AD HOC 334

IN THE MATTER OF AN ARBITRATION

BETWEEN:

THE CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

RAIL CANADA TRAFFIC CONTROLLERS

(the "Union")

IN THE MATTER OF THE GRIEVANCE OF S.G. BENNETT

 

 

SOLE ARBITRATOR: Harvey Frumkin

 

There appeared on behalf of the Company:

W. D. Agnew Manager, Labour Relations, Moncton, N.B.

A. J. Guitard Manager, Train Service CSC, Moncton, N.B.

C. H. Boudreau Performance Consultant Gimli, Gimli, Manitoba

 

And on behalf of the Union:

Peter Taves National Vice-President, Winnipeg

Philippe Wojtowiez System Chairman, Montreal

 

A hearing in this matter was held at Montreal on August 3l, l994.

AWARD

This is an appeal of the discipline assessed to Rail Traffic Controller S.G. Bennett in the form of a ninety day suspension for violation of C.R.O.R. rules in connection with the movement of Track Unit RC 75762 East between Pacific Junction West and Gordon Yard on February 5, 1991. The Joint Statement of Issue presented by the parties is as follows:

JOINT STATEMENT OF ISSUE:

On February 5, 1991, Mr. Bennett was working as a Rail Traffic Controller on the Sussex/Gort Sub. desk "D" in the Moncton RTC Centre, on the 000l-0800 shift.

On this date, Extra Track Unit RC 75762 was travelling eastward from Bantalor to Signal 48 at Odlum, Gort Sub. During the movement of RC 75762, several incidents occurred, including improper protection of the movement between Pacific Jct. West and Gordon Yard.

An investigation was conducted and subsequently, Mr. Bennett was suspended for a 90-day period for violation of C.R.O.R. General Rule A, Para. (i) and (iii), C.R.O.R. Rule l34, Para. (a), C.R.O.R. Rule l35, C.R.O.R. Rule l37, Para. (g), C.R.O.R. l39, C.R.O.R. l40, Para. (c), C.R.O.R. Rule 566, Para. (c), in connection with the movement of Track Unit RC 75762 between Pacific Jct. West and Gordon Yard.

The Union contends that responsibility for the rule violations rests with the Company for not training Mr. Bennett on C.T.C. territory. The Union demands that all discipline be removed an that he be compensated for all lost wages.

The Company disagrees.

Mr. Bennett, the Grievor in this case, has been subjected to a suspension of ninety days for violation of various C.R.O.R. Rules referred to in the Joint Statement of Issue while he was on duty at desk "D" in the RTC Centre in Moncton, New Brunswick, on February 5, 1991, during his workshift which commenced at 000l and terminated at 0800. As the Rail Traffic Controller on desk "D" he was responsible for the controlling of movements from Moncton to Mileage l3.3 located in the Gort subdivision. As such, it would have been for him to provide protection, where required, between Pacific Junction West and Odlum.

The method of control designed for controlling movements along the particular track is known as Centralized Traffic Control. Through this method of control the Rail Traffic Controller, among other things, protects men and equipment working within particular protected areas. This involves ensuring that a particular length of track is protected and once protection is established, the issuance of an authority authorizing movement along the protected area. In the particular case the authority that was to issue is known as Rule 566 authority. Upon issuing a Rule 566 authority the Rail Traffic Controller must ensure that the protected area is clear of conflicting movement and must block out all signals entering such area at stop. The authority, once issued to a conductor, must be repeated to the Rail Traffic Controller for correctness and, if correct, is met by the Rail Traffic Controller's response of "complete", together with the current time and the initials of the Rail Traffic Controller. The authority is completed by the conductor's repetition of the Rail Traffic Controller's initials and the time given.

Where an error in the authority at any stage is discerned, the erroneous authority must be cancelled and a new authority must issue under a subsequent authority number (each authority issued is associated with a number). Insofar as erroneous authorities or failure to protect track for which authorities are issued may very well carry with them dire consequences, strict adherence to procedure is essential and is vigorously monitored and enforced.

Against this background Mr. Bennett, during his workshift of February 5, 1991, received a call from Conductor B. Leblanc operating Extra Track Unit RC 75762 East over the main track between Mileage l.2 and 0.2 on the Napadogan subdivision (signal l2 and signal 02) for protection to proceed from Pacific Junction West to Lutesville West. Conductor Leblanc, at the time, was at signal l2 at Napadogan subdivision pursuant to Rule 566 authority number 404 received from Mr. D. Boucher, Rail Traffic Controller, who was working the Napadogan subdivision from the Edmundston Rail Traffic Control Centre from desk "F". In response Mr. Bennett, believing that Extra Track Unit RC 75762 was at signal 02 at Pacific Junction, issued Rule 566 authority number l452 to Extra Track Unit RC 75762 to use the main track between signal 02 at Pacific Junction and signal 78 at Lutesville West.

