AH 286
UNITED TRANSPORTATION UNION
AND
BC RAIL
The parties are agreed I am properly constituted under Article 104 of the Collective Agreement. The issue arises out of the language of Article 132.
Article 132(1)(a) states:
The Railway will not initiate any material change in working conditions which will have materially adverse effects on employee(s) without giving as much advance notice as possible to the General Chairman concerned, along with a full description thereof and with appropriate details as to the contemplated effects upon employees concerned. No material change will be made until agreement is reached or a decision has been rendered in accordance with the provisions of Section 1 of this Article.
Counsel for the Union submits unilateral implementation by the Railway of the Computer Assisted Manual Block System on May 13, 1990, trigger the requirements of Article 132(1)(a). Therefore, there are two questions inherent in the issue:
1. Has there been any material change in working conditions,
2. which will have materially adverse effects on employees?
Counsel for the Railway agrees with this sequence, but is adamant no material change occurred that gives rise to any materially adverse effects on employees and the Union must satisfy the first question before it undertakes to satisfy the second question.
The Computer Assisted Manual Block System (CAMBS) is a replacement of two systems that governed the movement of trains over B.C. Rail lines.
The two systems found their authority under the Uniform Code of Operating Rules.
From North Vancouver to Prince George, trains were directed under Rules for Movement by Train Order, from Prince George North under Manual Block System Rules.
The train dispatchers are responsible for instructions for all train movements. They are located in North Vancouver.
An integral component of both systems was, and is, the British Columbia Railway Radio Communication System. This is a point-to-point microwave system permitting transmission of information between all parties directly involved in the movement of trains.
The radio system was utilized as an adjunct to train order rules, train orders being issued by a dispatcher but relayed by operators at various stations to direct train crews from terminal to terminal. In Manual Block Territory, the Radio system was the source of communication for train control.
The Computer Assisted Manual Block System (CAMBS) is self-explanatory. It is an adoption of the previous Manual Block System over all of the B.C. Rail lines with the incorporation of computer technological advantages in conjunction with the radio system. As the previous two systems, it is a dispatch system operated by the dispatchers controlling the movement of trains. Of significance is the safety feature which eradicated the possibility of the issuance of conflicting instructions between trains. It will only allow train authority to be given to the point of conflict.
After December 9, 1990, there was a further change initiated by the Railway. The Uniform Code of Operating Rules was replaced by the Canadian Rail Operating Rules (CROR) under Certificate No. 5555 under the Authority of the Railway Act of British Columbia. The authority for CAMBS now finds its roots in these rules.
The Union provided witnesses who had worked under Train Order Rules and in Manual Block Territory.
Their testimony was directed to changes in working conditions after the implementation of CAMBS.
Mr. Brian Gleason, Chairman of Local 1778, a veteran trainman with ten years’ service, noted the differences from North Vancouver to Lillooet, both on freight and passenger service.
Mr. Don McGregor, an employee in train service since January 21, 1966, commenced on the coal train service from Prince George to Tumbler Ridge and on passenger train changes from Lillooet to Prince George.
Mr. Kim Goforth, a trainman and conductor out of Williams Lake since 1972 and a terminal representative, gave his experiences from Williams Lake to Prince George.
Mr. Tom Bruvall, an experienced trainman since 1970, resides in Squamish. He is the local safety representative at that location. His testimony centred around work trains, before and after CAMBS. He also worked the Squamish Switcher, from Squamish to North Vancouver.
Mr. Reginald Duffin, with twenty-five years’ service out of Lillooet, gave his experience on the Lillooet subdivision.
Mr. Bruce Broadfoot, in service since 1965, has worked the coal route since 1985 encompassing runs on the Tumbler subdivision and into Prince George.
Mr. Eric Hugh, trainman since 1973, has experience in the Prince George Yard and knowledge of the Mackenzie Switcher before and after CAMBS.
Mr. Timothy Dennis Jantzen, a fourteen-year man, spoke about an individual difficult passenger trip on October 31, 1990, due to unforeseen circumstances on the Lillooet sub. The radio system and computer were down. His position was that, under T.O., service disruption would have been minimal, under CAMBS time consuming, stressful, and difficult.
