SHP689

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC RAILWAY COMPANY

(the “Employer”)

AND:

CAW – CANADA AND ITS LOCAL 101

(the “Union”)

(James Smyth – 25 Demerits – SHP689)

ARBITRATOR:                                                                Vincent L. Ready

COUNSEL:                                                                     Jennifer Love

                                                                                        for the Employer

                                                                                      Brian Stevens

                                                                                       for the Union

HEARING:                                                                      April 18, 2012

                                                                                      Moose Jaw, Saskatchewan

DECISION:                                                                      June 5, 2012

32697.3

The parties agree that I am properly constituted as an arbitration board with jurisdiction to determine the matter in dispute.

DISPUTE

In this case, the Union challenges the imposition of 25 demerit points assessed to Mr. James Smyth, the grievor, for failing to perform a stretch test during switching operations on October 6, 2010.

JOINT STATEMENT OF ISSUE

On October 6, 2011 (sic), STOC qualified Diesel Mechanic James Smyth and Diesel Mechanic Apprentice Brian Hines were assigned the task of bringing Locomotive 5988 over from track 5 west to track 13 and couple onto Locomotive 3040 outside track 13.  The grievor was the groundman while Mr. Hines was operating the locomotive during the movements.  In the process of making the move Locomotive 5988 and Locomotive 3040 uncoupled causing Locomotive 3040 to go over track 13 derail where #4 axle went on the ground.

Following the disciplinary investigation, the grievor was issued 25 demerits for “your failure to perform a stretch test during switching operations causing CP 3040 to derail on October 6, 2010”.

The Union contends that the discipline assessed was without just cause and in any event was excessive.  The Union is requesting that the 25 demerits assessed to Mr. Smyth be removed from his record.

The Company disagrees with the Union’s contention and has declined the Union’s grievance.

AWARD OF THE ARBITRATOR

The grievor was tasked, with the assistance of Mr. Hines, to switch locomotive CP 3040 into the shop at Track 13.  In the circumstances before me today, the grievor’s failure to request that his partner Mr. Hines conduct a stretch test resulted in the locomotive climbing the derail and dropping to the ground.  The issue before me is whether the assessment of 25 demerit points is excessive.

The Company’s position is that the assessment of 25 demerit points in these circumstances is fair and reasonable for the following reasons:

-        Mr. Smyth failed in his duties as groundman resulting in an uncontrolled/unintended movement of equipment;

-        Mr. Smyth has been STOC qualified and involved in the safe movement of locomotives and railcars in and around Moose Jaw Facility, since 2007;

-        Mr. Smyth is capable of ensuring the safe movement of locomotives;

-        The standard quantum of discipline for STOC violations resulting in derailment is 25 demerits;

-        No mitigating factors exist which would serve to lessen the quantum of discipline assessed.

The Union submits that there is no just cause for any discipline and asks that the 25 demerits be removed from the grievor’s record.  In the alternative, the Union argues that the 25 demerit points are excessive and punitive taking into consideration that the “standard” established is within the range of a caution to 10 demerits.

I understand and acknowledge the need for the safe movement of railcars and locomotives.  I find that the Company had good cause to investigate the incident that occurred on October 6, 2010 and take action for the errors made by Mr. Smyth in carrying out his duties as a groundman on that date, including disciplinary action.

That said, I have reviewed and considered the jurisprudence presented to me by the parties and I find that, in comparing the discipline meted out in this case as compared with the others presented, the demerits assessed to the grievor are excessive, given all the circumstances.

I find that a lesser sanction would be sufficient to impart to the grievor the seriousness of his wrongdoing and to make clear to him that it is his duty as groundman to pay attention to the rules governing locomotive movements.

For the foregoing reasons I am satisfied that the Company had grounds to discipline the grievor, but that the assessment of 25 demerit points was excessive.  I direct the Company to amend the grievor’s record to show that he should be assessed 15 demerit points for the incident on October 6, 2010.

Dated at the City of Vancouver in the Province of British Columbia this 5^th day of June, 2012.

                                                                             _____________________________

                                                                             Vincent L. Ready