AD HOC 259

AWARD

DISPUTE:

Failure of the parties to reach agreement in accordance with Item No. 16 – Greater Vancouver Terminal Agreement, of the Memorandum of Agreement Union, dated March 4, 1987, which provided settlement to the Regional proposals to Agreement 4.3 on the Prairie and Mountain Regions.

STATEMENT OF ISSUE:

On October 1, 1986, the company served a demand on the UTU to provide revision to Agreement 4.3 as follows:

16. Addendum No. 4 – Greater Vancouver Terminal Agreement

Amend Addendum No. 4 of Agreement 4.3 to reflect current conditions and original intent.

Following a series of negotiations an agreement was reached with the UTU on the proposal as part of the settlement of Regional proposals to Agreement 4.3 on the Prairie and Mountain Regions dated 4 March 1987, which in turn formed part of the National Memorandum of Agreement signed with the UTU dated March 17, 1988.

Item 16 on Page I of this agreement with the Union read as follows:

Item 16 – Greater Vancouver Terminal Agreement

Resolved on the basis that the parties will meet during the closed period to resolve the application of the taxi arrangements contained in Addendum No. 4 of Agreement 4.3. This is not to indicate that there shall be any change whatsoever to the present agreement (Addendum 4) in respect to pre April 23, 1969 employees.

Discussions will commence and be concluded within 120 days following the signing of the Memorandum of Agreement concerning National Negotiations.

If the parties are unable to reach an agreement within the 120 day period, either party may expedite the dispute to the CROA Arbitrator whose decision shall be final and binding upon both parties.

After extended negotiations, the parties have failed to reach an agreement.

The facts are not in dispute. In the late 1960s rapid growth in the export volume of commodities such as coal, potash, sulphur and grain through the port of Vancouver prompted the Company to rationalize its terminal operations in that location. As part of that undertaking it assembled a number of switching yards in Vancouver into the Greater Vancouver Terminal, of which the Port Mann yard located in Surrey (now known as the Thornton yard) became the main point of consolidation and distribution.

One of the effects of the change was a degree of inconvenience to the majority of trainmen then employed at Vancouver. Rather than reporting at the Vancouver yard, as they had done previously, they were required to travel and report for work at Thornton yard in Surrey, some 17 miles to the east. Over a number of months the parties negotiated, without success, the terms of agreement respecting a number of issues arising out of the consolidation of yards in Vancouver, including an arrangement for the off-hour transportation of employees. The outstanding issues proceeded through the steps established for the negotiation and arbitration of conditions relating to material changes in working conditions in what was then article 7 of agreements 4.1 and 4.17 covering conductors and brakemen as well as article 26 of agreement 4.22 governing yardmen. After referral back of the issue of transportation to the parties by Arbitrator Weatherill for further negotiation, an agreement was executed in Montreal on August 4, 1969.

Item 13 of that agreement resolved the issue of transportation for conductors, trainmen and yardmen reporting to Port Mann yard when public transportation was not available. Subsequently, on December 10, 1970 the parties reached a further agreement in substitution of clause 13. That agreement, governing the entitlement of employees to paid transportation, has remained in effect to this day as Addendum No. 4 of Agreement 4.3 and its cancellation or amendment is the subject of this dispute. It provides as follows:

CLAUSE 13

The Company will provide transportation for use by Conductors, Trainmen, Yardmen and Yardmasters as follows:

1. (a) On a 24 hour basis between Vancouver and Port Mann in both directions.

This transportation will be available to the above employees who are required to report for duty at Port Mann, New Westminster or Vancouver.

The route to be followed will be: Vancouver Depot to Yard Office to diesel shop and thence via Terminal and First Avenues, Highway 401, Canada Way and Eighth Street to New Westminster Freight Yard thence along Royal Avenue and Patullo Bridge to Port Mann diesel shop and Yard Office. Return via the same route.

The cost to be 35 cents in each direction.

(b) On a 24 hour basis between New Westminster Bus Depot and Port Mann in both directions.

This transportation will be available to the above employees who are required to report for duty at Port Mann or New Westminster.

The route to be followed will be: from New Westminster Bus Depot along Royal Avenue to the Patullo Bridge and via Sandell Road to Port Mann Yard Office. Return via the same route. Pick up points on this route are New Westminster Freight Yard, Royal Shopping Centre and Whalley-Dell Shopping Centre. When pick up required at Whalley- Dell Shopping Centre, route will then be via Bergstrom Road to Port Mann Yard Office.

