AD HOC 491: ZUEFELT, C.: DISCHARGE

AWARD

This arbitration concerns the discharge of Assistant Conductor C. Zuefelt. The Company alleges that Mr. Zuefelt’s conduct in leaving a main line switch improperly aligned on March 17, 2000 at Ingersoll, Ontario gave just cause for the termination of his services. As a result of his involvement in the incident, related in greater detail below, it assessed 60 demerits against him, the dismissable level under the Brown system of discipline, and terminated his services. The Union maintains that discharge was excessive in the circumstances. Although it does not deny some responsibility on the part of Assistant Conductor Zuefelt, it maintains that mitigating factors justify a lesser degree of penalty.

The positions of the parties are generally reflected in the Joint Statement of Issue, filed before the Arbitrator at the hearing, which reads as follows:

JOINT STATEMENT OF ISSUE:

On March 22, 2000 Mr. Zuefelt 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 Trainperson on assignment 583 at Ingersoll on March 17, 2000. As a result of this hearing Mr. Zuefelt’s record was assessed 60 demerits which subsequently resulted in his dismissal for the accumulation of 60 demerits.

It is the Union’s position that the discipline assessed is unwarranted and unprecedented and, at the very least, extremely excessive. The Union contends that there are mitigating circumstances which should be taken into consideration that would warrant the substitution of the discipline assessed to provide Trainman Zuefelt an avenue to be reinstated. We request that the demerits be reduced and Mr. Zuefelt be returned to service without loss of seniority or benefits and compensated lost wages.

The Company maintains its position and has declined the Union’s request.

On March 17, 2000 Mr. Zuefelt was the Assistant Conductor on Train 583, a road switcher assignment operating between Ingersoll West and Oxford on the Dundas Subdivision. The road switcher was responsible for picking up and delivering rail cars to various industrial sites in the area, including the Cami automobile plant near Ingersoll.

The CN main line in that segment of the Dundas Subdivision is double track territory and, at the location, is OCS (ABS) controlled for signalling purposes. While some segments of the Dundas Subdivision are under CTC control, sometimes referred to as “dark territory”, that was not the case at the location of the incident giving rise to the discipline at hand.

The Cami plant serviced by Train 583 is located to the south of the Company’s main line, and is accessible only by a portion of a separate line operated by the St. Lawrence and Hudson Railway. To access the plant the grievor’s train, which was working eastward, exited the south of the track of the Company’s main line at MP (mileage point) 57.99, and then onto interchange track DM91 which connected to the line of the St. Lawrence and Hudson Railway, to the south. The movement of the train from the Company’s main line across the interchange over the line of the St. Lawrence and Hudson Railway into the switching yards of the Cami plant proceeded without incident.

It is upon the return from the Cami plant to the Company’s main line through the switch at MP 57.99 that the grievor committed the error leading to his discharge. Upon its return from the Cami plant to the main line Train 583 was made up of 26 bi-level or tri-level automobile carrying cars. As the movement from the plant to the Company’s main line involved moving through a number of switches, it was agreed that Train Conductor J. C. Elliott would ride in the head end locomotive, and would throw the switches open to allow the passage of the train northward and, eventually, eastward on the Company’s main line. The plan involved the grievor, Assistant Conductor Zuefelt, riding on the last car of the movement, with the responsibility of closing and locking each of the switches once they had been fully cleared by the train. Consequently, when Train 583 reached the switch located at MP 57.99 of the Company’s main line, and had completed its movement eastward onto the main line, it was Mr. Zuefelt’s responsibility to reline the switch at that location for the main line. In other words, Mr. Zuefelt was to move the switch into a position to regularize the main line so that any other train moving in an easterly direction along the main line would not foul the switch or, in the case of a train moving westerly along the southern segment of the main line, would not be diverted inadvertently into interchange track DM91. Mr. Zuefelt’s obligation, therefore, was to line the main line switch in a straight direction, and to lock it in that position utilizing a padlock provided for that purpose.

It is common ground that Mr. Zuefelt failed to do so. By his own account, perhaps by reason of distraction relating to the passing of a westbound freight on the northern track of the main line, he failed to properly line and lock the switch at MP 57.99. It appears that Mr. Zuefelt gave a radio message to the head end crew indicating that he had in fact lined and locked the switch. As a result of that information his train proceeded eastwards to its next assignment.

Sometime after the departure of Train 583, VIA Train 78, which was eastbound to Toronto on the southern track of the main line received a “clear to stop” indication from a signal located at MP 60.00. That designation communicates to a train that it must be prepared to stop at the next signal. After a station stop in Ingersoll, Via Train 78 proceeded eastward to signal 584 at MP 58.40 where it became subject to a “stop and proceed” signal, a red indication advising the crew to stop and then proceed at restricted speed. Restricted speed implies the ability to stop the train’s movement within half the range of vision.

