AD HOC – 270
IN THE MATTER OF AN ARBITRATION
BC RAIL LIMITED
COUNCIL OF UNIONS ON BC RAIL LIMITED, (the "Council") ON BEHALF OF THE UNITED TRANSPORTATION UNION, LOCAL 1778 (the "UTU") AND THE CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL 1 ("CUTE 1")
IN THE MATTER OF CONTRACTING OUT
SOLE ARBITRATOR: Vincent L. Ready
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Vancouver, B.C., April 13, 1989.
The parties agreed that this board of arbitration was properly constituted with jurisdiction to hear and determine the matters in dispute.
This case is brought by the council on behalf of two of the constituent Unions - the Canadian Union of Transportation Employees, Local 1 (CUTE 1) and the United Transportation Union, Local 1778 (UTU).
The issue is the degree to which the Railway is entitled to contract out maintenance work at the Port Subdivision near Roberts Bank under the CUTE 1 or the UTU Collective Agreements. The Council seeks a declaration that under both Collective Agreements the Railway is prohibited from contracting out maintenance work involving either constituent Unions on the Port Subdivision or alternatively if the work is contracted out, any work trains so employed must be manned by members of the two Unions. The relevant provisions of the CUTE 1 Collective Agreement read as follows:
Foreign trains detouring over BC Rail shall be manned by BC Rail engineers. The manner of operation under joint section or running rights agreement to be subject of discussion between the Railway and the Union.
6.15 Maintenance or construction Service
Work Train in maintenance or construction, whether work is being done by the Railway or by a contractor will be manned by BC Rail engineer. Rates and rules of current Collective Agreement will apply.
17.1.5 Seniority list and schedule of engineers in force shall extend over and be effective on all branches owned or leased and operated by BC Rail.
The relevant provisions of the UTU Collective Agreement read as follows:
(A) CONSTRUCTION TRAINS
(i) construction trains, whether the work is being done by the Railway or by the contractor will be manned by BC Rail Ltd. trainmen. Construction trains are defined as trains working in construction territory. Construction territory is understood to be track not yet approved by the Ministry of Transportation and Highways for the operations of regular trains.
Foreign trains detouring over BC Rail Ltd. shall be manned by BC Rail Ltd. crews. The question of operation under joint section or running rights agreement to be the subject of discussion between the Railway and the Union.
(b) SELF-PROPELLED EQUIPMENT
(i) With the exception of off-track equipment, all self-propelled equipment operating on the main track outside yard limits, such as locomotive cranes, self- propelled drivers, self-propelled hoists, self-propelled ditchers, self -propelled rail loaders and shovels, etc., shall have a Conductor in charge.
Self-propelled equipment may handle two (2) cars containing 0CS material on the main track outside yard limits with only a Conductor in charge. When these cars are being handled a caboose will be supplied, but will not be considered an additional car. …
(iii) Track motor cars used by or for a contractor to transfer material or workmen on a contract other than for the Railway will have a Conductor in charge. …
The facts are straightforward. The Port Subdivision is a 23 mile section of rail line commencing near Cloverdale, B.C. and ending at Westshore Terminal at the Roberts Bank coal terminal. Since 1970 three major railway companies have held running rights on the Port Subdivision, namely, Burlington Northern Inc., Canadian National Railway Company, and Canadian Pacific Railway Company.
These running rights agreements are for a 21 year term from April 1, 1970 to April 1, 1991 with the right to renew For succeeding terms of 21 years. The agreements were originally entered Into between the railways and the British Columbia Harbours Board; they were transferred from the Harbours Board to the railway when the railway acquired the Port Subdivision in 1983. Pursuant to the running rights agreements, CP Rail, CN Rail and Burlington Northern have the right to handle their own traffic on the Subdivision; specifically the user railways man their own trains over the Port Subdivision including switching and other ancillary movements required by their coal train operations. Although at times the UTU in particular has argued that BC Rail crews should man these trains, the issue has not been pursued in light of the specific provisions in the running rights agreements (which provisions as noted above are subject to renewal for a further 21 years from April 1, 1991).
Since April 1, 1970, the Railway has been responsible for managing and operating the Port Subdivision (from 1970 to 1983 under a management contract with the Harbours Board and since 1983 for its own benefit). Specifically, the running rights agreement states the obligation to "… maintain and keep the Roberts Bank joint section trackage in good condition and repair and suitable for use by the parties."
In managing the Port Subdivision, the Railway utilized members of the Transportation Communications Union, System Board 496, Lodge 1828 to provide a dispatch service. As well, the Railway utilized members of the Canadian Union of Transportation Employees, Local 6 to maintain the track, employing contractors periodically (either private contractors or the other user railways) for specific maintenance programs. It is in this context that the grievances by the UTU and CUTE 1 arise.
