the employee to meet the standard? [cited in McPhillips/Shetzer and in McPhillips and Knight (1990), 196-7]. [Also see five criteria in Edith Cavell Private Hospital and HEU (1982) 6 L.A.C. (3d) 229 (Hope)].  McPhillips and Shetzer claim the employer must also have "a 'proper and appropriate occasion' for determining that the employee should be discharged" as in the analogous doctrine of the culminating incident for cases of culpable discipline. These authors also suggest the employer should demonstrate it has already tried such solutions as: (1) Transferring the employee to a job which he is able to perform if one is available and if that can be done consistent with other provisions of the collective agreement; (2) Demoting him to a job which he is able to perform if one is available and if that can be done consistent with other provisions of the collective agreement, or (3) Placing him on layoff if no such job is available. (1990:197-8)  The critical principles in the arbitral jurisprudence which give guidance in non-culpable incompetence discipline cases then, can be summarized as follows: The employer must demonstrate that the level of job performance required, or the standards against which the griever was measured, were clearly defined, were established in a fair and reasonable manner, relate to the actual duties of the job, and were communicated clearly to the employee. The employee must have had a reasonable opportunity to meet those standards and must have been told of the consequences of not meeting the standards or job performance required. And finally, the employer must exhaust other ways of assisting the employee to maintain his/her job at some minimal level. These arbitral principles will be relevant after 1989 in dealing with all B.C. teacher  51  dismissals for poor performance. Such principles were not applied under  School Act dismissals as Chapter VI will demonstrate.  SECTION 3: STUDIES OF ARBITRATION DECISIONS IN EMPLOYEE DISCIPLINE CASES The last section of this chapter reports results of a number of studies regarding employee discipline, indicating both the nature of arbitration decisions and the type of studies that have been, or can be, carried out in the area of employee discipline. Studies reported answer one or more of the following questions: (1) What percentage of all employee grievances involve disciplinary matters?; (2) What types of offenses attract discipline?; (3) How often is the management decision overruled, and how often is the employer's action upheld?; (4) What conditions are more likely to ensure reinstatement of an employee; and (5) Are some types of offenses likely to generate more "wins" for the union than others?  A. Krashinsky and Sack Study Krashinsky and Sack found that over 7,500 grievance arbitrations are conducted in Canada each year and of these about one-third involve discipline and discharge (1989:15). They report findings of a 1974 study of 1,661 arbitration awards in which 38% involved discipline (suspension or discharge cases). Their findings showed the union was successful in over 50% of all cases in having the employer's disciplinary penalty either rescinded or reduced. A second study reported by the same authors found an employee's record had a significant impact on whether reinstatement was ordered: 52  "94% of employees with a clean record were reinstated, compared with only 60% of employees with a warning, and only 40% of those with a previous suspension" (Krashinsky and Sack, 1989:18). Seniority was found to be a major factor in arbitrator's decisions, in that arbitrators tend to reinstate more senior employees. (Another reported study also found a strong relationship between seniority and successful reinstatement after discharge [McDermott and Newhams,1971: 526]). Based on a survey of several Canadian studies in addition to their own, Krashinsky and Sack conclude: In 82% of all disciplinary discharges that went to arbitration, the employee was found responsible for some wrong doing. On the other hand, in over 50% of discharge cases, the arbitrators disagreed with the employers, either with their determination that the grievor was at fault or, more often, with their assessment of the appropriate penalty, and reinstated the employees (19).  B. Crombie and Webb Study Crombie and Webb studied discipline decisions in Ontario and reported their results in a 1988 report, "Discharge and Discipline Arbitrations in Ontario: 1982-86". They found that discharge and discipline grievances account for 32.7% of all arbitrations. Their research showed management's actions were reversed by arbitrators in 52% of all cases. The most frequent employee offenses cited were, in order, poor attendance, dishonesty, insubordination, and inadequate work performance (cited in Krashinsky and Sack, 1989:18).  C. Discipline Case Studies in Alberta and in Nova Scotia Ponak reviewed 159 discharge awards issued in Alberta between 1982-84 and found that management decisions were upheld in 46.2% of  53  cases, in 19% the employee was completely exonerated, and in 34.8% of cases a lesser penalty was substituted by the arbitrator (cited in Krashinsky and Sack, 1989:18). A Nova Scotia study by Gilson and Gillis, "Grievance Arbitration in Nova Scotia" looked at 730 of that province's awards between 1980-86 and found unions won in over 61% of discharge and discipline cases (cited in Krashinsky and Sack,1989:19).  D. George Adams' Studies George Adams (1979:40-52) studied 645 disciplinary discharges in Ontario between 1970 and 1974 and categorized the type of cases and the percentages falling into each category. He found the largest number of cases involved charges of insubordination (24% of cases); 19% were based on attendance matters, 16% on dishonesty, another 16% on work performance, 9% involved alcohol related matters, 7% 'failure to get along', 6% involved discipline for 'union activity', and 2% for 'other'. Employer discharges were upheld in 46.5% of the 645 cases. His results also show management has a higher success rate in disciplinary cases not involving discharge. Suspensions or other less severe forms of disciplinary actions are more likely to be upheld. Adams found grievors were judged completely innocent in 115 of the total 645 cases (17.8%) and awarded full back pay. (Of these, 26% fell into the work performance category, 26% absenteeism, 20% dishonesty, and 12% insubordination.) A lesser penalty was substituted for discharge in 230 cases (or 35.7%). "The principle reason for reinstatement", he states, centers on "an arbitral belief that the penalty of discharge was excessive" (p.52). The highest rate of reinstatement was found in the category of 'union activity' (58% of cases), in 'alcohol' cases (55% reinstatement), and then in 'failure to get along' (50% reinstatement).  