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CANADIAN RAILWAY OFFICE OF ARBITRATION
CASE NO. 1677
Heard at Montreal, Thursday July 16, 1987
Concerning
CANADIAN NATIONAL RAILWAYS
And
UNITED TRANSPORTATION UNION
DISPUTE:
Dismissal of Conductor W. R. Smith, Jasper, Alberta, July 25, 1986.
JOINT STATEMENT OF ISSUE:
Conductor W. R. Smith was dismissed from Company service effective July 25, 1986 for failure to fulfill the responsibilities of a Conductor, ensuring a proper test of the train brakes was performed on Extra 5586 West prior to the accident at Mileage 173.1 Edson Subdivision on 8th February 1986, also, for failure to comply with General Operating Instructions, Form 696, Item 3.2(B), Paragraph 4, in not taking appropriate action to stop the train immediately when the crew on the engine failed to respond, resulting in the head-on collision of Extra 5586 West and Via Train #4 at Mileage 173.1 Edson Subdivision, 08 February 1986.
The Union has appealed the discipline and discharge on the basis that such was not supported by any proper assessment of the evidence, past practice or interpretation of the operating rules given the circumstances of this case and has requested that Conductor Smith be returned to service with reinstatemnt of all rights and payment for lost time. In the alternative, the Union argues that the discipline (dismissal) was too severe and ought to be mitigated in view of all the circumstances in this case, including the grievor's record of service.
The Company has declined the appeal.
FOR THE UNION: FOR THE COMPANY:
(SGD) L. H. OLSON (SGD) D. C. FRALEIGH
General Chairman Assistant Vice-President CN Lines West Labour Relations
There appeared on behalf of the Company: A. Giard - General Counsel, Montreal J. Glazer - Attorney, Montreal
D. C. Fraleigh - Assistant Vice-President, Labour Relations, Montreal M. Delgreco - Director Labour Relations, Montreal J. R. Hnatiuk - Manager Labour Relations, Montreal K. G. MacDonald - Manager Labour Relations, Edmonton M. C. Darby - Co-Ordinator Transportation, Montreal T. N. Wilson - Assistant Manager Rules, Montreal
And on behalf of the Union: M. A. Church - Counsel, Toronto L. H. Olson - General Chairman, CN Lines West, Winnipeg J. Armstrong - Vice-General Chairman, CN Lines West, Winnipeg M. Becker - Local Chairman, Jasper W. R. Smith - Grievor, Jasper R. A. Bennett - General Chairman, CN Lines Central, Toronto T. Hodges - Vice-General Chairman, CN Lines Central, Toronto W. G. Scarrow - Vice-General Chairman, CN Lines Central, Sarnia B. Leclerc - General Chairman, CN Lines East, Quebec R. Lebel - Vice-General Chairman, CN Lines East, Quebec
AWARD OF THE ARBITRATOR
On Saturday, February 8, 1986 the freight train on which the grievor, Wayne Smith, was conductor, Train 413, collided head-on with an eastbound passenger train, VIA Train No. 4, some 11 miles east of Hinton, Alberta. That tragic event claimed the lives of 23 people. Ninety-five persons survived, seventy-one of whom suffered physical injuries in the collision. Among the dead were seven CN employees, including the engineer and front-end trainman in the lead locomotive of the grievor's train. Conductor Smith, who had been riding alone in the caboose, was the sole surviving crew member of Train 413, which was also known as Extra 5586 West. The collision caused some 30 million dollars in damages to goods and equipment.
On July 25, 1986 the Company dismissed Conductor Smith, citing a number of alleged failings in his responsibilities. More particularly related in the joint statement of issue, these include failing to ensure a proper test of the train's brakes, operating over speed and, most critically, failing to stop the train when, shortly before the moment of impact, Conductor Smith received no response in an attempted radio communication with the head-end crew of his train.
The Hinton tragedy resulted in the appointment of a Commission of Inquiry (Commission of Inquiry, Hinton Train Collision), with the Honourable Mr. Justice Ren P. Foisy as Commissioner. The report of
material establishes that Conductor Smith and the operator went to her apartment at approximately midnight and that he slept there overnight, until a call came for him at approximately 5:15 a.m. the next morning. Conductor Smith was instructed to report for work at 05:45 hours, which he did. By his own estimate, he had had some three and a half to four hours of sleep, and felt sufficiently rested and fit for duty. The findings of the Commission of Inquiry include determinations that Engineer Hudson returned to work on the morning of February 8, 1986 with no more than three and a half hours' sleep while Trainman Edwards, who also used the bunkhouse, would have had something less that five hours' sleep during the Edson layover.
