ah297

IN THE MATTER OF AN ARBITRATION

 

B E T W E E N :

VIA RAIL CANADA INC.

(the "Corporation")

- a n d -

BROTHERHOOD OF LOCOMOTIVE ENGINEERS

(the "Union")

 

Grievance re Operation of Conventional Passenger Trains

With Only One Engineer in the Locomotive

 

ARBITRATOR : Michel G. Picher

 

APPEARING FOR THE

CORPORATION :

Jean Patenaude - Counsel

P.J. Thivierge - Senior Negotiator and Advisor

R.J. Guiney - Vice-President and

Chief of Transportation

K.W. Taylor - Senior Labour Relations Officer

 

APPEARING FOR THE

UNION :

Jim Shields - Counsel

Jack Pickle - Canadian Director

George Hainsworth - Canadian Vice-President

Gilles Hallé - General Chairman, C.N.

Cliff Hamilton - General Chairman, C.N.

George Hucker - General Chairman, C.P.

 

 

Hearings in this matter were held in Montreal on December 13, 1991 and January 7, 1992.

 

 

 

INTERIM AWARD

 

This is an arbitration in respect of the enforcement of a letter of agreement made between the parties governing the operation of conventional passenger trains with only one employee in the locomotive. The Corporation seeks to proceed on the basis of the letter of agreement, signed on April 3, 1990, to implement a single locomotive engineer operation on its passenger trains between Montreal and Ottawa. In keeping with the provisions of the agreement it must either negotiate, or arbitrate, measures to minimize the adverse impact on affected employees. However, the Union takes the position that the Arbitration cannot proceed until there has been a determination by Transport Canada with respect to the Corporationís proposal. On that basis, it submits that the Arbitrator is without jurisdiction to proceed in this matter.

The dispute and issue are concisely expressed in the following terms in the written submission to the Arbitrator filed by the Corporation :

Dispute

Whether or not the Brotherhood is now required to negotiate the measures to minimize the adverse effects on locomotive engineers of operating conventional passenger trains between Montreal and Ottawa with only one employee in the locomotive.

Corporationís Statement of Issue

As part of the settlement in negotiating the renewal of collective agreements, the parties signed a Letter of Agreement on April 3, 1990.

The Letter of Agreement outlined the procedures to be followed in dealing with the Corporationís demand to operate conventional passenger trains with only one employee in the locomotive.

In following the procedures, the Corporation has been unsuccessful in getting the Brotherhood to meet to negotiate the measures to minimize the adverse effects on locomotive engineers of operating conventional passenger trains between Montreal and Ottawa with only one employee in the locomotive.

 

 

The Brotherhood contends that the Arbitrator has no jurisdiction to deal with this change until such time as the provisions of Items 1 and 3 of the Letter of Agreement have been satisfied.

The factual background giving rise to the dispute is not in contention. On October 1, 1988 the Corporation served notice on the Union under Part V of the Canada Labour Code, indicating its wish to undertake negotations to revise the collective agreements between the parties. Among the proposals tabled by the Corporation was an initiative to eliminate the second locomotive engineer traditionally assigned to a locomotive on a conventional passenger train. After considerable negotiation the parties reached agreement in the form of a letter of agreement dated March 1, 1990, respecting procedures relating to the implementation of the Corporationís proposal. The agreement reads, in part, as follows :

One of the Corporationís proposals during the current round of negotiations was to delete all provisions in the Collective Agreements that entitle locomotive engineers to have preference in filling positions of second employee in a locomotive on a conventional passenger train.

The parties have agreed that this proposal is settled on the basis of the following :

1. Subsequent to the signing of Memoranda of Agreement covering the renewal of the collective agreements, the Corporation shall make an approach to Transport Canada with respect to any necessary authorizations for its proposal to operate conventional passenger trains with one employee in the cab. The Brotherhood will be provided with a copy of the Corporationís detailed proposal at the same time.

