BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Harvey Frumkin

There appeared on behalf of the Company:

J. J. Worrall – Labour Relations Officer, Toronto

L. S. Wormsbecker – Labour Relations Officer, Montreal

C. C. Wadsworth – Director, Rules Instruction, Toronto

A. Y. DeMontigny – Supervisor, Labour Relations, Montreal

J. S. McLean – Manager, Labour Relations, Toronto

And on behalf of the Union:

Darrell H. Arnold – National President

Peter Taves – National Vice-President

Marc Trapanier – Quebec Division Local Chairman, System Chairman

A hearing in this matter was held at Montreal on March 15, 1994.

The dispute in the present case has been framed by the parties in the following terms:

The joint statement of issue submitted by the parties is to the following effect:

In effect Mr. Berard has been dismissed for accumulation of more than 60 demerit marks assessed for a number of violations attributed to him over the course of his work-shift of November 9, 1992. For the most part the facts as these relate to the violations identified are not in dispute. Rather the parties are at variance upon the matter of whether the dismissal of Mr. Berard was appropriate in the circumstances.

At the time of the occurrence of the violations attributed to Mr. Berard he was thirty-five years of age and had been in the employ of the Company since March 24, 1979, initially as an Operator and since September 8, 1985, as a Rail Traffic Controller (R.T.C.). As a Rail Traffic Controller Mr. Berard would have been responsible to coordinate all traffic clearances between operating train crews to ensure safe passage of trains as well as between these crews and Maintenance of Way employees in order to facilitate the safety and security of personnel and equipment where repair of track equipment was concerned.

On November 9, 1992 Mr. Berard was assigned as a Rail Traffic Controller on the North Desk in the Saint Luc R.T.C. Centre. His regular work-shift commenced at 600 hours to terminate at 1400 hours. As well, when at about 1200 hours on that day his relief reported sick, Mr. Berard accepted an over-time assignment to be worked from 1400 hours to 2200 hours.

The initial violation attributed to Mr. Berard occurred under the following circumstances. At 1103 hours he issued OCS Clearance No. 630 to Engine 1825 between the West and East cautionary limit signs at Trois-Rivières which operated to authorize Engine 1825 to proceed into the cautionary zone from West to East. Some 27 minutes later, at 1130 hours, Mr. Berard received a request from Track Foreman Dubé for a Rule 42 protection over the same length of track covered by Clearance No. 630 referred to above to take effect at 1600 hours. Rule 42 protection is issued as a General Bulletin Order (GBO) to all trains and engines intending to enter or move within the working limits to be protected.

At 1310 hours Track Foreman Dubé requested of Mr. Berard that the Rule 42 Protection sought earlier be advanced to take effect at 1500 hours until 2359 hours between the cautionary limits identified above. In response Mr. Berard, at 1319 hours issued GBO K357 which was read to Track Foreman Dubé and confirmed for Rule 42 protection over the very same limits covered by Clearance No. 630 issued previously to Engine 1825. GBO K357 however, was never issued nor communicated to Engine 1825 so that, in the final analysis, Track Foreman Dubé and his crew were not protected by the restriction which Rule 42 protection would have extended.

Rule 42 protection, whose object it is to protect Track maintenance Crews engaged in repair and maintenance of track and equipment, is usually arranged and extended in advance of authority actually being issued to Maintenance Crews for obvious reasons. There may be occasions, however, where this may not be practical but in all events the Rail Traffic Controller assumes ultimate responsibility to ensure that all Maintenance of Way employees as well as train crews are aware of the authorities in place at all times.

In point of fact, therefore, Mr. Berard committed a clear Rule 42 violation by reason of the issuance of GBO K357 to Track Foreman Dubé while Clearance No. 630 to Engine 1825 remained operative and without Engine 1825 having been made aware of GBO K357. The result was that at 1736 hours the conductor, on Engine 1825, was obliged to contact Mr. Berard for clarification of Rule 42 protection within the limits covered by Clearance No. 630 when, after entering the protected zone, he observed a Maintenance of Way crew working on the trackage. It was only then, (1740 hours), that Mr. Berard issued GBO K357 to Conductor Laperrière, the conductor on Engine 1825. Fortunately the limits covered by GBO K357 were within a cautionary zone so that Conductor Laperrière, proceeding under Clearance No. 630 and required to operate subject to cautionary regulations, was able to bring his equipment to rest without incident.

In addition to the Rule 42 violation attributed to Mr. Berard the Company invokes his failure to report the violation as required by regulation. In point of fact the violation came to the attention of the Relieving Terminal Supervisor at Trois-Rivières at 2230 hours when it was reported by Conductor Laperrière. The Relieving Terminal Supervisor immediately contacted Chief R.T.C. Doyon, the person in authority, to report the violation. Mr. Berard for his part, while he did speak with the Road Master at the termination of his work-shift shortly after 2200 hours, never reported the violation to the proper officer of the Company, namely, Chief R.T.C. Doyon, as he would have been required to do by regulation.

Although there was suggestion by the Company of an attempt by Mr. Berard to cover up the incident and the violation, such suggestion is based on little more than inference and the evidence in support of any alleged cover up is far from conclusive. From the Arbitrator’s perspective, anything that Mr. Berard may have done following the violation was no more than an extension of his failure to report it and given the state of the evidence cannot be set up as a distinct and separate violation of regulations.

