AH – 507
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
RE: GRIEVANCE OF MARCEL MANTHA
Sole Arbitrator: Michel G. Picher
Appearing For The Brotherhood:
J. Shields – Counsel, Ottawa
J. Tofflemire – General Chairman, Oakville
D. Dumas – Legislative Representative, Ottawa
M. Mantha – Grievor
Appearing For The Corporation:
E. J. Houlihan – Senior Manager, Labour Relations, Montreal
M. Bastien – Labour Relations Officer, Montreal
Dr. Pigeon – Chief Medical Officer, Montreal
Y. Samson – Witness
Appearing For The Observer – UTU:
W. G. Scarrow – Sr. Vice-President, UTU, Ottawa
Appearing For The Observer – CNR:
J. Provonost – Counsel, Montreal
F. O’Neill – Labour Relations Associate, Toronto
P. Bourque – Human Resources Associate, Toronto
A hearing in this matter was held in Montreal on Monday, 18 December, 2000.
The issue in this arbitration is whether Conductor M. Mantha was improperly denied access to locomotive engineer training. The Brotherhood maintains that Mr. Mantha, who suffers from a physical disability, was wrongfully deprived a proper assessment and reasonable accommodation for his disability. The Corporation submits that the disability suffered by Mr. Mantha takes him outside the bona fide occupational requirements for the position of locomotive engineer, particularly in light of the new duties and responsibilities of that position since the New Era of Passenger Operations (NEPO) initiative.
The facts are not in dispute. The grievor is a long service employee with an excellent working background whose career in the railway industry began in 1972, with CN. Effective July 1, 1998 his position of VIA conductor, like all others, was abolished. From among the options then available to him he first chose training as a locomotive engineer with VIA Rail. Mr. Mantha was denied access to locomotive engineer training by reason of a chronic injury to his right knee and resulting restrictions in his mobility. It is common ground that Mr. Mantha had sufficient seniority to return to the service of CN, which he then did. It appears that he has not in fact been redeployed to active service, but has been paid his wages by CN pending the outcome of the instant dispute.
The Corporation called two witnesses in support of its position that Mr. Mantha’s physical disability disqualifies him from work as a locomotive engineer, and that he cannot be accommodated within that position short of undue hardship to the employer. The Corporation’s Chief Medical Officer, Dr. Marcel Pigeon, gave evidence with respect to a medical examination and interview which he conducted with Mr. Mantha in August of 1998. His evidence establishes that the condition of the grievor’s right knee, apparently incurred in one or more work-related accidents, is characterized as either chondromalasia or osteoarthritis of the patella. According to Dr. Pigeon the grievor had a visible “painful limp” and indicated that he does feel pain in his right knee when walking. His report to Dr. Pigeon in that regard is consistent with his submission to the Workers’ Compensation Board, made some two years prior in 1996, in his application for a non-economic loss benefit.
It is not disputed that the grievor has severe limitations in his ability to walk, particularly on uneven ground, or to engage in climbing or squatting. His lack of mobility would also appear to impact his ability to perform lifting. Dr. Pigeon’s evidence discloses that he was asked by the Corporation to assess the grievor as though he were a new applicant for work as a locomotive engineer. Having regard to the physical limitations of Mr. Mantha with respect to his general mobility, given his knowledge of the job requirements for the position, Dr. Pigeon formed the opinion that he was not physically fit to work as a locomotive engineer.
Evidence of the duties and the responsibilities of locomotive engineers in the service of VIA following the reorganization of running trades services in July of 1998 was given by retired Manager Yvon Samson. According to his testimony, which the Arbitrator accepts as fair and accurate, the physical obligations of the locomotive engineer’s position have increased substantially since July of 1998, when the positions of conductor and assistant conductor were eliminated from the Corporation’s trains. The only running trades employees on VIA passenger trains as of that date are the two locomotive engineers. Certain of their duties now encompass duties previously performed by the conductor and assistant conductor. These would include duties comprising a significant range of physical activity, including climbing down from the locomotive cab to throw switches, loading and unloading baggage at various station stops on trains with a baggage car and detraining onto the platform to direct a second stop or the spotting of a train where the train is longer that the platform. Also significant among the duties of locomotive engineers are trouble-shooting functions in relation to locomotive and passenger car equipment. Mr. Samson gave the example of a wheel hot box, apparently detected through a monitor in the locomotive cab. In such a circumstance a locomotive engineer is required to crawl under the equipment to inspect the wheel bearings. He relates that there are other occasions, such as checks of the airbrake system, or other equipment which might also require a locomotive engineer to move in restricted spaces underneath the locomotive or passenger cars.
