Heard at Montreal, Thursday 14 January 1988

Concerning

And

Mr. A.R. Riggins, Machine Operator, was dismissed for failure to ensure the North Main track switch was restored and spiked in normal position after being used by Burro Crane, December 2, 1986, at Mile 45.6 Aldersyde Subdivision. Extensive damage was caused by train entering back track and colliding with equipment.

The Union contends that: 1.) The Company violated Sections 18.1 and 18.2 of Wage Agreement 41. 2.) Mr. A.R. Riggins be reinstated without any loss in total compensation or benefits he could have earned since December 3, 1986.

The Company denies the Union’s contention and declines payment.

There appeared on behalf of the Company:

J. J. Robson – Assistant Supervisor, Labour Relations, Vancouver

L. J. Guenther – Assistant Supervisor, Labour Relations, Winnipeg

R. A. Colquhoun – Labour Relations Officer, Montreal

J. W. McColgan – Labour Relations Officer, Montreal

And on behalf of the Brotherhood:

M. Gottheil – Assistant to Vice-President, Ottawa

M. L. McInnes – System Federation Chairman, Ottawa

J. Rioulx – Observer, Ottawa

It is not disputed that the north main track switch was not properly lined, locked and spiked after the grievor’s crane had passed through it to be stored on the back track. The material establishes that it was not the grievor, but Leading Track Maintainer R.K. Turner who lined the switch to permit his entry into the storage track. Mr. Turner then failed to line, lock and spike the switch, in consequence of which the subsequent collision occurred. His actions plainly violated UCOR Rule 104 which provides, in part, as follows:

Maintenance of Way Rules and Instructions Form 568, Rule 12 also provides:

Standard Practice Circulars Form 3806, No. 6, Clause 7(e) reads:

It also appears that the grievor, Mr. Riggins was subject to a Superintendent’s Bulletin No. 107, dated April 12, 1983, which contains the following:

In the Arbitrator’s view while all of the foregoing rules represent standards by which the grievor was at all times bound, as they would bind any employee with knowledge of them, they are primarily directed to the employee who operates a switch, with the exception of Standard Practice Circular No. 6 which concerns the storage of on track equipment. As noted, it was Mr. Turner who operated the switch and most directly violated these rules.

In the circumstances of this case, the grievor erroneously formed the opinion that Leading Track Maintainer Turner, who opened the switch to allow him to move his Burro Crane onto the storage track, subsequently lined, locked and spiked it as he was required to do. He did not himself observe the switch or the switch target to confirm that this had been done. The grievor was not in a position supervisory of Mr. Turner, although they were working together in the loading and movement of scrap metal and Mr. Turner was providing assistance to him, and was in some degree under the grievor’s direction. However, that working relationship does not necessarily render the grievor accountable for every failure of duty on the part of Mr. Turner.

In these circumstances the Arbitrator is inclined to accept the submission of the Union that any failure on the part of Mr. Riggins did not involve a direct violation by him of UCOR Rule 104 or Rule 12 of the Maintenance of Way Rules and Instructions, nor the Superintendent’s Bulletin No. 107, as these are primarily directed to the employee who is required to handle a switch. I find in unnecessary to deal with the issue of whether the grievor violated Rule 74(a) of the Maintenance of Way Rules and Instructions. Even if that provision should be construed as requiring Mr. Riggins to have insured that the switch to the back track was left properly set and locked after he had passed through it, a matter upon which I make no finding, his duty in that regard could be no higher than his obligation under Standard Practice Circular No. 6, Clause 7(e) which required him to ensure the safe storage of his on-track machine.

The Union concedes that Machine Operator Riggins did violate Standard Practice Circular No. 6, although it maintains that the circumstances are mitigated by his reliance on Mr. Turner. Counsel for the Union argues that the error of Mr. Riggins in this regard is comparable to that committed by another machine operator who was assessed twenty demerit marks for his failure to ascertain the position of a main track switch (CROA 1200). On that basis he submits that the discharge of the grievor was an excessive measure of discipline and that the imposition of a comparable number of demerits would have been appropriate. He stresses that this is not a circumstance in which the grievor should be reinstated without compensation, as that result would cause the grievor to be unfairly penalized by the vagaries and delays of the grievance and arbitration system and would, as a general practice, give the Company an incentive to resort to discharge as a disciplinary penalty in numbers of cases, in the belief that if its judgement is later found to be incorrect the Company would run no financial risk.

The Arbitrator is in agreement with the general proposition advanced by counsel for the Union with respect to the utilization of reinstatement without compensation. When an employee’s error or misconduct is plainly not a dismissable offence, and should have been dealt with from the outset on the basis of a lesser measure of discipline, it is inappropriate for an arbitrator to "split the baby" by subsequently reinstating the employee without monetary compensation. To pursue such a course would plainly not make the employee whole, in the sense that he or she is not returned to the position the employee would have been in had the just cause provision of the Collective Agreement been correctly applied. By the same token, where an employee’s error or misconduct is grievous, and on its face would arguably justify resort to discharge, an arbitrator may, nonetheless, having regard to mitigating circumstances, exercise his or her statutory discretion under the Canada Labour Code to substitute a lesser penalty, including reinstatement without compensation. That approach recognizes that the employee’s conduct is so serious as to give the employer some basis to believe that discharge was justified. If, in the end, the reinstatement of the employee without compensation has the effect of imposing a lengthy suspension, it is implicit in the judgement of the board of arbitration that that penalty is justified.

Applying the foregoing principles to the instant case, I am compelled to conclude that Mr. Riggins was responsible for a very serious violation of a critical rule. He was charged under Standard Practice Circular No. 6 with full responsibility for the safe storage of his on track machine, including insuring that the main line to siding switch was spiked. That clear and simple obligation was the grievor’s, and not Mr. Turner’s. In these circumstances I do not see how his general reliance on Mr. Turner to have lined and spiked the switch can be pleaded in mitigation. Mr. Riggins did not ask Mr. Turner if he had properly discharged that task, nor was he mislead by anything Mr. Turner said. By his own account he failed to make the most cursory check of the switch target, which he could have done from a position on the ground next to his crane, if only to satisfy himself that the switch was lined. On the whole, therefore, while the Arbitrator accepts the submission of the Union with respect to the primary responsibility of Mr. Turner respecting a number of rules whose violation the Company seeks to fasten on the grievor, his own independent dereliction of duty remains, nevertheless, extremely serious. But for Mr. Riggins’ failure to do what he alone was responsible for doing, namely seeing that his machine was safely stored by ensuring that the main track switch was spiked, the collision and derailment would not have occurred.

There are, however, mitigating circumstances in the instant case. While the facts of this case are not identical to those appearing in CROA 1200 and CROA 1198, both of which concern another single incident, there are some significant parallels. In the latter case an Extra Gang Foreman was dismissed for failing to ensure that a main track switch was properly lined, as a result of which there was a collision involving several fatalities. He was reinstated, without compensation, having regard to the factor of shared responsibility and his own prior good record.

In the instant case the grievor’s record is without blemish, albeit he is a relatively junior employee. I am nevertheless satisfied that although his error was extremely serious, it was not as grievous as that of Mr. Turner who was charged with actually handling the switch. In all the circumstances I deem it appropriate to exercise my discretion to substitute a penalty less than discharge. The grievor shall, therefore, be reinstated into his employment, without compensation or benefits and without loss of seniority. I retain jurisdiction in the event of any dispute between the parties regarding the interpretation or implementation of this award.