THE CANADIAN PACIFIC RAILWAY COMPANY
THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA), LOCAL 101
RE: ASSESSMENT OF 50 DEMERITS TO RAIL CAR MECHANIC
MARCEL GAETZ – GENERAL RADIO PROTOCOL
MARCH 5TH, 2011
ARBITRATOR: Michel G. Picher
APPEARANCES FOR THE COMPANY:
Brianne Sly - Director, Labour Relations
Elena Tyminski - Labour Relations Officer
Anthony Manconi - Vice President Mechanical
Rob Beech - Supervisor Mechanical
APPEARANCES FOR THE UNION:
Brian Stevens - CAW National Representative
Ray Lawson - Vice President, Local 101, Pacific Region
Marcel Gaetz - Grievor
A hearing in this matter
was held in Calgary, Alberta on March 27, 2013.
This grievance concerns the assessment of 50 demerits against Rail Car Mechanic Marcel Gaetz. The grievor is alleged to have been highly negligent in his operation of locomotive CP 1647 while engaged in wheel change out operations at the drop table of the car repair facility in Golden, British Columbia. The nature of the incident and the issues raised are more particularly reflected in the Ex-Parte Statement of Issue filed before the Arbitrator by the Company, a document which reads as follows:
EX PARTE STATEMENT OF ISSUE
On May 2, 2011, the Union advanced a Step II grievance contesting the Company’s April 1, 2011 disciplinary assessment of 50 demerits to Rail Car Mechanic Marcel Gaetz for:
Violation of Module 1-6, 3 Point Protection and Module 2-7, 2-8 General Radio Protocol and using the Shop Channel, resulting in an unauthorized movement of CP 1647 and resulting in car CP 963254 being pulled off a jack at the drop tab le in Golden, BC on March 5th, 2011.
The Union alleged that there were extenuating circumstances which the Company failed to take into consideration. The Union further alleged that the discipline assessed in this case was not consistent across the property. Finally, the Union requested that the discipline be reduced to 20 demerit marks.
The Company disagrees with the Union’s contentions and has declined the Union’s grievance.
The Company also raises a preliminary objection with respect to the allegations contained in the Union’s Ex Parte Statement of Issue dated March 18, 2013.
The Company contends that the Union’s Ex Parte statement inappropriately expands the scope of the Union’s grievance with respect to the alleged violations involved, and modifies the redress being sought. Specifically, the Company contends that:
1) The Union’s Step II grievance did not contend that the discipline assessed was without just cause as cited in their Ex Parte statement.
2) This item was not properly progressed through the last step of the grievance procedure, unfairly prejudices the Company’s position, and should be excluded from arbitration.
3) The Union’s Step II grievance sought a reduction to 20 demerits, and this remedy has been removed from their Ex Parte statement.
4) This inappropriate transformation of the Union’s case at the eleventh hour unfairly prejudices the Company’s position. The Union’s request at the Step II level to reduce the discipline assessed to Mr. Gaetz to 20 demerits is contrary to the Union’s new position that the discipline was assessed without just cause.
FOR THE COMPANY:
Labour Relations Officer
March 20, 2013
As can been seen from the foregoing, the Company raises a preliminary issue with respect to what it alleges is an improper attempt on the part of the Union to expand the scope of its grievance and to modify the redress which is being sought.
The grievance was filed in the form of a Step II letter signed by Local 101 Vice President Jerry Thompson. That letter states, in part, the following:
On or about April 01, 2011, Rail Car Mechanic M. Gaetz was presented with a Form 104 and a “Letter” stating “Please be advised that you have been assessed with 50 demerit points for the following reason(s): for violation of modules 1-6, e point protection and module 2-7, 208 General radio Protocol and using the Shop Channel, resulting in an unauthorized movement of CP 1647 and resulting in car CP 963254 being pulled of a jack at the drop table in Golden BC on March 05, 2011”. While the Union does not deny the seriousness of these actions they believe that there were extenuating circumstances which led up to this incident that should be taken into consideration. The Union contends that our members have been concerned about cross channel communications between WCF and the Track mobile crews as evidenced by the many SAFETY/HAZARD reports submitted over the years and brought up during the course of this investigation. The Union also contends that the discipline assessed in this case would not be consistent across the property and would respectfully request that the discipline in this case be reduced to 20 demerit marks.
