AD HOC 490: ELLIOTT

AWARD

This arbitration concerns the assessment of 45 demerits against Conductor J.R. Elliott for a violation of CROR Rule 104 and operating bulletin GLD 962 at Ingersoll, Ontario on March 17, 2000. The nature of the dispute is reflected at the Joint Statement of Issue filed at the hearing which reads as follows:

JOINT STATEMENT OF ISSUE:

On March 22, 2000 Mr. Elliott was required to attend a formal employee statement in connection with the alleged violation of CROR 104 (b) and operating Bulletin GLD 962 dated May 19, 1999 while working as a Conductor on assignment 583 at Ingersoll on March 17, 2000. As a result of this hearing Mr. Elliott’s record was assessed 45 demerits which subsequently resulted in his dismissal for the accumulation of 60 demerits.

It is the Union’s position that Mr. Elliott complied with CROR 104(b) as well as operating bulletin GLD 962 and contends that the discipline is unwarranted and unjustified. The Union requests that the demerits be removed from the grievor’s record and that he be reinstated without loss of seniority or benefits and compensated for all monetary losses incurred.

The Company disagrees with the Union’s position and has declined the Union’s request.

At the time of the assessment of the 45 demerits which are the subject of this award, Mr. Elliott had 50 demerits outstanding on his disciplinary record. In the result, the total accumulation of 95 demerits brought him into a position in excess of the dismissable level of 60 demerits under the Brown system of discipline.

The facts of the incident at Ingersoll on March 17, 2000 are fully related in a companion award, issued this same date, in relation to the discipline assessed Assistant Conductor C. Zuefelt, who was also discharged. It is common ground that the train roadswitcher 583, under the direction of Conductor Elliott, returned to the eastbound main line after performing industrial switching at the Cami Plant in Ingersoll, late on the date in question. As the movement entered the main line Conductor Elliott opened the switch at MP 57.99 to allow his train to move from interchange track DM91 onto the eastbound main line. It was then the responsibility of Assistant Conductor Zuefelt, who was stationed on the last of the 26 cars of the consist, to close the main line switch once it was fully cleared by Train 583.

As noted in the Zuefelt award, the Assistant Conductor took one or two minutes before completing the operation he was supposed to perform, and was apparently distracted during that time, according to him in part by the passing of another freight train on the adjacent westbound track, and also by reason of some preoccupation with personal problems. In any event, Mr. Zuefelt failed to properly line the switch for the main line. He did, however, communicate by radio to Conductor Elliott, who was located in the locomotive, using words to the effect that the switch was lined and locked. Conductor Elliott relates that he was then occupied by paperwork, and there is a degree of uncertainty as to the precise nature of his verbal communication. It appears that he initially indicated to General Supervisor of Transportation D.W. Brohm that he did not verbally confirm to the Assistant Conductor an acknowledgement of Mr. Zuefelt’s radio communication that the switch was lined and locked. During the disciplinary investigation he responded that he felt he had acted properly stating “As I was doing my paperwork I gave my acknowledgement to the engineer, ‘Okay to go to DK80’”.

The discipline assessed against Mr. Elliott was for the violation of CROR 104(b) and operating bulletin GLD 962.

Rule 104(b) reads as follows:

104 (b) When directed by GBO, clearance, train order or special instructions, and protection has been provided against all affected trains or engines, a main track switch may be left lined and locked in the reversed position. When not so directed, it must not be left in the reversed position unless in charge of a switchtender or a crew member who must be in position to restore the switch to its normal position before it is fouled by a train or engine approaching on the main track.

Operating bulletin GLD 962, reissued May 19, 1999, reads as follows:

SUBJECT: RULE 104 – HAND OPERATED SWITCHES:

SPECIAL INSTRUCTION

Effective immediately the following Special Instruction to CROR 104 is applicable to all rules qualified employees on CN trackage governed by the Canadian Rail Operating Rules.

In OCS TERRITORY, unless permission is provided to leave a switch in reversed position as per Rule 104(b), the conductor and the locomotive engineer must:

i) before leaving a location where a main track switch as been used, confirm with each other that the switch has been left lined and locked in normal position.