During the course of repetition of the authority, as required by regulation, the error as to the exact location of Extra Track Unit RC 75762 was revealed to Mr. Bennett. At the same time he realized that signal l2 was not under his control but under that of Mr. Boucher at desk "F" at the Edmundston Rail Traffic Control Centre. He accordingly arranged with Mr. Boucher to block signal l2 so that he might be in a position to issue authority to protect the track between signal l2 and signal 02 as requested by Conductor Leblanc. Mr. Bennett then issued Rule 566 authority number l453 in furtherance of this objective. He did not, however, cancel erroneous Rule 566 authority number l452, leaving Conductor Leblanc with the impression that he had authority to proceed from Pacific Junction West to Lutesville West, although the only valid authority was one permitting for protected passage from signal l2 to signal 02, Pacific Junction. In the result Conductor Leblanc proceeded from Pacific Junction West to signal 78, Lutesville West, without valid authority, due in large measure to the confusion created by Mr. Bennett's neglect to cancel Rule 566 authority number l452 in accordance with C.R.O.R. rules.

There followed a series of six further rule violations on the part of Mr. Bennett, all of which flowed from his failure to cancel Rule 566 authority number l452, but which are indicative of a lack of attention and concentration. By way of example, Mr. Bennett, in issuing Rule 566 authority to Conductor Leblanc to proceed from west switch Lutesville (signal 78) eastward towards the east switch at Lutesville, used authority number l453 which was a duplication of an authority number already issued and contrary to C.R.O.R. rules. Similarly, lack of concentration is indicated in the repetition of orders where, for example, Extra Track Unit RC 75762 East was incorrectly described by failure to include the word "East" in the description and with Mr. Bennett, rather than cancelling the order given as it was in error, simply adding the word "East" to his office copy.

The violations of C.R.O.R. rules referred to in the Joint Statement of Issue are not denied. The Union contends, rather, that the violations were the result of the Company's failure to adequately train and familiarize Mr. Bennett in Centralized Traffic Control methods and as regards the Gort subdivision to which he was newly introduced. In this regard the Union invokes the Company's corrective disciplinary action program, as amended on May l5, l987, which states in part:

"If on examination, the reasons for failure to maintain an acceptable level of performance indicates a Company responsibility to provide training, instruction, or direction, necessary corrective action should be taken at Company expense. In cases where the responsibility rests solely with the Company no reproach attaches to the employee."

The Union points out that Mr. Bennett was first qualified as a Rail Traffic Controller and assigned at the Rail Traffic Control Centre at St. John's, Newfoundland on January l4, l985, where he worked until the fall of l988 when he was transferred to the Rail Traffic Control System in Moncton. His experience in Newfoundland was on a control system known as Train Order Territory which is very different than the control system in place in the Gort subdivision. From May 3, l989 to October 22, l990, Mr. Bennett was off work on medical leave due to a back injury and it was during this period that a new set of rules and regulations was put into effect by the Company. Subsequent to October 22, l990, Mr. Bennett was assigned to work the Newcastle subdivision which is controlled by a system known as Computer Assisted Manual Block System (C.A.M.B.S.) which again is different from Centralized Traffic Control at the Gort subdivision. For the Union, Mr. Bennett's experience following his return to work on October 22, l990, consisted of approximately ten or eleven shifts on Centralized Traffic Control territory, as well as "sit-in" for five shifts, prior to assuming his responsibilities at desk "D" in the Moncton Rail Traffic Control Centre. It was for that reason, explains the Union, that Mr. Bennett indicated to Mr. Guitard, Chief Rail Traffic Controller in the territory, that he felt that he was not ready to work the Centralized Traffic Control territory alone at the time.

While the argument of the Union might have merit in some other context, it falls short of explaining the rule violations of Mr. Bennett in this case. Mr. Bennett was not a newly engaged Rail Traffic Controller without experience. He was first engaged by the Company on July 27, l965, and had worked for many years as an Operator. He gained extensive experience as a Rail Traffic Controller over a period of some three and one-half years following his promotion to the position of Rail Traffic Controller on January l4, l985. He had undergone considerable training, both in l983 and l985, training which included Centralized Traffic Control systems. He had been extended numerous familiarization tours over the territories where he had worked, including the Gort subdivision which he controlled.

The rule violations which have been identified are, with one possible exception, unrelated to Centralized Traffic Control. They are rule violations which a Rail Traffic Controller possessing Mr. Bennett's background, training and experience, should not have committed. There could be no excuse for his failure to cancel an erroneous Rule 566 authority, or for that matter, modify rather than cancel an order given in error (Extra Train Unit RC 75762 rather than Extra Train Unit RC 75762 East). Mr. Bennett knew the rules that were applicable and he knew that he had committed rule violations at the time. He acknowledged as much when confronted during the course of the investigation which followed. That Mr. Bennett committed these rule violations was due to a lack of attention and concentration on his part and not lack of training or familiarity with the territory under his jurisdiction.

