CN is #1

[CliqueofOne]

Saturday, February 28, 2004
Railfax: Meetings adjourn after 3 days
On Thursday, as previously reported, the CAW bargaining committees made a full presentation to the CN committee concerning the harsh new discipline system, deterioration of working conditions, and lack of respectful treatment of employees. Among other proposals, the CAW filed a new demand that the company reinstate the previous disciplinary system and that mediated discussions take place as to how to make improvements in the treatment of our members.

On Friday afternoon, the CAW committee presented to the CN the areas of the collective agreement where our members are seeking changes and improvements. These areas included the wage increases, improvements for post-Jan. 1, 2004 retirees, extended health and vision care, shift differential, weekend premium, an immediate signing bonus and ongoing bonuses based on a system to be determined, and the inclusion of post-Jan. 1, 1994 members in the Employment Security provisions. The CAW also stated that the provision to allow retirees to work weekends, and the appendix about re-negotiating ES in conjunction with productivity, must be deleted.

Shortly after the meeting, CN President E. Hunter Harrison requested the right to meet with the full union committee, saying he would like to hear directly the concerns of the union. The request was granted, and the meeting took place at 6:30 pm., in the presence of the government mediators.

The two sides talked about the strike action and the effect it was having on both sides and on the public. The CAW clearly stated that although our preference was for amicable negotiated settlements, the strike would continue for as long as it took until workers approved a new agreement, and until workers could return to a workplace where they were treated with respect and where problems could be openly aired and solutions found.

The CAW bargaining committee then presented in detail, with many examples, the incidents and events from the workplace that have instilled a sense of betrayal and anger in our members. Mr. Harrison commented on many of the issues and presented his own views on the role of discipline. He said he was prepared to work with the union on these issues. The overall dispute, however, remains unresolved at this time.

The CAW then clearly reiterated that besides the issue of treatment of employees, there was no question of stopping the striking or reaching a new agreement without a significantly improved collective agreement package, as outlined before.

To this, Mr. Harrison repeated what he had said in his message to employees about his unwillingness to increase the wage offer. He did, however, state that he could envision four alternative ways to proceed:

1) In addition to the 3%-3%-3% salary increase, a lump-sum non-pensionable bonus based on a formula to be determined. There would be no guarantee of how much money this might produce in any given year. In addition, he stated that the entire weekend provision (i.e. both the retirees working weekends and the weekend premium) could be deleted and the cost of this be distributed as a lump sum; OR
2) A four-year agreement, with wage increases of 3%-3%-3% and 4% in the final year, as well as the same bonus concept as above. OR
3) Continuing along the road of strike action without the parties changing their positions for the indefinite future; OR
4) A resort to "non-binding arbitration", by which Mr. Harrison meant the use of a third-party process which would hear the two parties concerns fully and then recommend, but not impose, a resolution.

The meeting ended and the bargaining committee met this morning (Saturday) to analyze the situation. The committee decided, after much deliberation, to adjourn the talks and return to the field and consult with the membership as to the best way to go forward, ensuring that we have as clear a mandate as possible before the next talks are scheduled.

In the meantime, strike action will carry on. We thank our members once again for their solidarity and patience in the current difficult situation. We also warmly thank the other CN unions and their members who have expressed support and many of whom have lent us invaluable assistance.

Monday, March 01, 2004
CN's new approach to discipline
Striking CN workers across Canada are speaking out about the deterioration of the working relationship and working conditions, the lack of respect they feel at the workplace, and CN's harsh new discipline system. With the widespread punitive treatment of safety and rules violations (even minor ones), there is a growing risk that workers will not even report accidents and injuries for fear of retaliation.

Members of other CN unions have told us they face the same tense work environment. Outside observers, from the media and elsewhere, have expressed surprise at this recent and sudden change, and they have asked for examples to help understand what is going on. Here are two situations involving another union which reached the stage of arbitration (the vast majority do not):

1. An employee with 35 years of service, just weeks before his retirement and with an unblemished lifelong discipline record, made a serious operating error involving a hot axle. A series of company officers verbally chastised him. He was then offered a "deferred" 14-day suspension if he admitted responsibility and gave up his right to a formal investigation. He declined. After the investigation he was summarily fired. The arbitrator rescinded the dismissal and ordered that he be fully compensated for his losses. Click here for the full text of the decision.

