IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN PACIFIC RAILWAY COMPANY
(the "Company")
AND
BROTHERHOOD OF MAINTENANCE EMPLOYEES
(the "Brotherhood")
RE CHANGE OF REST DAYS OF PRODUCTION CREWS
IN SOUTHERN ONTARIO
Sole Arbitrator: Michel G. Picher
Appearing For The Company:
Ed MacIsaac – Manager, Labour Relations, Calgary
Glen Wilson – Counsel, Calgary
Steve Samosinski – Director, Labour Relations, Calgary
Paul Gilmore – Vice-President, Expressway, Montreal
Ray Elphic – Assistant Director – Production Design, Calgary
Gordon Possorion – General Manager, Track Program, Calgary
Dennis Curtis – Manager, Track Program and Equipment, Scarborough
Appearing For The Brotherhood:
John Kruk – System Federation General Chairman, Ottawa
David Brown – Counsel, Ottawa
Peter Davidson – Counsel, Ottawa
Marc Couture – London
A hearing in this matter was held in Toronto on June 26, 2003
AWARD
The Brotherhood disputes the decision of the Company to reschedule rest days for certain work gangs in Southern Ontario working in the summer of 2003. The nature of the parties’ disagreement is revealed in the Statement of Dispute and Issue filed ex parte by the Brotherhood, which reads as follows:
DISPUTE:
Scheduling of Rest Days for Gangs in the Southern Ontario Service Area.
EMPLOYEES’ STATEMENT OF ISSUE:
This dispute concerns the members of the following Southern Ontario Gangs: Rail Crew, Tie Crew #1, Tie Crew #2, Undercutting Crew, Thermite Welding Gang and the Switch Tie Gang. Prior to June 12, 2003, these Gangs worked a five and two schedule with Saturday and Sunday as rest days. Commencing on June 12, 2003, the Company changed the work schedule of these Gangs to work a five and two schedule with Thursday and Friday as rest days. A grievance was filed.
The Union contends that:
1) by unilaterally altering the rest days of these Gangs, the Company has violated sections 4.1, 4.2, 5.1, 8.6 and 9.1 of Agreement No. 41.
The Union requests that:
(1) It be declared that the Company’s unilateral decision to alter the Gangs’ rest days constituted a violation of the collective agreement, and (2) it be ordered that all affected employees be compensated for all lost wages for the days that they should have been working, namely Thursdays and Fridays, and that they be compensated at the overtime rate of time and one-half for all hours worked on Saturdays and Sundays.
The Company denies the Union’s contentions and declines the Union’s request.
At the outset of the hearing the Company confirmed that three of the gangs cited above were not in fact subject to a change of rest days, including the Undercutting Crew, the Thermite Welding Gang and the Switch Tie Gang. In the result, the grievance before the Arbitrator relates to three crews described as the Rail Crew, Tie Crew #1 and Tie Crew #2.
It is not disputed that for a number of years the gangs in question worked a “five and two” schedule, having Saturday and Sunday as normal rest days. The Brotherhood argues that the change of rest days to Thursday and Friday is not justified, and seeks a direction by the Arbitrator to reverse the initiative of the Company. At issue is the application of section 5.1 of collective agreement no. 41, which reads as follows:
5.1 The rest days shall be consecutive as far as is possible consistent with the establishment of regular relief assignments and the avoidance of working an employee on an assigned rest day. Preference shall be given to Saturday and Sunday and then to Sunday and Monday. In any dispute as to the necessity of departing from the pattern of two consecutive rest days or for granting rest days other than Saturday and Sunday or Sunday and Monday, it shall be incumbent on the Railway to show that such departure is necessary to meet operational requirements and that otherwise additional relief service or working an employee on an assigned rest day would be involved.
As is apparent from the text of the foregoing provision, in these proceedings it is incumbent upon the Railway to demonstrate that it has become necessary to meet operational requirements to change the rest days of the gangs in question from Saturday and Sunday to Thursday and Friday for the work season.
The territory which is the subject of this dispute includes the Galt and Windsor Subdivisions, a corridor of some 230 miles of mainline track between Toronto and Windsor. The material before the Arbitrator establishes that the most critical parts of the Company’s business on the corridor involve import/export container traffic, auto parts being delivered on a just-in-time basis, finished vehicles and the Expressway operation which involves the time-sensitive transportation of highway trailers. Among the auto plants serviced through the corridor are General Motors, Daimler Chrysler, Toyota and Honda. In that industry the failure to make just in time delivery can result in substantial monetary penalties should plant shutdowns result.
The evidence indicates that there have been significant increases in traffic in recent years. Intermodal operations have experienced growth, recording a 4.5% increase in 2002 with an expected growth rate of 3.1% in 2003. Perhaps the most dramatic has been in the Expressway operation which involves the transportation, on behalf of trucking companies, of highway trailers through the corridor. That aspect of the Company’s business experienced a volume growth of 46% between 2001 and 2002, with an anticipated increase of a further 27% in 2003. The evidence of the Company, which is substantially unchallenged, is that the railway’s customers in the auto industry, the trucking industry and other industrial enterprises tend to concentrate their operations between Sunday night and Friday night, with more limited need for services on weekends.
