By letter dated November 8, 1998 the Arbitrator was advised of his appointment by the Minister of Labour of the Government of Canada to hear the instant dispute. The dispute is filed against CN by the BLE under the terms of the Special Agreement negotiated between CN, VIA and the UTU, dated March 6, 1987. More particularly, it relates to the allegation of the BLE thar CN has refused to honour the terms of an addendum to the Special Agreement, referred to as the Transfer Agreement, relating to its obligation to allow employees who transferred to positions in VIA from positions on CN to return to employment with CN following the elimination of their positions as conductors and assistant conductors at VIA.

CN submits that the Arbitrator is without jurisdiction to hear the dispute brought by the BLE. It maintains that the BLE, which holds bargaining rights for conductors at VIA as the successor to the UTU following recent certification by the Canada Labour Relations Board, is without standing to assert any rights whatsoever under the terms of the Special Agreement or the Transfer Agreement. CN asserts that the Special Agreement and Transfer Agreement are not a collective agreement within the meaning of the Canada Labour Code, and such rights successorship under the Code as the BLE may have as the certified bargaining agent of the conductors employed by VIA does not give it status to assert any rights under the Special Agreement and Transfer Agreement. The position of the BLE, supported by both the UTU and VIA, is that the agreements in question are in the nature of collective agreements which expressly amend the collective agreements governing conductors, trainpersons and yardmasters in both CN and VIA, and that it stands fully in the shoes of its bargaining agent predecessor, the UTU, for the purposes of asserting the rights of the employees it represents under the Special Agreement and Transfer Agreement of March 6, 1987. This preliminary award is for the purpose of resolving the jurisdictional issue so raised.

Certain backgrounds facts, which are not in substantial dispute, are helpful to an understanding of the jurisdictional issue raised. VIA was established by the Government of Canada in 1977 for the purpose of providing passenger rail service in Canada, a service previously provided by CN and CP Rail. The preamble to the Special Agreement which is the document here in dispute relates that the Government of Canada initiatives were introduced pursuant to the Department of Transport Vote 52d, Appropriation Act No. 1, 1977 and Order-in-Council PC 1977-2987, dated October 20, 1977. The regulations so established were termed the Railway Passenger Services Adjustment Assistance Regulations.

The purpose of the regulations was, among other things, to provide for the negotiation of special agreements between the various trade unions representing employees on CN and CP who would be adversely affected by the transfer of passenger service into the newly established VIA Rail Canada Inc. Among other things, the special agreements, typical of many similar such agreements negotiated within the railway industry in the face of operational or organizational change, or material changes in working conditions having material adverse effects on employees, provided for a number of mitigating terms and conditions in favour of the employees affected. For example, the Special Agreement which is the subject of this dispute provided for maintenance of employment with CN, either inside or outside the same bargaining unit, for the transfer of pensions, benefit and vacation entitlements for employees transferring from CN to VIA, training, relocation benefits, maintenance of earnings, separation incentives, lay off and severance benefits. It also includes specific rights with respect to the transfer of employees from CN to VIA, and back from VIA to CN, which provisions are the subject of this dispute.

At the time the Special Agreement was negotiated an obvious concern of the Government of Canada, which then had control and ownership of both CN and VIA, was to ensure the proper staffing of VIA with the necessary employees in all trades, including the running trades classifications with which we are here concerned, namely conductors, trainpersons or brakepersons (now referred to as assistant conductors) and yardmasters. While for a period of years CN supplied the running crews for VIA trains, in or about 1987 VIA decided to run its trains with its own employees. A concern of the employees and of their bargaining agents at that time was that persons transferring from service in CN to service within VIA be able to carry with them their seniority and all benefits attaching to prior service with CN, and that they retain the right to return to service within CN, with full credit for seniority and service for time spent at VIA, in the event of certain defined circumstances. The negotiation of the Special Agreement was obviously facilitated by the fact that the trade union which represented the employees concerned at CN was also to be the bargaining agent for the same classifications of employees at VIA. The parties were therefore able to negotiate and execute the Special Agreement, part of which is the Transfer Agreement allowing for a certain flow of employees back and forth between CN and VIA. It further appears that there was provision within the federal regulation for partial indemnification of the companies for costs flowing from the special agreements negotiated. At the time the Special Agreement was concluded among the UTU, VIA and CN a parallel special agreement was negotiated involving the BLE, VIA and CN for the similar purpose of mitigating the adverse impacts on locomotive engineers, and facilitating their movement in service back and forth between CN and VIA.

