(the “Company”)







(the “Union”)







Sole Arbitrator:                       Michel G. Picher




Appearing For The Union:

            M. A. Church                     – Counsel, Toronto

            J. Robbins                           – General Chairman, Sarnia

            J. Surgenor                         – Grievor



Appearing For The Company:

            F. O’Neill                           – Manager, Labour Relations, Toronto

            D. Gagné                            – Sr. Manager, Labour Relations, Montreal






A hearing in this matter was held in Montreal on Tuesday, November 24, 2009.





            This grievance concerns the assessment of twenty-five demerits to T-Helper Jeffrey Surgenor for a violation of CROR rule 115. The dispute is reflected in the joint statement of issue which reads as follows:



Assessment of 25 demerits to T-Helper Yard Jeffrey Surgenor.



On February 15, 2008, T-Helper Surgenor was required to attend a Company investigation in connection with circumstances surrounding: “alleged violation of CROR rule 115 in track AO53, while employed as yardman on 09:30 Extra South”.


Mr. Surgenor, subsequent to the investigation, was assessed 25 demerits.


It is the Union’s position that the discipline assessed, in consideration of all of the factors relating to this matter, was unwarranted and in any event, too severe. The Union is requesting the removal of the discipline from Mr. Surgenor’s record. In the alternative, the Union requests that such discipline be commensurate with the incident.


The Company disagrees.


            The incident giving rise to the grievance arose on February 12, 2008 when Mr. Surgenor was working as a yardman operating on or near track AO53 in the Macmillan Yard in Toronto. Part of his assignment eventually required him to spot cars into track AO45, a location with which he was not familiar. While spotting cars the grievor stood at the fouling point of what he believed to be AO45 and AO44. He believed that he had a sufficient vision of the tracks he was dealing with, including AO53. In fact, track AO53 contained a derail and when the cars he was pushing reached that point two of them derailed before he was able to bring the movement to a stop.


            The issue is whether the grievor did in fact violate CROR rule 115. That rule reads as follows:


115    Shoving Equipment

(a)     When equipment is shoved by an engine or is headed by an unmanned remotely controlled engine, a crew member must be on the leading piece of equipment or on the ground, in a position to observe the track to be used and to give signals or instructions necessary to control the move.


          EXCEPTION: A crew member been not be so positioned when the portion of the track to be used is known to be clear. However, equipment not headed by an engine must not approach to within 100 feet of any public, private or farm crossing unless such crossings are protected as described in Rule 103, paragraph (b) or (g).


(b)     Known to be clear is defined as seeing the portion of the track to be used as being clear and remaining clear of equipment and as having sufficient room to contain equipment being shoved. This determination must be made by a qualified employee who can observe the track and has radio contact with the employee controlling the movement. Where a track that has been seen to be clear and no access to that track is possible by another movement, the track may be considered as “known to be clear”.


          NOTE: When it can be determined that other movements are not on duty or will not be performing work in the track to be used, the requirement of “known to be clear” can be considered to be fulfilled continuously.


(c)     On main track, when equipment is shoved by an engineer or is headed by an unmanned remotely controlled engine, unless protected by a crew member as described in paragraph (a), this move must:


(i)    have the required authority;


(ii)   not exceed the overall length of the equipment;


(iii)  not exceed 15 MPH; and


(d)     Unless the route is known to be clear, when reversing with a locomotive consist and visibility is restricted, a member of the crew must be on the leading end and in position from which signals necessary can be properly given.


            The Union submits that the events do not disclose any violation of CROR 115 by Yardman Surgenor. Its counsel maintains that the rule makes no reference to derails, and speaks only more generally of “equipment” which might obstruct a track.


            The Arbitrator finds the Union’s argument unduly technical. As is evident from a reading of rule 115, its purpose is to ensure that equipment being shoved into a track can be safely contained within that space, as ascertained by the crew member responsible for visually ensuring the move. As noted by the Company’s representatives, a track is to be considered “known to be clear” where it is found to have “sufficient room to contain the equipment being shoved.” Clearly the presence of a derail, accompanied by a derail sign, should give any employee in charge of such a movement a clear indication that the track has limited room to handle the equipment being shoved. I am satisfied that the grievor knew or reasonably should have known of the presence of the derail and that he should accordingly have come to the realization that there was insufficient room for his equipment in the track in question. To that extent the Arbitrator is compelled to sustain the Company’s view that the grievor’s actions did involve a departure from the standards of CROR rule 115.


            The issue then becomes the appropriate measure of discipline. In the Arbitrator’s view the assessment of twenty-five demerits is relatively high given the nature of the infraction, and certain related factors, including the fact that it was snowing and that the grievor was unfamiliar with the track in question. In the Arbitrator’s view the assessment of fifteen demerits would have been sufficient, and it is directed that the discipline be adjusted accordingly.


Dated at Ottawa this 30th day of November 2009.