Mr. Clyde Mulhall, General Chairman, U.T.U., recounted his view of the shift in responsibility on work trains - train crews now have to contact the work gangs; formerly, it was their duty to perform this function. This has removed security for train crews; now, if a work gang comes into the train’s area, the crew must protect against them.
Mr. Eric Williams, Chairman, Local 1923, Prince George, outlined the changes in yard service. Under T.O. rules, a yard crew within yard limits only had to clear 1st and 2nd class trains. Now, once outside the new cautionary limits, protection is needed from the dispatcher.
In his view also, the radio system is inadequate for the Prince George area as it is necessary to switch from channel to channel to perform the required work. It also requires him to pack a radio, not necessary before the new system.
Mr. Keith John Taylor, a B.C. Rail employee since 1973, and a Dispatcher (Rail Traffic Controller) since 1984.
His testimony was as to the post-CAMBS changes viewed from the RTC office and its effect on train crews.
Mr. Robert Sharpe, past Chairman of Local 1778, spoke about a possible disciplinary matter due to a train delay under CAMBS. He agreed in cross-examination that an investigation would as well have occurred under TO rules if a train delay was involved.
Under Train Order Rules, the procedure would be to pick up a clearance and train orders at the initiating station, plus a train register document, the latter filled out by the conductor, the former prepared by an operator. The train register check served to confirm the arrival and departures of trains. Train Orders were issued by the dispatcher, relayed through an operator regarding the oncoming trip from terminal to terminal. Included in train orders were “work orders” indicating work gang track areas as well as any necessary slow order mileage locations.
As a trip progressed, further clearances and train orders could be obtained, again issued by the dispatcher and relayed by an operator located at a station on the line. Orders could also be given over the Radio Communication system directly from dispatcher to train crew.
This dispatching system worked in conjunction with a twice yearly issued Time Table, regulating movements of regular trains by schedules and direction, both indicating superiority of trains for the guidance of train crews failing specific instructions from the dispatcher. Special instructions permitted by the UCOR (now by the CROR) are also located in the Time Table allowing the Railway to put into effect procedures for train operations.
On May 13, 1990, CAMBS replaced the Train Order System. Document changes now included Manual Block Clearances and General Bulletin Orders to give direction to train crews from terminal to terminal or work train instructions, if such was the case. Track occupancy limits could be issued to track work gangs. These are called Track Occupancy Permits (TOP’s).
The operational changes now mean more frequent communication between dispatcher and train crews as it is necessary to issue shorter blocks (train authority limits). This is now done in direct communication between the R.T.C. and train crews. This is in order to safely traverse through work gang mileage limits and facilitate train meets.
The Manual Block System in place North of Prince George became identical with the dispatch system South on May 9, 1990. As the basic foundation for CAMBS was in place prior to this date, the change can be more accurately described as a modification rather than a replacement.
All of the system now operates under the same rules and procedures.
The testimony of the trainmen and conductors show they are troubled by the changes in procedures and what they entail. A distillation of their evidence included:
Operators are no longer available; thus, more time is spent in copying orders enroute, on work trains as well, as formerly operators could be located with the work train.
Work limits can now comprise a more complex operation, crews at times finding it necessary to contact up to three separate work foremen twice as trains clear through the work limits.
Passenger train conductors may now be more heavily involved in physical sales of train tickets, increased paper work due to overlapping limits, for train authority, work limits, train meet changes, and the concomitant necessity for increased contact with the dispatcher via the radio system.
The witnesses indicate that, under the Train Order Rules, much of the trip was preplanned and most of this information was available in train orders.
Now, the whole system demands more train clearances for all trains between terminals as shorter train order blocks are necessitated by CAMBS to arrange train meets and to accommodate work gangs who have been issued Temporary Occupancy Permits (TOP). A number of witnesses commented on the increased stress factor, Mr. Goforth, in fact, declining to bid a particular job to avoid this situation.
The Railway position was given through the testimony of Mr. John Forsyth, an Operations Manager, Mr. David Klitch, Traffic Control Supervisor, and Mr. Donald E. Cruickshank, Rules Instructor.
