AH – 489
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
RUN-THROUGH & MATERIAL CHANGE GRIEVANCE RE TORONTO–OAKVILLE
Sole Arbitrator: Michel G. Picher
Appearing For The Brotherhood:
James L. Shields – Counsel, Ottawa
J. Tofflemire – General Chairman, Oakville
Scott Chamberlain – Counsel, Ottawa
Eric McKinnon – Local Chairman, Montreal
Mike Grieve – Local Chairman, Toronto
Appearing For The Corporation:
Louise Béchamp – Counsel, Montreal
B. E. Woods – Director, Human Resources /Labour Relations, Montreal
J. H. Lafleur – Counsel, Montreal
A hearing in this matter was held in Montreal on Tuesday, May 30, 2000.
The parties have submitted an issue for expedited decision by the Arbitrator, partly as the result of a settlement reached with the assistance of the Canadian Industrial Relations Board. At issue are certain changes in the Corporation’s passenger service between Toronto and Montreal and Toronto and Ottawa, respectively.
The dispute relates to the fact that crews in road service on both assignments are now required to also service Oakville, west of Toronto. Specifically, trains 52 and 67, regularly scheduled between Montreal and Toronto, also service Oakville, while trains 40 and 47, operating between Toronto and Ottawa, do likewise. It appears that other changes were introduced by the Corporation, including the addition of overnight trains between Toronto and Montreal, although that change does not arise as part of this dispute.
At the risk of over-simplifying, it appears to the Arbitrator that what has occurred is as follows. Prior to the change implemented by the Corporation, road crews home terminalled at Toronto assigned to operate in road service from Toronto to Montreal reported for duty at Union Station, were taxied or deadheaded to Mimico where they collected their train and returned the equipment to Union Station in Toronto for departure on their road assignment to Montreal. It appears that frequently the equipment was in fact moved by a yard crew from the Mimico yard to Union Station, so that frequently Toronto crews reported for duty at Union Station where they boarded their train directly for service to Montreal.
Under the change implemented by the Corporation, Toronto based crews report to Union Station, and are then taken by taxi or otherwise to the Toronto Maintenance Centre where they collect their train. They then proceed with the train to Oakville, where passengers are boarded, and then proceed back to Union Station, and then onwards to Montreal. It is common ground that the Toronto-Montreal and Toronto-Ottawa trains are in fact joined together for the Oakville to Brockville segment of the trip, where they are then split for service to Ottawa and Montreal respectively.
The converse situation applies to crews operating from Montreal to Toronto via Oakville or from Ottawa to Toronto via Oakville.
At issue in these proceedings is whether the Corporation was under an obligation to give notice to the Brotherhood of either a run-through or a material change in accordance with article 78 of collective agreement 1.1. It is the Brotherhood’s position that the Toronto terminal is in fact run-through under the changes implemented and that, in the alternative, what has transpired must be characterized as a material change within the meaning of article 78 of the collective agreement. That is reflected in its statement of dispute and ex parte statement of issue filed at the hearing which reads as follows:
The Corporation’s refusal to serve a material change notice prior to the introduction of run-through trains at Toronto, a home terminal on extended run territory. The run-throughs imposed by the Corporation have created a number of changes in working conditions. This dispute alleges a violation of article 78 of collective agreement 1.1. Past practice and history in the industry have required signed agreements for run-through operations and expanded services.
BROTHERHOOD’S STATEMENT OF ISSUE:
The implementation of an “expanding rail passenger services” initiative implemented by the Corporation resulted in a dispute between the parties. The Brotherhood representatives from Toronto and Montreal filed formal grievances.
This dispute arises from the fact that no formal agreement was in place between the parties prior to the implementation of the expanding rail passenger services initiative and the run-through Toronto to Oakville. The implementation of the run-through has proceeded creating a number of changes in working conditions. No agreement was negotiated between the parties as the Corporation advised the Brotherhood that no such agreement was necessary.
The current imposed changes in working conditions include increased held away time, additional hours on duty, uncertain accommodation arrangements, bulletining problems, work distribution changes, equalization of miles concerns, loss of regular assignments, changes in service classification and other pertinent outstanding issues.
The first issue to be resolved, therefore, is whether what has occurred is a run-through. An inevitable secondary issue, however, is whether what has transpired can be characterized as a material change which would give rise to obligation to give notice. Whether the material change might or might not produce adverse impacts may be an arguable issue. In the instant case it is agreed that that matter is to be separately addressed, should the Brotherhood be successful on its initial position with respect to the issue of run-through or material change.