2. Concurrently with the approach to Transport Canada, the Corporation will advise the Brotherhood of its desire to meet and negotiate measures to minimize the adverse effects on locomotive engineers of operating conventional passenger trains with only one employee in the locomotive. The first meeting for these negotiations will take place within 30 days of the Corporationís advice to the Brotherhood.

 

 

 

3. Should the parties be unable to reach agreement, then within 60 days after Transport Canada has made a determination of the Corporationís proposal, either party may request the Minister of Labour to appoint a person to act as a single arbitrator. Such appointment shall be made within 30 days of the request.

4. The parties shall prepare a statement of the issue or issues remaining in dispute to be submitted to the arbitrator. The arbitrator shall hear the dispute within 30 days from the date of appointment and shall render the decision together with the reasons therefor in writing within 30 days of the completion of the hearing. The award of the Arbitrator shall be final and binding.

...

7. The decision of the arbitrator shall be confined to the issue or issues placed before him or her and shall also be limited to measures of minimizing the significantly adverse effects of the proposed change upon the Corporationís employees who are affected thereby.

It appears from the foregoing document, and indeed it is not disputed, that the Union agreed, in principle, with the Corporationís proposal to implement single locomotive engineer operations in conventional passenger service. Two substantial conditions attach, however, to that agreement. The first is that the changes implemented by the Corporation be consistent with any and all requirements of Transport Canada. While the document does not reflect it, it is not disputed that the role and jurisdiction of Transport Canada in that respect arises pursuant to the Railway Safety Act R.S.C. 1985, c.32 (4th Supp.), as amended by S.C. 1988, c.40. The second condition to the Unionís agreement is that the parties negotiate, and failing agreement, arbitrate measures to minimize the adverse impact caused to locomotive engineers by the change.

The objection to the Arbitratorís jurisdiction taken by the Union in this proceeding is based on the application of paragraph 3 of the Letter of Agreement. It submits that the Arbitrator is without jurisdiction to proceed under paragraph 4 of the Letter of Agreement because, it asserts, Transport Canada has made no determination of the Corporationís planned change, within the meaning of that paragraph. It characterizes the requirement of a determination by Transport

 

 

 

Canada as a condition precedent to the right of either party to request the Minister of Labour to appoint an arbitrator to resolve the issues described in paragraph 7 of the Letter of Agreement. The Corporation maintains that there has been compliance with the requirements of paragraph 3, and on that basis, it requested the appointment of the Arbitrator to hear and dispose of all outstanding matters.

By letter dated July 12, 1991 the Senior Assistant to the Deputy Minister, Labour Canada, notified the parties that the present Arbitrator was being appointed. The position taken in the letter of the Senior Assistant, not disputed by the parties, is that the preliminary issue of the jurisdiction of the arbitrator is not one that could be dealt with by the Minister but rather must be raised and resolved as a preliminary issue before the Arbitrator, in accordance with normal practice. The sole preliminary issue to be resolved before me, therefore, is whether there has been compliance with the requirements of paragraph 3 of the partiesí Letter of Agreement.

The record discloses that over a period of time two separate proposals were communicated by the Corporation to the Railway Safety Directorate of Transport Canada. In a letter directed to Mr. Colin Churcher, Director General, Railway Safety Directorate, dated July 6, 1990 the Corporation requested confirmation that there is no regulatory requirement for a second person in the locomotive cab of a passenger train. It enclosed in that correspondence a general review of its operating and safety systems, as well as a statement of its findings with respect to the established use of single locomotive engineer operations in certain circumstances in the United States, the United Kingdom, France and Australia. In further correspondence the Corporation made a supplementary submission to Transport Canada, a copy of which it forwarded to the Unionís Canadian Director and Vice-President on November 14, 1990.