For a number of years the UTU held exclusive bargaining rights for conductors, assistant conductors and yardmasters at both CN and VIA. The BLE held similar rights for locomotive engineers in both companies. However, in March of 1997 VIA filed an application pursuant to section 18 of the Canada Labour Code, seeking to consolidate the bargaining unit of locomotive engineers with the bargaining unit of conductors, assistant conductors and yardmasters. At the same time VIA served notice of a material change involving the elimination of all conductors and assistant conductors on VIA Rail passenger trains. As appears from a decision of the Canada Labour Relations Board dated September 22, 1997, VIA’s material change in fact impacted both running trades bargaining units. It also proposed to abolish the classification of locomotive engineer, and thenceforth to crew its trains with employees of a proposed single new classification of "operating engineer". The duties of the new position would involve both the prior duties of locomotive engineers and a substantial portion of the duties previously performed by conductors and assistant conductors. The two initiatives of VIA taken in March of 1997, simultaneously abolishing the job classifications on both running trades bargaining units, and applying to the Canada Labour Relations Board for the establishment of one bargaining unit, were facets of a single operating decision with respect to rationalizing its running crew classifications and related collective bargaining relations. It sought to emerge with fewer running trades employees, all of them to be within the new classification represented by a single bargaining agent.

Before the Canada Labour Relations Board the UTU requested that a representation vote be ordered. That request was acceded to and the vote was duly held. In its decision of September 22, 1997 the Canada Labour Relation Board approved the single bargaining unit proposed and directed the counting of the ballots. The BLE emerged the winner, and was certified by the Board as bargaining agent for all running trades employees of VIA, by a certificate issued October 31, 1997.

Thereafter, as bargaining agent for the running trades employees of VIA, the BLE duly gave notice to bargain for the negotiation of a single collective agreement covering all running trades employees. It is common ground that as the certified exclusive bargaining agent it represented and continues to represent persons in the former classifications of conductor, assistant conductor and yardmaster. On June 12, 1998 the BLE and VIA signed a Crew Consist Adjustment Agreement. Among other things, that agreement recognized the abolition of the positions of conductor and assistant conductor on all VIA Rail passenger trains. The agreement notes that the crew consist adjustment is to be implemented on or about July 1, 1998. It makes a number of provisions not unlike those contained in the Special Agreement providing for measures to minimize the adverse impacts of the change so introduced. These include locomotive engineer training courses, retirement opportunities, retirement benefits and severance opportunities as well as lay off benefits and lump sums for relocations. In part the agreement deals with the options available to conductors, assistant conductors and yardmasters who are former CN employees. Article 13 of the agreement provides, in part, as follows:

13. Conductors, Assistant Conductors and Yardmasters who were VIA employees as of October 31, 1997 and to whom the Memorandum of Agreement dated March 6, 1987 in respect to the inter-Company transfer of employees between CN and VIA (the "Transfer Agreement") is applicable as per item 10 of the said Transfer Agreement, may apply for one of the following opportunities:

(a) a voluntary retirement opportunity as defined in paragraph 9 above;

(b) training as Locomotive Engineer, in seniority order;

(c) exercise their right to return to CN under the terms of the Transfer Agreement;

(d) receive a voluntary severance payment as set out in paragraph 11.

…

The opportunity to return to CN under the terms of the Transfer Agreement will be granted to eligible employees subject to the agreement of the parties in the event that CN should refuse to allow the eligible employees to return to CN under the terms of the Transfer Agreement.

It does not appear disputed that some seventy-five conductors and assistant conductors in the employment of VIA who held seniority at CN by reason of prior service to that company sought to exercise the right to return to CN under item 5 of the Transfer Agreement of March 6, 1987. On July 6, 1998 CN’s Assistant Vice-President, Labour Relations and Employment Legislation advised VIA’s Chief of Transportation that CN would not permit the VIA employees to return to service at CN. While the Arbitrator has as yet heard no submissions on the merit of the dispute, excerpts from correspondence filed for the purposes of the preliminary issue indicate that CN has taken the position that the transfer agreement does not apply in the circumstances of VIA’s crewing initiative. As will be evident from the argumentation of CN’s counsel, referred to below, CN does not take the position that VIA employees do not continue to hold enforceable rights under the Transfer Agreement.

