CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3781
VIA RAIL CANADA INC.
The assessment of 25 demerit marks to the discipline record of Mr. Gary Bereska and his subsequent dismissal for the reason “for accumulation of demerits (80)”.
UNION’S STATEMENT OF ISSUE:
Following an investigation, on
It is the
The Corporation’s only response has been acknowledgement of
(SGD.) T. MARKEWICH
FOR: GENERAL CHAIRMAN
There appeared on behalf of the Corporation:
A. Richard – Sr. Advisor, Labour Relations,
D. Stroka – Sr. Advisor, Labour
J. Gosse – Operations,
And on behalf of the
M. A. Church – Counsel,
T. Markewich – Vice-General Chairman,
G. Bereska – Grievor
AWARD OF THE ARBITRATOR
involves the grievor’s failure to sign and initial the Tabular General Bulletin
Orders (TGBOs) on
157(c)(i) requires locomotive engineers to read and understand the entire
content of each TGBO assigned to their train. The rule goes on to require the
crew member initial each page on their copy of the TGBO. In this case, the
TGBOs assigned to the Cascade and Thompson subdivision’s were part of the TGBOs
assigned to the grievor’s train No. 2 which left
The Corporation maintains that the grievor is responsible for the safety of the crew and passengers on board the train which on that day consisted of two locomotive engines and 20 cars. It further adds that the knowledge of a TGBO is fundamental to avoiding situations of possible or imminent danger and that the grievor’s rules violation is a serious infraction deserving of discipline.
The Arbitrator does not take issue with the fundamental importance of the maintaining proper records and particularly the TGBO. The grievor admitted during the investigation that he had not initialled or signed the TGBO as required by CROR rule 157(c)(i). The circumstances in this case provide a basis for the imposition of discipline given the grievor’s clear failure to observe the requirements of initialling the TGBOs in two subdivisions, in contravention of CROR rule 157(c)(i).
In terms of penalty, I believe the grievor should be allowed the opportunity to resume his locomotive engineering duties. He is at the twilight of his career with 43 years of service to date. The infraction which led to the twenty-five demerits really amounts to an act of carelessness as opposed to a significant act of negligence. This finding is not to diminish in any way the importance of the TGBO, particularly on a passenger train, and the requirements in that regard set out in the CRO rules. Under the circumstances, however, a period of suspension without pay or loss of seniority is an appropriate disposition. Even with his reinstatement, the grievor nevertheless stands on the precipice of dismissal having accumulated fifty-five demerits. The grievor will find himself again at the doorstep if he does not pay attention to his duties, including being attentive to the directions of his supervisors.
I would add
that I do not find that the investigation conducted by Mr. Gosse was unfair as
alleged by the
In summary, the grievor is to be reinstated to his employment without compensation or loss of seniority. His disciplinary record shall stand at fifty-five demerits.
(signed) JOHN M. MOREAU, Q.C.