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The joint statement of issue provided to the Arbitrator by the parties in respect of this grievance is as follows:

Employed by the Company since September of 1974, the grievor, Mr. R. Sproule, was promoted to the rank of carman on November 23, 1978. From January of 1983 to the time of the incident giving rise to this grievance he worked as a hi-rail crane operator in a relief capacity, on an as-required basis.

The hi-rail crane is a mobile, heavy vehicle capable of movement on either roads or rail, commonly used for lifting cars or locomotives at derailment sites.

On Sunday, March 22, 1987 Mr. Sproule and Carman Frank Rotter, the regular operator of mobile crane E077594 worked their regular tour of duty from 0800 to 1600 hours at the MacMillan Yard Car Shop in Toronto. They were soon recalled to duty on an emergency basis, returning at approximately 2100 hours, from which time they worked to approximately 2200 hours on March 23, 1987, with a five-hour rest break from 0500 to 1000 hours on March 23.

Towards the end of their emergency assignment, at or about 2200 hours on March 23, Mr. Rotter proceeded to drive the mobile crane back to the car shop for storage, with Mr. Sproule riding in the passenger seat. En route they were required to stop at the junction of the roadway on which they were travelling and five tracks, including a track within MacMillan Yard referred to as the "green route". As they arrived at the crossing they were required to stop as a consist of units crossing over to the west yard on a track adjacent to the roadway on which they were travelling was blocking the crossing by occupying a track slightly to the east of the green route. When that movement had cleared the crossing, vacating the portion of the green route to the south of the crossing, a road engine proceeded southward on the green route. It is common ground that Mr. Rotter stopped the hi-rail to allow both these movements to proceed.

After the road engine had cleared the multiple track road crossing Mr. Rotter moved the hi-rail north approximately fifty feet past the stop sign where it had been waiting, and commenced to turn right, or eastward onto the five track crossing. At that point a third movement, a consist of locomotive units, was moving southward on the green route, following in the same direction as the road engine. While there is a divergence of position as to what next occurred, it is not disputed that the hi-rail crane moved within sufficient proximity of the green route track that the right side rear-view mirror was grazed by the moving consist of units. At that point, rather than stop or back up, under Mr. Rotter’s control the hi-rail crane in fact moved still further forward, striking the third unit of the consist with the right front corner of the hi-rail crane. The direct contact between the crane and the consist caused extensive damage to the right side of the hi-rail crane, in consequence of which it was taken out of service for several weeks for extensive repairs.

Following an investigation held on April 20, 1987, Mr. Rotter was assessed twenty demerits for failing to properly control the hi-rail crane, while Mr. Sproule received fifteen demerits for "exercising poor judgement contributing to damage to hi-rail crane #E077594 on March 23, 1987".

In support of this grievance the Union raises a number of points. Firstly, it maintains that the grievor was denied a fair and impartial investigation, contrary to rule 28 of the collective agreement. Secondly, it maintains that Company has overlooked a mitigating factor, and to some degree its own responsibility, by reason of the lack of rest under which both employees were operating at the time in question. Thirdly, and most fundamentally, the Union maintains that Mr. Sproule did not in fact exercise poor judgement which contributed to the collision of the hi-rail crane with the consist of locomotives on March 23, 1987.

After a careful review of the evidence, in light of my conclusion with respect to the merits of the incident itself, I find it unnecessary to deal with the procedural objections raised by the Union. The account of the incident that emerges from the statements of the grievor and Mr. Rotter is that once the movement proceeding into the west yard cleared the cross-over, and the road engine had progressed south, also clear of the crossing. Mr. Rotter began to move the hi-rail crane eastward towards the crossing. At that point the consist of engines proceeding southward on the green route was visible to both Mr. Rotter and Mr. Sproule. As the consist of units approached, Mr. Rotter asked Mr. Sproule whether they were clear of the green route, to which the grievor replied that they were. Moments afterwards the right front mirror of the hi-rail crane grazed the consist of locomotives as it passed over the crossing. The vehicle then proceeded still further forward, causing impact with the right forward part of the crane.