54  Least likely to be reinstated are those charged with absenteeism (38%), dishonesty, or work performance (39% each). Employers most often resort to discharge in cases of insubordination yet these cases have a higher than average rate of reinstatement (49%). E. McPhillips and Shetzer Study McPhillips and Shetzer (1990), analyzed 72 B.C. discipline cases (between 1985-89) to see how arbitrators have treated cases of employer discipline. They found that different arbitral rules are applied depending on whether the case is found to be of a 'culpable' or of a 'non-culpable nature'. They placed discipline cases in two categories: (1) "culpable non-performance" or (2) "non-culpable incompetence" (198). Their findings show that in culpable cases, arbitrators adhere to the  William Scott principles and the Steel Equipment ten points cited above as the test of whether the disciplinary action was properly carried out. Employers were found to be successful in 87% of such cases. However, in the case of non-culpable incompetence, the Edith Cavell and/or the  National Harbours Board cases have become the accepted test. In nonculpable cases employers were found to be successful in having their actions upheld by arbitrators in only 38% of cases. In other words, the union is successful (completely or partially) in B.C. in only 13% of culpable cases, but in 62% of non-culpable cases. McPhillips and Shetzer found similar results in a study of Alberta cases. The union was successful in that province in 63% of non-culpable cases, but in only 9% of culpable cases. The authors conclude: has not been as successful in non-culpable cases as it has in cases where there is a culpable work performance problem. ... this is due to a failure to understand that there are considerable differences in the nature of the two problems, and hence, a requirement for different approaches.  55  In our opinion, the distinction between culpable work performance and nonculpable incompetence must be maintained and clearly understood by management, unions and arbitrators. Only in that way will consistency and fairness be developed in dealing with problems of non-culpable incompetence and inadequate work performance in the workplace (203).  F. Discipline Cases and Nurses Marilyn Steven's study of disciplinary actions taken against nurses in Canada, looked at the results of 39 Canadian arbitration cases between 1973 and 1987. She categorized them first as "suspensions", where she found four were upheld by arbitrators and one where a nurse was reinstated, and as "dismissals", where seven were upheld by arbitrators and 27 overturned and the nurses involved reinstated. Of the suspension cases, she found three were for insubordination, one for neglect of duty, and one for absenteeism. The dismissals were categorized as follows: Incompetence -general -medication errors Insubordination Neglect of duty Professional misconduct Absenteeism Use of Alcohol or drugs For religious reasons Miscellaneous (1988: 74 and 311).  5 7 1 1 7 9 1 1 2  G. Summary of Discipline Studies The combined results of these studies allow several general conclusions to be made: (1) At least one third of all grievance arbitrations relate to employee discipline. (2) The largest categories of discipline cases appear to be insubordination and poor attendance, although in the case of nurses, incompetence and professional misconduct rank high. Only one insubordination was recorded involving a nurse.  56  (3) Unions are successful in having employer discipline actions overturned, in whole or in part, in 50% or more of all discipline cases in general. However, when discipline cases are broken down and looked at in the two general categories of 'culpable' or 'non-culpable' offenses, unions are more successful in having employer actions overturned by arbitrators when the offense is 'non-culpable'. (4) Employees with seniority and a good work record stand the best chance of being reinstated and of being successful after reinstatement. (5) It has been found that employer actions in incompetence cases, defined as a nonculpable offences, are overturned to a greater degree than in other types of cases. (6) Employers in B.C. may have problems in having their discipline actions for incompetence upheld because they are not familiar with the arbitral test required.  CONCLUSION  This chapter examined the literature in order to determine critical features of an employee discipline system within a collective bargaining regime. The system of labour arbitration governed by the parties themselves, with limited interference from the courts, was found to be the most notable element of the employee discipline system in the unionized workplace. All disputes arising out of the agreement, including all disputes relating to disciplinary action taken against employees, are subject to the grievance arbitration process outlined in the collective agreement and applicable labour law, and are only in rare instances subject to decisions of the courts. A body of arbitral law or jurisprudence has grown up and guides not only arbitrators in reviewing employer actions, but guides management and union practice in the workplace as well. The role of arbitrators is significant. Arbitrators both write new decisions and adhere to previous decisions and principles set by other arbitrators, creating the jurisprudence which to a great extent governs the system. The evolutionary nature of the jurisprudence was also noted.  57  Such principles of 'just cause' and 'natural justice' are critically important to the system of discipline under labour law. Disciplinary actions are reviewed to determine whether there was 'just cause' or proper grounds for the action, and whether the disciplinary penalty is appropriate. Natural justice requires arbitrators to individualize any review and permits selection of precedents based on the arbitrator's own view of the individual nature of each case. Several leading decisions were reviewed which provide critical guidance to arbitrators, especially in the B.C. context. William Scott contains the essential 'rules' governing culpable employee discipline cases, especially in terms of the three questions arbitrators must ask in reviewing any discipline action. The Steel Equipment ten points, also contained in Wm. Scott are key considerations in assessing the appropriateness of any penalty. Specific labour doctrines such as those relating to "the culminating incident" or the "KVP rules" were included to indicate two examples of the nature of arbitral jurisprudence. Such doctrines have become accepted as 'laws' within the industrial relations community but came from other leading decisions like William Scott and not from legislation. The eight conditions outlined in The National  Harbours Board were also reviewed in terms of the test now applied in B.C. to non-culpable discipline cases. The principle of progressive or corrective discipline, which arbitrators expect employers to abide by, was found to be another critical feature of the discipline system in a collective bargaining relationship. As with so many other principles accepted by arbitrators, progressive discipline can be traced to leading decisions which have come to form critical arbitral jurisprudence. Employee discharges will normally not be upheld unless lesser forms of discipline were applied earlier in an attempt to correct undesirable behaviour. The concept of corrective  58  discipline may require an element of rehabilitation. It can be expected that arbitrators will be sensitive to the issue of rehabilitation unlike practitioners from the common law context. It can also be expected then, that employee work records will be kept in a collective bargaining system and that unions will have some interest in these work records. This review does not by any means form an exhaustive canvass of arbitral jurisprudence related to employee discipline, or even an overview of the most critical decisions. What was intended, was to give a flavour of the nature of key concepts