CANADIAN RAILWAY OFFICE OF ARBITRATION

& DISPUTE RESOLUTION

CASE NO. 3878

Heard in Calgary, Tuesday, 9 March 2010 concerning

CANADIAN NATIONAL RAILWAY COMPANY

and

TEAMSTERS CANADA RAIL CONFERENCE

DISPUTE:

Assessment of twenty (20) demerits to Conductor P. Mousir of Calgary for failure to follow journal set out instructions at Mirror … while working as conductor on Q11451-01. This resulted in delay to Q11451-03 departing Mirror and subsequent dismissal from the Company for accumulation of demerits in excess of sixty (60). COMPANY’S STATEMENT OF ISSUE: On October 4, 2009, the grievor was the conductor on Q11451-03, travelling from Calgary to Mirror. Upon arrival at Mirror, the grievor set out 37 cars from the head end of his train to track OR16. The head end block of 5 cars was to remain with the train and to be set out at a customer location. Through the investigative process the Company determined that the grievor’s action delayed Q11451-03 in its departure from Mirror. Mr. Mousir was assessed twenty (20) demerits for his responsibility in this matter and was subsequently dismissed for the accumulation of demerits in excess of sixty (60). The Union contends that the issuance of discipline is unfair, was not needed and should be expunged and the grievor made whole, The Company disagrees with the Union’s contentions. FOR THE COMPANY: (SGD.) P. PAYNE FOR: DIRECTOR, HUMAN RESOURCES There appeared on behalf of the Company: P. Payne – Manager, Labour Relations, Edmonton K. Morris – Sr. Manager, Labour Relations, Edmonton D. Crossan – Manager, Labour Relations, Prince George C. Mitchell – Trainmaster, Calgary C. Tytgat – Trainmaster, Calgary

CROA&DR 3878

• 2 – There appeared on behalf of the Union: M. A. Church – Counsel, Toronto B. Boechler – General Chairman, Edmonton R. A. Hackl – Vice-General Chairman, Edmonton G. Mensaghi – Local Chairman, Calgary H. Richardson – Former Local Chairman, Calgary P. Mousir – Grievor AWARD OF THE ARBITRATOR

It is admitted that the grievor was responsible, in part, for the delay in the

departure of train Q11451-03 from Mirror on October 4, 2009. The evidence confirms

that the grievor was aware that the head end block of five cars on his train was to

remain with it. Having forgotten that requirement, he incorrectly switched out those cars

into track OR-16 as part of a total cut of thirty-seven cars. Upon going off duty he

realized his error and communicated with the conductor of the on-going movement,

requiring that crew to delay its departure for the time needed to return to track OR16

and collect the five cars in question for furtherance onward.

The sole issue in the case at hand is the appropriate measure of discipline. The

grievor is sixty-years of age and has some twenty-three years of service with the

Company. While his disciplinary record is not enviable, in mitigation it does not appear

disputed that he has suffered a degree of personal stress, occasioned by his witnessing

the fatality of a fellow worker at Calgary in 2005. It does not appear disputed that when

his train was enroute to Mirror he and his crew were informed of a disturbing level

crossing fatality at Edmonton and the apparent presence of a child trapped in the

resulting wreckage, something which the grievor states troubled him profoundly and he

believes distracted him from paying proper attention to his work on the arrival of his train

into Mirror. In the circumstances the Arbitrator is satisfied that this is an appropriate

case for reinstatement, albeit without compensation.

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor

be reinstated into his employment forthwith, without loss of seniority and without

compensation for any wages and benefits lost. The time between his termination and

CROA&DR 3878

• 3 –

reinstatement shall be registered as a suspension for unsatisfactory work performance

and delay to train Q11451-03 on October 4, 2009.

March 15, 2010 (signed) MICHEL G. PICHER

ARBITRATOR