Proceeding in that manner the crew of VIA Train 78 saw that the switch at MP 57.99 was lined against through movements on the south track of the main line, and was in fact lined for movement to exchange track DM 91. The crew of Train 78 immediately contacted the rail traffic controller to advise of the irregularity and, following instructions to return the switch to its normal position for through movements on the main line, the VIA train proceeded without further incident to Paris West and thereafter to Toronto Union Station.

Shortly thereafter, in a telephone conversation with the rail traffic controller in the Toronto Rail Traffic Control Centre, the grievor advised that he believed that he had left the switch at MP 57.99 lined and locked for movement onto the exchange track, and against movement on the south track of the Dundas Subdivision main line. An investigation ensued, with the entire crew of Train 583 being removed from service pending discipline. As a result of the investigation the grievor was charged with having violated operating rule CROR 104 (b) and the provisions of Operating Bulletin GLD 962. Mr. Zuefelt was assessed 60 demerits, resulting in his termination. Conductor Elliott was given 45 demerits, which also resulted in his dismissal for the accumulation of demerits, in light of his prior record. Additionally, Engineman B.G. Brodhagen was assessed 30 demerits.

CROR 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.

Additionally, Operating Bulletin No. GLD 962, issued on May 19, 1999 reads, in part, as follows:

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 locomotive engineer must:

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

It is obvious that Rule 104 is of great importance to the safety of railway operations. A train moving at high speed on a main line being diverted unexpectedly onto another track involves a most dangerous situation. As a result a violation of CROR 104 has generally been acknowledged to be a cardinal rule violation deserving of extremely serious discipline. For example, as stressed in the Company’s presentation, an incident at Thamesville, Ontario, on April 23, 1999 involved a Via Train being diverted onto a crossover switch between the north and south main track while on route to Toronto. The violent movement and ensuing derailment of the train resulted in two fatalities to the engine crew of the VIA Train as well as injuries to a number of passengers, in addition to extensive property and equipment damage.

It may be noted that the Thamesville incident occurred in “dark territory” rather than OCS or block system territory, as is the case with the incident at hand. In OCS territory an improperly lined switch automatically triggers cautionary signals to any approaching train, allowing for a safe detection of the irregularity and the avoidance of any serious accident. However, the Company’s representative notes that in the case at hand, in the unlikely but nevertheless possible eventuality of a train moving over the main line in a westward direction, the same safety features might not operate.

The parties are not in disagreement that a violation of CROR Rule 104 (b) is a cardinal rule infraction deserving of a severe measure of discipline. The thrust of the Union’s position, however, is that the discharge of Assistant Conductor Zuefelt is virtually unprecedented in the industry as a disciplinary response for such a violation. The Union’s representative notes that Mr. Zuefelt has been employed for approximately 20 years by the Company, the last 16 of which have been in running service. During all of those 16 years Mr. Zuefelt has never previously been disciplined for any reason whatsoever. It is common ground that over his entire career Mr. Zuefelt was assessed only 10 demerits, arising from an infraction committed when he was working as an operator in 1984. Given what he characterizes as 16 years of exemplary service, and no history whatsoever of operating rules violations, the Union’s representative submits that the assessment of 60 demerits resulting in the outright discharge of Mr. Zuefelt for a first offence of this kind is indefensible.

The Company’s position is admittedly motivated by the seriousness of the CROR 104 infraction. It refers the Arbitrator to the incident at Thamesville as an example of the possible serious consequences of leaving a main line switch lined to another track. Stressing the cardinal nature of the rules violation committed by Mr. Zuefelt, the Company maintains that discharge was an appropriate response.

There is extensive jurisprudence within the industry with respect to discipline assessed against employees for violations of CROR Rule 104 and its predecessor, UCOR 104. The Arbitrator has reviewed all decisions registered in the Canadian Railway Office of Arbitration to gain an appreciation of the pattern of discipline which has emerged in relation to Rule 104 infractions over the years. It may be noted that that search, and the discussion that follows, are restricted to Rule 104 violations involving main line switches as opposed to switches in yards or on industrial spurs. The review of the cases generally sustains the submission of the Union’s representative to the effect that outright discharge for a Rule 104 violation, in the case of an employees with a relatively positive disciplinary record, is close to unprecedented.

Two cases appear to have involved the outright discharge of an employee with an unblemished record for a Rule 104 violation. The first is CROA 1198, an award of Arbitrator David H. Kates in a case heard on February 16, 1984. The facts there concerned an extra gang foreman employed by Canadian Pacific Limited and represented by the Brotherhood of Maintenance of Way Employees. While performing track maintenance work the foreman in question moved a number of cars from a storage track onto an immediately adjacent main track. In doing so the foreman instructed his crew to leave the siding switch open, anticipating that the crew would return shortly thereafter. While the foreman’s crew proceeded elsewhere to distribute equipment on the main line the foreman gave radio authorization to a passenger dayliner to proceed through his restricted work limits, including the location of the open switch. Unfortunately the dayliner proceeded at twice the permissible speed, and entered the storage track at 60 miles per hour, colliding with stationary tank cars on that track. Four passengers and the engineman of the dayliner were killed. Nine other passengers were injured and considerable property damage also resulted.