involved, and some of the terminology that will become familiar to the B.C. education community emerging into the world of labour arbitration. The last section looked at some studies which review arbitration awards dealing with discipline. From that review it is apparent that many employer discipline actions are overturned by arbitrators. The studies cited also indicate the nature of possible research questions for this study of B.C. teacher discipline. For example, what percentage of teacher grievances are based on discipline matters? What kinds of offenses are the basis of teacher discipline? How often have teachers been reinstated after dismissals? On what basis have employer actions taken against teachers been overturned? Later chapters of this paper will examine these questions based on available data.  59  CHAPTER IV TEACHER DISCIPLINE SYSTEMS  This chapter examines teacher discipline systems in particular, in relation to the conceptual frameworks of employee discipline described in previous chapters. The system of teacher discipline in this province changed as a result of Bill 20. The question arises, is the B.C. teacher disicipline system now similar to that found in other provinces? Can a system found in another province be looked to as a model to help us understand how the new system in B.C. will operate? Before a detailed study is undertaken of legislation governing teacher discipline in B.C. (Chapter V), this chapter reviews, in a general manner, teacher discipline systems in Canada. A brief look at teacher discipline systems in the United States in also included. Such an analysis allows the new B.C. teacher discipline system to be viewed within a North American context. The chapter contains four major sections. The first reviews legislative frameworks governing teacher discipline across Canada by categorizing them in terms of three models. Concepts unique to teacher discipline are also examined here. The second section reports the results of a search for teacher discipline arbitration decisions issued under labour legislation. (Such material will now be sought out by those in the 60  B.C. education community interested in precedents set elsewhere in teacher discipline rulings.) The third section reviews other studies of teacher discipline systems in Canada, and the last section briefly examines literature dealing with American teacher discipline systems. SECTION!: TEACHER DISCIPLINE SYSTEMS ACROSS CANADA  A number of concepts related to teacher discipline are unique to the profession. This section examines briefly two such matters: teacher tenure, and discipline by the professional certification body. Disciplinary action taken against teachers by their employers can be categorized in terms of three distinct models found across Canada based on the type of appeal mechanism provided within the governing legal framework. The third part of this section reviews those three models in reference to legal frameworks governing teacher discipline in other provinces and as outlined in Appendix A at the end of this chapter. A. Teacher Tenure Before tenure laws were adopted, it was commonly assumed that teachers were essentially "on probation" indefinitely in accordance with education statutes. In the absence of either a right or the ability to obtain tenure provisions in collective agreements, teachers in both the U.S. and Canada sought legislated tenure and as short a period of probation as possible. "After teachers are said to 'have tenure', they are able to contest any cases of dismissal before arbitration boards and the courts" (Czub oka ,1985 : 9). A teacher tenure provision is contained in education legislation in all provinces except B.C. The Saskatchewan legislation, for example, states 61  that upon termination a teacher has 20 days to appeal "prorithkethe teacher has at least toy years of amsecutire set rice "(section 212, Education Act). A Canadian study found B.C. to be in a unique position in the country in having "instant tenure" for teachers in statute (Czuboka, 1985:288). However, since Czuboka's study, this tenure provision was removed from the B.C. School Act in 1989 making tenure a subject of local school board/teacher negotiations. Czuboka reports teacher tenure in the remaining provinces is one year in Alberta and Manitoba; two years in Saskatchewan, Ontario, Nova Scotia, and Newfoundland; and three years in New Brunswick and Prince Edward Island. Teachers have tenure in Quebec after three periods of eight months or more of service. Only in Manitoba and Quebec, is tenure transferable to another school district, although in some other provinces, the repeated period of probation in a new district for an experienced teacher may be shortened or waived at the discretion of a school board. While six arbitration decisions involving discipline of probationary teachers in Ontario can be found in the records, with half of them won by teachers, the extent to which teachers on probation across Canada are dismissed or disciplined today without recourse to appeal, or with recourse to a lesser standard, is a subject requiring further study. The tight to natural justice or to be disciplined only for just cause is closely related to the concept of tenure in the case of teachers both in the U.S. and in Canada. In a collective bargaining regime, typically both a statute and collective agreement will permit a lesser standard of just cause to be applied to teachers on probation. Teachers without tenure are on probation in a legal sense, and do not have equal rights in terms of just cause requirements or appeal rights in a disciplinary situation. An examination in Chapter VII of collective agreement language currently existing in B.C. sheds further light on this issue. 62  B. Teacher Decertification  This paper deals with employer-initiated discipline only. A broad examination of the teacher decertification process, or legislation, is outside the scope of this paper. But because decertification is another aspect of teacher discipline, it is touched on here. All provinces have legislation outlining the basis for granting and removing teacher certificates. Often such legislation is included in an Act other than the School Act In B.C., decertification decisions are made by the College of Teachers pursuant to the terms of sections 24 and 27 of the Teaching Profession Act, 1987 (Bill 20). The B.C. College of Teachers reported in May, 1991 that since 1988,21 teachers had had their certificates cancelled by the college for such reasons as conduct unbecoming a member, and professional misconduct (Annual Report, 1991:20-21). Since education statutes across the country require certification in order to teach, teachers are effectively discharged upon decertification by the professional body. In Alberta, the Teaching Profession Act, R.S.A. 1980, Vol. 7, c. T3, gives the Alberta Teachers' Association the right to "expel a person from the association" for unprofessional or unethical conduct (section 19), with recourse to an appeal board of three members, two appointed by the Lieutenant Governor in Council. In Saskatchewan, the Teachers' Federation Act, R.S.S. 1978, Vol. VIII, c. T-7, gives the teacher's organization the power to recommend discipline of teachers to the Minister. The Teachers' Society Act of Manitoba R.S.M. 1987, c. T 30, serves the same purpose. Because this paper is focussed on discipline taken against teachers by the employer, any analysis of teacher discipline by the profession must await further study.  