(c) On a 24 hour basis from Port Mann to Lynn Creek and return to Port Mann upon release from duty at Lynn Creek. This transportation will be available to the above employees who are required to report for duty at Lynn Creek, the route to be followed will be: Port Mann Yard Office via the Port Mann Bridge, Highway 401, across Second Narrows Bridge and along Main Street to Lynn Creek Yard Office. Return via the same route. The cost to be 35 cents in each direction.

(d) On a 24 hour basis from Vancouver to Lynn Creek and return to Vancouver upon release from duty at Lynn Creek. This transportation will be available to the above employees who are required to report for duty at Lynn Creek. The route to be followed will be: Vancouver Depot to Yard Office to diesel shop and thence via Terminal and First Avenues, across Second Narrows Bridge and along Main Street to Lynn Creek Yard Office. Return via the same route. The cost to be 35 cents in each direction.

2. Departure times of Company sponsored transportation will be based on the route time required to ensure that employees will be able to report for duty in accordance with their Collective Agreement.

3. Based on operating experience, adjustments will be made to the transportation travelling time between the originating points mentioned above.

4. The above employees must advise the Crew Office when called that they will require such transportation and the Crew Office will advise the employee the time the transportation is ordered to leave its originating point.

5. Employees who desire to avail themselves of such transportation arrangements on release from duty will advise the Crew Office accordingly.

6. The method of transportation to be used, i.e. taxi, company operated bus, station wagon or comparable type of transportation, is at the discretion of the Company. It may be subject to such adjustments as may be deemed appropriate and is not for the sole use of the above employees.

As may be seen from the foregoing, the agreement generally established certain transportation routes between various segments of the Greater Vancouver Terminal, with employees being required to pay what was then equivalent of public transportation bus fare. The intention was to provide transportation in areas not serviced by public transit services. It is not disputed that the principal means of transportation utilized has been taxis. The agreement of December 10, 1970 was implemented, in part, to provide to conductors, trainmen and yardmen the same transportation arrangement as had been agreed to with the locomotive engineers. As reflected in the preamble to Addendum 4, the original intention of the parties’ agreement was that the taxi arrangement was to apply solely to persons employed prior to April 23, 1969, as they were the persons adversely impacted by the re-organization of yard operations in Vancouver.

Over time, however, a number of things changed. Firstly, in time, the Company provided transportation service to employees hired after April 23, 1969, notwithstanding the original intention of the agreement. It further appears that the agreement was not restricted in its application to employees living in Vancouver who previously reported to Vancouver yard. As Vancouver operations grew and new employees were added to the complement, many of them took up residence in suburban areas such as Delta, Surrey and Langley. Employees in those locations, with their own automobiles, developed a practice of driving to Thornton yard, parking their own vehicles and travelling to off yard terminals such as Vancouver yard, Lynn Creek or Lulu Island via Company subsidized taxi in both directions. A further development was the establishment of several unofficial taxi routes and pick-up points not contemplated within the terms of article 13 of addendum 4. Lastly, the fixed transit fare imported into the addendum in 1970 eventually became dramatically overtaken by inflation, so that in the mid-1980s it no longer represented the equivalent of the payment of an actual transit fare. Accordingly, on October 1, 1986, as part of the regional contract negotiations for Agreement 4.3, the Company served notice on the Union of its intention to amend Addendum 4 to reflect current conditions and the original intent of the agreement, the beginning of the process which has led to this arbitration.

The Company advances a number of positions. Firstly, it requests the Arbitrator to issue an award which effectively returns the parties to the strict terms of Addendum 4, strictly limited in its application to pre-April 23, 1969 employees. Alternatively, and without prejudice to the Company’s first position, it argues that at the maximum, the Arbitrator should consider an award which would provide to post-April 23, 1969 employees a limited right for a transition period only. Specifically, it suggests that an employee falling within that category who can establish conclusively that he or she is totally reliant on public transportation be provided subsidized transportation for a limited adjustment period of one year. That right would further be conditioned on an understanding that, where appropriate, the employee is to utilize the Skytrain system during its operational hours, with transportation links to be provided by the Company from the Skytrain terminal to Lulu Island, Lynn Creek or Thornton yard. The Company further requests that, whatever the terms of the Arbitrator’s award, uniformity be achieved as between trainmen and locomotive engineers, who have been subject to a similar arrangement and whose own Vancouver taxi agreement has been submitted to the same Arbitrator for simultaneous adjudication.