The Railway has plans for a rail relay program this summer on the Port Subdivision from Mile 0 to Mile 23.3; the cost of the program has been set at approximately $9 million. The Railway plans to utilize members of CUTE 6 in the actual maintenance work. However, it has contracted with CP Rail to provide work trains manned by CP Rail enginemen and trainmen. It is these work train service assignments over which CUTE 1 and UTU claim jurisdiction in their grievances. The two Unions request a declaration that the Railway is not entitled to man work trains on the Port Subdivision with other than BC Rail enginemen and trainmen.
POSITION OF THE UNION
Mr. Pidgeon argued that since 1983 the Port Subdivision has been an operation of BC Rail under the Harbours Board Repeal Act. Therefore, the maintenance work is governed by the Council’s certification and, more specifically, the provisions of the respective Collective Agreements between the Railway and CUTE 1 and UTU. Hence, it ought to be done by members of those Unions and any work trains involved in maintenance operations on the Port Subdivision must be manned by the Unions’ members.
With respect to CUTE 1, Counsel argued that the provisions of clause 6.15 are clear and unambiguous, i.e. any work train service, whether the work is done by the Railway or a contractor, must be manned by a member of CUTE 1. counsel argued further that clauses 17.1.5 and 1.11 support the conclusion that CUTE l’s jurisdiction and seniority rights extend over all branches of the Railway’s operations, including the Port Subdivision. With respect to the UTU, Counsel acknowledged that the Collective Agreement provisions are not as precise as those in the CUTE I agreement. However, Counsel argued that when one reads Articles 102, 103 and 212 in concert, the logical conclusion is that the parties, when they negotiated the UTU Collective Agreement, contemplated the use of UTU members when construction and ongoing maintenance work is performed; Counsel argued that the parties intended that BC Rail conductors and trainmen would be employed on work train service during maintenance and repair work on the Port Subdivision.
POSITION OF THE RAILWAY
Mr. MacPhail argued that the UTU and CUTE 1 have no exclusive jurisdiction over work trains in the Port Subdivision whether those trains are owned by the Railway or someone else. In the alternative, if it is found that UTU or CUTE 1 have jurisdiction over BC Rail work trains on the Port Subdivision, a position the Railway expressly denies, then, said Counsel, the Railway has the right to contract out the repair work on the Port Subdivision. Furthermore, the UTU or CUTE 1 have no right to staff the contractors’ work trains.
Mr. MacPhail pointed out that CUTE 1 and UTU are in effect seeking a proprietary right on the Port Subdivision despite the fact that neither Union has performed any work on the Subdivision for the 19 years that it has been under the Railway’s management (i.e., no members of either union have staffed a train on this trackage).
CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS
In reviewing the provisions of the UTU and CUTE 1 Collective Agreements, I do not believe that either of the agreements provide the general exclusive jurisdiction argued by the two Unions. However, in assessing the provisions in the respective Collective Agreements against the arrangements made by the Railway for the rail relay maintenance work on the Port Subdivision, I have come to two different conclusions respecting the Unions’ right for the work involved.
I turn first to the provisions of the CUTE 1 Collective Agreement. Pursuant to its right to contract out work under the respective Collective Agreements, the Railway has contracted with CP Rail to provide and man work trains for the rail relay maintenance work on the Port Subdivision. in my view, these work trains fall clearly under the provisions of clause 6.15, which clause is clear and unambiguous. These work trains must be manned by BC Rail engineers. Whether the work trains are BC Rail equipment or otherwise has no effect on my conclusion as to the specificity of clause 6.15. The work train maintenance service to be provided on the Port Subdivision falls within the terms of the CUTE 1 Collective Agreement.
I turn now to the grievance concerning members of the UTU. The UTU Collective Agreement does not have a provision in any way similar to clause 6.15 in the CUTE 1 Collective Agreement. Rather, there is no provision which establishes the right of UTU members to man work trains in maintenance work, whether that work is performed on the Port Subdivision or on other subdivisions. Article 102 deals specifically with the operation of construction trains on trackage not yet approved by the Ministry of Transportation and Highways for the operations of regular trains -- it has no application to the maintenance work on the Port Subdivision. Similarly, the detouring (Article 103) and self-propelled equipment (Article 212) provisions are hardly applicable to the situation at hand. It is too long a bow to draw to tie the provisions of the UTU Collective Agreement into a right for UTU members for work trains maintenance service on the Port Subdivision whether that service is provided by BC Rail itself or by a contractor. In the result, I find no violation of the UTU Collective Agreement. Hence the grievance as it relates to the UTU is dismissed.
In summary, while I dismiss the UTU grievance, I find that pursuant to the provisions of the CUTE 1 Collective Agreement the members of CUTE 1 have a right to the declaration sought. The planned work train maintenance work on the Port Subdivision is work which falls under the terms of the CUTE 1 collective Agreement. It is so declared.
DATED AT VANCOUVER, British Columbia this 25th day of May, 1989.
(signed) VINCENT L. READY