IN THE MATTER OF AN ARBITRATION
BETWEEN
VIA RAIL CANADA INC.
(the "Corporation")
AND
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
(the "Brotherhood")
AND
CANADIAN NATIONAL RAILWAY COMPANY
(the "Intervener")
RE GRIEVANCE OF LOCOMOTIVE ENGINEER S. MICHALSKI
Sole Arbitrator: Michel G. Picher
Appearing For The Corporation:
E. J. Houlihan – Senior Manager, Labour Relations
B. E. Woods – Director, Labour Relations
George Benn – Labour Relations Officer
Jean Lafleur, Q.C. – Counsel
Appearing For The Brotherhood:
Craig Morrison – Counsel
Richard Dyon – General Chairman, BLE Central
Gilles Hallé – Canadian Director
René Leclerc – General Chairman, BLE East
John R. Tofflemire – General Chairman, BLE – VIA Rail
Appearing For The Intervener:
J. A. Coleman – Counsel
Denis Laurendeau – Labour Relations Associate
A hearing in this matter was held in Montreal on Friday, September 14, 2001
AWARD
The Brotherhood grieves an alleged violation of the memorandum of agreement binding itself, VIA Rail Canada Inc. and the Canadian National Railway Company. Generally referred to as the “Transfer Agreement”, the memorandum of agreement in question was executed on June 4, 1987 to facilitate the movement of locomotive engineers between CN and VIA. Locomotive Engineer Michalski exercised his seniority rights within CN to claim a vacant position as a locomotive engineer with VIA, but was subsequently returned to CN by VIA for his alleged failure to properly qualify as a locomotive engineer in high speed passenger service. The Brotherhood, supported by CN, takes the position that it was not open to VIA to effectively push Mr. Michalski back to service within CN. It seeks declaration to that effect, and compensation for any negative monetary impact on employees who may have been affected by the return to Mr. Michalski to CN.
At the risk of oversimplification, a brief history of the transfer agreement is useful background to understanding this grievance. As it emerged as the sole passenger rail carrier in Canada, taking over service previously performed by CN and CP Rail, VIA had an obvious need of qualified engineers. In 1987 the Transfer Agreement as negotiated to allow locomotive engineers in the employment of CN to bid on posted vacancies within VIA. Among other things, the agreement provided for the ability of CN locomotive engineers transferring to VIA to retain their seniority within CN, and to flow back to CN service in the event of their being unable to hold work within VIA’s operations. It may be noted that in the early years of the agreement many of the CN locomotive engineers who availed themselves of their rights to transfer into service with VIA had prior experience operating passenger trains within CN’s own operations. In those days, therefore, the transition from one company to the other was relatively seamless. It may also be noted that at the time both employers were Crown corporations, with a common governmental shareholder, and had mirror image bargaining units in the running trades, represented by the Brotherhood of Locomotive Engineers and the United Transportation Union, the then bargaining agent for conductors and brakepersons within both companies.
The following provisions of the Transfer Agreement are pertinent to the issue at hand:
ITEM 2 – SENIORITY LISTS
(a) VIA will establish seniority list(s) for the Locomotive Engineers transferred to VIA and such Locomotive Engineers will be accorded the same relative standing on the VIA list(s) as they had at CN.
(b) Locomotive Engineers who transfer to VIA under the terms of this Memorandum of Agreement shall have their names retained on the CN seniority list(s).
ITEM 4 – FILLING PERMANENT VACANCIES AT VIA OTHER THAN THOSE COVERED IN ITEM 3
(a) The Reciprocal Rights Period shall be the period of time between the effective date of transfer (October 16, 1987) and the date the last Locomotive Engineer who holds seniority on January 1, 1988 leaves the service.
(b) During the reciprocal rights period referred to in paragraph (a) of this item 4, Locomotive Engineers’ permanent vacancies at VIA will be advertised to both CN and VIA Locomotive Engineers, including those not working as such, pursuant to the terms and conditions of Agreement 1.1 02 1.2, as the case may be, and the senior qualified applicant will be assigned based on his/her relative standing on the applicable CN seniority list(s). The application of this paragraph (b) will not result in a junior Locomotive Engineer at CN being assigned to a position at VIA when there is a senior Locomotive Engineer at VIA either laid off or not working as such at that terminal.
