IN THE MATTER OF AN ARBITRATION

A W A R D

This arbitration concerns a grievance against discharge. The grievor, Benoit Demers, was assessed 30 demerits for failing to ensure the proper track protection for a train being inspected by a team of four rail car mechanics, including himself. As the grievor’s discipline record stood at 55 demerits at the time of the assessment of the additional 30 demerits, he was terminated for having accumulated in excess of 60 demerits.

The nature of the dispute is reflected in the statement of facts and issue filed with the Arbitrator. It reads as follows:

Statement of Fact:

On or about March 14, 2005, Rail Car Mechanic Benoit Demers’ record was debited 30 demerits for:

‘Please be advised that your record has been assessed thirty (30) demerit marks for your failure to ensure the required track protection was in place prior to inspecting Train 822-032 as evidenced by your lining and locking improperly switch ‘M’ into the track being worked on, a violation of the Article 44.27 of the Collective Agreement 101 and Company Policy ‘5 Alive’ on March 2^nd 2006 at Golden, B.C.’

Further on the same day on, Rail Car Mechanic Benoit Demers was advised that: ‘…you have been dismissed from the Company Service for the accumulation of demerit marks in accordance with the Brown System of Discipline’

Statement of Issue:

It is the contention of the Union that:

· The Company did not establish wrong doing on Rail Car Mechanic Benoit Demers’ behalf sufficient to give the Company cause to discipline him;

· Rail Car Mechanic Benoit Demers was treated in an arbitrary, discriminatory and an excessive manner in regard to the 30 demerits debited against his record; The Company disciplined only Mr. Demers with respect to the aforementioned infraction.

· Rail Car Mechanic Benoit Demers was treated in an arbitrary, discriminatory and an excessive manner in regard to his dismissal;

Therefore, with regard to the foregoing, it is the position of the Union that the discipline of 30 demerits Rail Car Mechanic Benoit Demers’ record should be removed from his record and he should be returned to duty forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including, not limited to, interest on any moneys owing.

The Company denies the Union’s contentions and claim.

The facts are not in substantial dispute. The grievor was hired by the Company in 1982 and had some 23 years of service at the time of the event giving rise to his discharge. At 22:00 hours on March 2, 2006, Mr. Demers was assigned to perform the mechanical inspection of train 822-032 which was located in the ‘M’ track of the Golden Mechanical Facility. On that assignment the grievor was working in conjunction with Rail Car Mechanic Bob Spain. The evidence reflects that Mr. Spain applied the Blue Flag and Blue Light protection at the south end of the train and then went to the north end of the consist, which was the starting point for the inspection to be performed by Mr. Spain and Mr. Demers. Meanwhile, Mr. Demers was given the responsibility to line the switch at the south end of the movement, so as to prevent any other traffic from entering the track, and to lock the switch with his personal lock. It appears that Mr. Demers did apply his personal lock to the switch in question, and returned to undertake the inspection with Mr. Spain.

Shortly thereafter, at approximately 23:00 hours, Diesel Maintainer Adolph Jankovic and Diesel Service Attendant Tim Routley proceeded to the south end of track ‘M’ en route to perform an inspection of a slave locomotive on the train being serviced. They then noticed that the switch at the south end of ‘M’ track was in fact lined as to allow traffic to enter the track from the lead. That was apparent to them both from the aspect of the switch target and the placement of the switch point. They immediately called the grievor, requesting that he return to the south end of Track M and properly line and lock the switch as required by Rule 44.27 of the collective agreement. The grievor then proceeded back to the switch where he corrected his mistake, whereupon the train inspection was completed.

Subsequently, Diesel Maintainer Jankovic reported the situation of serious hazard to his supervisor, as a result of which the grievor was held out of service pending an investigation. Statements were received from employees over four separate investigations conducted from March 7 to March 9, 2006, following which the grievor was assessed 30 demerits and discharged.

The grievor does not deny the facts which are related above. Moreover, during the course of his investigative statement, Mr. Spain revealed that on another occasion, some four or five weeks previous, Mr. Demers had done the same thing, simply locking a switch rather than relining it, leaving a train under inspection without protection. That second incident was confirmed in the statement of Mr. Jankovic and was ultimately admitted by the grievor himself during the course of his own disciplinary interview.

It is difficult to overstate the danger created by the grievor’s negligent failure to properly line the switch so as to avoid the possibility of any cars entering track ‘M’ off the lead while the inspection of the coal train was ongoing. The prospect of a train moving unexpectedly while car mechanics are working around and under it during the course of the train inspection process is extremely serious. On April 9, 2002, a situation identical to the case at hand resulted in a fatality when a carman working in Binghamton yard had the train he was inspecting struck by another car, by reason of a switch not having been properly secured. As a result of that incident, a letter dated October 7, 2002, the Company instituted the “5 Alive Program” which emphasized the five cardinal rules for the protection of a train being inspected. Those rules include the use of blue flags and blue lights, derails, fall protection, the lockout/tagout procedure for switches and protecting the point.

