AH 271

BETWEEN:

UNITED TRANSPORTATION UNION,

LOCALS 1778 AND 1923

(the ”Union”)

AND

BC RAIL LIMITED

(the “Company”)

IN THE MATTER OF THE GRIEVANCE OF ARTICLES 120 AND 212

Sole Arbitrator:            Vincent L. Ready

There appeared on behalf of the Company:

                                                David Cox

There appeared on behalf of the Union:

                                                Clyde Mulhall

A hearing in this matter was held at Vancouver, British Columbia, on the 16^th and 17^th days of August, 1989.

The parties agreed that I was properly constituted as an arbitrator under their collective agreement with jurisdiction to hear and determine the issue in dispute.

                The issue arose as a result of the Company assigning a Conductor Pilot to a self-propelled on-track crane involved in track maintenance. The Union argued that such an assignment was in violation of the provisions of Articles 120 and 212, which call for a train crew not just a Conductor Pilot.

                The Union argued that the locomotive crane was in fact a “work train” under the conditions in which it operated and therefore it required a train crew. The union referred to the Uniform Code of Operating Rules (UCOR) and to the fact that when the locomotive crane was on the track, it was designated as a “work extra” for train protection purposes pursuant to the various forms of train orders prescribed in the UCOR.

                Continuing on this line of argument, the Union stated that the locomotive train was a “train” as defined under the UCOR and therefore since this “train” was designated as a “work extra” that made it a “work train” assigned to maintenance, thereby requiring a train crew pursuant to the provisions of Articles 120 and 212 (a). Articles 120 and 212 (a) state as follows:

                Article 120

                Full Crew

Unless otherwise provided in this agreement, a train crew will consist of not less than one (1) a conductor and two (2) brakemen in all classes of service.

                Article 212 (a)

                Work Train Service

                (i)            Work trains for the purpose of Article 212 are trains assigned to Maintenance

Note:      The remaining parts of 212 (a) specify the rates of pay for the train crew and the conditions under which work trains will be operated.

                The Company opened its case with an overview of the diverse nature of self-propelled and other equipment used by the Company for track maintenance purposes. The Company argued that consideration of the nature of all such equipment necessarily flowed from the union grievance since the union argued that the form of train protection prescribed under the UCOR dictated the manning of equipment pursuant to the provisions of the collective agreement.

                The Company argued that any manning rights must be found in the collective agreement and as such manning provision are found in only two circumstances:

(a)           When a train crew is specifically called for under the collective agreement, of

(b)           When a Conductor Pilot is prescribed under the collective agreement.

                In support of that line of argument the Company pointed to the train crew provisions in Articles 120 and 212 (a) and to the Conductor Pilot provisions under Article 212 (b). That provision reads, in part, as follows:

                Article 212(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 OCS 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.

Note:      Two (2) gondolas or two (2) flatcars wired together constitute one (1) car when handling seventy-eight (78) foot rail.

The Company pointed out that a Conductor Pilot had been assigned the carne pursuant to the above Article, although the said equipment was designated as a “work extra” under the UCOR for the purposes of allowing the self-propelled equipment to move forward or backward. The designation was simply to facilitate movement and protection of the equipment on the track.

The Company stated that on-track self-propelled equipment has, for a number of years, been bulletined under the collective agreement as requiring only Conductor Pilot. This practice has not been objected to by the Union until the Company commenced designating the on-track self-propelled equipment as “work extras” for protection purposes pursuant to the UCOR.

The Company extended its argument by pointing out that Article 212 (b) only required a Conductor Pilot for self-propelled on-track equipment which cannot be removed from the track at its point of operation; therefore, any off-track equipment (i.e., equipment that can be removed from the track at its point of operation) does not fall under the provisions of the UTU collective agreement. The Company emphasized the introductory phrase to the Conductor Pilot provision under Article 212 (b) (I) which states: “With the exception of off-track equipment”. In fact, the Company argued, in the absence of Article 212(b), the Union would not have nay rights to man any self-propelled equipment unless those rights can be found under the train crew Articles in the collective agreement.