2. A 14-year employee was fired for making a minor computer error. After hearing the evidence, the arbitrator stated:

"What is disclosed is an inadvertent error which had no negative impact on the actual composition of the train consist, involved no risk to safety and occasioned no loss of productivity. Of perhaps equal significance, but for the failure of the Company in respect of properly training the grievor, the incident might have been entirely avoided."

The employee was reinstated with full compensation and 10 demerits. Click here to read the full decision.

CANADIAN RAILWAY OFFICE OF ARBITRATION

CASE NO. 3356

Heard in Edmonton, Wednesday, July 9, 2003

concerning

CANADIAN NATIONAL RAILWAY COMPANY

and

UNITED TRANSPORTATION UNION

EX PARTE

DISPUTE:

The violation of the Canada Labour Code and the collective agreement including article 117 of agreement 4.3 and discharge of Conductor T. of Melville, Saskatchewan.

UNION'S STATEMENT OF ISSUE:

On January 31, 2003, T. was working as conductor on train Q10251-28. During this tour of duty Conductor T. received a Hot Box Detector message informing him of a hot axle. Conductor T. mistakenly used the train journal to determine the appropriate car. He misidentified and checked the wrong car.

A second hot axle alarm was detected some 28 miles later. The proper car was identified and set off.

Upon arrival at Winnipeg, Conductor T. was interrogated by several officers progressing in seniority up to and including CN Vice-President Keith Creel, who berated Mr. T.

Company officials then approached the Union and advised that if Mr. T. admitted his responsibility and agreed not to demand an investigation and waived his rights under the collective agreement to grieve any discipline assessed he would only receive some sort of deferred suspension.

Mr. T. requested that the process outlined in the collective agreement be followed. After participating in an employee investigation Mr. T. was discharged.

The Union contends that the Company violated the Canada Labour Code and collective agreement including procedures involving a fair and impartial investigation, has interfered with the operation of the Union and has improperly disciplined Mr. T.

Further, the Union contends that, in any event, discharge is unwarranted given the circumstances.

The Union requests that the discipline be removed and the grievor be made whole or, in the alternative and without prejudice, the discipline be significantly reduced.

The Company disagrees.


FOR THE UNION:
(SGD.) R. HACKL
FOR: GENERAL CHAIRMAN

There appeared on behalf of the Company:

A. C. Giroux
D. VanCauwenburgh
H. P. Harapiac



- Counsel, Montreal
- Human Resources Manager, Winnipeg
- Supervisor, Melville

And on behalf of the Union:

D. Ellickson
R. Hackl
A. W.Franko
D. M. T.



- Counsel, Toronto
- Vice-General Chairperson, Edmonton
- Vice-General Chairperson, Edmonton
- Grievor



AWARD OF THE ARBITRATOR

The material before the Arbitrator establishes that Conductor T. of Melville, Saskatchewan served the Company for thirty-five years without ever once incurring any discipline. Unfortunately, in the period when he was preparing to commence his retirement, he was involved in two incidents, one of which attracted discipline. The first involved a counselling for failing to comply with General Operating Instruction 5.6. The second involved a failure to comply with General Operating Instruction 5.4, in relation to the detection of a hot axle. For that error he was discharged on March 4, 2003. Thereafter, the Company reinstated him, on compassionate grounds, without pay for the thirty-nine days he was held out of service. He did not resume active service. At that point Conductor T. took the vacation remaining to his credit and retired from the Company on May 31, 2003. The Union asserts that the disciplinary treatment of the grievor was grossly excessive, leaving a disgraceful blemish on an outstanding career record.

