AD HOC – 283
IN THE MATTER OF AN ARBITRATION
BC RAIL LIMITED
TRANSPORTATION COMMUNICATIONS INTERNATIONAL SYSTEM BOARD 496, LODGE 1828
Article 21.8 Grievance
SOLE ARBITRATOR: Vincent L. Ready
There appeared on behalf of the Company:
Jim Dorsey –
And on behalf of the Union:
David Pidgeon –
A hearing in this matter was held at Vancouver, B.C., October 29, 1990.
The parties agreed I was properly constituted as an arbitrator under their Collective Agreement with jurisdiction to hear and determine the issues in dispute.
This issue arose as a result of the Company’s introduction of a new system of train control in May, 1990. Coincidental with the introduction of Time Table 23, the company introduced the Computerized Manual Block System (CMBS) for the entirety of the Railway. Prior to this date the Railway utilized two systems of train control:
- Train Order system south of Prince George
- Manual Block system north of Prince George.
The introduction of CMBS was a technological change which had a number of adverse effects on the membership of the Union including the abolishment of nine operators’ positions. The Union was provided with a notice of technological change pursuant to Article VIII of the Job Security Agreement (JSA), an Agreement that is part of the Collective Agreement.
The introduction of CMBS along with the introduction of a new upgraded radio dispatch system and a new FAX system led to a number of disputes between the parties. A hearing was held before Arbitrator Allan Hope to determine whether the Company had breached the technological change provisions of the JSA with regard to the initiation of the above changes., Arbitrator Hope concluded that jurisdiction over such issues properly belonged in front of a referee under the JSA.
In a subsequent hearing, Allan Hope, sitting as a referee under the JSA, addressed the issues in dispute between the parties. The Union sought as relief a declaration from referee Hope to postpone or reverse the implementation of the changes and therefore the effect of the changes (the abolishment of nine operators’ positions). I note the following from page 9 of Re BC Rail and Transportation Communication International, System Board 496, Lodge 1828, unreported, September 27, 1990 (Hope):
What the Union does not have on the language of the JSA is a right to prevent the Railway from introducing the changes, either before they have been introduced or by way of compelling the Railway to reverse changes that have been implemented. In particular, Article 8 (b) of the JSA contains the following limitation on the Union and a referee appointed under the JSA:
The matters to be decided by the referee shall not include any question as to the right of the company to make the change, which right the Unions acknowledge …
It is my view that the declaration sought by the Union is not in accord with its negotiated rights.
In this dispute, the Union seeks to raise Article 21.8 of the Collective Agreement as a bar to the Company’s abolishment of operators’ Positions as the result of the implementation of the aforementioned technological changes. Article 21.8 of the Collective Agreement reads as follows:
Train dispatchers will not be required to do clerical work that will interfere with the proper handling of their trains or telegraph duties, nor will they be required to issue a train order to any person other than an authorized telegrapher, except in cases of emergency.
One of the main features of the CMBS system implemented by the Railway is the issuance of train movement authorities directly to train crews rather than to operators.
The Union argues that Article 21.8 is a jurisdictional or manning clause requiring that train dispatchers are limited to issuing train orders to authorized telegraphers. (The term telegraphers is defined in Article I of the Collective Agreement to include the classification of, amongst others, operators) . The Union further argues that the term "train order" is a generic term which should be broadly interpreted to include any form of train movement authority issued by a train dispatcher. The Union led evidence at the hearing on the historical application of Article 21.8 and argues that this Article does in effect preclude the Company from introducing a train dispatch system which results in issuing train movement authorities directly to train and engine crews. The Union further argues that if the Company wishes to introduce such a system, compensation for its introduction must be negotiated with the Union (as the Union argues was the case with respect to CN and CP Rail). The Union seeks a declaration that would require the Railway to reinstate operators’ positions wherever they existed before the introduction of the CMBS system.
The Company argues that the term "train order" in Article 21.8 has a very technical and special meaning, one which has no relevance within the framework of the CMBS system of train movement authorities now in use on the Railway. The Railway argued that Article 21.8 contains contract language which time had passed by and made redundant. The Company also pointed to Article 21.12 of the Collective Agreement which reads as follows;
Nothing in this Article will relieve telegraphers from their responsibilities under the Operating Rules.The Company argues that even if the term "train order" in Article 21.8 is given broad generic meaning to encompass the CMBS system, in any event Article 21.12 recognizes that the requirements of the Operating Rules (which themselves recognize the issuance of train movement authorities directly to train and engine crews) take precedence over any possible restriction imposed by Article 21.8.
In the alternative, the Company argues that even if I find the term "train order" to have broad application to all forms of train movement authorities including CMBS, I have no jurisdiction as an arbitrator to proceed further. The Company argues that the abolishment of the operators’ jobs is just another consequential change of the introduction of the CMBS system and should therefore be heard by a referee under the JSA. The Company argues that the |relief sought by the Union in this dispute (the reinstatement of operators’ positions) would fly in the face of referee Hope’s conclusion that the Company was entitled to make such changes subject to the requirements and dispute resolution features of Article VIII of the JSA. The Company argues that the Union is attempting to use Article 21.8 to prevent changes that the JSA specifically enables the Company to make.I have considered all of the evidence and I am unable to conclude that the term "train order" as used in Article 21.8 should be given broad generic meaning to include all forms of train movement authorities as urged by the Union. The term "train order" does not mean all forms of train movement authorities and refers only to "train orders" in the context of a train order system of train control. The term "train order" is not a feature of the CMBS system of train control and it would require a very liberal application of the rules of Collective Agreement application to tie the specific limitations on the issuance of "train orders" under Article 21.8 to the CMBS system. That is too long a bow to draw based on the evidence and testimony presented at the hearing.
Furthermore, I conclude that Article 21.12 of the Collective Agreement (an Article not contained in the agreements on CN and CP Rail) would negate the possible effect of the other clauses in that Article where a dispatcher’s responsibilities under the Operating Rules are in conflict with Article 21. The Operating Rules specifically recognize the responsibility to issue train movement authorities under the CMBS system to either operators or directly to train and engine crews. In accordance with Article 21.12, these requirements are not in conflict with the Collective Agreement.
In the result, the grievance is dismissed.
It is so awarded.
DATED AT Vancouver, British Columbia this 21st day of December, 1990.(signed) VINCENT L. READY