As they were awaiting Train 413, the station operator relayed a request of the incoming engineer asking whether the grievor's crew would "take the train on the fly". This means that because of the heavy tonnage of the train which was then moving on an uphill grade, and to avoid the loss of momentum and time that would be occasioned if the train were brought to a dead stop in the station, the speed of the train would be reduced to an extremely slow pace, estimated to be some three or four miles per hour, permitting both the front end crew and the conductor to de-train as Train 413 entered the station, while Conductor Smith's crew boarded the train to replace them. This procedure, while not in strict compliance with operating rules, was not uncommon in crew transfers at Edson, particularly with trains of large tonnage. It appears that changing on the fly permitted Conductor Smith's crew to make only a limited form of check on the braking system of the train. While that check could satisfy the crew that the brakes were in working order, it is not disputed that prior to the train's departure from Edson it did not have a full brake check in conformity with the requirements of CN Form 696, Item 17.5. It is also accepted, however, in light of extensive tests conducted following the collision, that the brakes of the freight train were in good operating order and that its braking system in no way contributed to the accident at Hinton. On leaving Edson, Conductor Smith communicated by radio with Engineer Hudson in the head-end locomotive, confirming the check of the brakes and noting his time of departure. The train then commenced its fateful westward journey without any indication of irregularity in the state of its crew or equipment.
As Conductor of Train 413, Mr. Smith was subject to a number of regulations, two of which are of particular pertinence. Rule 106 of the Uniform Code of Operating Rules provides as follows:
Trains will run under the direction of their conductors. When a train is run without a conductor the engineman will perform the duties of the conductor. Conductors, enginemen, and pilots if any, are responsible for the safety of their trains and the observance of the rules and under conditions not provided for by the rules must take every precaution for protection. This does not relieve other employees of their responsibility under the rules.
It is not disputed that the foregoing rule renders the conductor responsible for the observance of the rules by members of his or her crew as well as by himself or herself.
The second rule, and the rule of most critical importance for the purposes of this arbitration is Item 3.2(b) of From 696, General Operating Instructions. It is in the nature of a Company directive which provides as follows:
3.2 CONDITIONS REQUIRING THE USE OF RADIO
(b) On Express, Freight, Mixed and Work Trains, a member of the crew at the rear of the train must, when practicable, contact a member of the crew on the engine who must communicate by name the indication displayed by the following block and interlocking signals:
(1) Approaching the approach signal to all interlocked railway crossings at grade and interlocked drawbridges.
(2) In single track CTC, and on subdivisions or portions thereof specified in the time table or special instructions, approaching the approach signal to all controlled locations.
(3) Prior to entering CTC territory approaching the approach signal, or where there is no approach signal, approaching the first controlled signal.
If crew on engine fails to respond to such calls, action must be taken by a member of the crew at the rear of the train, when practicable, to stop the train immediately.
NOTE: Instructions contained in Section 3. also apply to movements not operating as trains. (emphasis added)
The foregoing operating instructions require the conductor "when practicable" to contact a member of the engine crew to receive verbal communication of the indications displayed by track signals. If the engine crew fails to respond, the conductor at the rear of the train must, "when practicable", stop the train, which he or she can do from the caboose by an application of the air braking system.
The evidence of Conductor Smith is that Engineer Hudson, with whom he
in fact gaining speed.
Operating Rule 3.2(b) placed upon Conductor Smith an obligation to communicate with the crew in the engine as his train approached Signal 1703N. Conductor Smith's evidence is that at mileage 169 he attempted to radio Engineer Hudson to get confirmation of the indication of Signal 1703N, but was unable to get any response. According to his account, he first attempted to communicate by means of his portable grey radio, trying three or four times without success. He concluded that his grey radio must be malfunctioning, and then proceeded to use the red radio in the cupola of the caboose. He also experienced difficulty with the red radio finding that the channel changer turned freely rather than "clicking" into the four transmission channels. Conductor Smith relates that he turned the channel changer fully to one side hoping to locate the control at channel 1 to communicate with Engineer Hudson. When that was not successful he turned the channel changer, attempting to find channels 2, 3 and 4, still trying to get a response from his engineer. It should be noted that the investigation of the equipment conducted by the Commission of Inquiry confirms Conductor Smith's observations about the condition of the channel changer on the red radio.
