SHP 250
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
(the "Company")
AND
CANADIAN DIVISION, BROTHERHOOD RAILWAY CARMEN OF THE UNITED STATES AND CANADA
(the "Union")
AND IN THE MATTER OF A GRIEVANCE CONCERNING REMEDY FOR ALLEGED VIOLATION OF BLUE FLAG RULES
SOLE ARBITRATOR:
J. F. W. Weatherill
APPEARING FOR THE UNION:
T. Wood
APPEARING FOR THE COMPANY:
S. A. MacDougald
A hearing in this matter was held at Montreal on September 13, 1988.
AWARD
In this grievance it is alleged by the union that a company supervisor violated certain provisions of Appendix 1 (Blue Flag Rules) of Agreement 12.35, and a remedy is sought therefor.
The Joint Statement of Issue is as follows:
The Brotherhood alleges that on March 3, 1987 a Company Supervisor improperly removed the Blue Flag protection from Track R 13, MacMillan Yard and allowed a yard engine to proceed into the track to remove the caboose. Carmen were still in the process of inspecting cars on Track R 13 when the Blue Flag protection was removed without their knowledge.
The Brotherhood is requesting that the Company Supervisor responsible for this incident be restricted from working positions responsible for the safety of other employees.
The Company has denied the Brotherhood’s request.
The Regulations for the protection of employees working in and about cars and locomotives in yards are an Appendix to the collective agreement and make detailed provision for "blue flag" and related procedures in various circumstances. In a general way, it may be said that blue flag protection serves to isolate trains or engines on which work is being performed, and to prevent their being moved at such times.
The manner in which blue flag protection is applied and removed varies somewhat with the type of yard in which the equipment is located. In the instant case, the procedures set out in Sections 2 and 3 of the Regulations are material. Those Sections are as follows.
Coach and Flat Traffic Yards
2. Employees before making inspection of, or performing minor repairs on or about cars or locomotives, attending heaters, loading, unloading, or, cleaning cars must display the Blue Flag by day and Blue Light by night at both ends of each track occupied by the cars or locomotives, until all work is completed, after which Blue Flags or Lights must be removed.
Each class of workmen or other responsible person as designated by Supervisor in charge must display their Blue Signals and the same workmen are alone authorized to remove them. They must not remove their Blue Signals until it is known that all employees within their classifications who are working under the protection of their Blue Signals have completed their work and are made aware of the removal of this protection.
All equipment requiring repairs which makes it necessary for the employees to work in a dangerous position, should be placed on repair tracks, but if circumstances are such that this is impractical to do so, employees sent to make repairs must ensure switches are lined so as to prevent movement onto the track, and they must personally apply special lock and Blue Signals at each end of track on which such equipment is standing, and in addition to this must notify Switch foreman or Yardmaster, if any, of the action taken. After the completion of repairs, such employees must remove locks and Blue Signals, and also Personally advise Switch Foreman or Yardmaster, if any, that repairs have been completed and track is released.
Hump Yards
3. In hump yards where tracks are equipped with remotely controlled power operated switches, workmen required to work on any track must determine with a designated responsible Car Department person that such switches are lined away so as to prevent movement onto the track, and locked, prior to commencing work on or about cars or locomotives.
When it is not possible to manually lock remotely controlled power operated switches in a particular hump yard in a safe and positive manner, approved safety regulations will be provided under these circumstances. Employees must be made fully aware of these regulations by the Equipment Supervisor and they must be strictly adhered to by all concerned.
Whenever special or more detailed regulations are in effect to cover the complex operating conditions in hump yards, employees must be made fully aware of them and these special regulations will govern.
Work performed on tracks equipped with manually operated switches will be governed by safety regulations as applicable to Traffic Yards. (See Section 2).
On the day in question, certain car inspection work was to be performed on cars located on Track R 13 at MacMillan Yard. At the north end of Track R 13, protection is provided in accordance with Section 2 of the Regulations. A blue metal flag mounted on a staff is fastened to the rail by the Carmen or a Foreman prior to the beginning of inspection. As well, the track switch is locked with a padlock. That procedure, it appears, was properly followed on the day in question.
