CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3972
CANADIAN NATIONAL RAILWAY COMPANY
assessment of a discharge to Locomotive Engineer G. Kamlade for “circumstances
surrounding your train handling policy violation and CROR Rule 439 violation
while on the CP Thompson Subdivision with train M34551-26 on
JOINT STATEMENT OF ISSUE:
disagrees with the
(SGD.) T. MARKEWICH (SGD.) D. CROSSAN
FOR: GENERAL CHAIRMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
D. Crossan – Manager, Labour Relations, Prince George
D. VanCauwenbergh –
Director, Labour Relations,
J. Orr – Assistant Vice-President, BC South
There appeared on behalf of the
D. Ellickson –
B. Willows –
T. Markewich –
Sr. Vice-General Chairman,
B. R. Boechler –
R. A. Hackl –
G. Kamlade –
AWARD OF THE ARBITRATOR
before the Arbitrator confirms that the grievor was the locomotive engineer on
train M35451-26 on
During the course of the disciplinary investigation when asked why he had not attempted to slow his train in a controlled manner in preparation for the stop at signal 568 Mr. Kamlade stated that he and his conductor had commenced a conversation respecting a 25 mph slow zone which they were approaching. He also indicated that he might subconsciously have expected that the signal would be permissive when they reached it. The Company concluded that in fact the operating element which caused the rule violation was the grievor’s hope that the signal would change and that he would not need to bring his train to a stop, a hope which was obviously not realized. It therefore concluded that the grievor was less than forthcoming in his explanation of the events and effectively raised the purported conversation about the reduced speed zone as a manufactured distraction to diminish the suggestion that he was simply anticipating a change in signal.
I do not consider it necessary to resolve the merits of the two opposing theories of what might have transpired in the locomotive cab to cause the rule violation which occurred. On either theory, the grievor must be found responsible for a clearly avoidable violation of CROA rule 439. There is no dispute that he had ample visibility of the stop signal from a distance of some 1,200 feet, with all the opportunity necessary to handle his train so as to bring it to a controlled stop. Even accepting the grievor’s explanation, that he was distracted in a conversation with his conductor, there can be little doubt that he committed a grave error and negligence in failing to advert and respond to the signal in sufficient time to stop his train properly. If it were necessary to choose as between the two versions of events offered by the parties, bearing in mind that the Company bears the burden of proof, I would be inclined to accept the uncontradicted evidence of the grievor that he lost concentration by reason of his conversation with his conductor.
The real issue in this grievance is the appropriate measure of discipline. In considering that question there are both aggravating and mitigating factors to take into account. The most aggravating factor is that this appears to have been the second violation of Rule 439 by the grievor. In October of 1993 he received thirty demerits for that infraction while operating on the Yale Subdivision. As counsel for the Union stresses, however, the grievor has not received demerits for any operating rule violation for some seventeen years prior to the incident here under review. I am satisfied that that record, coupled with the grievor’s thirty-five years of service to the Company does justify a substitution of penalty, albeit a severe one.
The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without loss of seniority and without compensation for any wages and benefits lost. The period between the grievor’s discharge and reinstatement shall be recorded as a suspension.