AH – 255

IN THE MATTER OF AN ARBITRATION

BETWEEN:

VIA RAIL CANADA INC.

(the “Company”)

AND

UNITED TRANSPORTATION UNION

(the “Union”)

GRIEVANCE RE THE MOVEMENT OF EQUIPMENT BETWEEN MONTREAL CENTRAL STATION AND THE MONTREAL MAINTENANCE CENTRE

SOLE ARBITRATOR:                Michel G. Picher

There appeared on behalf of the Company:

P. Thivierge                               – Manager, Labour Relations

D. Brodie                                   – Officer, Labour Relations

M. Lacombe                              – General Superintendent, Transportation

And on behalf of the Union:

T. Hodges                                 – General Chairman

R. Proulx                                   – Vice-President

B. Marcolini                               – National Vice-President

B. Leclerc                                 – Representative

G. Bird                                      – Representative

A hearing in this matter was held at Montreal on March 8, 1989.

AWARD

DISPUTE:

The Union’s appeal of the instructions issued by the Corporation that one train crew member accompany the equipment while either being turned on the wye in Montreal, or moved between Central Station and the Montreal Maintenance Centre.

JOINT STATEMENT OF ISSUE:

Effective March 21, 1983, the Corporation notified train and engine crews that certain crew members on specified trains would be required to turn their equipment on the wye after their arrival at Montreal’s Central Station.

The facts are not in dispute. They are succinctly reflected in the following paragraphs of the Corporation’s brief:

7.             On June 26, 1987, approximately 600 operating employees of Canadian National Railways represented by the Union transferred to the employ of the Corporation. This transfer was effected under the terms of the “Railway Passenger Service Adjustment Assistance Regulations”, and was accomplished in accordance with a tripartite Memorandum of Agreement dated March 6, 1987. (A copy of the Memorandum of Agreement is included in the Special Agreement between the parties.)

8.             One of the conditions of the transfer was the commitment given by the Corporation that the collective agreements in force between the Union and Canadian National would also be transferred to VIA and would remain applicable to the transferred employees. In addition, the Corporation offered the commitment that all established interpretations and local agreements would remain in force at VIA as they had been at CN.

9.             One of the collective agreements which was transferred with the employees and was, in effect, established between the Corporation and the Union was Agreement 4.16 governing trainmen and yardmen operating in Central and Eastern Canada, East of Armstrong, Ontario. It is this Collective Agreement which is involved in the instant dispute.

10.          With regard to the turning of equipment, the primary motivating factor was the Corporation’s concern over the pollution levels in Central Station and the surrounding buildings connected thereto. The exhaust fumes produced by locomotives and generator units entering the station and idling on the station platforms would rise into, and circulate throughout the buildings located above.

11.          In response to mounting pressure by building authorities and tenants, Government Agencies and railway employees, the Corporation initiated the procedure of turning the equipment in order to position the diesel units nearer the southern entrance to Central Station which is better ventilated.

12.          On March 13, 1983, the Corporation issued Notice No. VQ 135 (attached as Appendix A) to its train and engine service personnel advising them that effective March 21, 1988, one member each of the train and the engine crew arriving in Montreal on certain specified trains would be required to remain on-duty to turn and re-deliver the equipment to Central Station after the passengers had disembarked.

13.          Notice No. VQ 148 (attached as Appendix B) issued March 31, 1983, clarified that the essential brakeman was the train service employee who would remain on-duty to perform this manoeuver, except in the event where he/she was not familiar with the territory, in which case he/she would be replaced by the conductor.

It is not disputed that the adjustment in procedure, requiring one train crew member and one engine crew member arriving on trains at Central Station to remain on duty to operate the movement to the Montreal Maintenance Centre and return to Central Station by taxi, added approximately one and one half hours to their on-duty time and correspondingly reduced their layover or off-duty time in Montreal.

The Union submits that the Corporation has violated article 11, which governs crew consist requirements, article 79 with respect to material change provisions and article 41 which governs the work provisions of yardmen.

In the Arbitrator’s view article 41.1 is of little assistance to the Union in this case. While it governs certain work within recognized switching limits, which is to be compensated at yardmen’s rates, it specifically provides “… this is not intended to prevent employees in road service from performing switching required in connection with their own trains and putting their own trains away …” On a plain reading of the article the Arbitrator must conclude that the turning of the passenger train on the wye at Montreal, and accompanying the equipment to, and from the Montreal Maintenance Centre, does constitute switching required in connection with the crew’s own train. No violation of article 41 is, therefore, disclosed. The following provisions of the collective agreement are pertinent to the resolution of this grievance:

ARTICLE 79

MATERIAL CHANGE IN WORKING CONDITIONS

79.1        The Company 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 the employees concerned. No material change will be made until agreement is reached or a decision has been rendered in accordance with this paragraph.

…

79.1 (k)  When Material Change Does Not Apply

This Article does not apply in respect of changes brought about by the normal application of the collective agreement, changes resulting from a decline in business activity, fluctuations in traffic, traditional reassignments of work or other normal changes inherent in the nature of the work in which employees are engaged;

7.5          Employees required to report for duty, prior to the starting time of the crew as a unit or required to remain on duty after the crew as a unit has been released from duty to perform special service (such as accompanying equipment between station and coach yard or roundhouse or baggagemen required to remain on duty to handle baggage, mail or express), will be paid for such excess time so occupied on the minute basis (each 3 minutes to count as I mile) and such time will not be included in computing overtime nor will it be used to make up the basic day or monthly guarantee. The provisions of this paragraph will apply to such service performed between regular trips by employees paid on continuous time basis.

(emphasis added)

In the Arbitrator’s view, article 7.5 is a full answer to the grievance in the instant case. It appears under the heading “Passenger Service” which, in turn, falls under the general title to Article 7 “Terminal Time”. The Arbitrator is satisfied that article 7.5 anticipates that employees in Passenger service may be required to report for duty before the remainder of their crew, or remain on duty after their crew, to perform such services as accompanying their equipment from the station to the coach yard or roundhouse. While the terms roundhouse and coach yard may be less current in more recent times, the thrust of the article is clear. The requirement to move a train consist from a passenger station to some storage or service area and thereafter to return it to the station has long been a normal incident of service for employees within the bargaining bargaining unit. As the terms of article 7.5 clearly disclose, there are circumstances which justify the utilization of a substantially reduced crew for the purposes of such movements. It may be that in some circumstances considerations of safety will justify the utilization of a full crew. That, however, is not the issue in the instant case insofar as the way the grievance is framed. The narrow question to be resolved is whether the Corporation was entitled to institute the movement of passenger trains on the wye in Montreal with a reduced crew and without the payment of reduced rates. For the reasons related above I am satisfied that the work in question is specifically excluded from the application of article 41.4, and does not come under the rubric of yardmen’s work. I am also satisfied that the train movement (and in this regard I see no significance between the utilization of the word “train” as opposed to “equipment”) around the wye in Montreal falls within the contemplated terms of article 7.5 of the collective agreement. I cannot, moreover, conclude that the adjustment in assignment, falling as it does with the contemplation of that article is the kind of material change in working conditions contemplated in article 79.1 of the collective agreement. In the circumstances no violation of the agreement is disclosed and the grievance must be dismissed.

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

(signed) MICHEL G. PICHER

ARBITRATOR