©b59r AD HOC 142

IN THE MATTER OF A GRIEVANCE INVESTIGATION

PURSUANT TO SECTION 112 OF THE B.C. LABOUR

CODE IN 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: December 7, 1983 at Vancouver, B.C.

Date Of Written Report: December 12, 1983

Issue: Article 127 - Assigned Road Service

©b59r 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 November 1983, the parties requested a recommendation

with respect to the interpretation of Article 127, Assigned Road

Service. A meeting with the parties was held in Vancouver on

December 7, 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.

The present grievance arose over the interpretation of Article 127,

"Assigned Road Service". The issue is broad-based in nature and

involves a dispute as to whether or not the Company has the right to

operate its Passenger Service over more than one zone. If it is

found that the Company does not have the right, it could well be

found in violation of clause 104(a) of the collective agreement,

entitled "Administration of Agreement", and it could be liable for

certain hours of work-payments to some Union members. However, if it

is found that the Company does have the right to operate its

passenger Service over more than one zone, then there would be no

violation of clause 104(a) and no liability on the Company's part

for certain hours of work payments to some Union members.

©b47r II

Article 127 is entitled "Assigned Road Service" and it prescribes as

follows in clause 127(a):

"(a) Assignments, other than work train, will be bulletined

specifying the home terminal, initial and objective terminal

for each trip, territory over which the assignment is to

perform service, starting time and days of operation. So far

as it is practicable, assignments will start at the

bulletined starting time, except that an assignment may be

started at a time later, but not earlier than that specified

in the bulletin unless otherwise mutually agreed. When

bulletined starting time is changed more than three (3)

hours, the assignment will be rebulletined."

The Company argues that, in accordance with the above provision, the

Company retains the prerogative to decide upon the nature and length

of work assignments, provided however that the Company's bulletined

assignments do not contravene other articles in the collective

agreement. On the other hand, the Union argues that the above

provision, when read in the context of other articles and clauses in

the collective agreement, dictates that bulletined assignments must

only run in one zone and cannot run into two or more zones. Zones

are identified under Article 306 as follows (also see note©b1r* below):

- North Vancouver to but not including Lillooet

- Lillooet to but not including Williams Lake

- Williams Lake to but not including Prince George

- Prince George to but not including Chetwynd but including to

the end of steel on the Takla Subdivision

- Chetwynd to Dawson Creek and Chetwynd to Beatton

- Ft. Nelson south to but not including Beatton

The present dispute arose with respect to the Company's Passenger

Service. That service utilizing "Budd Cars" was instituted in late

1956. In mid-1957, the Company and the Union negotiated an interim

agreement covering passenger service trainmen and eventually these

terms were incorporated into the collective agreement which applies

to the Union's members in general. Nowhere in the interim agreement

or in the collective agreements negotiated over the years is there a

specific restriction on the Company's ability to operate the

passenger service over more than one sub- division or zone. On the

other hand, nowhere in these documents is it specifically and

categorically stated that the Company has the discretion to decide

that work assignments may extend into two or more zones.

©b1r*

For purposes of clarification, the British Columbia Railway System is

subdivided for operational purposes into the following subdivisions:

Squamish, Lillooet, Prince George, Chetwynd, Stuart, Takla, Fort

St. John, Fort Nelson, Dawson Creek and Tumbler. Zone boundaries

are not necessarily confined to subdivisions. For example, while the

Squamish subdivision comprises a territory from North Vancouver to

Lillooet inclusive, the zone for that area does not include

Lillooet. The zone for the area Chetwynd to Dawson Creek and

Chetwynd to Beatton however, does cover two entire subdivisions,

that is the Dawson Creek and Fort St. John subdivisions.

For many of the years from 1957 until 1981, the Company operated its

passenger service between each of the zones identified under Article

306 with an entire crew change at the beginning of each zonal

boundary. However, for a significant period during those years, the

Company operated the passenger service between Lillooet and Prince

George without a train crew change at Williams Lake; the train crew

which commenced work in Lillooet in fact worked through two zones,

one from Lillooet to Williams Lake and the second from Williams Lake

to Prince George. The passenger train service from 1957 until 1981

operated either on a daily or tri-weekly basis.

In early 1981, the Company decided that the Lillooet to Prince

George passenger rail service would operate without a train crew

change at Williams Lake, i.e., the train crew taken on at |Lillooet

would work through two zones and terminate in Prince George. The

assignment was bulletined and the service commenced on May 4, 1981.