The fundamental position argued by the Company is that as a general matter it is not an employer’s obligation to provide employees transportation to and from the workplace. It stresses that what was conceived as a necessity in 1969 and 1970 has, with the passage of time, become a convenience to employees who should be able to make their own way to work. Noting the expansion of the service to routes beyond those contemplated in Addendum 4 and the wholesale utilization of the system by employees hired after April 23, 1969, the Company’s spokesperson stresses that the taxi agreement has become unduly burdensome on the Corporation and that, subject to the protection of the employees for whom it was originally intended, it has outlived its purpose and appropriateness. He further notes that since the advent of the Vancouver Skytrain in 1986, linking the downtown Vancouver area and New Westminster, travelling a route virtually parallel to one of the major unofficial taxi routes, the justification for subsidized transportation within that corridor is no longer supportable.

The Union’s representative advances a different view. He submits that adequate transportation within the Greater Vancouver area has historically been a serious problem for Company employees. Stressing that they work tours of duty on a 24-hour basis, in areas where public transportation is either irregular or non-existent, he argues that the application of the Vancouver taxi agreement, as it has evolved since 1970, is neither unreasonable, nor unacceptably burdensome to the employer. The Union’s position is that the agreement contained in Addendum 4, as it has been expanded in practice and application, should remain unchanged. He submits that the change which the Company proposes would result in the transfer of a heavy burden onto the shoulders of employees who, for years, have worked in reliance on the existing arrangement. He argues that families with one vehicle would be required to purchase a second automobile, and to bear the cost of considerable expense in relation to the purchase of fuel. He further submits that it would be inequitable to accede to the Company’s demand which would, in effect, create a two-tier treatment whereby new employees would be excluded from the benefits of subsidized transportation between the various yards within the greater Vancouver Terminal.

In the Arbitrator’s view this dispute can be resolved by striking a compromise between two quite legitimate industrial relations interests advanced by the parties. Firstly, it is reasonable that the Company should be allowed to bring its operations into line with the general premise which operates in most industries, including the railway industry, that other than in exceptional circumstances employees are responsible for getting themselves to work. Exceptions to this rule are generally confined to unusual circumstances, such as work in remote locations, and are not normally encountered within an urban centre. Whatever may have been the expectations in the past, in the last decade of the 20th century, it has become generally accepted, particularly in large urban centres, that employees should be expected to bear the expense of travelling between their homes and their place of work. As a general matter, therefore, the Arbitrator has little difficulty accepting the reasoning which underlies the Company’s position. It is further bolstered by a number of changes over the years, most notably the increase in local transit fares and the newly established Skytrain service which did not exist when the terms of Addendum 4 were first negotiated.

A competing principle which lends support to the Union’s position is, however, equally compelling, namely that, insofar as possible, employee rights and benefits gained and established over time should not lightly be taken away. The loss of a long-standing and substantial economic benefit leaves in the employee affected a natural feeling of deprivation and unfair treatment. There is, arguably, no surer way of ensuring workplace discord and collective bargaining instability than to withdraw what are perceived to be acquired rights from one group of employees, while leaving them untouched in the hands of others.

Apart from that industrial relations rationale, there are considerations of equity which also operate. As the evidence discloses, the employees who are subject to the Vancouver taxi agreement are spread over a large area insofar as their places of residence is concerned. A substantial number of employees hired after April 23, 1969 have located their residences in suburban areas, rather than within the City of Vancouver. While no evidence in this regard is before the Arbitrator, it is not unreasonable to assume that in choosing their place of dwelling such new employees relied, at least in part, on the expectation that they would continue to enjoy subsidized transportation between the five terminal points in Vancouver, in accordance with the long-standing operation of Addendum 4. In a very real sense, any removal of those benefits at this time would not only constitute a net loss to the employees concerned, in some cases amounting to approximately $1,000.00 over the period of a year, but it would do so in a way prejudicial to their reasonable expectations and prior reliance on the Vancouver taxi agreement.

The Arbitrator is not, on the whole, convinced by the submission of the Union that it would be wrong or unfair to continue an amended form of subsidized transportation for employees in Greater Vancouver, the benefits of which would be limited to existing employees, and would not be available to employees hired after the date of this Award. I must accept the submission of the Company that time has overtaken the justification for the Vancouver taxi agreement as it was originally conceived. I see no reason why the Company should be required to provide these extraordinary benefits to all of its employees in perpetuity. On the contrary, subject to the preservation of rights of existing employees in an amended form, I find it not unreasonable that the Company should be able to look forward, through attrition, to the eventual phasing out of this extraordinary arrangement. The concept of grandparenting the vested rights of a defined group of employees has, for many years in a number of industries in Canada, including the railway industry, proved to be a fair and workable means of balancing the interests of employees to maintain their vested rights while allowing an employer, over time, to adjust its method of operations to the realities of a changing world. With certain qualifications, that is the formula which commends itself in this case.