Mr. Forsyth gave the historical background to CAMBS. Its genesis was the Manual Block System which began in the mid-1950’s North of Prince George during the construction era.
A train was given sole authority to a piece of track until the train returned it to the dispatcher. Developmental changes saw more trains operating within a given area, the radio system permitting instructions to be confirmed through the crews and the dispatcher.
By 1985, MBS had expanded to all of the areas North of Prince George including Fort St. James and Chetwynd. A train continued to maintain exclusive right to a piece of track; but, provisions were in place to run two trains in the same direction, arrange meets in the opposing direction, and accommodate work trains. Crews used the radio system, copying clearances, orders, and contacting work foremen to run through work limits.
He noted the two systems gave rise to a problem.
The work force is mobile over all of the railway and it was necessary to qualify personnel under both systems. Prior to May 1990, a number of people had not worked in Train Order Territory, probably up to four people were still restricted to MBS.
Of major concern was the lack of any “check and balance” in relation to instructions under the sole control of the train dispatcher. CAMBS was the culmination of several attempts to cure this problem.
He stated CAMBS was introduced in May 1990 in contemplation of the CROR CAMBS was purchased in order to operate a system to work within the rules.
“We put CAMBS in first as a phase in rather than one big change in December.”
He responded to the Union evidence regarding the increased difficulty with track gangs, particularly on the Squamish subdivision. The Railway was undergoing a capital works program here. Major work between May and September included rail changes, bank widening, culvert extensions, placement of retaining walls, replacing welded rails to Squamish, installation of 50,000 steel ties, and Jordan rails, ballasting, rail grindings, and use of surface equipment. The normal complement for maintenance would be in the range of 35 to 45 people. This program saw up to an additional 250 employees on the Squamish sub. This necessitated a large increase in additional track authorities to work gangs.
Under the Train Order Rules, a foreman could have a work order under Rule 42. Under the new system, a foreman could operate under Rule 42 or a TOP. Regardless of which system, a train would have to contact the foreman to clear through his limits.
Under the MBS North of Prince George, Mr. Forsyth saw little change. Conductors copied orders at Fort St. James, southbound out of Tumbler, and took orders on the road between Prince George and MacKenzie. They also copied their own clearances at Fort St. John and Fort Nelson. Now, on Northbound tumbler coal trains, CAMBS demands an additional clearance or two.
He saw the TOP’s as the chief cause of increased clearances. A clearance cannot be issued that will contain a TOP until the work foreman has the TOP issued to him. As an example, a train leaving North Vancouver cannot obtain a clearance if a foreman has not received an anticipated TOP. The sequence is to issue a short clearance to the train, then a TOP to the foreman, than another clearance to the train. He anticipates the Railway will be able to alleviate this situation. If the TOP is on the original clearance and the Railway can ensure the foreman obtains his TOP before the train arrives in his limits, this should reduce the clearances. This is in line with what he called following TOP’s. If a foreman needs a TOP and the train has passed his point, a TOP could be issued to him protecting from the train that passed - he could then follow behind. Again, this would mean less clearances for the trains.
At present, to satisfy the safety factor where train meets are involved, are extra clearances to create artificial work trains in order to allow a train to back out of the siding upon completion of a meet.
Clearances also at this time are the only method of cancellation of an existing clearance containing a TOP if the TOP is to be abolished.
A change implemented since the inception of CAMBS is from GBO’s to DOB’s (Daily Operating Bulletins). Mr. Forsyth sees this as beneficial as the DOB only entails one or two pages, a reduction and simplification from the former practice. Now, a crew reporting for duty acquire a DOB via fax, then contact the dispatcher to obtain the train clearance. The DOB has in one or two pages what could have been up to 10 pages formerly. Speed restrictions, for example, which could take up to eight train order pages (“flimsies”) are now placed on one page of the DOB.
He commented on the Union Members’ stress testimony:
“In all fairness, it is a different system, if you worked your whole career under one system you feel you been abandoned when the new system comes in - but once comfortable with it the stress level will drop off - now all is on one sheet of paper to go from point “A” to point “B”, there is a limited number of protections in one page. Under the old system (TO’s) you were dealing with 24 or 25 (pages) - had to be sure you didn’t miss anything. This system is simpler.”
