AH - 146
IN THE MATTER OF AN ARBITRATION
B.C. RAIL LTD.
UNITED TRANSPORTATION UNION LOCALS NOS. 1778 & 1923
IN THE MATTER OF THE POLICY GRIEVANCE - ARTICLES 123(d) & 129(m)
SOLE ARBITRATOR: Donald R. Munroe
There appeared on behalf of the Company:
J. E. Dorsey
And on behalf of the Union:
C. S. Mulhall
A hearing was held at Vancouver, B.C., on the 29th day of
The parties agreed that I was properly constituted as an arbitration board under their collective agreement with jurisdiction to resolve the issues in dispute.
While my attention was drawn to various parts of the collective agreement, it is my view that the two most pertinent provisions are articles 123(d) and 129(m0. Those provisions read (respectively) as follows:
When the location of a yard office or a passenger station is changed at any terminal in the future, Trainmen residing within limits as prescribed in clause (a) at the time of the change, will still be considered as within calling limits.
At the home terminal, a trainman will report for duty at the time ordered for at his locker unless otherwise agreed upon between the Local Chairman and the Assistant Manager of Operations. At the away-from-home terminal such Trainmen will report for duty at the times ordered for at the same place which may be at the yard office, station or train order office or such other place as may be agreed upon between the Local Chairman and the Assistant Manager of Operations
The critical facts are not in contention. Prior to the events which gave rise to this dispute, both the BCR and the Canadian National Railway (the CNR) had terminals and various facilities at Prince George which is in central British Columbia.
The development of coal field in the northeastern part of the province made it necessary for there to be railway trackage and freight service from Tumbler Ridge (in the northeast) to a port near Prince Rupert (on the west coast). For various reasons, logic demanded that this new or expanded railway route be via Prince George.
The BCR and the CNR jointly undertook to the coal developers to transport coal from the coal mines near Tumbler Ridge to the port near Prince Rupert for delivery on board vessels. Then, the two railway companies entered into their own agreement “…to establish cooperatively the through railway route required to transport the coal.”
For present purposes, I need only record two aspects of the last-mentioned agreement. First, it was agreed that the BCR would be responsible for the track and operations from Tumbler Ridge to Prince George; and that the CNR would bear responsibility for the track and operations from Prince George to prince Rupert. Second, it was envisaged that the point of exchange would be the CNR’s pre-existing yard at Prince George.
That latter aspect of the agreement meant that the CNR’s facilities would have to be expanded by the addition of new locker rooms, washrooms, booking-in areas, parking stalls with plug-ins, etc. by subsequent exchange of correspondence between the BCR and the CNR, it was agreed that the CNR would make the added facilities available not only to it’s own crews but also to the BCR crews; that the BCR would pay to the CNR a monthly rental of $775.00 (with periodic adjustments).
The events thus far recounted took place in 1982-83. Throughout, there had been discussions and correspondence between the parties to this proceeding. It appears that the extension of the BCR’s freight service to the northeast coal fields had produced many areas of disagreement. One such area was the apparent intention of the BCR to establish a second yard office – i.e., the rented facilities within the CNR yard – at its Prince George terminus. In the view of the trade union, that could only be done by mutual consent without certain pay concessions, even though there would be no significant impact on the affected crews. For some members of the crew, the distance to the point of reporting for work would be a bit longer; for others a bit shorter. For all, it was the same urban vicinity.
The first coal trains commence operations in November, 1983. For awhile, the BCR crews continued to report to pre-existing BCR yard office to be transported to the new facilities at the CNR yard. However, effective April 1, 1984, the crews assigned to the Tumbler Ridge coal trains were instructed to report directly to the new location. As a consequence, this grievance was lodged.
My understanding of the case for the trade union can be briefly summarized. Essentially, the trade union submits that the BCR has misused or misapplied Article 129(m) in order to avoid the clear intent of Article 123(d). True, the trainmen on the Tumbler Ridge coal trains are being required “…to report for duty at the time ordered for at (their) locker(s)…” which may appear to satisfy the dictates of Article 129(m). However, it is the location of the lockers themselves which is the subject of the grievance. If the point at which the lockers are located is itself in contravention of the collective agreement, it would be perverse to allow the BCR to seek shelter in a literal or mechanical application of Article 129(m). Here, the company’s decision to establish an additional yard office – new lockers, etc. as the point at which the affected trainmen are required to report for duty –ran afoul of Article 123(d). So the argument goes.
That takes me to the meaning of Article 123(d), or at least the meaning of the opening phrases: “When the location of a yard office…is changed at any terminal….” As the case was presented and argued by the trade union, that is the real substance of the present dispute.