It may be noted that the Corporation had previously received a response from Mr. Churcher confirming that there is indeed no Transport Canada regulation pertaining to the number of persons required in the locomotive cab of a passenger train. However, Mr. Churcher made it clear that Transport Canada retains jurisdiction in respect of assuring the safety of any railway passenger operation, indicating that the agency would expect to receive full particulars of the Corporationís proposal. The supplementary submission contained a relatively extensive statement of the Corporationís intention to implement a system wide use of single engineer operations where scheduled running time is not in excess of six hours. The submission notes that there are 43 assignment runs system wide, of which 16 exceed the six hour scheduled running time. Consequently, it

 

 

 

 

projected that 81 locomotive engineer positions would be abolished. It may further be noted that part of the Companyís submission contained a response to a submission made separately by the Union to Transport Canada which took the position that the single manning of passenger train locomotives is not practicable at the present time.

In December of 1990 Mr. Churcher responded in a preliminary way to the Corporationís supplementary submission. His letter requests further information in respect of a number of matters, including the criteria established for the six hour running time as a cut-off point, the contingencies in respect of the failure of safety equipment, the extent of radio coverage in various geographic areas, statistics concerning crossing accidents and main track collisions for both RDC trains and conventional trains, as well as passenger train miles for both forms of service, and other questions relating to operating safety.

Following the request for additional information Mr. Churcher went on to make the following comment :

From the foregoing it will be readily apparent we do not share your view there are no safety issues involved here. Such an assertion should not be construed to mean that we have made a determination with respect to the safety feasibility of your proposal but rather to emphasize our conviction that there are indeed serious safety issues which need to be addressed before VIAís proposal can be implemented.

Additional information was provided to Transport Canada in a letter from the Corporation dated February 11, 1991. Subsequently, in March of 1991 Mr. Churcher responded, indicating that Transport Canada could not endorse the proposal as it was then being made. His letter reads, in part, as follows :

In conclusion, we are of the view that the operation of conventional passenger trains with only one person in the locomotive cab is not conducive to a safe operation in the circumstances which you propose. We remain to be convinced that one person operation can be safely implemented over all VIA passenger routes having six hours or less running time. There is insufficient evidence to demonstrate to our satisfaction that a one person operation can be safely introduced across the board, taking into account the methods of train control currently in use in Canada.

 

 

 

The above letter was followed by the filing of a second proposal, which is the subject of this hearing. In a letter dated April 11, 1991 the Corporation revised its submission to Transport Canada. The record discloses that the Corporation was then feeling a degree of frustration to the extent that it might be caught in a conundrum whereby Transport Canada approval could not be obtained until the employerís negotiations with the Union were finalized, and Union negotiations could not be undertaken until there was a determination by Transport Canada. The revised proposal, and the concerns of the Corporation are reflected in the letter of April 11, which is as follows :

Dear Mr. Churcher :

Reference is made to our earlier correspondence in respect of the above-captioned matter.

Since there are presently various methods of train control throughout VIAís network, VIA understands that the implementation of a one person operation in the cab of the locomotive over all passenger routes having six hours or less running time may give rise to certain concerns in respect of safety. Consequently, VIA has decided to revise its proposal with a view to implementing its one person operation on those trains operating between Montreal and Ottawa. We believe that that the operational characteristics of this revised proposal should alleviate the concerns expressed in your last letter. In addition, the proposal will allow VIA to gain experience with such an operation in a well controlled environment and to determine whether adjustment may be required to extend such operation to other territories.

Attached is a document which describes the infrastructure in place and the equipment used on this route. A description of the operation with one person in the cab is also included.

As you are aware, the unions asked that any authorities that may be required from Transport Canada for operation with reduced engine crews be obtained prior to commencing discussions with VIA on ways to minimize the adverse effect on their members (copy of the agreement is attached). We understand that there is no subordinate legislation at this time governing train crewing and, consequently, no regulatory

 

changes are required in order to implement the attached proposal. In order, however, that VIA and the unions may commence their discussion with respect to a one person operation, would it be possible for you to confirm that the attached proposal does not require advance authorization from Transport Canada. It is recognized that Transport Canada has the authority over all railway safety-related matters and that it may intervene at any time to prevent an unsafe operation.

Your early advice would be appreciated.

It may be noted that the revised proposal for the Montreal-Ottawa service contained extensive information, of a type and degree more detailed than that provided in the prior proposal, with respect to territorial characteristics, operating equipment, communications equipment, safety devices, crew assignments, hours of duty and other operational considerations, including contengencies in the event of safety equipment failure.