Mr. Forsyth felt that, other than copying a few clearances, there was no change. The foremen still ride in the engine cab, talk to the same foremen for clearances, talk to the dispatcher, still use the radio, still set out and pick up cars. He feels there is no real change performing their duties, just different authority in order to do them.
The crews North of Prince George were already under the MBS, so there was only a small change, now a computerized system instead of a manual one.
Mr. David Klitch testified as to the insistence of the Ministry of Transportation to implement one dispatch system. The train dispatchers were inimical to the MBS South of Prince George because of the operation of passenger trains in this territory. A train order system North of Prince George would involve an increase in operators. Thus, the purchase and development of CAMBS.
As the CAMBS project manager, it was his job to ensure a smooth integration of the system in the dispatch office on May 13, 1990.
He also testified he has been on the road since, involved in discussion with the other employees at the Prince George meeting, riding trains, and talking to crews in an attempt to determine if there are any problems.
The crews related they were having difficulty with the amount of TOP’s because of the delays in contacting foremen.
The Ministry of Transportation had input here as they insisted on any work equipment that was not light duty would need protection. Light duty was defined as any equipment that could not be immediately lifted from the rails. Prior to this, these track forces were given only line-up protection.
Waiting times in sidings were also a complaint; but, with the recent radio modifications and their acceptance by employees, he felt crews could contact the dispatcher for any information.
Radio communication was probably increased, but writing duties remained equivalent. He conclusion was:
“I don’t believe CAMBS has any impact.”
Mr. Donald Cruickshank noted that all railways in Canada are under CROR. His involvement included assistance in training employees in Prince George. The Railway ran mandatory classes for CAMBS, they applied to all crews, and incorporated examinations and tests.
Three more instructors were provided: one in the dispatch office; one in North Vancouver; and, one in Williams Lake. Instructors road every train possible and talked to all maintenance crews to familiarize them with the new system.
His observation was that CAMBS was well received North of Prince George; on the South end, it was well received when they got the hang of it. He had no heavy complaints, no comments over stress, and no concerns expressed over safety.
In September 1990, in preparation for the introduction of the CROR, further training was instituted. As a strike was in progress, classes were begun with supervisors. This was eventually extended to the dispatchers (RTC’s) and the crews, if people didn’t show they were held out of service. This ended up with eleven out of service personnel, enginemen, and brakemen. There were two failures on the test.
He felt the impact of the CROR was light because of the introduction of CAMBS. A few things changed, DOB’s replace the GBO’s. The DOB could now be issued to a fax machine, the GBO was formerly given directly to the crew.
CROR did demand clearances be copied directly by the crews, regardless of whether an operator was still available - this applies to all railways.
He rode the trains for 10 days following the introduction of CROR and after the new year one instructor continued to ride the trains.
He received feedback on the CROR. Some older men were resisting change; but, North of Prince George, they were happy, as was the RTC office because they had been carrying the whole load and now had computer backup. He received complaints but not over safety or stress.
There is no doubt the implementation of CAMBS over all B.C. Rail lines is a material change in working conditions.
Black’s Law Dictionary defines the word “material” as important. The Random House dictionary reads “of substantial import; of much consequence, important”. But, without belabouring the semantics of the word, the evidence is that a fundamental aspect of train operations is the issuance, receipt, and execution of train instructions. This appears to be the chief responsibility of every employee in any service connected with the movement of trains. Formerly, the UCOR and now the CROR specifically dictates stringent requirements for this purpose. Failure to comprehend or obey these requirements can have serious consequences.
The Railway expressed its grave concern over the lack of a “check and balance” over the prior dispatch system. CAMBS was the final achievement of this safety insurance. To put it into effect, dispatchers, train crews, and maintenance of way employees underwent classes, instructions, and examinations. Failure to attend meant suspension for those involved in the “running trades”. It was also necessary to train all employees to work with the new system regardless of whether an employee had chosen a home terminal South or North of Prince George. Having been accustomed to MBS, crews North of Prince George may have felt the impact less strongly than crews operating in train order territory. Nevertheless, to crews totally engrained in a specifically different system involving a critical aspect of their work, the total shift to the new system created an important change in their working conditions.
