SOLE ARBITRATOR: Michel G. Picher
Appearing for the Union:
Ken Stuebing – Counsel, Toronto
Brian Strong – Sr. System Chairman
Luc Couture – International Representative
Gurpal Badeshma – Local Representative, Local 2049
Harry Maik – Grievor
Appearing for the Company:
Susan Blackmore – Manager, Labour Relations, Edmonton
Ron Czuy – Manager, Signals & Communications, Edmonton
Carole Cousineau – Manager, Risk Management, Edmonton
A hearing in this matter was held in Edmonton on June 11, 2012.
AWARD OF THE ARBITRATOR
This arbitration concerns the grievance of S&C Maintainer Harry Maik who was initially discharged and thereafter returned to work subject to a suspension and demotion to S&C Mechanic. The Union seeks a reduction of the penalty, including the reinstatement of the grievor into his former classification of S&C Maintainer. The Company maintains that the event for which the grievor was disciplined was sufficiently serious that, in light of his prior record, the suspension and demotion he received were appropriate.
The nature of the dispute is reflected in the Dispute and Joint Statement of Issue filed at the hearing. That document reads as follows:
DISPUTE:
The dismissal of S&C Maintainer Harry Maik.
JOINT STATEMENT OF ISSUE:
On November 18, 2011, S&C Maintainer Harry Maik was assessed 65 demerits and subsequently dismissed from CN for accumulation of demerits, for “failing to properly deactivate and restore a crossing including a failure to perform the walk of life.”
The Company subsequently reinstated Mr. Maik, restricted to a Mechanic position, on April 2, 2012, removing the 65 demerits assessed and replacing them with a suspension of 145 days.
The Union contends that there is no cause for the discipline assessed or, in the alternative, that the penalty assessed is excessive and unwarranted in all of the circumstances.
The Union requests that Mr. Maik be reinstated without loss of seniority and benefits including pension, and that he be made whole for all lost earnings with interest. In the alternative, the Union requests that the penalty be mitigated as the arbitrator sees fit.
The Company disagrees and denies the Union’s request.
The grievor has six years of service with the Company, having initially been hired by the McKenzie Northern Railway in 1998 and joining the Company upon the purchase of the MKNR on June 13, 2006.
On November 7, 2011 the grievor was assigned to assist Maintenance of Way crews who were installing concrete culverts at or about Mile 176.69 on the Slave Lake Subdivision in the Peace River area. Part of his responsibilities was to deactivate the signals at a level crossing. The record reveals that Mr. Maik first attended the crossing on November 7, 2011 and properly performed a deactivation to assist the Maintenance of Way crew working at that location. It is confirmed that before leaving that location for the night, the grievor properly performed what is referred to as “the Walk-of-Life” which is a step by step process which is part of the checks and balances to ensure that all electronically controlled parts of the crossing, including bells and lights, are working properly. On that occasion he also notified the Rail Traffic Controller to apply a Form-V, a stop and protect order in respect of the crossing.
The crossing apparently remained deactivated overnight. Mr. Maik was called back to that location the following day, November 8, 2011 where he reactivated the crossing because of the impending passage of train 418. There appears to be no dispute that he properly performed the reactivation and, as required, he notified the Rail Traffic Controller that the crossing was reactivated. As reflected in the grievor’s disciplinary investigation, he then formed the opinion that the crossing was permanently reactivated and returned to his truck. He relates that shortly thereafter he noticed that the lights of the crossing came on as a tamper machine was operating within the crossing. Without consulting any supervisors he assumed that he should again deactivate the crossing. He relates that he then deactivated the crossing and sat in his truck for approximately twenty minutes until the tamping operation was finished. According to Mr. Maik he then checked to see if there were any broken bonds, and having discovered a severed bond he replaced it. Then, in his words: “I had thought the crossing was back in service, and then I left.” In fact the crossing remained deactivated. The grievor had not communicated with the OCS foreman to determine its status. In fact the grievor did not communicate with the Rail Traffic Controller, as required, when he deactivated the crossing on the afternoon of November 8. Nor did he, before leaving, conduct the mandatory Walk of Life test to ensure that the crossing was activated and functioning properly.