The reply to Transport Canada to the Corporationís revised proposal is contained in the letter from Mr. Churcher to the Corporationís general counsel received in April of 1991 which reads as follows :

Dear Mr. Patenaude :

Thank you for your letter of April 11, 1991 wherein you advised of VIAís intention to implement a one person operation on trains operating between Montreal and Ottawa and attached a document which contained information relating to the infrastructure, equipment and operational characteristics of the proposed operation. I can confirm that your proposal does not require advance authorization from Transport Canada.

I note that you intend to commence discussions with the relevant unions in respect of this matter. Recognizing that certain aspects of your proposal might change as a result of these discussions, and in light of our previously expressed intention of assessing the adequacy of such an operation, would you please provide me with an update of the essential characteristics of the final proposal at least thirty days prior to its planned implementation.

Yours sincerely,

Collin J. Churcher, Director General

Railway Safety Directorate

 

The concerns of the Union are prompted, in part, by a response subsequently issued to Mr. E.G. Abbott, Executive Secretary of the Canadian Railway Labour Association, following an expression of concern about Mr. Churcherís letter of April 18, 1991 to the Corporation with respect to the Ottawa-Montreal proposal. That letter, received by the executive secretary on May 2, 1991 reads, in part, as follows :

Thank you for your letter of April 25, 1991 concerning the proposed operation of certain of VIAís conventional passenger trains with one employee in the cab of the locomotive.

I do not believe the message conveyed to VIA in my letter of April 18, 1991 was in any way contradictory to what had been stated previously. The comments made in the letter of March 6, 1991 to VIA were formulated on the basis of a proposal which was very different from the one now being considered - at least insofar as the scope of its application is concerned.

My letter of April 18th did not contain any references to or determinations in respect of the safety implications of VIAís latest proposal. It merely confirmed that advance authorization from Transport Canada was not legally required.

Although formal approval is not a prerequisite to the implementation of this proposal, we will still want to satisfy ourselves as to the adequacy of the operation from a safety perspective at an early date. Hence, the reason for our request to be apprised of its essential characteristics, once it has been finalized and at least thirty days prior to planned implementation.

I trust these explanations will make it clear to you that the Department has not yet made any declarations to VIA, or to anyone else for that matter, concerning the safety implications of operating conventional passenger trains between Ottawa and Montreal with one employee in the locomotive cab. We are simply not yet in a position to do so.

At the first hearing the various pieces of correspondence reproduced above were tendered in evidence and considered. Given the importance of the issue to the parties, to Transport Canada and to the travelling public, the Arbitrator deemed it appropriate to obtain a further clarification with respect to the role and

 

 

jurisdiction of Transport Canada by having Mr. Colin Churcher of Transport Canada testify as a witness in the proceedings. The parties did not object to that proposal and Mr. Churcher attended at the second hearing to give evidence in explanation of the general process of safety administration followed under the Railway Safety Act. Mr. Churcher was candid and forthcoming in his testimony, which was indeed helpful, and neither party takes any exception to the content of his evidence.

Mr. Churcher explained that the Railway Safety Act came into effect in January of 1989, introducing a substantial degree of deregulation into railway operations. Previously carriers in the railway industry seeking to make significant changes in operations were required to obtain the prior permission of the Railway Transport Committee (R.T.C.) of the Canadian Transport Commission, pursuant to predecessor legislation. The authority of the R.T.C. in issues such as crewing locomotives was clear. For example, in July of 1972 when CN removed the second locomotive engineer on GO Trains operated at Toronto the secretary of the Railway Transport Committee communicated with the carrier directing an immediate return to a two-person operation.

Mr. Churcher explained that under the new deregulated statute the process is different. As a general rule, absent any contrary regulations or orders from the Ministry, a railway carrier may initiate such changes as it deems appropriate without obtaining the prior appproval of the federal authority. By way of example, Mr. Churcher cited the recent initiative of Canadian National in implementing reduced freight train crews in parts of its operations in the Great Lakes region. No prior authorization was sought, nor was any needed, contrary to what might have obtained under the legislation which existed prior to the present Railway Safety Act.

