(the “Company”)







(the “Union”)







Sole Arbitrator:                       Michel G. Picher




Appearing For The Union:

            M. A. Church                     – Counsel, Toronto

            J. Robbins                           – General Chairman, Sarnia

            S. Fragomeni                      – Grievor



Appearing For The Company:

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

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

            G. Nadon                           – Assistant Superintendent, Capreol




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





            This arbitration concerns the assessment of thirty demerits against Conductor Samuel Fragomeni for having violated safety rules and operating rules. The nature of the dispute is reflected in the Company’s ex parte statement of issue which reads as follows:



30 demerits assessed Conductor Samuel Fragomeni.



On November 14, 2007, Mr. Fragomeni was required to attend a formal investigation in connection with the circumstances surrounding: violation of GOI section 4.3.1 PPE – not wearing safety glasses, and violation GOI section 8 item 12.10 – failing to ensure proper distance between equipment, while employed as conductor on Train L59831-12 on November 12, 2007.


Subsequent to the investigation, the Company issued a discipline form 780 assessing Mr. Fragomeni 30 demerit points effective November 12, 2007 for violation of GOI section 4.3.1 PPE – not wearing safety glasses, and violation GOI section 8 item 12.10 – failing to ensure proper distance between equipment, while employed as conductor on Train L59831-12 on November 12, 2007.


The Union contends that the discipline assessed was unwarranted and excessive and should be removed in its entirety.


The Company disagrees.


            The record before the Arbitrator reflects that on November 12, 2007, the grievor was assigned as conductor on Train L59831-12. He and his crew were then under observation by Assistant Superintendent Gerald Nadon who was apparently conducting a routine efficiency observation. A memorandum prepared by Mr. Nadon  reads, in part, as follows:

I noticed Conductor Fragomeni riding a car out of Track R004. From a distance I was uncertain if he had safety glasses on. Sometimes, clear glasses are difficult to notice. I met Mr. Fragomeni after he detrained, and he walked towards the roadway. I then noticed he had dark safety glasses resting on top of his black leather hat. He was not wearing safety glasses and had not protected his eyes against a potential injury.


When I questioned him as to why he was not wearing safety glasses, he said it was raining and was hard to see. I mentioned to him that it was not raining now, why was he not wearing the safety glasses. He said it was hard to see, he needed clear safety glasses. When questioned about his clear glasses, he said they were in his work bag back in the office. I made arrangements to get a pair of clear safety glasses brought out to him. I advised Mr. Fragomeni that if he does not wear safety glasses, then he will not be allowed to work on this property. He said he understood.


Train 598 was behind in their work, so I continued to monitor their work performance. At approximately 17:30, Conductor Fragomeni was making a joint on a long flat car with a cushion drawbar. The joint would not make. Conductor Fragomeni then instructed the Engineman to pull back, then gave the command to stop. Conductor Fragomeni then went in between the cars to straighten out the drawbar. Then stepped into the clear. I was approximately four cars away, and instructed Conductor Fragomeni to wait, until I got there. When I arrived at his location, I counted off the distance between the two cars. It was barely ten feet. I engaged Conductor Fragomeni in a discussion about the proper distance, he confirmed it was fifty feet. He had no reason why he went in between cars that were only separated by about ten feet. I explained the dangers of what he did. He understood, and said he would make sure the proper distance was taken in the future. I continued to observe, and when the joint did not make again he was again required to separate the cars. This time he ensured the fifty foot distance was taken between cars.


I explained to Conductor Fragomeni, that he is working in a manner that he will either hurt himself or someone else. To address this behaviour, there would be a formal investigation.


            Following an investigation the grievor was assessed thirty demerits in total for both infractions. The grievor does not deny not having safety glasses on when he was observed by Mr. Nadon. As indicated in the Assistant Superintendent’s report, it appears that he removed his tinted glasses during a period of raid and apparently forgot to put them back on. It is also not disputed that he did also violate GOI section 8, item 12.10 when he placed himself between two cars when the cars were not at a sufficient distance, the distance separating the two cars being some ten feet.  The proper distance would have been fifty feet. There is no dispute that in so functioning he placed himself in a hazardous position.


            The only issue is the appropriate measure of discipline in the circumstances. It is important to note that the grievor’s record was clear of any discipline at the time of this incident and that he is an employee of some eighteen years service. However, an examination of the grievor’s earlier years reveals a substantial sequence of discipline for a number of rules violations. Also, in 2004, he was terminated for attendance management problems, a result which was consensually amended to a suspension.


            In the result, accepting that the total of thirty demerits assessed in the case at hand reflects fifteen demerits for each of the two infractions, the Arbitrator is not persuaded that a reduction in the penalty assessed against Conductor Fragomeni is appropriate. For these reasons the grievance must be denied.



Dated at Ottawa this 30th  day of November 2009.