Additionally, Mr. Samson gave evidence of other safety related aspects of the locomotive engineer’s duties. Among them is the obligation, in certain circumstances, for both locomotive engineers to leave their stationary or disabled train and walk 3,000 yards in either direction to post warning flags for other train movements, the purpose of which is to avoid a collision. He also relates that where there are unforeseen events, such as a level crossing collision, or a derailment involving passenger injury, locomotive engineers now have a primary responsibility to assist the injured and take steps to deal with any resulting emergency.
The parties are not disagreed as to the law which governs the grievor’s rights. Both the Corporation and the Brotherhood make reference to the decision of the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees Union  3 S.C.R. (3). As that case establishes, it is for the Corporation to show that its work standards are rationally connected to the performance of the job in question, that the standard has been adopted in an honest and good faith manner that it is necessary to the fulfilment of a work related purpose, and that it is reasonably necessary to the accomplishment of that purpose. In a case such as this it is the obligation of the employer to demonstrate that it is not possible to accommodate the individual with a disability without undue hardship.
I am satisfied that in the instant case those principles have been fairly applied by the Corporation, and that it is justified in its conclusion, firstly that the job of locomotive engineer requires a substantial degree of physical mobility, beyond that possessed by Mr. Mantha, and that it is not possible to reasonably accommodate him in the circumstances. That conclusion is based in substantial part on the fact that since July of 1998 the two locomotive engineers on a passenger train are the only running trades employees responsible for its operation. The need to move freely up and down ladders, to squat, kneel and crawl under train equipment, to physically handle switches, to load and off-load baggage and, perhaps most crucially, to be able in an emergency to walk a distance of 3,000 yards on the irregular ground of rail ballast to perform safety flagging, are not duties which can be performed by Mr. Mantha. Nor are they duties which can be significantly adjusted, or in all circumstances assigned to others.
If the duties of a locomotive engineer involved little more than sitting at the controls of a locomotive, the grievor’s case might be compelling. However there are duties, critically tied to safety, which are also within the core functions of the position as it now exists in VIA. In the transportation of the travelling public, safety is a paramount consideration. That principle was described as follows in CROA 1585, a case which reviewed a considerable amount of jurisprudence dealing with the duty of accommodation. Referring to the decision of a human rights adjudicator considering the decision of the Supreme Court of Canada in Ontario Human Rights Commission v. Burrough of Etobicoke (1982) 132 D.L.R. (3rd) 14 (S.C.C.) the Arbitrator noted:
Applying those general principles, the Tribunal concluded that the complaint could not succeed. Assessing the case on an individual basis, it was found, as expressed in the Etobicoke case, that even a “very low” threat to public safety justified a disability-based restriction. …
The grievor was able to function for some years as an on-board conductor, with certain modifications to accommodate of his disability. It must be stressed that he then worked as part of a minimum three or four person running crew. As noted above, that situation no longer exists. All running duties, including primary responsibility for the safety of a train, now devolve entirely upon the two locomotive engineers. I am satisfied that reasonable physical mobility on the part of those employees is vital to the safe operation of the train, and does constitute a bona fide occupational requirement for the position. That standard has, in my opinion, been adopted reasonably and in good faith by the employer, is rationally connected to the performance of the job and to the work related obligations of the persons who operate as locomotive engineers. To place a person with a serious mobility restriction into those duties and responsibilities does, as the Corporation submits, involve a compromise of safety which would, in my view, constitute undue hardship to the employer.
Obviously the above conclusions do not reflect upon the quality of Mr. Mantha as a railroader who commands great respect. It is common ground that he has given long and distinguished service to the Corporation, as well as to CN. Moreover, the conclusions herein are obviously without prejudice to such rights as he retains in respect of his continued employment by CN pursuant to the Special Agreement between the Corporation, CN and the United Transportation Union, which represents Mr. Mantha in his employment with CN.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Toronto this 20th day of December 2000.
Michel G. Picher