The Union submitted an Ex Parte Statement of Issue to the Company on or about March 18, 2013. That document reads as follows:
EX PARTE STATEMENT OF ISSUE
On April 1, 2011 Rail Car Mechanic Marcel Gaetz was assessed 50 Demerits for “violation of Module 1-6, 3 Point Protection and Module 2-7, 2-8 General Radio Protocol and using the Shop Channel, resulting in an unauthorized movement of CP 1647 and resulting in car CP 963254 being pulled off a jack at the drop table in Golden, BC on March 5, 2011.”
The Union contends that the discipline assessed was without just cause and in any event was excessive taking into consideration all mitigating circumstances.
The Company disagrees with the Union’s contention and has declined the Union’s grievance.
As can be seen from the foregoing, the Union’s Ex Parte Statement of Issue asserts that the discipline assessed by the Company was “without just cause” and in the alternative was excessive having regard to mitigating factors. The Company’s representative submits that that represents a substantial shift of position and an effective expansion of the grievance beyond the wording of the Step II letter which initiated the grievance, reproduced above. That document, she stresses, makes no mention of just cause or of the discipline being excessive by reason of mitigating factors.
The Union’s representative submits that the Company’s objection is overly technical, and fails to take into account the informality of communication in the drafting of grievances and grievance correspondence by Union officers who are themselves mechanics and laymen. He also notes that the Canada Labour Code expressly provides that the Arbitrator has the discretion to substitute such disciplinary measure as may seem appropriate in all of the circumstances. He stresses that if it should be considered that the Arbitrator’s jurisdiction is constrained by the scope of the parties’ respective ex parte statements of issue, or the original grievance document, the operation of the Code, as regards the exercise of the Arbitrator’s discretion, would be effectively defeated.
I have substantial difficulty with the position advanced by the Company. Arbitrators have been clearly directed by the courts not to use unduly technical approaches to the interpretation of grievance documents which are frequently the written product of laypersons not necessarily experienced in the law or in labour relations. (see, eg., Blouin Drywall Contractors Ltd. v. Brotherhood of Carpenters and Joiners of America, Local 2486,  O.J. No. 31(QL))
In the instant case the grievance was in fact drafted by a journeyman mechanic, and not by a professional union representative. Moreover, when regard is had to a comparison between the Union’s Ex Parte Statement of Issue and the original grievance document, the difference between them is not so substantial. The original grievance document speaks of “extenuating circumstances … that should be taken into consideration.” The Ex Parte Statement of Issue speaks of “… taking into consideration all mitigating circumstances.” In my view there is no meaningful difference between those expressions.
I have greater difficulty, however, with the second aspect of what I view as a significant difference between the two documents. Vice President Thompson’s grievance document does state that the Union recognizes the seriousness of the incident and goes on to suggest that the discipline should be reduced to 20 demerit marks. I am compelled to agree with the Company that it is a substantially broader position to say that the discipline assessed was “without just cause”. That assertion can only be taken to mean that the first position of the Union is that the grievor was entirely blameless. The Company feels that that is a material change of position which should not be allowed at the stage of drafting an ex parte statement of issue. While it is true that neither the Union nor the Company could circumscribe the Arbitrator’s statutory discretion to substitute the disciplinary outcome which the Arbitrator feels is appropriate in any discipline case, it is also important to recognize that the parties seek a degree of clarity with respect to the position of the opposite party as they proceed through their grievance procedure. In the interests of resolving disputes care must be taken to avoid gratuitous changes of positions which can effectively change the nature of the dispute. Coming as it does at the eve of arbitration, the ex parte statement of issue must remain reasonably consistent with the position which has been grieved and progressed through the steps of the grievance procedure.
However, care must be taken to avoid being unduly narrow or technical. In approaching a dispute of this kind I believe that an arbitrator must consider whether the party which is alleged to have changed the grievance is in fact advancing what can be fairly characterized as an entirely different grievance or the assertion of a different set of rights or obligations. That is clearly not the case in the dispute at hand. At most what is at issue here is what would be the appropriate level of discipline or whether any discipline whatsoever was justified.
The grievance procedure is largely governed by rule 28 of the collective agreement, a rule which contains a number of limitations with respect to the days within which certain steps must be taken. Within that context, which is generally not more than 35 days from the date of the alleged grievance, as provided under rule 28.7 of the collective agreement, a local Union representative must prepare and present a grievance document. In my view, in that context, it becomes unduly technical, if not unfair, to suggest that the drafting of the instant grievance necessarily limits the Union to the position that 20 demerits should be assessed. In my view a more realistic reading of the document should be that the Union is objecting to the assessment of 50 demerit marks against the grievor and indicating to the Company that as a matter of settlement it would be prepared to withdraw the grievance should the Company reduce the demerits to 20. While it may be questionable for a Union officer to use a grievance form as a means of attempting to bargain a settlement, that fact should not of itself prompt an unduly rigid interpretation of the grievance itself. In my view the fact that the Union suggests on the grievance that it would withdraw the grievance if the discipline were reduced to 20 demerits is not of itself a self-imposed restriction against asking for any larger remedy should the matter not be resolved. As the grievance was obviously not resolved, in my view there was no impediment to the Union taking, as a first position, that there was no just cause for any discipline. In my view any other interpretation of these documents would be highly technical and unresponsive to the reality of the situation.
