AH – 58
IN THE MATTER OF AN ARBITRATION
Canadian National Railway Company
United Transportation Union
IN THE MATTER OF Material Changes - New Vancouver Terminal
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Montreal on June 11, 1969.
The collective agreements having effect with respect to the employees affected by this matter provide in each case for certain measures to be taken in cases of material changes in working conditions which will have materially adverse effects on employees. The company and the union have agreed to negotiate measures to minimize such adverse effects of material changes on employees who are affected thereby. In the event that such negotiations are not successful there is provision (subject to the procedures set out in the agreements) for ultimate submission of such matters to arbitration.
The company has effected major changes in the facilities in its yards at Vancouver and Port Mann, and there is no doubt that these create material changes in working conditions. The collective agreements do not appear to limit the right of the company to initiate such changes, and no issue arises as to that. the parties have carried on negotiations pursuant to the material change provisions, but these negotiations have not yet resulted in agreement, and the parties have agreed to proceed to arbitration. The ultimate subject to these proceedings, then, is the set of measures to be taken to minimize the adverse effects of the material changes in question on the employees who are affected thereby. A major difficulty, however, is the determination of who are the employees affected by the material change.
This matter involves the determination of a question arising under other portions of the collective agreements involved, namely the question of the propriety of changing or re-establishing certain recognized switching limits. The determination of this question will serve to identify the employees affected by the material changes in question, and thus to permit meaningful negotiation between the parties, as well as arbitration, if that should still be necessary.
The parties have agreed, therefore, that I should hear and determine the preliminary issue relating to switching limits before proceeding further in the arbitration relating to measures to minimize the affects of the material changes. The present award, therefore, is of an interim nature only, although it is intended as a final determination, for the purposes of the instant case, of the issue of switching limits.
In each of the material collective agreements there is a provision relating to changes in switching limits. The material portions of such provisions, in each case, are as follows:
The necessity of changing or re-establishing recognized switching limits, in order to render switching services required because of extension of industrial activities and territorial extension of facilities, must be recognized.
The present switching limits will be designated by general notice at all points where yard engines are assigned and will only be changes by negotiations between the proper officer of the Company and the general chairman. The concurrent of the general chairman will not be withheld when it can be shown that changes are necessitated by industrial activities and territorial extension of facilities. Yard limit boards may or may not indicate switching limits.
In conjunction with the changes made in its facilities at Vancouver and Port Mann, the company sought to change the presently existing switching limits in those terminals. In effect, the company sought to create one substantially larger terminal, whose easterly limit was that or the former Port Mann terminal, and switch no interior yard limits. Pursuant to the above-quoted provision, the company wrote to the General chairman of the union on January 29, 1969, seeking his concurrence in the changes which it proposed. The general chairman replied on February 27. 1969, that he could not concur, talking the position that there was not an extension of switching limits, but rather a combining of two established yards into one.
The provisions of the collective agreements in this respect are clear. As a general matter changes in switching limits are to be negotiated and this implies that it would be open to the general chairmen to refuse to concur with the company’s suggested changes in some cases. Where it can be shown, however, that changes "are necessitated by industrial activities and territorial expansion of facilities", then the concurrence of the general chairman is not to be withheld. Clearly there is an onus on the company to make such a showing where it seeks, as it does here, a determination that the general chairman’s concurrence in a particular change has been improperly withheld. The issue now to be decided therefore, is whether, on the material before me, it has been shown that the changes in switching limits proposed by the company are "necessitated by industrial activities and territorial expansion of facilities."
The present switching limits of the yard at Vancouver and Port Mann are such that there is a gap of only 0.5 miles between the easterly limits of the Vancouver terminal and the westerly limit of the port Mann terminal. In recent years there has been a very substantial increase in rail traffic at Vancouver itself and an even greater increase in rail traffic destined for the north shore of Burrard Inlet, and which it was necessary to handle through the Vancouver facilities. The facilities in Vancouver proper are reasonably capable of expansion, and in order to facilitate the handling of the increased volume of traffic, and in particular that bound for the north shore, the company found it necessary to establish in Port Mann the yard facilities for the whole of the greater Vancouver area; to construct a tunnel though a portion of Vancouver and Burnaby and a new bridge across the second narrows; and develop a new exchange yard at Sapperton.
There can be no doubt that these undertaking are in response to "industrial activities" related directly to use of the Vancouver terminal. It is also quite clear that there has been a "territorial extension" of the facilities at Vancouver. No doubt the sort of "territorial extension" contemplated in the collective agreements is one which would affect materially the operations of a particular yard. In the instant case there have certainly been "territorial extensions" into the Port Mann area of facilities necessary to serve the greater Vancouver area. It must be found as a fact that the new facilities which have been developed are the result of industrial activities and that they constitute the territorial extension of the company’s Vancouver facilities. The proposed changes in switching limits for Vancouver area, as I must find, "necessitated" within the meaning of the collective agreements by these developments.
The nature of the new facilities and the reasons for them are not denied by the union. The concurrence of the general chairmen was withheld primarily in grounds relating to the effect such a change would have upon the various groups of employees who would be affected. The determination which I must now make, however, is on the question whether a change in switching limits is necessitated by industrial activities and territorial extension of facilities. The change in switching limits, it is agreed, would constitute a material change in working conditions, and once the necessity for the change is established, then there will have to be negotiated the many questions relating to the effects of the change on the employees concerned.
In the instant case, I have found that the changes in switching limits proposed by the company for Vancouver and Port Mann are necessitated by industrial activities and territorial extension of facilities. It follows that the concurrence of the general chairman ought not to have been withheld.
The foregoing disposes of the issue with which I have been asked to deal as a preliminary matter. The parties have undertaken to continue their negotiations with respect to the measures to be taken minimize the adverse effects of the material changes in working conditions on the employees affected thereby. Upon the agreement of the parties, this matter is adjourned pending the outcome of these negotiations.
DATED AT TORONTO, this 18th day of June, 1969.
(signed) J. F. W. Weatherill