CANADA

PROVINCE OF QUEBEC

DISTRICT OF MONTREAL

GRIEVANCE BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(hereinafter called the "Company")

-and-

BROTHERHOOD OF RAILWAY, AIRLINE AND

STEAMSHIP CLERKS, FREIGHT HANDLERS,

EXPRESS AND STATION EMPLOYEES

(hereinafter called the "Union")

GRIEVOR: MR. J.A. DAIGLE

HEARING: Labour Relations Conference Room

7th Floor

Canadian National Headquarters Building

935 Lagauchetiere Street West

Montreal, Quebec

January 22, 1976

ARBITRATOR: STANLEY H. HARTT

APPEARING FOR THE COMPANY: D.L. Fletcher

A. Giard

R. St-Pierre

J.F. Curran

R.A. MacKinnon

J.M. Beaulieu

J.C. Brochu

P.J. Thivierge

APPEARING FOR THE UNION: F.E. Soucy

G.E. Hlady

J.R. Leclerc

C.J. Cranch

J.A. Daigle

L. Racicot - Attorney to J.A. Daigle

ARBITRATION AWARD

The undersigned was appointed as sole arbitrator to deal with a grievance dispute between Canadian National Railway Company and the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees concerning the demotion and suspension of one J.A. Daigle, by a telex dated December 8, 1975. A hearing was held in this matter on January 22, 1976, at which the persons mentioned above appeared for the parties. Prior to the hearing, and in accordance with the Collective Agreement, the parties submitted the following joint statement of the issue:

"On December 9, 1972 Mr. J.A. Daigle was employed has Train Dispatcher on the Drummondville Subdivision. During his tout of duty two trains identified as Extra 2307 east and Extra 2319 West collided head-on in the siding at St. Germain. Mr. Daigle was ‘ ,,, permanently demoted to Operator/Agent-Operator with time out of service to apply as suspension for inattention to duty and failure to employ good dispatching practices by needlessly routing both Extra 2307 east and Extra 2319 West into the siding at St.Germain ...’

The Union has asked that Mr. Daigle be reinstated as a Train Dispatcher. The Company has declined the request."

The parties stipulated at the commencement of the hearing that for the purposes of the award in this grievance, the undersigned was entitled to consider any statement under oath involving the matters at issue, whether made at the Coroners inquests, the Canadian Transport Commision inquiries or elsewhere. The parties further stipulated that the arbitrator would have the authority, if in his opinion the facts warranted it, to modify the penalty imposed by the Company or to confirm or rescind the Company’s action in suspending and demoting the grievor.

The collision took place on the Drummondville Subdivision of the Company’s St.Lawrence Region extending between Chaudiere, P.Q. and Montbec Junction, P.Q. The siding at St. Germain has a capacity of one hundred and twenty-five cars and is located at mile 102.8 of the above mentioned subdivision. At approximately 2050 hours, the two trains mentioned in the joint statement of the issue collided head-on with resultant loss of life, injury and damage to rolling stock and other equipment. Extra 2307 east consisted of eighty-two freight cars and Extra 2319 West consisted of one hundred and five freight cars and two and four diesel units respectively. In the subdivision described above, there is a single main track. The purpose of the siding is to permit one train to pull of the main track so as to alllow the other to pass. The operation of the signals and the switches on the track in question is controlled by a Centralized Traffic Control system operated by a dispatcher on the third floor of Central Station in Montreal. The dispatcher operates a panel which enables him to open and close switches at each end of the siding and which controls the applicable signals which advise the trains of other traffic and appropriate speeds. Unfortunately, there is no signal which indicates to a train in the siding that another train may be entering the same siding from the other end. Indeed, movement of the trains within the siding itself is not governed by the Centralizing Traffic Control System. It is the duty of the dispatcher to align the switches so that one train is diverted onto the siding while the other remains on the main track.

The Union’s submission may be summarized under the following headings:

1. The trains involved were moving at far more than the acceptable speed for movement through sidings, as set forth in the Uniform Code of Operating Rules issued by the Canadian Transport Commission and there was, therefore, at least contributory fault on the part of both train crews.

2. The other employees involved in the incident were not treated as severely as was Mr. Daigle, who though perhaps guilty of a certain degree of negligence was not the sole cause of the accident. The Union contention was that similar errors occur with regrettable frequency but do not necessarily result in collisions.

