IN THE MATTER OF AN ARBITRATION

AWARD

This arbitration concerns the discharge of S&C Maintainer C. Halliday. The nature of the dispute is reflected in the ex parte statement of issue filed at the hearing by the Union which reads as follows:

DISPUTE:

Dismissal of S&C Maintainer Colin Halliday of Winnipeg, Manitoba for improperly assembling switch machine lock rod arms and failing to perform the Lock Rod Correspondence Test as required by CN General Instructions 329(b) page 8 at Ogaki West, Allanwater subdivision on March 14, 2003. This error disabled a safety feature of the switch machine and allowed a false clear signal over switch points lined for the opposite route for train 75321-11 on May 12, 2003. The failure to properly perform the switch assembly and testing created a serious safety hazard which had the potential for a head-on collision.

EX PARTE STATEMENT OF ISSUE:

S&C Maintainer Colin Halliday was dismissed by the Company from service on May 28, 2003 for his failure to properly install the lock rod arm or perform the lock rod correspondence tests on the switch machine at Ogaki West, Allanwater Subdivision on March 14, 2003.

The Union contends that Mr. Halliday was insufficiently trained, that the equipment was obsolete and the procedures insufficient to prevent the type of error, and that the switch machine had been improperly rebuilt. Accordingly, the Union contends that the discipline assessed was unwarranted and excessive.

The Company denied the Union's contentions.

The Company filed a separate statement of issue challenging, in part, the arbitrability of the grievance. It reads as follows:

DISPUTE:

Dismissal of S&C employee Mr. Colin Halliday on May 28, 2003 for improperly assembling a switch machine lock rod arm and failure to perform the Lock Rod Correspondence Test at Ogaki West, Allanwater subdivision on March 14, 2003 while working as an S&C Maintainer.

COMPANY STATEMENT OF ISSUE:

S&C Maintainer Colin Halliday was dismissed from Company service on May 28, 2003 following an investigation into his assembly of a switch machine lock rod arm and failure to perform the Lock Rod Correspondence Test at Ogaki West, Allanwater Subdivision on March 14, 2003.

The Union contends that the original switch machine was improperly rebuilt, that Mr. Halliday had insufficient training, and that the discipline assessed was unwarranted and excessive.

The Company contends, as a preliminary matter, that the grievance is untimely and improper, having exceeded the time limits during the grievance procedure. In addition to the preliminary objection, the Company denies the Union's contentions and has declined the Union's appeal.

The Arbitrator deals firstly with the issue of timeliness and arbitrability. The Company relies on the time limits established within Step 3 of the grievance procedure, the step at which an appeal generally commences in any case of dismissal. In that regard article 13.8 of the collective agreement reads, in part, as follows:

Step 3

Within 60 days of receiving the decision under Step 2, the System General Chairman of the Brotherhood may request a joint conference with the officer designated by the Company. The request for a joint conference must be accompanied by the Brotherhood's contention and all relevant information to the dispute involved. The joint conference shall be arranged to take place within 60 calendar days from the time such request is received and a decision shall be rendered in writing within 60 calendar days of the joint conference.

It does not appear disputed that the time limits within Step 3, namely the 60 day period, would begin to run from the time the employee is terminated. The grievor was terminated on May 28, 2003. On August 19, 2003 the Union corresponded with the Company requesting his reinstatement. The Union then indicated that it reserved its rights at Step 3 at a future date. Following a meeting on September 10, 2003, the Company responded to the Union's request by email on September 11, 2003 declining to reinstate the grievor, expressing concerns for Mr. Halliday's aptitude for safety sensitive work.

On March 30, 2004 the Union filed a grievance at Step 3. It appears that that grievance was received by the Company only on April 22, 2004. In response the Company indicated to the Union that it would not accept the grievance, by reason of timeliness. It appears that the Company had extended the grievance period to March 30, 2004. The employer took the position that the grievance, received on April 22, 2004, some three weeks beyond the deadline, was untimely and therefore inarbitrable.

Notwithstanding the foregoing, after further discussions, further time limit extensions were granted to the Union until October 31, 2004 to resubmit the grievance. That extension was on condition that all liability claims would be adjusted accordingly. The Union did not consider that it needed to resubmit the grievance. The parties met again on March 8, 2005, which was followed by a further declination of the Union's request by the Company by a letter dated April 28, 2005. The Union then wrote to the Company on June 24, 2005 proposing arbitration of the matter.