The facts in relation to the two incidents are not in substantial dispute. On January 28, 2003 train 111, under the charge of Conductor T. and Locomotive Engineer C. Badowich, passed a hot box detector at mileage 20.4 of the Rivers Subdivision. Because of a test being conducted by supervisors, the train did not then receive a "talker" message from the hotbox detector. In that circumstance Conductor T. should have reduced ensured that Locomotive Engineer Badowich reduced the train's speed to 15 mph. and advised the RTC of the failure of any talker message, in accordance with item 5.6 of the General Operating Instructions (GOI). The incident did not result in a disciplinary investigation, but in a verbal and written counselling to both Conductor T. and Locomotive Engineer Badowich.

The incident leading to the grievor's discharge occurred on January 31, 2003. On that occasion his train, Q10251-28, en route from Melville to Winnipeg received a talker message indicating a defect on the 146th axle when passing the hot box detector at mileage 103.1 of the Rivers Subdivision. Contrary to the procedure contemplated in item 5.4 of the General Operating Instructions, after his train was stopped for inspection, Mr. T. used his train journal to calculate the location of the 146th axle. He was unable to find anything irregular and the train proceeded onwards. Some twenty-nine miles eastward the next hotbox detector, located at mileage 74.5 of the Rivers Subdivision again signalled a hot journal on the 146th axle. Locomotive Engineer Badowich brought the train to a stop for an inspection. At that time Conductor T. was advised by the rail traffic controller to inspect a particular car. When he did so it was confirmed that a journal on the car in question was extremely hot, to the point of being on fire. The car was then removed to a siding and the train proceeded. Upon going off duty at the end of that day the grievor was interviewed by Manitoba Zone Superintendent D.W. Motluk as to the details of the incident, and was spoken to on the telephone by the Company's Prairie Division Vice-President, Mr. K. Creel, who was obviously concerned with the extremely dangerous situation which had occurred.

After the incident Company officials discussed with the Union the possibility of Conductor T. being given a fourteen day suspension, to be deferred should he admit responsibility and forego the option of a formal investigation, without the possibility of grieving any discipline which might result. Conductor T. declined that offer, preferring that the matter be dealt with in the normal course. Following an investigation held on February 27, 2003 Conductor T. was discharged on March 4, 2003 for his failure to comply with General Operating Instruction 5.2(g) and the Note in General Operating Instruction 5.4, ".. as previously instructed by a transportation supervisor."

The notation with respect to the instructions of a supervisor relate to discussions between Conductor T. and Supervisor H.P. Harapiac, who rode in the cab of a train with the grievor on or about January 16, 2003, as part of an overall effort to sensitize employees to the need to respect safe operating procedures and adherence to the GOI. The evidence of Mr. Harapiac, which the Arbitrator accepts, is that during the course of his discussions with the grievor on that day he reviewed certain aspects of hot box detectors, including the need to physically count all axles back from the locomotive in the event of a positive hot box signal.

As noted above, Mr. T. was thereafter reinstated and allowed to take his remaining vacation prior to commencing his retirement. The Company asserts that it made that adjustment in the grievor's record "out of pure leniency, in view of Conductor T.'s long service record". The Union submits, on the other hand, that the discharge an employee with an unblemished thirty-five year record should not be allowed to stand on the record, in the circumstances.

The Company was asked by the Arbitrator to explain the obviously wide discrepancy between its initial offer of a two week suspension and its final decision to discharge Conductor T. The explanation provided is that between the initial offer and the final decision the Company's officers became aware of the fact that Mr. Harapiac had explicitly instructed Conductor T. in the need to make a specific count of axles in the event of a hot box signal, rather than rely on his train journal to calculate the location of an overheating axle. Mr. T. states that he has no specific recollection of that issue being discussed by Mr. Harapiac, although he does not deny that it might have been among a number of things which were spoken about during the supervisor's ride on his train on January 16, 2003. It appears that Mr. Harapiac communicated the discussions of January 16 in a memorandum submitted to his own supervisors on February 25, 2003, some two days prior to the disciplinary investigation of Conductor T.

The Arbitrator well appreciates the reasons why the Company, and in particular its Prairie Region Vice-President, would be extremely concerned about the incident involving train Q10251-28 on January 31, 2003. It is not an exaggeration to say that the grievor's failure to understand and apply GOI 5.4 on that occasion could have resulted in a catastrophic derailment. That said, it remains that the appropriate measure of discipline must be determined on the particular facts of each case.

