BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Harvey Frumkin

There appeared on behalf of the Company:

0. Lavoie – System Labour Relations Officer, Montreal

R. Paquette – Manager, Labour Relations, Montreal

R. Morissette – Manager, Rail Traffic Control Centre, Toronto

T. O'Shell – Supervisor, S & C Control Centre, Toronto

L. Lagacé – System Labour Relations Officer, Montreal

And on behalf of the Union:

Peter Taves – National Vice-President, Winnipeg

P. Wojtowiez – System Chairman Data, Montreal

J. Ruddick – Local Chairman, Toronto

A hearing in this matter was held at Montreal on April 20, 1994.

The grievance contests the permanent demotion of Rail Traffic Controller, Ms. J.J. Tupling of Toronto, onto the position of Operator, effective March 27, 1992, for alleged violation of Canadian Railway Operating Rules (C.R.O.R.) Rule 571 and Train Dispatchers Manual RAP 35 during the course of her workshift of February 18/19, 1992. It maintains that no such violation ever occurred and that in any event, if the conduct of Ms. Tupling reflects such a violation, that the discipline assessed by the Company was too severe for the circumstances.

The Joint Statement of issue is as follows:

Ms. Tupling entered the service of the Company on March 17, 1986, as a Student Operator. She was promoted to the position of Relief Rail Traffic Controller on September 4, 1988. After a period of training in that capacity she assumed the position of Rail Traffic Controller on August 7, 1989, and for the most part worked in such position until the date of her permanent demotion.

On February 18, 1992, she commenced her workshift at 23:30 hours as Relief Rail Traffic Controller and was assigned to control movements on the Ruel and Caramat Subdivisions. The movements within these Subdivisions are monitored by means of a Centralized Traffic Control System, so that all operations performed by Ms. Tupling during the course of that workshift would be recorded on an on-line computer.

The Ruel Subdivision to which Ms. |Tupling was assigned is a length of track commencing at Capreol, Ontario, running north westward for approximately 292.7 miles to Hornepayne, Ontario. Along that length of track are two rail sidings, one at Shawmere and another to the east at Foleyet, the latter being the sight of a major yard used for switching, making up of and storing of trains. The Foleyet siding is some 10 miles east of the one at Shawmere.

At the relevant time Ms. Tupling was occupied with the monitoring of train movements at Shawmere and Foleyet and more particularly, Train Extra 2418 East (train 882) proceeding in an easterly direction along the track towards Shaw|mere and Train Extra 9662 East (train 336) located on the main line in the immediate vicinity of the Foleyet siding. Insofar as train 336 required main line trackage at Foleyet, clearance for train 882 to proceed eastward along the main line through the eastern extremity of the Shawmere siding was restricted by a stop signal. Such was the situation when at 0238:07 on February 19, 1992, train 336, which by that time had passed the eastern extremity of the Foleyet siding, was cleared to return from the main line track back into the siding. By that time train 882 had already been cleared to proceed along the main track at the western extremity at Shawmere and was requesting clearance to proceed through the east end extremity of that siding. In response Ms. Tupling, at 0238:22, initiated clearance for train 882 at the eastern extremity of the Shawmere siding. Some 8 seconds later such clearance was cancelled, only to be reactivated within seconds of the cancellation.

Almost immediately locomotive Engineer Jamieson, on train 882, inquired of Ms. Tupling as to whether there was a signal malfunction. The response was to the effect that a problem existed at the level of the code line, so that upon his arrival at the terminal locomotive Engineer Jamieson reported the incident as a signal malfunction to the Manager of Train Services at Hornepayne. Subsequent investigation however, by the Company, conducted on February 26, 1992, uncovered no abnormalities in the system. As well, examination of the control panel operated by Ms. Tupling during the workshift in question found no malfunction. In the result the Company concluded that the train signal modifications reported by engineer Jamieson could only have been initiated by the Rail Traffic Controller in charge.

For the Company, Ms. Tupling had cancelled the clearance for train 882 at the signal located at the eastern extremity of the Shawmere siding at a time when that train was less than three blocks distant from the signal and in so doing committed a CROR Rule 571 violation. Rule 571 and Train Dispatchers Manual RAP 35, which finds application in conjunction with the rule, read as follows:

In effect, the rule requires that a signal which has been cleared for an approaching train may not be restored to indicate "Stop" without first contacting the locomotive engineer of the train for assurance that the movement can and will be stopped short of the stop signal. The purpose of the provision is twofold in that it firstly prevents the cancellation of a permissive signal in front of a train that cannot otherwise stop in time, and secondly, prevents the possibility of a train passing a permissive signal which the Rail Traffic Controller has cancelled at the time the train passed the signal.

The Arbitrator is satisfied that the Company has established the Rule 571 violation alleged. There is nothing in the evidence to suggest a code line malfunction in the Central Traffic Control System, or for that matter, that Ms. Tupling's control panel was not in perfect working order. The computerized report sets out in detail all signals that were forthcoming from Ms. Tupling's control panel during the workshift in question, which signals are consistent with no other conclusion but that the signal modifications to which the Company has referred were attributable to her.

The Arbitrator is inclined to concur in Company's view that Ms. Tupling was momentarily confused by the matter of whether train 336 which had received clearance to proceed from the main track back onto the siding at Foleyet by way of the eastern extremity of that siding would, by reason of its length, penetrate beyond the western extremity of that siding and therefore require clearance onto the main track at that point. Her reaction, therefore, was to cancel clearance for train 882 at the eastern extremity of the Shawmere siding pending resolution of that confusion in her own mind. Unfortunately, these signal modifications initiated by Ms. Tupling were proceeded with without first contacting locomotive Engineer Jamieson in charge of train 882, in accordance with Rule 571. The result was a Rule 571 violation.

