AH 135S
AND IN THE MATTER OF AN ARBITRATION
BETWEEN:
AND:
UNITED TRANSPORTATION UNION
LOCALS 1778 & 1923
CONCERNING PAYMENT FOR EATING EN ROUTE.
Arbitrator: Mr. Richard B. Bird, Q.C.
Counsel: Mr. Thomas D.J. Schiller, for the Company,
Mr. Dennis T. LaCharite, for the Union.
On May 26th, 1983 I issued an award in this matter. The relief granted is set out in the last paragraph;
I declare that freight trainman who stop to eat after advising the train dispatcher of their intention to do so under Article 117 are entitled to be paid for time eating provided the time taken is reasonable in a broad sense of the word as explained above.
On July 4th, 1983 the Company’s Manager of Operations and Maintenance, A.T. Shannon issued these instructions to the Supervisor of Train Operations K.J. Shirley and sent a copy to C.S. Mulhall of the Union;
SUBJECT: Eating Enroute July 4th, 1983
On being advised that a train will be stopped for the purpose of eating, the impact of such action is to be immediately assessed by the Chief Train Dispatcher.
It must be recognized that there are times when crews may eat enroute without causing additional delay to their own train, or other traffic, and this is acceptable.
However, if it appears there will be an additional delay to other traffic, or if the additional delay will cause additional expense to the Railway account of relief being required, the action of delaying the train for the express purpose of eating will be considered unreasonable, therefore the following message is to be transmitted over Channel 2 to the crew involved – train and/or engine crew:
“The Railway considers it unreasonable for you to stop your train at……to eat and would suggest that you take your train thru. Should you consider it necessary to stop your train to eat, please proceed thru to…….to avoid delay to other traffic. It should be understood that if you stop your train for the express purpose of eating the matter will be investigated by the Operations Department.
Chief Train Dispatcher”
The above will have to be altered to suit the circumstances, for example, if no meet involved, the second sentence of the first paragraph would not be relayed to the crews.
Please ensure that the Chief Train Dispatchers have a clear understanding of these instructions.
On behalf of the Union C.S. Mulhall protested that the instructions dated July 4th, 1983 were inconsistent with the collective agreement and the award of May 26th, 1983. Rather than wait to test the instructions in individuals’ grievances, the parties to the collective agreement referred the instructions of July 4th, 1983 to me for my opinion by way of a binding declaration as an arbitrator as to whether the instructions are inconsistent as claimed by the Union.
Counsel appeared before me on August 8th, 1983 at North Vancouver, B.C. and presented arguments. During the course of the arguments Counsel for the Company, with some of the objections stated by the Union’s Counsel in mind, prepared revised draft instructions as follows;
When trainmen on freight trains advise the Train Dispatcher pursuant to Article 117, the Chief Train Dispatcher will immediately assess the impact of scheduling meal for the trainmen.
The Railway recognizes that there are times when crews may eat enroute without causing unreasonable delays or unreasonable expense. Such reasonable times are acceptable and will be paid.
If the Chief Train Dispatcher honestly concludes that scheduling the meals would:
1. cause unreasonable delay to the freight train or other traffic; or
2. cause unreasonable expense to the Railway, then any delay for the sole purpose of eating meals enroute will be deemed by the Railway to be “unreasonable”. In such instances the following message (as amended to suit the circumstances) will be transmitted over Channel 2 to the crew involved:
“The Railway considers it unreasonable for you to stop your train at __________ to eat. Please take your train through. If you feel you have defensible reason for stopping, please do so at ___________ so as to avoid delay or expense.
Delays assessed as unreasonable will likely result in the operations department conducting an investigation.”
Counsel then asked me to express my opinion by way of a binding declaration on the revised draft instructions instead of the instructions of July 4th, 1983 which were originally referred to me. I now confirm in writing the oral declaration I made at the hearing on August 8th, 1983;
I declare that the revised draft instructions are not inconsistent with the Collective Agreement nor are they inconsistent with the award of May 26th, 1983.
DATED this 10th day of August, 1983.
(Sgd.) R.B. Bird
Arbitrator