3. The severity of the discipline was out of proportion to the seniority and working record of Mr. Daigle and was the result of an attempt to placate regulatory authorities.

1. I would note that, it is apparent to me that the statements of the train crews made to Company investigators contained self-serving versions of the facts, designed to minimize their responsability. The Uniform Code of Operating Rules defined restricted speed as a "speed that will permit stopping within one-half the range of vision". Various members of the train crews claimed that they were operating at approximately eight to ten miles per hour when the collision occured. The Union contends that this is clearly impossible, since the siding is one and one-half miles in length between switches and the collision occured at approximately the centre of the siding. If Extra 2307 east entered the west switch at 2049 hours and Extra 2319 West entered the east switch at 2048 hours, as submitted by the Union , the trains would have travelled one minute and two minutes respectively to point of impact. To cover approximately three-quarters of a mile in one minute. Extra 2307 East would have been travelling at approximately forty-eight miles per hour and Extra 2319 west would have been travelling at a speed of approximately twenty-four miles per hour. In any event, it is clear that the respective speeds did not permit stopping within one-half the range of vision, since otherwise the collision would have been averted. The statement of Mr. Boivin, the engineman on Extras 2307 East, to the Company investigators, indicates at the west switch of the St. Germain siding, the weather was very foggy. Mr. Boivin acknowledged having seen the indication for restricted speed on the signal governing east-west switch at St. Germain. When he first observed the headlight of the approaching train, it was approximately forty car length away, but he assumed that the other train was on the main track. Periodically the fog would obscure the headlight which appeared to be dim. His own headlight was on dim because of the glare from the fog. The engineman of the other train, Mr. Robidoux, stated to the Company investigators that he did not see the headlight of Extra 2307 East until it was approximately two pole lengths away (six or eight car lengths). This discrepancy is probably accounted for by Extra 2319 West being in a deeper bank of fog. The siding curves for approximately one mile, which while it does not obstruct visability may, in fog conditions, induce error as to whether an approaching train is on the main track or the by-pass. From the foregoing, one can conclude that there was a breach of duty on the part of the enginemen, both of whom admitted that under the existing conditions they could not have stoped within one-half the range of vision.

Mr. Robidoux was given forty-five demerits with time out of service to apply as suspension for failing to comply with Operating Rule 105 ("Unless otherwise provided by signal indication, trains or engines using other than a main track must proceed at restricted speed"). Mr. Boivin was given equivalent treatment. Mr. Patry, a helper on Extra 2319 West, was given thirty demerits with time out of service as suspension. Mr. Lessard, the brakeman on Extra 2307 East, was given twenty demerits with time out of service to apply as suspension, while Mr. Javoie, the brakeman on Extra 2319 West, Mr. Rodrique, the brakeman on Extre 2307 East, and Mr. Lavoie and Mr. Girard, the conductors were given no discipline. The discipline records of the employees mentioned also indicate varying degrees of discipline for violations of operating rules or other occasions ranging through cautions to small numbers of demerit marks to suspension.

I am loath to decide this case on the basis of the discipline accorded to other employees. Their cases are not before me, they have not been represented and I am not in any position to know whether I have all the facts regarding the degree of their respective responsibility, if any. Notwithstanding the stipulation of the parties by which I was granted the authority to modify the penalty meted out by the Company (which relieves me of the particular difficulty which resulted in the Quebec Court of Appeal decision in ‘Aluminium Co. of Canada Limited -vs- Le Syndicat National des Employes de l’Aluminium d’Arvida Inc.’ (1966) B.R. 641, quashing the decision of an arbitration board because the arbitrators substituted suspensions for dismissals of two employees who had been treated more severely than others guilty of the same default). I consider that I ought to decide whether the actions of Mr. Daigle, submitted in proof before me, justify the penalty imposed or some lesser penalty or none, on the basis of the nature of those actions and not on the basis of penalties imposed on other employees.

