BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: Judge J. C. Anderson

There appeared on behalf of the Company:

K. L. Crump – Assistant Manager labour Relation

R. St. Pierre – Labour Relations assistant

S. J. Mayer – Labour Relations Assistant

J. K. Culkin – Labour Relations Assistant

T. A. Johnston – Assistant Vice-President, Labour Relations

And on behalf of the Union:

G. Mcdevitt – General Chairman

G. C. Gale – Vice-President

H. Walhs – General Chairman

A hearing in this matter was held at Montreal on August 27th, 1964.

Pursuant to a letter dated July 1st and signed by Thomas A. Johnston, Assistant Vice-President, Labour Relations, Canadian National Railways, A.M. Hand, Manager, Labour Relations, Canadian Pacific Railways, and G.C. Gale, Vice-President, of Brotherhood of Railroad Trainmen, I was appointed single umpire to arbitrate certain disputes between the Brotherhood of Railroad Trainmen of which this was one, and this matter was dealt with on August 28th at Montreal.

The agreed statement of dispute reads as follows:

Article 121 of the current schedule in the collective agreement reads as follows:

The Brotherhood contends that the crew were notified Thursday after the accident when the investigation would take place but were not told what violation they would be charged with, and for these reasons they had no opportunity of preparing their defence.

The discipline form issued, Number 780, indicates that this one was assessed for failure to comply with the Uniform Code of Operating Rules, Rule 34. Rule 34 reads as follows:

The discipline was contested on two grounds. The Brotherhood states that this particular crew was working five eight-hour shifts, Tuesday through Saturday, and that the accident happened on August 8th, a Thursday, and that the crew were notified that they were out of service on the completion of their shift at midnight and that the investigation would be held on August 12th.

Management, according to the Brotherhood’s assertion, decided later to hold the investigation on August 9th, and the Brotherhood thus contends that the men should not have been held out of service prior to the investigation and that the layover time should have been used. The crew were notified on August 15th of the discipline that was assessed and the charge, and the Brotherhood further contends that to hold the men out of service until August 15th pending the rendering of a decision is also in violation of article 121 as the charge did not involve a dismissable offence.

It was also contended by the Brotherhood that Yard Helper Poirier, having entered the service only on July 12th as a spare Yard Helper, was completely ignorant of the Uniform Code of Operating Rules, and that he was not familiar with the territory and was being instructed by foremen at the time of the accident and was actually held out of service for three days.

With respect to the other branch of the contest, namely that the charges against the employees had not been proved, the Brotherhood asserts that in this particular instance there was no train within the meaning of Operating Rule 34, and therefore no train crew, and accordingly the only person responsible was the engine man. The Brotherhood further contends that "train" or "signals" as referred to in Rule 34 do not affect yard engines as they operate completely within yard limits without train orders, and that yardmen do not have to call the indication of each signal affecting the movement of their yard engine; that this is the responsibility alone of the engine crew.

Before setting forth in detail the Company’s contention it would appear certain facts surrounding the matter should be set forth. They are as follows:

On August 8th, 1963, Engineer M.F. Schmidt, Yard Foreman G.A. Getson, Yard Helpers S.M. Kaneko and F.J. Poirier were working a regular four to twelve time shift in the Toronto Terminal with engine CN 8513. Yard Foreman Getson was hired on May 15th, 1953 as yard Helper and was promoted to Yard Foreman in May of 1956. Yard Helper Kaneko was hired on August 11th, 1953 as Yard Helper and was promoted to Yard Foreman in August, 1958. Yard Helper Poirier was hired on July 12th, 1963 as Yard Helper.

At approximately six-twenty p.m. on August 8th, Yard Foreman Getson and Yard Helpers Kaneko and Poirier received instructions from the Yardmaster and returned to their engine which was standing on Track 3 twenty feet east of an interlocking dwarf signal Number 662. The Yard Foreman relayed instructions to Engineer Schmidt and the engine proceeded westward – the engine was headed westward and proceeded in that direction. It passed dwarf signal Number 662, John Street Interlocking Plant, at red indication and ran through switches 621 and 643 and then made a reverse movement which derailed the locomotive.

