RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3938
CANADIAN NATIONAL RAILWAY COMPANY
The discharge to Conductor Michael Spain for his accumulation of demerits effective 21 May 2010.
JOINT STATEMENT OF ISSUE:
On May 11th Mr.
The 30 demerits issued 21 May 2009 effective 05 May 2009 –
for “Failing to Comply with CROR 112” while
employed as Conductor on Train 435 at
It is the
In addition to this assessment of discipline that resulted
in the grievor’s discharge, the following issues are also properly before the
arbitrator, based on discussions between the
1. The issuance of 14 demerits effective 15 June 2008 for his the grievor’s purported failure to properly sign and initial TGBOs as outlined in CROR Rule 157(i) when employed as the Conductor on aA43431-15 at MacYard
2. The issuance of 15 demerits effective 15 June 2008, the grievor’s purported violation of G.O.I. Section 8.12.6; not properly releasing hand brakes while making a lift at Paris West on cars AOK 28237, PROX 42022, PROX 43397.
It is the
● The Workplace Environment Provision as contained in the collective agreement article 84 (Grievance Process) of the collective agreement.
● Article 85 (Interpretation and Application) of the collective agreement the Grievance Tracking System (GTS).
● The Brown System of Discipline
As a result of such violations it is the
The Grievor be exonerated of any wrongdoing with all discipline removed, and
Given the violations of the
collective agreement that a remedy is applicable in the circumstances
consistent with Addendum 123 of the collective agreement. That the Company and
the Union agree to meet within 60 [days] of the date of the
Failure as to the appropriate remedy (to be determined by either party upon written notice to the other) to be submitted to the arbitrator for resolution within 30 days of such failure.
The Company disagrees and deems that all the discipline assessed in each incident was both warranted and appropriate in these instance cases.
(SGD.) G. GOWER (SGD.) F. O’NEILL
FOR: GENERAL CHAIRMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
F. O’Neill –
Manager, Labour Relations,
D. Gagnė –
SR. Manager, Labour Relations,
G. Hare – Assistant Superintendent,
behalf of the
G. Gower –
T. Redgrift –
P. Boucher –
Local Chairman, LE,
M. Spain – Grievor
AWARD OF THE ARBITRATOR
This arbitration involves three separate heads of discipline, including the termination of the grievor for the accumulation of demerits.
before the Arbitrator confirms that the grievor was reinstated into his
employment as a result of a prior award of this Office, CROA&DR 3674. That arbitration involved a review of some five
heads of discipline which, by reason of accumulation of demerits, resulted in
the grievor’s dismissal. Without dealing with the detail of the matters there
considered, it is noteworthy that the arbitrator found that a number of the
rule violations found to have been made by the grievor were, relatively
“technical;”. Several of the heads of discipline were reversed and Mr.
noteworthy that among the heads of discipline reversed by the arbitrator was
the assessment of ten demerits for a delay to the grievor’s train on
The first head of discipline involves the assessment of fourteen demerits effective 15 June 2008 for the grievor’s failure to properly sign and initial TGBOs as required by CROR 157(i). The facts before the Arbitrator confirm that the grievor did properly sign and initial two of the four pages of his TGBO but, it appears, by reason of having been interrupted in the course of doing so he failed to sign the other two pages.
The Arbitrator accepts the Company’s position that the signing of TGBOs is an important part of ensuring safe operations, as a means of verifying that an employee has fully adverted to the content of his or her operating orders. However in the case at hand I am inclined to characterize the grievor’s error as one that is more technical than substantive. There does not appear to be any dispute that he did read and review the TGBOs for which he was responsible. In my view the assessment of fourteen demerits, for such an incident, is excessive and a written reprimand would have been sufficient. The fourteen demerits are therefore removed from the grievor’s record, with a written reprimand to be substituted.
The second head
of discipline, which involved the assessment of fifteen demerits, related to
the grievor’s method of releasing hand brakes on an number of cars while
performing work at Paris West on
I find that the
assessment of fifteen demerits is excessive in this case as well. In my view
the assessment of five demerits would have been sufficient to bring home to the
grievor the importance of releasing hand brakes in the proper way. The
grievance is therefore allowed in part, with the grievor’s record to be adjusted
to show the assessment of five demerits for the incident of
The third and
final head of discipline concerns the grievor’s actions while setting off fifty
cars in track OG-21 at Oakville Yard on
It does not appear disputed that in accordance with CROR rule 112, in securing the equipment the grievor should have applied the full number of hand brakes that was appropriate and thereafter conducted a push pull test to ensure that they were properly engaged. That is reflected in CROR 112(b) which reads as follows:
(b) Before relying on the retarding force of the hand brake(s), whether leaving equipment or riding equipment to rest, the effectiveness of the hand brake(s) must be tested by fully applying the hand brake(s) and moving the cut of cars slightly to ensure sufficient retarding force is present to prevent the equipment from moving. When leaving a cut of cars secured, and after completion of this test, the cut should be observed while pulling away to ensure slack action has settled and that the cars remain in place.
confirms that when he was observed by his supervisors Conductor Spain applied
the hand brakes of only one car, at which point he did the push-pull test. It
is not disputed that he went on to apply the proper number of hand brakes, but
the Company asserts that he should have conducted the push-pull test only after
all of the hand brakes were set. Following an investigation, on the basis of
those facts, Mr.
has great difficulty with the discipline assessed against the grievor in
respect of this incident. Significantly, as stressed by the
The Arbitrator has considerable difficulty with that aspect of the evidence. If, as the Company maintains, the grievor had created a sufficient situation of peril to justify the assessment of thirty demerits, fully half the measure of discipline to justify discharge, it is difficult to understand why the Supervisors would not have complied with his suggestion that he do the test properly. The best inference would appear to be that they had little doubt but that the cut of fifty cars was in fact adequately secured on the basis of what the grievor had already done.
I am not satisfied that the incident, so described, justifies the assessment of thirty demerits and the summary termination of an employee of twenty-six years’ service. While it is true that Mr. Spain does have a fairly substantial record of discipline over his years of service, that record is generally devoid of cardinal rules violations of the kind which typically will justify the termination of an employee. Particularly given the fact that his supervisors allowed his actions to continue, and declined his offer to conduct a proper push-pull test, I have some difficulty seeing the incident as being so serious as to merit thirty demerits. In my view the assessment of ten demerits would have been amply sufficient in the circumstances, and I therefore direct that the grievor’s record be amended to show ten demerits for the failure to comply with rule 112.
During the course of the hearing the Union raised a number of arguments with respect to whether the Company had given the grievor proper notice of his alleged infractions and whether it had in fact denied him a fair and impartial investigation. Having reviewed the record I find that none of those allegations can be sustained.
In the result, the grievances are allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without loss of seniority and with his disciplinary record to stand at forty-five demerits. The grievor shall be compensated for all wages and benefits lost. In addition, prior to his resuming duties the Company shall take all reasonable steps to ensure that he has been properly refreshed and oriented with respect to operations.