CROA 5206 & 5207 - Brother Robert Self
Sister and Brothers,
Attached are two CROA awards received today involving Brother Robert
Self of Lethbridge. 10 Day Suspension for a Run Through Switch and
Dismissal for Failure to Protect the Point.
As you can see, we were 100% successful in our arguments – both
assessments were expunged, and Robert Self has been ordered reinstated
and “made whole from his losses.”
Regarding the 10 Day Suspension for a Run Through Switch, it’s
important to note that the Arbitrator did not allow the Company to expand
its arguments beyond what was contained within the investigation or the
Form 104. During arbitration, the Company attempted to add allegations
that Mr. Self did not properly communicate the position of the switch, or
that he could have been clearer in his communication. However, the
investigating officer and the Form 104 did not cite any rule violations
regarding communication. He was cited for violating Rule Book for T&E
9.1, failure to stop short of a switch not properly lined. Mr. Self
was working RCLS, the movement was light engine, and his foreman was in
control of the movement. Both crew members were positioned on the end
platform of the locomotive. Mr. Self advised his foreman that they had to
get the switch, then proceeded to the stepwell to be in position to line
the switch. The foreman misunderstood Mr. Self and thought he meant they
needed to line the switch back after passing over it. The foreman
admitted the error was his. Some key excerpts:
[9] The Company did not at any point in
the Grievance procedure maintain that the Grievor did not properly
communicate to his crewmate regarding this Switch. Neither did it suggest
in its Form 104 that the Grievor failed to properly communicate to his
crewmate. There is in fact rules relating to communication as between
crewmates. Those rules were not set out in the Form 104.
[10] The Union maintained the Company
expanded its grounds for discipline by relying on the issue of
communication at this hearing.
[11] This argument is persuasive. The
Grievor is entitled to know and understand the basis for the Company’s
discipline, as is the Union. It is well-settled in arbitral jurisprudence
that the grounds for discipline cannot be expanded at a hearing: Re USW
and Aerocide Dispensers Ltd. (1965) 15 L.A.G. 416. At p. 426.
[12] The Company must rely on the grounds
for dismissal which are set out in the Form 104. The Form 104 which sets
out those grounds – in conjunction with the Investigation – aids the
Union in determining how best to defend the Grievor against the
allegations made.
…
[18] The Company bears the burden for
establishing culpability. Even if it had raised the appropriate ground in
its Form 104, that burden would not have been met in this case.
[19] I cannot agree with the Company that
the fact that a run through occurred supports that the Grievor did not
take the appropriate action. That result does not necessarily follow. The
Grievor is only one member of a two-man crew. The Grievor may take all
reasonable measures he can take; and – given that he is not at the
controls – those actions may still not result in avoidance of an
accident.
Regarding the dismissal, the grievance was upheld due to the Company’s
failure to properly produce a complete locomotive download. The Union was
unable to verify the train-handling of the RCLS crew operating the
movement. The grievor was protecting the point while operating a company
vehicle. However, the procedural mistake of not providing the complete
download unfairly prejudiced Mr. Self, resulting in the grievance being
upheld. This is crucial. Proper
objections need to be entered, and arguments made, when incomplete or
partial downloads are provided during investigations. In
this case, only the last minute or so of the movement was provided, and
there was no information regarding air brakes or speed selected by the
RCLS unit. The lack of airbrake information was objected to during
the investigation, and despite the IO stating that it would be provided,
it was never forthcoming.
When entering your request for full disclosure during an
investigation, if there are any specific pieces of evidence missing, or
if evidence is incomplete, those specifics should be entered into the
investigation as an objection.
[29] In this case, the Company did not
dispute that the download provided to the Union was incomplete. In
particular, that download was missing key data on the air brake system.
[30] The Company representatives at the hearing were not aware of the reason why the full download evidence was not provided to the Grievor as part of the Investigation.
[31] The download evidence in this case is
important information which has a bearing on the Grievor’s responsibility
for this accident. The Grievor maintained he gave the appropriate car
counts and it was the crew who was operating the Train too quickly, who
was responsible for this collision. The information from the train’s
download for when and how the brakes were applied to the Train – to
verify how the crew responded to the Grievor’s car counts – is important
and key information
to determine whether the Grievor was also
responsible for the collision which occurred.
[32] That download evidence was incomplete
and was not provided to the Union when it was requested. The Company was
required to either provide that evidence, or to explain why it could not
be provided.
[33] Given the importance of this
information and the failure of the Company to explain why it was not
provided when requested, the Investigation was not fair or impartially
conducted.
[34] The discipline which arose from that
failed Investigatory process is rendered void ab initio.
If you have any questions about these awards or how to properly enter
objections into an investigation, please let us know so that we can
assist you in these matters.
Fraternally,
Jason Hnatiuk
Vice General Chairman
CTY West