RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3786
CANADIAN NATIONAL RAILWAY COMPANY
Assessment of thirty (30) demerits to the grievor for a violation of CROR rule 104 resulting in derailment of locomotives CN 9581 and CN 5353 and subsequent dismissal from the Company for accumulation of demerits in excess of sixty (60).
COMPANY’S STATEMENT OF ISSUE:
disagrees with the
FOR THE COMPANY:
(SGD.) P. PAYNE
FOR: DIRECTOR, LABOUR RELATIONS
There appeared on behalf of the Company:
A. Daigle –
Manager, Labour Relations,
F. O’Neill –
Manager, Labour Relations,
D. Morin –
Assistant Chief Engineer,
S-P Paquette –
And on behalf of the
D. Ellickson –
B. R. Boechler –
R. A. Hackl –
AWARD OF THE ARBITRATOR
The issue in the instant case is
whether the grievor was responsible for the derailment of two locomotives from
a three locomotive consist at a switch leading to the shop track in
On that day the grievor was working as the yard helper on assignment YWTS30-28. At the conclusion of the assignment he and his yard foreman were required to move their three locomotives to the shop track. To do so they were required to line a spring switch on track EF-05 to give their units access to the shop. It does not appear disputed that at that time it was -4° C and it was snowing.
The employees encountered some difficulties with the arm of the switch so that it required both of them to move it. According to their unchallenged account of what transpired, they successfully moved the switch into position and placed a lock on it as a “keeper” to hold the switch in place. By their account the point of the switch was tight to the rail and all outward appearances suggested that they could proceed with their movement towards the shop track.
While there is some disagreement as to the precise wheels involved, it does not appear ultimately disputed that the second and third of the three locomotives in the power unit derailed while proceeding over the switch. It is also not disputed that after the derailment the switch was tightly closed to the rail, as it would be in a normal position.
Following an investigation, the Company concluded that the switch must in fact have been open by a small but critical amount after it had been moved into place by the grievor and his yard foreman. By the Company’s account, the most probable explanation is that the switch was difficult to close because it had ice or snow packed within it. That obstruction, the Company suggests, would have likely not caused the first unit to derail, but by reason of lateral pressures once the initial unit had moved past the switch, the second and third power units would have been forced to climb over the switch by reason of the gap between the switch and the track. The final aspect of the Company’s theory is that the action of climbing and derailing by the two power units could also have crushed or dislodged the snow or ice obstruction which was holding the switch slightly open, so that it had returned to a tight closed position after the derailment was complete by the natural operation of the switch’s hydraulic spring mechanism.
Separate investigations of the
grievor and his yard foreman took place on
117.2 Employees may have an accredited representative appear with them at investigations, they will also have the right to hear all the evidence submitted and will be given an opportunity through the presiding officer to ask questions of witnesses whose evidence may have a bearing on the employee’s responsibility.
Questions and answers will be recorded and the employee will be furnished with a copy of the statement taken at the investigation. Employees under Company investigation or his/her accredited representative shall have the right to attend any Company investigation, which may have a bearing on the employee’s responsibilities. The employee or their accredited representative shall have the right to ask questions of any witness/employee during such investigation relating to the employee’s responsibilities.
On the foregoing
basis counsel for the
The Arbitrator is compelled to agree
On the foregoing basis the grievance must be allowed. Alternatively, should the Arbitrator be in error with respect to the assessment of the evidence in the case at hand, the grievance must also succeed on the basis that the Company did fail to observe the mandatory requirements of article 117.2 of the collective agreement by denying the grievor notice and access to his workmate’s statement. It is well settled that a failure of the obligation to provide a fair and impartial investigation in keeping with those provisions will render discipline void ab initio.
For the foregoing reasons the
grievance is allowed. The Arbitrator directs that the grievor be reinstated
into his employment forthwith, with compensation in full for all wages and
benefits lost and without loss of seniority, with his record to contain no
reference to the derailment of
(signed) MICHEL G. PICHER