As can be seen, that incident involved two grave errors on the part of the maintenance foreman. Firstly, he deliberately and knowingly failed to line the storage track switch for the main line, an obvious violation of the rule. Secondly, he inadvertently authorized the movement of a passenger train into the area for which he was responsible, and where the open switch functioned as a virtual trap. Notwithstanding those facts, Arbitrator Kates noted that the excessive speed of the passenger train was a factor to be considered as aggravating in the circumstances. He also stressed that the track foreman in question had an unblemished employment record. In that circumstance the Arbitrator varied the discharge, directing the reinstatement of the employee concerned into a demoted position without foreman’s responsibilities.

A similar situation arose in CROA 1746. In that case, which involved the same company and union as CROA 1198, a machine operator was dismissed for failing to ensure that a main track switch was restored to its normal position after his crane passed through the switch to move from the main track to a back track. Because the switch was left open a train entered the storage track and collided with other equipment. In the result the grievor was discharged. The Arbitrator substituted a lesser penalty, reinstating the crane operator into employment without compensation or benefits. In coming to that conclusion the Arbitrator noted that the grievor had no prior discipline and that the switch in question had in fact been mishandled by another employee.

Significantly, the jurisprudence reveals that employers in the railway industry do not assess discharge as a normal response to a Rule 104 violation, although the assessment of demerits in that circumstance has sometimes led to discharge by reason of the accumulation of demerits. (See, e.g. CROA 1583, 2487, 2659). Thirty demerits has commonly been an employer response to a Rule 104 violation (CROA 1583, 2487, 2659) although one case reveals the assessment of 45 demerits, sustained at arbitration (CROA 3097) and 50 demerits reduced to 25 by the employer (CROA 353). On occasion demotion has been resorted to (CROA 1332) as well as suspensions of 30 days (CROA 2487), 60 days (CROA 3097) and 10 days, in adhoc award No. 305, a decision of Arbitrator LaCharité, involving BC Rail and the United Transportation Union Locals 1778 and 1923. In that case the penalty was reduced by the board of arbitration to a five day suspension.

What the Arbitrator’s review discloses is that employers themselves have imposed discharge in only two recorded cases within the thirty-five year jurisprudence of the CROA. In both of those awards the Rule 104 violation resulted in a collision, one of which involved fatalities. In no instance of a Rule 104 violation involving main line operations where no collision resulted has discharge been resorted to, other than in a case of demerit accumulation. On that basis the Arbitrator is compelled to agree with the Union’s representative in his submission that the discharge of Assistant Conductor Zuefelt, in the circumstances disclosed, is unprecedented. That is particularly so having regard to the grievor’s exemplary prior record. Discharges have, of course, been imposed where the accumulation of demerits placed the employee in a dismissable position. More typically, however, the penalty for such a violation has been the assessment of demerits in the range of 30 to 45, or a suspension generally in the range of 30 to 60 days.

In light of the treatment of Rule 104 violations historically, and even allowing for the understandable concern of the Company to bring a degree of deterrence to bear in the wake of incidents such as occurred at Thamesville, there are substantial reasons to conclude that the dismissal of Assistant Conductor Zuefelt was excessive in the circumstances. Firstly, as noted above, as a running trades employee of 16 years service he has never before incurred any discipline whatsoever. Secondly, the grievor was candid and forthright throughout the investigation, making no attempt to obscure or excuse his mistake. Additionally, the situation of hazard which his violation of the Rule created is qualitatively different from that which is disclosed in the Thamesville incident or in CROA 1198, because the switch at MP 57.99, the junction point between the main line and track DM91, is in territory governed by the block signalling system, which ensures signal warnings to trains approaching in the normal direction of traffic flow when a switch is left open. Indeed, as reflected in the facts related above, VIA Train 78 was alerted to an irregularity, was compelled to slow its speed and proceed cautiously, and eventually detected the open switch without incident. While all of these factors do not excuse the seriousness of the grievor’s error, they are, in my view, legitimately to be weighed in mitigation with respect to the appropriate disciplinary penalty.

In the Arbitrator’s view the assessment of 30 demerits might have been an appropriate disciplinary response to the infraction committed by Mr. Zuefelt. Given the gravity of the consequences which might otherwise have occurred, however, notwithstanding the grievor’s prior record, I do not consider this to be an appropriate case for compensation, as a suspension of sixty days would also not have been inappropriate.

For these reasons the grievance is allowed, in part. The Arbitrator directs that the grievor be reinstated forthwith, without loss of seniority and without compensation for wages and benefits lost, with his disciplinary record be cleared. The period from his removal from service to his reinstatement shall be recorded as a suspension for his violation of CROR 104. 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