CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3967
Heard in Montreal, Tuesday, 11
The 30 day
suspension of Locomotive Engineer Patrick Quinlan.
UNION’S STATEMENT OF ISSUE:
On October 7, 2009,
Mr. Quinlan was involved in an incident while employed as a Qualified Train
Operator (Locomotive Engineer) on Train 492 on the Oakville Subdivision.
an investigation and statement held on October 16, 2009, the Company issued a letter
to the grievor dated October 28, 2009 informing him that he was assessed a 30
day suspension without pay, citing the following reasons: “You failed to
adequately control your train, resulting in an emergency application of the
train brakes to prevent passing a red flag.”
The Union appealed the discipline assessed as unwarranted and
in any case excessive. The Union requested
that the Company reduce the amount of discipline assessed.
declined the Union’s request, maintaining that
the discipline assessed was appropriate.
FOR THE UNION:
(SGD.) G. MacPHERSON
There appeared on behalf of the
M. Horvat –
E. Salem –
Director Operations, Toronto
A. Brown –
Manager, Human Resources, Mississauga
N. Lefebvre –
Human Resources Advisor, Mississauga
There appeared on behalf of the Union:
D. Ellickson –
G. MacPherson –
General Chairman, Toronto
P. Quinlan –
AWARD OF THE ARBITRATOR
before the Arbitrator discloses that while the grievor was operating train 492
on October 7,
2009 he and his conductor were under operating orders which
required them to obtain permission before entering a rule 42 foreman’s limits
at mile 23 on the Oakville Subdivision. It appears that the grievor and his
conductor intended to call the foreman to obtain clearance into his limits but
in fact did not do so. As they were one mile from the foreman’s limits, at the
mile 24 marker, Conductor Todd Lawrie informed Locomotive Engineer Quinlan that
he had not yet talked to the foreman to obtain permission to enter his working
limits. The grievor then put his train’s throttle to the idle position and
initiated a full brake application, a measure which he was satisfied would stop
his train by mile 23. However, for reasons he best appreciates, Conductor
Lawrie, without consulting with the grievor, had already put the train into
emergency braking mode. Appropriate emergency calls and flagging were then
complied with and following a delay of approximately nine minutes the train
proceeded. Following a subsequent disciplinary investigation the Company
assessed a five day suspension against Mr. Lawrie and a thirty day suspension
against the grievor.
The sole issue
is the appropriate measure of discipline. It is not disputed that the grievor
was deserving of discipline. The Union
submits, however, that he should have been assessed the same five day
suspension as was meted out against Conductor Lawrie, the person who actually
applied the emergency brakes.
submits that there is a substantial distinction between the grievor and Mr.
Lawrie, having particular regard to the grievor’s prior disciplinary record.
Its counsel notes that, unlike Mr. Lawrie, the grievor has two prior
suspensions on his disciplinary record. He incurred a ten day suspension in
August of 2008, a penalty which was subsequently reduced to a seven day
suspension. He then recorded a further suspension of one day on February 6, 2009.
The ten day suspension was for a violation of rule 42. While the Company
acknowledges that the grievor was not expressly disciplined for having violated
rule 42, its counsel notes that the facts as disclosed would indicate a
violation of that rule. He submits that on the whole, and having particular
regard to the grievor’s disciplinary record, it was not inappropriate for the
Company to assess a thirty day suspension.
Arbitrator’s view, while it is true that the grievor’s prior record would
distinguish him from his conductor, there are some mitigating factors to
consider. Among them is the fact that it was not the grievor himself who
resorted to the emergency brake application, the event which triggered the
circumstances, given the length of the grievor’s service in the industry, I am
satisfied that a suspension was justified, albeit in a lesser quantity.
is therefore allowed, in part. The Arbitrator directs that the grievor’s
suspension for the events of October 7, 2009 shall be adjusted to a fifteen day
suspension, with the grievor to be compensated for the difference in wages and
January 17, 2011 (signed) MICHEL G. PICHER