CNR - CAW: SAMIDE, FISHER, BOERDYK, KORBISSER

AWARD

This arbitration concerns the assessment of twenty-five demerits against two car mechanics and written reprimands issued to two other car mechanics in relation to the failure to apply hand brakes to a 109 car train which rolled freely out of Bissell Yard on November 21, 2005. The facts and issues in relation to these grievances are related in the joint statement of issue, filed at the hearing, which reads as follows:

Joint Statement of Issue:

On November 21, 2005, Car Mechanics Samide and Fisher were assigned to inspect a 109 car train in Bissell Yard. Prior to completing the inspection, the employees came to the end of their shift and left the train without applying any handbrakes. Car Mechanics Samide and Fisher left the train with approximately 25% of the train’s rail car air brakes applied at that time.

On November 21, 2005 at 08:00, Car Mechanics Boerdyk and Korbisser were assigned to complete the inspection of the train. Upon completion of the inspection Car Mechanics Boerdyk and Korbisser left the train without applying handbrakes.

At approximately 11:19 the train began rolling on its own, eastward, for approximately one kilometre.

The employees attended separate formal investigations and following completion of the investigations they were each assessed discipline as described above.

The Union contends that:

As required by Rule 22.1, the Company has not established responsibility on the part of the grievors of any wrongdoing or violation of working rules.

The Company is in violation of Appendix 1 of Agreement 1.2 and of CN Safety Rules (451E) Section 1 (1.3) as it supervisors or other assigned responsible party in charge did not attend to the matter of track protection personally.

The Company is in violation of Appendix XVII for discrimination and harassment against Car Mechanics Samide and Fisher by treating them differently than other employees who allegedly have violated the same or similar rules.

The Company is in violation of Part II section 124 of the Canada Labour Code for not ensuring that the health and safety at work of every person employed by the employer is protected.

The Company is in violation of CN Safety Rules Section (6) as the supervisor who assigned these employees did not properly instruct them, or ensure that the employees were aware of or complied with the rules.

The Union requests that the discipline assessed to Car Mechanics Samide, Fisher, Korbisser and Boerdyk be removed from their files.

The Company has denied the Union’s contentions and request to remove discipline.

The facts in relation to these grievances are not in substantial dispute. On November 21, 2005 Car Mechanic Samide and Fisher were assigned to inspect a 109 car train which was then stationed on track BS01 in Bissell Yard. The entire train was then secured by the application of its air brakes. Part of the work to be performed by the car mechanics was to release the air brakes on each car, proceeding from the westerly end of the train to the eastern extremity. It is not disputed that under the provisions of the Edmonton Terminal Operating Manual, paragraph 2.6 of rule 112 provides that equipment left on any track in the Bissell Yard is to be secured by the application of hand brakes, and that in consists of forty or more cars a minimum of five hand brakes are to be applied. An exception is provided for that rule as expressed in sub-paragraph (d) of paragraph 2.6 of rule 112. It provides as follows:

(d) On instruction from Walker Control, trains and transfers within the Edmonton Terminal may be left without hand brakes applied provided the following conditions are met:

1. train or transfer is 10 cars or more:

2. train or transfer is left with air brakes applied in FULL SERVICE or emergency;

3. train or transfer is left with angle cock fully open; and

4. train or transfer will not be left in excess of 2 hours

Given that the cars would eventually depart in a western direction, it is common ground that the obligation of the car mechanics would have been to secure no fewer than five cars with the application of hand brakes on the western end of the consist, that being the end at which they commenced their work. It is not disputed that they failed to do so. As Car Mechanics Samide and Fisher proceeded eastward on their inspection of the train they released the air brakes on some seventy-nine cars. When they reached the end of their tour of duty there remained some twenty-five to thirty cars, on the eastern extremity of the consist, that were not yet inspected and whose air brakes had not been released and were still operative. In the result, the train was obviously then secure, albeit not by the application of hand brakes. That was the condition of the train when Car Mechanics Samide and Fisher went off duty at or about 05:45.

At approximately 08:00 Car Mechanics Boerdyk and Korbisser were assigned to complete the inspection of the cars on track BS01. The unchallenged assertion of Car Mechanic Boerdyk is that at approximately 06:00 he was told by his supervisor, Mr. Paul Carson, that the hand brakes were applied on the west end of the train. That, it appears, is confirmed by the working notes made by Mr. Boerdyk at the time, which include the notation “brakes west”. By approximately 09:00 Car Mechanics Boerdyk and Korbisser had completed their inspection of the train and had released the air brakes on the last twenty-five to thirty cars on its east end. They then left the scene, believing that the train had been secured at the west end.

At 11:00 the Assistant Superintendent Transportation, Mr. Bruce Cail, noticed on the camera monitors on Walker Yard that the train in track BS01 was rolling freely on its own, eastward, the direction in which Bissell Yard slopes. The train proceeded at a speed of approximately five to six miles per hour. Mr. Cail initiated procedures to ensure that the track was clear ahead of the runaway and dispatched a yard crew and a car mechanic from Bissell to board the train and apply hand brakes in an attempt to stop it. It appears that arrangements were also made to dispatch an engine to attempt to meet and slow the moving train by applying its brakes.

