CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3961
CANADIAN NATIONAL RAILWAY COMPANY
The assessment of 15 demerits for failure to comply with CN Attendance Management Standards from Oct 01-Dec 25, 2007.
assessment of 25 demerits for failure to protect his assignment, GO Job 2, on
assessment of 15 demerits for failure to comply with CN Attendance Management
Standards by missing a call on
The assessment of discharge for failing to contact and receive instruction from a Rule 42 foreman before entering his work limits, while working on Q10651-09
JOINT STATEMENT OF ISSUE:
The Company deems the discipline assessed as both appropriate and warranted.
(SGD.) P. VICKERS (SGD.) J. LIEPELT
GENERAL CHAIRMAN SR, VICE-PRESIDENT, EASTERN REGION
There appeared on behalf of the Company:
S. Fusco –
Labour Relations Officer,
B. Hogan –
Manager, Labour Relations,
D. Gagné –
Sr. Manager, Labour Relations,
There appeared on behalf of the
J. C. Morrison –
P. Vickers –
P. Boucher –
M. Dwyer – Grievor
AWARD OF THE ARBITRATOR
There are four heads of discipline to be resolved within this award.
incident involves the grievor’s failure to comply with attendance management
standards for the period between October 1 and
incident under review concerns the assessment of twenty-five demerits for the
grievor’ lateness to work and failure to fully protect his assignment in GO
train service on Tuesday,
In the Arbitrator’s view the grievor was plainly deserving of discipline for reporting late to work. I consider, however, that the assessment of twenty-five demerits was high, in relation to what appears to have been the first incident of that kind in the grievor’s disciplinary record. I therefore direct that the discipline in relation to that matter be reduced to fifteen demerits.
discipline involves the assessment of fifteen demerits for the grievor’s
failure to respond to a call on
The final head
of grievance concerns Mr. Dwyer’s discharge for an incident which occurred on
They failed to do so. It appears that as they approached the limits, and the grievor in fact saw a signal indicating that they were approaching it, he attempted to learn from his conductor as to whether he had received the necessary authorization. It would seem that his conductor was then on the telephone speaking with employees on the ground who had conducted a PK inspection of their train as it passed. Mr. Dwyer took the impression that his conductor had looked up and responded yes to his question, an assumption which was in fact incorrect. In the result the track foreman saw the grievor’s train movement proceeding through his work limits without authorization and called Mr. Dwyer, causing him to stop his train.
Moving through the track occupancy limits of a work crew is a cardinal rule infraction of a kind which can have catastrophic consequences. The grievor was removed from service and, following a disciplinary investigation, was discharged for that incident.
It is difficult
to second guess the Company’s decision in that regard. Unfortunately the
grievor has an extremely negative record which respect to cardinal rules
infractions. In October of 2000 Mr. Dwyer was assessed forty-five demerits for
a violation of CROR 429, disregarding a stop signal, on the Halton Subdivision.
Six years later, in November of 2006 he again violated CROR rule 429, as well
as a number of related rules including the failure to report his violation,
for an incident which occurred at
The issue is whether, in all of the circumstances, discharge was justified. I have come to the regrettable conclusion that it was. The record discloses that the grievor has been given the advantage of progressive discipline over the years, notwithstanding two of the most serious cardinal infractions relating to violations of CROR 429 and a two year demotion from the duties of locomotive engineer. Notwithstanding those events Mr. Dwyer operated his train in such a way as to disregard the working limits of a track maintenance foreman occupying a two mile section of track on the Kingston Subdivision, in circumstances which could have been disastrous. Fortunately the foreman in question saw the grievor’s train and stopped it before it reached the area where it appears the maintenance crew was at work. Given the progressive discipline previously given to Mr. Dwyer in relation to similar infractions, this Office is compelled to doubt that yet another demotion or last chance is likely to have any meaningful rehabilitative effect.
In the result,
for all of the foregoing reasons, the Arbitrator is compelled to conclude that,
while the grievor’s disciplinary record should have stood at forty-five
demerits at the time of the incident resulting in his discharge, his
termination was justified by his violation of CROR 42 on