AH – 376

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 CLAIM OF R. J. McPARLAND – COMBINATION SERVICE

SOLE ARBITRATOR:                Michel G. Picher

There appeared on behalf of the Company:

R. M. Smith                               – Labour Relations Officer, Montreal

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

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

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

G. Chehowy                              – Manager, Labour Relations, Montreal

L. J. Guenther                            – Labour Relations Officer, Vancouver

H. B. Butterworth                       – Labour Relations Officer, Toronto

And on behalf of the Union:

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

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

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

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 of Issue submitted by the parties at the hearing are as follows:

DISPUTE:

Claim of Locomotive Engineer R.J. McParland for payment of 28 miles, the disputed portion of the wage claim pursuant to article 5(b)(3) of the collective agreement.

STATEMENT OF ISSUE:

On May 7, 1993, Engineer R.J. McParland was called in combination service, North Bay to Coniston. Engineer McParland’s tour of duty consisted of working service from North Bay to Coniston in an Acid Train, then deadheading back to North Bay from Coniston.

The Union contends that Article 5(b)(3) applies, as per the example contained therein, and therefore, Engineer McParland is entitled to the 28 miles, the constructive portion of his wage claim.

The Company does not agree with the Union’s interpretation of article 5(b)(3) and has denied payment of the wage claim, as submitted.

This is claim in respect of a ticket submitted by Locomotive Engineer R.J. McParland for payment of twenty-eight miles. The dispute arises in the application of article 5(b)(3) of the collective agreement.

The position of the Council is that in the circumstances the ticket submitted by Locomotive Engineer McParland should have been treated in such a way that the deadhead miles which he submitted on that ticket should not have been applied to the making up of his minimum day of one hundred miles. On that basis the Council claims that he should have been credited for twenty-eight miles of constructive miles for that day. This, it submits, is consistent with the example which appears in the parties collective agreement under article 5(b)(3)(i) of the agreement.

The Company takes a different view. It relies upon notice having been given to the Council in the form of letter dated October 1, 1990 from General Manager E.S. Cavanaugh. That letter reads as follows:

This has reference to the application of Article 5(b)(3) of the BLE Collective Agreement, and is further to our discussions in Montreal on September 26, 1990.

As you know, the Company has for some time professed that the examples provided in Article 5(b)(3)(i) and 5(b)(3)(iii) are incorrect, and do not correspond to the actual wording of the Article, and that the Company has often applied the provisions of Article 5 in accordance with the examples.

In an effort to ensure that the application of Article 5(b)(3) is not the subject of an additional immediate formal disagreement, payment of the combination of deadheading and working service will be allowed in accordance with the examples stated therein, notwithstanding the Company’s continuing position that such payment is not proper. The payment of combination service in this manner will continue until the next open period of the Collective Agreement, following which the Company intends to apply the written provisions of Article 5(b)(3).

Of course, the ruling obtained in our present scheduled arbitration case on combination deadheading may enter into our future deliberations on this matter.

The Company’s position is that the foregoing letter put the Council on notice that in the Company’s view the example appearing within the article was in fact incorrect and inconsistent with other provisions of the agreement, notably the language of article 5(b)(3)(i) itself, as well as other provisions such as article 1(b) of the collective agreement which reads as follows:

1(b) Combination Service

Road Engineers performing more than one class of road service in a day or trip will, except as otherwise provided in Clause (a) of Article 7, be paid for the entire service at the highest rate applicable to any class of service performed with a minimum of 100 miles for the combined service. The overtime basis for the rate paid will apply for the entire trip.

The Arbitrator can readily understand the position on interpretation which the Company would like to adopt. It is arguable that the language of article 1(b) might be read to support its interpretation. The same might be said of article 5(b)(3), although in the Arbitrator’s opinion that language is somewhat less clear and may well be susceptible of more than one interpretation.

The problem in the instant case arises by reason of the clear and undisputed language within the collective agreement as regards the example upon which the Council relies. In this case although the Company put the Council on notice that it did not agree with the example, and indeed considered that the example was in error, when the parties subsequently returned to the bargaining table and renewed their collective agreement the Company did not insist upon, or obtain, the removal of that example from the text of the collective agreement. I know of no principle in law or labour relations that would support the view that that example must somehow now be viewed as not existing. What the Company should have done following its notice of October 1, 1990 was to go into the open period having put the Council on notice that it would bargain for the removal of that example and indeed obtain such removal, if that was its position. It cannot have it both ways.

I am left with the collective agreement that appears before me. That collective agreement contains language in article 5(b)(3)(i) susceptible of two interpretations. The example appended to that article is susceptible of one interpretation and remains within the text of the collective agreement. The fact that it does remain clearly supports the position of the Council. I am without jurisdiction to amend or ignore such a provision and, on balance, must find that the example which the parties agreed to reincorporate into the language of their agreement must govern as it is more particular than any general language that might be found to deal with this situation.

In the result, the grievance must be allowed and the claim of Locomotive Engineer R.J. McParland for the payment of twenty-eight miles is allowed.

Signed at Montreal, this 14th day of February 1996

(signed) MICHEL G. PICHER

ARBITRATOR