For these reasons the Arbitrator is compelled to dismiss the preliminary objection of the Company.
I turn to consider the merits of the dispute. On March 5, 2011 Mr. Gaetz was assigned to work with two other employees, Rail Car Mechanics Al Wong and Dwayne Magoon. They were assigned the changing out of wheel sets on rail cars. That operation is performed using a drop table at the Car Shop in the Golden, British Columbia yard. In effect, a car or a series of cars coupled to a locomotive are advanced to a point where the truck or wheels to be repaired are placed over a recessed pit. The drop table is a device which slides laterally across the pit to receive the wheels and axles of a truck which are disconnected from a rail car which is slightly elevated by the use of jacks. The drop table then pulls away the damaged wheel or wheels and is then used to slide the new wheels and axle into place so that the freight car can then be properly lowered onto them.
Two employees of the three person crew work at the location of the drop table and pit. The third employee is assigned to operate the locomotive, taking verbal commands from the other two employees by means of radio communication. On the day in question Mr. Gaetz, being the senior-most employee, elected to be the locomotive operator. It appears that at a certain point in time his co-workers, Mr. Wong and Mr. Magoon, having successfully completed the change out of some three sets of wheels, had exited the drop table area to enter a nearby shack to complete paperwork. As they did so the grievor, who was unaware of their precise whereabouts, remained in the cab of the locomotive.
It is important to appreciate that a cardinal rule for safety in the operation of the drop table is what is referred to as 3 Point Protection. That rule means that when a car is placed over the drop table, to ensure that there is no movement from the locomotive which would obviously endanger the employees and the operation itself, three separate safety mechanisms must be operative. Firstly, the locomotive brakes must be fully applied. Secondly, the directional reverser control of the locomotive must be centred, effectively placing the locomotive in neutral. Thirdly, the generator field switch which controls the flow of electrical energy to the wheels of the locomotive must be disabled by being opened. The rule is that 3 Point Protection is taken by the employees working at the drop table and it can only be undone by their express direction. In other words, in an operation which is proceeding properly, once a wheel set has been entirely changed out and a rail car lowered from its jacks back onto the track system, the employees operating the drop table would step back from the immediate area of the track and communicate with the operator of the locomotive. They would then tell the operator to undo the 3 Point Protection. They would thereafter instruct him to move the rail car a certain distance, normally in anticipation of advancing the next car to be repaired into position over the drop table. It is common ground that the radio communications between the rail car mechanics working on the drop table in Golden are generally conducted on radio channel 83.
On March 5, 2011, as the grievor and his crew were involved in working on the drop table, a yard switcher crew comprised of rail car mechanics Jim Williams and Walter Simon was performing switching on nearby yard tracks. In that operation Mr. Williams, who operated the motive power, was taking radio commands from Mr. Simon, his groundsman. Their radio communications were over radio channel 87, the channel which is normally used for switching purposes.
While Mr. Williams and Mr. Simon were performing their yard switching the car which the grievor and his crew had placed over the drop table had in fact been raised and relieved of a wheel set. Like a car raised on a jack to replace a flat tire, the rail car in question was elevated and without any wheels at the extremity which was over the drop table. At that point in time, when Mr. Wong and Mr. Magoon were in the adjacent shack, at approximately 09:00, groundsman Simon radioed a request on radio channel 87, asking Mr. Williams to move his consist 20 feet north.
It appears that by an irregular phenomenon described as “cross channel” communication a radio message delivered on one radio channel can in fact be heard on a second channel. That, it appears, is what happened when Mr. Simon directed Mr. Williams to move 20 feet north. Hearing that directive on his own radio, the grievor made the false, and obviously dangerous, assumption that he was being instructed by his own workmates to move 20 feet north. Based on that surmise he removed the 3 Point Protection and commenced to put his locomotive in motion. Hearing what sounded to him like a garbled radio transmission, and prompted by the sound of the taking up of the slack in the string of rail cars they were handling, Mr. Wong immediately radioed Mr. Gaetz to stop. Unfortunately that command came slightly late, as the rail car which was over the drop table fell off its jacks and crashed to the floor, causing a degree of damage to the undercarriage of the rail car. Needless to say if Mr. Wong and Mr. Magoon had been working at the drop table, possibly beneath the car in question, the risk of serious injury, if not a fatality, would have been very real.