63  C. Three Legislative Models of Teacher Discipline  Three models of teacher discipline systems are outlined below based on the legislative frameworks governing appeals of employer-initiated discipline. Several statutes for each province require examination in order to determine the detailed nature of the legislative framework governing all aspects of teacher discipline. To clearly understand the legal frameworks governing teacher discipline in all 10 provinces would be a major study of its own, and well beyond the parameters of this thesis. The Ontario Secondary School Teachers' Federation (OSSTF), for example, lists 41 different statutes in their teachers' Collective Bargaining Handbook (1989-90) as "affecting educators", and reminds teacher leaders that critical legislation also exists in numerous Regulations under many of these Act. This overview of three types of legislative frameworks governing teacher discipline in Canada allows for a generalized comparison with the old and new B.C. systems. Appendix A at the end of this chapter provides a brief overview of legal frameworks in 1991, by province, in terms of employer-initiated teacher discipline systems. Teacher layoff, not considered to be discipline, is treated in a different manner in legislation and in teacher contracts across the country and such matters are not discussed here. Model 1: Discipline in a collective bargaining system.  When teachers appeal employer's disciplinary actions they face arbitrators, under provincial labour legislation, in Newfoundland, New Brunswick, Quebec, and now in B.C. These four provinces provide teacher discipline legislation which allows for the negotiation of 'just cause' processes in collective agreements and access to those grievance arbitration appeal procedures provided other workers pursuant to the 64  labour legislation of the province. Teacher discipline in Quebec is governed by the Labour Code and by their Bill 37, in Newfoundland by their Labour Relations Act, and in New Brunswick by the Public Service Labour Relations Act.  However, in two of these provinces centralized bargaining structures result in master agreements for the province. In both Quebec and B.C., local collective agreements, each with the potential to have a somewhat different combination of provisions governing teacher discipline, form aspects of the provincial system. Only in B.C., however, will the matter of teacher tenure, or time required on probationary contract, be a negotiable item on 75 local bargaining tables. Another unique feature concerning both Quebec and B.C., involves the status of administrators. In Newfoundland and New Brunswick, school based administrators (principals and vice principals), are members of the teacher's union. Terms and conditions of the provincial teachers' collective agreement, including those relating to discipline, apply to teachers and administrators alike. Administrators are not members of teacher bargaining units in B.C., in accordance with the provisions of Bill 20. As in Quebec, B.C. school administrators are now management, charged with assisting to negotiate and administer collective agreements, including implementing provisions dealing with teacher discipline. Due to the French language factor, it is not likely Quebec will serve as a realistic model for B.C. practitioners, although that province appears to have more in common with B.C. than any other province in terms of its legislative framework governing teacher discipline. Teacher contracts and arbitration awards from Quebec are, for the most part, written in French, and not applied on a regular basis by labour lawyers or practitioners in English-speaking Canada. It remains to be seen, 65  then, to what extent we can learn about handling teacher discipline matters from models established in either Quebec, New Brunswick or Newfoundland. The prospects appear bleak. While the collective bargaining model in B.C. then, is structured somewhat like those in at least three other provinces, the differences, and the distance from those three provinces, make them unlikely to serve as role models. Model 2: The Board of reference process within the statute law relationship. The analysis of legislative frameworks  governing teacher discipline reveals that teachers in five provinces appeal disciplinary actions through a process equivalent to a board of reference system as it existed in B.C. before 1988. That is, a board of reference, established pursuant to education law, is the first avenue of appeal from employer actions and any further appeal is to the courts. In Alberta, Saskatchewan, Manitoba, Prince Edward Island, and Nova Scotia, teacher discipline is governed by procedures found in education statutes even where teachers have full collective bargaining rights under the province's labour statute. Adjudication panels established to hear teacher discipline cases are described in education statutes, not in labour legislation. Critical discipline jurisprudence relevant in these provinces then, is not labour jurisprudence discussed in the previous chapter, but rather decisions of Supreme Court judges. Several elements of their systems are in common in these provinces. All statutes outline grounds for employer discipline, ensuring that just cause for discipline must be shown to be in accordance with the education statute. In all cases, these statutes make no reference to disciplinary actions by school boards that are not suspensions or dismissals. There is no provision in these provinces, for example, with the exception of Manitoba, for independent third party review of a 66  reprimand, a transfer deemed to be disciplinary, or an unsatisfactory report alleged to be disciplinary in nature. Some Manitoba contracts contain clauses allowing for written warnings or suspensions to be reviewed in accordance with the grievance procedures in collective agreements. Legislation in Saskatchewan and Prince Edward Island does not even provide for third party review of suspensions; only dismissals can be reviewed by boards of reference in accordance with the statute. Teachers bargain under the same labour legislation as other workers in Alberta, but provisions dealing with employee discipline are not included in collective agreements. In Nova Scotia, those few provisions found in collective agreements are simply restated sections of the Education Act. Contract clauses, in any case, may not conflict with the governing legislation, and the education statutes in these five provinces govern in disciplinary matters. In Alberta the School Act governs teacher discipline, in Saskatchewan it is the Education Act, in Manitoba, the Public Schools Act, in Prince Edward Island, the School Act, and in Nova Scotia, the Education Act. The education statutes in these provinces raise questions concerning the matter of substitution of penalties by the appeal body, although the Manitoba statute is clear that the employer's action is to be upheld or the teacher reinstated. The minister plays a central role in teacher discipline in Alberta, Saskatchewan and in Nova Scotia where s/he constitutes the appeal tribunal upon request. In Alberta the minister appoints one or more persons as a "board of reference" to review the case; in Saskatchewan the minister appoints persons nominated by the parties as a "board of reference", and in Nova Scotia the minister appoints a single person as a "board of appeal". The minister plays a lesser role in Manitoba and in PEI where three person panels (an "arbitration board" in Manitoba, and a "board of reference" in P.E.I.) are selected by the 67  parties with the minister only involved in the event the parties are unable to agree on a chairperson. The B.C. system, before Bill 20, was based on School Act provisions which provided for a board of reference in the case of reviews of teacher misconduct and a review commission in the case of reviews of alleged incompetence or poor performance. That system fit best in this model, yet was unlike any other province in some ways. The previous B.C. system is examined in detail in Chapter VI. Model 3: The mixed approach model. It could be said that  both Ontario and New Brunswick provide a mixed approach to dealing with teacher discipline. Both have legislation which allows a choice as to whether the appeal mechanism in teacher discipline will be an education statute board of reference process, or an arbitration review pursuant to labour legislation. However, in New Brunswick, the single provincial teachers' agreement has opted for the labour arbitration approach so this province was included in the first model above. This model then, includes only Ontario. In Ontario the method of dealing with teacher discipline appeals is based on "a complex overlay of provisions" contained in collective agreements pursuant to the School Boards and Teachers Collective Negotiations Act, (Bill 100) 1975 and the Education Act, 1974 (Education Relations Commission, 1980:10). Because of the nature of the legislation and because there are more than 250 sets of teacher negotiations in the province, collective agreement provisions vary a great deal as to how disciplinary matters will be handled. In some cases collective agreements are silent on this matter. In those instances the board of reference procedure outlined in the Education Act becomes the legal appeal mechanism, with some limited 68  exceptions. In other cases, collective agreements state that a teacher may seek redress by way of the grievance/arbitration procedure and a board of reference. A third group of collective agreements provides that either appeal mechanism may be selected. Some agreements state that if the board of reference route is selected the teacher must give up his/her right to an arbitration appeal. If the Minister then refuses to establish a board of reference, the teacher is left with no appeal right. Still another large group of collective agreements makes the board of reference option mandatory with no appeal through grievance/arbitration in any discipline case. Where such a board cannot be constituted based on the minister's discretion, there is no right of appeal. Finally, some collective agreements contain provisions such as a "management rights" clause allowing specific types of disciplinary cases to be appealed to arbitration in spite of other clauses which suggest the board of reference is mandatory for discipline matters (Education Relations Commission, 1980:14). McElroy, of the Ontario Education Relations Commission reports that her organization has collected 48 teacher discipline arbitration awards since the 1975 legislation which allowed for arbitration of teacher discipline matters. An examination of summaries of those awards (1975-1989) indicate that only 39 relate to teacher discipline when those dealing with principals are removed. Of those 39 teacher discipline awards in Ontario issued between 1975 and 1989,19 upheld the school board, and 20 were "won" in whole or in part by the teacher grievor. The categories of cases were: -transfers or demotions -probationary dismissals -refusal to cooperate -criminal activity -poor performance -absent without leave -unprofessional conduct  10 7 5 4  2 2 2  69  -gross indecency^2 -unsatisfactory evaluation report^2 -innappropriate discipline of a student^2 -alcoholism^1  An interesting aspect of many of these awards was the presence of repeated jurisdictional arguments indicating problems involved in interpreting the confusing array of legislation combined with collective agreement language. Objections were raised by one side or the other as to whether the arbitration board had jurisdiction to rule or whether the matter should be heard before a board of reference. For example, in Stormont, Dundas and Glengarry Roman Catholic Separate School Board and L'Associaition Des Ensignants Franco-Ontariens 1982, (Weatherhill), the school board argued that "a conflict exists between the agreement and Sections 232-242 of The Education Act and therefore, according to Section 51. (1) of School Boards and 7Z-zithers Colleatire  Negotiations Act, conflict must be resolved in favour of The Elva-Ilion Act". Weatherhill ruled in that case against the school board's jurisdictional argument but found in favour of the school board on the teacher grievance. The 39 arbitration decisions dealing with teacher discipline matters are written by such well known labour arbitrators as J. F.W. Weatherhill, G.J. Brandt, K. Swan, R. Kennedy, and K. Burkett and some may serve as a source of precedent in future B.C. teacher cases. Those cited in Brown and Beatty and contained in whole, or in part, in the Labour Arbitration Cases (LACs) are reviewed below. SECTION 2: REPORTED TEACHER DISCIPLINE CASES Brown and Beatty, leading Canadian authorities in labour relations,  70  produce a reference text, Canadian Labor Arbitration, widely used by Canadian arbitrators and labour relations practitioners. That text, an open entry, now in its third edition (1988), outlines arbitral jurisprudence on any possible grievance arbitration topic or related legal issue, and makes reference to arbitration case(s) in the numerous volumes of Labour Arbitration Cases (the LAC's) where the actual full award(s), or excerpt(s), deals with the particular issue referred to. Brown and Beatty's discipline section, Chapter 7, pages 7-1 to 7-220 makes references to only 8 cases involving teachers. This section of this chapter determines what can be learned about those teacher arbitration decisions. The cases are reviewed with those reviews recorded chronologically in Appendix B. What Can Be Learned About Teacher Discipline Jurisprudence From Leading Cases Cited in the LACs  In spite of the fact that approximately 300,000 teachers are working today in Canada, only eight cases involving discipline of teachers are referred to in Brown and Beatty. This may have been expected when teacher discipline cases are arbitrated under labour legislation only in Quebec, Newfoundland, New Brunswick, and sometimes in Ontario. Quebec's cases, written in French, are not reported by Brown and Beatty, leaving only three provinces to produce arbitration decisions. It is understandable then, that only three provinces are represented. It is evident that practitioners in B.C., engaged in researching teacher discipline grievances, will not find arbitral precedents concerning other teacher cases by looking to Brown and Beatty. Of the eight cases cited, none could be described as a 'regular' or mainstream' discipline case. The issues dealt with are peripheral in terms of employee discipline. There is no reported case, for example, 71  of a tenured teacher dismissal. Only one case, Jones, is cited more than three times. While