In reflecting upon what occurred, the Arbitrator is troubled by both the wording of operating bulletin GLD 962 and by the grievor’s own account of what he believed to be his responsibility. On its face the operating bulletin would suggest, as applied to the fact situation at hand, that two individuals who are located within the cab of a locomotive are to “confirm with each other” that a switch at an entirely different location has been properly lined and locked. While extensive submissions were not received on this point, it appears to the Arbitrator at least arguable that the wording of operating bulletin GLD962 was drafted in contemplation of conductor-only operations. From a safety standpoint the rule makes sense, in my view, if in fact the conductor is on the ground at the location of the switch in question, and is required by the rule to confirm with the locomotive engineer that is properly lined and locked. The phrase “confirm with each other” would imply that the locomotive engineer is under an obligation to acknowledge the communication from the conductor. While it is, of course, true that in some circumstances two individuals within a locomotive cab may verbally confirm with each other such things as the aspect of approaching signals, in the context of Rule 104 it is questionable that any real safety is achieved when two individuals within a locomotive cab, who have no vision of the main line switch in question, purport to comply with CROR 104 by “confirming with each other” something of which they have no direct knowledge, save by the communication of a third crew member. It is, in any event, not necessary for the Arbitrator to make any determination with respect to the meaning of operating bulletin GLD 962, save to suggest it might be deserving of clarification, particularly as it would apply to other than conductor-only operations.

More fundamentally, when regard is had to the grievor’s conduct, there is reason for concern as to the quality of communication in which he was involved. Traditional radio protocol requires that when a radio communication is forwarded from one source to another, the receiving source should acknowledge the message back to the originating source. That, indeed, is a general requirement of radio communication in the railway industry, as reflected in CROR 123(c) which reads as follows:

123. VERIFICATION PROCEDURES

(c) When verbal instructions or information pertaining to a train or engine movement, are received by radio, such information must be repeated to the sender.

In the instant case, by Conductor’s Elliott’s own avowal, he did not acknowledge his Assistant Conductor’s communication as to the state of the main line switch back to the Assistant Conductor. With respect, I have great difficulty understanding how he could, in his own words, “acknowledge” anything to the locomotive engineer who was not the source of any communication to him. Conductor Elliott appears to believe that this role was merely to be a conduit of information, relaying Assistant Conductor’s Zuefelt’s communication to the locomotive engineer, without repeating or acknowledging anything back to Assistant Conductor Zuefelt. In so proceeding the grievor misconceived his obligation, and failed in his duty.

As should be apparent, the obligation to acknowledge radio communication back to its source is a safety measure of some importance. On the one hand it confirms to the transmitting source that the message has been properly received. On the other it involves the person receiving the message in a form of double check back to the originating source. In the case at hand, for example, if Conductor Elliott had repeated the communication back to Assistant Conductor Zuefelt, that very fact might have caused the Assistant Conductor to think more clearly and advert to the communication he had made, and more carefully to the actual state of the switch which was the subject of the communication. That, unfortunately, did not occur as Conductor Elliott appears to have felt himself bound only to speak to the locomotive engineer.

CROR 104 is a cardinal rule, the failure of which can have grave consequences (e.g. CROA 1198). On the whole the material would disclose to the Arbitrator that the grievor was materially involved in the failure to properly apply Rule 104 at the main line switch in question on March 17, 2000. Simply put, it was not enough for him to act only as a messenger between the Assistant Conductor and the Locomotive Engineer. By properly repeating the information provided to him by Mr. Zuefelt, in accordance with CROR 123(c), Conductor Elliott might have helped avert the violation of the Rule, and would, arguably, have conformed to the spirit and intention of operating bulletin GLD 962. Nor is it any excuse to suggest that the grievor was distracted by paperwork. By way of example, in CROA 2991 a conductor’s involvement with paperwork was rejected out of hand as an excuse for his failure to realize that his train had violated track occupancy limits by some three miles.

Given the grievor’s prior disciplinary record there can be little doubt that he arguably placed himself in a dismissable position by failing to follow proper radio verification procedures, thereby contributing to the violation of Rule 104. However, the infraction did not result in a collision, as reviewed in the arbitration award concerning Assistant Conductor Zuefelt. Suspension is not uncommonly resorted to as a form of discipline in such circumstances. Coupled with the fact that the primary responsibility for the incident resided in Assistant Conductor Zuefelt, there are mitigating factors which would justify substituting a lesser penalty, albeit a severe penalty short of discharge. On the whole, the Arbitrator is satisfied that it is appropriate to restore the grievor to employment subject to an extensive suspension.

The grievance is therefore allowed in part. The Arbitrator directs that Mr. Elliott be reinstated into employment forthwith, without loss of seniority, and without compensation for wages and benefits lost. His period out of service shall be recorded as a suspension for the violation of Rule 104 on March 17, 2000 and his disciplinary record shall stand at 50 demerits. I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this Award.

Dated at Toronto this 24^th day of May 2000.

(signed) MICHEL G. PICHER

ARBITRATOR