(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 discharge of Conductor Samuel Fragomeni for a violation of CROR rule 439, passing a stop signal, and for having recorded a positive drug test. The background to the grievance is reflected in the ex parte statement of issue filed by the Company, which reads as follows:



Discharge of Conductor Samuel Fragomeni.



On January 15, 2008, Mr. Fragomeni was required to attend a formal investigation in connection with the circumstances surrounding: alleged violation of CROR 429 – Train 11251-05 proceeding past stop signal 1462D South Parry on January 10th, 2008 while employed as conductor. As a result of this serious rule violation the grievor was required to undergo post-incident testing for the presence of drugs or alcohol in accordance with the Company’s Policy to Prevent Workplace Alcohol and Drug Problems.


On January 19, 2008 Mr. Fragomeni was required to attend a formal investigation in connection with the results of the Controlled Substance Test indicating positive for marijuana. Subsequent to these investigations, the Company issued a discipline form 780 assessing Mr. Fragomeni Discharge effective January 24, 2008 for violations of CROR 429, CROR G and violation of CN’s Drug and Alcohol Policy while employed as the conductor on train Q1125105 on January 10th, 2008.


The Union contends that the discipline assessed was unwarranted and at the very least excessive and should be removed in its entirety and that Mr. Fragomeni be compensated for all lost wages and benefits.


The Company disagrees.


            The facts relating to the rule 439 violation are not in substantial dispute. On January 10, 2008, the grievor was the conductor on train 1125-05. When his train was on a siding at South Parry it awaited the passage of another train following which the grievor was to place himself on the ground to conduct a roll by inspection of his own train. The evidence indicates that Conductor Fragomeni’s train was being held in a stop position by a dwarf signal located on the left side of the train. To effect the pull-by inspection he descended from the train and stationed himself on the ground on the right side of the train at a point where he could not observe the dwarf signal. There is some question as to whether he could, however, observe another signal on the top of the same mast where the dwarf was located, a signal which apparently governed the main line and not the siding on which his train was situated. While he was on the ground the grievor’s locomotive engineer called a slow to clear signal, which the grievor then acknowledged. During the course of his disciplinary investigation he stated, in relation to that moment: “I believe I glanced at the mast and I seen the green under red.” In fact, it would appear that both the grievor and his locomotive engineer mistakenly took the mast head signal to be theirs rather than the contrary dwarf signal, which indicated a stop. Fortunately the locomotive engineer soon realized his mistake when he saw that the switches were not lined for his train and he immediately stopped, albeit having violated rule 439 by passing the dwarf stop signal by a short distance.


            As a result of the incident Mr. Fragomeni and his locomotive engineer were required to undergo drug and alcohol testing. The grievor tested positive for cannabis. Following an investigation, on the strength of what it considered was a violation of its drug and alcohol policy, as well as the rule 439 incident, the Company discharged Conductor Fragomeni.


            The Arbitrator must consider the two elements of the grievor’s alleged infractions separately. I turn firstly to the question of the violation of CROR 439. Can it be said, as suggested by counsel for the Union, that the grievor had no responsibility for that incident? The Arbitrator does not think so. A close examination of the disciplinary investigation indicates that on more than one occasion during that interview the grievor did state his belief that he was able to see the mast head signal. As noted by the Company’s representatives, he knew or reasonably should have known that that signal controlled the main line and not the siding where his train was situated, an area of track separately controlled by a dwarf signal at the base of the same mast. As a result, the grievor should have known that something was not correct when his locomotive engineer called a slow to clear signal when that was the indication being displayed at the head of the mast. In the result, Mr. Fragomeni effectively joined in the error committed initially by the locomotive engineer when he saw the condition of the mast and verbally confirmed the signal back to his engineer on his radio. In the circumstances I am satisfied that the violation of CROR 439 is made out and that the grievor was deserving of discipline for that aspect of his actions.


            What of the positive drug test? With respect to that aspect, the Arbitrator is more compelled by the submissions of the Union. The grievor’s explanation for the reading of cannabinoids in his system is that he attended a social gathering during the Christmas holidays where, it appears, sweets or desserts containing marijuana were served, unbeknownst to himself. It seems that he learned only later of what had occurred and that, according to his explanation, the positive drug test would have been occasioned by those events.


            I must accept the Union’s principal submission that there is nothing in the evidence to suggest the consumption of a prohibited drug by the grievor while on duty, subject to duty or immediately prior to coming to work. There is, in other words, no significant evidence of impairment on the part of Conductor Fragomeni while at work on January 10, 2008. By any fair application of the just cause provisions of the collective agreement, therefore, the Arbitrator cannot see his positive drug test as justifying his termination after eighteen years of service. As the evidence discloses, the drug test revealed no work related misconduct on his part.


            The fact remains, however, that the violation of CROR 439 is a cardinal rule violation which in some circumstances, has been found to justify the termination of an employee. (see, e.g., CROA 474, 681, 745, 1479, 1505, 1677) It is, however, clear that each case must be determined on its particular merits. When regard is had to the facts of the incident of January 10, 2008 the Arbitrator is satisfied that there is some mitigating value to the fact that the grievor could not in fact see the dwarf signal which controlled the movement of his train and was, at least to some degree, dependent on the erroneous call first made by his locomotive engineer. It is also noteworthy that the locomotive engineer was returned to service shortly thereafter, albeit the particulars of his prior disciplinary record are not before the Arbitrator.


            In the result, and in particular having regard to the grievor’s prior disciplinary record, I am satisfied that Mr. Fragomeni was deserving of a serious measure of discipline but that he can be returned to work, subject to conditions fashioned to protect the Company’s legitimate interests.


            The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for any wages and benefits lost and without loss of seniority. The period between his discharge and reinstatement shall be recorded as a suspension. However, the grievor’s reinstatement shall be conditioned on his agreeing to be subject to random drug and alcohol testing to be administered in a non-abusive fashion over a period of two years from the date of his reinstatement. Should he test positive on any such random test, he will render himself liable to immediate termination.


Dated at Ottawa this 30th day of November 2009.