ARBITRATION AWARD

(THE COMPANY)

AND

(THE UNION)

ARBITRATOR: Harvey Frumkin

APPEARING FOR THE COMPANY: R. Bateman

Human Resources Officer

P.E. Marquis

Labour Relations Officer

R. Morissette

Assistant Manager

Rail Traffic Control Centre

APPEARING FOR THE UNION: Alan Owens

National President

R.C.T.C.

Philippe Wojtowiez

System Chairman

Frank Swenor

Local Chair

A hearing of this matter was held at Toronto on January 20, l995.

This is a grievance against the dismissal of Rail Traffic Controller R.C. Wearing of Toronto, Ontario, effective October 30, 1992, for her alleged inability to safely and consistently perform the duties of a Rail Traffic Controller. The Joint Statement of Issue submitted by the parties is to the following effect:

DISPUTE:

The grievance arises out of the following facts and circumstances. Ms. Wearing joined the Company as a student operator on April 29, 1985. On September 4, 1989, she was promoted to the position of Rail Traffic Controller. In conjunction with the promotion Ms. Wearing was extended standard training following which she was deemed qualified to assume the position of Rail Traffic Controller.

At the time of the dismissal Ms. Wearing had accumulated seven and one-half years of service with the Company, save for a period of eight months during which Ms. Wearing was under restriction as a result of discipline. The restriction came to term effective June 6, 1992, when Ms. Wearing was reinstated as a Relief Rail Traffic Controller at the Rail Traffic Control Centre, Toronto. The Company presented to Ms. Wearing the following letter at the time:

"Date: June l0th, 1992

Our File: Wearing R.C., P.I.N. 186484

Ms. R.C. Wearing

Relief Rail Traffic Controller

Toronto, Ont.

(s) R.F. Morissette"

On October 27, 1992, Ms. Wearing reported for her workshift which was to commence at 2300 hours and extend until 0730 hours on October 28, 1992. She was assigned to third trick "SO" RTC with responsibility to control movements in territory which included the Grimsby Subdivision at Clifton. The mode of operation included Occupancy Control System/Automatic Block Signal System under which OCS clearance is required for equipment to occupy the main track in territories designated in the Timetable or Special Instructions. OCS clearance, once issued, will operate to prevent opposing movement onto the track for which clearance has issued.

On October 28, 1992, at 0018 hours, the Niagara Falls Yardmaster contacted Ms. Wearing who was then on duty. The Yardmaster inquired as to whether an OCS clearance was required to wye two cars at Clifton. The intended operation would involve yard movement onto OCS/ABS limits at Signal 28N Clifton on the Grimsby Subdivision.

Canadian Railway Operating Rules (CROR), Rule 81, paragraph a, provides in part:

The rule above-cited required OCS clearance for the intended movement in question. That such clearance is required is not at issue. However, a transcript of the communication between the Yardmaster and Ms. Wearing demonstrates that the latter was uncertain as to whether the circumstances of the operation called for clearance. In the final analysis Ms. Wearing, although seemingly unsure of her position, advised the Yardmaster that no clearance was necessary.

At 0110 hours on October 28, 1992, Ms. Wearing reported sick to Chief Rail Traffic Controller Anderson and requested relief. Ms. Wearing was relieved at 0130 hours and control of the desk to which she was assigned was transferred to RTC M. McNeely. At the time Ms. Wearing advised RTC McNeely that a wye operation would be taking place at Clifton during the shift.

RTC McNeely, aware that a yard movement involving a wye operation was intended at Clifton, observed that OSC clearance for that operation had not issued, notwithstanding that the operation would include movement into OCS territory. Accordingly, at 0200 hours he sought advice of the Chief Rail Traffic Controller on the matter. He then issued the required clearance to the Niagara Falls Yardmaster so that any rule violation that may otherwise have resulted was avoided.

The matter came to the attention of Ms. Wearing's superiors and an investigation ensued. Following that investigation the Company concluded that Ms. Wearing had relayed erroneous information to the Niagara Falls Yardmaster which could have resulted in a rule violation and serious consequences. Given the incident and the work record of Ms. Wearing the Company reached the conclusion that Ms. Wearing was unable to safely and consistently perform the duties of a Rail Traffic Controller and she was dismissed.