For the reasons related below, I must take it as established that Mr. Smith did attempt to radio the engineer. It is important, at this point, to emphasize the difference between the process engaged in by the Commission of Inquiry and the obligations of this board of arbitration, mandated as it is to hear a grievance under the provisions of the Canada Labour Code and the collective agreement that governs the parties. The responsibility of Mr. Justice Foisy was to thoroughly examine the circumstances of the Hinton crash and to report, to the best of his ability, on the cause or causes of that tragedy, making recommendations with a view to assisting the parties to the Inquiry and federal authorities with responsibility for the safe movement of railway traffic to avoid the recurrence of such an event in the future. This Office, on the other hand, is charged with determining, in accordance with the rules of procedure and evidence appropriate to the quasi-judicial responsibilities of a board of arbitration, whether there was just cause for the imposition of discipline on the grievor, including his discharge, based on the issue as framed in the joint statement of the parties.
In this forum the burden of proof is upon the Company to establish, on the balance of probabilities, that the actions of Mr. Smith were deserving of the disciplinary sanctionC ultimately imposed. Mr. Justice Foisy's Report contains some general observations expressing skepticism about the actions of Conductor Smith, including whether he radioed at all, and the overall credibility of his account of the events immediately preceding the Hinton collision. It is, of course, entirely appropriate for a commission of inquiry to express doubt, in a speculative way, about any aspect of the testimony before it. A board of arbitration, however, is not so unconstrained, and is limited to making such findings as are sustainable on the balance of probabilities, based on the evidence before it. It is not appropriate for this board, whatever doubts it may or may not have, to dispose of the rights of either the Company or the grievor on the basis of surmise or speculation. My jurisdiction is restricted to the issues as stated by the parties, and my findings must be based on
the evidence bearing on those issues, applying the standard of proof appropriate to civil proceedings.
According to the wording of the issue put to the Arbitrator, Conductor Smith was disciplined, in part, for failing to stop his train when he received no response to his attempted radio communication from his head-end crew. Therefore, his evidence that he did attempt to radio his fellow crew members in the locomotive must be taken as established for the purposes of this case. It is beyond the jurisdiction of this Board to deal with any issue of whether he, in fact, radioed the locomotive. As framed, the joint statement of issue presumes that fact to be established. The sole issue, apart from his general attentiveness to his duties, is whether he responded adequately in the circumstances, and if not, what measure of discipline is appropriate.
The only direct evidence as to what occurred in the caboose of Train 413 in the minutes prior to the collision is the testimony of Conductor Smith. His evidence, both before the Commission of Inquiry and during the Company's own internal investigation, which together form the record for these proceedings, is that on the approach to Dalehurst he made several attempts to communicate with the head-end of his train using both his portable grey radio and the red radio in the caboose. Neither radio brought him any response. It is important to focus carefully on Mr. Smith's state of mind at that point. Mr. Justice Foisy's Report confirms, based on the evidence of a number of running trades employees familiar with the area, that it is not uncommon to experience "dead spots" in radio communication caused by the topography of a locality. Based on extensive tests performed after the collision, the Commissioner concluded that no dead spots did in fact exist that would interfere with transmission at the time and place in question, either because of the Dalehurst topography or unusually severe geomagnetic activity. The fact remains, however, that a reasonable employee in the situation of the grievor would have reason to believe that such phenomenon was possible, which in the circumstances of this case could be taken to explain the inability to raise a response from Engineer Hudson or Trainman Edwards. In considering this aspect of the evidence, it is also worthy of note that the Commission found that, on occasion, noise levels in locomotive cabs have rendered radio transmissions inaudible to the trainman riding beside the engineer.
In the Arbitrator's view the foregoing findings suggest that it was possible for Conductor Smith to form the opinion that his failure to get a response on the radio from the front end did not necessarily mean that there must be something amiss in the locomotive. In light of the evidence respecting occasional irregularities in radio transmission, it is not altogether implausible that Conductor Smith believed his train was under control, nothwithstanding that he received no answer to his calls.
