CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3883
CANADIAN PACIFIC RAILWAY COMPANY
Appeal of 30 demerits and subsequent discharge of Yard Helper Dale Braumberger.
JOINT STATEMENT OF ISSUE:
disagrees and denies the
(SGD.) D. OLSON (SGD.) A. A. GARCIA
GENERAL CHAIRMAN FOR: ASSISTANT VICE-PRESIDENT – OPERATIONS
There appeared on behalf of the Company:
D. Corrigan – Labour Relations Officer,
J. Bairaktaris – Director, Labour Relations,
A. A. Garcia – Manager, Labour Relations,
M. Moran – Labour Relations Officer,
B. Deacon – Labour Relations Officer,
D. Purdon – Manager, Operations,
K. Wachs – Manager, Operations
And on behalf of the
M. A. Church – Counsel,
D. Olson –
G. Hiscock – Local Chairman,
B. Wiszniak – Local Chairman,
D. Braumberger – Grievor
AWARD OF THE ARBITRATOR
discloses that during the grievor’s tour of duty on
The evidence discloses that after working elsewhere in the east end of the yard Yard Helper Braumberger returned to the east end of the cars in track C-1. As the work plan was to then couple the locomotive to that end of the consist, he opened the angle cock at the east end to discover that the air had in fact not been released from the brake system. The evidence of Mr. Braumberger, which the Arbitrator accepts, is that the yard foreman working with him, Mr. Degerness-Craswell, was earlier told by Mr. Braumberger to open the angle cock at the west end of the consist immediately after it had been shoved into track C-1. For reasons best known to himself, Yard Foreman Degerness-Craswell failed to do what Mr. Braumberger told him to do. While it may seem unusual for a yard helper to be giving directions to a yard foreman, it is common ground that Mr. Degerness-Craswell was a relatively new employee with limited experience and prior discipline who, it appears, needed the guidance of the grievor, a far more experienced employee, who had previously worked as a locomotive engineer and, as a result of a prior incident, had been restricted to yard service.
The evidence reveals that upon discovering that the cars in track C-1 had been left with the air bottled, the grievor, having bled the air, did not immediately make successful contact with any supervisor to advise of the hazardous condition which had been created, contrary to his obligation. While he relates that he attempted to make several phone calls, without success, it is not disputed that it is only after having gone off duty and discussed the situation with his father that he finally did reach a supervisor to report what had happened. Nor does it appear disputed that he could have immediately informed the Train Yard Coordinator. When asked to explain that omission he stated that he was not in a state of mind to discuss the incident at the time. That is because the grievor’s disciplinary record then stood at fifty-five demerits and he was obviously in great fear of the consequences which might be visited upon him.
Following the disciplinary investigation the Company assessed thirty demerits against each member of the crew. That discipline resulted in the grievor’s dismissal.
preliminary matter the
The real issue in the case at hand is whether there was a violation of the rules by the grievor and if so what is the appropriate measure of discipline. Having close regard to the facts the Arbitrator is persuaded that there are mitigating factors to consider in the case at hand. Firstly, it appears clear from the evidence before me that the crew had an understanding that Mr. Degerness-Craswell would open the angle cock at the west end of the cut of cars which they placed into track C-1. Whether it was out of inadvertence or in an attempt to cut corners, it is clear that the yard foreman did not do what was expected of him. Working at the east end of the movement, Mr. Braumberger had no reason to know that his workmate had departed from the plan. While it is true that the difficulty might have been avoided had Mr. Braumberger verified by radio with his yard foreman that the angle cock had been opened at the west end of the cars, the Arbitrator has been directed to no precise rule which would have mandated such affirmative communication. The gravamen of the grievor’s action appears to be restricted to the fact that having discovered the bottling of the air, and having opened the angle cock at the east end of the movement, he failed to report the matter for a period of some seventy minutes. There can be little doubt that he did so out of a certain degree of shock and fear for his own job security.
positive facts, however, do emerge. Firstly, the grievor did, as stressed by
counsel for the
The grievance is therefore allowed in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without loss of seniority and without compensation for any wages and benefits lost. The period between his termination and his reinstatement shall be recorded as a suspension for the rules violations originally cited.