In the result, by his inadvertence, the grievor created what can fairly be characterized as a potentially lethal trap. Because the crossing was left deactivated, any vehicle approaching it would rely on the signal and would have no forewarning of the approach of an oncoming train. Fortunately, no such incident occurred. The following morning, at 07:53 on November 9, 2011, the crew of train A-4195108 notified Company officers that the crossing lights were not functioning at Mile 176.69. Following established protocols, the Rail Traffic Controller immediately protected the crossing and police authorities were notified. It was then discovered that the crossing had in fact remained deactivated from the previous day by reason of the inadvertence of Mr. Maik.
The grievor was then taken out of service and made subject to a disciplinary investigation. He was initially assessed 65 demerits for “failing to properly deactivate and restore a crossing including a failure to perform the Walk of Life”, which resulted in his discharge. Part of the Company’s reasoning was based upon the fact that the grievor had committed a similar infraction approximately thirteen months previously, albeit on that occasion he was assessed only ten demerits. While the Company recognized that the grievor is otherwise a good worker, it had substantial concerns about the critical safety dimension of his employment and the severity of the error he had committed.
After the passage of approximately 145 days, following discussions between the Company and the Union, it was decided to reinstate Mr. Maik, subject to a demotion into a Signal Mechanic position. In that capacity, while he would be employed at the same rate of pay, he would not work alone. Additionally, the sixty-five demerits were removed from his record and the 145 day period was treated as an unpaid suspension for his time out of service.
Counsel for the Union submits that the discipline assessed against Mr. Maik is excessive in all of the circumstances. He maintains that in fact the grievor did not receive the formal training in S&C Maintainer responsibilities that is given newly hired employees, that the working kit which he was given was in fact defective as it was lacking certain tags, and that the treatment of the grievor is discriminatory as compared to the discipline assessed to other employees in the past for similar infractions. On behalf of the Union he also stresses that the demotion involves a potential loss of income to the grievor, to the extent that he is not able to earn the relatively substantial amount which is available to an S&C Maintainer for being on call, something which is not available to the S&C Mechanic.
The Arbitrator has some difficulty with the Union’s position. The responsibilities of an S&C Maintainer are clearly among the most highly safety-sensitive in the railway industry. The proper functioning of signals, whether signals to trains operating on main line or secondary tracks, or level crossing signals for the protection of motorists, can truly be said to have a life and death dimension. The prospect of a level crossing giving the appearance of having crossing signals to caution motorists against an oncoming train, when in fact those signals are not functioning, is an obviously grave situation. Fortunately, in the case at hand, no accident occurred and a train crew communicated the problem before any tragedy did happen.
In considering the facts and merits of the instant case, while I consider the grievor to be a good worker and an honest person, the fact of recidivism is an element of obvious concern. He had committed a similar error approximately a year earlier. During the course of his investigation Mr. Maik candidly acknowledged that when he deactivated the crossing on November 8, 2011 he did not notify the Rail Traffic Controller, or anyone else. By his own admission, before leaving he did not verify that in fact the crossing was reactivated and did not perform the Walk of Life. During the course of his investigation he stated: “I made an irrational decision, I was thinking unclearly. … I just wasn’t thinking … I had many things on my mind. I didn’t do it intentionally.”
Unfortunately, in the kind of work Mr. Maik was called upon to perform, there is no room for distraction, inadvertence or forgetfulness, much less departure from the most essential checks and balances of safety, such as notifying the Rail Traffic Controller of any change and performing the Walk of Life. In my view a second infraction of this kind clearly justifies the Company in questioning the safety of retaining the grievor to perform the essentially unsupervised duties and responsibilities of an S&C Maintainer. Nor do I consider that the grievor was lacking in training or that the errors he committed on November 8, 2011 were in any way related to a failure on the part of the Company to train him. As the Company’s representative properly notes, his correct performance of the deactivation and reactivation of the same crossing obviously confirms his understanding of the safety requirements to be observed.
Given the grievor’s relatively short service and the seriousness of the offence committed, I do not consider that the suspension and demotion of Mr. Maik should be disturbed. Nor is it clear that he in fact will suffer any substantial reduction in earnings, given the unchallenged representation of the Company that as a Mechanic he has the potential to earn overtime, particularly in a gang assignment, to a level that can equal or surpass the earnings of an S&C Maintainer. Therefore, the only adjustment to the discipline that I am prepared to make, and I hereby do, is to direct that the grievor should not be prevented from bidding on gang work in the event that he chooses to do so. However, in my view the balance of the grievance must be dismissed for all of the reasons related above.
I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Signed at Ottawa, June 15. 2012
_____________________________
MICHEL G. PICHER
ARBITRATOR