In the Arbitrator's view, the grievor's error on January 31, 2003 can fairly be analogized to a cardinal rules infraction. Such infractions have typically attracted the assessment of thirty or forty demerits, sometimes coupled with an extensive suspension. However, the gravity of the discipline assessed in the instant case is entirely without precedent, as admitted by the Company's solicitor.

It is extremely rare for this Office to encounter a running trades employee who reaches the threshold of retirement, after thirty-five years of service, without ever once having incurred so much as a single demerit mark over the employee's entire career. The Arbitrator can appreciate the remarks of counsel for the Union who states that the grievor, now retired, has pursued this matter to arbitration because of the deep personal shame which he feels the recorded discharge brings to his name after thirty-five years of exemplary service.

I am satisfied that the Union's position is compelling. It is, arguably, open to the Company to place all employees on notice that in future the failure to strictly observe GOI 5.4 will result in discharge in all cases. The treatment of Conductor T., however, represents a radical and unprecedented departure from the standards of discipline administered by the Company for similar and more grievous infractions over a long period of time. Similar rules violations, some involving derailments and collisions, have, in the past, generally been dealt with by the administration of substantial measures of demerits and suspensions (see, e.g., CROA 2588, 2915, 3166, 3253), well short of discharge for a single incident.

It is true that discipline can be fashioned, in part, for its deterrent effect on other employees. Nevertheless, arbitral jurisprudence and related court decisions in Canada recognize that the chief purpose of discipline in an industrial setting is rehabilitation. In the Arbitrator's view the assessment of thirty demerits in the case at hand would have been ample to communicate to Conductor T. the seriousness of his error of judgement in failing to adhere to the requirements of GOI 5.4 in his attempt to locate the hot box on his train on January 31, 2003. I form that view in no small part based on the fact that the incident in question, as serious as it might be, involved the first occasion in thirty-five years of service in which the grievor was made the subject of an investigation and discipline for a rules infraction.

The Union also alleges that the Company sought to exercise an unlawful reprisal against Conductor T. for his election to decline the deferred suspension, opting to exercise his collective agreement rights to an investigation, with access to the procedures of grievance and arbitration. its counsel submits that the Company's motives and actions constitute a violation of the Canada Labour Code on the part of the Company. In light of the finding made on the issue of just cause, while I seriously doubt the merits of so grave an allegation, I deem it unnecessary to deal with that issue.

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor's record be corrected to reflect the assessment of thirty demerits for his violation of GOI 5.4. He shall further be compensated for the wages and benefits lost by reason of the period he was held out of service.
July 14, 2003 (signed) MICHEL G. PICHER
ARBITRATOR

CANADIAN RAILWAY OFFICE OF ARBITRATION

CASE NO. 3400

Heard in Montreal, Wednesday, 14 January 2004

concerning

CANADIAN NATIONAL RAILWAY COMPANY

and

UNITED TRANSPORTATION UNION

EX PARTE

DISPUTE:

Dismissal of Traffic Coordinator B. for failure to perform the duties of Traffic Coordinator.

UNION'S STATEMENT OF ISSUE:

On May 22, 2003, B. was working as Traffic Coordinator in Prince George Yard. During the course of this tour of duty, Mr. B. unintentionally removed two cars from the journal of Train 358. While the cars were on the train, they were not listed on the train journal.

Following an investigation, Mr. B. was dismissed.

It is the Union's position that, while Mr. B. admittedly made an error, discharge is certainly unwarranted and, in any event, excessive. Accordingly, the Union requests that the discipline assessed to Mr. B. be substantially mitigated, and that he be reinstated without loss of seniority and be made whole for his losses.

The Company disagrees.