3. Mr. Daigle has been with the Company since September 23, 1953. His discipline record previous to this accident involved twenty demerit marks for issuing a wrong track car line-up resulting in injuries to Maintenance-of-Way employees on April 17, 1970 and fifteen demerit marks fo a violation of paragraph 2, rule 87 of the Uniform Code of Operating Rules on June 7. 1971. On the other hand, he had been awarded ten merit marks for flagging a train to stop while off duty to avoid a collision with a transport truck stalled on a public crossing on May 28, 1968. It was submitted on behalf of Mr. Daigle that many extenuating circumstances existed in connection with the accident, in addition to the fact mentioned above that even the improper alignment of the switches would not have resulted in a collision had train crews been observing restricted speed. In this connection, Mr. Daigle had declared at the Company’s investigation of the incident that upon checking the switches on the control panel after he had become aware of the collision he found that switch number 18, controlling the west switch of the St. Germain siding was in reverse position, that is lined for the siding, and that when the switch lever was placed in normal or vertical position, the warning light would come on. This would indicate that the switch was lined for the siding. The same was true for the east switch but Mr. Daigle says that this would not suprise him since it was intented for Extra 2319 west to take the siding. It was pointed out that, in the event of the freezing of a switch in the field, the signal light served the function of indicating when the alignment of the switches on the track was in conformity with that indicated by the dispatcher through his positioning of the switch lever on the control panel. It was pointed out that these warning lights sometimes do burn out, but Mr. Daigle’s testimony at the Company investigation indicates that when first checked immediately following the accident by himself or the Relief Chief Train Dispatcher, the light governing the west switch came on and was therefore not burnt out. It would appear that there was no question, therefore, of a frozen switch in the field, which would have necessitated some action by Mr. Daigle in telephoning persons on the scene. Mr. Daigle also stated that while he did not recall how in advance of the expected meet at St. Germain he had aligned the switches, he generally did so approximately fifteen minutes or two stations in advance of the expected arrival at the meeting point. It was explained at the hearing that in checking the switches for freezing, they are often switched back and forth between reverse and normal positions so as to verify their proper functioning. A switch in the field takes a few seconds to react to the change of position on the control panel and after a few seconds the warning light goes out, indicating that the switch in the field has now taken the position indicated by the dispatcher. While it is possible that in the performance of this necessary pre-check Mr. Daigle inadvertently left the west switch in reverse position, this does not appear to me to be an excuse, given the length of time that he would have had to notice and correct his error and considering that he knew full well, through familiarity with the system, what the consequences might be of such an error. Mr. Daigle also submitted that he might have been diverted by checking the "hot box" or dragging equipment indicators, which is done by checking print-outs produced by the recorders, but the evidence does not reveal that any significant length of time was taken in this activity so that it would have been impossible for Mr. Daigle to dillegently check his control panel before the expected meeting of the two trains. Were it otherwise, that is to say, were it a fact that checking of the hot box and dragging equipment indicators involved such a great proportion of time of the dispatcher as to draw him away from his panel for significant periods, it would be grossly negligent of the Railway to organize the staffing of the dispatch room with one employee responsible for both dispatch and detector duties. For all of the foregoing reasons. I do not believe that Mr. Daigle has submitted mitigating circumstances sufficient to diminish the degree of fault inherent in his inattention to duty. I recognize that this being a discipline case, the Company has the burden of establishing the just and sufficient cause for the disciplinary action, but I believe the Company has discharged its onus and it would be up to Mr. Daigle or the Union representing him to rebut the Company’s clear, prima facie case for discipline for just and sufficient cause. It is my view that Mr. Daigle has not satisfied this burden. Indeed, the Union contented in its submission throughout principally for the variation of the penalty to something less severe than a permanent demotion plus suspension.

The Union argued that reports issued by officials of the Canadian Transport Commission and in particular, District Transportation Officer, J.P. Plourde, in his report, were extremely prejudicial to Mr. Daigle. At one point he says "It immediately became evident to railway officers that the primary cause of this collision was due to Train Dispatcher J.A. Daigle ... inavertently lining both trains for the siding ... ". A little later he says "It is evident that after the collision, Daigle had manipulated the levers in an attempt to cover up the situation". Mr. Plourde even intervened when he learned that the Company had intented to give Mr. Daigle a thirty-day suspension, contacted officers of the Region and arranged for Mr. Daigle to be called for a supplementary statement after which his demotion was issued.

