SHP 691





B E T W E E N :




(The Company)






(The Union)







SOLE ARBITRATOR:          Michel G. Picher





Ross Bateman                   –Director, Labour Relations, Toronto

Lou Bartolo                        –Assistant Superintendent, MacMillan Yard




Drew Ratajewski                –Regional Vice-President Great Lakes Region

Bruce Snow                       –President

Ken Cousins                      –Grievor



A hearing in this matter was held in Montreal on Monday, May 7, 2012



            This grievance concerns the suspension of Car Mechanic K. Cousins for a derailment in MacMillan Yard caused during his operation of a trackmobile. The grievor was initially discharged and subsequently returned to work by the Company after what is effectively a five month suspension. The Union maintains that the suspension eventually levelled against the grievor is excessive in the circumstances. During its grievance correspondence with the Company the Union also asserted that the grievor should be compensated $5,000 in damages for his pain and suffering. That demand appears not to have been pursued before the Arbitrator. While it acknowledges an error in judgement committed by Mr. Cousins, the Union submits that discipline in the order of a reprimand or the assessment of demerits would be appropriate in the circumstances and seeks a direction by the Arbitrator to that effect.


            The nature of the dispute is reflected in the ex parte statement of issue filed by the Union which reads as follows:



            The discipline assessed Car Mechanic K. Cousins for his responsibility in the derailment of trackmobile CN 111080 on June 13, 2011 at the MacMillan Yard Terminal.



            Mr. Cousins was suspended from service from June 13 until June 16, 2011, pending an investigation into the incident. On June 17, 2011, a Formal Statement was conducted concerning his responsibility in the derailment of a trackmobile at the East Repair Centre, MacMillan yard.


            Following a review of the investigation, Car Mechanic K. Cousins was discharged effective June 20, 2011, for his responsibility in the derailment.


            The Union contends that Mr. Cousins has been treated unfairly and the discipline assessed was unwarranted, egregious and seeks in resolution that the discipline be expunged and the grievor be made whole for all lost wages and benefits. The Union also asked for a monetary sum to be paid to as damages.


            The Company disagrees with the Union’s contentions and has declined the Union’s request.


            Subsequent to the discharge, on October 24, 2011, the parties attempted to resolve the grievance but could not reach mutual agreement. The Company did agree with the Union’s proposal that Mr. Cousins be returned to active service and that the dispute over discipline would proceed to arbitration. Mr. Cousins was reinstated to service on November 17, 2011.


            The facts giving rise to the grievance are not in substantial dispute. As a Car Mechanic Mr. Cousins, who completed his apprenticeship some five weeks prior to the incident here under review, is called upon occasionally to operate a trackmobile. The trackmobile is used to move cars to and from storage tracks and repair tracks as part of normal operations at the MacMillan Yard East Repair Centre. During his tour of duty on June 13, 2011, while working with a ground person, Car Mechanic Jerome Cantos, Mr. Cousins was responsible for moving a cut of eight cars, four of which were loaded and four of which were empty. He operated his trackmobile north onto track CO 78 and coupled onto the eight cars. He was to move the cars from track CO 78 into track CO 79, pulling them with trackmobile 5500. His ground person, who operated the CO 79/78 switch remained at that position and counted down every two cars as Mr. Cousins’ movement advanced southward through the switch. Being told that there were six cars to go Mr. Cousins applied the brakes and the movement slowed slightly. He did the same when he received the call of ‘four cars to go’ and also downshifted into first gear. It appears that from that point he coasted. When he was told there were two cars to go Mr. Cousins estimated that he had three cars of room left before coming to the track end stops and judged that the speed of his movement would be sufficient that he would be able to stop it before reaching the end of the track. He then pushed on the brake and while the trackmobile slowed slightly, it appears that the cars behind him took up the slack and that in fact his trackmobile commenced to slide. Notwithstanding his pumping of the brakes and placing his transmission in neutral, as well as using his hand brake, the grievor was unable to stop the forward slide of the trackmobile and its eight attached cars.


            Unfortunately the trackmobile proceeded through the track end stops, went onto the ground and collided with the East Repair Centre’s building’s air conditioning unit before stopping. It is common ground that the air conditioning unit was damaged and that a gas pipe was broken. Having been advised of the smell of gas Mr. Cousins remedied that situation by turning the gas shut off valve. In the result, there was some $14,000 in damage to the air conditioning unit and the trackmobile.


            Following a formal investigation and the taking of a statement from the grievor on June 17, 2011 Mr. Cousins was issued a Form 780 advising that he was discharged effective June 20, 2011 for “Your responsibility in the derailment of trackmobile CN 111080 also known as the 5500 on June 13, 2011 at the back of the East Repair Centre.” At the time of the incident and his discharge the grievor had no discipline on his record.


