(the "Company")

-and-

BROTHERHOOD OF LOCOMOTIVE ENGINEERS

(the "Union")

-and-

UNITED TRANSPORTATION UNION

(the "Intervenor")

ARBITRATOR: Michel G. Picher

COMPANY: A. E. Heft - Manager, Labour Relations,

Toronto

M. Delgreco - Director, Labour Relations,

Montreal

B.L.E. Gilles Hallé - General Chairman

U.T.U. Raymond Lebel - General Chairperson

A hearing in this matter was held in Toronto on July 4, 1991.

AWARD

This is an arbitration in respect of an operational change affecting locomotive engineers and trainmen. The facts and issues are summarized in the Joint Statement of Issue filed by the parties at the hearing, which is as follows:

The facts are not in dispute. The Company has arranged to transfer the Kapuskasing subdivision, including a section of track known as the "Pagwa Spur" between Cochrane and Calstock, Ontatio to the Ontario Northland Railway. It appears that the latter intends to operate the subdivision as part of its provincial railway system, and that it will continue to serve the freight traffic in the area, consisting mainly of pulp, paper and lumber materials and products. Notice of the transfer was duly served on the two unions which are a party to this arbitration, as well as to five unions representing non-operating employees of the Company. While the notices to the non-operating unions resulted in negotiated agreements between those unions and the Company with respect to the minimizing of adverse affects for employees impacted by the operational change, nagotiations with the locomotive engineers and trainmen did not result in an agreement, nothwithstanding the referring of the dispute to a Board of Review, thereby necessitating this arbitration.

While the initial notices to the unions indicated that the position of two locomotive engineers and seven trainmen stationed at Cochrane and Hearst would be affected, it later became apparent that notices would also be required for one locomotive engineer and three trainmen outposted at Taschereau, Quebec, where a roadswitcher assignment is being abolished. Upon failure of the Board of Review to arrive at a joint recommendation the parties referred this matter to the Arbitrator for final and binding determination under provisions of paragraph 78.4 of article 78 of agreement 1.1 and subparagraph (d), paragraph 79.1 of article 79 of agreement 4.16.

The manner in which the instant case has been presented gives the Arbitrator substantial difficulty. While the parties presented at the hearing the positions which they put forward during negotiations, as well as the positions which they espoused at the arbitration stage, they did not disclose their final positions tabled before the Board Review. The collective agreement provisions under which this arbitration is conducted contemplate the referal to the Arbitrator of "issues ... remaining in dispute" following the exhaustion of the Board Review procedure. As the negotiation and settlement of issues in proceeding of this kind are largely the product of give and take in accordance with the parties’ own priorities, it becomes difficult for an arbitrator to resolve the dispute while being kept unaware of the final position taken by each party, with no clear indication of which were the impasse issues.

In these circumstances the Arbitrator feels it more appropriate to issue a decision which provides a "bottom line" without an elaboration of the reasons for the items awarded. When resort must be had to conjecture as to the actual positions of the parties, with little indication of the relative importance which they attach to the various issues, a rational analysis of the true issues in dispute is difficult, if not impossible, to articulate.

The Arbitrator therefore awards as follows:

The Arbitrator retains juridiction in the event of any dispute between the parties having regard to the interpretation or implementation of this Award.