The Company argues, in effect, that the Union's grievance came to be dated June 24, 2005, being eight months out of time to be further progressed. The Company maintains that in the circumstances the matter should not be entertained and refers the Arbitrator a number of arbitration awards, including CROA 36, 102, 597, 871 and 1839.

The Arbitrator has considerable difficulty with the position advanced by the Company. At best, its position is highly technical. It should be stressed that arbitrators have been mandated by the Courts to avoid undue technicality in the grievance process, particularly where no real prejudice is disclosed. (See Blouin Drywall Contractors Ltd. And United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 57 D.L.R. (3d) 199 (Ont. C.A.)). I cannot agree with the Company that the Union was under an obligation to "re-submit" the grievance merely because the Company extended the deadline after what it believed was a failure of the Union to meet the proper time limits. The fact remains that it had a grievance already in hand, and the issues were clear. If substance, rather than form, is to govern in these matters, as I think it must, both parties were well aware of their respective positions upon the extension of time limits granted by the Company. Indeed, as noted by counsel for the Union, it appears that the Company dealt with the grievance on a regular basis, and did not raise the objection which is now pleaded until on or about April 29, 2005. On the whole, even accepting that the time limits in the collective agreement should be viewed as mandatory, the Arbitrator would be compelled to conclude that the Company substantially waived any meaningful objection as to timeliness by the course of action which it followed. It is also significant to note that these events took place in an environment where, it does not appear disputed, the granting of extensions of time between these parties had become close to automatic.

Alternatively, if it were necessary to so rule, the Arbitrator would exercise his discretion under the provisions of the Canada Labour Code to extend the time limits in the case at hand. Firstly, it would appear that for all of the time in question the Union made it clear to the employer that it was pursuing the grievor's rights under the collective agreement. Bearing in mind that the case at hand concerns a discharge, the consequences are obviously substantial to the employee concerned. What prejudice, if any, are disclosed as against the Company? In the Arbitrator's view there is none, particularly given that the Union seeks no compensation for the grievor having regard to the passage of time in the progressing of this matter. For all of these reasons, the Company's preliminary objection with respect to the arbitrability of the grievance must be dismissed.

I turn to consider the merits of the case. The grievor was hired on or about April 28, 1997. He completed his training as Signals and Communications apprentice in the year 2000. At the time of the facts giving rise to his discharge the grievor was a permanent S&C mechanic rover at Armstrong, Ontario.

On March 14, 2003 the grievor was directed by his supervisor to change the lock rods in the switch machine at Ogaki West. It is not disputed that he had performed similar tasks earlier, on March 11 and March 13 and subsequently on March 18 and 19, 2003.

Electronic switch machines allow rail traffic controllers to remotely control switches and signals. They are constructed so as to operate in a fail safe manner, so that the aspect of a given signal properly corresponds to the position of a switch. For the system to operate in a fail safe manner, given the equipment then in place at Ogaki West, lock rod arms had to be properly installed over the rods. It is common ground that when he worked on the switch machine at Ogaki West on March 14, 2003, Mr. Halliday incorrectly reversed the position of the lock rod arm. He also failed to conduct a test, referred to as the GI329(b) test, which is found in the General Instructions manual.

There can be little doubt but that what the grievor did resulted in a perilous situation. Some time after he made the repair, a bolt located on another part of the switch machine became loose and eventually fell off. That failure resulted in the switch mechanism no longer working in proper coordination with the signal. On May 12, 2003, a westbound train received a slow to clear signal indication to exit the siding at Ogaki West. However, the switch points were lined for movement along the main track, a fact which the train crew noticed having run through the switch by some ten car lengths. It is not disputed that this anomalous situation occurred because the lock rod arm mechanism was installed improperly, by reason of being backwards. If the lock rod arm had been installed correctly, the mechanism would have functioned properly to prevent the inconsistency between the signal and the switch. The situation was obviously serious, as it might, in another circumstance, have resulted in the collision of equipment using the main line.

The Company submits that the incident at Okagi West, coupled with the grievor's prior disciplinary record, confirms that he does not have the necessary aptitude to perform work of a highly safety sensitive nature. It notes that the grievor had received a written reprimand on July 12, 2004 for exceeding the speed limit in the operation of a high rail vehicle and ten demerits on July 10, 2002 for a motor vehicle accident in which he backed a Company truck over a crossing mast.

