BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

B. P. Scott – Labour Relations Officer, Montreal

R. A. Colquhoun – Manager, Labour Relations, Montreal

P. J. Thivierge – Manager, Labour Relations, VIA Rail

And on behalf of the Union:

Bart Marcolini – Vice President

Robert Moores – Trainman

A hearing in this matter was held in Montreal on September 10, 1990.

The following is the Joint statement of issue and dispute tabled by the parties at the hearing:

The sole issue before the Arbitrator is whether the elimination of the baggageman’s position on VIA trains 9 and 10 required a notice pursuant to Article J.1 of the VIA Special Agreement. While the communication between the parties during the course of the grievance procedure appears to have further touched on the issue of whether the abolition of the position constituted a material change for the purposes of article 45 of their collective agreement, it is common ground that that issue is not before me in the instant dispute.

The facts are not in contention. The baggageman’s position on VIA trains 9 & 10, previously serviced by Trainman R.W. Moores, an employee of CP Rail, was abolished by VIA Rail Canada Inc. effective April 30, 1989. That change was made well in advance of the more recent changes in railway passenger service introduced effective January 15, 1990 pursuant to federal government initiatives announced on October 15, 1989. The uncontradicted representation before the Arbitrator is that although the baggage car service had operated for some time on the Toronto to Sudbury route, it was not specifically noted to the attention of passengers on VIA’s own timetable. On behalf of VIA Rail Canada Inc., Mr. Thivierge relates that it was decided that since the nature of the baggage car service was not widely known VIA Rail decided it could operate more efficiently by substituting a sealed baggage car, without a baggageman on duty, between Toronto and Sudbury.

The thrust of the Union’s position is that the decision taken by VIA Rail was in fact prompted by ongoing pressure from the Government of Canada on VIA Rail to reduce operating expenses. It is no doubt true that as a Crown Corporation VIA Rail Canada Inc. is under ongoing scrutiny by the Government of Canada in relation to its expenditures. However, there is no direct evidence before the Arbitrator of any instruction or directive, whether formal or informal, from any governmental authority in respect of the decision of VIA Rail Canada Inc. to operate a scaled baggage car between Toronto and Sudbury on VIA trains 9 and 10, resulting in the elimination of a baggageman’s position.

The VIA Special Agreement, and in particular the issue of whether notices are owing under Article J of that agreement, has been the subject of much arbitral consideration. Article J.1 of the Special Agreement provides as follows:

According to amendments made on July 21, 1988 the definition of "changes" appearing in the Railway Passenger Services Adjustment Assistance Regulations SOR/88- 401 was altered to read as follows:

Subparagraph (a) in the foregoing definition refers to those administrative acts arising from the transfer of railway passenger service from CP Rail Limited and CN into the hands of VIA Rail Canada Inc. Subparagraph (b) plainly relates to the elimination of a railway passenger service. When either of these events have an adverse impact on employees they are entitled to the protections and benefits provided in the VIA Special Agreement.

The foregoing provisions have been the subject of much arbitral consideration over the years. The theme which generally runs through the prior awards is that to qualify for the application of the Special Agreement changes having adverse effects on employees must, in some measure, relate to the reorganization of passenger services in Canada as contemplated in the Railway Passenger Services Adjustment Assistance Regulations. This view was reflected in the decision of Arbitrator Weatherill in an unreported arbitration award dated February 8, 1982 between Canadian Pacific Limited and the United Transportation Union regarding changes affecting certain passenger crews in Medicine Hat. In allowing the grievance in that case Arbitrator Weatherill made the following observations:

As a first question, can it be said that the decision of VIA Rail Canada Inc. to eliminate the baggageman’s position on VIA trains 9 and 10 between Toronto and Sudbury is in accordance with the governmental initiatives giving rise to the Railway Passenger Services Adjustment Assistance Regulations. The answer to that question must, I think, be negative. It is plainly within the prerogative of VIA Rail Canada Inc. to make changes, of its own initiative, respecting the quality and nature of its services to the public. It might, by way of example, decide to eliminate sleeping car service on a given train, or eliminate a dining car. These decisions, which may be taken for reasons of business efficiency and profitability may inevitably have negative impacts on the job security of employees. They do not, however, fall under the more narrow rubric of changes occurring as a result of the Implementation of Railway Passenger Services Adjustment Assistance Regulations relating to the process of rationalization of passenger rail service commencing in 1977. The Medicine Hat decision, coming as it did in 1982, may be seen as reflecting the Arbitrator’s view that the changes in passenger service then before him might fairly be viewed as being "in accordance with" government initiatives which were still ongoing at that time. It does not follow that every internal management decision of VIA Rail Canada Inc. which may negatively impact the job security of employees must necessarily be so viewed.

The second question becomes whether the changes which are the subject of this grievance involve the discontinuance of a railway passenger service within the meaning of subparagraph (b) of the definition of "changes" as defined in the Railway Passenger Services Adjustment Assistance Regulations. Again, the reply must be in the negative. Notwithstanding later events, the elimination of the baggageman’s position by sealing the baggage car on VIA trains 9 & 10 between Toronto and Sudbury did not involve what can be reasonably described as the discontinuance of a railway passenger service as contemplated by the regulations. As noted above, what transpired was the implementation of an internal management decision as to the scope of a continuing passenger service, and not the discontinuance of any service as such. In the Medicine Hat case the arbitrator was able to conclude that there was a change in passenger service as new runs were effectively introduced with changes in departure and arrival times. In the instant case, there is, in the Arbitrator’s view, no substantial change in passenger service in any comparable sense. Passengers travelling from Toronto to Sudbury and return continue to have the same capacity to utilize the baggage car as they previously did. The fact that the car is sealed, and may not be accessible to passengers embarking or disembarking at intermediate stops is not, in my view, so substantial a change in the nature of the Company’s operation as to constitute the discontinuance of a railway passenger service as that concept is intended to be defined in subparagraph (b) of the Railway Passenger Service Adjustment System Regulations SOR/88-401, as amended on July 21, 1988. In the Arbitrator’s view the alteration of the nature of passenger baggage services does not, of itself, constitute the discontinuance of a railway passenger service.

In the Arbitrator’s view the instant case can be distinguished from the grievance which was the subject of this Arbitrator’s award in a dispute between the Canadian National Railway Company, VIA Rail Canada Inc. and the United Transportation Union concerning the application of Article ‘J’ to changes in railliner service between Montreal and Sherbrooke (Award dated March 13, 1989). In that case the Arbitrator noted that while the language of the regulations would, on their face, have supported the position of the Company, the past practice of the parties revealed that in at least two instances the predecessor employer, CN, had previously treated changes involving railliner service as changes within the meaning of Article ‘J’ of the Special Agreement. There is no such practice pleaded before me in the instant case, and no persuasive reason to apply the authority of the Sherbrooke railliner decision to the facts of the instant case.

For the foregoing reasons the grievance must be dismissed.

DATED at Toronto this 17th day of September, 1990.