The qualifications that apply relate to changes in the public transportation system in Vancouver over the years. Firstly, fair consideration must be given to the increases in public transportation fares charged in Vancouver since Addendum 4 was first agreed to. The fare, once pegged at $.35, is now at the level of $1.25. If, as the Arbitrator accepts, the original intention was to require employees having the benefit of the Vancouver taxi agreement to contribute the equivalent of a public transit fare, any change in the Addendum should allow for the increase in those fares to the present date as well as in the future. The second consideration is the location of the taxi routes themselves. Grandparenting of all of the existing routes, both official and unofficial, would in the Arbitrator’s view both disregard the original intention of the addendum and, in some areas, result in indefensible excesses. Central to this aspect of the case is the growth of public transportation facilities over time, and in particular the addition of the Skytrain as a feature of public transit within the greater Vancouver area. In the Arbitrator’s view, the grandparenting of rights in this award should make some allowance for those very significant changes as they impact upon the designation of taxi routes to be established under Addendum 4.

The record before the Arbitrator reveals that the parties to this arbitration have shown some mutual appreciation of the considerations discussed above. After extensive negotiations a tentative agreement with respect to amending the terms of the Vancouver taxi agreement was reached on July 8, 1987. Following a review of the terms of that agreement by the employees affected, a counter-proposal was submitted to the Company in July of 1988. Further negotiations ensued which culminated in a final memorandum of agreement dated January 26, 1989. While that memorandum achieved the assent of the two negotiating committees, it was subject to ratification by the membership of the Union’s Local 701 at Vancouver. At Union meetings held on February 22 & 23, 1989, 55 percent of the membership voting opted to reject the proposed agreement. It is common ground that approximately no more than 50 of the 359 UTU employees affected by the agreement participated in the ratification vote. In the circumstances that outcome must be viewed as something less than a ringing repudiation of the terms of tentative settlement by the employees most directly affected by it.

In the Arbitrator’s view, the Memorandum of Agreement of January 26, 1989, appended as Exhibit ‘F’ to the Union’s brief in this arbitration, represents a fair and equitable resolution of the competing interests underlying this dispute. Firstly, it provides a grandparenting provision which restricts the application of the benefits of the agreement to employees within the bargaining unit prior to July 8, 1988. Persons hired after that date are required to provide their own transportation to and from their work location. The agreement further takes into account the increase in transit tariffs within greater Vancouver, and adjusts the contribution of employees who were hired after April 23, 1969 to $1.25 in each direction. That amount is subject to re-negotiation in the event of increases or decreases in the public transit charges applicable within the greater Vancouver area. In addition, the agreement re-establishes the routes, conditions and pick-up points which are to apply, taking into account the present level of public transit services with respect to their times and locations, and having regard to the present availability of Skytrain transportation during certain hours of the day. The Memorandum of Agreement further provides for a discretion in the Company to determine the method of transportation to be used and allows for further negotiation in the event that public transportation to Thornton yard should be expanded in the future.

The Arbitrator considers the foregoing terms of settlement compelling in the instant case. They allow the Company, over a long period of time, to wind down the special transportation arrangement by normal attrition, returning the bargaining unit employees to conditions whereby they are responsible for their own transportation to work, as is the case in most work settings, including other bargaining units of the Company in Vancouver, as well as its management personnel. The agreement also responds realistically to changed transportation conditions within the greater Vancouver area, eliminating the needless duplication of routes as between certain “unofficial” taxi routes and the newly-developed Skytrain. It also brings the contribution of post-April 23, 1969 employees to a level realistically corresponding to public transportation fares in effect at the present time. Lastly, and perhaps most significantly, subject to the foregoing amended conditions, the Memorandum of Agreement as framed protects the vested interests of all employees hired on or before July 8, 1988. It may be presumed that persons who were hired into the bargaining unit after that date knew, or reasonably should have known, that the entire issue of the taxi agreement was a matter of dispute and negotiation between the parties, as a result of which they can assert no long-term vested interest.

For the foregoing reasons the Arbitrator adopts in full the terms and conditions of the Memorandum of Agreement reached between the negotiating committees of the parties on January 26, 1989 for implementation forthwith as the Award in this matter. For the purposes of clarity the Memorandum of Agreement, which becomes, the Arbitrator’s Award, is appended hereto as Appendix ‘A’ to this decision. I retain jurisdiction in the event of any dispute between the parties respecting the interpretation or implementation of this Award.

DATED at Toronto this 1st day of June, 1989.

(signed) MICHEL G. PICHER

ARBITRATOR