Counsel for the Union submits that the discharge of the grievor is excessive, and that in fact the Company must bear some responsibility for what transpired, given its failure to properly train Mr. Halliday at the time in question. Counsel also submits that it is improper for the Company to invoke the doctrine of culminating incident, to the extent that that was not specifically expressed in the notice of discharge provided to the employee. With respect to this last point, the Arbitrator cannot agree. I am satisfied that the Company was entitled to consider the grievor's prior record in making its decision, and that it need not have elaborated that analysis within the notice of termination.

There are, to be sure, troubling aspects as regards the evidence of the training, or lack of training, experienced by Mr. Halliday. The unchallenged evidence before the Arbitrator is that during his apprentice training Mr. Halliday received only minimal switch machine orientation. That training did not go into the mechanical workings of the switch machine, so that in fact the grievor would not have appreciated the effect of installing the lock rod arm backward, as he did on the occasion in question. It appears that the grievor was scheduled to receive greater in-depth switch machine training in November of 2002, but that that training was in fact cancelled because of the retirement of the instructor, Mr. Harry Hodgson. It appears that Mr. Hodgson was brought back on a contract basis to do subsequent training and that Mr. Halliday successfully completed that greater in depth machine switch training course on April 28 and 29, 2003. There can be little doubt but that had the grievor completed that training prior to the incident of March 14, 2003, he would have understood the need to properly position the lock rod arm, and the problem which resulted would in all likelihood have been entirely avoided.

The grievor's account of these events is that when he was required to make repairs to switching machines he essentially relied on simply returning old pieces into the same position in which he found them, not being aware of how they in fact functioned. He states that to the best of his recollection he would have placed the lock rod arm on the equipment at Ogaki West in the same position as he had originally found it. The Union submits that this evidence would suggest that another employee may well have made an original error which was simply continued by Mr. Halliday. Most importantly, it maintains that it was simply inequitable for the Company to place the grievor in the position of having to repair the equipment without first having given him sufficient training to understand the mechanics of its operation. It rejects the submission of the Company that the grievor could simply have referred to the general instructions, and in particular the test at GI329(b), and the problem would have been avoided.

In essence, the Company maintains that the failure to perform the GI329(b) test, coupled with the fact that the grievor made no correction of what he had done at Ogaki West after he had become properly trained in the workings of the switching machine, demonstrate a serious insensitivity to safety sensitive work. The Arbitrator can understand the basis for that concern, but I find the evidence less than compelling to sustain it. Firstly, there can be little doubt but that the Company's failure to provide the grievor the proper training in advance of assigning him to repair switching machines is a matter which must be given some weight in mitigation in this grievance. The Arbitrator must agree with counsel for the Union that there is some inequity in the Company failing to give a junior employee reasonable training in a relatively technical aspect of his job, and thereafter holding him fully responsible for any shortcoming in performance.

Nor can the Arbitrator give extensive weight to the Company's view as to the grievor's failure to recall his error at Ogaki West when, some six weeks later, he was finally given the proper training. While it is debateable whether the grievor should or should not have specifically remembered the error made on one of several machines on which he worked at the time, the Arbitrator finds it less than persuasive that the Company should hold against the grievor the ex post facto failure to correct his error, an error in fact made possible by the employer's own failure to provide the proper training in the first place. At best, the facts would show what can fairly be characterized as a substantial degree of shared responsibility.

In the result, the Arbitrator must agree with the Company that the grievor made errors which he should not have made, most particularly with respect to the failure to perform the GI329(b) test. I cannot agree, however, that the prior discipline of the grievor, coupled with the incident in question, demonstrates conclusively that the grievor does not have and cannot gain the training and aptitude necessary to perform the work in question. While the two driving offences in which the grievor was involved do not enhance his record, there is nevertheless no prior indication of any inability of the grievor to perform the mechanical functions of his trade in a proper manner, particularly with training.

In the result, I am satisfied that the grievance must be allowed, in part. In the Arbitrator's view the grievor should be given a reasonable opportunity to demonstrate that he can perform the functions of his trade, with proper training. The Arbitrator therefore directs that the grievor be reinstated into his employment forthwith, without compensation for any wages or benefits lost. The grievor's reinstatement may be conditioned, at the option of the Company, upon the grievor being placed into a mentoring position for a reasonable period of time after his return to work. I retain jurisdiction should there be any dispute between the parties concerning the interpretation or implementation of this award.

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

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MICHEL G. PICHER

ARBITRATOR