The second question in Article 132(a) is a more complex one.
Has there been any material change in working conditions,
which will have materially adverse effects on employees?
Counsel for the Union points me in the direction of Arbitrator Allan Hope’s decision (Exhibit #4) stating the clause in question has the same operative language. The relevant portion is:
“The Company will not put into effect any technological, operational or organizational change of a permanent nature which will have adverse effect on employees…”
This is found in the Job Security Agreement (JSA) between B.C. Rail and other parties of the Joint Council.
Reliance is placed on determinations made by Arbitrator Hope. At page 20:
“The sole question is whether changes may have an adverse effect on the manner in which employees perform their duties can require the Railway to give notice under Article 8(1) and whether they can trigger a remedy fashioned by a referee under Article 8(6). The answer to those questions is, ‘yes’”.
And, at page 23:
“Secondly the Union is entitled to a declaration that changes that impact adversely on the way in which job duties are performed are not excluded from Article 8 by reason only that they do not result in job dislocation or loss of employment.”
Counsel for the Union submits it is clear that “adverse effect” applies to more than job loss but goes as well to work performance, type of work, and to the manner in which the work is performed. I am asked to look at the cumulative effects of the continuation of the Railway’s overall plan - the phase-in of CAMBS to prepare for the adoption of the CROR. The number of impacts on train crews, including increased paper work, increased radio time, and now a significantly higher degree of responsibility. This revolves around the use of TOP’s to maintenance of way employees.
CAMBS has created more contact with these work gangs and much more critical contact with the dispatcher to avoid train delays, and crews now have no foreknowledge of where the blocks will be.
Counsel for the Railway notes the difference in the language of the JSA and wording in Article 132(a).
The former states:
“The Company will not put into effect any technological, operational or organizational change of a permanent nature which will have adverse effect on employees…”
(emphasis added)
“Article 132(a)
The railway will not initiate any material change in working conditions which will have materially adverse effects on employees…”
(emphasis added)
The word “material” has been used twice, ipso facto, the parties must have contemplated a major change; therefore, there must be a substantial and fundamental change, a different test than found in the JSA. Put another way, there can be adverse effects that do not trigger 132(a).
He says the evidence does not show significant changes and the changes implemented are beneficial rather than adverse in character.
Prior to CAMBS, North of Prince George, crews have always copied clearances; under CAMBS, the form is different and it is only necessary to copy extra clearances. As it only takes two or three minutes to write a clearance, the change in work load is insignificant; plus, crews in this territory have always utilized the radio as a train communication device between trains, trains and foremen, and trains and dispatchers.
South of Prince George, there are new forms; but, written forms are not foreign to these crews, and changes have always occurred in the normal operation of the Railway. Special instructions have always been introduced through the mechanism of the time table and this is indicative of the dynamism of ongoing change in railway operations.
Under the Canadian Railway Office of Arbitration in Case #221, Arbitrator Weatherill found the introduction of ground to cab radio in yard work at Alyth Yard to be a material change in working conditions that had materially adverse effects on employees.
He stated:
“The notion of a ‘material’ change, or of ‘materially adverse’ effects is question begging, for the question which must first be resolved is: material to what? The answer to this question can only be determined upon a consideration of Article 47 as a whole. What are its purposes, and what sort of matter does it contemplate as material to its operation? In the context of Article 47, it must be said that a material change is one which leads to situations for which the procedures of that Article are properly invoked. It is apparent at a glance that Article 47 contemplates some substantial dislocation of employees with respect to their work, as to time, place, or fundamental character. Thus, Article 47(1)(c) provides as follows:
‘(c) While not necessarily limited thereto, the measures to minimize adverse effects considered negotiable under paragraph (b) above may include the following:
(1) Appropriate timing.
(2) Appropriate phasing.
(3) House on duty.
(4) Equalization of miles.
(5) Work distribution.
(6) Adequate accommodation.
(7) Bulletining.
(8) Seniority arrangements.
(9) Learning the road.
(10) Eating enroute.