this case involves a dismissal, it is distinguished in that it involves a principal who is also a probationary employee, an unusual situation which will not arise in a B.C. arbitration where principals are not unionized. Of the eight cases, four appeals upheld the employer and four were "won" by the union. Five of the eight cases are from Ontario, three of them focussing considerable argument on the issue of arbitrability as discussed above. These cases confirm that regular disagreement over whether arbitration is the correct process for discipline matters occurs in Ontario. Because of the confusing nature of Ontario's legislation, time is spent not only debating whether the arbitration board has a right to hear the case, but also arguing whether the arbitrator has the right to vary a penalty. Decisions on such matters serve no precedential value in B.C. teacher arbitrations where such questions are clearly answered in legislation. A Summary of the Eight Teacher Cases Found in the LAC's  A review of the eight teacher discipline arbitration cases found in the LAC's, indicate they can be categorized and summarized as follows: (see Appendix B.) 1. Half of the cases, (City of Windsor, Carleton Board, Borough of Scarborough, and Jones) deal with the issue of probationary teachers, teachers without tenure. Probationary teachers were treated by arbitrators as other unionized probationary workers in these cases. There is no indication that the teacher tenure system creates any unique form of probation. In two cases the union "won" when the issue was over the process used to dismiss (or fail to renew the contract), or to evaluate a probationary teacher. When the issue concerned the right of the school board to terminate the probationary  72  teacher, the employer was upheld. In two cases, Porcupine Area Ambulance Service, a 1974 decision by Beatty is cited as the authority. Porcupine states that in the case of a probationary employee, just cause for discipline means that "any decision as to suitability must be grounded in legitimate expectations of the employer and not standards that are unreasonable or extraneous to the requirements of the job". Where an evaluation of a probationary teacher is considered to be "unreasonable" then, the employer's action will likely be rescinded pending a fair evaluation. 2. The issue of arbitrability is argued in City of Windsor, Wellington County, and City of London. The question is whether the arbitrator has jurisdiction when the collective agreement contains no provision governing discipline, or when there is no "just cause" provision. In all three cases, arbitration boards ruled they had jurisdiction. Such situations or arguments will not occur under legislation governing B.C. teachers. 3. The Newfoundland case (Notre Dame Integrated), is relevant to B.C. and to the definition of discipline under labour law. The question it answers is 'When is a negative sounding letter from the employer discipline?' The answer based on this case is, "Such a letter is discipline if it has a negative impact on a teacher's work record and if it is to be kept in the teacher's file". 4. In Wellington County the arbitrator considered a teacher transfer to be a disciplinary demotion and stated that it did not seem proper that such "discipline" be indefinite. While the arbitrator upheld the employer, he did so only because there was no law in Ontario allowing the penalty to be varied, and no clause in the collective agreement which might have been breached by such action, other than a management's rights clause. This case may be cited in teacher transfer arbitrations in B.C. but in a context where there is a law allowing for a variation in penalty (section 98 of the Industrial Relations Act). 5. The decision in Durham Board, indicates that pay deductions may not be made to teachers for being away from school for a few hours when students are not in attendance and when someone in authority has gives permission for the teacher's absence.  73  6. Jones deals with the matter of an employee who is an alcoholic but who goes to great lengths to rehabilitate himself. The question became, "should this teacher (principal) get a second chance?". The case was never resolved by the courts or the arbitrators. The original arbitration found for the teacher; that decision was overturned by the lower courts and in the end the highest court sent the case back to the arbitrator because of the process but not the decision. However, a rehabilitated Jones went back to work and the matter was dropped. The case does establish alcoholism as an illness and rehabilitation as a correct approach to take, but the case is complicated because Jones is a probationary employee and substantial argument is given to the standard of arbitral review for probationary employees. 7. City of London, involving suspensions for theft, contains an interesting argument regarding the kind of fair processes available to teachers when the collective agreement is silent. The arbitrator ruled on the basis of a Supreme Court decision in LaCarte, that procedural protection is determined by the language of the collective agreement, and that if there is no such language, fair procedures may not be guaranteed. He described such a relationship, where no fair procedures were included in the collective agreement, as one of master and servant. C. Summary The analysis in the first two sections of this chapter found that teachers in B.C. are entering a collective bargaining system which offers few precedents from other teacher jurisdictions in Canada in terms of dealing with teacher discipline arbitrations under labour law. Teacher discipline in this province is now governed by collective agreements, the Industrial Relations Act, the School Act, and arbitral jurisprudence as set out in Brown and Beatty, the LAC's, and other relevant arbitration awards. This appears to put B.C. teachers in a different category from that of most other teachers in the country. For arbitration precedents, those provinces we can turn to, Newfoundland, New Brunswick, Quebec, and Ontario, all prove to be problematic models. In Quebec, 74  the problem is one of language; Newfoundland and New Brunswick are distant; they have provincial master agreements and their arbitration cases are few and not easily obtained. In Ontario, the legislation complicates matters to the extent that even those few arbitration awards available are filled with questions of arbitrability not relevant here. Ontario's legislation is quite different than that faced by B.C. teachers; principals are part of Ontario bargaining units; many discipline cases are heard by boards of reference under education law; and many collective agreements do not contain clauses dealing with discipline. SECTION 3: CANADIAN STUDIES OF TEACHER DISCIPLINE  One becomes disappointed very quickly when attempting to locate literature which analyzes Canadian teacher discipline systems. This author was able to locate only two works, one prepared by the Canadian Teachers' Federation (CTF) and a book originally written as a Masters thesis by Michael Czuboka, a Manitoba school superintendent. The CTF document is designed as a catalogue of teacher court cases for use by their provincial bodies. Citations and brief extracts of each case are not limited to discipline, however, and deal with such matters as judicial reviews of both interest and rights arbitration