AH - 163
IN THE MATTER OF AN ARBITRATION
BETWEEN:
C.P. RAIL
(the “Company”)
AND
TRANSPORTATION - COMMUNICATION DIVISION OF BROTHERHOOD OF RAILWAY AND AIRLINE CLERKS
(the “Union”)
IN THE MATTER OF THE GRIEVANCE OF L.P.CHATFIELD
SOLE ARBITRATOR: J.F.W. Weatherill
There appeared on behalf of the Company:
J. Chabot
And on behalf of the Union:
R.J. Cranch
A hearing was held in this matter at Montreal, Quebec, on the 11th
day of November, 1970.
AWARD
In this grievance the grievor protests his permanent demotion from the position of dispatcher to that operator, as a result of an incident which occurred on October 16, 1969.
The parties agreed to the following Joint Statement of Fact in this matter:
On October 10, 1969, Train Dispatcher L.P. Chatfield violated Rule 266, paragraphs 2 and 3 of the Uniform code of Operating rules. For his failure in this regard, he was permanently restricted to the position of Operator.
The Union contends that the permanent restriction was too severe and that Mr. Chatfield be reinstated forthwith as a Train Dispatcher with full seniority right, and be compensated for wages lost (the difference between Operator’s and Train Dispatcher’s wages). The company contends that the permanent restriction places on Mr. Chatfield was appropriate.
There is no doubt that the grievor was in violation of the Uniform Code of Operating Rules, and it is not denied that some discipline might properly have been imposed. The union’s contention is that the discipline imposed was too severe.
The grievor was on duty as train dispatcher at Revelstoke at the time of the incident. From the office there, he controlled train movements over a territory which included Tappen and Salmon arm, some 70.4 and 63.2 miles, respectively, from Revelstoke. The territory is part of a Centralized Traffic Control system. The grievor came on duty at 1500 hours, and at that time train 8660 had been lined at 1500 hours, and at that time train 8660 had been lined to proceed westward from Canoe through Salmon Arm to Tappen. At the same time train 5524 had been lined to proceed eastward from Squilax to Tappen, as far as signal 692 at the east end of Tappen. Thus, the two trains would meet at Tappen. There were three cars to be transferred from train 5524 to train 8660. It may be observed that as matters stood, train 5524 would not be able to proceed east of signal 692, at Tappen.
Train 8660 proceeded westbound, and into the yard as Salmon Arm, where certain switching moves were made. It proceeded west, over the dual control switch at the west end of Salmon Arm, to the planning mill spur, a short distance west of the switch. After lifting two cars from the spur, train 8660 then made a reverse movement eastward to the dual control switch, where signal 636 displayed a stop indication. At that point the conductor of train 8660 went to a nearby telephone and contacted the dispatcher - the grievor. The conductor requested permission to manually operate the dual control switch at the west end of Salmon Arm. When asked if he would be going to Tappen, the conductor replied in the negative. The effect of this, of course, was that train 5524 would have to come on to meet train 8660 at Salmon arm in order to transfer the three cars. The grievor told the conductor that there were no eastward trains between Notch Hill 9which is west of Tappen) and Salmon arm, and gave permission to manually operate the dual control switch at the west end of Salmon Arm. These actions were governed by Rule 266 of the Uniform Code of operating Rules, which is as follows:
266. A train or engine may be given exclusive occupancy of a track or tracks within specified limits and specified times to perform switching or other work when authorized by the train dispatcher in the following manner: “(train or engine) may use (track or tracks) between…and…(or at…)…m until …m”
When requesting track and time limits, employee will give his name, occupation, location, train or engine number and specify time and work limits and track or tracks to be used. When such authority is granted, the instructions must be in writing and repeated to the train dispatcher before being acted on, and no movement may be made under this rule until the engineman has been advised and understands the track and time limits granted.
After the train or engine has entered the limits specified, the train dispatcher must block all levers controlling signals governing movements into such limits at stop and must not remove lever blocks nor permit any other train or engine to enter the limits until track and time limits have expired unless the train or engine is reported clear of the track or tracks specified.
During the period track and time limits are authorized the train or engine may use the track or tracks specified in either direction without flag protection.
The train or engine must be clear of the track or tracks specified, switches restores to normal position before expiration of the time specified, and train dispatcher so advised. If not clear by the time specified, protection must be provided as prescribed by rule 99. If additional time is required, authority must be secured from train dispatcher before previously authorized time expires.
The grievor did not comply with the requirements of this rule. He did not give train 8660 exclusive occupancy of the appropriate section of track, or set out time limits for such occupancy. There appears to be no written record nor was there repetition of the instructions. Most importantly, he did not block the levers controlling the signals governing movements into the area in question, and he did, however inadvertently, permit train 5524 to enter the limits in question.