There are, as well, other elements of objective evidence that give further substance to Conductor Smith's account of his overall impression at the time. The material establishes that while the track on which Train 413 was travelling from Obed Summit to Dalehurst is generally on a downhill grade, there is a slight uphill grade commencing at or about mileage 170, a little to the east of
locomotive of Train 413. That remains so no matter what opinion he may have expressed after the collision, when it became obvious that his train had indeed been out of control. I therefore fail to see any inconsistency in his statement to the RCMP after the collision and his testimony as to what he believed was happening in the minutes prior to impact. If anything, Conductor Smith's failure to pull the emergency brake on the approach to Dalehurst is more consistent with his evidence that he believed that the brakes were being applied and the train was under control.
Much of the argument of the parties in this arbitration relates to the meaning and application of Rule 3.2(b) of the CN Rail General Operating Instructions. The essential issue is whether by failing to stop the train when he received no response to his radio calls to the front end Conductor Smith violated his obligation under the Rule. The Rule is not one of general application in the railroading industry. There is no comparable rule governing conductors employed by CP Rail. It is also established that the Rule has fairly recently been amended to appear to vest a certain degree of discretion in a member of the crew stationed at the rear of the train. Prior to June of 1985 the words "when practicable" were not found in the first and last paragraphs of the Rule. The Commission of Inquiry concluded that the reason for inserting the words "when practicable" "... was to remove from the CN Rail General Operating Instructions any impediment to the operation of cabooseless trains.".
The Commission of Inquiry was plainly not impressed with either the motivation for the amendment of the rule or its probable impact on employees required to interpret and apply it. At pp.143-42 of his Report, Mr. Justice Foisy makes the following observations:
CN may not have intended to introduce any uncertainty into the rule by adding the words "when practicable". Indeed, it seems likely that it was not until after the collision that it even occurred to CN that the change was capable of being interpreted as having introduced an element of discretion. The explanations given for the introduction of the words "when practicable" have a flavour of after the fact rationalization. The Commission, as has been observed, believes there is substantial reason to conclude that the real reason for the change was anticipation of the cabooseless train debate.
The Commission concludes that whatever might be the proper interpretation of the rule, in its present form, in the absence of any authoritative pronouncement (there not having been any forum in which the issue has been determined authoritatively since June, 1985) the only reasonable conclusion is that the rule is capable of misinterpretation. Few conductors who appeared before the Commission had an unequivocal understanding of the rule.
(i) Conclusions
The Commission concludes that if Smith acted as he said he did, his failure to apply the emergency brake when he did not receive a response, having used all available means of communication to the head-end was, even by his own interpretation of the rule, a violation of it. The Commission also concludes that CN bears a significant degree of responsibility for the non-compliance. Changing such a fundamental rule in such a fundamental way without explanation, and without confirmation that no difference in the standard of conduct was intended, is to court laxity in the observation of the rule by running crew members and the type of disaster which can flow therefrom. The Commission concludes that the effect of the amendment has been to significantly reduce the quality of the rule as an assurance of appropriate engineer response to signals. (emphasis added)
As related below, the foregoing conclusion, with which the Arbitrator must agree, has a significant bearing on the degree of responsibility to be ascribed to Conductor Smith and the measure of discipline that is appropriate in the circumstances.
While it is not necessary, for the purposes of this grievance, to define in any exhaustive way the outside limits of a conductor's discretion under Rule 3.2(b), it is, in my view, significant that the Commission of Inquiry was constrained to find that "... the only reasonable conclusion is that the rule is capable of misinterpretation.". The Commission found that Conductor Smith did in fact violate Rule 3.2(b). On a careful review of the evidence, for reasons elaborated below, the Arbitrator does not disagree with that finding. Of equal significance, however, is Mr. Justice Foisy's conclusion that the change in the rule in June of 1985 was not adequately explained to employees, and that the rule could be viewed as including an element of discretion and is plainly capable of misinterpretation. The Commission concluded that in view of that ambiguity the Company must share the responsibility for Mr. Smith's non-compliance with Rule 3.2(b). With that conclusion I must also agree. If the Company intended that Mr. Smith's obligation in the circumstances should be to stop the train automatically upon being unable to communicate with the head-end, and it wishes to fasten him with that responsibility, it must be able to point to a clear and unequivocal rule to that effect in force at the time. For the reasons given, it cannot. In light of the objective standard that must be applied, it would, in my view, be inequitable to hold Conductor Smith solely to blame for the failure to apply the emergency brakes of Train 413 upon its approach to Dalehurst.