In light of the position taken by CN, on July 21, 1998 the BLE formally notified CN of its intention to dispute CN’s refusal to allow the affected employees to return to service with CN. The gist of the dispute between the BLE and CN is reflected in the following excerpt of the letter addressed to CN’s Assistant Vice-President, Labour Relations by General Chairman John R. Tofflemire, of July 21, 1998:

3. On or about July 1, 1998, the Corporation sought to implement its New Era Passenger Operations (NEPO) by making specified operational and service changes to all VIA Rail passenger trains in Canada.

4. On July 6, 1998, Richard Dixon, Company Assistant Vice-President Labour Relations and Employment Legislation, advised the Corporation’s Chief of Transportation, Mr. J.M. Lalonde, that the Company would not permit any VIA Rail employees to return to CN working boards. (Appendix B)

5. On July 21, 1998, the Brotherhood contacted the Corporation to request the disposition of the employment status of all conductors, assistant conductors and yardmasters. The Corporation advised the Brotherhood that the Company would not permit any VIA Rail employees to flowback to CN under the terms and conditions of the Transfer Agreement. Further, in support of their position, the Company stated that: "CN has not allowed any VIA Rail employees identified in your letter the ability to return to the CN working boards. Moreover, you should also be aware that CN has, for some time, taken the position that the transfer agreement is not applicable under the circumstances of VIA’s crewing initiative. Please be advised that unless this matter is resolved with VIA Rail to our satisfaction, VIA Rail employees will be restricted from placing themselves on the CN working boards." (Appendix B)

6. On July 21, 1998, the Company’s Crew Management Centre also confirmed to the Brotherhood by fax mail that Conductors, Assistant Conductors and Yardmasters are not being permitted to exercise their Special Agreement Transfer rights to CN Rail. (Appendix C)

7. The Brotherhood disagrees with the position taken by the Company in that for the past ten years the Company has permitted the free flow of VIA and CN employees to move from one company to the other when reductions warranted as contemplated and set forth by the Special Agreement …

(original emphasis)

From the outset CN refused to acknowledge that the BLE has any status to assert the rights of employees under the Special Agreement and Transfer Agreement executed among VIA, CN and the United Transportation Union on March 6, 1987. In its letter of response to the separate grievance on behalf of VIA employees by BLE General Chairman Bradford E. Wood, dated August 5, 1998 CN’s Manager, Labour Relations, Mr. Al. E. Heft, wrote, in part as follows:

The following is further to your grievance dated July 21, 1998 purportedly filed pursuant to Article (k) of a Special Agreement between the Brotherhood of Locomotive Engineers (hereafter "BLE"), VIA Rail Canada Inc. (hereafter "VIA") and Canadian National Railway Company (hereafter "CN") dated June 4, 1987. According to a subsequent letter dated July 31, 1998 from your counsel, it was specified that the Special Agreement in question was the one in fact dated March 6, 1987 and was between the United Transportation Union (hereafter "UTU"), VIA and CN. The BLE was not and is not a party to that agreement.

Furthermore, contrary to the assertion of your counsel in his letter of July 31, 1998, the BLE did not replace the UTU as a party to such a tripartite agreement by virtue of the Board’s decision to consolidate bargaining units at VIA. As the Board has recently noted in its reasons for decision dated July 20, 1998 in Board files 18666-C and 18688-C, the effect of Section 36 is limited to substituting trade union as parties to collective agreements. The tripartite Special Agreement is not, by its very nature, a collective agreement. Consequently, it is CN’s position that the BLE have no status to present a dispute under the said Special Agreement.

Not surprisingly, the parties were thereafter unable to agree on any process for the furtherance of the dispute filed against CN by the BLE. By letter dated August 18, 1998 the Canadian Director of the BLE purported to advance the dispute to CN’s Senior Vice-President, Mr. Keith Heller, in accordance with paragraph K.4 of article k of the Special Agreement. Failing any further action on the part of CN, on September 8, 1998 the BLE’s Canadian Director wrote to Mr. Warren Edmondson of Human Resources Development Canada requesting the assistance of the Minister of Labour to resolve the dispute, in accordance of article K.6 of the Special Agreement. The Minister subsequently appointed a mediator who met with the parties and was unsuccessful in resolving their difference, as he advised the Minister on October 29, 1998. On October 30, 1998 the BLE further requested the Minister to appoint an Arbitrator. In response to that request, subject to the jurisdictional objections of CN, the instant Arbitrator was appointed by the Minister, as confirmed in writing on November 5, 1998.