Although the issue had been discussed between representatives of

the Company and the Union from early 1981, the Union's first formal

and written objection to the bulletined assignment was made on

September 11, 1981. In a letter of that date to the Company, the

Union stated in part:

" Labour Relations has purposely violated our agreement by

forcing our men to work thru these zones ... our whole

Agreement in relation to the territory in which our people

work is based on a zone i.e. we cannot move, work, or

transfer from one zone to another unless Articles and Clauses

in our Agreement have been adhered to. ... Our whole

structure on this property is based on seniority and a

working zone. If we allow this to break down, then we have

bedlam."

By letter of September 29, 1981, the Company replied in part as

follows:

" ... it seems clear that the establishment of zones is for

the purpose of determining how positions will be filled when

no applications are received, and has no bearing on the

assignments established by the Railway."

Then on June 29, 1982, the Union presented the Company with the

grievance which is the subject of the present investigation. The

grievance stated:

" There is no provisions in the Collective Agreement to allow

Trainmen working on any assignment to run over two

sub-divisions and thru two zones. Trainmen cannot work

outside their zones except in specified circumstances where

the Agreement allows it. The system in which we handle our

Trainmen on the Railway is based completely within zones

where Art. 127 states assignments will be bulletined,

territory over which the assignment is to perform service,

that service must be within the zones in which our Trainmen

work as prescribed in our Collective Agreement. By the

Railway running crews over two zones violates that system and

the Collective Agreement."

Subsequent to the Union's filing of the grievance, a number of its

members have filed claims for extra pay when they have been required

to work in more than one zone. As noted earlier, these claims need

only be addressed if the Company is found to be in violation of the

collective agreement by operating its passenger service over two

zones (i.e., from Lillooet to Prince George with no crew change in

Williams Lake).

©b47r III

The Union argues that Article 127 must be read to limit assigned runs

to one subdivision or zone. In support of that argument, the Union

submits that the longstanding general practice of the Company has

been to bulletin passenger service train assignments on the basis of

assignment within one specific zone. The Union also argues that the

reference to "zones" in a large number of articles and clauses should

lead to the conclusion, if not by the wording in these clauses then

by inference, that work assignments cannot run into more than one

subdivision or zone. In this regard, the Union points to the

following types of provisions:

- Clause 301(c) - restriction on the exercise of seniority for

promotion to trainmen in the particular zone in which they are

headquartered - Clause 301(i) - restriction on the circumstances

under which trainmen may transfer from one zone to another

- Clause 302(a) - restriction on the applications for vacancies

in a zone to trainmen headquartered in that

zone

- Clause 303(d) - restriction on the right of trainmen displaced

from a rear-end position in assigned service to

exercise his seniority to another rear-end

position in the same class or service in that

zone

- Clause 304(c) - restriction on the bulletining of temporary

vacancies to the zone where they exist

- Clause 306(a) - when no applications are received for a

Brakeman's Position, the senior competent

Brakeman cut off the spareboard in the zone

will be assigned as soon as available.

The Union argues that these clauses in fact restrict the application

of seniority for promotion, transfer, displacement, and related

purposes to the zone in which the trainmen are headquartered.

Therefore, if the Company is permitted to run a train crew into more

than one zone, it unduly and unreasonably restricts the manner and

the degree to which employees can exercise their seniority rights.

The Union acknowledges that there is no specific and categoric

wording in the collective agreement which dictates that the Company

must limit work assignments to the one subdivision or zone. However,

the union argues that a reading of the collective agreement as a

whole must lead to the conclusion that the parties' intention was to

limit train runs to one subdivision or zone. To buttress its

argument, the Union refers to Article 211 and its limitations on the

assignments for freight crews. That provision reads in part as

follows:

" Freight crews will be assigned to regular subdivisions and

will be kept on those sub-divisions, except in emergency..."

Reference is also made to Article 212 which deals with work train

service and specifies that when work trains move from one zone to

another, the train will again be bulletined. That provision reads as

follows (Clause 212 (a)(xi)):

" In the event of work train moving from one zone to another,

awarded assignment will be considered discontinued, and train

will again be bulletined."

The Union argues that zone arrangements are an integral part of the

collective agreement and that all the evidence of the history of

negotiations between the parties leads to the conclusion that trains

are to be limited to runs within one zone unless the parties

specifically agree otherwise.

