CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3999
CANADIAN NATIONAL RAILWAY COMPANY
assessment of a discharge to Locomotive Engineer D. Haynes for violation of
CROR Rule 439, passing a stop signal without authority, at Signal 62ND in
JOINT STATEMENT OF ISSUE:
The Company concluded an investigation of the incident and determined the grievor had violated CROR rule 439 and subsequently discharged him.
disagrees with the
(SGD.) T. MARKEWICH (SGD.) D. BRODIE
FOR: GENERAL CHAIRMAN FOR: VICE-PRESIDENT, HUMAN RESOURCES
There appeared on behalf of the Company:
K. Morris –
Sr. Manager, Labour Relations,
D. Gagné –
Sr. Manager, Labour Relations,
B. Jessup –
R. Czuy – Manager, S&C Safety Assurance
D. Larouche –
Manager, Labour Relations,
There appeared on behalf of the
M. A. Church –
T. Markewich –
R. Hewson –
General Chairman, IBEW,
D. Haynes – Grievor
AWARD OF THE ARBITRATOR
subsequent investigations the Company determined that at all material times the
dwarf signal in question was displaying a red stop indication. Based on that
fact, and the grievor’s prior disciplinary history which included an earlier
CROR 439 violation, the grievor was notified of his discharge for passing a
stop signal without authority, effective
before the Arbitrator concerns considerable documentation with respect to
subsequent investigations of the location and signal where the infraction
occurred. A report provided by Mr. Doug Brooks, S&C Manager for
In fact the Company conducted a more extensive examination of the site, generating a more detailed report which includes a number of log entries. Among the entries is the following with respect to the observations of Signal Supervisor Kevin Kirby and Signal Maintainer Mike Poltorak: “They did report that the signal did look yellow from the conductor’s side of the unit, due to the Sun’s reflection/angle, with respect to signal 62ND, so they will be coming back out tomorrow, same time of day to further confirm this possibility.”
It is common ground that a subsequent examination of the signal showed that it was slightly misaligned. In fact maintenance was performed on it to correct its alignment and to install a new sun hood, among other things.
Counsel for the
The fundamental issue in this case is whether the Company has established just case to discharge Locomotive Engineer Haynes, an employee of over thirty years’ service who was two years from eligibility for retirement with an unreduced pension. It is trite to say that in this matter of discipline the burden of proof is upon the employer. It must establish, on the balance of probabilities, that the grievor knowingly or negligently ignored a stop signal in the operation of his train, in clear violation of CROR rule 439. Upon a careful examination of all of the evidence, the Arbitrator cannot find that that burden has been discharged.
The observations of Signal Supervisor Kirby, recorded on the same day as the incident, openly confirm that as best he could determine from a position in the cab of a locomotive, notably the position the conductor, given the location of the bright late afternoon sun striking the low dwarf signal, that signal did transmit a yellow colour. That observation is entirely consistent with the explanation given by both Locomotive Engineer Haynes and his conductor. Both are adamant that what they saw was yellow signal emanating from the dwarf signal unit, an impression which is clearly consistent their calling of the signal, a call which was in fact recorded on the Company’s radio system. It is also consistent with photocopies and video evidenced presented at the arbitration hearing.
While the Company’s representative suggests that the grievor and his conductor may have made their observation and call from a distance which was less than optimal for reading the dwarf signal, suggesting that the preferable point of focus would be some 300 feet distant from it, that is a speculative and to some extent unrealistic suggestion, bearing in mind that the grievor and his conductor remained occupied with the ongoing operation of their train in the context of a relatively busy yard. It is also contradicted by the unchallenged statement of the grievor who says of the signal: “We verified it until we were right on top of it.”
It is true, as the Company notes, that in fact the signal was recording a red colour, indicating stop, and that the grievor’s train did pass a stop signal. However, I cannot conclude that disciplinary responsibility can be brought to bear on Locomotive Engineer Haynes in the circumstances disclosed. As indicated above, the Company’s own investigation confirmed that the dwarf displayed a colour that would have appeared yellow to someone in the cab of a locomotive who approached it at that precise time on the date in question, with strong sunlight bearing directly on the misaligned lens of the signal. In the result I can see no basis upon which the grievor can be disciplined for the rule 439 violation in the case at hand.
The grievance is therefore allowed. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without loss of seniority and with compensation for all wages and benefits lost.
April 18, 2011 (signed) MICHEL G. PICHER