At the scene and at the time of the derailment the three grievors were notified verbally by Assistant Superintendent Ellison to report for investigation in connection with CN engine 8513 passing the red indication of interlocking dwarf signal 662, John Street Interlocker, which resulted in the engine becoming derailed and equipment damaged. The investigation was initially set out for August 12th. However, on August 8th it was changed to 11:45 a.m. August 9th to meet objections of the Local Brotherhood Chairman Kohut.

The three grievors were held out of service at the completion of their shift at midnight on August 8th and the investigation was conducted on August 9th; the notification of discipline was not given to the crew until August 15th. The following is the notification of the discipline.

Claims for being held out of service pending the rendering of decision were submitted as follows:

The Company contends that notification of the investigation must have been made, otherwise the Local Chairman would not have raised objections to the proposed date. The Company also asserts that the notification of discipline was given in the normal way on Form 780. The Company further contends that the mention of investigation in layover time in article 121 simply states that the investigation will be held as quickly as possible and that layover time will be used as far as is practicable, but that when a serious rule violation is alleged, the Company asserts, it is customary to hold employees out of service pending investigation. The part of article 121 that the Company has in mind here reads as follows: "He may, however, (meaning the employee) be held off for investigation not exceeding three (3) days, and will be properly notified of the charges against him".

The Company also notes that if the employee is held blameless he is compensated for all time lost.

The Company also asserts that the alleged offence of not obeying the Uniform Code of Operating Rules is an offence, which if found to have been committed, renders the employee liable to be dismissed in the discretion of the employer, and that the holding of employees out of service pending the investigation and analysing of the evidence and the rendering of a decision based on the degree of responsibility is in keeping with that part of article 121 which provides that employees will not be held out of service pending rendering of a decision except in cases of dismissable offences.

The Company further asserts that it is the responsibility of the railroad officers to interpret the Uniform Code of Operating Rules and that this is made abundantly clear by the Board of Transport Commissioners for Canada, General Order 782, dated December 18th, 1952, from which the Company quotes in its brief. The Company further says that Form 696, General Instructions governing Train, Engine, Yard and other Operating Employees connected with the movement of trains, etc., is issued to all Yardmen. This was also submitted as Exhibit Eight, and is part of the Company’s brief, and Note 3, page two of these instructions reads:

The Company also asserts that from the answers given in the statements taken from the employees that all of them were qualified in the Uniform Code of Operating Rules and that all understood that Rule 34 applied to Yard Crews.

I have come to the conclusion that a breach of the operating rules such as was alleged against the grievors is a matter which, if established, might well, according to the particulars of the breach, render this breach a dismissable offence, and therefore the Company has not been in breach of article 121 in holding the grievors out of service pending the rendering of the decision. Decisions in matters of this kind involve the assessment of liability and the assessment of the degree of responsibility, and the whole background of the breach of the operating rules, and thus it was not unreasonable to hold two of the employees out of service in this instance pending the rendering of the decision.

That part of the grievors’ dispute which alleges that they were not properly notified in writing of the charges against them also cannot be upheld because article 121 does not say that when an employee is held off for investigation he will be notified in writing of the charges against him, bus simply that he will be notified of the charges against him, and the fact that the Local Chairman asked for and secured an earlier date for the investigation than was first proposed would indicate to me that neither the Local Chairman nor the grievors were under any misapprehension as to the alleged breach of Rules which would be under discussion during the investigation.

While it is true that article 121 states that the investigation into a breach of discipline will be held as quickly as possible and that layover time will be used as far as practicable, the date of the investigation was moved back to August 9th to suite the convenience of the Local Chairman, and the investigation, if it went forward as originally planned would have taken place on a day off.

The grievors only complaint can then be that they were held out of service pending the investigation, and as had been earlier stated, the accident and the alleged breach of discipline was of such a nature that it could properly be called an alleged offence for which a dismissal might properly take place.