The Union submits that if the Company is permitted to run passenger

trains over 2 subdivisions or zones, it could also implement the same

practice for freights, switchers, etc. This could in the long run

result in the reduction of rail terminals throughout the system.

As a final point, the Union argues that in implementing the two zone

run from Lillooet to Prince George, the Company has violated the

provisions of Article 132, "Material Chances In Working

Conditions". Clause 1 under that Article provides as follows:

"The Railway will not initiate any material change in working

conditions which will have materially adverse effects on

employees without giving as much advance notice as possible

to the General Chairman concerned, along with a full

description thereof and with appropriate details as to the

contemplated effects upon employees concerned. No material

change will be made until agreement is reached or a decision

has been rendered in accordance with the provisions of

Section 1 of this Article."

The Company takes the position that Article 127 provides it with the

prerogative to operate assigned runs over more than one subdivision

or zone. It is submitted that there are no restrictions in the

collective agreement on the number of subdivisions or zones over

which passenger train service assignments may be made. The Company

argues that any zone Provisions in the collective agreement are only

seniority rules restricted to the zone in which the employees are

headquartered. In support of these main arguments, the Company

argues that, for many years, it has operated switcher services and

unassigned freight service o during at to 1966, the passenger service

crew worked through from Lillooet to Prince George without being

released at Williams Lake.

©b2rIV

I have considered the evidence presented and the various arguments

of the parties against the wording in the collective agreement as a

whole. I have also considered the parties' representations

concerning the manner in which the collective agreement wording has

evolved and has been interpreted by the parties.

Article 306 specifies the geographic boundaries for six zones in

which rail service is provided. A number of other articles and

clauses deal with the manner in which seniority will be exercised for

bulletining, promotion, transfer and displacement purposes. However,

the wording in these article and clauses is clear and ambiguous--- it

only prescribes the manner in which headquartered within a particular

zone may exercise their seniority rights for such purposes as

promotions, transfers, etc., within a particular zone. The wording

in these articles and clauses cannot be read to limit the Company's

right to run assignments in only one zone. What then about the

wording in clause 127(a) ? It prescribes that assignments will be

bulletined and will contain such information as the home terminal,

the initial and objective terminal for each trip, the starting time

and days of operation and the territory over which the assignment is

to provide service. There is no restriction in clause 127(a) on the

Company's right to assign trains over more than one zone. In fact, a

reading of clause 127(a) leads to the conclusion that the decision

over what territory an assignment is to provide service, whether over

one or more zones, is the company's decision alone. That conclusion

of course is subject to any restriction on that right with respect to

any particular rail service either in the wording in other articles

or clauses or implied indirectly through past practice.

In the case of freight crews and work train crews, it could be argued

that Articles 211 and 212 provide limitations on the Company's right

to bulletin assignments extending beyond one zone. But there is no

specific restriction in the collective agreement as to the territory

or zones over which passenger train service assignments may be made.

Furthermore, in the past, the Company has run the passenger train

service over more than one zone, a fact which would also support the

conclusion that the collective agreement contains no restriction on

the Company's prerogative in that regard.

In summary, I have concluded that the zonal references in the

collective agreement are directed to the use of employees' seniority

for various purposes within the zones in which they are headquartered

---they have nothing to do with the Company's right to make work

assignments. as well, the wording in article 127 is clear and

ambiguous --- it leaves to the Company's discretion the determination

of the territory or zones over which assignments are to be made.

Furthermore, any restriction on the Company's right to operate

service over more than one zone are clearly specified in the

Collective agreement --- in the case of passenger train service, no

such restriction is contained in the collective agreement. Finally,

past practice supports the conclusion that the Company is not

restricted in the manner in which passenger train service assignments

may be made.

The cumulative effect of the foregoing leads me to the conclusion

that the Union's grievance must fail.

In their concluding comments at the hearing, Union representatives

argued that the Company had violated the provisions of Article 132 in

implementing the Lillooet to Prince George run since the hours of

duty for employees working out of Williams Lake had been adversely

affected. However, the Union's argument must fail because:

(a) clause 132(m) allows for such changes "brought about by the

normal application of the collective agreement";

(b) any dispute in this regard must be presented by grievance

within 60 days from the date the problem arose --- in this case

the grievance was only initiated some 17 months after the

problem arose; and

the present time.

I would recommend that the grievance concerning Article 127 and any

grievances related to it be dismissed.

All of which is respectfully submitted.

Dated at Vancouver, British Columbia, this 12th day of December,

1983.

BRIAN FOLEY,

Investigator