An understanding of the trade union’s proposed interpretation and application of that provision requires an appreciation that the designation by the BCR of a new yard office was for only a portion of the trainmen at the Prince George terminal. It was just for the crew assigned to the coal trains. The other crews continued to report for duty at the pre-existing yard office.
In the submission of the trade union, Article 123(d) contemplates only a single yard office at any terminal. Article 123(d) speaks of a yard office being “changed”; it does not speak of a multiplicity of such offices. Thus says the trade union, the BCR may “change” the location of the yard office as often as it wishes but it must to do so (if at all) for all trainmen attached to that terminal.
In support of its position, the trade union points to what it characterizes as past practice. In the past, there have been changes to the locations of yard offices on a few occasions at Prince George and other terminals. But in each instance, the change has been for the whole complement of employees at the particular terminal. Never before has there been an addition of a yard office with an alteration to the reporting location for only part of the employee complement. Put another way, never before have there been two (or more) yard offices at a single terminal.
In my view, the so-called past practice is not a reliable indicator of the parties’ true intent. At bets I can gather, there has never been contemplated as an operational possibility. The circumstances at hand are unique in that sense. Accordingly, one would be hard pressed to find that the subject had ever before engaged the serious attention of responsible officers either of the BCR or the trade union.
Now, let us look once again at Article 123(d). It contemplates a change in the location of a yard office at a terminal. First of all, it is clear form the overall structure of the agreement (and not seriously disputed) that a “terminal” is a geographical location – e.g., Prince George, Chetwynd, Lillooet – and not a particular street address. It is the “yard office(s)” that are the more precisely designated points to which the trainmen are instructed to report for duty.
From that definitional point of departure, the crucial question can be posed: To what extent does Article 123(d) interfere with the usual managerial function of determining the location(s) at which the employer’s work will be commenced and performed? In my view, to the extent that Article 123(d) is restrictive in its consequences, it is not as to the number of yard offices at a particular terminal.
I reach that conclusion both from an overview of the collective agreement and from an examination of the grammatical construction of Article 123(d) itself. As to the former consideration, I agree with counsel for the BCR, upon a review of such provisions as Articles 119, 121, 129(f) and (k), 131, 210 and 211 (as well as the two provisions already reproduces and discussed), that employees in the bargaining unit may be able to claim a proprietary interest of sorts in a home terminal; however, that does not carry with it the right to report for work at a particular street address within the home terminal or at the same address as the other employees who are attached to the terminal. As to the latter consideration, Article 123(d) does not say “when the location of the yard office…is changed at any terminal…” Rather, it speaks of changing the location “…of a yard office…at any terminal…” that formulation falls well short of a requirement that there be just a single yard office at any of the BCR’s terminals.
In argument, counsel for the trade union asked what would happen if the BCR purported to establish a second yard office at a terminal but, say, 30 miles down the track. In my judgment, the answer to that question is clear. Although the word “terminal” is not defined with precision in the collective agreement, it is a term of art which is not completely elastic. At some point, one would have to hold that the bounds of a “terminal” had been exceeded. Beyond that, it is the duty of arbitrators to interpret and apply the words and phrases of collective agreements within the parameters of reasonable expectations. (See, for example, Simon Fraser University (1983) 2 CLRBR (NS) 329 (Black), H.Y. Louie Co. (1982) 5 L.A.C. (3d) 112 (Munroe) and Photo Engravers and Electrotypers Limited (1983) 83 CLLR 14,050). I think that the purported establishment of a second yard office a great distance away from the original yard office could easily collide with that arbitral obligation.
Having said that, I must find, in the present circumstances, that a violation of the collective agreement has not been demonstrated. In the result, I must dismiss the grievance.
DATED AT VANCOUVER, B.C., THIS 12 DAY OF APRIL, 1985.
Donald R. Munroe
P.O. Box 8770, Vancouver, B.C. V6B 4X6
April 26, 1985
Mr. Don Bradley
Senior Employee Relations Officer
1150 Station Street
We are nearing the end of the reduced crew consist arbitration. There are four hearing dates scheduled for the end of May and an award must be issued by July 6, 1985. You will note the extension of the date from May 6 to July 6, 1985.
I want to express my sincere thanks to you and Basil Laidlaw for the cooperation and assistance which you have given us prior to and during the hearings. I know you have always been ready to make time for our questions and requests for information.
On behalf of my department and BC Rail please accept our deep appreciation.
Manager, Labour Relations
P.S. I have enclosed a recent arbitration award which you might find interesting.
c.c. G.W. Scott, Regional manager, Employee Relations, CN Rail 10004 - 104
Avenue Edmonton, Alta. T5J 0K2
W.H. Morin, Vice-President, Labour Relations
CN Rail, Box 8100, Montreal, P.Q. H3C 3N4