BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Harvey Frumkin

There appeared on behalf of the Company:

Robert Smith – Counsel, Montreal

Rick Wilson – Labour Relations Officer, Vancouver

Len Wormsbecker – Labour Relations Officer, Montreal

Charles Ingram – System Design Specialist, Montreal

Neil Savard – Director, Train Operations, Revelstoke

And on behalf of the Union:

Sidney G. Soronow – Counsel, Winnipeg

Darrell H. Arnold – National President, Winnipeg

Peter Taves – National Vice-President, Winnipeg

Richard MacTavish – Past System Chairman, Winnipeg

A hearing in this matter was held at Winnipeg on September 27, 1993.

The grievance contests the dismissal of Rail Traffic Controller, J. Kehler, on March 16, 1991, for accumulation of more than sixty demerit marks. The accumulation resulted from thirty demerit marks having been assessed against his record following a series of events which occurred on February 19, 1991, during which Mr. Kehler is alleged to have been in violation of Time Table Special Instructions E(8), Page RA9 of the Rail Traffic Controllers Manual, and Operating Bulletin HHS-91-A, Item l(A).

The Joint Statement of Issue is as follows:

At the relevant time Mr. Kehler was assigned as a Rail Traffic Controller at the Rail Traffic Centre located in Revelstoke, British Columbia, from which the Company’s Cranbrook Subdivision is monitored. The Cranbrook Subdivision consists of 107.7 miles of non-signalled secondary main line between Crows Nest and Cranbrook. It operates under the Occupancy Control System (OCS), a computerized system which receives and displays data for purposes of controlling movement of all trains within the Subdivision.

Mr. Kehler commenced his workshift on February 19, 1991, at 0001 when he assumed control of the Cranbrook Subdivision using the OCS computer system. Some moments later, at 0003, Mr. Kehler received a communication from Engineer Salanski, charged with operation of Train Extra 5752 East, that the West siding switch located at Fenwick had been restored to the normal position. It is to be noted that there are sidings on both the East and West sides of the main track at Fenwick to permit trains to clear the main track and allow for safe passage of other trains possessing clearance authority.

Time Table Special Instruction E(8) of the RTC Manual requires a Rail Traffic’ Controller to record normalization of a hand operated main track switch when received from a crew member during the operation or on location and not otherwise. It reads as follows:

It would have been incumbent upon Mr. Kehler, therefore, to have entered into the OCS computer system the communication received from Engineer Salanski contemporaneously with the latter’s communication. Regulation required, as well, that the information entered into the computer under the OCS method be read back to the crew member who provided same as that information appeared in a formatted text on the computer screen.

The OCS system operates in a manner such that all entries which it accepts are recorded and stored with a time and date stamp at a central mainframe computer terminal located in Toronto. Thus, in the normal course entry into the OCS computer system by Mr. Kehler of the communication received by him from Engineer Salanski at 0003 on February 19, 1991, would have found its way to the central terminal where it would have been recorded and stamped as to time and date for future recall. In point of fact, such an entry never found its way to the central computer terminal whose data base contains no record of same.

Mr. Kehler insists, however, that he made the entry in accordance with the requirements of Special Instruction E(8) and that he read back to Engineer Salanski the information received as required.

The OCS data base transaction records do contain reference to the following two subsequent entries for the siding switches at Fenwick.

According to these entries, the East siding switch at Fenwick was restored to normal position at 01:41:02 and the West siding switch at the same location was restored to normal position at 01:41:19, some seventeen seconds later. Thus the data base records that the East siding switch at Fenwick was restored to normal position approximately one hour and forty minutes following Engineer Salanski’s original communication, while the West siding switch was recorded as restored to normal position almost immediately thereafter. In point of fact, no operation occurred at the location of either switch at Fenwick at the times indicated for these latter entries.

Mr. Kehler denies any knowledge of the entries recorded in the data base of the OCS computer system at 01:41:02 and 01:41:19. He does acknowledge, however, issuing clearance authority No. 309 at 02:08 to Train Extra 9003 West from Sparwood to Fort Steele, proceeding toward the East siding switch at Fenwick. By reason of the recorded entry of 01:41:02 into the OCS computer system the East siding switch at Fenwick was indicated as being in the normal position, whereas in fact, it was not. In the result, when at 04:13 Train Extra 9003 West, which had been cleared by Mr. Kehler for passage through the main tract at Fenwick, encountered the East siding switch at that location lined against the direction of its movement, an emergency application of the train’s air brakes became necessary to avoid Train Extra 9003 West veering off into the siding.

