ah343

 

IN THE MATTER OF AN ARBITRATION

 

 

B E T W E E N :

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

- a n d -

UNITED TRANSPORTATION UNION

(the "Union")

 

GRIEVANCE OF YARD FOREMAN A.B. HARPELL

 

 

ARBITRATOR : Michel G. Picher

 

APPEARING FOR

THE COMPANY : K. Hall - Labour Relations Officer, Edmonton

G.C. Blundell - Manager Labour Relations, Edmonton

G. Laidlaw - Labour Relations Officer

R. Vallière - Assistant Superintendent, Calgary

B. Dick - Equipment Supervisor, Calgary

 

APPEARING FOR

THE UNION : Mel G. Eldridge - Vice-General Chairperson

John W. Armstrong - General Chairperson

A.B. Harpell - Grievor

 

 

 

 

A hearing in this matter was held in Edmonton on October 1, 1994.

 

 

 

 

A W A R D

The facts giving rise to the dispute and the issues are summarized in a joint statement of issue filed at the hearing, which reads as follows :

 

Dispute

Appeal of thirty (30) demerits assessed Yard Foreman A.B. Harpell of Calgary, Alberta for violation of General Operating Instructions Section 6.8, Item 1, paragraph C resulting in damage to customerís building and injury to non-Company employees and appeal of Yard Foreman Harpellís resultant discharge for accumulation of demerits.

Joint Statement of Issue

Mr. Harpell was the Yard Foreman on the 0800 Yard assignment on January 24, 1994 at Sarcee Yard in Calgary. He was responsible for performing a running switch which resulted in a railway freight car smashing through the warehouse door of Federated Co-op, injuring two employees of Hussman Refrigeration who were working on the platform adjacent to the warehouse door.

Following an investigation Mr. Harpell was assessed 30 demerits for his responsibility in the accident, putting his total of demerits at seventy-five (75), and he was subsequently discharged on February 21, 1994 for accumulation of demerits.

The Union contends that the discipline was too severe and seeks Mr. Harpellís reinstatement with full benefits and that he be made whole.

The Company has denied the appeal.

 

The facts before the arbitrator disclose that on January 24, 1994 Mr. Harpell directed his crew in the performance of a running switch. As planned, the move would involve the switching of a loaded freight car into an industrial spur on a track which leads to the warehouse door of Federated Co-op. It is common ground that the Co-op warehouse was located at the bottom of a downgrade at the

 

 

 

end of the spur. When the freight car, moving freely with Mr. Harpell mounted on it to control its hand brake, cleared switch PO-20 and entered the spur, the hand brake was not in fact in operating order. The car gained speed on the downhill grade, and crashed through the doors of the warehouse building, coming to a stop only well inside the structure. The doors were constructed of heavy metal, and serious injuries resulted to members of a crew of workmen then operating inside the warehouse, in proximity to the doors. One of the employees suffered a head injury which was nearly fatal. Mr. Harpell jumped clear of the freight car before it struck the doors and was not injured.

It is not disputed that the car movement orchestrated by Mr. Harpell was in violation of General Operating Instructions Section 6.8, Item I, paragraph C which is as follows :

SWITCHING INSTRUCTIONS

(1) Brakes in Service

(c) Air Brakes must be in service on all cars when switching industrial tracks where there are gates or doors to be opened and on any other tracks with a descending grade towards gates or doors.

The rule requires a car entering an industrial track with gates or doors to be connected to a locomotive and its air brake system, for obvious reasons of safety.

The Union submits that the grievor and his crew had executed the same switch in a like manner many times in the past, without any problem or incident. It submits, in effect, that the faulty hand brake on the freight car, which originated with a U.S. railroad, was the cause of the accident and that the grievor was following a procedure to which employees had become accustomed.

The arbitrator cannot accept that submission. The evidence and representations before me do not support the inference that the Company knew or acquiesced in the practice which Mr. Harpell authorized on the day in question. At most, there is a suggestion that on one occasion a supervisor was present when a similar manoeuvre was made, when nothing was said. With respect, the arbitrator cannot convert a single incident or that kind into an authoritative practice or acquiescence on the part of the Company. The fact that a supervisor overlooks a rules violation on one occasion does not, of itself, establish general acquiescence or a practice of laxity on the part of management. That is

 

 

 

particularly true where, as in the instant case, the rule in question is clear and categorical, and is obviously directed to the safe operation of Company equipment in an obviously hazardous situation. The arbitrator can give little weight to the Unionís argument, which is tantamount to saying that it was not inappropriate for Mr. Harpell and his crew to violate the rule because they had done so on a regular basis before. At best, that argument only serves to establish that on prior occasions they were fortunate to escape the very consequences which the rule was designed to protect against.

Having joined the Company in June of 1988, Mr. Harpell is not a long-service employee. He was previously disciplined for a rules violation in July of 1992 and, at the date of the incident giving rise to this grievance, his disciplinary record stood at 45 demerits. The violation of the rule, of which he admits he was aware, resulted in costly property and equipment damage, and serious personal injuries. It is only by good fortune that fatalities did not result. Switching a loaded freight car onto a downhill spur with gates or doors, without the protection of air brakes, is a serious violation of a rule obviously intended to ensure safety in a dangerous situation. In the arbitratorís view, the assessment of 30 demerits in the circumstances was within the reasonable range of disciplinary penalty, and should not be disturbed.

For the foregoing reasons, the grievance must be dismissed.

DATED at Toronto this 6th day of October, 1994.

 

 

 

 

_____________________________

Michel G. Picher - Arbitrator