awards, cases related to sick leave, income tax, criminal acts, conflict of interest, and sexual harassment, to name a few. CTF is currently attempting to collect discipline arbitration decisions issued pursuant to labour legislation. A. C nib oka Research on Manitoba Teacher Discipline  The Czuboka study (1985) provides a helpful assessment and analysis of the system of teacher discipline in Manitoba, with one major flaw; the 75  review of the legislation governing teacher discipline in that province is inadequate and leaves the impression that because teachers "go to arbitration" in Manitoba, as they do in Newfoundland and Quebec, the systems in those three provinces are the same. As noted above, such is not the case. Arbitration of teacher dismissals in Manitoba is not governed by labour legislation. In fact, the arbitration system in Manitoba is more closely related to the board of reference system in Alberta or Saskatchewan. However, the analysis provides a record of every teacher dismissal case occurring in Manitoba between 1969 and 1985--or at least of every appealed dismissal case. Czuboka's detailed outline of these 18 Manitoba teacher dismissal appeals permits a summary of the due process requirements judges, or in some cases--arbitration boards, have mandated school boards provide teachers in that province: 1. "...only detailed and documented written evidence would be acceptable,...and reasons for release must be very specific". The teacher must be present at the school board meeting when his contract is terminated and have an opportunity to refute the evidence (68). (cited in Jenkins v St. James-Assiniboia, 1969). 2. There is no equality of justice if one teacher is fired and another is not when both were involved in the same incident cited as the reason for the termination. "Vague complaints by parents are hearsay evidence" and are of little use in a dismissal case (83-4). (cited in Skublen v Lakeshore, 1970). 3. There must be valid "cause" for terminating an agreement and school boards cannot add additional reasons for dismissal after the official reasons have already been given in writing (76-78). (cited in Weir v St. Boniface, 1971). 4. A school board is not free to give one reason for a teacher's termination and later on at a hearing before the arbitrators shift its ground to another reason (141). (cited in Lowery v Beautiful Plains 1975). 5. The correct school board hearing procedure must be carried out. The teacher must have an opportunity to prepare and present his case (149). (cited in Husain v Portage la Prairie, 1980). 6. When a tenured teacher who had been satisfactorily employed for seven years was "sorely provoked", and the incident leading to dismissal an "isolated incident", and the teacher is now "contrite" , and has "apologized", "such a draconian decision [as dismissal] which might have the effect of terminating a 76  professional career" will not be allowed to stand (167). (cited in Kitsch v MorrisMacDonald, 1981). 7. The doctrine of the "culminating incident was invoked for the first time (181). (cited in Nash v Seine River, 1984).  Czuboka's case material indicates that in 85% of Manitoba teacher dismissal cases the teacher won in appeal (194). However, the author fails to adequately categorize and summarize his cases. He offers recommendations and advice (intended for school administrators and not all agreed to by this author) throughout, in reference to the teacher dismissal process. A list (incomplete) of his recommendations follows: 1. Teachers with tenure must be given due process, which means "having the right to attend a school board meeting at which his possible dismissal is being considered" , having the opportunity to "refute the evidence against him, having the right to bring witnesses, a lawyer, and any resources "as required to present his case in a fair manner" (263-4). 2. Arbitrations will be very expensive, and most will be appealed to the courts, adding to the expense. Be prepared to pay up to $80,000 on a case plus staff time [in 1980] (137). 3. Because most arbitrations will be appealed to the courts, a court reporter should be present at all arbitration hearings. (This point was also made by judges in several cases (114 and 137). ( also see Kaushal v Agassiz,1973). 4. All witnesses for the school board should be well prepared for the ordeal they will face on the stand". One principal and superintendent had their career's damaged when the arbitrator went far beyond his mandate" (174-8) (Czuboka quotes from Nash v Seine River, 1977). 5. A dismissal letter must be very carefully drafted as the reasons stated must later be proven by evidence" (117). 6. It will be very difficult to get an arbitrator to uphold the dismissal of a teacher proven to be "very competent" even though competence is not the issue (138). 7. Permanent tenure for teachers should be abolished. There should be instead "mandatory retraining for all teachers and administrators to renew their tenure and permanent certification at certain intervals, such as every five or ten years."  The recommendations indicate some clear differences in the appeal process in Manitoba compared to that under labour law in B.C. In  77  particular note the references to court review of awards and the need for court reporters , which of course is not applicable here. B. Limitations of the Cz-aboka Research  While Czuboka's analysis of the teacher discipline system or dismissal cases in Manitoba is useful, his review of the situation in other Canadian provinces is completely inadequate and even misleading. It is revealing, therefore, that Czuboka comments in his "introduction" , on how extensively the first edition of this book is used by school administrators "throughout Canada" (xix). If that is the case, it can only indicate the dearth of material available on the topic. But also if such an assessment is correct, further comment is warranted in criticism of this work. The Canadian analysis is not helpful for at least four reasons: (1) The B.C. section discusses only one case, Caldwell v St. Thomas Aquinas School and fails to explain that this is a private school case, a human rights issue, and unrelated to general case law on B.C. teacher dismissals. (2) The Alberta section discusses Keegstra only. That case is not yet resolved and is so unusual it sheds little light on teacher discipline in that province. (3) Other cases from various provinces deal with layoffs rather than discipline, and the author fails to differentiate between reduction in force and discipline. (4) No examination of legislation or collective agreements is included nor was there a suggestion that this might be relevant in terms of teacher discipline. In fact legal frameworks are rarely referred to and then only in an incidental fashion.  A few general points of interest in Czuboka's work can be summarized as follows: 1. "...almost all of the tenure cases in Manitoba over the past twenty years have involved either junior or senior high school male teachers. Kindergarten and Grades 1 to 6 teachers are rarely fired" (6). 2. During the year 1971-72 [the one year he had data for] there were twenty-one appeals to boards of reference in Alberta. Three were withdrawn by school boards before they were heard, eight were withdrawn by teachers; others were 78  settled by mutual compromise, and in the end eight cases went to a hearing. Of those eight cases, five were won by the school boards and 3 by teachers (34). 