Mr. Kehler explains the failure of the OCS computer system to record the entry which he contends he made at 0003 and the entries recorded in the OCS data base at 01:41:02 and 01:41:19 as the result of computer error attributable to program defects in the software. Reference was made in this regard to instances of computer error resulting in the communication of erroneous data or in the issuance of inaccurate or unwarranted directives, both prior to and following the incident of February 19, 1991.

The evidence, however, does not permit for a finding that the inconsistencies identified can be explained in terms of computer error. Mr. Kehler claims that he entered Engineer Salanski’s communication from Fenwick at 0003 and from there proceeded to read back the communication to Engineer Salanski. The evidence is, however, that the OCS computer system could not have accepted Mr. Kehler’s entry of Engineer Salanski’s communication at 0003. It would only have been at .0053 when the crew of Extra Train 5752 East released their authority to Mr. Kehler that the entry could have been accepted by the system. Furthermore, the message which Mr. Kehler read back to Engineer Salanski following receipt of the latter’s communication does not correspond in a number of particulars with the formatted message which would have appeared on his computer screen had the OCS computer system accepted the entry which Mr. Kehler claims he made. For these reasons, Mr. Kehler’s contention that he made the entry as required and in accordance with Special Instruction E(8) at 0003 is suspect, to say the least.

Moreover, Mr. Kehler was in control of the Cranbrook Subdivision and OCS computer system monitoring the siding switches at Fenwick. There is no evidence of a malfunction in the computer system at the time. All other entries concerning operations for the Subdivision appearing in the data base are correct. To conclude that the OCS computer system generated both the entry recorded at 01:41:02 and that recorded at 01:41:19 on its own given all indications that the OCS system was in all other respects operating properly, would require more than simple assertion or denial. This would be particularly so given the inconsistencies between the version offered by Mr. Kehler and the hard facts relating to the siding switch operation which occurred at 0003.

The supposed computer error to which Mr. Kehler refers is not limited to a time and date stamp. It encompasses a complete entry altogether. It is one thing for a computer to record an entry improperly or duplicate an entry. It is quite another thing where two different entries are involved.

The preponderance of the evidence clearly favours the Company’s version of events. Upon the evidence the Arbitrator believes that Mr. Kehler either failed to enter into the OCS computer system Engineer Salanski’s communication received at 0003 or, if he did, the OCS computer system did not accept the entry. This explains why the text read back by Mr. Kehler to Engineer Salanski did not conform in certain particulars to the formatted message that would have otherwise appeared on the computer screen. When at 01:41 (a point in time at which the OCS computer system would have been in a position to accept the entry), Mr. Kehler decided to proceed with the entry, he inadvertently recorded that the East siding switch at Fenwick had been cleared, although no crew member was present at the switch at the time and although the switch had not in fact been restored to the normal position. When the OCS computer system, notwithstanding this operation, continued to display the West siding switch at Fenwick in the reverse position, Mr. Kehler proceeded some seventeen seconds later to effect the entry that he claims he had completed at 0003.

Of course, as a result of the operations effected by Mr. Kehler the OCS computer system displayed the East siding switch at Fenwick as being in the normal position, when in fact it was in the reverse position. In the result, when at 02:08 Train Extra 9003 West sought clearance authority to proceed along the main line through the East siding switch at Fenwick, Mr. Kehler issued clearance 309 upon the basis of his own erroneous, inadvertent entry at 01:41:02, in clear violation of Company regulations.

The Company assessed thirty demerit marks against Mr. Kehler in response to the violations. Its position in this regard was that the Rail Traffic Controller occupies a highly sensitive position, carrying with it a high degree of responsibility given the safety and security implications of negligence or inadvertence. In the particular instance Mr. Kehler ignored fundamental procedures which, but for an alert crew, could have proven disastrous in terms of life and property. The thirty demerit points assessed, given the nature of the violation and potential implications, cannot be seen as excessive.

In view of the fact that Mr. Kehler had already accumulated fifty-five demerit marks, some of which were attributable to violations not dissimilar to those identified in the present case, the addition of thirty demerit marks subjected him to discharge under the Brown System of Discipline by which the parties are governed. The Arbitrator sees no basis for taking issue with the approach adopted by the Company and the manner in which it responded in the circumstances. It was confronted with a serious violation of its regulations in the area of safety and security by an employee occupying a sensitive position whose disciplinary record was already heavily laden.

The grievance is accordingly dismissed.

MONTREAL, October 5, 1993