The south end of Track R 13, however, is equipped with a power operated Switch connected to a control panel controlling access to the track. The control panel is in an office in a building beside the receiving yard, and one supervisor on each shift is responsible for its operation.
Where Section 3 of the Regulations applies, it is not made clear that a blue flag is actually to be mounted on the rail, although that would be consistent with the overall scheme of the regulations. In any event, where Section 3 applies (as it did at the south end of Track R 13), control of the Switch is not at the site, but at the distant control panel. When work is to be done on such a track, then in accordance with Section 3 of the Regulation, the workmen "must determine with a designated responsible Car Department person that such switches are lined away so as to prevent movement onto the track, and locked, prior to commencing work on or about cars or locomotives". On the day in question, that was done, and blue flag protection was given, with respect to the south end of Track R 13, by the Foreman at the control panel.
After having granted blue flag protection at the south end of Track R 13 on the day in question, the Foreman received a request to permit a yard engine crew to remove the caboose from the consist of train 397 which was then in Track R 13. The Foreman allowed the yard crew to proceed: that is, he removed the blue flag protection and opened the switch. This procedure, it will be remembered, does not take place at the site, as the other blue flag procedures do. The Foreman removed the protection and allowed the yard crew movement onto the track because, according to the company’s brief, "he assumed the Carmen were not yet inspecting the train because they had not contacted him to tell him they had started work on Track R 13".
Such an assumption, in my view, is not one contemplated by the Regulations, and not one that ought to be made. Once blue flag protection has been requested and granted the assumption, surely, should be that employees are at work on the track in question, and the protection removed only when it has been ascertained – not assumed – that the employees are safely away from the track. Under Sections 1 and 2 of the Regulations, blue flag protection is removed by those who put it on; under Section 3 the protection is applied and removed from a distant control room, but it is applied at the request of on-site workers, and should, accordingly, only be removed upon verification from them that it is safe to do so.
The company requires employees to obtain the Supervisor’s permission before starting work on a track. Following the incident in question, the company put up a notice reminding employees of that requirement (which is certainly a proper one), and noting that:
Some staff have been in the practice of looking at the control panel and if they see a flashing light assume that the track will be locked when they arrive at that track.
I agree that the flashing light (indicating that the operation of the power switch has been blocked), should not be relied on by employees as a guarantee that they have blue flag protection while working on the track. That protection should only be granted in accordance with the procedures set out in the Regulations. It may be that the Foreman in the control room would have good reason for not granting blue flag protection at a particular time (anticipating a train movement, perhaps, or considering that the employees were not yet ready to work on that track), and in such a case employees would simply not begin work on the track. Once protection is granted, however, it should only be removed in accordance with the procedures contemplated by the Regulations, and no assumptions should be made.
Accordingly, it is my conclusion that in the instant case the Foreman did violate Appendix 1 of the collective agreement. There is, however, a difficult question as to the relief which may be available to the union in such circumstances. The union seeks an order restricting the assignments which may be given the supervisor in question, That individual is not a member of the bargaining unit, is not covered by the collective agreement and was not a party to these proceedings, I do not consider that I have jurisdiction to make an award directly affecting such a person. In any event, while I consider that the Foreman ought not to have proceeded as he did on the basis of an assumption, it appears that the possibility of such an assumption is not as clearly excluded from the Section 3 procedures under the Regulations as it is from those in Sections 1 and 2. In my view, the proper relief to be granted in the circumstances is to require the company to issue instructions to the effect that where Blue Flag protection is granted pursuant to Section 3 of the Regulations, such protection can only be removed upon confirmation by a designated responsible Car Department person, on the site, that it is appropriate to do so. This requirement, in my view, does not add to, but rather clarifies what I consider to be the proper interpretation of the collective agreement.
For the foregoing reasons the grievance is allowed. It is my award that instructions be issued in accordance with the above.
DATED AT TORONTO, this 11th day of October, 1988.
(signed) J. F. W. Weatherill
Arbitrator