As is clear from Mr. Churcherís evidence, however, the present system does not mean that Transport Canada is without considerable jurisdiction to ensure railway safety. Section 18 of the Act retains to the Governor-in-Council the authority to make regulations in respect of a wide spectrum of railway safety. Additionally, section 19 authorizes the Minister to require a railway company to formulate rules with respect to any matter that may be the subject of a regulation, and to revise such rules as appropriate. Rules so formulated must be filed with the Minister and approved. In the instant case, as reflected in the correspondence from Mr. Churcher, there are no regulations, rules or orders in effect with respect to the possible operation of a conventional passenger train with one locomotive engineer in the cab. There are, moreover, no rules formulated by the Corporation itself, pursuant to the latitude which it has to make such rules under section 20 of the Act.

 

 

 

The testimony of Mr. Churcher discloses that the Railway Safety Act contains extensive powers of inspection and, where appropriate, mandatory direction, to ensure railway safety. In this respect regard may be had to the following provisions of the Act :

31. (3) Where a railway safety inspector is of the opinion that the manner of operation of a line work or railway equipment of a particular railway company poses a threat to safe railway operations, the inspector

(a) shall, by notice sent to the company, inform the company of that opinion and of the reasons therefor ; and

(b) may, in that notice, if the inspector is satisfied that the threat is immediate, order the company to ensure that the line work or railway equipment not be operated, or not be operated otherwise than under terms and conditions specified in the notice, unless the work or equipment is operated so as to remove the threat, to the inspectorís satisfaction.

33. (1) Where the Minister is of the opinion that

(a) the use by a railway company of a railway work or railway equipment of a particular kind, or

(b) the following by a railway company of, or the failure to follow, a particular maintenance or operating practice in respect of a railway work or railway equipment

poses an immediate threat to safe railway operations, the Minister may, by emergency directive sent to the railway company, and notwithstanding that the construction of the work was undertaken in accordance with the law in force at that time or that the use of the equipment or the

 

 

following of, or failure to follow, the maintenance or operating practice is in accordance with this Act and with any regulations or rules made thereunder, order the company

(c) to cease, either absolutely or to the extent specified in the directive, to use works or equipment of that kind or to follow that maintenance or operating practice, or

(d) to follow a maintenance or operating pracatice specified in the directive.

(2) An emergency directive has effect during such period, not exceeding six months, as is specified in the directive.

As is clear from the language of the Act, as well as Mr. Churcherís evidence, under the present state of the Act and regulations, Transport Canada does not exercise a mandatory jurisdiction to approve each and every change in railway operations to be implemented by a carrier, prior to that change going into effect. To use Mr. Churcherís term, the process is now more iterative, in that the carrier may advise Transport Canada of the nature of a proposed change, with the understanding that the federal authority may respond by expressing concerns as to one or more aspects of the proposal. The expression of concern is not tantamount to a disallowance of a proposal, as might have been the case under the prior legislation, but it is nevertheless of significant importance to the extent that the carrier knows that it must ultimately comply with the requirement to satisfy a railway safety inspector or the Minister of the safety of a proposed change once it is put into operation. The statute therefore encourages the kind of dialogue which took place, for example, with respect to the Corporationís first proposal for system-wide, single locomotive engineers operations. It would make little sense for any carrier to ignore Transport Canada entirely and to proceed to implement substantial changes which are at peril of being negated by the order of an inspector under section 31 of the Railway Safety Act, or by a ministerial order or directive under section 33 of that statute. It is in that context that the correspondence between the Corporation and Transport Canada, as well as the final letter from Mr. Churcher to Mr. Abbott, must be understood.