FOR THE UNION:
(SGD.) R. A. HACKL
FOR: GENERAL CHAIRPERSON

There appeared on behalf of the Company:

S. Zeimer
R. Reny
E. Blokzyl



- Human Resources Manager, Vancouver
- Sr. Manager, Human Resources, Edmonton
- Superintendent, B.C. South

And on behalf of the Union:

M. A. Church
R. A. Hackl
B. R. Boechler
A. Whitfield
B.



- Counsel, Toronto
- Vice-General Chairperson, Edmonton
- General Chairperson, Edmonton
- Local Chairperson, Vancouver
- Grievor



AWARD OF THE ARBITRATOR

This grievance involves the discharge of an employee of fourteen years of service, with no serious previous discipline, for a computer error. The Union submits that the termination of the grievor was grossly excessive and seeks his reinstatement with full compensation for wages and benefits lost.

The facts are not in substantial dispute. The grievor, Mr. Steve B., worked for some fourteen years as a running trades employee, eventually becoming qualified as a Traffic Coordinator. While working from the spare list as a traffic coordinator in Prince George Yard on May 22, 2003, Mr. B. inadvertently removed two cars from the journal of train 358. In the result, the cars did proceed on the train as planned, but the conductor's journal did not have the necessary notations respecting them.

The evidence discloses that while the grievor was making up the journal for train 358 on his computer, the screen produced a pop-up indicating two cars. He took the message on the screen to be telling him that the cars were suspected dimensional loads. In accordance in what he says he was trained to do, he struck the PF12 key, which apparently removed the pop-screen and allowed him to continue with the "make train" process. During the investigation the grievor explained that the screen resembled the marshalling screen which he had been taught to exit by way of striking PF12. He explained that he followed what he thought the screen was saying by hitting the PF12 key, believing that if there was a fundamental problem the computer would not allow him to continue making a journal. When he found himself able to carry on with the make train process he concluded that everything must be correct.

The evidence confirms that the grievor had relatively little experience or training in the traffic coordinator function on the tour of duty generally responsible for the make up of train 358, as he had been more specifically trained by a yardmaster on the 06:30 shift which does the make up for train 561, a train on which all the cars are pre-tagged by car management. In other words, the problem which he encountered on May 22, 2003 was one which had never arisen in his experience and for which he had not been trained. Indeed, the unchallenged representation of the Union is that local management at Prince George did not know how to deal with the pop-up in question, and that ultimately a former train management clerk, working as a janitor at that location, provided the grievor with the proper explanation and instructions with respect to the pop-up in question.

The position of the Company is that in the circumstances, being confronted with a new pop-up on his computer screen the grievor should have sought instruction from his supervisor or contacted the P.O.D. for further instruction.

The Arbitrator must agree with the Company that the grievor committed an error in judgement. The issue is whether that error in judgement, coupled with his prior service, merited his summary dismissal. In considering that issue a number of mitigating factors must be carefully examined. Firstly, it is not disputed before the Arbitrator that the grievor never received any specific training from the Company with respect to the handling of the computer pop-up which he encountered on May 22, 2003. It was only after the incident that local supervisors indicated that faced with a red coloured pop-up he should inquire with his supervisors or call the P.O.D. Secondly, while the questions put to the grievor by the investigating officer, Transportation Supervisor Peter Sampson, appear to fault the grievor for not having scheduled himself for additional training on tours of duty other than the 06:30 shift, there is no evidence before the Arbitrator as to how the Company ensures the systematic and thorough training of yard coordinators, or why it did not ensure the training of the grievor in respect of the circumstance which he encountered on the day in question. The questions of Mr. Sampson, which the Arbitrator has difficulty understanding, are tantamount to suggesting that the grievor is to be faulted because he did not schedule himself for the appropriate training. It should be viewed as axiomatic that only the employer can know and evaluate the scope of training necessary for an individual, and that choice cannot be left to the employee. At a minimum, therefore, the evidence discloses a degree of laxity on the part of management.

Significantly, prior to the incident in question the grievor had a close to exemplary disciplinary record. In fourteen years of service he had received only one written reprimand, apparently for an earlier failure to properly journal another car, an incident which was investigated on January 7, 2003. While Mr. Sampson's questioning of the grievor would appear to suggest that both incidents involved a reckless application of the PF12 key, there is no evidence to sustain that assertion. It is not established on the material before the Arbitrator that the grievor simply repeated the same error for which he had been reprimanded as a result of the investigation of January 7, 2003.

