DATE : 04/7/95
PARTIES : CN CCROU
This is a grievance in relation to the assessment of 40 demerits against Conductor W. B. Brown of Jasper. The Company alleges that he violated U. C. O. R. Rule 292, failed to comply with General Operating Instructions, Item 3.4 and, lastly, failed to comply with U. C. O. R. Rule 266 in respect of events which occured on April 28, 1989. Having heard the submissions of the parties, I am satisfied that the discipline assessed against the grievor is excessive in the circumstances. It would appear that the 40 demerits assessed against Mr. Brown are motivated, at least in part, by the Company’s surmise that there was an attempt, on the part of the grievor, to involve himself in covering up the incident which occured. I will deal whit the issues in turn.
Firstly, there cannot, in my view, be any responsability laid upon Conductor Brown as regards the rule 292 violation. He was located in the caboose at the time it occured, had previously been advised by the front end crew that a signal was clear and had no reason to know or take any steps to prevent the violation in respect of the stop signal which occured. Similarly, I am not persuaded on the evidence before me that Mr. Brown can be held responsible for the violation of U. C. O. R. Rule 266 which occured when the engineer, apparently of his own initiative and without authorization from the dispatcher, iniated a reverse movement while Mr. Brown was walking from the caboose to the head end.
I have greater difficulty, however, with the suggestion that there was no violation of General Operating Instructions, Item 3.4 in the conduct of Mr. Brown disclosed in the evidence. It is clear that, as conductor in charge of the movement, Mr. Brown was responsible for ensuring that there was an emergency call placed on channel 1 at the time the train was placed in emergency. That, clearly, did not happen and, it would seem, that Mr. Brown and the locomotive engineer were both on channel 1 at the time. The locomotive engineer then went to channel 4 and it would seem that Mr. Brown assumed that he was going to enter in communication with the dispatcher. Even from the perspective of Mr. Brown, at the time, there is no indication that he concerned himself with the fact the emergency call had not been made on channel 1 as required by the operating instructions. On that basis, I am satisfied that he was deserving of some discipline, nor can I dispute entirely the Company’s position that Mr. Brown should have, at the least, made some better inquiry of the locomotive engineer as to why his train was placed into emergency before simply leaving the caboose and apparently proceeding towards the head end. I will, for the purposes of this matter, characterize that as a serious error of judgement, on his part, and the failure to oversee his movement in a thorough way, as required.
On the whole, therefore, I am satisfied that there was responsability on the part of Mr. Brown which was deserving of discipline but I must accept the submission of the Union that primary responsability for the Rule 292 and the Rule 296 violations reside in the locomotive engineer. The other items discussed, however, do involve responsability on the part of Mr. Brown. In the result, I am satisfied that a reduction of this penalty to 20 demerits is appropriate and his disciplinary record shall be amended, accordingly.
DATED at Toronto this 4th day of July, 1995.
Michel G. Picher - Arbitrator