The narrow question to be resolved in this dispute is whether it can be said that in the context of the facts and law, as reviewed, Transport Canada has made a "determination" of the Corporationís proposal in the sense contemplated by

 

 

paragraph 3 of the partiesí Letter of Agreement of March 1, 1990. Counsel for the Union submits that it is clear from the letters of Mr. Churcher that Transport Canada intends to express some ultimate opinion on the proposal for the Ottawa-Montreal run. He submits that in that regard what the federal authority proposes to do is not inconsistent with the voicing of its opinion in respect of the safety of the first proposal for system-wide operations made by the Corporation. He notes that Mr. Churcherís evidence does not confirm that he is fully satisfied with all aspects of the most recent proposal, and in particular that he has some lingering concerns about the operation of Rule 42 and radio communication between the conductor and the engineer. He submits that so long as those concerns are outstanding, it cannot be said that there has been a determination by Transport Canada in the sense contemplated by paragraph 3 of the Letter of Agreement.

Counsel for the Corporation takes a different view. Firstly, he stresses the first paragraph of the final letter written to him by Mr. Churcher, confirming that the Corporationís proposal does not require advance authorization from Transport Canada. Counsel for the Corporation submits that the concept of a determination by Transport Canada reflected in paragraph 3 of the Letter of Agreement must be construed in light of that reality, as well as in light of the language of the first paragraph of the Letter of Agreement, which contemplates the Corporation approaching Transport Canada " ... with respect to any necessary authorizations ...". Counsel submits that the language of the Letter itself reflects the understanding of the parties that there might indeed be no authorization required, as is confirmed in Mr. Churcherís correspondence. In that circumstance he submits that the requirement for a determination by Transport Canada must be seen as satisfied.

Alternatively, counsel submits that even if one were to accept that the parties intended that some determination is to be made by Transport Canada, the evidence discloses that the federal authority did not express a negative view with respect to the Ottawa-Montreal proposal. This, he submits, is to be distinguished from the clearly negative view forcefully expressed by the Safety Directorate with respect to the Corporationís initial system-wide proposal. On that basis, counsel argues that there has been a sufficient determination, within the meaning of paragraph 3 of the Letter of Agreement, and that the Arbitrator therefore has jurisdiction to proceed.

On a careful review of the facts and material submitted, the Arbitrator is left in substantial doubt with respect to the merit of the position advanced by the Union. Firstly, however, upon examination of the language of the Letter of Agreement, I cannot accept, without qualification, the suggestion of the

 

 

 

Corporation that, because no authorization is required by Transport Canada prior to the implementation of the Corporationís proposal, the parties did not intend any involvement by Transport Canada for the purposes of their agreement. While the use of terms such as "authorizations" and "determination" may be less than ideal as they relate to the system of railway safety administered under the new deregulated statute, it is nevertheless clear that the Unionís agreement to the institution of single locomotive engineer operations was conditional upon the Corporation proposal being generally satisfactory to Transport Cnaada. I am therefore compelled to accept the submission, in principle, of counsel for the Union that the parties mutually intended that there be some examination by Transport Canada of the Corporationís proposal prior to its implementation, and some degree of endorsement of it, as a condition precedent to the jurisdiction of the Arbitrator to deal with the matters described in the Letter of Agreement.

The issue then becomes whether there has been compliance with that requirement. On the whole of the evidence, I am compelled to the conclusion that there has been. It is clear from the material before me that the initial proposal advanced by the Corporation and considered by Transport Canada was clearly and categorically rejected by the federal authority as being inconsistent with the standards to be applied under the Railway Safety Act. That is apparent from the course of correspondence between the Corporation and Mr. Churcher. In his letter to the Corporation dated December 10, 1990 Mr. Churcher made the following comment with respect to the insufficiency of information provided and serious questions raised by the Corporationís initial proposal :

From the foregoing it will be readily apparent we do not share your view there are no safety issues involved here. Such an assertion should not be construed to mean that we have made a determination with respect to the safety feasibility of your proposal but rather to emphasize our conviction that there are indeed serious safety issues which need to be addressed before VIAís proposal can be implemented.

