RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3941
CANADIAN NATIONAL RAILWAY COMPANY
the assessment of 10 demerit marks to Locomotive Engineer G. (Ben) Foreman for violation of CROR Rule 157(i), and
CROR General Rule A(ii) on
JOINT STATEMENT OF ISSUE:
The Company conducted an investigation of the incident and assessed discipline in the form of 10 demerit marks.
disagrees with the
(SGD.) T. MARKEWICH (SGD.) D. BRODIE
FOR: GENERAL CHAIRMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
P. Payne –
Manager, Labour Relations,
D. Brodie –
Manager, Labour Relations,
K. Morris –
Sr. Manager, Labour Relations,
T. Brown –
General Manager Operations,
D. Broesky –
And on behalf of the
M. A. Church –
T. Markewich –
G. B. Foreman – Grievor
AWARD OF THE ARBITRATOR
discloses that on
As a result of the trainmaster’s finding, the grievor was given a notice to attend at a disciplinary investigation, following which he was assessed ten demerits for his failure to have properly initialled the TGBO and for his not having an up-to-date operating manual with respect to dangerous goods. Specifically, he was charged with violating CROR 157 which deals with the Tabular General Bulletin Order as well as CROR General Rule A(ii), which provides as follows:
A Every employee in any service connected with movements, handling of main track switches and protection of track work and track units shall;
(ii) have a copy of this rule book, the general operating instructions, current time table and any supplements, and other documents specified by the company accessible while on duty;
The Company ultimately took no issue with the grievor not having his medical card, as in fact it appears that he did have it in his personal bag at the time, although he was unable to find it then.
On the whole, having close regard to the facts, the Arbitrator cannot find that the Company has established a violation of General Rule A(ii) by Mr. Foreman. The evidence does confirm that Mr. Foreman did fail to initial two parts of the first page of his TGBO. These were the parts which involved the identification of his train and the identification of the territory over which the train would operate. There is, however, a mitigating factor to be taken into consideration with respect to that failure. As reflected in Mr. Rutherford’s own memorandum, when he spoke to Mr. Foreman about not having initialled the “applicable on” and “train designation” portion of the first page of the TGBO Mr. Foreman responded to him that his training supervisor, Harvey Harapiak, told him during the course of his most recent rules class that it was not necessary to do so. That statement by the grievor is not challenged by the Company. In the Arbitrator’s view that must be viewed as a mitigating factor of some significance. Indeed it appears that Mr. Rutherford undertook that he would correct Mr. Harapiak, which presumably was done.
On the whole, I am not satisfied that the facts disclose grounds for the assessment of ten demerits against the grievor. At most a counselling with respect to the proper initialling of the TGBO would have been appropriate, especially given that the grievor appears to have been incorrectly counselled otherwise by a member of management.
The grievance is therefore allowed. The Arbitrator directs that the ten demerits assessed against the grievor be removed from his record forthwith.