Mr. Sproule’s explanation of what transpired is that when his co-worker asked him whether they were clear of the approaching movement, they in fact were, and he so advised him. In his view the hi-rail crane was then allowed to creep forward by Mr. Rotter, resulting in the initial grazing of the right forward rear-view mirror, and ultimately the impact on the crane itself.

There is no dispute that when Mr. Rotter asked the grievor whether the hi-rail crane was clear of the green route, and was told that it was, the consist of units had not yet reached the crossing. The position of the Company is that Mr. Sproule committed an error of judgement at that point. In the arbitrator’s view, the physical evidence does not sustain that opinion. If, as the Company asserts, the hi-rail crane was in fact foul of the green line when Mr. Sproule advised Mr. Rotter that it was not, the first impact on the right forward rear-view mirror of the crane vehicle would have been with the first unit of the consist of locomotives that was passing. Mr. Sproule, however, states that the first contact between the mirror and the consist of units was with the north end of the second unit. The next contact with the crane itself, was with the third unit of the consist.

The explanation given by Mr. Sproule is corroborated by the Company’s own witness, Supervisor D.M. Thomson, who observed the incident from a van parked behind the hi-rail crane. His account of what transpired confirms that the hi-rail crane under the control of Mr. Rotter did roll forward into the advancing consist of units as it proceeded southward on the green route over the crossing. Mr. Thomson states that he could foresee the impending collision, and reached for the radio to tell Mr. Rotter to back up, but was not able to do so in time. According to his explanation, however, he did yell before the impact. When asked when the first contact occurred between the hi-rail crane and the consist of units Mr. Thomson stated: "I thought the north end of the second unit hit the hi-rail first". At the arbitration hearing he further stated that according to his recollection the first unit of the consist was passing the hi-rail when he saw the impending problem and yelled through his radio.

The burden of proof in this matter is upon the Company. It must establish, upon the balance of probabilities, that Mr. Sproule did exercise poor judgement that contributed to the damage to the hi-rail crane. The evidence before the Arbitrator, however, does not support such a finding. The account of both the grievor and Mr. Thomson, who impresses the Arbitrator as a fair and candid witness, would clearly confirm that at the point in time when Mr. Rotter asked Mr. Sproule’s opinion as to the safety of the distance between the hi-rail crane and the approaching consist of units, the hi-rail crane was in fact at a safe distance. That is confirmed by the fact that no contact occurred between the lead unit and the crane vehicle. Both Mr. Sproule and Mr. Thomson state that it was the second unit which was first struck by the hi-rail crane. This must, of necessity, have been sometime after Mr. Sproule expressed his view to Mr. Rotter that the crane was at a safe distance from the green route. The inescapable conclusion is that Mr. Rotter allowed the hi-rail to move forward after he was told by Mr. Sproule that it was stopped in a safe location. The conclusion of the Company that the advice given by Mr. Sproule was wrong, and contributed to the collision, would be more compelling if the initial impact between the crane and the consist of units had been with the lead unit. Based on the undisputed evidence before me, I must conclude that any error which may have caused the collision in question rested entirely with Mr. Rotter, and that at the time he asked Mr. Sproule’s opinion before the consist of units passed over the crossing the assessment which Mr. Sproule gave was in fact correct. The forward movement of the crane after that point in time was not of the grievor’s doing, and he cannot be justly disciplined for any mishap which occurred thereafter.

For the foregoing reasons the Arbitrator must find that the Company has not discharged the burden of proof to establish that the grievor contributed to the damage to the hi-rail crane or was otherwise deserving of discipline in relation to the incident of March 23, 1987. The grievance is therefore allowed. The fifteen demerits assessed against the grievor’s record shall be removed forth with. The Arbitrator remains seized of this matter in the event of a dispute between the parties with respect to the interpretation or implementation of the Award.

DATED AT TORONTO, this 24th day of July, 1989.

Arbitrator