(11) Work enroute.
(12) Lay-off benefits.
(13) Severance pay.
(14) Maintenance of basic rates.
(15) Constructive miles.
(16) Deadheading.’”
In Case No. 331, again under identical language, on the reduction of passenger trains, Arbitrator Weatherill noted:
(1) It is to be borne in mind that it is a proviso to an article which has general application to material changes of this sort. As such, it is to be interpreted strictly, having in mind the purpose of the article as a whole, that is in the content of a provision for job security.”
In case No. 1167, Article 114 of that particular agreement reads, in part,
“Prior to the introduction of run-throughs of changes in home stations, or of material changes in working conditions which are to be initiated solely by the Company and would have significantly adverse effects on engineers, the Company will:…”
I am directed to the words “significantly adverse effects” and urged to accept the word “significantly” as interchangeable with the word “materially” in Article 132.
The cases referred to have a common denominator. Adverse effects are not confined to direct economic loss. But the word in the second question under Article 132 “materially adverse” does place a much higher burden on the Union. Here, as in Case No. 1167, it would not suffice for the Union to show that the train crews involved were merely adversely affected by the changes. The Union must demonstrate “materially” adverse effects arising from the implementation of the new system.
In this instance, I find the word “significantly” can be used interchangeably with the word “materially”.
Does the evidence indicate any “materially” or “significantly” adverse effects?
Any change would axiomatically have some impact on employees; but, an examination of the factors in evidence on an individual basis or collectively points only to one component of the system that is materially adverse to train crews.
Basically, change is a constant and can be perceived as adverse or, in fact, be adverse to employees. This can give rise to stress. The testimony in this regard was completely subjective in nature. Without the support of objective evidence, it cannot fall into the category of “materially” adverse.
The extra time in copying clearances may be somewhat onerous to crews and considered adverse in interest but not materially so.
The new yard rules and the changes in the radio system to accommodate them are, no doubt, troublesome at this time to the crews; but, an existing unfamiliarity with a facet of the new system again cannot be considered materially adverse to employees.
Under T.O. rules, the crews became accustomed to a degree of pre-planning of a trip from terminal to terminal. This has now been removed. But, I note the Centralized Traffic Control System (CTC) under the old UCOR and existing CROR is analogous to this situation.
It is not necessary crews be aware of other train movements. On B.C. Rail, any unease in this regard may be removed by the use of the Radio Communication System.
Rather than addressing each individual factor of the change, I turn to the one component under CAMBS that is materially adverse to train crews.
This centres around the existing use of Temporary Occupancy Permits (TOP’s).
Prior to the introduction of CAMBS, the Railway utilized two methods to allow track gangs and work trains access to the mainline to perform repair work.
One was under the UCOR Rule 42. The substance of this rule remains under the CROR and remains available to the Railway for the same purpose.
The second method was described as a track line-up. This was not issued to train crews but to maintenance employees who did not receive protection under Rule 42. The line-up indicated trains to be run over the subdivision and the maintenance employees would have to clear the main track in conjunction with this advice.
The witnesses described these procedures in the following manner:
Mr. Kim Goforth:
“…for Williams Lake North we get TOP’s for work trains. Even under a GBO it was similar to the old form ‘Y’ system (Rule 42) there was a visual flag system. Under TOP’s the visual warning is gone there are no flags and 95% of the foremen are under TOP’s. Now the responsibility is removed from the foremen and placed squarely on the operating crew. …before if you missed something you had a red flag or red and yellow flag or they were on a line-up and they had to clear us - now the line-up is gone, TOP’s are used. TOP’s are easier for working foremen, they can get more work done, they can bring you along mile by mile, also the company saves expense of men going flagging.”
And under cross-examination:
“We were told we would get a GBO with the TOP’s being the exception, so far we only have had one GBO.”
My Clyde Mulhall on the subject of work trains on the Squamish sub:
“On work trains before people working in there had to get a hold of you, now we have to get a hold of them, this has taken away the security, the area that belongs to you, if he comes into your area you have to protect against him.
All track vehicles have to have TOP’s now, before these people had to get a hold of us, now we must get a hold of them.”
