CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3992
Heard in Montreal,
13 April 2011
Concerning
CANADIAN PACIFIC RAILWAY COMPANY
And
TEAMSTERS CANADA
RAIL CONFERENCE
MAINTENANCE OF WAY EMPLOYEES DIVISION
DISPUTE:
Dismissal of
Mr. Dennis Mews.
JOINT STATEMENT OF ISSUE:
On December 21, 2010,
the grievor was assessed with 60 demerits for a rules violation and dismissed
for an accumulation of demerits. A grievance was filed.
The Union contends that: 1. The
commenced Company service in June 1997. During his career with the Company he
was the recipient of discipline on only three occasions. 2. The Company did not consider other measures that could have
been taken in the circumstances such as deferred discipline or demotion/restriction.
3. The dismissal of the grievor
was unwarranted and excessive in the circumstances.
The Union requests that the grievor be reinstated into
Company service immediately under such conditions as the Arbitrator deems
appropriate in the circumstances.
FOR THE UNION: FOR
THE COMPANY:
(SGD.) WM. BREHL (SGD.)
M. GOLDSMITH
PRESIDENT LABOUR
RELATIONS OFFICER
There appeared on behalf of the Company:
M. Goldsmith –
Labour Relations Officer, Calgary
R. Hampel –
Counsel, Calgary
And on behalf of the Union:
Wm. Brehl –
President, Ottawa
D. W. Brown –
Counsel, Ottawa
A. R. Terry –
Vice-President, Ottawa
AWARD OF THE ARBITRATOR
The sole issue
in this grievance is whether it is appropriate to substitute a penalty lesser
than discharge, in particular a demotion, in light of the grievor’s
disciplinary history. The instant grievance arises as a result of the
termination of Track Maintenance Foreman Mews, as a result of his second
failure to observe the restrictions of a track occupancy permit (TOP) within a
seven month period.
The culminating
incident occurred on November 18, 2010. In his capacity as track maintenance
foreman Mr. Mews was then assigned to work with a Sperry crew to detect track
defects. Two contractor employees were then under his responsibility. During
the course of his duties he took out TOP No. 1827 and a follow-up TOP which
gave him authority to occupy main track between Carseland and Strangmuir on the
Brooks Subdivision, subject to remaining behind a train identified as CEFX 1029
West. In other words, the grievor and the workers under his care were not to
enter the territory in question until train CEFX 1029 West had passed out of
the territory. In fact Mr. Mews placed his high-rail vehicle on the track and
entered the territory, by his own account having forgotten that the train had
not yet passed. Shortly thereafter he encountered the oncoming CEFX 1029 West
which, fortunately, was operating at a highly reduced speed by reason of the
presence of a further train in the vicinity. In the result, the train was able
to stop short of a collision with the grievor who, in fact, was able to reverse
his vehicle and remove it from the track without further incident.
The Arbitrator
readily appreciates the Company’s concern. It appears that on April 26, 2010
Mr. Mews had been involved in a very similar TOP infraction. He disregarded the
restriction of not entering protected territory until a particular train had
passed. That incident resulted in the assessment of thirty demerits. By a
doubling of discipline, the sixty demerits for the culminating incident of November 18, 2010
brought the grievor’s accumulated demerits to the level of ninety, clearly a
dismissable position. The Company also relies upon the fact that in 2004 the
grievor failed to stop his Brandt truck sufficiently in time to avoid a
collision with a BTMF truck, an incident which resulted in the assessment of
thirty demerits. It submits that in all of the circumstances the grievor’s
termination was justified.
The Union’s representatives do not dispute the seriousness of
the incident which led to the grievor’s discharge nor the general importance of
respecting TOP restrictions. They maintain, however, that notwithstanding the
cardinal rule violation which occurred, precedent within the industry, and
indeed within the decisions of this office, suggests that there are appropriate
cases for the demotion of an employee in such a circumstance, rather than
summary termination. In that regard the Arbitrator is referred to a number of
prior awards, including AH 548, CROA
2487 and CROA 3555. Special
emphasis is put on two separate cases: CROA
1664 and CROA 2672. Both of the
latter grievances involved union members who were subject to a permanent
demotion, with restrictions, rather than discharge for similar cardinal rules
violations.
Having
considered these submissions, I am satisfied that it is appropriate to
substitute a penalty in the case at hand. The grievor has been disciplined on
only three occasions in some thirteen years of service. Apart from the two
cardinal infractions which occurred in 2010, he can be said to have had a
relatively positive disciplinary record. I do share the Company’s view,
however, that the repeated violations of the TOP restrictions are serious
offences. In the circumstances I deem it appropriate to return the grievor to
work, however in a position other than track maintenance foreman, or indeed any position which would have him
holding track occupancy permits.
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 wages and benefits lost. He shall be returned to a demoted
position in which he has no responsibility for holding track occupancy permits.
That condition shall remain until such time as the Company deems it appropriate
to change it. The period between the grievor’s termination and reinstatement
shall be recorded as a suspension for the events of November 18, 2010.
April 18, 2011 (signed) MICHEL G. PICHER
ARBITRATOR