The response of the Company to the incident was to permanently demote Ms. Tupling from her post as Rail Traffic Controller. It seeks to justify this response by invoking her record and what it regards as a demonstration of her incompetence for the position she occupied. Ms. Tupling's record and the Company's position are outlined in its submission, as follows:

.

The Company has also shown that although Ms.

Tupling has attended training sessions and was

assessed discipline, they have had no positive

effect on her work performance while holding the

position of Rail Traffic Controller.

It is ultimately the Company's responsibility to

determine qualifications and the Company must

stress, in the strongest terms, that Ms. Tupling

is not competent to hold the position of Rail

Traffic Controller. simply put, her employment as

a train dispatcher has consistently compromised the

safety of the operation and people.

On three occasions Ms. Tupling 's negligence could

have resulted in serious consequences, including

the loss of life. If the company were to reinstate

Ms. Tupling to the position of Rail Traffic

Controller, it would be turning a "blind eye" to

her obvious inadequacies and placing the

operation as well as other employees and the public

in serious jeopardy. She must remain in a position

where the possibility of compromising safety is

significantly diminished.

As well, it was the grievor's second violation of

Rule 571 and it is very grave, particularly in

light of the fact that she has now attempted to

blame the CTC system for her error when all the

evidence indicated that the grievor had canceled

the signal. As such, the grievor broke the bond of

trust required to be retained as a Rail Traffic

Controller and was consequently demoted.

Permanent demotion is an avenue available to an employer where an

employee's conduct in the performance of his duties, quite apart from

the issue of whether that conduct is blameworthy, establishes that

employee's incompetence or unsuitability for the position which he

occupies. Although such measure may be appropriate in response to

misconduct which might also call for imposition of discipline, it

carries with it an administrative dimension. In effect, the

justification for permanently removing the employee from his position

rests in the fact that such employee has demonstrated by his actions

that he is not equal to the position.

Temporary demotion as an employer response in dealing with employee

misconduct can in no way be assimilated in its essence to the measure

of permanent demotion. Its purpose is purely disciplinary and its

design is to correct a course of conduct that is corrigible. Here

competence is not a fundamental issue. While unsatisfactory work

performance may be present, it is rooted not in basic incompetence

for the position at hand, but in unsatisfactory work performance

which it is believed will improve after a time in some lesser

position.

Thus, in terms of the appropriateness of the measure imposed by the

Company in this case, the parties have correctly circumscribed the

issue. For the Company "... Ms. Tupling is not competent to hold the

position of Rail Traffic Controller. Simply put, her employment as a

train dispatcher has consistently compromised the safety of the

operation and people". For the Union, on the other hand, ,Ms.

Tupling is well aware of the obligations and responsibilities

associated with an RTC position and no re-enforcement of this is

necessary through the imposition of an inappropriate, unjust and

virtually punitive disciplinary action".

The Arbitrator has carefully examined Ms. Tupling's record and the

incident which precipitated the Company's action in this case. The

record is far from exemplary. It reveals some difficulty in

complying with regulations. That difficulty does not seem to be a

matter of a poor work attitude but rather, at least in part, a result

of limited experience. The violation in the instant case is best

explained in terms of a momentary confusion which was immediately

addressed, albeit, without regard to the rule in question. However,

it, together with the work record, fall short of establishing

incompetence. Ms. Tupling was not unaware of all that was taking

place and the potential for a dangerous situation. It was in

attempting to avoid what she perceived as potential for a dangerous

situation that she initiated the signal modifications and in the

process violated the rule.

Ms. Tupling's record and the incident, therefore, can serve to

justify demotion, but demotion within a purely disciplinary context.

As such, the demotion imposed, as far as the Arbitrator is concerned,

should have been accompanied by definite limitations beyond which the

position of Rail Traffic Controller would be open to Ms. Tupling.

The measure of permanent demotion, however, was inappropriate.

As far as the Arbitrator is concerned, Ms. Tupling should have been

subjected to temporary demotion for a period of two years. Her

record clearly establishes that some measure of "seasoning" was

essential. The position of Rail Traffic Controller is a highly

responsible position. It allows for little leaway insofar as full

attention and optimum work performance is concerned. The

consequences of anything less than this may be most serious and

include severe damage to property, not to mention loss of life.

Thus, while the Arbitrator does not support a conclusion that Ms.

Tupling cannot be equal to the position of Rail Traffic Controller,

he does support stern discipline in this case in the form of a

temporary demotion of two years' duration reckoning from March 27,

1992.

For the foregoing reasons, the grievance is maintained in part; the

permanent demotion imposed upon Ms. Tupling on March 27, 1992, is

annulled and set aside and substituted by a temporary demotion of two

years' duration reckoning from March 27, 1992, and terminating on

march 27, 1994. The Company is ordered to reinstate Ms. Tupling

into a position of Rail Traffic Controller effective immediately,

with all rights and benefits and subject to the Collective Agreement.

No further monetary compensation is ordered. The Arbitrator retains

jurisdiction in the event of any dispute between the parties

respecting the interpretation or implementation of this Award.

MONTREAL, APRIL 27, 1994

HARVEY FRUMKIN, Arbitrator

DATED AT TORONTO, this 29th day of May, 1981.