The hearing in this regard concluded on August 17, 1989. On September 17, 1989, the union advised in writing that it was concerned that the Company’s evidence and argument at the hearing encompassed many more issues than those raised by the specific grievance put forward by the Union. In reply, the Company stated that it was the Union who placed, before arbitration, the entire issue of maintenance and the Union’s manning rights respecting equipment used in the Company’s maintenance activities.

After reviewing the recent submissions of the parties against my detailed notes of the representation made at the arbitration hearing, I accept the Company’s position that the issue is broad based in nature. That conclusion is based on large part on the Union’s emphatic argument and insistence that there is a direct tie-in between the UCOR and the manning provisions in its collective agreement and the corresponding interconnection between the train protection specified for maintenance equipment and those manning provisions.

I now turn my attention to the evidence and testimony presented at the hearing and the arguments of the respective parties.

I have reviewed the collective agreement in order to determine the extent of the manning requirements and I have reviewed the UCOR to determine its relationship to the collective agreement.

As a result, one of the conclusions I have reached is that the collective agreement has very specific provisions requiring a train crew for certain types of service. (i.e., Articles 120 and 212 (a)). It also has a specific provision providing for a Conductor Pilot for “ … all self-propelled equipment operating on the main track outside yard limits …”. However, that Article has an opening phrase “with the exception of off-track equipment” and obviously off-track equipment is excluded from these Conductor Pilot manning provisions (as well as from the train crew manning provisions of the other various Articles).

Article 212 (b) specifically calls for a Conductor Pilot under particular circumstances for on-track self-propelled equipment. If such circumstances do not prevail in a given situation (i.e., the self-propelled equipment used is not of the type defined under Article 212 (b)) it does not follow that the train crew manning provisions then apply. Rather, in these cases, there is no manning requirement under the collective agreement and that is an issue for future negotiations between the parties.

I now return to the manning of the locomotive crane.

From the evidence and testimony at the hearing, I have concluded that when the locomotive  crane was used for the purpose for which it was designed, it fell under the provisions of Article 212 (b) and required a Conductor Pilot. (See my earlier award October 16, 1986 concerning the stone grinder.)

As noted earlier, the union argued that the locomotive crane was in effect elevated form the status of self-propelled equipment falling under Article 212 (b) to work train status (requiring a train crew) by the fact that it was designated a work extra for protection purposes under UCOR. The Union argued that the form of train order governing the equipment’s movement dictated manning requirements.

In this regard, the Union relied on specific definitions and provisions in the UCOR in an attempt to draw a direct relationship between these definitions and provisions in the manning Articles in the collective agreement negotiated between the Company and the Union. However, the UCOR is determined by the Ministry of Transportation & Highways and its function is to specify the operating authority for, and the rules applying to track movements. The UCOR’s purpose and intent is much different than the collective agreement. The UCOR has no determinative effect on the collective agreement’s manning provisions for specific equipment. It is the use to which specific equipment is put that governs the manning requirement. The type of train protection provided has no bearing on its manning. A piece of equipment running as a train for the purpose of train protection under UCOR does not prescribe the work being done or the applicable manning provisions. As stated in Canadian Railway Office of Arbitration, Case No. 1248, Quebec North Shore & Labrador Railway - and - United Transportation Union, (June 12, 1984):

In short, the type of permit governing movement on a specific track cannot be allowed to dictate acquired rights under the collective agreement.

The contradiction of that approach was demonstrated in this case. As the mere whim of the Employer, the rights may be extinguished by reason of the type of clearance permit that is secured from the Company’s dispatcher.

In essence, the train protection provided specific track equipment from time to time cannot elevate (or downgrade) the manning provisions of the collective agreement. Rather, the train protection provisions of the UCOR are separate and distinct from the collective agreement’s manning provisions. The manning of equipment will be determined by the specific wording in the collective agreement itself (not the UCOR), and by the uses to which the equipment is put.

The locomotive crane was self-propelled on-track equipment in service for which it was designed (i.e., track maintenance). The provisions of Article 212 (b) are very specific and unambiguous and the Article speaks for itself, “a Conductor Pilot was to be provided”. That is what the Company did.

In the result, the grievance is dismissed.

It is so awarded.

Dated at Vancouver, British Columbia this 29^th day of September, 1989.

Vincent L. Ready