The OCS clearance procedure is a basic and essential means by which the Rail Traffic Controller controls movements within OCS limits. The Rail Traffic Controller must be very well acquainted with clearance rules since the incumbent in that position assumes ultimate responsibility for safe and secure movement of equipment and personnel within these limits. Ms. Wearing should have been well acquainted with CROR Rule 81a and should have known that OCS clearance was required for the wye procedure identified by the Niagara Falls Yardmaster at Clifton, given that equipment would enter OCS limits as part of the operation. At the very least, if Ms. Wearing was uncertain as to whether OCS clearance was required for the operation, it would have been her duty to conduct the necessary inquiry to determine whether such a clearance was required and then to have advised the Yardmaster accordingly.

Clearly, Ms. Wearing did not bring to her position of Rail Traffic Controller during the workshift in question the degree of competence, attentiveness and responsibility that it demanded. As Rail Traffic Controller she bore responsibility for controlling movements within the territory entrusted to her and to ensure that the necessary protection was afforded wherever that protection was required. Hers is a very responsible position which demands a high standard of competence, reliability and attentiveness, given the serious consequences that can result when rules and regulations designed with safety and security in mind are not strictly adhered to.

The performance of Ms. Wearing during her workshift of October 27/28, 1992, must be contrasted with that of RTC McNeely who knew at once that OCS clearance was required for the intended movement at Clifton and, given that no such clearance had issued, immediately inquired as to whether or why such a clearance was unnecessary. This intervention resulted in the issuance of the necessary clearance and the avoidance of an important rule violation and potential for disaster.

Ms. Wearing's work record to the point of the incident of October 27/28, 1992, was far from exemplary. It contained the following entries:

Moreover, on November 9, 1992, Ms. Wearing was assessed 20 demerits for what the Company considered as her unacceptable work record over the period August 1, 1992, to October 30, 1992.

Apart from the letter of June 10, 1992 (supra) communicated to Ms. Wearing in which she was advised that her work performance would be "closely monitored" and of "the importance in coming to work prepared, well rested and with your mind on the job", she received and acknowledged the following advice on October 4, 1991, in response to earlier rule violations:

"4 October 1991

Ms. R.C. Wearing

PIN #186484

Rail Traffic Control Centre

Toronto, Ontario

For the Company

Although the incident which provoked the discharge did not result in a rule violation, Ms. Wearing did relay incorrect information to the Niagara Falls Yardmaster concerning the application of a rule involving movement onto track which required OCS clearance. But for the intervention of RTC McNeely, a rule violation may very well have occurred with potential for serious consequences. In effect, Ms. Wearing, as Rail Traffic Controller, was performing a vital function when the Yardmaster directed his inquiry to her and it was her responsibility to ensure that correct instructions issued. She failed in this responsibility, a failure which, given the high standard of professionalism, competence and attentiveness which must attach to the position which she occupied, surely sufficed to give the Company grave cause for concern.

Thus the Arbitrator cannot take issue with the manner in which the Company responded to the incident. It was confronted with a Rail Traffic Controller who had committed serious rule violations in the past in the performance of her duties, had undergone a restriction period of eight months as a result of these violations during which she received extensive training and exposure to different facets of the railway traffic control system. She had been apprised as recently as June 10, 1992, of precisely what the Company expected of her. She was experiencing difficulty in providing regular attendance and, it would seem, attending at work prepared, well rested and with her mind on the job. The final incident when viewed in association with Ms. Wearing's work record, provided a reasonable basis for concluding, as the Company did, that it could not rely upon Ms. Wearing to safely and consistently perform the duties of a Rail Traffic Controller.

While acknowledging that the information relayed by Ms. Wearing to the Niagara Falls Yardmaster was incorrect, the Union's position is that the Company's reaction was exaggerated and inappropriate and that discharge was disproportionate to the incident and all of the circumstances. It underscores that other employees on duty and involved during the workshift in question were likewise uncertain as to whether OCS clearance was required for the particular operation, that no actual rule violation occurred and that Ms. Wearing's experience level, familiarity with the territory and health status were not considered.

