CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4061
CANADIAN NATIONAL RAILWAY COMPANY
Discipline assessed G. Bayard resulting in discharge for accumulation of 89 demerit marks.
JOINT STATEMENT OF ISSUE:
received 30 demerits and a discharge after the Company held a formal
investigation regarding alleged violation. The alleged offences were
responsibility for the accident sustained to ballast regulator CN 618-89 on
disagrees with the Union’s contentions and has declined the
(SGD.) M. PICHÉ (SGD.) S. BLACKMORE
STAFF REPRESENTATIVE MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
C. Gilbert –
Manager, Labour Relations,
D. Laurendeau –
Manager, Labour Relations,
R. Haggart – Assistant Chief, Engineering
There appeared on behalf of the
M. G. Piché –
P. Jacques –
R. Tompkins – Chief Steward, GLR,
P. Wills – Unit 33 Chairman,
G. Bayard – Grievor
AWARD OF THE ARBITRATOR
There are two
aspects to this grievance. The first concerns whether the grievor was
responsible for damage to the ballast regulator which he was operating at
approximately 1:00 a.m. on
It is not
disputed that as he was operating his ballast regulator during the course of
night work on
Upon arriving at the machine I noticed that the pin on the barrel end of the left side wing rotate cylinders had broken and the cylinder was hanging, I also noticed that the mounting tabs for the broken pin were slightly bent. I found a pin and new spherical bearing and new pin in the tool box of the machine, straightened out the mounting tabs and reinstalled the cylinder with the new parts. The operator returned to work and I phoned the foreman and reported that the machine was back to work. 10-15 minutes later the operator informed me over the radio that the front template door of the left wing would not close fully. I recorded this and reported it to the other maintainer for repair during our days off.
It appears to be common ground that the machine was taken out of service and repaired on the ensuing days off and that there was no loss of production in relation to it.
Following a disciplinary investigation the Company assessed thirty demerits against the grievor. That assessment was based on two aspects: firstly, his responsibility for the accident and damage to his ballast regulator and, secondly, Mr. Bayard’s failure to report the accident to his own supervisor.
grievor’s behalf, the
With respect to the first issue I have some difficulty with the Company’s case. The unchallenged evidence of the grievor is that he could not see the concrete slab which was at ground level and covered by ballast as he operated in the dark, with dust in the air and some grime covering the lower portion of the window of his machine. I am satisfied that the grievor cannot be faulted for the collision between his machine and the concrete slab in question. I find the suggestion of the Company, that an indent in the grass line along the side of the track should have alerted the grievor to the concrete slab, to be less than compelling.
issue relates to whether the grievor did fail to report the damage to his
machine to his supervisor. There appears to be no dispute that CN Safety Rules
Item 3.1(g) requires such a report. It reads, in part: “Immediately report all
accidents, injuries or damage as well as near misses to the proper authority.”
It is clearly the position of the Company, not seriously challenged by the
It the instant case there is some genuine confusion as to whether the Extra Gang Foremen were ever advised. Both Extra Gang Foreman Tim Thackeray and Extra Gang Foreman Phillip Cunningham filed statements to the effect that no one had reported damage to them. In contrast to that, Mechanic James Hiltz records in his narrative statement that: “… I phoned the foreman and reported that the machine was back to work.” Whichever version is accepted, the fact remains that the grievor did not himself contact a supervisor when damage occurred to his machine, I am satisfied that it was his duty to do so and that by failing in that duty he made himself liable to discipline.
At the time in question the disciplinary record of Mr. Bayard stood at fifty-nine demerits. The assessment of thirty demerits for this incident resulted in his termination for the accumulation of demerits.
While I do not question the Company’s entitlement to assess discipline on the facts of the case at hand, I do consider that there are mitigating factors to consider. The employee has some sixteen years’ service. While it is true that his prior disciplinary record is not exemplary, and he had recently been subjected to a suspension for having caused damage to private property with his ballast regulator, the culminating incident here under consideration did involve what appeared both to the mechanic and to the grievor as relatively minor damage which was fixed in a matter of ten to fifteen minutes. As noted above, it also appears that the mechanic may have called the foreman to advise him of what had occurred. While these facts do not excuse the grievor’s failure to meet his own obligation to advise his supervisor, the seriousness of what occurred is somewhat attenuated.
circumstances, I am satisfied that the grievance can be allowed, in part. The
Arbitrator directs that the grievor be reinstated into his employment
forthwith, without compensation for wages and benefits lost, and without loss
of seniority. His disciplinary record shall be restored to the level of
fifty-nine demerits and the time between his termination and reinstatement
shall be recorded as a suspension for the events of