Mr. John Forsyth:
“The only time a train has to contact a foreman is if the train wants to go through his area either on a Rule 42 or a TOP, previously a GBO. Before in a GBO or Rule 42 a foreman could only progress a train once; with a TOP the rules don’t limit him to the number of times. We will send instructions out to foremen, we don’t encourage this.
…Under TO System (Rule 42) there was no limit, now under rule 42, only one.”
Before we issued train line-ups, south of Williams Lake, given 3 times a day, at 7:00, 12:30 and 18:00.
North of Williams Lake it was called a Train Situation Report, a line-up for track forces, the dispatcher issuing an indication what train he intends to run and when, so that track forces can plan their work.”
In cross-examination:
“In April 1989 there were people out there (track forces) that had to get out of the road, they now need TOP’s. People that require TOP’s now include Brush-cutters, hi-rails, hi-abs, speeders (some). Gradall and section crews. Before, anytime the track was rendered unsafe for passage it would have to be under a T.O.”
Mr. David Klitch:
“The Railway defines light or heavy duty traffic (work forces) in cooperation with the Ministry of Transportation. The Railway can tell foremen to work under a Rule 42 or a TOP. The maintenance of way people prefer TOP’s unless they are taking a piece of track out then they prefer a Rule 42.”
Mr. Donald E. Cruickshank in cross-examination:
“Before CMBS the company used a line-up for track forces, if there was a specific area then we used a form ‘Y’ (Rule 42).
Now a trainman has to contact a track crew to get through, before CROR and CMBS track forces could use Rule 42 but a lot of Maintenance people worked off the line-up and had to look out for trains. With Rule 42 there is no change, still up to the crew to get in touch with the foreman.”
In re-direct Mr. Cruickshank noted:
“Foremen still use Rule 42. This Rule shows on DOB’s can be used the same as on the former GBO’s but this would probably be done only in an emergency.
A Rule 49 is a TOP. It is easier to give out a TOP than have a crew copy a GBO.”
Mr. Cruickshank also gave an example of the ability of different foremen to work under the umbrella of one foreman’s TOP.
Mr. Keith John Taylor noted differences in Rule 42 as adverse to a TOP. His understanding is the Railway would like to see more Rule 42’s issued and the RTC staff as well. But under Rule 42 you can only stop a train once because that work crew is working at one point. Section crews can’t use it because the work crews are strung out. It might be desirable, but a Rule 42 can only be used in limited circumstances.
The evidence demonstrates the Railway considers safety of prime importance in the operation of trains.
All employees engaged in or affected by their movements are imbued with a strong ethic of responsibility in ensuring a high standard is maintained for this purpose; but, there are shifts in that responsibility or shifts in the degree of responsibility. Counsel for the Union characterized this as “heightened responsibility”.
Before CAMBS, Rule 42 was used for any encounter between trains and recognized track forces (e.g., given identity under 19 “Y” orders). Rule 42 carries extra safeguards for train crews about to enter work limits, visual aids that would assist in precluding any possibility of damage to property or harm to other employees. These track forces were responsible for this protection.
Before CAMBS, unrecognized track forces functioned under a Track Line-up or a Train Situation Report. These had no effect on train crews as the responsibility was “squarely on the shoulders” of these maintenance crews to clear the trains in question.
After CAMBS, Rule 42 has been circumscribed to fixed point locations. Much of the work formerly performed under this protection now is given under Temporary Occupancy Permits (TOP’s).
After CAMBS, the Ministry of Transport, in conjunction with the Railway, dictated TOP protection to a new number of track forces formerly governed by Track Lineup or Track Situation Reports.
The issuance of TOP’s for the protection of these work forces has shifted the level of responsibility in the former instance from maintenance crews to train crews.
In the latter, it has created a new responsibility for train crews.
The end result is an increase in the potential for disciplinary action that is now attached to the job function of U.T.U. members.
Clearly, job security is at risk.
Therefore, there is a declaration that the implementation of CAMBS is a material change in working conditions which will have materially adverse effects on employees under Article 132(1)(a) of the Collective Agreement.
_________________________________
Denis T. LaCharité
Arbitrator