One further aspect of the facts should be noted. In a letter appended to the Crew Consist Adjustment Agreement negotiated between VIA and the BLE, dated June 12, 1998, VIA made an agreed undertaking with the BLE that it would continue to pay wages and benefits to the conductors, assistant conductors and yardmasters who claim the right to return to CN under the Transfer Agreement, who have elected to exercise or are deemed to have elected to exercise that right and whose status is in dispute. That letter reads, in part, as follows:

VIA is committed to protect those employees who elect, or are deemed to elect, to exercise their right to return to CN pursuant to the Crew Consist Adjustment Agreement.

For those employees who are prevented from exercising their right to return to CN, VIA will pay to them their basic weekly pay or maintenance of earnings, whichever is greater, provide their full benefit coverage and continue their pension accumulation pending their return to CN.

In order to qualify for the protection as outlined above, an employee must meet the following criteria:

1. They have the right to return to CN under the terms of the Transfer Agreement;

2. They have elected or are deemed to have elected to return to CN pursuant to the Crew Consist Adjustment Agreement;

3. They have been denied their right to return to CN.

In addition, the employee must agree and authorize VIA or its lawyers to commence such proceedings as they deem necessary to ensure that they may return to employment at CN. The employees may select his own lawyer for these proceedings but their lawyer will act in conjunction with and with the assistance of the lawyers for VIA.

All proceedings will be commenced and pursued at the sole expense of VIA including legal fees, and at no cost to the employee.

Against the foregoing background I turn to consider the argument submitted by counsel for CN. He submits that the Arbitrator is without jurisdiction to proceed, as the disputant union, the BLE, is without status to enforce the terms of the Special Agreement and Transfer Agreement concluded among CN, VIA and the UTU on March 6, 1987. Counsel for CN does not dispute that upon its certification by the Canada Labour Relations Board the BLE properly stepped into the shoes of the UTU as exclusive bargaining agent for the employees under the collective agreements covering conductors, assistant conductors and yardmasters previously negotiated between VIA and the UTU. He acknowledges that the BLE must be seen as a party to those collective agreements as reflected in article 36(1) of the Canada Labour Code which provides as follows:

36. (1) Effect of certification. – Where a trade union is certified as the bargaining agent for a bargaining unit, …

(c) the trade union so certified is substituted as a party to any collective agreement that affects any employees in the bargaining unit, to the extent that the collective agreement relates to those employees, in the place of the bargaining agent named in the collective agreement or any successor thereto.

Counsel for CN contrasts the above provision with article 43(1) of the Code which deals with mergers or the transfer of jurisdiction among trade unions and reads as follows:

43. (1) Mergers, etc., of trade unions. – Where, by reason of a merger or amalgamation of trade unions or a transfer of jurisdiction among trade unions, a trade union succeeds another trade union that, at the time of the merger, amalgamation or transfer of jurisdiction, is a bargaining agent, the successor shall be deemed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise.

Counsel stresses that the terms of article 43(1) can be interpreted to confirm that a merged union, or the assignee of another union’s jurisdiction, can assert all rights, privileges and duties of a predecessor union under a collective agreement "or otherwise." He submits that the latter phrase connotes a broader range of successorship of rights than in contemplated under the provisions governing displacement of a union by certification under article 36(1)(c) of the Code. Counsel stresses that displacement by certification is what transpired in the instant case, and that the BLE is therefore in a position to assert only collective agreement rights. By way of example, counsel submits that the BLE could not claim to assert rights which might be held by the UTU under a commercial contract or a lease, although it might do so in the circumstance of a merger or amalgamation contemplated under article 43(1).

Fundamental to CN’s argument is its assertion that the Special Agreement and Transfer Agreement negotiated among VIA, CN and the UTU do not constitute a collective agreement. In support of that submission counsel refers the Arbitrator to the definition of the term "collective agreement" found in article 3.1 of the Code which reads as follows:

"collective agreement" means an agreement in writing entered into between an employer and a bargaining agent containing provisions respecting terms and conditions of employment and related matters

