AH567

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
SYSTEM COUNCIL NO. 11

(the “Union”)

RE: DISCHARGE OF S&C APPRENTICE CRAIG JORDAN

Sole Arbitrator: Michel G. Picher

Appearing For The Union:

D. Ellickson – Counsel

K. Kearns – Senior System General Chairman

S. Dembinski – Regional Representative, Great Lakes Division

R. Hunt – System General Chairman, Eastern Canada

Appearing For The Company:

D. Laurendeau – Manager Labour Relations, Montreal

D. Fisher – Director, Labour Relations, Montreal

T. O'Shell – Regional Manager, S&C

A hearing in this matter was held in Montreal on Friday, February 17, 2006.

AWARD

This arbitration concerns the discharge of S&C Apprentice Craig Jordan for, among other things, the reckless operation at excessive speeds of a high-rail as well as the failure to follow proper Track Occupancy Permit (TOP) procedures. The joint statement of issue, filed at the hearing, reads as follows:

On May 31, 2005, S&C Apprentice Craig Jordan was assigned as S&C Maintainer at Auden, Ontario. At approximately 5:00 p.m., Mr. Jordan placed his high rail on the track to return to his headquarters in Auden. Shortly thereafter his high rail derailed. Mr. Jordan suffered cuts to his head and hands in the accident.

Following investigation, Mr. Jordan was assessed discipline in the form of discharge, effective June 24, 2005, for: "major safety and operating rules violations while operating High Rail CNO 170174 on May 31, 2005, to wit, failure to take proper TOP protection, reckless operation and traveling at excessive speeds while operating said high rail, and failure to properly notify the Company of the circumstances leading to the accident."

The Brotherhood contends: (1.) The Company put Mr. Jordan in a situation where he was destined to fail. (2.) That in all the circumstances the Company has not dismissed Mr. Jordan for just cause. (3.) That he be reinstated into service and compensated for all lost wages and benefits.

The Company denies the Brotherhood's contentions and declines the Brotherhood's request.

The grievor was hired as a Signals and Communications apprentice on November 10, 2004. Assigned to the Northern Ontario Zone, he passed the initial module of the Apprentice Training Program (ATP) on April 22, 2005. Shortly thereafter he accepted an assignment in relief of an S&C Maintainer at Auden, Ontario, a position which he took up on May 25, 2005. He then became responsible for the maintenance and repair of signals and communications apparatus on a substantial segment of the Caramat Subdivision. In fact, because of the absence of a regular maintainer, the grievor found himself essentially in charge of two territories after little more than six months' service.

The record discloses, beyond controversy, that the grievor was in possession of high-rail vehicle CNO 170174 on May 31, 2005. At approximately 5:00 p.m. he placed his high rail vehicle on the track at Armstrong to return to Auden, a distance said to be in excess of forty miles. As he travelled eastward his vehicle derailed on the high side of a curve at Mile 238.85 of the Caramat Subdivision. The high rail truck rolled over at least twice, and travelled some 166 feet from the point of its departure from the track before coming to rest. The vehicle was totally destroyed, with the damage to the truck and its tools estimated at approximately $75,000. The rules governing track unit speed, and in particular article 3.7, stipulate that a work track unit such as the unit being handled by Mr. Jordan on the day in question "… must operate at Track Unit Speed not exceeding a maximum of twenty-five MPH."

Fortunately the grievor received only slight injuries, although he was airlifted to a hospital at Thunder Bay for examination. During the course of his subsequent disciplinary investigation he conceded that speed was a contributor to the derailment of his vehicle, although he speculated that a stone on the track or high ballast may have been the originating cause of the vehicle leaving the track. The Company's investigating officer estimated, based on the time and distances involved, that Mr. Jordan's track unit would have averaged approximately thirty-seven miles per hour in speed over the time it was on the track, traveling from Armstrong in the direction of Auden. While the grievor would not say with any certainty what his speed was, he did not substantially dispute the assessment of speed made by the Company, save that at one point he indicated his own belief that he may have been travelling at approximately thirty miles per hour.

A second aspect of the discipline imposed upon the grievor concerns his failure to have properly noted the instructions of another foreman on his Track Occupancy Permit form. While it is not disputed that the grievor spoke with the foreman in question with respect to any conflicting movement which might occur, he did not properly record the directions which the foreman gave him, apparently to the effect that he was clear to pass through the area in which he was located.

In the Arbitrator's view the real thrust of the case concerns the derailment of the high rail truck, and the issue of the grievor's own culpability in relation to that incident. Without diminishing the issue of the TOP, it is not clear to the Arbitrator that the failure to properly notate that document would, of itself, justify the termination of an employee.

What, then, does the objective evidence disclose? Firstly, there is no evidence whatsoever to justify the assertion that there was high ballast or any stones on the track which might have precipitated the derailment. On the contrary, such photographs as were tendered in evidence would indicate no problem of high ballast between the rails at the location in question. It is also clear from the objective evidence that the vehicle left the track in the extremity of a curve. When all of the factors involved are examined, including the distance which the vehicle rolled and travelled from the point after it left the track, the Arbitrator is left with little doubt but that the grievor was involved in speeding, and speeding at a substantial rate.

In mitigation, the Union argues that the grievor, who had worked extensive hours of overtime in the week previous to the incident, had been given an unduly burdensome assignment by the Company after only seven months of employment. In its characterization, as noted in the joint statement of issue, the grievor was set up to fail.

The Arbitrator has substantial difficulty with that submission. What is alleged against the grievor is not the failure to discharge his responsibilities as an S&C maintainer during the period in question. It is less than evident to the Arbitrator that job pressures and overtime must, of necessity, influence an individual to drive at speeds substantially in excess of the permissible limit, particularly in a safety sensitive environment. The record would indicate that the grievor had had some fifty hours of experience in driving high rail vehicles and was fully trained in the CROR and all related rules. There is no question but that he was aware of the speed limit which he was to observe. There is also no question that he grossly exceeded that limit, and that his over-speed was the cause of the destruction of the vehicle for which he was responsible.

In fact there are few, if any, compelling mitigating factors in favour of the grievor in the case at hand. As an employee of little more than seven months' service, he cannot plead longevity or a long-standing record of safe practices to argue that this was an uncharacteristic event. For reasons which he best appreciates, the grievor, an employee of extremely short service, drove a high rail vehicle in a way which can fairly be characterized as reckless and which might well have resulted in a fatality. In these circumstances the Arbitrator is not inclined to disturb the decision of the Company which is that the event of May 31, 2005 caused it to lose faith in the employability of the grievor, for reasons of safety.

For all of the foregoing reasons the grievance must be dismissed.

Dated at Ottawa this 28th day of February, 2006.

_________________________________

MICHEL G. PICHER

ARBITRATOR