CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION

CASE NO. 3894

Heard in Montreal Thursday, 15 April 2010

Concerning

CANADIAN NATIONAL RAILWAY COMPANY

and

TEAMSTERS CANADA RAIL CONFERENCE

EX PARTE

DISPUTE:

Appeal of the assessment of a discharge to Conductor R. Hart for violation of C.R.O.R. 439, at MP 243.9 at Transcona East on the Redditt Subdivision on August 1, 2009, while working as Conductor on Train X11441-01.

COMPANY’S STATEMENT OF ISSUE:

On August 1, 2009, Mr. Hart was assigned as the Conductor on Train X11441-01, when it failed to stop prior to passing a stop signal at Mile 243.9 at Transcona East on the Redditt Subdivision.

The Company conducted an investigation of the incident and determined that Conductor Hart had violated CROR 439 and subsequently discharged him.

The Union contends that the ultimate discipline of discharge was unwarranted, unfair, and outside the normal under the circumstances, and requested that the discipline be stricken from his record, and Mr. Hart be reinstated and made whole.

The Company disagrees with the Union’s contentions.

FOR THE COMPANY:

(SGD.) D. BRODIE

FOR: VICE-PRESIDENT, HUMAN RESOURCES

There appeared on behalf of the Company:

D.Gagné – Manager, Labour Relations, Montreal

D. VanCauwenbergh – Director, Labour Relations, Toronto

And on behalf of the Union:

R. A. Hackl – Vice-General Chairman, Edmonton

B. R. Boechler – General Chairman, Edmonton

J. Robbins – General Chairman, CN Lines Central, Sarnia

AWARD OF THE ARBITRATOR

The facts of this grievance are fully related in CROA&DR 3866 and need not be repeated here. It is common ground that in proceeding from Symington Yard to Transcona Yard to pick up his train, the grievor and his locomotive engineer were operating two locomotives light. They encountered a stop signal at the entrance point to the yard, and were stopped in such a way that their power units continued to activate the barriers of an adjacent level crossing. To clear the level crossing Conductor Hart and Locomotive Engineer Fox agreed to attempt to move their two power units approximately one car length in the direction of the stop signal.

They proceeded to do so with the grievor standing on the point of the locomotives closest to the signal, giving instructions to Locomotive Engineer Fox by radio. There does not appear to be any dispute that Mr. Hart faithfully described the distances remaining to the locomotive engineer and repeatedly told him to stop, perhaps as many as three times, notwithstanding that the locomotive proceeded through the stop signal at a speed of approximately eight m.p.h., a distance of about twenty-five feet.

In the Arbitrator’s view it is important to note the following passage from the award in CROA&DR 3866:

Another factor to be considered is the actual event. In fact, as counsel for the Union stresses, Mr. Fox and his conductor did properly stop in advance of signal 2439. Their error, as should be evident from the account related above, occurred in the course of attempting to move two road locomotives a very short distance for the purpose of clearing an obstructed level crossing. This was not, in other words a mistake of inattention or indifference to their responsibilities. The problem, it appears, occurred because the locomotives reacted in a balky fashion in a way that Mr. Fox did not anticipate. While that does not exonerate him from what is obviously a violation of CROR 439, it does tend to colour the facts as less egregious than most that have been reviewed in this Office in prior awards concerning CROR 439 violations.

On the basis of the foregoing analysis Locomotive Engineer Fox was reinstated into his employment, without compensation, and without any loss of seniority. In the instant case the Union argues that there was greater responsibility on the part of Locomotive Engineer Fox than Conductor Hart. While to some degree that argument is understandable, the Arbitrator is less than persuaded that Mr. Hart should be viewed as free of any responsibility, as suggested by the Union. Firstly, as stressed by the Company, the grievor and his locomotive engineer obviously placed their light engines in a precarious place, having decided to proceed across the level crossing to the stopping point where the violation of CROR 439 eventually occurred. They could, it does not appear disputed, have stopped their units on the opposite side of the highway, not obstructing the level crossing and could simply have awaited the change in the signal that would have allowed them to enter the yard, before proceeding through the level crossing. Even accepting, as the employees state, that they could not properly see the red stop signal by reason of the placement of the sun, they could have exercised a degree of foresight in more carefully visually inspecting the stop signal before venturing onto the level crossing, it being understood that they could not reverse direction across that area without a rail traffic controller’s authorization.

Secondly, Mr. Hart is an experienced railroader in the running trades. The Arbitrator finds it difficult to believe that he should not, like his locomotive engineer, have had an appreciation of the inherent risk in attempting to move two road locomotives an extremely short distance in the circumstances in which they found themselves. In other words, if the uncontrolled balk or jump in the locomotive is something that should have been known to Mr. Fox, I am also of the view that it is a factor which the grievor, as conductor in charge of the movement of the power units, should also have taken into account. To put it simply, I cannot accept the suggestion that the grievor is entirely without responsibility for the incident which occurred. He should, in my view, be treated on a basis that is equitable in relation to the disciplinary treatment given to Locomotive Engineer Fox.

For the foregoing reasons the grievance is allowed, in part. Having regard to the result in CROA&DR 3866 and to the relatively good disciplinary record recorded by the grievor over a relatively lengthy period of service to the Company, I am satisfied that an adjustment in discipline is appropriate. The Arbitrator directs that the grievor be reinstated into his employment forthwith, with no loss of seniority and without compensation for any wages and benefits lost. The period from the time of his discharge to the date of his reinstatement shall be recorded as a suspension for the violation of CROR 439.

April 19, 2010 (signed) MICHEL G. PICHER

ARBITRATOR