BETWEEN:

(the "Company")

AND

(the "Brotherhood")

AND

(the "Intervenor")

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

J. Luciani – Counsel

M. Delgreco – Director, Labour Relations

And on behalf of the Brotherhood:

J. Shields – Counsel

S. Warner – Canadian Director

G. Hanesworth – General Chairman

D. Kipp – General Chairman

And on behalf of the Intervenor:

Harold F. Caley – Counsel

John W. Armstrong – General Chairperson

A hearing in this matter was held in Toronto on July 23, 1990.

At the hearing the parties filed the following Statement of Dispute and Joint Statement of Issue:

The facts giving rise to the dispute are not in contention. On September 22, 1989 the Company gave notice to the Brotherhood, under article 89 of collective agreement 1.2, of its intention to introduce remote control locomotives at Symington Hump Yard in Winnipeg, Manitoba. This constitutes a material change which would result in the abolishment of seven locomotive engineers’ positions. As a result the parties became involved in the procedures established under article 89 of the collective agreement whereby they are called upon initially to negotiate, and failing agreement to arbitrate, measures to minimize the effects of the material changes on locomotive engineers who are adversely affected by them. Subject to a preliminary objection taken by the Brotherhood, this matter has progressed to arbitration before me for a decision on its merits.

The preliminary position taken by the Brotherhood is that this matter should be adjourned and referred by the Arbitrator to the Canada Labour Relations Board pursuant to the provisions of section 65 of the Canada Labour Code, R.S.C. 1970, c.L-l, as amended, which provides as follows:

It is common ground that the material change that gives rise to this application involves the implementation of automated locomotives in the Symington Hump Yard. A single individual, standing on the ground in the yard, equipped with a remote control "beltpack" will control the movements of the yard locomotive, previously operated by a locomotive engineer, as well as fulfill certain functions previously assigned to the yard foreman or a yard helper, who are employees represented by the United Transportation Union. In essence, one individual will perform functions which previously belonged to both locomotive engineers and yardmen. The position of the Brotherhood is that the work of the newly created position falls under the certificate which was originally issued in March of 1946 by the Wartime Labour Relations Board, by virtue of which it is the exclusive bargaining agent for "… locomotive engineers handling steam or other classes of motive power." The initial position of the Brotherhood, therefore, is that before any determination is made with respect to adverse impacts and the mitigating conditions to be determined under article 89 of the collective agreement, a determination should be made by the Canada Labour Relations Board with respect to whether the newly established position falls within the bargaining unit of the locomotive engineers.

After hearing extensive submissions from the parties at the hearing I declined the Brotherhood’s request to adjourn the article 89 application for referral of this matter to the Canada Labour Relations Board by the Arbitrator under the terms of section 65 of the Canada Labour Code. Upon close consideration of the issues involved, I am persuaded that the right of the Company to institute the material change of which it has given notice, and the concomitant right of the employees affected to receive the benefits of article 89 of the collective agreement, respecting minimizing of the impact of those changes upon them, can be entirely dealt with. It stands independently of the ultimate issue of which of the two bargaining agents has the best claim to the work of the newly established position. However that issue is resolved, it is common ground that seven locomotive engineers’ positions are abolished by the introduction of automated locomotive control equipment in the Symington Hump Yard.

Whether the newly established position of the person operating the beltpack falls within or without the Brotherhood’s bargaining unit is immaterial for the purposes of assessing the adverse impacts on the employees concerned. Firstly, as junior locomotive engineers at that location they retain the fullest rights to exercise their residual seniority in the United Transportation Union’s bargaining unit of trainmen and yardmen. In that sense they retain full access to the newly established position, whichever bargaining unit it may ultimately be determined to fall in. The rights of the employees involved, as well as those of the Brotherhood, remain fully preserved notwithstanding the hearing and disposition of the article 89 application by this Arbitrator. It must be emphasized that no one challenges the right of the Company to implement automated operations. It seems to me that it should not be prejudiced in its right to do so by undue delay in respect of the resolution of jurisdictional claims to the newly established position. Bearing in mind that article 89 contemplates that a material change is not to be implemented until its procedures have been exhausted, should the Brotherhood’s position obtain the Company might be held up indefinitely, being unable to introduce this productivity innovation of some importance, while the issue of competing bargaining rights is being litigated over an undetermined period of time. I can see no reason in policy or in law to subject the Company to that prejudice in the circumstances of this case.

The rights of the Brotherhood, insofar as they relate to its claim that the work of the newly established position of the employee who operates the beltpack remain fully intact. It retains the right to file a grievance at such time as the newly established position is instituted, should be Company fail to treat that position as one failing within its bargaining unit. That matter may duly be processed before the Canadian Railway Office of Arbitration and be disposed of upon its merits. Moreover, the Brotherhood may then wish to make such submissions as it deems appropriate with respect to the jurisdiction of the Canada Labour Relations Board and the advisability of a reference by the Arbitrator to that Board under section 65 of the Canada Labour Code. In other words, given that the creation of the new position and the abolition of the seven locomotive engineers’ positions are inevitable, and the jurisdictional claim of the Brotherhood of Locomotive Engineers remains fully protected insofar as any alleged violation of their collective agreement can be fully grieved, there is no reason in these circumstances to adjourn this article 89 application, and to refer the dispute at this time to the Canada Labour Relations Board. As noted, the Brotherhood retains the fullest ability to protect its claim to the work of the newly established position whenever it matures into reality. Needless to say the Arbitrator understands the concerns of the Brotherhood, and appreciates the importance of any trade union having access to an adjudicated resolution of a dispute of that order.

Following the above ruling the parties negotiated an agreement by way of resolution of the merits of the article 89 application. They requested that the Arbitrator adopt their agreement as the final and binding award in this matter. The Arbitrator therefore finds and declares that the agreement attached hereto as Appendix ‘A’ and the letter of the Company addressed to Mr. S. Warner, signed by Mr. F.D. Campbell, Vice President, and attached as Appendix ‘B’ constitute the terms of settlement which are adopted as the terms of the Arbitrator’s Award for the purposes of article 89 of the collective agreement. I continue to retain jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this Award.

DATED AT TORONTO, this 27th day of July, 1990.

NOTE: DOCUMENT REFERRED TO AS APPENDIX "A" RETAINED BY THE PARTIES