AH - 176












(the ďCompanyĒ)








(the ďUnionĒ)








SOLE ARBITRATOR:††††††† J.F.W. Weatherill



There on behalf of the Company:

††††††††††††††††††††††† J.A. McGuire



And on behalf of the Union:

††††††††††††††††††††††† E.G. Abbot



A hearing in this matter was held at Ottawa, Ontario, on the 4th day of October, 1978.



††††††††††††††† The joint statement of fact and issue in this matter are as follows:




Signal Maintainer D.G. Mayhew was dismissed from Company service in October, 1977, for accumulation of sixty (60) demerit marks on his record.




The union appeals the dismissal on the basis that in the circumstances, the discipline was too harsh.† It is the unionís contention that Mr. Mayhew could have been demoted to a position where he would obtain closer supervision and further training, and requests that Mr. Mayhew be reinstated in Company service.


The Company declined the unionís appeal.


††††††††††††††† The grievor was first hired by the company on July 7, 1952, as a Lineman.† He resigned on July 3, 1954, to work as a signal Maintainer on another railway.† He was re-hired by the company on March 26, 1957 as an Assistant Signal Wireman.† He worked for some years as a signal Helper, and since 1964 as a Signal Maintainer.† He was dismissed on November 7, 1977.† October 26, 1977, the grievor had been assessed 10 demerit points for failing to ensure that Form 47A was mailed for the month of September, 1977.† On November 7, the grievor was assessed 20 demerits for failing to test certain track circuits, and 20 demerits for failure to provide protection at a highway crossing during a period when regular crossing protection was inoperative.


††††††††††††††† Prior to the assessment of demerit points just referred to, the grievorís accumulated disciplinary record stood at 50 demerits.† With the addition of the total of 50 demerit assessed on November 7, the grievor had accumulated 100 demerits, well in excess of the 60 which, under the system of discipline in effect.† The issue to be determined, then, is whether the assessment of a total of 50 demerits on November 7 was too severe, and if so, to what extent.† The three incidents which were regarded as grounds for discipline (two of which are related) will be dealt with in turn.


††††††††††††††† The first incident which I will consider relates to the grievorís failure to submit Form 47A in respect of the month of September, 1977.† When the form was not received in due course, the company, on proper notification, made an investigation in the usual way.† That the grievor failed properly to submit the form is clear from his own statement.† There were no circumstances suggested which would excuse this failure.


††††††††††††††† Failure to file required forms properly may be a ground of discipline.† The filing of certain reports is a part of a Signal Maintainerís duties.† The reports involved are not mere formalities, but are important to the company in that the information therein permits the company to reconcile amounts recoverable and submit bills to outside parties.† The grievor was aware of this requirement.† Since December, 1976 he had received both verbal and written instructions relating to his efficiency in compiling and mailing his reports, and on June 20, he was issued a Caution in that regard.† Further, on July 18, 1977, he had been assessed 20 demerits for failure to properly maintain and record maintenance of signals, an offense at least partially related to that in question.† There can be no doubt, then, that in failing to submit the required report for September, 1977, the grievor became subject to the imposition.† In view of the instructions, warning and discipline the grievor had received with respect of that incident.† Further, I think it cannot properly be said that the assessment of 10 demerits went beyond the range of reasonable disciplinary responses to the situation.


††††††††††††††† The foregoing is really sufficient to deal with the entire case, since by the assessment of the 10 demerits on October 26, 1977, the grievor became subject to discharge, having accumulated 60 demerits at that point.† In view of the arguments made at the hearing, however, and on the assumption (which I do not make) that 5 demerits would be the appropriate discipline, I shall now consider the other incidents on which the company relied.


††††††††††††††† These incidents occurred on October 6, 1977.† On that day a contractor, drilling under the tracks at Rosedale Avenue, mile 8.0 on the Orangeville Subdivision, damaged a number of signal cables.† These cables are part of the automatic block signal system which governs train movements in the area and the flashing light signal protection at the Rosedale Avenue crossing.† The grievor was assigned to the work of repairing the damaged cables.† Among the requirements of such work, known to the grievor are the requirements that 1) work which may interfere with safe operation o trains must not be started until train movements have been fully protected and, 2) when repair is made, tests must be made immediately to determine that the apparatus functions as intended.† Temporary repairs must be made in such a manner that the safety of train operation will not be affected.