(c) A Locomotive Engineer at CN who is assigned to a vacancy at VIA pursuant to paragraph (b) of this item 4 will have his/her name placed on the VIA seniority list(s) with the same relative standing he/she had at CN and his/her name shall be retained on the CN seniority list(s).
ITEM 5 – REDUCTIONS AT VIA
(a) where the term “his/her service” is used in paragraphs (b) and (c) of this item 5, it refers to the type of service to which the Locomotive Engineer was assigned at VIA, either road service or yard service, except that for a Locomotive Engineer assigned to a spare board, the term “his/her service” refers to any regular assignment, including the spare board.
(b) During the Reciprocal Rights Period referred to in paragraph (a) of item 4, if a Locomotive Engineer who, in the exercise of seniority, is unable to hold a regular assignment in his/her service at VIA at his/her home station as a Locomotive Engineer 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.
(c) A Locomotive Engineer who returns to CN under paragraph (b) of this item 5 shall retain his/her seniority rights at VIA. He/she will be recalled when additional Locomotive Engineers are required at his/her home station at VIA and must accept such recall within 15 days or forfeit his/her seniority at VIA if such recall is for a regular assignment in his/her service.
(d) Locomotive Engineers who, as a result of an Article J Notice pursuant to the VIA Special Agreement, return to CN under paragraph (b) of this item 5 will transfer any unused retirement opportunities with them. Such retirement opportunities will be made available to CN Locomotive Engineers working under the Brotherhood of Locomotive Engineers Collective Agreements in accordance with the provisions of the Special Agreement in effect between CN, VIA and the Brotherhood of Locomotive Engineers.
Item 6 of the agreement makes provisions for the movement of medically restricted employees back and forth between CN and VIA, where a medical restriction might cause them to be unable to hold a locomotive engineer’s position in either company. There are no provisions top be found within the Transfer Agreement other than those within items 5 and 6 which deal expressly with the movement of CN locomotive engineers who have bid vacancies within VIA back into CN service for reasons that other than those expressly stipulated within those items.
The facts concerning Locomotive Engineer Michalski are not in dispute. He originally worked as a locomotive engineer on a road switcher in freight service in Hamilton for CN. On September 29, 2000 he was awarded VIA Vacancy Bulletin 103-A, thereby becoming a locomotive engineer working from VIA’s home terminal of Toronto South. He commenced his training for VIA service on October 4, 2000, initially spending some three days in the Toronto Yard to become familiar with the yard and equipment. Thereafter he worked October 12 to 21, 2000 on trains 68 and 67 between Toronto and Montreal. He next undertook formal training in Montreal, referred to as “NEPO training” between October 23 and October 31, 2000. That training involved orientation in troubleshooting concepts, engine protective devices, training instructions and procedures, air brake basics and tests, safety inspections, NEPO operations, emergency response procedures as well as CPR and first aid. Thereafter he was assigned to work on the Toronto-Montreal run between November 1 and November 15. On November 16, by reason of difficulties he was apparently experiencing, he was reassigned to work in the Toronto Yard, being allowed to handle the equipment at lower speeds for a further period of three days. He again returned to road service between Toronto and Montreal between November 21, 2000 and January 14, 2001, working fourteen trips over that period.
After he worked a total of twenty-two return trips between Toronto and Montreal, as well as six yard trips, with different sets of locomotive engineers with counselling and orientation by operations officers, the Corporation concluded that Mr. Michalski was not able to fulfil the requirements of a locomotive engineer in high speed passenger service. His training was then terminated and he was returned to CN.
As noted above, CN and the Brotherhood take the position that VIA did not have a right to effectively send the grievor back to CN by reason of not having been successful in qualifying. It is common ground, however, that both of those parties accepted the grievor’s return on a compassionate basis, subject to the reservation of their respective positions in this grievance, which was filed as a union grievance by the Brotherhood of Locomotive Engineers. The issue, therefore, is whether VIA was, in the circumstances disclosed, entitled to return the locomotive engineer to CN when he failed to qualify in passenger service. It is not disputed, for the purposes of this grievance, that Mr. Michalski was treated at all times in a manner that did not involve arbitrariness, discrimination or bad faith, nor is it suggested that the standards which were applied to him were unreasonable or in some manner not properly related to the duties and responsibilities of a locomotive engineer in passenger service.
