Investigation found nine velocity violations over two straight shifts
An Ontario locomotive engineer’s termination for violating railway rules on speeding and sleeping in his locomotive has been upheld by an arbitrator.
The employee was a locomotive engineer for Canadian Pacific Railway (CP) in London, Ont. He was initially hired in 1990 at a trainee before moving on to become a conductor and eventually a locomotive engineer in 1994.
Over the years, the employee assembled a disciplinary record adding up to 95 career demerits.
In December 2012, he was dismissed for violating one of CP’s cardinal rules —failing to ensure his train operated in a “safe and controlled manner.”
The incident involved exceeding the maximum permissible speed on nine separate occasions and failing to stop before moving over two public crossings at grade.
His overall misconduct was deemed “gross negligence,” but he was reinstated with a settlement after his dismissal was grieved.
After the employee’s reinstatement, he was suspended for 15 days for running through a switch.
On June 24, 2015, the employee and his crew were told to stop what they were doing and go to a train yard near Cambridge, Ont., that provided rail service to automotive plants.
Because of the short notice, they were late to achieve their target and the trainmaster didn’t make alternate arrangements for their lunch break, which was provided for in the collective agreement.
The crew worked through their lunch break until they completed the assignment seven hours after the start of their shift.
About 25 minutes after the crew returned to home base, two supervisors approached the employee’s locomotive, which was shut down and not moving. They saw the employee lying back in the conductor’s seat with his legs and feet stretched over the helper’s seat and control stand.
The engineer was wearing safety classes and his hooded sweatshirt was covering his face.
Both supervisors confirmed the employee was sleeping, then opened the door and called his name.
After he didn’t respond, they spoke louder and the employee woke up.
The employee was told he was violating a CP general rule that prohibited employees from engaging in “non-railway activities which may in any way distract their attention from the full performance of their duties” while involved in train movement or handling track switches.
The employee explained that he was on his lunch break, “on duty but not performing work, when I was relaxing on my break.”
Following this incident, CP examined the locomotive’s black box to determine the employee’s running speeds and locations during his previous two shifts.
The investigation found the employee had exceeded the 10 miles-per-hour authorized speed for the area — which featured residential subdivisions — nine times, travelling between 13.6 and 17.2 miles-per-hour.
Three of these occasions constituted “uncontrolled movement” — five miles-per-hour above permissible speed — but the emergency brake was never applied as required by procedure.
The employee wasn’t able to explain his speeding, other than it happened in a rural area with hills and valleys that affected the train’s speed.
The engineer said he thought he was operating the train in a safe manner, “keeping in mind fuel conservation and wear and tear on equipment.”
CP dismissed the worker for speeding and sleeping on the job.
The union, Teamsters Canada Rail Conference, grieved the dismissal, arguing CP had “thrown the book” at the worker and used “every possible rule violation” as a reason to terminate his employment.
The arbitrator found that while sleeping on the train was against the rules, the worker had finished his assigned work and had worked through his lunch break.
Had the issue just been this incident, the arbitrator said a lesser penalty would have been appropriate.
However, the worker was also dismissed for speeding.
Given his prior discipline for similar misconduct and the safety considerations of speeding, the arbitrator found dismissal was an appropriate action for CP to take.
The worker had 25 years of service, but his disciplinary record didn’t justify a mitigation of the penalty, the arbitrator said in dismissing the grievance.
For more information see:
• Canadian Pacific Railway and Teamsters Canada Rail Conference (Gilks), Re, 2016 CarswellNat 6514 (Can. Railway Office of Arb. & Dispute Res.).