Counsel stresses that the Special Agreement and Transfer Agreement, which involve the participation of two separate employers, cannot be construed as falling within the definition of a collective agreement as contemplated in the Code. In that regard he directs the Arbitrator to a number of provisions in the Code which deal with multi-employer situations, including designated employer’s organizations contemplated under article 33 and determinations that one or more employers constitute a single employer in circumstances of common control or direction, as provided under article 35. With respect to multiple parties he further points to article 32 of the Code which allows for councils of trade unions. He submits that the foregoing provisions, as well as special provisions governing the longshoring industry found in article 34 of the Code, confirm the fundamental view that a collective agreement must, absent any contrary qualification within the Code, be limited to a document binding a single employer and a single trade union. On that basis he argues that the rights of the BLE acquired as a result of its certification as bargaining agent for the running trades employees of VIA allow the BLE to step into the shoes of the predecessor union, the UTU, only as regards the ongoing administration of the collective agreement between the UTU and VIA. In counsel’s submission, as the Special Agreement and Transfer Agreement do not qualify as collective agreements, the successorship of the BLE does not extent to the enforcement of any rights under those agreements.

Referring to the genesis of the Special Agreement and Transfer Agreement, counsel further stresses that they were not negotiated under the terms of the Canada Labour Code. As noted above, they were negotiated and executed pursuant to regulations made under a different statute, Appropriations Act No. 1, 1977.

Counsel for CN further submits that it is significant that nothing in the Special Agreement or the Transfer Agreement refers, expressly or by implication, to those agreements being incorporated into the parties’ collective agreements. He also stresses the provisions of article 6 of P.C. 1977-2987 which reads as follows:

6. A special agreement shall be the only instrument applicable, with respect to benefits and the words, terms and conditions of such an instrument shall not be amended, revised or otherwise changed without

(a) a joint request from the parties to the special agreement: and

(b) the consent, in writing, of the Minister of Labour.

Counsel submits that the status of the Special Agreement as being other than a collective agreement is confirmed by the fact that it is not a bilateral agreement and can only be amended by a joint request of the three parties to the agreement and the subsequent written consent of the Minister of Labour. These are not, he stresses, factors or conditions consistent with the making or amending of a collective agreement under the Canada Labour Code. Counsel finds further confirmation of the fact that the Special Agreement is not a collective agreement by virtue of the fact that differences between the parties to that document are described within it at article K as a "dispute" to be resolved under the special mediation and arbitration procedures contained within it, as distinguished from a "grievance" normally dealt with under the grievance and arbitration provisions of a collective agreement.

Counsel submits that where reference is made to collective agreements, it is for the sole purpose of confirming that the Special Agreement is to take precedence. He cites, by way of example, article J.1 of the Special Agreement which provides for a notice period in the event of the implementation of any material change in railway passenger services made pursuant to the Passenger Services Adjustment Assistance Regulations which may have adverse effects on employees. That article goes on to provide, in part, that the minimum three month notice provided therein is mandatory and states, in part:

The provisions of this Article J.1 supersede the notice requirements of any Collective Agreement between any of the parties signatory hereto in respect of a material change in working conditions.

Counsel for CN further stresses a number of other aspects of the Special Agreement which differentiate it from a collective agreement. He notes that the Special Agreement is of an undetermined or indefinite duration, with its term being essentially tied to the working lifetime of the last employee whose rights may be exercised under it. He also notes that, unlike a collective agreement, a special agreement of the kind which is the subject of this dispute can give rise to a conflict between two of the three parties signatory, including a dispute between two employers. By way of example he cites the dispute between Canadian National Railways and Canadian Pacific Ltd. arising under article (G) of a special agreement signed July 7, 1978, apparently made under the same regulation, reflected in an award of Arbitrator Weatherill dated February 3, 1984. That dispute concerned a disagreement between the parties to the special agreement there under consideration, article (G) of which contained a provision for the exercise of seniority rights by shopcraft employees under their collective agreements in the event of the movement of employees by reason of the transfer of passenger related work from CP to CN. Further with respect to the issue of privity, counsel cites to the Arbitrator’s attention another award by Arbitrator Weatherill in a grievance between CN and the International Brotherhood of Electrical Workers (grievance of G. Tremblay), an award dated April 13, 1987 in which the Arbitrator concluded, in part, that he did not have jurisdiction to make an award enforceable against VIA Rail in furtherance of an employee’s grievance claiming the right to transfer to VIA pursuant to a special bulletin issued under a transfer agreement involving CN, VIA and the union.

Counsel notes that VIA and the UTU did agree to incorporate the Special Agreement and Transfer Agreement into the terms of their own collective agreement, Collective Agreement No. 12, executed on March 6, 1987. He submits that the UTU and VIA could not, by that agreement, purport to bind CN or to in any way to affect it rights under the provisions of the Special Agreement or the Transfer Agreement.