††††††††††††††† In fact, the Rosedale Avenue crossing was left unprotected between 1800 and 2200 hours on October 6, while the crossing protection was inoperative.† It was not necessarily the duty of the grievor himself to provide protection by flagging the crossing.† It was, however, a part of his duty to ensure that such protection was provided.† There had been a Trackman assigned to protect work being performed by the contractor, and who had assisted the grievor by protecting the crossing after the flashing light signals had been disconnected.† He was not, however, retained to continue flagging after 1800.† The grievor had authority to retain the Trackman for this purpose, but did not do so, according to his statement, because he ďfelt the CNR was bulletined out of service and we had a lineup and there were no CPR trainsĒ.† He was, in effect, relying on everything else working out as he thought it should , and on others performing what he thought it should, and on others performing what he thought to be their duties.† The difficulty with that was that 1)the grievor may not have had an accurate understanding of what otherís duties were; and 2) in any event his own duties required him to ensure that protection was afforded.† The grievor left the crossing unprotected and traveled (unnecessarily, it would appear) to West Toronto to obtain certain material.† Without deciding on the conflicts between the grievorís version of his contacts with the Dispatcher or with a Supervisor (that is, accepting, for the purposes of this decision the grievorís version), it is my view that the grievor acted improperly in leaving the crossing unprotected.


††††††††††††††† While I consider, therefore, that there was just cause for the imposition of some discipline on the grievor in respect of the above, it is possible, on the view of the evidence most favourable to the grievor, that a penalty of less than 20 demerits might be proper.† Even assuming, however, that a penalty of 10 demerits was the most that might be imposed that would not affect the final outcome of the case, as appears from what is said earlier in this award.


††††††††††††††† The second incident of October 6 is that the grievor failed properly to test the track circuits after having spliced the interconnecting cable.† The grievor admitted, in his statement that the test he performed (by jumpering the terminals of the track lightning arrestors) was not good enough.† As a result, if a track relay governing the main track had been falsely energized, trains might have been given - for all the grievor knew - false clear signals.† It is not sufficient explanation for this failure to conduct a proper test, that the work had not been completed.† A portion of the work had been done, and the rest of the work was not to be done until the next day.† The crossing was to be left unprotected.† Train operation was possible.† It is clear to me that the grievorís instruction required that he test the proper functioning of the apparatus.


††††††††††††††† In my view, the grievor was subject to discipline over this incident.† In view of the seriousness of the matter, I would not consider that the assessment of 20 demerits was excessive.† In any event, for the reasons above noted, even the assessment of 10 demerits would not affect the outcome of the case.


††††††††††††††† It may be felt that the two incidents of October 6 should really be considered as two aspects of one incident, and that a total of 40 demerits in respect thereof is excessive.† I have some sympathy with this view but, as above, would note that even if the discipline imposed were reduced, say, to 20 demerits, the final result would be the accumulation of 80 demerits, and the grievor would still be subject to discharge.


††††††††††††††† It was contended that the grievorís discharge was in part attributable to the attitude taken toward him by the signal Supervisor, following his transfer (by bid) to the London Division in November, 1976.† Even assuming (but without deciding) that the supervisor made certain statements attributed to him by the grievor, it must be remembered that prior to his transfer to the London Division, the grievor had a record of 50 demerits.† On December 24, 1976, 20 demerits were removed on account of a yearís clear record.† In June, 1977, when the grievor became subject to discipline he was, as has been noted, given a Caution and was not assessed demerits.† The 20 demerits assessed in July 1977 were not altered through† the grievance process.† The supervisor did remind the grievor of the requirements of his job, and he was counseled after having accumulated 50 demerits.† Finally, the events described in this award did take place, and did subject the grievor to discipline, as I have found.† He was not unfairly treated, and with the accumulation of 60 demerits, the grievor was subject to discharge.


††††††††††††††† For the foregoing reasons, therefore, the grievance must be dismissed.


DATED at Toronto, this 16th day of October, 1978.