RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3951
Heard in Calgary, Wednesday, 10 November 2010
VIA RAIL CANADA INC.
DISPUTE – UNION:
assessment of discipline to Locomotive Engineer Carl Pingitore of Winnipeg, MB,
“For your delay to your assignment while enroute to Sioux Lookout on February 12, 2010,
and subsequent delay to VIA Train #1 on February 13, 2010.”
assessment of 25 demerit marks to the discipline record of Mr. Carl Pingitore.
UNION’S STATEMENT OF
On February 12, 2010,
Mr. Pingitore was required to deadhead to Sioux Lookout due to a derailment on
the CN line on February
11, 2010 that resulted in delays to VIA’s operation. Mr. Pingitore
reported for duty on time at 09:00 but the taxi was dispatched to the wrong
location and did not arrive at the VIA station until approximately 10:00. While
enroute to Sioux Lookout, Mr. Pingitore took the customary 30 minute stop to
use washroom facilities, stretch and obtain a snack. On arrival at Sioux
Lookout, Mr. Pingitore and his crew booked 8 hours rest in order to be fit for
the return portion of the trip on VIA train #1.
held an investigation into the incident claiming that Mr. Pingitore
intentionally delayed the deadhead departure and while enroute in order to
delay the subsequent departure of train #1 from Sioux Lookout later that
evening. As a result, Mr. Pingitore was assessed 25 demerits.
The Union contends that the Corporation did not prove any
guilt with regards to intentionally delaying the deadhead or the return trip on
VIA #1. The Union further contends that the
investigation was not fair and impartial in violation of article 20 of
agreement 1.4 given the two previous investigations stemming from the same
It is the Union’s position that Mr. Pingitore’s discipline is
unwarranted and should be expunged or, in the alternative, the discipline
should be significantly reduced.
Corporation’s responses have been the acknowledgement of the Union’s
grievance, which was submitted at Step III of the grievance procedure on June 29, 2010,
and a claim that the Step II was never received but only requested the mail
STATEMENT OF ISSUE:
On February 12, 2010,
Mr. Pingitore delayed the departure of his dead-head tour of duty be 1 hour and
25 minutes. While enroute to Sioux Lookout, Mr. Pingitore took an extended 30
minute break while already late. On February 27, 2010 an investigation was held
concerning the delay compounded enroute. Following the investigation Mr.
Pingitore was assessed twenty-five demerit marks.
Corporation submits that Mr. Pingitore deliberately increased the delay enroute
when already late thereby compounding the initial delay. The Corporation
further submits that Mr. Pingitore is a highly experienced, short service
employee who is familiar with the detrimental effects that even a minor delay
can have on the on-time performance of a train especially in the case of a
circumstances the Corporation maintains that the discipline was warranted and
FOR THE UNION: FOR
(SGD.) T. MARKEWICH (SGD.) D. STROKA
ADVISOR, LABOUR RELATIONS
There appeared on behalf of the
D. Stroka –
Sr. Advisor, Labour Relations, Montreal
B. A. Blair –
Sr. Advisor, Labour Relations, Montreal
Wm. Mann –
Manager, Train Operations – East
There appeared on behalf of the Union:
M. A. Church –
B. Willows –
General Chairman, Edmonton
T. Markewich –
Vice-General Chairman, Edmonton
G. Mensaghi –
Local Chairman, Division 854
C. Pingitore –
AWARD OF THE ARBITRATOR
As related in CROA&DR 3950, the grievor and his
workmate were deadheaded from Winnipeg
to Sioux Lookout on February
12, 2010. It is not disputed that during the course of the trip,
which took some six hours, the grievor and his crew mate, along with the taxi
driver, stopped for a thirty minute break enroute to have a meal and stretch
their legs. They therefore arrived in Sioux Lookout at 16:25 hours at which
point they booked eight hours rest and requested a two hour wake-up call.
maintains that the combination of events, including the late departure of the
grievor and his workmate from Winnipeg, related in CROA&DR 3950, the thirty minute meal break which they took
enroute during their deadhead assignment and the fact that they booked eight
hours rest with an additional two hour wake-up call at Sioux Lookout caused a
subsequent delay in their assignment, Train no. 1, on February 13, 2010. It is not
disputed that that train, scheduled to depart at 01:16 in fact left the station
in Sioux Lookout after a fifty-seven minute delay. It appears that it was some
nineteen minutes late in its subsequent arrival at Winnipeg.
submits that the grievor was engaged in a deliberate attempt to delay Train no.
1. While it acknowledges that he cannot be disciplined for booking eight hours
rest, which is his right under the collective agreement, it maintains that that
fact, coupled with the thirty minute break during the deadhead trip from Winnipeg to Sioux Lookout,
contributed unreasonably to the train delay.
cannot agree. The uncontroverted evidence before me is that it is normal for a
deadhead trip from Winnipeg
to Sioux Lookout to take some six hours. The Arbitrator is advised, without
contradiction, that the crews deadheading that route normally stop two times
enroute. In the Arbitrator’s view it is doubtful whether stopping only once for
perhaps ten or fifteen minutes would have made a material difference in the on
time operation of Train no. 1 on the following day. More importantly, I do not
consider it unreasonable for the grievor and his workmate to have a taken a
thirty minute break during the course of a six hour taxi trip, to allow
themselves to stretch their legs, use a washroom and take a meal. There is, in
my view, no evidence to suggest that the break which was taken, which was
plainly within the norm, reflected a conspiracy on the part of the grievor to
sabotage the normal operation of Train no. 1.
alternative submission the Union maintains
that the grievor was denied a fair and impartial investigation. It draws to the
Arbitrator’s attention what it characterizes as abusive and accusatory
questioning on the part of the Corporation’s investigating officer. Counsel for
the Union submits that it is clear from the
record of the Corporation’s investigation that the officer plainly prejudged
the issue of the grievor having plotted to delay Train no. 1. Upon a review of
the record of the investigation the Arbitrator can readily understand the Union’s concern. Given the disposition of the grievance
on its merits, I find it unnecessary to deal with that issue.
is therefore allowed. The Arbitrator directs that the twenty-five demerits
assessed against the grievor be removed from his record forthwith.
November 15, 2010 (signed)
MICHEL G. PICHER