Counsel stresses that CN’s position is not tantamount to arguing that by reason of the displacement of the UTU as the bargaining agent for conductors, assistant conductors and yardmasters at VIA those employees have fallen into a "black hole" with respect to their ability to assert rights vis-à-vis CN under the terms of the Special Agreement and Transfer Agreement. Counsel emphasises that CN in no way disputes the ongoing life of those agreements, and the correlative rights of employees affected by them. He submits, however, that the agreements in question are not a collective agreement, that the BLE is not privy to them and that it has no standing to assert any rights of the employees covered by those agreements as against CN.

In support of CN’s position counsel refers the Arbitrator to the following authorities: Re Somerville Industries and International Chemical Workers’ Union, Local 817 (1977), 14 L.A.C. (2d) 303 (Hinnegan); Re Bakery and Confectionery Workers’ International Union, Local 322, and Canada Bread Co. Ltd. (1970), 22 L.A.C. 98 (Christie); Re Bell Canada et Syndicat des travailleurs en communications et en électricité du Canada (1992), 31 L.A.C. 4th 332 (Frumkin); Re Canadian National Railways and Canadian Pacific Limited and the Canadian Council of Railway Shopcraft Employees and Allied Workers (an unreported award of Arbitrator J.F.W. Weatherill dated February 3, 1984); Re Canadian National Railway Company and the International Brotherhood of Electrical Workers (an unreported award of Arbitrator J.F.W. Weatherill dated April 13, 1987; Re Dryden Paper Co. Ltd. and United Paperworkers’ Union, Locals 105 and 1323 (1976) 11 L.A.C. (2d) 337 (H.D. Brown); Hydro-Québec et Syndicat des employées et employés de métiers d’Hydro-Québec, DTE no. 93T-839; Re A.E. McKenzie Co. Ltd. and United Food and Commercial Workers Union, Local 832 (1993), 37 L.A.C. (4th) 129 (Hamilton); Re SCFP, section lacale 1417 c. Vidéotron Ltée, DTE no. 98T-981 (C.A.); Re Canadian Broadcasting Corp. v. Burkett (1998) 155 DLR (4th) 159, (Ont. C.A.); Re Côté c. Saiano 1998 R.J.Q. 1965, (C.A.); Re Gauthier c. Chabot, 98T-1070 (C.A.); Re Nadeau c. Carrefour des jeunes, 98T-1071 (C.A.); Re Latulippe c. Com scol. De la Jeune-Lorette 1998 R.J.Q. 560, (C.S.); Re Syndicat du transport de Montréal (C.S.N.) c. Tremblay, DTE no. 93T-978; Re Scoiété d’électrolyse et de chimie Alcan Ltée c. Fédération des syndicats du secteur de l’aluminium inc., DTE no. 95T-1360.

Counsel for the BLE disputes CN’s characterisation of the Special Agreement and the Transfer Agreement as not constituting a collective agreement. He submits that the position so argued is technical to the point of unreality, and that it departs entirely from the history of the agreements and the intentions of the parties. Counsel for the BLE advises the Arbitrator that a number of special agreements were negotiated in relation to the transfer of employees from CN to VIA for the purposes of assisting VIA to provide rail passenger service. He notes that the shopcraft unions negotiated special agreements which did not incorporate indefinite "flow-back" rights for the employees, limiting the right of return of shopcraft employees to a period of two years, with maintenance of earnings protection thereafter. Counsel stresses that the running trades special agreements are to be distinguished in that they include the separate negotiation of an additional memorandum of agreement – the Transfer Agreement – allowing for the return of employees from VIA to CN in certain defined circumstances, for the working career of the employees affected.

In the submission of counsel for the BLE the juridical nature of a special agreement is best reflected in sections 4 and 5 of Railway Passenger Service Adjustment Assistance Regulations which read as follows:

4. In negotiating a special agreement, the parties to the special agreement process shall, inasmuch as the following are generally incorporated in their existing job security agreements, give consideration to the following:

(a) in so far as possible, ensuring continuing employment for the employees concerned;

(b) where preferred and to the extent possible, keeping employees in gainful employment at the same location;

(c) where necessary, training employees for alternative employment;

(d) when required, providing appropriate assistance in relocation;

(e) in so far as possible, avoiding loss of employees’ earnings;

(f) developing a separation plan for the assistance of employees close to or eligible for retirement who wish to leave the work force;

(g) minimizing seniority obstacles for the purpose of facilitating

(i) continuing employment by Canadian National Railway Company and Canadian Pacific Railway Limited where mutually agreed to by the parties, and

(ii) the transfer of employees to VIA Rail Canada Inc.;

(h) where employees are laid off, providing reasonable weekly lay-off benefits or severance payments; and

(i) assisting employees unable to maintain their jobs to secure employment outside the railway industry.

