AD HOC august 1994

AWARD OF THE ARBITRATOR

UNION’S STATEMENT OF ISSUE:

On September 12, 1996, the Union and the Corporation met to discuss operation of the leased IC3 train due to go into service at the end of September. The Corporation also notified the Union that the Corporation was to operate this train on an experimental basis prior to revenue service for about 7 to 10 days. The Union and the Corporation could not reach an agreement concerning the IC3 train and both parties discontinued further talks.

On September 15, 1996, the Union advised the Corporation of its position concerning the crewing of the IC3 train. By letter dated September 25,1 996, the Corporation advised the Union that it was their position that there was no violation of the collective agreement.

The Corporation advertised for applicants to operate the IC3 train effective the end of September. On that bulletin the Corporation did not advertise for one (1) Assistant Conductor on trains operated on the Guelph and Grimsby Subdivisions.

The Union advised the Corporation that this bulletin was in violation of the Crew Consist Article in the Mackenzie Award. The Corporation advised the Union that it was their position that there was no violation of the Mackenzie Award.

Therefore, as per our letter dated September 15, 1996, the Union will be seeking compensation and all lost wages to our members.

The Union’s position is that the operation of this train on the Guelph and Grimsby Subdivisions is a violation of the Mackenzie Award and Agreement 12.

The Corporation disagrees with the Union.

CORPORATION’S STATEMENT OF ISSUE:

On August 7 and 8, 1996, the Corporation met with the Union to advise of the proposed operation on a trial and experimental basis of equipment referred to as “IC3” trains. More particularly, the Corporation wished to inform the Union of crew consist (i.e. conductor only), discuss run schedules as well as discuss procedures to be applicable should the experimental service be discontinued at the end of the proposed initial six month period.

During subsequent meetings on IC3, the Union advised the Corporation that its cooperation regarding these trains was conditional upon the Corporation agreeing to grant the Union 20 pension credits (the Union subsequently reduced its demand to 10 pension credits). These pension credits would allow Union members early retirement with bridging packages. The Corporation advised the Union that no such credits would be available, given the experimental nature of the project and that if the equipment and market tested satisfactorily, no reduction in positions would occur but rather, nine new positions would be created.

Two IC3 units are presently leased from Amtrak, through an arrangement by the manufacturers, for a period of six months in order to allow the Corporation to evaluate these trains, both as to equipment performance and market feasibility.

The Corporation advertised in late September for conductors to man the new train services but no applications were submitted. As a result, the Corporation was obliged to assign the junior employees to these assignments.

The IC3 trains were on display for a two-week period in various cities and were introduced in revenue service on November 19, 1996 following approval from Transport Canada.

The IC3 equipment is currently operated on the following train services:

· Toronto to Ottawa

· Toronto to Kingston

· Toronto to London

· Toronto to Kitchener

· Toronto to Stratford

· Toronto to Niagara Falls

The above services all constitute “new” services in that they are in addition to train services that were in place prior to the leasing of the equipment.

Each train service is currently manned by a conductor only. Training is assured by at least one “trainer” on board every train. Further, a technician is frequently on board to assist and monitor the equipment.

The Union has grieved the conductor only operation for train services running over the Guelph subdivision, as well as the Grimsby subdivision. This grievance applies to the “conductor only” operation for the Toronto to Kitchener train service, the Toronto to Stratford service and, lastly, the Toronto to Niagara Falls service.

This grievance concerns the crew consist to be assigned to the Flexliner IC3 trains being operated in revenue service on a trial basis by the Corporation. A new generation of passenger equipment, the IC3 train, produced by ABB Scandia, a European manufacturer, is a short to medium range passenger train consist that is self-powered. The units utilized by the Corporation are made up of three sections which visually resemble standard coaches, save that only the forward and rear units have diesel power. The sections are not discrete coaches, to the extent that wheel trucks in fact straddle the head and rear of consecutive units. Also, the interior space of a three section assembly does not contain any divider doors between the sections. Each of the power sections or units contains a working station for a one locomotive engineer. Therefore, the Flexliner is operated by a single locomotive engineer, being stationed at either extremity of the train, depending on its direction of travel. The IC3 consists are being utilized, on a trial basis, on short to medium range runs within Ontario. As can be seen from the parties’ statements of issue, this grievance concerns a dispute between them with respect to the number of conductors and assistant conductors to be assigned to the trains.