Article 78 of the collective agreement, which is material to this grievance, reads, in part, as follows:
78.1 Prior to the introduction of run-throughs or changes in home stations, or of material changes in working conditions which are to be initiated solely by the Corporation and would have significantly adverse effects on locomotive engineers, the Corporation will:
(a) negotiate with the Brotherhood measures to minimize any significantly adverse effects of the proposed change on locomotive engineers, but such measures shall not include changes in rates of pay, and
(b) give at least six months’ advance notice to the Brotherhood of any such proposed change, with a full description thereof along with details as to the anticipated changes in working conditions.
78.2 While not necessarily limited thereto, in the case of run-throughs, and in the case of other changes where applicable, the matters considered negotiable will include the following:
(a) appropriate timing
(b) appropriate phasing
(c) hours on duty
(d) equalization of miles
(e) work distribution
(f) appropriate accommodation
(h) seniority arrangements
(i) learning the road
(j) use of attrition
78.6 This article does not apply in respect of changes brought about by the normal application of the collective agreement, changes resulting from a decline in business activity, fluctuations in traffic, traditional reassignments of work or other normal changes inherent in the nature of the work in which engineers are engaged.
The position of the Corporation is that what has transpired is not a run-through, as there has been no change in home terminal of any of the employees concerned, but merely an alteration in assignment to incorporate passenger service to and from Oakville as part of the Toronto-Montreal and Toronto-Ottawa service. In the submission of counsel for the Corporation what in fact has transpired is not a material change either, but a change which falls within the exceptions to article 78 as being changes brought about by the normal application of the collective agreement or other normal changes inherent in the nature of the work in which engineers are engaged, within the meaning of the exception provisions contained within article 78.6 of the collective agreement.
The Arbitrator is satisfied that the Corporation is correct with respect to the issue of run-through. The incorporation of Oakville as a station stop, and the reorganization of the assignments accordingly do not, in my view, constitute a run-through within the meaning of article 78 of the collective agreement. While the collective agreement does not purport to define the meaning of a run-through, there is ample jurisprudence and tradition within the industry dealing with that concept, perhaps best reviewed in AH 274, a decision between these same parties heard in December of 1989. That award reviews the history of run-throughs, dating back to the report of Mr. Justice Samuel Freedman in 1964 and the recommendations which led to the language now found in article 78.
On the basis of the jurisprudence and long-standing practice in the industry, the Arbitrator cannot find that the assignment in question constitutes a run-through of Toronto. The concept of a train assignment involving travel from an originating terminal through the objective terminal to a third point, and thence back to the objective terminal, or the converse, is well recognized within the jurisprudence, as for example in the decision of Arbitrator Weatherill in CROA 208. In the instant case the employees in question home teminalled at Toronto and Montreal suffer no change in the location of their home terminal. While there is obviously a change in the passenger route and assignment which they now are compelled to operate, that change of itself cannot fairly be characterized as a run-through such as, for example, the run-through of Nakina considered by Mr. Justice Freedman or other run-throughs, such as the run-through of Belleville in the Toronto-Montreal service of the Corporation.
A separate question, however, is whether there is nevertheless a material change disclosed in the initiative of the Corporation. In the Arbitrator’s view that question must be answered in the affirmative. Firstly, as counsel for the Brotherhood stresses, the changes implemented by the Corporation raise significant issues with respect to a number of matters, including issues specifically listed as being negotiable under article 78.2 of the collective agreement, such as hours on duty, the equalization of miles, work distribution, seniority arrangements and learning the road.
It seems to the Arbitrator that the parties have allowed a certain degree of latitude in the language of their collective agreement with respect to whether a change does or does not constitute a material change in working conditions which triggers the obligations of article 78 of the collective agreement. It is trite to say that each case must be judged on its own specific facts, for the purposes of that determination. In the case at hand I am satisfied that the changes implemented by the Corporation, particularly as they involve what appear to be permanent alterations in the distribution of work as between yard and road assignments, hours on duty, the equalization of miles and the administration of seniority arrangements, can fairly be characterized as a material change in working conditions initiated by the Corporation.
That does not necessarily mean that the material changes in question will in fact have significantly adverse effects on locomotive engineers. That issue remains to be determined by negotiation or at a continuation of this hearing. The matter shall therefore be scheduled for continuation for the purpose of hearing the submissions of the parties on those issues, should they be unable to agree.
Dated at Toronto, June 8, 1998
(signed) MICHEL G. PICHER