As noted above, the lockout procedure has been deemed of sufficient importance to be included within the rules of the collective agreement itself. To that effect, Rule 44.27 states, in part:

Section 4. Application of Blue Signals and Personal Locks

A) Yard and Repair tracks

I) Where yard and repair tracks are coupled up at both ends, a standard Blue Flag suspended from a staff clamped to the rail or ties by day and Blue Light hung on same staff by night must be displayed at both ends of each track and in addition, the switches at both ends of each tack must be lined to prevent movement onto the track, and secured with a special personal lock other than the standard switch lock, before employees commence work.

(emphasis added)

As is evident from the facts related above, the grievor plainly failed to observe the requirements of Rule 44.27, not only on the evening of March 2, 2006 but also on a second occasion a few weeks earlier. Given the life-threatening nature of that oversight, it is not surprising that a fellow employee felt bound to report the incident and that at least two employees did not hesitate to reveal the second incident during the course of their statements during the ensuing investigation.

The Union’s representative submits that in fact the Company’s own policies do not properly apply the terms of Rule 44.27 of the Collective agreement. He argues that the language of the Rule in fact contemplates that it is insufficient to assign one employee to reline and lockout a switch by means of a personal lock. He argues that the intent of the Rule is that all of the employees on a given crew are to apply their own personal locks to any switch which is to be locked out. In other words, according to his interpretation, Mr. Spain should have been required to apply his own personal lock to the switch at the south end of the ‘M’ track. According to his representations, that kind of double check has in fact been applied at some locations, following discussion between the Union and Company.

The Company disputes the interpretation so advanced by the Union. Its representatives confirm that there is a circumstance in which multiple locks can be applied to a single switch which is secured during the course of an inspection. That would involve the application of further locks by additional different crews who might be working on the inspection of the same train. For example, in the case at hand, Diesel Maintainer Jankovic would not have commenced inspecting the power unit on the coal train without first applying his own personal lock to secure the switch linking ‘M’ track to the lead. That is confirmed in Mr. Jankovic’s own statement. The Company’s representatives submit, however, that that is the limit of multiple locks applications, and that the Rule has not been applied and was not intended to apply so as to require that each and every member of a given crew take responsibility for lining and locking out a switch with their own personal lock.

The Arbitrator has some difficulty with the interpretation advanced by the Union in the case at hand. The Union’s own members who are witnesses in these proceedings, Mr. Spain and Mr. Demers, appear not to have expressed any view to the effect that Mr. Spain was under an obligation to apply his own lock in addition to that of Mr. Demers, to secure the switch at the south end of ‘M’ track. Nor is there any evidence to suggest that either Mr. Spain or Mr. Demers proceeded on the direct order of any supervisor as to how the process should unfold. Additionally, there is nothing in the statement of Mr. Jankovic, who is also a bargaining unit member, to suggest that there was any error on the part of Mr. Spain.

Most importantly, the plain language of Rule 44.27 does not appear to support the Union’s interpretation. The Rule states that switches at both ends of the track where an inspection is taking place are to be secured ‘…with ….a special personal lock’. There is no reference in the Rule to ‘locks’ in the plural, so as to suggest that each and every member of a crew must apply his or her lock to the switches at both ends of a track. Whatever the value or wisdom of the interpretation preferred by the Union, neither the language of Rule 44.27 nor, it appears, the practice of the employees themselves, suggests that the Company misapplied the Rule by allowing a single employee to lock out a switch by way of protection prior to the inspection of a train. The Arbitrator cannot agree with the suggestion of the Union’s representative that the Company has exhibited laxity or created a mitigating factor that would reduce the responsibility of the grievor in the case at hand.

What, then, is the appropriate measure of discipline? Unfortunately, while he has reasonably long service, Mr. Demers has an unimpressive prior disciplinary record. Over the years, his accumulation of demerits resulted in three separate instances of the Company advising him by letter that his employment was in jeopardy by reason of his demerit standing, the most recent being in 2005. At the time of the incident in question, Mr. Demers’ record stood at 55 demerits, the threshold of discharge. Additionally, on two prior occasions, he had been disciplined for safety infractions including failing to properly line a switch resulting in a run through and failing to remove a derail, resulting in a derailment.

If the Brown System of Discipline is to have any significant meaning, an employee in the position of the grievor, with 55 demerits on his record, knew or should have known that a cardinal safety infraction could have the most adverse consequences for his ongoing employment. The assessment of a mere 5 demerits, even for a minor infraction, could have resulted in his discharge. Notwithstanding that reality, the evidence before the Arbitrator confirms that on two separate occasions, by the grievor’s own admission, he placed himself and his crew in a position of extreme jeopardy with respect to possible injury or fatality by failing to properly line and lock out a protective switch, as he was assigned to do.

The record discloses that the Company has been fair in its application of discipline to the grievor over the years, adhering to principles of progressive discipline which, unfortunately, did not bring home to the grievor the importance of applying the requisite diligence in his work habits, particularly as relates to safety. Regrettably, the Arbitrator considers that the infractions committed by the Grievor are so grave as to justify the assessment of the 30 demerits applied by the Company, and that the record does not justify any reduction of that penalty. Placing himself and his fellow employees in a life-threatening situation, on two occasions, cannot be minimized given the grievor’s prior disciplinary record.

For the all of the foregoing reasons, the grievance must be dismissed.

Dated at Ottawa this 5th day of April, 2007.

___________________________

MICHEL G. PICHER

ARBITRATOR

SHP 616