For these reasons I am of the opinion that the Company in the circumstances of this case were justified in holding at least two of the crew out of service after the accident and until the decision was rendered. The decision was rendered promptly on August 15th, the investigation having been made on August 9th.

The second part of the grievors’ contention is that the charges against the employees had not been proved.

It is abundantly clear from the Board of Transport Commissioners for Canada General Order 782, that this makes the Company responsible for the interpreting of the Uniform Code of Operating Rules and of determining to which employees the rules apply, and Form 696, General Instructions governing Train, Engine, Yard and other operating employees connected with the movement of trains, is issued to all Yardmen and from this wherever the Uniform Code of Operating Rules applies to trainmen or conductors it also is made to apply to Yard Foremen or Yardmen. In addition to that, the extract of the questions and answers of all the grievors with the possible exception of Poirier make it abundantly clear that they felt they were bound to observe Rule 34.

It would appear from the evidence heard and from the submissions that while Yardmen are bound by Operating Rule 34 that it is especially in yard work not always observed or even enforced. This rule states that all members of engine and train crews must, when practicable, indicate to each other by its name the indication of each signal affecting the movement of their train or engine, and Operating Rule 12 states in part:

So it became the duty of Yard Foreman Getson to station himself and his other two Yard Helpers in such a position that they could relay signals to the engineman. Yard Foreman Getson in giving his explanation as to why Rule 34 was not obeyed simply states that he wasn’t in position in the cab of the locomotive to observe the indication displayed on signal 662, and yet he does say that when he entrained on locomotive 8513 preceding his giving of instructions for the engine’s movement he noticed that signal 662 was displaying a red aspect, yet when the engine started to move forward shortly after he did not signal or convey by words anything requiring the engineer to stop until the signal was one which he could proceed upon. He simply says that he was not in position in the cab to observe the indication displayed on signal 662.

Likewise, Yard Helper Kaneko, when asked why he did not comply with Rule 34 simply answered, "At that moment it did not occur to me to comply with Uniform Code of Operating Rules, Rule 34."

On the other hand, from the evidence it would appear that Yard Helper Joseph Poirier, who had been employed as a Yard Helper only since July 12th, upon being asked whether he was fully conversant with the Operating Rules and with the Time Table and other special instructions, answered, "No, I am not what you would say fully conversant, but I am familiar with them due to my very short time service". On being asked if he was familiar with the territory he said, "No". Upon being asked when he last qualified on the rules examination he said July 5th, 1963", and again on being asked if prior to the investigation he was familiar with Operating Rule 34 and Rule 669 and 670, he answered, "Since investigation he is familiar with the requirements", and upon being asked if he was in position on the engine to observe the indication displayed on the dwarf signal 662 he said "No."

It is obvious that while this employee may have had an examination both oral and written with respect to the Operating Rules, that his familiarity with the territory and with the rules were of such a nature that he was in effect really being trained by the Yard Foreman, and that he should not be held accountable for not giving a special signal when the indication of dwarf signal 662 displayed a red or for not being in position to observe the indication displayed on the signal. He actually lost three days’ pay and received a reprimand. While in my opinion the penalties meted out to grievors Getson and Kaneko are in keeping with the nature of the offences and the breach of the rule which I have found has been proved against them, I am of the opinion that while Poirier may have been technically in breach of rule 34, yet in effect he was ignorant of what his duties were in respect to this rule in the circumstances surrounding this accident. It should have been abundantly clear to the investigating officer immediately after the investigation in questioning of Poirier, and this did take place on August 9th, that at the very highest he could only be said to be technically guilty of a breach of a rule, and there was no reason, as soon as his length of service was known and his lack of familiarity with the yard, that he should have been held out of service further.

In the result, then, the grievances of Getson and Kaneko are denied, and Poirier, although technically in breach of Operating rule 34, should not have been held out of service on the tenth and eleventh of August, and he will therefore be entitled to be reimbursed the wages that he would have earned if he had returned to service on August 10th, 1963.

DATED AT Belleville, Ontario, this 5th day of October, 1964