The train eventually crossed at least one public crossing at 149th Street, where Assistant Superintendent Langstaff apparently jumped aboard and applied hand brakes, bringing the train to a stop at approximately 142nd Street. Following a disciplinary investigation Car Mechanics Samide and Fisher were assessed twenty-five demerits each while Car Mechanics Boerdyk and Korbisser were given written reprimands for their failure to secure the equipment in track BS01 in accordance with Rule 112. While it appears that during the course of the grievance procedure there was discussion of an alleged violation of CN Safety Rule 4.7, as the disciplinary forms issued to the grievors did not cite that article, and referred only to Rule 112, the Arbitrator is satisfied that the Company cannot now rely upon it.

On a review of the material filed, the Arbitrator has some difficulty with the position of the Company that there was wrongdoing committed by Car Mechanics Boerdyk and Korbisser. The unchallenged evidence, confirmed by the written notes of Mr. Boerdyk, is that Supervisor Carson expressly advised that the train in track BS01 had been secured by the application of hand brakes at the west end. The western extremity of the train was obviously a substantial distance from the place at which Mr. Boerdyk and Mr. Korbisser commenced their work, moving eastward. Unfortunately they were working under the false understanding, conveyed to them by Supervisor Carson, that the appropriate hand brakes had already been applied to the consist in track BS01. Consequently, when they completed their work they had no reason to believe that there was any further precaution to be taken.

On what basis, therefore, can it be asserted that Car Mechanics Boerdyk and Korbisser were deserving of any discipline? I can see none. In the Arbitrator's view the two employees, quite properly, relied upon the instructions and advice given to them by their supervisor, and cannot fairly be placed in a position to question his authority or the information which he provided to them, at least in the factual circumstances of the case at hand. They had every reason to believe that the car mechanics who had commenced the inspection of the train on the prior tour of duty would have secured the west end of the train by the application of hand brakes, as indeed they were told by Mr. Carson. There was, very simply, no dereliction of duty or culpable conduct on the part of Car Mechanics Boerdyk and Korbisser. Their grievances must therefore be allowed, and the Arbitrator directs that the written reprimands assessed against them be struck from their records.

Different considerations apply, however, to the grievors Samide and Fisher. The Arbitrator cannot accept the submission of the Union's representative that these employees were subject to discriminatory treatment, given the difference between the discipline assessed against them and that which was assessed Car Mechanics Boerdyk and Korbisser. While both employees indicated that, by reason of their normal work in the Walker traffic yard, they are in the habit of securing the east end of trains by the application of hand brakes, it was clearly their obligation to know and understand the rule which would apply to the train which they were inspecting in Bissell Yard. They were not entitled to assume that they same rule would apply, and it was therefore incumbent upon them to obtain the information necessary to properly perform their work.

Nor can the Arbitrator agree with the Union's representative that the exceptions to paragraph 2.6 of Rule 112, as expressed in sub-paragraph (d) applied in the case at hand. The Union’s representative asserts the exception to the application of handbrakes which includes the requirement that there be a "full service" air brake application on the train. That, in my view, cannot be interpreted to mean full service brake application on a car by car basis. It must be taken to mean the entire train is secured by an air brake application, a circumstance which obviously did not apply as the grievors Samide and Fisher proceeded to release the air brakes on some seventy-five percent of the cars on the train which was under their care. But for their failure to inquire and understand that in Bissell Yard stationary trains are to be secured by hand brakes at the west end, and to act accordingly, the unfortunate incident which transpired would not have occurred.

The Arbitrator cannot sustain the Union’s allegation concerning Appendix 1 of Agreement 1.2 and CN Safety Rules (451E) Section 1 (1.3). While management is obviously under a general obligation to oversee operations in such a way as to insure safety, that responsibility does not effectively extend to visually inspecting or verifying each and every safety measure to be followed by employees on a minute to minute basis. Even if it can be said that the error of Supervisor Carson did violate this standard, as regards his erroneous instruction to car mechanics Boerdyk and Korbisser, and extended to a violation of the Company’s obligation under Part II section 124 of the Canada Labour Code and section 6 of the CN Safety Rules, that would not absolve the grievors Samide and Fisher of their personal obligation to apply hand brakes to the stationary train for which they were responsible.

Is the assessment of twenty-five demerits excessive in the circumstances of this case? I think not. While it is true that the grievors are relatively long service employees, it is also true that there are few infractions more serious than negligence which results in the unauthorized free movement of an entire train, as occurred in the case at hand. Fortunately there was no serious damage to equipment or other property, nor any injury to an employee or a member of the public. The possibility of more negative consequences is, obviously, very real and a factor which must be kept in mind when assessing discipline in so serious a situation.

As noted by the Company's representative, prior jurisprudence of the Canadian Railway Office of Arbitration has confirmed the appropriateness of discipline assessed within the range of between twenty and forty demerits for similar occurrences (see CROA 1502, 1531, 1896, 3079, 3160, 3166 and 3500). On the whole, therefore, the Arbitrator is satisfied that the assessment of twenty-five demerits against Car Mechanics Samide and Fisher was within the appropriate range of discipline, and that the Company's decision should not be disturbed. For these reasons the grievances of Mr. Samide and Mr. Fisher must be dismissed.

As noted above, the grievances are allowed as regards Car Mechanics Boerdyk and Korbisser, and the Arbitrator retains jurisdiction in the event of any dispute concerning the interpretation or implementation of the award as it applies to them.

Dated at Ottawa this 1st day of November 2007.

_________________________________

MICHEL G. PICHER

ARBITRATOR

SHP 614