This case resolves itself upon the application of article E of the June 14, 1995 award of interest arbitrator Mr. Justice Mackenzie, as well as the addendum provided in his award for consists of crews in conductor-only operations. The language of the provisions in question is as follows:

Article E

Consist of Crews

1. Subject to the provisions of the Addendum attached to this Agreement, crew consists in road service shall be as follows:

Train Consist	Crew Consist
(a ) Two Rail Diesel (Budd) cars or less – no working baggage car.	1 Conductor
(b ) Three or less working coaches – no working baggage car.	1 Conductor
(c ) Four or less working coaches with one working baggage car	1 Conductor 1 Asst. Conductor
(d ) More than three and less than seven working coaches and no baggage car.	1 Conductor 1 Asst. Conductor
(e ) Four or more working coaches – two working baggage cars	1 Conductor 2 Asst. Conductors
(f ) Five or more working coaches – one working baggage car.	1 Conductor 2 Asst. Conductors
(g ) Seven or more working coaches – no working baggage car.	1 Conductor 2 Asst. Conductors

Premium Pay - Conductor Only Trains

2. In the application of this article, conductors operating by themselves on conductor only trains, will be paid the following allowance per tour of duty, based on the scheduled running time, in addition to their basic rates:

0’00” – 4 hours – $15.00

4’01” – 6 hours – $20.00

6’01” – 7 hours – $30.00

This premium applies to each segment of a round trip in continuous time.

…

Addendum

Consist of Crews

Conductor-Only Operation

Trains with three or less working coaches shall be staffed with only one Conductor, except on the following train services: Toronto-Windsor, Toronto-Sarnia (via Guelph Subdivision), Toronto-Niagara Falls. In response to the Union’s request, the Corporation is willing to phase in this change as follows:

· In C.T.C. territory, implementation Fall 1995 Change of Time.

· Between Toronto and Ottawa, implementation Spring 1996 Change of Time.

· All other train services that qualify, implementation Fall 1996 Change of Time.

No train will be operated with a conductor only crew if the normal scheduled running time exceeds seven hours.

The Union asserts that the Corporation is in violation of the above provisions by its failure to assign an assistant conductor to the IC3 trains operating between Toronto and Niagara Falls, partly over the Grimsby Subdivision, as well as the trains operating between Toronto and Kitchener, or Toronto and Stratford, travelling in part over the Guelph Subdivision. It is common ground that both the Grimsby Subdivision and the Guelph Subdivision are OCS territory, and do not have the automatic signalling available on Centralized Traffic Control or CTC territory. In OCS territory, running crews obtain their operating orders from a dispatcher, by radio, as they proceed.

The Union’s position is two-fold. Firstly, it submits that the IC3 train must be characterized as a consist of three rail diesel cars, or “Budd” cars, and, being in excess of the two rail diesel cars contemplated in paragraph 1(a) of article E, must be crewed by a conductor and an assistant conductor. Alternatively, the Union maintains that the intention of the Mackenzie award, as reflected in the addendum, is to establish certain defined territory in which an assistant conductor must be utilized. It argues that the exempted territories essentially involve any route which utilizes either the Grimsby Subdivision, which is the case for the Toronto-Niagara Falls service, or the Guelph Subdivision, including any Toronto-Windsor trains which might utilize the Guelph Subdivision, as well as Toronto-Sarnia, Toronto-Kitchener and Toronto-Stratford trains.