            While it appears that there were subsequent discussions between the parties concerning the possible reinstatement of the grievor, I must agree with the Union’s representatives that those discussions are privileged and should not be entered into evidence here. Suffice it to say that the Company unilaterally reinstated the grievor to service on November 17, 2011, amending his discipline to reflect a suspension between June 20, 2011 and November 17, 2011, an effective suspension of some five months.


            On behalf of the grievor the Union’s representatives argue that his disciplinary treatment is far in excess of the discipline which has been issued to what it considers to be employees involved in incidents of similar consequence. For example, it cites four instances of Car Mechanics involved in prior derailments while operating trackmobiles. In one incident, which apparently occurred on February 7, 2010 involved a derailment during switching, Car Mechanic W. Barber was assessed ten demerits. Car Mechanic Brian Saunders who derailed a car at a crossover on December 18, 2011 received a written reprimand. The Union also cites Car Mechanic Apprentices Grelowski and Suttis who were found to have improperly changed out a wheel at the Brampton Intermodal Terminal, resulting in a subsequent derailment. In that case the two employees were assessed fifteen demerits.


            The Union’s representatives also refer the Arbitrator to the fact that in the running trades yard employees, who may frequently be involved in derailments, are often assessed discipline short of discharge. It asserts the general principle that like infractions should attract like discipline, as enunciated in CROA 3320, arguing that in the instant case the discipline assessed against Mr. Cousins is clearly harsh and inconsistent with the discipline which has been experienced by other employees in similar circumstances.


            The Company’s representative submits that the evidence is clear that there was an error in the operation of the trackmobile unit by Mr. Cousins, an error which effectively caused the derailment as well as damage to air conditioning equipment and a gas line, in circumstances which could have provoked consequences which might have been far more serious. It stresses that the grievor had completed his apprenticeship, had received the proper training in the operation of the trackmobile and that the duties he was performing on June 13, 2011 in the vicinity of the East Repair Centre of MacMillan Yard was work which he should normally be expected to perform properly. Noting the damage caused to both the trackmobile and the air conditioning unit and gas line, the Company’s representative maintains that a serious level of discipline was entirely appropriate and that the Arbitrator should not disturb the suspension which resulted.


            I turn to consider the merits of this dispute. At the outset, I am inclined to characterize the actions of the grievor in the operation of the trackmobile as being substantially less that reckless or willfully harmful. I agree with the Union’s representatives that what emerges from the evidence is a clear error of judgement on the part of Mr. Cousins in advancing the cut of eight cars which he was pulling into track CO 79. He obviously misjudged the weight of the eight cars which were behind him, and, it appears, did not account for the impact of the cars taking up the slack as he applied the brake of his trackmobile. Once his trackmobile commenced to slide he was obviously unable to regain control of the movement, as a result of which it broke through the track end stops, derailing the trackmobile itself and causing the property damage which resulted.


            There is no suggestion in the material before me that there was any defect in the braking mechanism of the trackmobile or anything particularly unusual about the assignment which Mr. Cousins was carrying out. In the result, I cannot escape the conclusion that there was a degree of negligence on the part of Mr. Cousins in the way in which he operated his trackmobile in pulling the eight cars behind him, four of which were loaded. It was obviously incumbent upon him to move at such speeds as would allow proper braking of his movement within the appropriate distances, so that the cut of eight cars he was pulling could properly be stored in Track CO 79. In fact it must be concluded that he operated at a degree of over speed, such that the stopping capacity of his movement was effectively nullified within the short confines of the track he was then working on. In the result, having particular regard to the damage caused by his negligence, I am compelled to agree with the Company that a serious degree of discipline was merited.


            In my view discharge would not have been appropriate, having regard to the treatment of similar cases. Nor, in my opinion, is a five month suspension the proper level of discipline for an infraction which has attracted substantially lesser levels of discipline in other circumstances. I accept, however, that the property damage, which in fact created a potential situation of imminent peril, does give to this incident a gravity not reflected in some of the others relied upon by the Union.


            Having reviewed the facts and considered the submissions of the parties, I am satisfied that a one month suspension would, in all of the circumstances, have been sufficient to bring home to the grievor the importance of operating with the utmost care and safety in circumstances similar to those which he experienced on June 13, 2011 at the MacMillan Yard East Repair Centre.


            The grievance is therefore allowed, in part. The Arbitrator directs that the grievor’s record be amended to reflect a one month suspension for the incident of June 13, 2011, with the grievor to be compensated for his wages and benefits including pension entitlement for the balance of the period for which he was in fact suspended. I retain jurisdiction in the event of any dispute concerning the interpretation or implementation of this award.


Signed at Ottawa, Ontario this 14th day of May, 2012.




                                                                          Michel G. Picher