That the Niagara Falls Yardmaster and the crew assigned to the operation were uncertain as to whether OCS clearance was required for the intended operation does not excuse Ms. Wearing from the manner in which she conducted her exchange with the Yardmaster during the workshift in question. As Rail Traffic Controller she bore ultimate responsibility for the safety of the movement within the territory assigned to her and for proper application of CROR rules. In the instant case the Yardmaster and crew deferred to her experience and expertise and if she was uncertain as to whether OCS clearance was required for the operation, (as the transcript of her conversation with the Yardmaster amply demonstrated), it would have been her duty to properly inform herself. Not to have done so was patently irresponsible.

Nor can the fact that no rule violation actually occurred excuse Ms. Wearing's handling of the communication between herself and the Yardmaster. Her instruction to the Yardmaster, absent further intervention, would have meant that the crew would have proceeded with the operation without seeking the required clearance. Ms. Wearing, in effect, relayed information which would have provided a basis for a violation of a rule resulting in penetration of equipment into OCS territory without clearance and all that that implied in terms of potential for accident. It is no answer for her to say that, but for the fact that she was required to book off sick when she did, she would have communicated the proper information to the Yardmaster in due time given her subsequent realization that the information initially relayed to him was incorrect. If such were the case, not to have done so prior to the transfer by her of control of her desk to Rail Traffic Controller McNeely, or at least not to have advised the latter of her exchange with the Yardmaster so that he might correct the situation, would have been the height of irresponsibility.

Union arguments based upon the Grievor's lack of experience or familiarity with the territory assigned to her are equally wanting. The Grievor received standard training when she was initially qualified as a Rail Traffic Controller and had been extended more copious retraining during the period that she was working under restriction. As well, whether she was fully familiar with the territory over which she assumed responsibility or not, she should surely have known that the operation in question required OCS clearance or, as the Arbitrator has pointed out above, if she was uncertain about the need for such clearance, to have made it her business to resolve that uncertainty and relay correct information.

This brings the Arbitrator to the Union's final contention concerning Ms. Wearing's state of health. Ms. Wearing was not well during the workshift in question. She had indicated as much to a colleague (Rail Traffic Controller Boudreault) early in her workshift. She was ultimately required to book sick and seek relief approximately one hour and forty minutes into her workshift. From all appearances the Grievor should not have assumed duty as a Rail Traffic Controller on the night in question. She had been experiencing difficulty with regular attendance at work over the preceding three months, absenting herself from assigned workshifts on no less than ten occasions. She was suffering from chronic neck and back pain and had recently contracted a kidney infection which required treatment at hospital.

Were there nothing else, this latter factor would, in the Arbitrator's opinion, constitute an important mitigating circumstance which would operate to lessen the gravity of what transpired on the night of October 27/28, 1992 for purposes of discipline. But Ms. Wearing's handling of her workshift that night does indicate quite clearly a degree of irresponsibility which is difficult to excuse when viewed in the light of her work record. As the Arbitrator has stated, the position of Rail Traffic Controller is a highly responsible one and can tolerate no less than a corresponding degree of care and attentiveness and sense of responsibility. Ms. Wearing's work record demonstrates that she had not brought to her position such a standard of performance and her conduct, notwithstanding that she was ill during her workshift, is but another example of this. If she was not in a position to assume her duties she should not have done so and if, as she contends, she had realized that she had relayed incorrect information to the Niagara Falls Yardmaster earlier during the course of her shift, she should have made sure that her replacement was apprised of that fact so that he might act accordingly.

Ms. Wearing had committed serious rule violations in the past. She had been subjected to a period of restriction and extensive retraining. That action was taken on October 4, 1991, in lieu of discharge. On June 10, 1992, in conjunction with the lifting of the restriction and her reinstatement as a Relief Rail Traffic Controller, she was advised that her work performance would be monitored. Given this background it is quite understandable that the manner in which she conducted her workshift on the night of October 27/28, 1992, served to undermine any confidence the Company may have had in her ability to satisfactorily discharge the duties of a Rail Traffic Controller to the required standard. This being the case, the Company felt that it would be compromising safety and security were it to permit Ms. Wearing to continue in her position and, in the circumstances, the Arbitrator cannot see that the Company's conclusion was in any way unreasonable or that intervention would be warranted.

The grievance is accordingly dismissed.

MONTREAL, January 27, l995

HARVEY FRUMKIN, Arbitrator