The first position of the Corporation is that the IC3 train is a single rail diesel or “Budd” car, and that consequently the Corporation is justified in using conductor-only crews in all IC3 train service. In this regard it stresses that the three sections of the train are inseparable, that there are no couplings between the motor units and the unpowered middle unit, and that all three units operate on four sets of straddling wheel trucks. It also stresses that the IC3 train is similar to a rail diesel or “Budd” car in that it has an engineer station at either end of the consist, as does a Budd car. It further notes that the passenger capacity of the IC3 unit, utilizing three sections, is 141 passengers, which is slightly less than the passenger capacity of a consist of two Budd cars.

The second alternative proposition advanced by the Corporation is that the IC3 train should be treated as two rail diesel cars, which are to be operated on a conductor-only basis in accordance with paragraph 1(a) of article E of the award of Mr. Justice Mackenzie. More specifically, the Corporation submits that the amending of article 12 of the collective agreement by the introduction of article E.1(b) reveals the intention of Mr. Justice Mackenzie to allow the Corporation to operate conductor-only where a consist has three or less working coaches. Further, if the IC3 train is not to be considered to be either a single rail diesel car or two rail diesel cars, the Corporation submits that it would be referable to the new category of conductor-only service established by Mr. Justice Mackenzie at article E.1(b) of his award as it is comprised of three or less working coaches.

As a final alternative, the Corporation submits that, in any event, the entitlement of the Union to the assignment of an assistant conductor in conductor-only service must be applied in accordance with the language of the addendum to article 12.1(b) of the collective agreement. That addendum, it submits, specifically defines three train services which are to operate as exceptions to the conductor-only rule: Toronto-Windsor, Toronto-Sarnia via the Guelph Subdivision and Toronto-Niagara Falls. On that basis it maintains that service from Toronto to Kitchener or Toronto to Stratford can be operated on an conductor-only basis, notwithstanding that some part the trip might be over the Guelph Subdivision. Its counsel submits that what is reflected in the addendum of Mr. Justice Mackenzie is the arbitrator’s implementation of a bargaining trade off between the positions of the two parties. Specifically, she submits that there is no rationale either expressed or implied in the award of Mr. Justice Mackenzie to suggest that all travel over any segment of OCS territory, such as the Guelph Subdivision, must necessarily require the assignment of an assistant conductor. In this regard she draws to the Arbitrator’s attention the existence of a number of sections of OCS territory elsewhere on its system, including the Toronto-Ottawa route which has some fifty miles of OCS territory, the route between Quebec City and Montreal, which is partially OCS territory, and the route between Prince George, B.C. and Jasper. None of those territories is identified in the addendum as an exception to conductor-only service. On that basis the Corporation submits that there is no reason to imply from the Mackenzie award, as the Union would suggest, that any run which travels, in part, over OCS territory, is necessarily caught by the exemption from conductor-only operations.

I turn to consider the merits of the dispute. Firstly, the Arbitrator has substantial difficulty with the arguments advanced by both parties to the effect that the IC3 train qualifies as either one or two rail diesel cars within the meaning of paragraph 1(a) of article E of the award of Mr. Justice Mackenzie. It is significant, I think, that that paragraph speaks specifically, albeit in parentheses, to the rail diesel cars in question being “Budd” cars. It is common ground that, with the exception of a single car electrical service which once operated in commuter service to and from Montreal, all non-locomotive powered trains in passenger service in Canada, from a time predating the existence of the Corporation, have been rail diesel cars manufactured by the Budd Corporation, and generally known as “Budd” cars. In other words, the term “Budd car” has, over the years, become the accepted name of a very specific piece of equipment, well known within the industry. For reasons they best appreciate, the parties themselves incorporated the reference to Budd cars within article 12 of their own collective agreement, well in advance of the introduction of equipment such as the IC3 train. It therefore appears indisputable to the Arbitrator that the reference to “rail diesel (Budd) cars” which appeared in the collective agreement, and which was continued in the award of Mr. Justice Mackenzie at article E.1(a), must be taken to refer to the well-known Budd car equipment.

