CANADIAN RAILWAY OFFICE OF ARBITRATION

CASE NO. 1735

Heard at Montreal, Thursday December 10, 1987 Concerning

CANADIAN NATIONAL RAILWAY

And

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

DISPUTE:

Appeal of discipline assessed the record of Track Maintenance Foreman R.P. Culley effective 29 September 1986.

JOINT STATEMENT OF ISSUE:

On 29 September 1986, Mr. Culley contacted the Dispatcher and obtained a Uniform Code of Operating Rules No. 42 protection between Mileage 51.0 and 58.7 on the Guelph Subdivision during the hours of 0800 and 1700. Following an investigation, Mr. Culley was assessed 20 demerit marks for a violation of UCOR No. 42 Mile 51.0 58.7 Guelph Subdivision on 29 September 1986, which resulted in his discharge for accumulation of demerit marks. The Brotherhood contended that the discipline assessed Mr. Culley was unwarranted and requested that he be reinstated with full compensation The Company denied the Brotherhood’s request.

FOR THE BROTHERHOOD: FOR THE COMPANY:

(SGD.) R. A. BOWDEN (SGD.) J. P. GREEN

SYSTEM FEDERATION GENERAL CHAIRMAN FOR: ASSISTANT VICE-PRESIDENT, LABOUR RELATIONS There appeared on behalf of the Company: J. Glazer Counsel, Montreal T. D. Ferens Manager Labour Relations, Montreal G. C. Blundell System Labour Relations Officer, Montreal A. Watson Labour Relations Trainee, Montreal S. Hicken Relief Roadmaster, Sarnia And on behalf of the Union: M. Gottheil Assistant to the President, Ottawa G. Schneider General Chairman, Winnipeg R. S. Dawson Federation General Chairman, Winnipeg R. P. Culley Grievor

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AWARD OF THE ARBITRATOR

The Arbitrator is satisfied that Mr. Culley did violate UCOR Rule No. 42. He was plainly at fault when, being responsible for a Rule 42 Order covering his own crew as well as the crew of another foreman, he did not clearly communicate an instruction to remove control flags or take any step to confirm that such an instruction had been carried out. His inattention in that regard resulted in the undue delay of rail traffic. The material reveals that this was the first time that Mr. Culley was responsible for Rule 42 protection spanning two separate work crews. While his prior record is not outstanding, I accept, on balance, that he was confused as to his obligation. While he erred in judgement and failed in the standard of care which he applied to his duties, his actions were not deliberate or reckless. In the circumstances I am persuaded that a penalty short of dismissal is appropriate. The grievor shall, therefore, be reinstated into his position, without compensation or benefits, and without loss of seniority. Needless to say any similar occurrance in the future must have the most serious of disciplinary consequences. I retain jurisdiction is respect of the implementation of this award. (signed) MICHEL G. PICHER ARBITRATOR