AH602

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

AND

TEAMSTERS CANADA RAIL CONFERENCE

(the “Union”)

RE: GRIEVANCE OF CONDUCTOR R. FEX

Sole Arbitrator: Michel G. Picher

Appearing For The Union:

J. M. Robbins – General Chairman, Sarnia

Appearing For The Company:

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

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

A hearing in this matter were held in Montreal on Tuesday, April 27, 2010.

AWARD

The following Dispute and Joint Statement of Issue was filed at the hearing by the parties.

DISPUTE:

Assessment of discharge to Conductor R. Fex for his “violation of CROR 439 proceeding past stop signal 393 at Thorlake East while working as the conductor on Train M3133104 on March 5th, 2009.”

JOINT STATEMENT OF ISSUE:

On 8 March 2009, Conductor Fex was required to attend a Company investigation in connection with the circumstances surrounding “violation of CROR 439 proceeding past stop signal 393 at Thorlake East while working as the conductor on Train M3133104 on March 5th, 2009.”

Conductor Fex, subsequent to the investigation, was assessed the penalty of discharge.

It is the Union’s position that the discipline assessed, in consideration of all the factors relating to this matter, is unfounded and unwarranted, and should be removed in its entirety. Also, the Union takes the position that Mr. Fex’s investigation and resulting discipline is void ab initio.

Further, that the assessment of a discharge is, in the Union’s view, intimidation and harassment, both of which are in violation of the Canadian Human Rights Act and the Workplace Environment provisions contained in the collective agreement. And, that the discharge was solely designed to place undue hardship on Mr. Fex, both financially and mentally.

In view of the above, it is the Union’s position, however not limited thereto, that the Company has violated the following: Article 82 of agreement 4.16; the Workplace Environment provisions of the collective agreement; CROA&DR jurisprudence; and the Canadian Human Rights Act.

The Union requests: that the discipline assessed be removed in its entirety from Mr. Fex’s record; that Mr. Fex be compensated for all loss of earnings as a result of the discharge; and that Mr. Fex immediately be reinstated, without loss of seniority and/or benefits.

Further, and without prejudice to the foregoing settlement, and as a result of the collective agreement violations, it is the Union’s position that: (1) Given the violation of the collective agreement that a remedy is applicable in the circumstances consistent with Addendum 123 of the collective agreement. That the Company and the Union agree to meet within 60 days of the date of the Union’s Step 3 Grievance and attempt to reach agreement on the appropriate remedy to apply. Failure as to the appropriate remedy (to be determined by either party upon written notice to the other) to be submitted to the arbitrator for resolution within 30 days of such failure; (2) Given the severity of the above, the blatant abuse of power, and the violations of the collective agreement, that the Company officer who determined that the discharge was warranted be discharged from the Company’s services immediately.

With respect to Item 1 above, the Union is seeking a remedy of $100,000. over and above all other compensation for damages as a result of what we consider to be a wrongful discharge.

The Company disagrees and deems that the discipline assessed was both warranted and appropriate in this instance.

(signed) J. M. ROBBINS (signed) F. O’NEILL

GENERAL CHAIRMAN MANAGER, LABOUR RELATIONS

The material before the Arbitrator confirms, beyond controversy, that the grievor was involved in a violation of CROR rule 439 when his train passed a stop signal at Thorlake East on the Rule Subdivision on March 5, 2009. It appears that the grievor properly called the approach signal, which was a clear to stop. However, the locomotive engineer did not take the necessary steps to slow his train movement. In fact, when he began to step out of his seat in the cab, apparently to warm up his coffee, Assistant Conductor N. Bowey and the grievor both indicated to him that a red signal was approaching. At that point the locomotive engineer applied the emergency brakes, as a result of which his train came to a stop some 300 feet past the stop signal.

At the time of the incident the grievor’s record stood at fifty-five demerits. In fact, a review of his prior disciplinary history discloses an unimpressive record. It is common ground that Conductor Fex was previously discharged, principally for attendance issues, and was reinstated by the arbitrator of the Canadian Railway Office of Arbitration & Dispute Resolution, subject to last chance conditions negotiated between the parties.

While the grievor’s twenty-nine years of service might, at first plush, appear to be a mitigating factor, the aggravating factors in his record are extensive. Apart from his discharge he had three previous suspensions as well as a deferred suspension, in addition to the assessment of demerits for various infractions including a violation of CROR 566 in October of 2000.

It is trite to say that the Brown System of discipline is fashioned to allow employees the opportunity to correct their habits and eventually become discipline free, through the application of progressive discipline. Conversely, an employee who receives extensive discipline, applied in a progressive fashion, who does not improve his or her performance can expect little in the way of mitigation on the occasion of a culminating incident which takes them above the dischargeable level of sixty demerits. That is especially so in the case of a cardinal rule violation.

The Union’s representative stresses that the primary error leading to the rule violation in the case at hand was committed by the locomotive engineer, Mr. J. Richards. While it may be true that the locomotive engineer was primarily responsible for the rule’s infraction, the fact remains that as conductor the grievor was under an obligation to observe the operation of his train, including its speed and the way in which it was being handled as it approached the restricting signal. The account of events emerging from the investigation appears to suggest that the grievor failed in that regard, generally relying on his locomotive engineer to handle his train in such a way as to respect the rule and bring it to a proper stop. However, the very purpose of calling signals and involving all crew members in identification and response to signals is precisely to avoid reliance on any one individual. The Arbitrator cannot accept the suggestion of the Union that the grievor in fact had little or no responsibility for the rule infraction which occurred. Nor does the record disclose that the grievor was denied a fair and impartial hearing, or that his disciplinary treatment was discriminatory.

As Mr. Fex’s discipline then stood at fifty-five demerits on the day of the incident leading to his discharge, the assessment of as little as five demerits would have resulted in the termination of his employment. Given his prior record and previous reinstatement following an arbitration hearing, the Arbitrator is not inclined to disturb the decision made by the Company with respect to the appropriate measure of discipline in the circumstances of this case. I am satisfied that the grievor’s termination was justified and that this is not an appropriate case for the substation of penalty.

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

Dated at Ottawa this 30th day of April 2010.

_________________________________

MICHEL G. PICHER

ARBITRATOR