It is clear from the evidence that any manipulation of the levers by Mr. Daigle was not done in an effort to cover up the incident, which among other things, is very difficult to do, but rather in the presence of Mr. Verrett, the Relief Assistant Chief Train Dispatcher, to check whether the warning lights and the switching levers were operating in the intented relation. The Railway Transport Committee of the Canadian Transport Commission subsequently ordered Mr. Daigle barred from controlling the movement of trians, including the use of train orders or other signal equipment or dispatching device of any type whatsoever used in connection with the movement of trains (Order dated July 10, 1974). By a judgment dated March 5, 1975, the Federal Court of Canada rendered the opinion that the aforementioned order of the Railway Transport Committee was invalid and shoud be revoked. Nevertheless, the Union argueed the severity of the reaction of the regulatory authorities induced the Company to act as it did. I can give no weight to this contention. Whoever may have induced the Company to take a particular view of the situation, it is my duty to determine whether the Company in the exercise of its discretion as to discipline, had or had not the right under the Collective Agreement between it and the Union to discipline Mr. Daigle for the conduct known to it and presented before me in evidence. I note in passing that the District Transportation Officer felt that the remaining members of the engine crews got away with very soft discipline. He states "There is absolutely no rule that forbids a C.T.C. dispatcher to put two trains on the same sidings". Had rule 105 been observed in the siding, the collision would not have happened, he states in his report of January 9, 1973. If the influence of the representatives of the regulatory authorities were so great then presumably the train crews would also have received more severe discipline, and one of the Union’s other arguments would not have been available.

It was pointed out in mitigation by the Union that the deaths of the two employees whose lives were lost were in part caused by their own actions in attempting to jump free at the time of the collision and it is noteworthy that neither of the enginemen were killed. It was further pointed out in mitigation by the Union that Mr. Daigle’s fellow employees, both fellow train dispatchers and road service employees, were prepared to make commendatory statements about him and to state that the discipline, notwithstanding the accident, was too severe. It was also stated that trains are often placed in the same siding, sometimes intentionally, sometimes by inadvertence, without any resulting collision and that Mr. Daigle is being held responsible for the consequences of the incident which were out of his control and not for his own action which, at the very worst, would necessitate having been responsible for delaying the ill-fated trains. While I do understand the concern of the fellow employees and while Mr. Daigle’s service and record are not irrelevant, Mr. Daigle’s fellow employees do not have the responsibility of management or the burden of determiming what discipline is appropriate in a case of this nature. Mr. Daigle’s very experience, lauded by his fellow employees, convinces me that he should have known the consequences of inadvertently placing two trains on the same siding without their knowledge in foggy weather conditions. I am certain he intented no collision, no deaths and no injuries, but he knew the system and ought to have known that there are no second chances in the event of a lapse of this kind and that he risked setting in motion forces which, because of the enginemen were entitled to assume that they were not being both placed on the siding, might have dire consequences. I agree that I ought not to judge the discipline in relation to the consequences. I find, instead, that even in the absence of a collision, Mr. Daigle’s neglicence or inattention would have been just and sufficient cause for discipline and it is of absolutely no importance to me that there is no express rule forbidding inadvertence which might produce deadly consequences, or that such inadvertences happen more frequently than comes to public attention because collisions do not always occur. It is the carelessness which permits the possibility of such consequences which is the employee’s fault and whether a collision follows or not does not aggrevate or diminish it. The fact that Mr. Daigle cannot explain how the levers came both to be lined for the siding, no doubt because of the shock of the incident, does not in any way permit me to regard the event as rendering him less susceptible to discipline. I feel very sorry for Mr. Daigle. He is a long-standing and, from the record, an obviously very good employee. He clearly feels very badly about the incident. He has been through an enormous amount: two coroners inquests, investigations, hearings and appeals to the Federal Court. He suffers now from a duodenal ulcer and the Union was honest enough to submit medical evidence to the effect that the stress of the job of dispatcher might not have been possible for him for the entire time since his demotion. I realize that he and his family consider it very important to achieve vindication in this matter, but I cannot allow these sentiments to influence my judgment of the facts.

The Company has shown itself to be not unsympathetic to the foregoing considerations. It has not dismissed Mr. Daigle but suspended and demoted him. On the facts, I find that Mr. Daigle was negligent and commited an inattention to duty in the period immediately prior to the collision. This inattention to duty, I find, is just and sufficient cause for disciplinary action. Whether or not others were dealt with more or less severely, and disregarding entirely the actual consequences of the particular inattention involved, I find that the penalty imposed by the Company is not out of proportion to the severity of the breach of duty involved, judged only by the potential and not the actual consequences of his advertent routing of two trains onto the same siding, which were expecting to pass each other. I therefore uphold the Company’s action and the discipline imposed on Mr. Daigle and dismiss the grievance for all legal purposes.

Montreal, Quebec, this 15th day of January, 1977.

Stanley H. Hartt_______