AD HOC 254:

AWARD

DISPUTE:

The applicability of Article J of the VIA Special Agreement, or Article 79 of the Collective Agreement, to the Changes in the crew consist of Trains 629-630, effective December 14, 1987.

STATEMENT OF ISSUE:

On December 14, 1987, the Corporation reduced the crew consist by one brakeman on Trains 629-630, between Montreal and Sherbrooke.

This grievance concerns an alteration in passenger service between Montreal and Sherbrooke, Quebec. That line had been operated with conventional passenger equipment until the service was abolished by leave of the Minister of Transport on September 7, 1982. By a later directive of the Minister it was restored on June 29 1985. At that time, however, because of the low volume of passengers, the corporation decided to substitute rail-liner equipment, being the use of a self-propelled passenger car instead of the conventional locomotive and coaches. Under the terms of article 11 of the collective agreement when a single rail-liner car is utilized the crew consist is limited to one conductor. Where, however, two rail-liners are coupled together, the required crew consist is one conductor and one brakeman.

Initially the Corporation was forced to use two rail-liners to service the Montreal/Sherbrooke route, being Trains 629-630. This was so because the signals over the line, which belongs to CN, could not be safely triggered by a single rail-liner travelling at the maximum permissible speed. The signals could, however, be activated at high speed by a consist of two rail-liners, in consequence of which two cars were initially used, employing a conductor and brakeman, in addition to the engineman.

Eventually changes were made to the signalling system on the line so that Trains 629-630 could be operated at high speed with only one rail-liner. Consequently, on December 14, 1987 the Corporation commenced operation of Trains 629-630 with a single rail-liner. This necessarily resulted in the elimination of the brakeman’s position, and as two crews were assigned to the trains, two positions of brakeman were ultimately abolished, It is common ground that no employee lost his or her employment as a result of the change implemented. The abolition of the two brakeman’s positions, however, did occasion a series of job displacements, as a result of which two previously permanently scheduled employees were assigned to fill vacancies on the Montreal spare board.

The first Issue to be resolved is whether the employees affected by the change are protected by the provisions of article J of the Special Agreement between the Corporation and the Union, signed March 6, 1987, pursuant to Order-In-Council P.C. 1977-2997, dated October 20, 1977, which established Regulations with Respect to the Implementation of Adjustment Assistance to Railway Companies and Employees Affected by Changes In Railway Passenger Services. That provision is, in part, as follows:

ARTICLE J

NOTICE PERIOD

J.1 The Companies signatory hereto will not put into effect any change in Railway Passenger Services made in accordance with Government initiatives introduced pursuant to the Railway Passenger Services Adjustment Assistance Regulations which will have adverse effects on employees without giving as much advance notice as possible to the General Chairman representing such employees or such other officer as may be named by the Union to receive such notices. In any event, not less than three months’ notice shall be given, with a full description thereof and with appropriate details as to the consequent changes in working conditions and the expected number of employees who would be adversely affected. The provisions of this Article J.1 supersede the notice requirements of any Collective Agreement between any of the parties signatory hereto in respect of a material change in working conditions.

The Corporation maintains that the change to passenger service disclosed in the instant case does not involve “any change in Railway Passenger Services …”. It argues that the foregoing language restricts the application of article J to changes in passenger service which require approval of federal railway authorities. In this regard it points to the definition of the term “changes” which appeared initially under the Regulations, as well as the amended definition as it now stands. Paragraph nine of the initial regulations with respect to the Implementation of Adjustment Assistance to Railway Companies and Employees Affected by Changes in Railway Passenger Services was as follows:

“changes” means changes in the Railway Passenger Services made in Accordance with government initiatives introduced pursuant to the Department of Transport Vote 52d, Appropriation Act No. 1, 1977;

The above definition was amended by section 1 of the Amendment to Railway Passenger Services Adjustment Assistance Regulations SOR/83-401, dated July 21, 1988:

1. The definition “changes” in subsection 2(1) of the Railway Passenger Services Adjustment Assistance Regulations Is revoked and the following substituted therefor:

“changes” means changes in the provision, management or operation of selected Railway Passenger Services as a result of

(a) the implementation of the provisions of the contract between the Minister of Transport and VIA Rail Canada Inc., entered into pursuant to Department of Transport Vote 52d of Appropriation Act No. 1, 1977,

(b) the discontinuance of a Railway Passenger Service;

The Corporation’s representative submits that by either definition, whether before or after the amendment, the decision of the Corporation to substitute a single rail-liner for two rail-liners for reasons related entirely to the technical feasibility of such an operation, does not constitute changes within the contemplation of the federal regulations which gave rise to the Special Agreement and by extension should not be construed as a change in passenger services instituted in accordance with government initiatives within the meaning of paragraph J.

The Union’s representative argues that article J does apply to the circumstances at hand. Noting that the initial position of the Company, as disclosed in a letter dated January 27, 1987 from Mr. M. Lacombe, was in agreement with the Union’s position, he argues that the past application of article J has been consistent with the interpretation of the Union. He submits that the Corporation’s reversal of position, on February 24, 1988 amounts to a violation of the terms of article J of the VIA Special Agreement.