On what responsible basis can the Arbitrator sustain the summary discharge of the grievor? Even accepting that there is some similarity between the error which provoked the written reprimand and the incident of May 22, 2003, and without taking into account the evidence in respect to the inadequacy of the grievor's training by local management, the jump from a written reprimand to discharge is difficult, if not impossible, to reconcile with well accepted principles of progressive discipline. That is particularly so in the treatment of an employee who, prior to these two incidents, was discipline free through his entire career of service with the Company.

What the incident at hand discloses is not deliberate recklessness or disregard of the grievor's previous training. What is disclosed is an inadvertent error which had no negative impact on the actual composition of the train consist, involved no risk to safety and occasioned no loss of productivity. Of perhaps equal significance, but for the failure of the Company in respect of properly training the grievor, the incident might have been entirely avoided.

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without loss of seniority, with compensation in full for all wages and benefits lost, and with the substitution of an assessment of ten demerits for his failure to make proper inquiries in the face of a computer message about which he was uncertain.

January 19, 2004 (signed) MICHEL G. PICHER
ARBITRATOR

[:o)]

[Anonymous]

Just Give Them What They Want[4:-)][4:-)][4:-)][#ditto][:(!][:(!][:(!][:(!][:(!][:(!][:(!][:(!][:(!][:(!][:(!][:(!][:(!]

[greyhounds]

So that doesn't sound har***o me. He was offered a two week suspension. Why didn't he just take it?

He didn't do his job right. But no one does their job "right" all the time. They were going to give him 14 days off. What transpired was very dangerous.

Then they rehired him and allowed him to retire, which he was going to do anyway.
Why is any of this "harsh"?

It sound to me that he just didn't want to admit what he did was wrong. Well, it was wrong and the company just can't ignore it. It's a safety issue.

KS

[jeffhergert]

I can understand why they don't want a conductor to use his train list, because car(s) could be out of proper sequence, but then how did the office know which car to check?
They pulled up the train list off the computer and calculated the axle count just like he did, only more accurately.
On the UP, we have a hot bearing desk that watches for developing hot boxes and when they have the dispatcher notifiy the train sometimes they give you an axle count plus north or south side and sometimes they give you a car number plus left or right, i.e. left 2 or right 3. Left or right is determined by the car, not train. The north side could be the left for one car, right side for the next.
Last Christmas eve I was called for a manifest (that was supposed to be laid down for the holiday) that worked an intermediate yard. After making my pickup of two tracks, I went to the switch shanty where there is a CRT terminal, printer and telephone. The St Louis work order center had put my new train paperwork together and sent it on the printer. Looking it over I saw that both tracks were "flipped" in sequence. I called the desk for new paperwork and after about 20 minutes received a proper list.
The clerk said that the list would automatically be updated in proper sequence after passing the first AEI reader. I explained that the next reader was a ways off and if the bearing desk detected something and they looked at an improper list they could tell me to inspect the wrong car. (The bearing desk looks at detector readouts for abnormalities that are developing and may not yet be hot enough to set off a detector.)
I prefer if they would just give an axle number to check.

[CliqueofOne]

Tuesday, March 02, 2004
Meeting on Wednesday about CN's discipline system
Government mediators have asked the parties to meet Wednesday to continue discussions on the CAW's demand to roll back CN's new discipline system.

Some media are erroneously reporting that the purpose of the meeting is to discuss the "new contract offers". In fact, the bargaining committee members are still consulting with the membership and have not yet been summoned back to Montreal. We expect this to happen very soon and we will advise everyone when it does happen.

[CliqueofOne]

To find out more as to what is going on at CN try these sites.

http://groups.msn.com/CNRailStrike2004/_whatsnew.msnw
http://www.local100.org/MaxPortal/default.asp
http://www.cnstrike.com./
http://www.runningtrades.com/
http://www.ble-canada.ca/Eng/Index.htm