Following the providing of additional information Transport Canada responded to the Corporation by letter of March 6, 1991, leaving little doubt as to its conclusion, stating, in part :

In conclusion, we are of the view that the operation of conventional passenger trains with only one person in the locomotive cab is not conducive to a safe operation in the circumstances which you propose. We remain to be

 

 

convinced that one person operation can be safely implemented over all VIA passenger routes having six hours or less running time. There is insufficient evidence to demonstrate to our satisfaction that a one person operation can be safely introduced across the board, taking into account the methods of train control currently in use in Canada.

In the Arbitratorís view what is reflected in the foregoing is a clear indication, if not a determination, by Transport Canada that the initial proposal being advanced by the Corporation for system-wide, single locomotive engineer operations was unacceptable in the form in which it was made.

That letter, however, stands in stark contrast to the letter issued to the Corporation by Transport Canada over the signature of Mr. Churcher dated April 18, 1991 with respect to the revised proposal for the Ottawa-Montreal run. There is plainly no expression of serious concern on the face of that document with the proposal then made. That, in the Arbitratorís view, must be understood in light of the more extensive and detailed submission made to Transport Canada by the Corporation with respect to its scaled down and revised proposal for the Ottawa-Montreal route. Many of the concerns expressed by the federal authority with respect to the first proposal were spoken to and, it would appear, were satisfactorily answered in the materials provided to Transport Canada with respect to the second proposal.

In the Arbitratorís view Mr. Churcherís own evidence is significant in understanding the purport of the letter of April 18, 1991. While Mr. Churcher confirmed that he saw one or two "loose ends" which he would wish to see dealt with prior to the implementation of the single locomotive engineer operation between Ottawa and Montreal, in particular the method of compliance with Rule 42 and communications between the conductor and the engineer, he did not state that those concerns were sufficient grounds to express disapproval of the proposal, as had been done with respect to the first proposal for system-wide operations. Mr. Churcher stated that while he wished to see his residual concerns addressed prior to the implementation of the plan, he did not see any basis in the proposal as framed to disapprove it. It appears clear from his evidence that in his contemplation those remaining concerns would be worked out prior to the final implementation of the proposal.

In the Arbitratorís view what the evidence reflects is substantial compliance with the requirements of the Letter of Agreement of March 1, 1990.

 

 

 

 

By the terms of the partiesí agreement the Corporation was required to ensure that any single locomotive engineer operation which it proposed to put into effect would not be unacceptable to Transport Canada. This it did by submitting its first proposal and, in the face of the clearly negative indication which it received from the Safety Directorate, withdrawing it and revising the proposal for a single run operation between Ottawa and Montreal. The information which it provided in respect of that proposal was substantially more extensive. Most significantly for the purposes of this dispute, the second proposal met with an expression of assent in principle by Transport Canada, as reflected in Mr. Churcherís letter to the Corporation dated April 18, 1991 as well as his evidence before the Arbitrator. In my view the acceptance in principle by Transport Canada of the proposal for single locomotive engineer operations between Ottawa and Montreal, even allowing for the ironing out of some residual details identified by Mr. Churcher, must, in the present context of deregulated rail service, be seen as in compliance with the requirement to obtain a determination from Transport Canada within the meaning of paragraph 3 of the partiesí Letter of Agreement. Moreover, there is nothing in the foregoing conclusion which is inconsistent with the content of the letter sent by Mr. Churcher to Mr. Abbott on May 2, 1991. It is clear, as is reflected in that letter, that under the deregulated statute there is no formal declaration or authorization which is to issue from Transport Canada, but that the ongoing discourse between the federal authority and the railway will continue up to the point of implementation.

For the foregoing reasons the Arbitrator accepts the position of the Corporation, and finds that there has been compliance with paragraphs 1 and 3 of the Letter of Agreement of March 1, 1990. The matter will therefore proceed to be heard on its merits, should the parties be unable to negotiate measures to minimize the adverse effects of locomotive engineers operating conventional passenger trains with only one employee in the locomotive on the Ottawa-Montreal run. For that purpose, therefore, I retain jurisdiction.

DATED at Toronto this 21st day of January. 1992.

 

 

 

 

 

_____________________________

Michel G. Picher - Arbitrator