SHP 276

IN THE MATTER OF AN ARBITRATION 

BETWEEN:

CANADIAN PACIFIC LIMITED

(the "Company")

-and -

BROTHERHOOD OF RAILWAY CARMEN OF CANADA

(the "Union")

GRIEVANCE RE CARMAN R. TAYLOR

SOLE ARBITRATOR: M. G. Picher

 

 

APPEARING FOR THE COMPANY:

G. W. McBurney

D. J. David

J. E. Menard

P. E. OíDonohue

 

 

APPEARING FOR THE UNION:

B. R. McDonagh

L. Carozza

R. Laughlin

D. Senez

 

A hearing in this matter was held in Montreal on July 18, 1989.

 

 

AWARD

This is a grievance against discharge in which the only issue is the appropriate measure of penalty. The parties filed the following joint statement of fact and issue:

JOINT STATEMENT OF FACT

On September 1, 1988, Carman R. Taylor was advised in writing that he was dismissed for the following reason:

"Failure to properly perform a #1 brake test on train 923-13, a violation of Rule 28(1), Rule 18 and Rule 11(1), Railway Air brake Minimum Inspection, Testing and Operating Standards Form 582A, and for preparing, certifying and providing the outgoing train crew with falsified Schedule A, a violation of Rule 28 (2), Form 582A Toronto Yard, August 13, 1988."

JOINT STATEMENT OF ISSUE

It is the position of the Brotherhood Railway Carmen that Mr. R. Taylor was unjustly dismissed and therefore should be reinstated forthwith and reimbursed all rights, benefits and wages lost as provided for in the Collective Agreement.

The Company denies claim.

The material establishes that on August 13, 1988 Carman R. Taylor and Carman Trainee T.G. Parsons were assigned to perform a #1 brake test on train 923-13. The shift supervisor, Mr. J.E. Menard decided to observe the manner in which the two employees performed the brake test. As a result of Mr. Menardís observations, it was disclosed that Mr. Taylor and Mr. Parsons did not conduct a full and proper brake test on train 923-13, notwithstanding that Carman Taylor filled out a standard form document confirming that they had, and that the employees notified Inspection Control Supervisor R. Penrice that a full and proper brake test had been performed, confirming that train 923-13 could be cleared for departure. After the fraudulent advice conveyed by Mr. Taylor and Mr. Parsons to Mr. Penrice, Supervisor Menard contacted Mr. Penrice to let him know that in fact a proper brake test had not been performed on the train. Notwithstanding that advice, Mr. Penrice proceeded to release the train, which in fact departed without the required #1 brake test.

In the Arbitratorís view the actions of Mr. Taylor and Mr. Parsons, standing alone, clearly merit discharge. The seriousness of deliberately failing to perform the brake test required by law prior to the departure of the train, and knowingly falsifying a report concerning a completion of such a test can scarcely be understated. The fact that in the instant case, train 923-13 did not subsequently experience any braking difficulties is neither here nor there with respect to assessing the responsibility of the employees concerned. The very purpose of requiring a #1 brake test prior to the departure of a train from a terminal is to avoid placing the train and its crew at undue risk to the extent that the actual working condition of the braking system is not thoroughly checked. As prior arbitration awards have disclosed, standing alone such conduct is clearly deserving of discharge.

In the instant case, however, the Union pleads a significant point in mitigation. It is common ground that Inspection Control Supervisor Penrice knowingly released train 923-13, notwithstanding that Supervisor Menard informed him that a proper brake test had not been performed orí the train. In consequence of that action, Mr. Penrice was demoted from the ranks of management, and reduced to the position of carman within the bargaining unit. The position of the Union is that the treatment of Carman Taylor and Carman Parsons, who were discharged outright, cannot be reconciled with the lighter penalty meted out against Supervisor Penrice. The Unionís representative argues that notwithstanding the clear advice of Supervisor Menard that a proper brake check had not been performed, Mr. Penrice nevertheless released the train 923-13 in a circumstance of unacceptable peril. The Union maintains that the culpability of Mr. Penrice cannot, in the circumstances, be treated any differently from that of the grievors, and that the facts disclose a measure of undue discrimination against Mr. Taylor and Mr. Parsons.

In the Arbitratorís view the Unionís submission with respect to the issue of discrimination cannot be rejected out-of-hand. There is, undeniably, a difference in quality as between the actions of Carman Taylor and Carman Parsons on the one hand, and those of Inspection Control Supervisor Penrice on the other, Mr. Taylor and Mr. Parsons knowingly failed to perform their duty and proceeded to misinform the Company in that regard. They are, in that sense, guilty of a degree of malice aforethought which cannot be attributed to Mr. Penrice. On the other hand, however, the culpability of Mr. Penrice is difficult to distinguish from the standpoint of the consequences of his action. Like Mr. Taylor and Mr. Parsons, Mr. Penrice knew that train 923-13 had not undergone a proper brake test. Notwithstanding that knowledge, with an indifference apparently verging on recklessness, Mr. Penrice released the train for departure, allowing it to proceed from MacMillan Yard to the next terminal where it was stopped and properly tested.

A person bearing the responsibility of a supervisor such as Mr. Penrice occupies a position of trust, and is charged with a high degree of care and caution, commensurate with his managerial responsibilities. The knowing release of a train that is not certified fit to travel constitutes a serious degree of negligence deserving of the most heavy disciplinary consequences. In the result, however, Mr. Penrice did not lose his job while Mr. Taylor and Mr. Parsons did. It is trite to say that in matters of industrial discipline like conduct should merit like discipline. On the whole of the material before me, while I share the view of the Company with respect to the severity of Mr. Taylorís and Mr. Parsonsí actions, I cannot reject the Unionís contention that in the circumstances Mr. Penrice received preferential treatment, as a result of which the two carmen were made the victims of an unequal and discriminatory penalty.

For the foregoing reasons the grievance must be allowed, in part. In light of the treatment of Mr. Penrice, I am compelled to conclude that a lengthy period of suspension should be substituted as the appropriate measure of discipline for Mr. Taylor. The grievor shall, therefore, be reinstated into his employment, without compensation and without loss of seniority, with his disciplinary record to stand at the same number of demerits as prior to the incident of August 13, 1988. Nothing in the Arbitratorís conclusions, which are arrived at with great reluctance, should be construed as condonation of any aspect of the grievorís conduct. It should be apparent to Mr. Taylor that any recurrence of conduct of the same kind will merit the most serious consequences.

The Arbitrator retains jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this Award.

DATED AT TORONTO, this 25th day of July, 1989.

(signed) Michel G. Picher

Arbitrator