The Company’s evidence also indicates that track renewal is planned on a cyclical basis, with different sections of its national system being the subject of concentrated efforts in a given year or years. As a result of the normal wear and tear of the Southern Ontario corridor, augmented by the damage of some recent derailments, it became necessary to implement a concentrated track renewal program on the Galt and Windsor Subdivisions for the year 2003. Significantly, the Company’s evidence establishes that the planned program for the year 2002 was not able to be completed, in substantial part because of an insufficiency of track time for the crews on these busy subdivisions. Additionally, the 2003 schedule anticipates the replacement of some 20.03 miles of rail, as compared with 2.53 miles in 2002. Similarly, the schedule for tie replacement reflects an approximate increase of 50% over the previous year. Significantly, the work in question cannot be deferred, to the extent that if certain of the scheduled work is not done the Company will be compelled to impose forty mile per hour slow orders on segments of the corridor. That would significantly impact train operations which normally run at speeds of fifty to sixty miles per hour.
The Company has also tabled evidence which demonstrates, beyond any substantial controversy, that the Southern Ontario Corridor has seen a significant increase in traffic over the past four years. For example, as between the years 2000 and 2003 “hot traffic” trains have increased 56% on Tuesdays, and 36% on Wednesdays and Thursdays respectively. Thursdays and Fridays, the proposed new rest days, are among the busiest during the week, and both have experienced an 8% growth in total train volume from the year 2000 to the year 2003. There can be no doubt, based on the figures tabled in evidence, that the lightest days of traffic on the two subdivisions have consistently been Saturday, Sunday, Monday and Tuesday, with Sunday and Monday being the lowest days of overall traffic volumes and Saturdays and Sundays being the lowest days from the standpoint of “hot” traffic.
The Arbitrator well appreciates the concerns of the Brotherhood. The language of the collective agreement clearly recognizes that to the extent possible employees should be scheduled so as to enjoy Saturday and Sunday as rest days, or alternatively Sunday and Monday. Historically that appeared to be workable in the Southern Ontario corridor, at least up to the summer of 2002. However, as reflected above, the Company encountered serious difficulties with its work program on the territory in 2002, and was in fact unable to complete the scheduled work in that year. As confirmed above, the picture of traffic volumes and time sensitive freight operating over the Galt and Windsor Subdivisions has changed dramatically over the last four years. That, coupled with the cyclical need to now undertake major rail replacement and tie replacement operations in the corridor, an undertaking which may well extend beyond the year 2003, has given the Company little alternative but to schedule the work crews in question so as to take advantage of the days of least traffic volume on those subdivisions. As confirmed above, those days include Saturday and Sunday.
During the course of the hearing the parties also addressed argument to the possibility of utilizing different patterns of work schedule. Based on the explanations provided by the Company’s supervisors at the hearing, however, the Arbitrator is satisfied that the effective utilization of manpower and working hours on the territory in question through alternate forms of scheduling could not be achieved with a reasonable degree of efficiency, as contrasted with the circumstance which might obtain on a more remote subdivision with significantly different traffic patterns.
The Brotherhood rests its submission in substantial part on the decision of the arbitrator in CROA 2464. Its representatives note that that award, which reviewed the prior jurisprudence respecting the application of section 5.1 of the collective agreement, indicated that what has generally been viewed as justifying a departure from the normal schedule of rest days on Saturday and Sunday or Sunday and Monday is an unusual or irregular circumstance. I am satisfied that in the case at hand that standard is met.
The evidence confirms that the Company’s cyclical system of track renewal, coupled with substantial increases in train volumes over the territory in question, has combined to create a situation, which the Company does not anticipate to be permanent, which does necessitate a departure from the normal rest days to meet operational requirements on the Galt and Windsor Subdivisions. The Arbitrator notes that the Company represented at the hearing that the situation presently being implemented may be necessary for a period of two, and perhaps three, years but that it should not necessarily be seen as a permanent arrangement. On the whole, the Arbitrator is satisfied that the circumstances reviewed have combined to create a situation of unusual pressure for track maintenance and renewal operations in the Southern Ontario corridor in the current season, a situation which can be expected to last for perhaps one or two more working seasons. Bearing in mind that section 5.1 of the collective agreement is ongoing in its application, it will, of course, be incumbent upon the Company to establish in each of the coming seasons that the work load does justify the departure instituted in 2003. Conversely, in future years when the scheduled volume of track renewal returns to more normal levels, the exceptional departure from the preferred rest days established within section 5.1 of the collective agreement may well be no longer justified. Those determinations must, of necessity, be made on a case by case basis.
In the result, I am satisfied that the Company has established that the change it has implemented in the scheduling of rest days on the Southern Ontario corridor is necessary to meet its operational requirements. In these circumstances, no violation of article 5.1 of the collective agreement is disclosed.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Toronto, this 25th day of July 2003
_____________________________________________
MICHEL G. PICHER
ARBITRATOR