5. (1) A special agreement shall provide for the benefits an the terms and conditions of those benefits contained in

(a) Railway Job Security, Technological, Operational or Organizational Change Agreements between Canadian National Railway Company, Canadian Pacific Railway Limited and non-operating shop-craft or other unions; or

(b) Railway Material Change Agreements between Canadian National Railway Company, Canadian Pacific Railway Limited and United Transportation Union and Brotherhood of Locomotive Engineers.

(2) A special agreement may provide for benefits and conditions in addition to those referred to in subsection (1), consistent with the principles referred to in section 4.

Counsel stresses that section 5(2) expressly contemplates the negotiation of benefits additional to those listed in section 4. He submits that the Transfer Agreement negotiated in 1987 is precisely such an additional benefit. Counsel stresses that the language of the Transfer Agreement is, on its face, indicative of a meshing of rights which expressly incorporates or amends the provisions of three separate collective agreements between CN and the UTU. He notes that the cover page of the Transfer Agreement expressly cites "Agreements 4.3, 4.16, 4.6". In his submission the collective agreement reference most central to this dispute is reflected in item 5(a) of the Transfer Agreement which governs the rights of employees subject to reductions in employment at VIA and reads as follows:

5(a) During the Reciprocal Rights Period referred to in paragraph (a) of item 4, if an employee who, in the exercise of seniority, is unable to hold a regular assignment in road service at VIA at his/her home station, and who does not wish to exercise his/her seniority on the seniority district at VIA, may exercise his/her seniority at CN pursuant to the terms of the applicable Collective Agreement.

The BLE argues that the position taken by CN is entirely inconsistent with the well established law in relation to the transfer of bargaining rights contemplated under the Canada Labour Code. He submits that following the certification of the BLE as bargaining agent for all running trades employees within VIA, the BLE became the exclusive bargaining agent for VIA employees who hold rights under the Transfer Agreement, rights which are enforceable against CN. In support of his position he further stresses that the definition of "collective agreement" found within the Code, reproduced above, specifically contemplates that a collective agreement is to deal with terms and conditions of employment "… and related matters". In his submission the Transfer Agreement falls well within the concept of related matters, notwithstanding that it may flow from a separate statute. Stressing that the Transfer Agreement deals explicitly with the preservation, transfer and extinguishing of seniority rights, while making specific reference to specific collective agreements, counsel for the BLE submits that the Transfer Agreement must itself be characterized as a collective agreement in respect of which the BLE exercises exclusive representational rights for VIA running trades employees. He argues that the duty of fair representation which the BLE owes to the VIA employees under section 37 of the Canada Labour Code must, on any rational understanding of these documents, be understood to extend to the enforcement of rights under the Transfer Agreement, rights which are of the very essence of the employees’ job security. He submits that the position of CN, which is that the BLE, the sole bargaining agent for VIA running trades employees, has no status to invoke the dispute mechanism contained within article K of the Special Agreement is in flagrant disregard of the status of the BLE as the certified bargaining agent of the employees, both for the purposes of the Canada Labour Code and the Special Agreement. Noting that what he characterizes as the highly technical position argued by CN could not be made if the UTU were the continuing bargaining agent of VIA employees, he submits that CN’s argument can be no more successful merely by reason of a change of bargaining agent.

Counsel for the BLE further disputes any suggestion that the UTU retains any right to represent the running trades employees of VIA for the purposes of the Special Agreement. That union cannot, he submits, assert jurisdiction to represent the VIA employees for the purposes of their transfer back into the service of CN. According to his analysis, the VIA employees are not unlike job applicants vis-à-vis CN, with no status to be represented by the UTU until such time as they become active employees under the CN-UTU collective agreements, agreements which now operate under the Canadian Council of Railway Operating Unions (CCROU) a council comprised of the UTU and the BLE by virtue of certification by the Canada Labour Relations Board.