Moreover, from a factual perspective, it is an obviously strained interpretation which would characterize the IC3 train with its three sections, referred to as “coaches” in the descriptive literature by the equipment’s own manufacturer, as constituting either one or two Budd cars. In the result, I am satisfied that the first two positions advanced by the Corporation, as well as the first position advanced by the Union, must be rejected. The Flexliner IC3 train is not a rail diesel “Budd” car or cars within the contemplation of the collective agreement. As acknowledged by the Corporation, that conclusion means that the grievance must be allowed as it relates to the Toronto-Niagara Falls service. The train is comprised of three or less working coaches in Toronto-Niagara Falls service, an exception specifically identified for the use of an assistant conductor within the addendum governing conductor-only operations.

What then of the Union’s submission that trains which operate within the territory between Toronto and Sarnia, partially over the Guelph Subdivision, including shorter routes such as service to Kitchener and service to Stratford from Toronto, must be taken as included in the exceptions found in the addendum? After much consideration the Arbitrator is unable to agree with the Union’s submission. Upon a review of the documents which the parties submitted to Mr. Justice Mackenzie, and an examination of the plain language of the addendum, it is difficult to find that the interest arbitrator intended to provide for the services of an assistant conductor automatically on any segment of the Toronto-Sarnia route which might involve travel over the Guelph Subdivision. While the record discloses that the Union’s submission to Mr. Justice Mackenzie stressed that conductor-only operations should be restricted to territory which functions under centralized traffic control, that position obviously did not carry the day. As reflected in the Corporation’s submission made to the arbitration panel chaired by Mr. Justice Mackenzie on May 26, 1995, the Corporation indicated its willingness to forbear implementing conductor-only service for a number of services including “between Toronto-Sarnia via Kitchener, Toronto-Windsor, Toronto-Niagara Falls and to restrict the Jasper-Prince Rupert conductor-only operations to Prince George-Prince Rupert. It also indicated its willingness to delay the implementation of conductor-only service to the spring of 1996 for the Toronto-Ottawa service, and the fall of 1996 change of time for all “other services that qualify” which would clearly appear to include some services in non-CTC territory.

Very simply, as reflected in the positions articulated by the parties themselves, the Arbitrator cannot come to the conclusion, on the balance of probabilities, that either the negotiations, the degree of consensus achieved between the parties, or the intention of Mr. Justice Mackenzie was to express the exceptions to conductor-only service either in terms of service in whole or in part over OCS territory, or in terms of all segments of territory between two geographic points. Rather, as the Corporation points out, the exceptions are defined in terms of specific “train services” separately identified within the addendum. Significantly, in a number of locations in Canada the exception to conductor-only service was not applied in OCS territory. In that context, I do not see how a board of rights arbitration, such as this Office, can fairly conclude that the award of Mr. Justice Mackenzie intended to restrict the Corporation from operating conductor-only in train services which are not identified as exceptions, such as Toronto-Kitchener or Toronto-Stratford, notwithstanding that they might, like other conductor only services, operate in part over OCS territory. Plainly, had the original rationale of the Union’s position, as expressed in its brief to Mr. Justice Mackenzie with respect to the need for more than an single conductor in OCS or “dark territory” been accepted and acted upon in the language of the award, a different conclusion might be supportable. However, I must take the award as I find it. It restricts the exception to conductor-only service for trains with three or less working coaches to certain very specifically identified train services. As the Toronto-Niagara Falls service is identified, the grievance must be allowed in respect of it. The same cannot be said, however, of Toronto-Kitchener or Toronto-Stratford.

For the foregoing reasons the grievance is allowed, in part. The Arbitrator finds and declares that the Corporation has violated the collective agreement by failing to assign an assistant conductor in the Toronto-Niagara Falls train service. The grievance, as it relates to the Toronto-Kitchener or Toronto-Stratford service operating partially over the Guelph Subdivision, must be dismissed. To the extent that any remedy in the form of compensation or other redress may be appropriate, I retain jurisdiction in the event that the parties should be unable to agree in that regard.

Dated at Toronto, this 18th day of December 1996

(signed) MICHEL G. PICHER

ARBITRATOR