RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3901
CANADIAN NATIONAL RAILWAY COMPANY
UNITED STEEL WORKERS (LOCAL 2004)
The discharge of Adam Moreau.
JOINT STATEMENT OF ISSUE:
The Company denies the Union’s
contentions and declines the
(SGD.) M. PICHÉ (SGD.) S. M. BLACKMORE
STAFF REPRESENTATIVE MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
S. Blackmore –
Manager, Labour Relations,
A. DeMontigny –
Sr. Manager, Labour Relations,
W. Paczkowski – Supervisor, Work Equipment,
behalf of the
M. Piché –
P. Jacques – Vice-President,
R. Tompkins – Chief Steward, GLR,
A. Moreau – Grievor
AWARD OF THE ARBITRATOR
It is not disputed that the grievor
was responsible for the collision of a number of track maintenance machines at
the south switch at Drocourt on the Bala Subdivision on
Shortly thereafter, the grievor’s machine, a ballast regulator weighing some 50,000 lbs, ran into the rear end of the third piece of equipment, a Mark IV Tamper at a speed estimated to be between 20 and 25 miles per hour. That caused a chain reaction whereby all four pieces of equipment were involved in some degree of collision. Fortunately there were no serious injuries, although the collision did cause more than $190,000 in damages to the various pieces of equipment.
A post-incident drug and alcohol screening test administered to Mr. Moreau returned a positive for his urine drug screen but he tested negative on an oral fluid test. That would indicate that while he may have consumed cannabis at some time in the past, he was not impaired at the time of the collision. Following investigation the grievor was discharged for his failure to comply with GEI rules 11.1, 11.2, 11.3, 11.4, 11.7 and 11.10.
As argued by the
11.1 Track units will operate under full control prepared to stop at all times. Operators must be increasingly vigilant as they approach any level crossing (public, private, farm or pedestrian), interlockings, animals or people near the track and when passing over bridges.
It obviously cannot be denied that
the grievor’s operation of his Regulator was not with the necessary degree of
care and control, as is evident from the collision which took place in
circumstances of straight track and clear vision. However, the
The unchallenged evidence of Mr. Moreau is that as his machine was proceeding towards the siding at Drocourt South a bee flew into the cab of the machine through its rear window, striking him in the face. He relates that he has a serious phobia with respect to bees and that its presence in the cab caused him to panic, attempting to swat or kill the bee as his machine moved forward. According to his account he only realized that he was in proximity to the other machines, and at risk of a collision, at the last moment. When he then attempted to pull back on the travel stick, which would disengage the forward movement, he in fact grasped the vehicle’s joy stick, which would have no such effect. Simply put, he was unable to take any meaningful step to slow or stop his regulator before the collision occurred.
The Company submits that in view of
the grievor’s relatively short service, and the fact that he has received prior
discipline, discharge was the appropriate outcome. The
After careful consideration the
Arbitrator is inclined to agree with the
The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for any wages and benefits lost and without loss of seniority. His reinstatement shall be conditioned on his accepting to be subject to random drug and alcohol testing, to be administered in a non-abusive fashion, for a period of two years following the date of his reinstatement. A positive drug or alcohol test result in that two year period will result in his immediate discharge at the discretion of the Company.