CANADIAN RAILWAY OFFICE OF ARBITRATION

& DISPUTE RESOLUTION

CASE NO. 4187

Heard in Calgary March 12, 2013 Concerning

CANADIAN NATIONAL RAILWAY

And

TEAMSTERS CANADA RAIL CONFERENCE

DISPUTE:

Appeal on behalf of Conductor C. Maschek of the assessment of the discipline of 15 demerit marks assessed for “Failure to comply with CRO Rule 115, not obtaining point protection when shoving cars into C030, at 23:30, while working as an Assistant Conductor on assignment Ex PARTE STATEMENT OF ISSUE OF THE COMPANY: On April 12, 2012, Mr. Maschek was assigned as the Assistant Conductor on the YLTS 30S1, yard assignment in Winnipeg, and was determined to have committed the above-noted rules infraction. The Company conducted an investigation of the incident and determined that Conductor Maschek had violated the rule noted and was deserving of discipline, which subsequently discharged him for accumulation of demerit marks. The Union contends that the Company has assessed extreme discipline and discharged Mr. Maschek, and that the he ought to be reinstated and made whole. The Company disagrees with the Union’s contentions. FOR THE UNION: FOR THE COMPANY: (SGD.) (SGD.) D. Brodie Manager Labour Relations There appeared on behalf of the Company: D. Brodie – Manager Labour Relations, Edmonton K. Morris – Senior Manager Labour Relations, Edmonton There appeared on behalf of the Union: D. Elickson – Counsel, Toronto R. Hackl – General Chairman, Calgary R. Thompson – Vice General Chairman, Calgary

CROA&DR 4187

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AWARD OF THE ARBITRATOR

There can be no doubt but that the grievor did violate CROA 115. The material

confirms that while performing yard switching on April 12, 2012 at Winnipeg, while

assigned as Assistant Conductor, Mr. Maschek shoved a cut of cars into track C030 in

Symington yard. It is common ground that from the position at which he was standing

on the ground the grievor did not have a clear view of the track into which he was

directing cars. His intention was to have the yardmaster serve as point protection by

insuring that the way was clear. To that end Mr. Maschek called the yardmaster.

However, when the latter did not answer the grievor nevertheless continued to shove

cars into track C030, a fact which was observed by trainmaster Ryan Denny.

I am compelled to agree with the Company that this was a serious rules

infraction. In effect, the grievor was shoving blind into a track without knowing the

physical condition of the area into which he was directing a number of rail cars. The

avoidance of that risk and danger is precisely the reason for CROR 115.

What, then, is the appropriate measure of discipline? The Company assessed 15

demerits against the grievor which, when added to the 55 demerits which then stood on

his record, resulted in his termination. However, in the Arbitrator’s view there are

mitigating factors to be taken into account. Firstly, the grievor’s period of employment,

which commenced in 1994, has been fraught with extensive periods of absence for non

culpable medical reasons. He was in fact shortly back from a leave of absence at the

time of the events here under examination. While I must agree with the Company that

CROA&DR 4187

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the grievor’s prior record is not exemplary, as it does contain some prior rules violations,

I am not satisfied that an outcome short of discharge cannot be fashioned, without

undue prejudice to the employer.

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

be reinstated forthwith, without compensation for any wages or benefits lost. The time

between his termination and reinstatement shall be recorded as a suspension for his

violation of CROR 115 and his disciplinary record shall continue to stand at 50 demerits.

March 18, 2013 _______________________________

MICHEL G. PICHER

ARBITRATOR