The reasons advanced by Mr. Berard to explain the incident are wanting. He stated that he did make one attempt to communicate with Engine 1825 but was unable to do so since contact was only available through the intermediary of yard personnel which were not accessible at the time. Failure on his part to make further attempts to contact Engine 1825 are explained in terms of the fact that he merely forgot to do so. Quite clearly Mr. Berard assumed a position which carried with it the highest degree of responsibility including ultimate responsibility for protecting Track Foreman Dubé and his crew. It is no answer to say that following an unsuccessful attempt to provide the required protection he simply forgot to follow up. The least that Mr. Berard should have done if all attempts to contact Engine 1825 proved futile would have been to rescind the Rule 42 protection extended Track Foreman Dubé and his crew. By conducting himself as he did, however, Mr. Berard demonstrated conduct which can be characterized as nothing short of irresponsible.

Likewise, it is no answer for Mr. Berard to say that he did not report the violation to the proper person in authority because he believed that the Road Master would do so for him. Mr. Berard’s obligation to report was clear. It was for him alone to report the violation and not to have done so amounted to a violation of regulations in itself.

The discipline imposed as appears in Form 104 communicated to Mr. Berard took the form of assessment of 90 demerit marks for the violations with consequent dismissal for accumulation of more than sixty demerit marks. It is to the appropriateness of this measure that the Arbitrator will now direct his attention.

The Rule 42 violation in this case is a very serious one. It amounts to a failure on the part of a Rail Traffic Controller to adequately protect Maintenance of Way employees engaged in repair and maintenance work on track. It resulted from Mr. Berard’s failure to observe basic regulations and procedures. Such failure can be characterized as nothing other than negligence on Mr. Berard’s part, negligence which by exposing Track Crew to danger could have resulted in consequences of the gravest order.

Mr. Berard’s record indicates that the incident which occurred an November 9, 1992, was not an isolated one. Although he was subject to no demerit marks at the time, his record reveals that on 7 January 16, 1989, he was assessed 30 demerit marks for failure to communicate a precautionary bulletin to a passenger train for a length of track to be protected. On the same day, as a result of a separate violation, he was restricted from working as a Rail Traffic Controller and effectively demoted to the position of Operator for a period of one year. Given that Mr. Berard has already been disciplined for a violation involving track protection and was made the object of a demotion to a position with less responsibility, the incident of November 9, 1992, becomes a matter of even graver concern.

The position of the Company is succinctly stated under item 47 of its brief as follows:

The Arbitrator can take issue neither with this reasoning nor the approach which the Company adopted. The Grievor’s past record when appreciated in association with the incident calls into question his capacity to meet the high standard of responsibility that the position of Rail Traffic Controller demands and which the Company is entitled to expect. It is true that Mr. Berard did accumulate almost fourteen years of service with the Company but it does not follow that by reason of such lengthy service the Company should be obliged to maintain him in a position where, by reason of his conduct, he has placed into question his capacity to meet the standard of responsibility inherent in that position.

In CROA CASE 1841, a locomotive engineer with 11 years of service was dismissed for violation of regulations calling into question his appreciation of the need for safety and vigilance. Arbitrator Picher in that a case concluded thusly:

In view of Mr. Berard’s less than adequate appreciation of his responsibilities as demonstrated by his conduct during the course of the incident of November 9, 1992, and his prior record, the comments of Arbitrator Picher in the case above cited are as equally applicable to the present case as they were in the one decided by him.

In the final analysis the Arbitrator is faced with an employee whose position carried with it a very high degree of responsibility who committed a serious violation which placed at risk the safety and security of Company personnel and equipment. Violations of a similar nature had occurred in the past. Thus it is difficult to take issue with the Company’s position that Mr. Berard, by reason of his conduct during the course of the incident of November 9, 1992, had compromised the necessary trust that the Company was entitled to expect of an employee occupying the position of Rail Traffic Controller.

The Arbitrator has not ignored the argument of Union counsel to the effect that the assessment of 90 demerit marks in response to the incident of November 9, 1992, was exaggerated and excessive, that the incident occurred in part while the Grievor was working a double shift and that there was available to the Company a course where the demerits assessed could have been deferred to avoid discharge.

The Arbitrator would agree that the imposition of as many as 90 demerit marks was unnecessary and may have been excessive but issue cannot be taken with the imposition of demerit marks sufficient to warrant dismissal in the circumstances. As the Arbitrator has pointed out Mr. Berard’s conduct, during the course of the incident, when considered in association with his record, called into question his reliability for a highly responsible position. As regards the fact of the Grievor having assumed a double shift the observation to be made is that such fact alone could not excuse the careless and inattentive approach which was at the root of the violation. In any event the Rule 42 violation would appear to have occurred in part during the Grievor’s regular work-shift and all that the over-time shift should have afforded was a greater opportunity to correct the omission in due time. Finally, while the course of deferral of demerit marks is available to the Company such a course is reserved for particular situations under which the present one does not qualify. By way of example deferral might be available in the case of an employee with lengthy satisfactory service in a position who commits a serious but isolated violation but certainly not in the case where deferral will result in the retention of an employee in a position for which he has, by reason of his conduct, placed into question his suitability for that position.

The Arbitrator is satisfied that the Company would at least have been entitled to remove Mr. Berard from the position of Rail Traffic Controller for all of the reasons above mentioned. Given Mr. Berard’s years of service, however, the Arbitrator would have preferred a disciplinary response which would have permitted for Mr. Berard’s continued employment in some other position. The option, however, of permanently restricting Mr. Berard to an Operator’s position would not appear to be available. In this regard the evidence disclosed that the Company no longer maintains such positions in the Province of Quebec with the exception of four operator’s positions at the Seaway Tower which themselves are slated for abolishment. This being the case there can be no basis for intervention and the dismissal must stand.

For the foregoing reasons the grievance is dismissed.

Montreal, March 24, 1994