The Union’s representative explains the importance of the special agreement, which gives the employer the flexibility of implementing changes more quickly, in return for a greater range of benefits made available to the employees adversely affected, including a minimum of three months notice to the Union. In support of his position with respect to the application of article J the Union’s representative refers the arbitrator to a number of precedents with respect to its prior use by the Corporation. By way of example he refers to a change made in 1982 by the predecessor employers CN, which then substituted rail-liner service for conventional passenger service between Montreal and Chicoutimi as well as between Senneterre and Cochrane, in both cases involving the elimination of two conductor positions. In that circumstance, which did not involve any governmental approval,, the employer gave notice to the Union that article J of the Special Agreement would apply, by letter dated February 12, 1982, and the employees impacted by the change in service were treated accordingly. By way of a second example the Union points to a similar application of article J by the predecessor CN Rail on February 28, 1985 with respect to the substitution of rail-liner service between Ste. Foy and Mont Joli. Similar notices were provided to the Union with respect to the application of article J on a number of other occasions documented within the Union’s brief. Its representative submits that all of these precedents confirm its position that changes in passenger service which do not require government approval have consistently been made the subject of article J notices.

In the Arbitrator’s view the position of the Union is more compelling. If the matter were to be determined on the strict interpretation of the terms of article J, the most that can be said is that the interpretation of the Corporation is arguably correct if the phrase “in accordance with government initiatives” is interpreted narrowly to mean changes pursuant to a specific government decision or approval. That issue has, however, been litigated and resolved by the terms of a prior arbitral award. In Canadian Pacific Limited and UTU, award dated February 8, 1982, Arbitrator J.F.W. Weatherill was called upon to decide whether the Special Agreement applied to certain passenger service crews in Medicine Hat as a result of changes in transcontinental passenger service schedules made at the request of VIA Rail Canada Inc. In that case, as a result of an agreement between CP and VIA Rail, operational changes were made which resulted in new crew assignments. The three crews operating between Medicine Hat and Field, B.C. were reduced to two crews operating between Medicine Hat and Calgary and two crews between Calgary and Field.

In that case the employer argued that the adjustments were not the kind contemplated in article J as they required no government approval or initiation. With respect to that issue Arbitrator Weatherill made the following observations:

The questions at issue are first, whether this change was “in accordance” with Government initiatives introduced pursuant to the “Railway Passenger Services Adjustment Assistance Regulations” and second, whether it had “adverse effects on employees” within the meaning of article J.1 of the Special Agreement.

In my view the changes in passenger services in question are “in accordance with Government initiatives” within the meaning of article J.1. The Railway Passenger Service Adjustment Assistance Regulations provide for assistance to railway companies and employees affected by change in railway passenger services. The “initiatives” referred to are not necessarily embodied in legislation, order-in-council, ministerial directive, or direction of the Railway Transport Committee, although it may be that “Government initiatives” might be expressed in such forms. The Regulations, clearly I think, are in aid of a process of rationalization of passenger services, and provide for assistance to ameliorate certain of its effects. This assistance is available in respect not only of changes which might be “pursuant to” direct government “initiatives”, but is also available in respect of changes made “in accordance with” such initiatives, the term referring in my view, to the broad thrust toward rationalization of passenger service. The change in question, made at, the request of VIA Rail (and it is not for the arbitrator to deal with its efficacy or otherwise) must be said, I think, to be in aid of efficiency in passenger service and it is, in my view, one which is “in accordance with Government initiatives” thus understood.

The parties before the Arbitrator in the instant case were aware of that interpretation and application of the language of article J from at least February of 1982. As the facts related above indicate, article J has been liberally applied, in keeping with the interpretation of Arbitrator Weatherill, in a number of circumstances parallel to those in the instant case. Most significantly, the parties renegotiated the terms of the Special Agreement effective March 6, 1987. According to the terms of article M, the Special Agreement is to continue in effect until December 31, 1990. It is well-settled that when parties to a collective agreement litigate the disputed interpretation of one of its terms, emerge with a final and binding decision of a board of arbitration and, subsequently, renew the collective agreement without any change in its language they are, absent any clear evidence to the, contrary, taken to have adopted the arbitral interpretation previously rendered for the purposes of interpreting their renewed agreement. Were it otherwise, there would be no finality in the litigation of grievances.

That is precisely what has occurred in this case. On March 6, 1987 the parties must be taken to have known the interpretation of article J rendered by Arbitrator Weatherill in the Medicine Hat case. While it is true that that grievance concerned CP Rail, it is common ground that the Special Agreement was initially fashioned to apply to CN, CP as well as VIA Rail, for the specific purpose of minimizing the adverse effects upon of employees of the rationalization of passenger services in Canada. In other words, it must be accepted that article J is to have the same meaning as it applies to all three railway Companies, nor was any contrary position advanced before this Arbitrator. If the Corporation desired, it was open to it to insist upon an amendment to the Special Agreement to reflect the narrower view of the phrase “in accordance with government initiatives” which it argues in this case. In the absence of any such amendment, however, and particularly in light of the additional evidence with respect to the consistent application of article J in circumstances like those involving the alteration of rail-liner service on the Montreal/Sherbrooke line in the past, I am compelled to conclude that the parties must be taken to have adopted the interpretation of this provision enunciated in the Award of Arbitrator Weatherill in the Medicine Hat grievance on February 8, 1982. In light of this conclusion it is unnecessary to deal with the alternative arguments respecting the application of article 79 of the collective agreement.

For these reason the grievance must be allowed. The Arbitrator does not however, accept the submission of the Union that the positions in question must be re-bulletined. For the reasons related at the hearing, I am satisfied that the employees who were in the rail-liner service at the time of the change are entitled to be made whole. That is to say those employees, and any others in the chain of displacement resulting from the change, are to be now placed in the situation which, as closely as possible, would be the position they would have been in had the terms of article J been applied to them from the outset. While this may obviously involve a certain amount of fact-finding and negotiation between the parties, there should be little doubt that they can make the adjustments that will place the employees affected in a position relatively consistent with this arbitral conclusion. Should there be any difficulty with respect to the interpretation or implementation of this remedial order, I remain seized.

DATED at Toronto this 13th day of March, 1989.

(signed) MICHEL G. PICHER

ARBITRATOR