It is no answer for the Union to say that the Company acknowledged that the rule violations in this case were due to lack of training of Mr. Bennett by subjecting him to further training upon his return to work following suspension. What did happen at that time is that the Company was prepared to qualify Mr. Bennett for a position of Rail Traffic Controller subject to some further training. This is far from admitting that the rule violations committed on February 5, 1991, were due lack of training. These rule violations, as the Arbitrator has indicated above, are quite unrelated to the issue of training and familiarization in Mr. Bennett's case, so that the Arbitrator has difficulty in taking issue with the Company's characterization of the rule violations when in its submission it states:

"The rule violations were not the result of a lack of knowledge, they were the result of an indolent manner and a blasé attitude on the part of Mr. Bennett in the execution of his duties. Mr. Bennett was fully qualified in all of the operating rules and simply had to exercise due diligence in the performance of his duties. He failed to do so."

Thus, in the final analysis, the Arbitrator must conclude that Mr. Bennett failed to lend to his responsibilities of February 5, 1991, the degree of attention and concentration that they required and it is this failure which is at the source of the greater part of the rule violations committed. All that remains to be decided, therefore, is whether the disciplinary measure imposed was too severe.

The Company has stressed the element of consequences of rule violations in the nature of the ones committed in this case in fashioning the appropriate measure of discipline to address such violations. Its object is to reduce, to the extent possible, situations of personnel or equipment on unprotected track. Such an objective can only be achieved through strict adherence to rules, so that the Company's policy has been to adopt measures to ensure such strict adherence. These measures include imposition of harsh discipline for rule violations, such as for example, a suspension of ninety days duration for what the Company regards as violation of cardinal rules.

The Arbitrator does not take issue with the Company's objectives in adopting a policy regarding discipline designed to reduce, to the extent possible, rule violations. Nor can the Arbitrator ignore strong suggestions in the evidence that if Mr. Bennett had been concentrating on what he was doing and had given proper attention to his responsibilities, the rule violations would not have occurred. And there are other elements associated with other rule violations committed by Mr. Bennett during the same workshift which also reflect negatively upon the degree of concentration and attention that he was providing to his duties at the time. In the result the Arbitrator agrees with the Company that it is a matter of attitude, as much as rule violations, that must be addressed when selecting the proper measure of discipline to address Mr. Bennett's conduct in this case.

The suspension of ninety working days, without pay, results from a Company Policy, unilaterally adopted and introduced to address rule violations of the type committed by Mr. Bennett generally. The Arbitrator, however, would have difficulty in confirming a disciplinary sanction in any particular case simply because the Company has introduced such sanction as a matter of policy to deal with a particular infraction where he believes that that sanction is unduly severe for the particular case with which he has been called upon to deal. To be sure, Mr. Bennett's failure to have cancelled the Rule 566 authority erroneously issued could have resulted in serious consequences. In this case Conductor Leblanc, in the confusion that followed Mr. Bennett's error, allowed his equipment to proceed onto unprotected track. But Conductor Leblanc knew full well that Rule 566 authority number l452 was no longer applicable despite Mr. Bennett's error and should not have proceeded onto the unprotected track. This factor should serve to diminish the gravity of Mr. Bennett's rule violation at the level of disciplinary sanction. Moreover, all of the violations identified flow from and are associated with a single rule violation in a particular set of circumstances. At the same time, there is nothing in Mr. Bennett's record that has been placed into evidence that might operate to justify imposition of a disciplinary sanction as severe as the one imposed.

For these reasons the Arbitrator believes that intervention is warranted to reduce the measure of discipline imposed upon Mr. Bennett for his misdeeds. Taking into account the Company's objectives which the Arbitrator would endorse, the rule violations and the potentially serious consequences that they carry, the fact that the sanction imposed should be designed to address a matter of attitude and Mr. Bennett's long service, the Arbitrator is of the view that the disciplinary suspension of ninety days imposed by the Company was excessive and that one of forty-five days would have been more appropriate for the circumstances. The decision of the Arbitrator, therefore, will be to reduce the disciplinary sanction applied from ninety days to forty-five days.

For the foregoing reasons, the grievance is maintained in part; the disciplinary suspension, without pay, imposed upon Mr. Bennett for rule violations committed during the course of his workshift of February 5, 1991, is reduced to a disciplinary suspension, without pay, of forty-five days; the Company is ordered to compensate Mr. Bennett for wages lost to him in consequence of the Company's decision beyond what he would have lost had his suspension been limited to forty-five days without pay in the initial instance.

The Arbitrator retains jurisdiction for the purpose of fixing the compensation above ordered and will reconvene at the instance of either of the parties for that purpose in the event that they are unable to make such determination on their own.

MONTREAL, September l3, l994

(signed) HARVEY FRUMKIN

Arbitrator