The conductor of train 8660, as well as the engineman, the fireman, and one of the trainmen, were also in violation of rule 266, in particular, of paragraph 2 thereof. In this they must be said to bear some part at least of the responsibility for the incident. It is to be noted, however, that Rule 266 imposes certain specific duties on the dispatcher which could not be required of the train crew. This is the case in particular with respect to the requirement of blocking the levers controlling the signals governing movements into the limits in question. The dispatcher can block these levers simply by inserting plugs into the proper jacks in the console at which he controls the switches in his territory, There is no suggestion of anything which might have prevented the grievor from carrying out this operation. There is no real excuse offered for the grievor’s acknowledged failure to comply with these rules.
After the conversation with the conductor of train 8660, the grievor canceled the westward signal which had been cleared for the movement of train 8660 to Tappen, and he cleared eastward signal 692 for the movement of train 5524 east from Tappen to Salmon Arm. He did this, although the arrangement at the office in Revelstoke is such that there was a flashing light indicating that the west dual control switch at salmon arm was on manual operation: so that it should have been realized that there was a possibility of another train being in the area of track toward which train 5524 had been routed. Quite apart from the error of judgment involved, if the correct procedure had been followed, this situation could not have arisen. As it was, however, the signals up to signal 635, in the area of the dual control switch at the west end of Salmon Arm, were allowed to be such that Train No. 5524 was allowed to approach salmon Arm in the expectation that the track was clear. Train 8660 was just west of the dual control switch when train 5524 approached on the same track; the engineer of train 5524 being able, fortunately, to bring his train to a stop some twelve car lengths short of a head-on collision.
There can be no doubt that the crew members of train 8660 were, as has been mentioned, in violation of the Uniform Code of Operating Rules. They were disciplined for such violation by the assessment of demerit marks. The grievor was more severely dealt with. In my view, he ought to have been more severely dealt with, for he committed more than one violation of the rules, and some of these were of a most serious nature. He was directly responsible for the signals being such as to permit train No. 5524 to proceed into this obviously hazardous situation. It was he, and not crew of train 8660, who was in control of the signals, and the distinction between his case and that of the crew members is clear. In my view, nothing is to be gained from comparing the discipline imposed on the grievor with what imposed on the others, because the cases are not similar. The issue is simply whether the permanent demotion of the grievor was, in the circumstances, a proper disciplinary response to the situation.
As set out in the award between the same parties in the case of J.E. Quigg (July 30, 1970), demotion has generally been held to be improper as a form of discipline: demotion is proper where a fair assessment of an employee reveals he is not competent or cannot be relied upon to perform his work adequately. Misbehavior which might be the subject of discipline might be the occasion of such an assessment, and some forms of misbehavior might be evidence of incompetence or unreliability. In the instant case the grievor was clearly in breach of the provisions of the Uniform Code of Operating Rules in a number of respects. These particular violations went to the very essence of the grievor’s work: the lining up of trains along sections of track so that they reach their destinations expeditiously, and without colliding with one another. In this case, a collision was narrowly averted; the grievor’s responsibility for the creation of such a hazardous situation, however, is just what it would have been had there been a disastrous crash.
The nature of the grievor’s violation of the rules in this case is, in my opinion, of a vastly different character from that of the violation committed by Mr. Quigg in the earlier case. Whether it be viewed as a matter of “incompetence” or of unreliability may be of little moment. The grievor was fully qualified, and knew the job and was capable of performing it. It is, in my view, of the essence of the work that in situations which require it, the provisions of rule 265, third paragraph, be carried out faithfully. The grievor, by his own statement, made certain “assumptions” about what the crew of train 8660 would do, and on the basis of these failed to follow the straightforward and obviously sensible procedure required by the Rules. In these circumstances, I think the company quite properly determined that the grievor, having failed in this vital responsibility, ought not to bear that responsibility again.
Of course employees make mistakes from time to time in the performance of any job. In some sorts of jobs these mistakes may relate to the very “essence” of the job, without revealing any fundamental incompetence or unreliability of the employee. In a case such as this, however, the responsibility and the risks involved are so great, and the importance of following a proper procedure so clear, that it can properly be said that the grievor’s conduct really does indicate that he could not be relied upon to perform this vital job in the proper manner. It is my conclusion that this was a proper case for a demotion.
The foregoing is sufficient, in my view, for the disposal of this case. Some comment may be made, however, on the company’s characterization of the demotion as “permanent”. It is not necessary in this case to deal with any of the implications of that term. It may be that the grievor would be entitled, at some future time, to apply for a posting to the job. It may also be that, under the terms of the collective agreement, the company would be obliged to consider his application. This question, however, is not before me, and I make no decision with respect to it. That would involve the consideration of articles of the collective agreement not referred to in the proceedings before me. The question in this case was whether, at the material times and in these circumstances, the company was justified in removing the grievor from the job of dispatcher. For the reasons which have been given, it is my conclusion that it was so justified.
For the above reasons, the grievance is dismissed.
DATED at Toronto, this 7th day of December, 1970
_____________________________
Arbitrator