IN THE MATTER OF AN ARBITRATION

BETWEEN:

B.C. RAIL LTD.

AND:

THE UNITED TRANSPORTATION UNION

LOCALS NOS. 1778 & 1923

A W A R D

ARBITRATOR: Denis T. LaCharite

FOR THE COMPANY: R. Leche

FOR THE UNION: D. Pidgeon

DATE OF HEARING: February 21, 1991

PLACE OF HEARING: B.C. International Commercial

Arbitration Centre Vancouver, B.C.

DATE OF AWARD: April 12, 1991

The parties are agreed I am properly constituted under the Collective

Agreement.

The issue is captured in the following question:

"Can an unassigned crew called for work train service be tied up at

an intermediate point?"

What prompted this question is the subject of an actual grievance.

An unassigned crew was called out of its' home terminal, North

Vancouver, for work train service North.

The Company subsequently tied up the crew at an intermediate point

rather than returning them to the home terminal, North Vancouver.

As I read the Union position through the evidence of Mr. Clyde

Mulhall, General Chairman, United Transportation Union, it is

simply this:

Unassigned crews can be called for a work train and be subject to

work train rules and conditions only if the work train has been

established by bulletin.

As he succinctly put it:

"Bulletined work train service can be tied up

anywhere. ...but the Company is now calling a crew

out of a pool freight service for a work train, it

could be one day, two days, four days and tie you

up at Pemberton. On work trains you take your own

grub for a long stay but on freight you just go out

for a |dayshot ... conditions of work trains can't

apply to road crews."

Clyde further testified the present issue never arose until 1988 or

1989, previous to this the Company would call the freight train crew,

put them in work service and then tie them up at the home terminal

and return the|m to freight service. if this did not occur the crew

would stay on pay at an intermediate point.

The Company stance is it has the right to call a work crew from the

unassigned list from an established home terminal without a bulletin

in effect. Mr. D. John Forsyth, Operations Manager, buttressed this

position from his experience. He was involved as Assistant

Divisional Engineer overseeing the Maintenance of Way Operations for

Fort St. John, Prince George, Ft. Nelson and branch lines during

the 1970's and became the Track Maintenance Engineer in 1982 from

Prince George to North Vancouver. He testified unassigned crews

were called for work train service if necessary for one or two days,

if the work was to extend beyond this period then the job would be

put up for bid and assigned. As a corollary to this he testified

these unassigned crews run through terminals in the same manner as

established work trains. Examples included the pickup of gravel at

Teko, south of Fort St. John and the dumping of these gravel cars

north of Fort St. John. these crews were not tied up at Fort St.

John, the terminal, because of movements through the terminal. Three

subdivisions, Ft. St. John, Dawson Creek and |Chetwynd, underwent

similar movements as the unassigned crews on a work train would pick

up and dump gravel.

This was in response to Mr. Clyde Mulhall|'s example that if an

unassigned crew was called at 6:00 a.m. in work service to go out

to Porteau to dump gravel and were required to return several times

to North Vancouver to reload what would result, after the first

return into North Vancouver there would be at) automatic tie-up.

Both parties referred to a Letter of Understanding dated January 22,

1990 regarding movie trains to reinforce their individual

contentions. Clyde stated the agreement was created because movie

trains are in reality nothing but work trains and the company was

tying up the unassigned crews at intermediate points. The |Coinpany

agrees that work train service under Article 212 and the |inovie

trains are similar and that was the purpose of the understanding, to

identify them as such and be directed accordingly. Even though movie

trains are not really work trains they did come closer to that

definition.

Mr. Frank Osheffski, Supervisor, Crew Administration, was directly

involved as crew dispatcher. His evidence was,

"We called unassigned crews for work train service

when the job only lasted for a day or a couple of

days, if longer then we would bulletin the

assignment, it has always been this way. These

unassigned crews have been layed up at intermediate

points at least for the past ten years and when

these crews were tied up at intermediate points

they were never paid for this time."

He also testified unassigned crews on work trains in these situations

run in and out of terminals.

Counsel for the Railway in Exhibit 2 introduced a copy of Article

212(a) from the 1980 Collective Agreement, Article 212(a) from the

1981 Collective Agreement and the existing Article 212(a) from the

1990 Collective Agreement. Also included was a copy of a signed off

Bargaining Proposal dated August 28, 1981 re Article 212(a)(iv).

The language referred to is as follows:

1980:

"Road crews will handle work train service in

terminals where no |spareboard is maintained and

will be paid road rates and under road work train

conditions, except that, for work trains employed

wholly within |Squamish yard, in any normal day,

the yard rate will apply."

1981:

"Road crews called for work service will be paid

under assigned work train rates and conditions."

1990:

The language remains unchanged.

The signed off Bargaining Proposal executed by the parties is

explicit in its instruction.

"Delete the third paragraph of Clause |(a)(iv)

Article 212 and replace with 'road crews called for

work service will be paid under assigned |worktrain

rates and conditions."'

The Railway is convinced this sanctions its actions in this issue.

Mr. Clyde Mulhall has a different opinion of its effect which he

gave by an example:

"Now, if going Northbound on a freight, stopped and

put into work service, it is just stopping

temporarily to do some work service but (the crew)

continues to be in freight service."

The Union places emphasis on language in a number of articles to

fortify this and says there is a very clear understanding in the

Collective Agreement what is meant |bY assigned and unassigned and

this should be determinative of the case. All of the apposite

Articles should fit.