It is not disputed that the grievor clearly failed to observe the proper radio protocols when he took Mr. Simon’s radio message as a direction from his own crew to move his locomotive. He should not have accepted any direction to move his locomotive until such time as the person who had taken out the 3 Point Protection gave him a proper radio instruction to remove the 3 Point Protection before undertaking any movement of his locomotive. By his own explanation, Mr. Gaetz related that he simply assumed that his workmates wanted the removal of the 3 Point Protection and were instructing him to proceed, as they must have completed the change out of the wheel set in question. Nothing could have been further from the truth.
Following a disciplinary investigation, the Company assessed 50 demerit marks against the grievor. As his record was clear at the time, that discipline did not result in the termination of his services, a result which would flow from the accumulation of 60 demerits.
In the submission of its case the Union stresses that a substantial contributing factor to the incident, which it acknowledges to have been a highly dangerous occurrence, is the radio channel crossing phenomenon which, it appears, had occurred previously in the Golden yard and had been the subject of at least two formal complaints. The Union submits that it was incumbent on the Company to respond to the concerns about radio channel crossing or “cross chatter” as it is sometimes described. For example, the Union’s representative submits that the use of cell phones instead of radios could have eliminated the risk of any such uncertain communication and avoided the channel crossing which he says prompted the instant mishap.
The Company’s representative disagrees strenuously. She submits that the proximate cause of the drop table incident at Golden was the grievor’s failure to meticulously follow proper radio protocols. The Company’s position is that the grievor should not have commenced to move his locomotive without having first received a proper radio message from Mr. Wong. That message would have first cited the locomotive number, stating “This is CP Rail Car Mechanic Wong. Over.”, whereupon Mr. Gaetz would have replied an acknowledgement of Mr. Wong stating “This is CP 1647. Over.”. Following that introductory communication Mr. Wong would have again cited the locomotive number and directed Mr. Gaetz to cancel the 3 Point Protection and move 20 feet north. Mr. Gaetz would then have been under the obligation to reply “CP 1647 cancelling 3 Point Protection and moving 20 feet north. Out.”.
The Company stresses that adherence to that proper form of communication, and the insistence on the part of Mr. Gaetz that he would not move his locomotive without receiving such proper instruction, was an effective full protection against any confusion which might arise from any irregular cross channel communication. The Company’s representative submits that it is the grievor’s failure to adhere to proper radio protocols which, in the end, caused the accident which occurred at the drop table in Golden yard on March 5, 2011.
As indicated above, following a disciplinary investigation, the grievor was assessed 50 demerits. The issue is whether that measure of discipline should stand in all of the circumstances. Are there mitigating circumstances to be considered? In addressing that question I am compelled to agree with the Company that the fact of radio channel crossing cannot fairly be viewed as a true mitigating circumstance. The simple fact is that having improperly received a message from another crew the grievor had no authorization to depart from 3 Point Protection. He could only depart from that status on a clear instruction to do so from Mr. Wong, in whose name the 3 Point Protection was taken. In other words, he had no proper authorization to move his locomotive, and did so in a circumstance which was based on a wrongful assumption, creating what might have been a serious, if not fatal, accident. I am therefore compelled not to consider the flaw of cross channel radio communication as a meaningful or operative mitigating factor in the case at hand.
There are, however, mitigating elements to consider. At the time of the incident the grievor had 24 years of service with the Company. He had remained discipline free for a period of some 11 years. In fact, Mr. Gaetz had been disciplined only twice in all his years of service prior to the incident here under examination. Most significantly, he has never been disciplined for any form of safety infraction. In the Arbitrator’s view that record must be given some fair recognition in determining the appropriate measure of discipline in the instant case. However, in my view, notwithstanding that this involves a first offence, it is one so grievous and dangerous as to nevertheless justify a substantial amount of discipline.
The Arbitrator directs that the grievance is to be allowed, in part. The grievor’s disciplinary record shall be amended to record 40 demerits against his record for the incident of March 5, 2011. I retain jurisdiction in the event of any dispute concerning the interpretation or implementation of this Award.
Dated this 2nd day of May, 2013 at Ottawa, Ontario.
Michel G. Picher