CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3746
CANADIAN NATIONAL RAILWAY COMPANY
Assessment of 40 demerit marks to the record of Mrs. Carol
Cyr for “infractions to rules 120, 122, 136c and A(iii) during your shift on
JOINT STATEMENT OF ISSUE:
The Company disagrees.
(SGD.) J. RUDDICK (SGD.) S. GROU
GENERAL CHAIRMAN FOR: DIRECTOR, LABOUR RELATIONS
There appeared on behalf of the Company:
S. Grou –
Manager, Labour Relations,
D. S. Fisher –
Director, Labour Relations,
L. Viau –
S&C Supervisor, RTC Centre,
B. Carrier –
Manager, RTC II,
L. Savoie –
Work Force Coordinator,
J-J Lajoie –
And on behalf of the
J. Ruddick –
S. Brownlee – Vice-General Chairwoman,
M. Boucher –
C. Cyr – Grievor
AWARD OF THE ARBITRATOR
The grievor qualified as an RTC in 1984, worked as a spare until 1986 and then became a regular RTC in October 1992.
The grievor issued an OSC (“out-of-service”) clearance to
Track Foreman Jean Baron on
136 (c) The RTC must verify each written word and digit each time it is repeated. If correct, the RTC will respond “complete”, the time and the initials of the RTC, which will be recorded and acknowledged by the employee copying. The employee copying must acknowledge the complete time by repeating the complete time and the initials of the RTC to the RTC.
The grievor claims that she experienced noise within the RTCC, which in turn drowned out the voice from the field recording. The Arbitrator had the opportunity to listen to two recordings at the arbitration hearing. I agree that although there is evidence of some background noise, it is not intrusive enough to have blocked out the track foreman’s repetition of the track limits. Although the grievor made some attempt to obtain clarification of the limits, she did not obtain sufficient clarification to satisfy the requirements of rule 136(c). The recording, contrary to what the grievor asserts, did not say “et le mile 70 (sept-zéro)”, which would suggest that Foreman Baron would have repeated the entire protection limits. In fact, the tape indicates that Foreman Baron only said “70 (sept-zéro)”. A subsequent call from a VIA passenger train at 10:20 alerted the grievor that Foreman Baron believed he had protection between miles 88 and 70 when he should have had protection only between miles 86 and 70. The grievor corrected the error at 10:24 when she issued a new OSC. The grievor did not promptly report the incident in violation of General Rule A (iii). She claims that she tried to advise two of the supervisors on duty but that they were otherwise busy. The grievor also claims that she meant to advise the RTC Centre Assistant Manager the following day, as he was aware of the problems she had been experiencing with the radio equipment, but did not do so.
The grievor, in my view, was not paying attention to her
The Arbitrator agrees with the Company’s position that RTCs must at all times be meticulously attentive to their duties. It is crucial that track limits be confirmed in the manner provided by the rules. The consequences of any misunderstanding in communication, however slight, can have serious repercussions. In this case, an accident could easily have occurred as a result of the grievor’s failure to ensure the track limits were properly repeated to Track Foreman Baron. I nevertheless have some sympathy for the grievor, given the fact that she is an experienced RTC with 24 years of service and had only been back on the job for a few months after serving a 7 month suspension. Her failure to immediately report the incident, on the other hand, is an aggravating factor which calls into question her overall honesty.
I would add that there is no evidence adduced before me that the grievor was subject to an improper investigation and I therefore make no ruling in that regard. Further, the concerns expressed over the Voice Communication Control System are not sustainable in this case given that the conversations could be understood, albeit with some background ambient noise. The issue of job stress is one that is attendant with the position and is not a mitigating factor in this instance.
After considering both the aggravating and mitigating factors, I am prepared to substitute the penalty of 40 demerits with a period of suspension, without compensation or loss of seniority. The grievor’s disciplinary record stands at 30 demerits. The effect of the last chance on the grievor’s continued employment is dealt with in CROA 3747.
May 4 , 2009 (signed) JOHN M. MOREAU QC