The following Articles were referred to:

Article 127

Assigned Road Service

Article 209

Unassigned Service Terminals

Article 212

Work Train Service & Self-Propelled Equipment

Article 301

Preference of Work and Promotion

The significance of these Articles is that crews are assigned or

working in an assigned category. Therefore all of the jobs have to

be bulletined. If otherwise the Railway could haul you off under

unbulletined work service at will. It is pointed out there is no

foundation for a two-day rule that would allow unbulletined work

service for this period of time. In effect people bid to work the

unassigned category and they bid to be on a work train. In support

my attention is directed to Article 301 which applies to jobs, not

assignments.

This logic means all jobs must be bulletined. If otherwise Article

212(a)(viii) does not apply to unassigned crews called for work

service under Article 212(a)(iv).

The Railway acknowledges the Union's averment that the Company

interpretation means there is no requirement to immediately bulletin

a new assignment for work service. The Union is correct there is no

language asserting there is a two or three day period of grace before

a bulletin is published.

Counsel for the Railway adopts the management's rights legal

principle that conditions must be stated in the Collective

Agree|ment. These conditions must be obtained at the negotiating

table. The existing Collective Agreement is silent as to the

necessity and/or tuning of publication of bulletins and as to when

and how the Railway calls an unassigned crew in the existing

circumstances.

He reinforces the Railway position with the observation that Article

117 and Article 128(a) shows no distinction between assigned and

unassigned crews. Reference is also made to Article 102 and its

governing of construction trains service. The focal point here is

that crews may be laid up at intermediate points.

In reply Counsel for the Union directs attention to the Railway's

central reasoning: in order to apply 212(a)(viii) the Railway must

have the portal of 212(a)(iv) and this is not possible because of the

structure of the sentence itself.

"Road crews called for work service will be paid

under assigned work train rates and conditions."

The Union stresses the underlined words as being the rationale behind

its purpose, no more than a pay instruction.

The Railway's interpretation of such Articles as 117, that there is

no distinction between assigned and unassigned crews, must fail

because of the specific use of the word "crew" throughout thus

serving a variant design. In contrast to this is the very tight

language in Article 212 which comprehensively commands a very

distinct service.

The essence of this issue lies in the language of Article 212(a)(iv)

and (viii) and the evidence surrounding that language.

Article 209 lays down the ground rules for unassigned service

terminals and general rules how unassigned crews will operate out of

those terminals.

Article 127 governs how Assigned Road Service must operate.

Article 301 dictates how the position in assigned service will be

filled. There are two mechanisms.

Article 301(a):

"all positions in assigned service will be

advertised to take effect at each change of time

table."

Normally this occurs twice a year and provision is made if this does

not occur.

Article 301(b):

"New jobs created and permanent vacancies, in

passenger, mixed, |wayfreight, switcher and work

train service will be advertised for six (6) days

to the system."

This covers the creation of any new jobs between time card changes in

the delineated categories of assigned train operations.

The operation of freight trains can fall under assigned or unassigned

service.

Unassigned crews operate as a fixed pool crew for pool freight

service as well as covering assigned work in passenger, way freight,

mixed trains, way freights, switchers and work train service (and

assigned freight service if such has been designated).

Article 302 Unassigned Service covers the origination of positions to

pool service itself (as well as the exercise of seniority into a

permanent vacancy).

There are also spareboards which are subordinate to unassigned

service.

The Union quarrels with none of this. Unassigned crews take on,

generally speaking, the coloration of the service performed. The

"fly in the ointment" is the use of the pool crew in work train

service that has not been established by bulletin. The Union stated

the pool crew can be utilized for the work train service

contemplated, and in fact implemented by the Railway, but must return

the pool crew to their home terminal or they must stay on continuous

pay until that return.

The Union argument is a logical one. The Articles referred to

collectively support the position that trainmen are either in

assigned service, designated at change of time card, or by bulletin

or in unassigned service covering freight pool service and assigned

jobs when necessary. The Union says a crew cannot be in limbo, its

work must fall within the ambit of pool freight service or be

under the rules of an established assignment.

But there are factors that militate against this interpretation in

the category of work train service.

The oral historical evidence shows the parties agree work trains were

called out prior to the establishment of an assignment.

The railway takes this back ten years. The Union agrees that

previous to 1988 or 1989 this occurred but the Railway honoured the

existing union position - home terminal tie- up or continuous pay.

Mr. Clyde Mulhall noted that prior to 1980 if there was a spareboard

in the terminal a spareboard man would be called for the work

train, if no spareboard then an unassigned man could be called. The

language of the 1980 Agreement is in accord.

"Road crews will handle work train service in

terminals where no spareboard is maintained and

There is no doubt this reflects a different set of rules for road

crews engaged in work train service than for crews in assigned work

service. They are to be paid on a different basis and operate under

Although there is no evidence what road rates and road work train

conditions prevailed in 1980 one can surmise home terminal tie-up or

continuous pay was a keynote of this clause.

The focus then must turn to the existing language as a result of the

parties' agreement on May 24, 1981. That document reads:

"Delete the third paragraph of Clause (a)(iv)

Article 212 and replace with 'Road crews called for

work service will be paid under assigned work train

rates and conditions."'

What is the effect of this on road crews?

The qualification of an existing spareboard has been removed. The

former clause explicitly kept these subjects outside of the

confines of Article 212.

I have reflected on the Union's assertion that the wording change now

has the result of adhering the word |.co|nditions' to 'work train

rates' for the purpose of a pay direction only. Without the alchemy

of specific evidence |I am compelled to reject that argument. On the

plain reading of the phrase, coupled with it's former history, the

rates of pay and conditions must |reniain separate and distinct.

Road crews, under the existing clause are governed by Article 212.

The question "can an unassigned crew called for work train service be

tied up at an intermediate point" is answered in the affirmative.

Denis T. LaCharite - Arbitrator