Counsel for the BLE further stresses that prior to the BLE obtaining lawful successorship in respect of the UTU’s bargaining rights for running trades employees at VIA, VIA and the UTU expressly incorporated the terms of the Special Agreement and the Transfer Agreement into the collective agreements which the UTU held with VIA governing conductors and assistant conductors in the east (collective agreement 12), the west (collective agreement 11) and yardmasters (collective agreement 4.2). He submits that by any interpretation the Special Agreement must be viewed as an ancillary document to the collective agreements. He further submits that the Transfer Agreement itself, as reflected in article 5(a), expressly incorporates the CN collective agreement into its terms by dealing, as it does, with the exercise of seniority of VIA employees into positions at CN "… pursuant to the terms of the applicable collective agreement."

With respect to CN’s argument that the agreement of VIA and the UTU to incorporate the Transfer Agreement into the terms of their collective agreement cannot be binding as against CN, counsel maintains that there is no impact upon CN by the incorporation in question. Nothing within the terms of the Special Agreement or the Transfer Agreement is, counsel submits, changed by that incorporation, nor are any of the rights or obligations of CN in any material way impacted by it. He further submits that if CN’s argument should prevail there would, notwithstanding its suggestions to the contrary, effectively be a "black hole" whereby the vested rights of the VIA running trades employees to return into service at CN would become virtually unenforceable. He submits that that conclusion is neither desirable nor supportable in law.

In furtherance of his submissions, counsel for the BLE refers the Arbitrator to the following authorities: Re VIA Rail Canada Inc. and Brotherhood of Locomotive Engineers [1994] C.L.A.D. No. 1120 (M.G. Picher); Re Bakery and Confectionery Workers’ International Union, Local 322, and Canada Bread Co. Ltd. (1970), 22 L.A.C. 98 (Christie); Re Artistic Woodwork Co. Ltd. and Canadian Textile and Chemical Union (1974) 5 L.A.C. (2d) 131 (Shime); CROA 2293 (an unreported award dated October 16, 1992 of Arbitrator M.G. Picher); Re VIA Rail Canada Inc. and Brotherhood of Locomotive Engineers (1998), C.L.R.B.D. No. 1233; Re Northern-Loram Joint Venture and Canadian Brotherhood of Railway, Transport and General Workers et al [1985], C.L.R.B.D. No. 498; Re Loranz and Air Canada, [1997] C.L.A.D. No. 645 (Marchessault); Re Fitzgerald and Bank of Montreal, [1998] C.L.A.D. No. 15 (Davie).

Counsel for the UTU fully supports the submissions of counsel for the BLE. He stresses that as a matter of historic fact running trades employees have flowed back and forth between VIA and CN without any difficulty or controversy. He submits that the transfer of bargaining rights to the BLE has changed nothing, suggesting that the two unions may now have a shared jurisdiction with respect to the enforcement of the Special Agreement and the Transfer Agreement. Alternatively, he submits that if it should be found that the UTU is the only party able to enforce the Transfer Agreement, he advised the Arbitrator the UTU vests full agency in the BLE to do so in respect of those VIA running trades employees, being seventy-five in number, who are the subject of this dispute.

As its basic position, the UTU agrees with the argument of the BLE that the certification by the Canada Labour Relations Board enables the BLE to step fully into the shoes of the UTU for all collective bargaining purposes. He submits that the analysis of CN is too narrow, and fails to take into account that in the railroading industry the companies and running trades unions have made many kinds of special agreements, such as crew consist and conductor-only agreements, which have always been acknowledged as being fully enforceable as part of their ongoing collective agreement.

Although the fundamental position of the UTU is that the BLE has the full requisite status to proceed with a dispute with CN under the Transfer Agreement, either in its own right or, if necessary, as the agent of the UTU, counsel further advised the Arbitrator that the UTU has itself filed a grievance under its collective agreement with CN and has also filed a dispute under the Special Agreement. The current status of those matters was not elaborated, although they are plainly not before the instant Arbitrator.

Counsel for VIA also endorses the position argued by the BLE. He questions the wisdom, from a labour relations standpoint, of the argument and conclusions advanced by CN. Noting that within CN there has been a change of legal bargaining agent, as the CCROU is now the trade union council representing CN’s conductors, assistant conductors and yardmasters, he questions what might result if the UTU went fully out of existence. In his submission such developments should not be seen as undermining or negating the rights vested in the employees protected by the terms of the Special Agreement and the Transfer Agreement, and that the orderly succession of bargaining rights for the enforcement of their provisions should be affirmed in these circumstances.