The position of VIA is that it was entitled to effectively send Mr. Michalski back to CN by reason of the language of item 4(b) of the Transfer Agreement. Specifically, its representative emphasizes the words “the senior qualified applicant will be assigned” found within that provision. He submits that Mr. Michalski did not prove himself to be a qualified applicant as contemplated within the language of that provision, and that he was not therefore successful in the bid contemplated under item 4. In that circumstance, the Corporation submits, his employment must be deemed to have continued within CN.
The Corporation’s representative submits that its treatment of Mr. Michalski is, moreover, more consistent with the spirit of the Transfer Agreement, and ultimately more equitable. He stresses that if Locomotive Engineer Michalski had not been allowed to return to CN, there would have been no position to which he could be assigned within VIA, and the Corporation’s only alternative would have been his termination from employment, without the ability to return to work in CN. He also stresses that there was no ultimate negative impact on either CN or the Brotherhood by Mr. Michalski’s return to CN service, as another qualified CN locomotive engineer was able to successfully bid into the ensuing vacancy, leaving a relatively stable situation on the CN side of the ledger.
Counsel for the Brotherhood, supported by counsel for CN, submits that the interpretation advanced by VIA is simply not supported on the scheme and language of the Transfer Agreement. Both counsel acknowledge that at the inception of the Transfer Agreement there was little difficulty, as CN locomotive engineers who bid on VIA vacancies were generally themselves previously qualified as CN passenger service locomotive engineers. It is common ground that the difficulty has arisen in more recent years with the evolution of equipment and training requirements within VIA itself, and the gradual reduction, over the years, of locomotive engineers within CN with any prior high speed passenger service experience.
Counsel for the Brotherhood and for CN submit, however, that there was never any intention to change the original language or intent of the Transfer Agreement. They submit that the concept of the “senior qualified applicant” within item 4 of the Transfer Agreement has always been intended to mean an individual qualified as a locomotive engineer within CN operations. The representatives of the Brotherhood concede that the situation presented by this case does reflect what they characterize as a “black hole” within the operation of the Transfer Agreement. They argue, however, that any correction of that situation is a matter for negotiation between the parties, and not for correction or adjustment by the unilateral action of VIA.
Upon a review of the provisions of the Transfer Agreement the Arbitrator is, regrettably, compelled to agree with the position advanced by the Brotherhood and by CN. It is clear that only two situations of return to CN service are contemplated under the Transfer Agreement. The first is found under item 5(b), where a locomotive engineer is “… unable to hold a regular assignment in his/her service at VIA at his/her home station as a locomotive engineer …”. The context of the language is clear that what is there contemplated concerns available work, and not qualifications. That appears inescapable, in my view, as the language goes on to deal with the possibility that the individual “… does not wish to exercise his/her seniority on the seniority district at VIA”. It is in that circumstance that the individual may then exercise seniority to return to CN. No other circumstance is contemplated. The only other exception, as noted above, is the treatment of medically restricted employees provided under item 6.
As should be evident from the foregoing, VIA has clearly sought to deal with the employees concerned in a compassionate and enlightened way. It is, needless to say, extremely draconian for VIA on the one hand to receive applicants for vacancies coming from CN, and shortly thereafter to terminate their employment in the industry for failure to qualify. However, this Arbitrator must take the Transfer Agreement as he finds it. I must sustain the position of CN and the Brotherhood to the effect that an employee who, for reasons he or she best appreciates, chooses to bid on a vacancy within VIA, and is successful as the senior qualified applicant coming from CN, thereafter becomes the employee of VIA. His or her ability to return to employment within CN must be found within the terms of the Transfer Agreement. There is, as Counsel for the Brotherhood stresses, no provision within that agreement whereby a locomotive engineer can return to CN where it becomes evident that he or she cannot ultimately successfully perform the duties of a locomotive engineer in high speed passenger service. This is, as the Brotherhood stresses, a situation which is obviously difficult, and which must be resolved by negotiation among the parties signatory to the Transfer Agreement.
The grievance must therefore be allowed. The Arbitrator finds and declares that VIA did go beyond the provisions of the Transfer Agreement in is treatment of Locomotive Engineer Michalski, and that it does not have the discretion to return a locomotive engineer to CN service based on the failure of that locomotive engineer to eventually demonstrate the ability to operate as a locomotive engineer in high speed passenger service. I so declare, and retain jurisdiction to deal with issues, if any, concerning adverse earnings consequences and compensation which may arise in this dispute.
Dated at Toronto, this 17th day of September 2001
_________________________________________
MICHEL G. PICHER
ARBITRATOR