AH – 374

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC RAILWAY LIMITED

(the “Company”)

AND

CANADIAN COUNCIL OF RAILWAY OPERATING UNIONS
(BROTHERHOOD OF LOCOMOTIVE ENGINEERS)

(the “Council”)

GRIEVANCE RE WORK TRAIN AT DYMENT

SOLE ARBITRATOR:                Michel G. Picher

There appeared on behalf of the Company:

M. E. Keiran                              – Manager, Labour Relations, Vancouver

M. G. DeGirolamo                      – Director, Labour Relations, Montreal

R. E. Wilson                              – Manager, Labour Relations, Toronto

G. Chehowy                              – Manager, Labour Relations, Montreal

L. J. Guenther                            – Labour Relations Officer, Vancouver

R. M. Smith                               – Labour Relations Officer, Montreal

H. B. Butterworth                       – Labour Relations Officer, Toronto

And on behalf of the Union:

D. C. Curtis                               – General Chairman (BLE), Calgary

L. O. Schillaci                            – General Chairperson (UTU), Calgary

R. S. McKenna                          – General Chairman (BLE), Barrie

D. A. Warren                             – General Chairperson (UTU), Toronto

B. L. McLafferty                         – Vice-General Chairperson (UTU), Moose Jaw

S. B. Keene                              – Vice-General Chairperson (UTU), London

V. H. Hamilton                           – Secretary (UTU), Lumbarby

A hearing in this matter was held at Montreal, 12 February 1996

AWARD

The Dispute and Joint Statement submitted by the parties at the hearing are as follows:

DISPUTE:

Entitlement to payment under the revised collective agreement dated July 14, 1995, when work is performed enroute by through freight crews at a ballast pit (Dyment).

STATEMENT OF ISSUE:

On May 1, 1995, Locomotive Engineer H.R. Clemmens was required to lift and set off ballast cars at the Dyment Pit while employed in through freight service. He claimed enroute work train service under article 8(i) of the collective agreement. Mr. Clemmen’s claim was eventually paid but the Council was advised that due to revised language in the collective agreement, future payment in like circumstances was not warranted.

The grievance comes before the Arbitrator by way of a policy grievance in relation to the payment of through freight crews called upon to do work in relation to spotting cars and loading cars at a ballast pit. It is common ground that for many years such work has been compensated under the terms of the collective agreement. The Company, however, relies on the newly introduced provisions of paragraph 8.4(d) of the newly negotiated collective agreement which reads as follows:

8.4(d)      Ballast pit will be considered as working point only for crews who work exclusively in such pit. Where a ballast pit is located within 2 miles of the switching limits or outer main track switch at tie-up points, the ballast pit will be considered as part of the tie-up point.

The Council’s representative submits that the foregoing provision was not intended to speak to the entitlement of through freight crews for payment for time performed in relation to work train service enroute. The provision, he submits, is intended to give definition to the provisions of article 8 as they relate to work train service, assigned and unassigned. In response the Company submits that article 8.1 makes reference to “other classes of road service”.

In the Arbitrator’s view this dispute has to be resolved by reference to the context in which this language has been negotiated. It does not appear disputed that the language of article 8.4(d) was taken entire from previous collective agreement language binding the United Transportation Union. The existence of the language in that agreement did not, it appears, prevent the payment of the amounts claimed when through freight crews in that circumstance were performing work at a ballast pit. Based on the material before me, it appears highly doubtful that the mere introduction of paragraph 8.4(d) can be taken as a conscious and mutual agreement to do away with a practice which apparently benefited both UTU and BLE members over a substantial period of time, the precise nature of which is reflected in prior letters from Company officers from as early as 1969.

In the result, the grievance is allowed. The Arbitrator is satisfied that the interpretation of the provisions advanced by the Council is correct.

DATED AT Montreal, this 14th day of February 1996

(signed) MICHEL G. PICHER

ARBITRATOR