3. There were few cases of teacher dismissals before 1970 in Canada because: In reality, what happened that teachers usually resigned even when under a slight amount of pressure. After all, jobs were plentiful, and teachers could always go somewhere else" (43).  In summary, it must be concluded that comprehensive research on teacher discipline systems in Canada has not yet been conducted. Czuboka's work, which leaves many questions unanswered, appears to stand alone. SECTION 4: AMERICAN RESEARCH ON TEACHER DISCIPLINE  The last section of this chapter looks briefly at teacher discipline systems in the United States. A review of the literature on the subject indicates a great deal has been written on specific teacher cases, especially those dealt with in the courts, or on teacher discipline concerns of specific states, but little research is found dealing with teacher discipline systems in general. However, it becomes apparent that legal frameworks vary a great deal from one state to the next. James Gross claims that recent interest in the problems of the American education system has created new interest in teacher discipline in the 1980's because of the tendency to blame teachers. The popular press has created a theme that American schools fail due to deteriorating pupil discipline, declining scores on standardized tests, and tenure laws that make it difficult to dismiss incompetent teachers. He feels vigilance is needed to protect teacher's lives and careers against unjust disciplinary actions "based on unstated values and presumptions rather than facts" (1988:2). His claims teacher discipline, as a research topic, is just now beginning to interest academics.  79  This section reviews three areas of the American teacher discipline system: (1) teacher tenure in the American context, (2) the discipline system within the context of types of legal frameworks, and (3) some relevant studies of American teacher discipline. A. Teacher Tenure in the United States  All fifty states have "tenure laws" , 41 of them specifying dismissal or nonrenewal of teachers for such causes as incompetence, physical or mental disability, insubordination, neglect of duty, intoxication, or excessive use of a controlled substance (Gross, 1988:2). Bridges and Gumport (1984) claim it was not until 1980 that the National Education Association (NEA) reported success in its century-long struggle to obtain tenure rights for teachers. Such rights meant teachers were no longer vulnerable to arbitrary dismissal. They could be dismissed only if school officials provided procedural due process and proved cause (3). Cresswell (1980) states that these tenure laws provide for a probationary period of typically three years, after which time teachers have a continuing contract (185). Fischer, Schimmel and Kelly (1981: 36-7) explain that for tenured teachers: Most state laws require specific notice of any charges against the teacher and a hearing before a tenured teacher can be dismissed. The teacher has a right to be present, to have counsel, to subpoena witnesses, to cross-examine witnesses, and to present a defense. In the case of probationary teachers, most states do not provide a right to a hearing but do require notice and written reasons for dismissal. Cresswell and Kerchner (1980) explain that evaluation processes, academic freedom, and dismissal procedures have different meanings for teachers than for other professional employees in that tenure provisions in state codes govern, rather than by civil regulations that apply to non80  teaching employees (157). They also report that "certain items [related to hiring and discipline] may not be negotiated and are termed 'excluded' (or illegal)" (301). B. Teacher Discipline Systems- Legal Frameworks  The question relevant to this study is: Are teacher discipline cases dealt with under labour law with arbitration as the appeal mechanism in any American states? or Are such cases handled by means of school board hearings and review panels appointed pursuant to education statutes, with final appeal to the courts? The literature is ambiguous on this matter. The court review prevails. A number of researchers who have written about teacher discipline systems in the U.S., discuss, at length, the court system of appeal which governs in teacher dismissal cases (Delon,1977; Cresswell and Kerchner 1980; Fischer, Schimmel and Kelly,1981; Bridges and Gumport,1984; and Gross, 1988). Four of these works briefly mention the collective bargaining system as a means of dealing with teacher discipline, but imply the use of labour arbitration is not extensive. Fischer, Schimmel and Kelly (1981) use the word 'arbitration' only once in their book, "Teachers and the Law". That book provides the following clause as a "typical state law" outlining procedures for dismissing a tenured teacher in the U.S.: No teacher who has become permanently employed under this section may be refused employment, dismissed, removed or discharged, except for inefficiency or immorality, for willful and persistent violation of reasonable regulations of the governing body of the school system or school or for other good cause, upon written charges based on fact preferred by the governing body or other proper officer of the school system or school in which the teacher is employed. Upon the teacher's written request and no less than 10 nor more than 30 days after receipt of notice by the teacher, the charges shall be heard and determined  81  by the governing body of the school system or school by which the teacher is employed. Hearings shall be public when requested by the teacher and all proceedings thereat shall be taken by a court reporter. All parties shall be entitled to be represented by counsel at the hearing. The action of the governing body is final (cited in Fischer, Schimmel, and Kelly,1981:361).  Delon introduces his 1977 work with this statement: "More and more boards of education are entering into negotiated agreements with teachers' organizations. These agreements frequently contain grievance procedures that relate directly to situations involving teacher discipline" (1). However, he then goes on to devote his entire "monograph" to teacher discipline issues raised in the courts and does not touch on arbitration cases at all. His concluding remarks only raise more questions: State legislatures, in increasing numbers, have adopted public sector collective bargaining laws and established professional practices commissions and/or licensure boards... .In disputes arising from the discipline of teachers, the record reveals a more frequent use of grievance procedures, hearing panels, and arbitration, all of which are products of recent legislation... . [However] As the record clearly indicates, the courts are reviewing more and more personnel decisions involving the disciplining of teachers (80-81).  Delon talks of the "mass litigation on teacher discipline" during the decade (1977:80), and in his monograph briefly reviews hundreds of court decisions dealing with several categories of teacher discipline by school authorities in various states. He devotes one section to cases of teacher dismissals which resulted in penalty reduction by courts. He concludes that "the federal court is not the appropriate forum in which the multitude of personnel decisions that are made daily by public agencies" sh