©b55r AD HOC 139

©u51rIN THE MATTER OF A GRIEVANCE INVESTIGATION PURSUANT

©u38rTO SECTION 112 OF THE B.C. LABOUR CODE

©u12rIN A DISPUTE

BETWEEN: THE BRITISH COLUMBIA RAILWAY COMPANY

(Hereinafter Referred To As The "Company")

AND: THE UNITED TRANSPORTATION UNION, LOCALS NO. 1178 AND 1923

(Hereinafter Referred To As The "Union")

Section 112 Investigator: Brian Foley

Appearing For The Company: D.Pysh, D.Sawchuk, A.Shannon

Appearing For The Union: C. Mulhall,R. Sharpe

Date Of Meeting With The Parties: October 21, 1983, at Vancouver,

B.C.

Date Of Written Report: October 28, 1983

Issue: Collective Agreement Interpretation - Article 120, Full Crew

©b69r I

By agreement between the Company and the Union, the undersigned was

appointed under Section 112 of the B.C. Labour Code to investigate

grievances and make written recommendations to the parties for their

resolution. In September 1983, the parties requested a

recommendation with respect to the interpretation of the collective

agreement provision, Article 120, Full Crew. A meeting with the

parties was held in Vancouver on October 21, 1983. At this meeting,

the parties agreed that the grievance investigator was properly

constituted and had the jurisdiction to deal with the matter in

dispute. In addition, the parties agreed that the investigator's

recommendations would be final and binding.

©b67r II

The facts in the present case are not in dispute. On March 20, 1982,

Engine 705 became derailed in the Lillooet yard. The Company decided

to leave the rerailing of Engine 705 until March 21, 1982.

While the train remained derailed, a train arrived at the Lillooet

yard from North Vancouver. The conductor of the train, R.

Steininger, and his two trainmen, T. O'Connor and R. Reece, noticed

that Engine 705 was derailed and they did not book out in the event

that they might be required to rerail the engine.

Early in the morning of March 21, 1983, the Company attempted to

call a train and engine crew consisting of one foreman, two helpers

and one engineman to assist in rerailing Engine 705. The Company

could not obtain a full crew so the trainmen who had been called were

cancelled and the Company instead assigned two enginemen to assist

in the rerailing process. Subsequently, Engine 705 was rerailed and

the two enginemen took the engine to the Lillooet shop.

As the result of the Company's decision to use two enginemen for the

rerailing process, Steininger, O'Connor and Reece filed grievances

claiming eight hours' pay. Their grievances stated as follows:

" Available for duty at Lillooet while an Engine (705) and

car rerailed with an engine crew and no train crew. Claiming

eight hours."

The Company rejected the grievance on the basis that "no train crew

was required for this move".

The issue has remained in dispute between the parties until the

present date.

©b66r III

The Union argues that the Company's action of using two enginemen for

the rerailing process was in contravention of Article 120 of the

Collective agreement. That Article is entitled "Full Crew" and it

provides as follows:

" Unless otherwise provided in this agreement, a train crew

will consist of not less than one Conductor and two Brakemen

in all classes of service."

The Union argues that since a full crew was not used for the

rerailing process, the full crew that was available for duty (i.e.,

Steininger, O'Connor and Reece) were entitled to eight hours' pay

pursuant to Clause 209(c)(i) of the collective agreement. That

clause provides as follows:

" Crews in unassigned service will be run first in first out

of terminals on their respective subdivision except as

otherwise provided. The first out crew, ready for duty,

runaround, will be paid eight (8) hours for each runaround

retaining their original standing on train board."

It is submitted that two enginemen are only normally used by the

Company for pusher service or for light engine service. Otherwise, a

full crew is used pursuant to Article 120 since "work service" is

being performed. The Union argues that the rerailing process has

been historically regarded as work service and a full crew has been

utilized. Furthermore, it is submitted that the specific duties

performed in the rerailing of Engine 705 in the Lillooet yard were

duties normally and historically performed by the Union's members.

In the Union's view, that argument is supported by the fact that the

Company made a substantial effort to obtain a full crew for the

rerailing before resorting to using two enginemen.

©b67r IV

The Company acknowledges that the collective agreement provides that

the Union has exclusive jurisdiction in certain circumstances to

handle trains and boxcars. But the Company argues that the rerailing

of engines is not one of the exclusive right situations dealt with

in the collective agreement. It is submitted that the Company's

collective agreement obligations with its other unions deal with many

of the same work assignments as those dealt with in the Union's

collective agreement. Furthermore, the Company argues that the

members of the other unions have been used for rerailing work in

the past.

The Company states that the collective agreement is silent on the

matter of rerailing of cars and engines. Therefore, the Union does

not have exclusive jurisdiction to that work and work assignments

relating to rerailing can be allocated at the discretion of the

Company.

©b68r V

In assessing the merits of the arguments of the parties, I have paid

particular attention to the wording in the collective agreement as a

whole. The provisions of the various articles and clauses have not

been considered in isolation but in the context of all of the

provisions in the entire agreement. I have considered the wording in

Article 120 against the wording in other articles and clauses and

have come to the conclusion that its effect is limited. It is not an

exclusive jurisdiction provision since it does not prescribe the

circumstances under which a full crew will be utilized. It merely

less than one Conductor and two Brakemen. Some of the circumstances

under which a train crew is required are prescribed in other sections

of the collective agreement. But there is no provision in the

collective agreement which prescribes that a train crew comprising

the Union's members is required for rerailing work. That being the

case, the Company retains the prerogative to assign the rerailing

work as it sees fit. In fact, the Company has operated on that basis

in the past assigning rerailing work that had to be done to members

of the various unions. The Union does not have any exclusive right

to rerailing work either through provisions in the collective

agreement or through prevailing past practice.

The foregoing being said, however, I have concluded that the

grievances of Steininger, O'Connor and Reece must succeed. That

conclusion is based on the cumulative effect of a number of factors

which are particular to this case. First, there was a train crew

available in Lillooet when the rerailing was to take place. Second,

the Company initially decided to call in a train crew but opted !or

the two enginemen only as a second resort. Third, the duties

performed by the two enginemen encompassed duties and

responsibilities which would normally be performed by the Union's

members.

In summary, the grievances succeed and the three employees will be

paid eight hours' pay. However, my decision in this regard is based

on the very particular factors surrounding the rerailment at

Lillooet in March 1982. It should not be interpreted in any way as

support for the proposition that the Union has exclusive

jurisdiction over rerailing work. In my view, the rerailment work is

not the exclusive jurisdiction of any union and the Company retains

the prerogative of any union and the Company retains the prerogative

to assign such work as it deems appropriate in the circumstances at

hand.

All of which is respectfully submitted.

Dated at Vancouver, British Columbia, this 28th day of October, 1983.

BRIAN FOLEY,

Investigator