IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
UNITED TRANSPORTATION UNION
GRIEVANCE RE WINNIPEG – FORT FRANCES EXTENDED RUNS
SOLE ARBITRATOR: Michel G. Picher
APPEARING FOR THE COMPANY:
J. Coleman – Counsel, Montreal
D. VanCauwenburgh – Human Resources Manager, Winnipeg
V. J. Vena – General Manager, Prairie Division, Winnipeg
APPEARING FOR THE BROTHERHOOD AND THE UNION:
M. A. Church – Counsel, Toronto
D. E. Brummund – Sr. Vice-General Chairman, BLE, Edmonton
J. W. Armstrong – Vice-President, UTU, Edmonton
B. Willows – Vice-General Chairman, BLE, Winnipeg
R. Hackl – Vice-General Chairperson, Edmonton
Hearings in this matter were held in Edmonton on July 6 and 7, 2003.
AWARD OF THE ARBITRATOR
This arbitration concerns a grievance brought by the Company. It asserts that the Brotherhood and the Union have unreasonably refused to consent to the extension of the hours of service on an extended run between Winnipeg, Manitoba and Fort Frances, Ontario from the existing standard of ten hours to an increased maximum of twelve hours. The Company maintains that operating conditions necessitate the increase in hours for the running crews involved. The Brotherhood and the Union (hereinafter referred to as the Unions) submit that their refusal to agree to an extension of hours on the Winnipeg-Fort Frances extended run is not unreasonable in that the Company has not established the necessity for such an extension. In particular, the Unions assert that the Company’s method of operation has deviated from the original intent of the extended run provisions of the collective agreements, first negotiated in 1995. The Unions argue that the Company could, by respecting the principles governing extended runs, achieve the productivity of levels which it seeks, without having recourse to an extension of hours from ten to twelve on the run in question.
This dispute has been the subject of two prior arbitral awards in the Canadian Railway Office of Arbitration. In CROA 3275 the arbitrator held that the Company could not unilaterally implement an increase in the working hours on the Winnipeg-Fort Frances extended run corridor. In CROA 3325 the Office of Arbitration ruled that the Unions could not unreasonably withhold their agreement to such an increase, provided that it could be justified in keeping with the principles governing extended runs. The instant arbitration is in relation to the issue of whether the refusal of the Unions to agree to the extension of time for the runs from ten hours to twelve hours is reasonable and justified having regard to the principles of extended runs and any related provisions of the collective agreements.
The nature and history of the dispute is substantially related in the ex parte statements of dispute and issue filed in CROA 3325 by the Company and the Brotherhood respectively. They read as follows:
DISPUTE – COMPANY:
The requirement for an increase in the working hours from ten (10) to twelve (12) hours on the Winnipeg/Fort Frances extended run corridor, consistent with the provisions found in paragraph 35.10(b) of article 35 and Addendum 65 of collective agreement 4.3 and in paragraph 28.5(a) of article 28, paragraph 60.14(1) of article 60 and Addendum 79 of collective agreement 1.2.
COMPANY’S STATEMENT OF ISSUE:
The provisions of article 35, paragraph 35.10(b) and Addendum 65 of collective agreement 4.3, and the provisions of article 28, paragraph 28.5(a), article 60, paragraph 60.14(a) and Addendum 79 of collective agreement 1.2, provide for an increase in hours of work over the Winnipeg/Fort Frances extended run corridor up to a maximum of 12 hours consistent with the principles of extended runs.
The Company, the Union and the Brotherhood have concluded the process of consultation and agreement contemplated in addendum 65 of collective agreement 4.3 and addendum 79 of collective agreement 1.2. The Union and the Brotherhood have withheld their consent to an increase in the hours of work over the corridor. The Company remains frustrated in its inability to resolve problems associated with the Winnipeg Fort/Frances extended run corridor which, consistent with the principles of extended runs, requires an adjustment to the rest rule hours from 10 to 12.
The Company maintains that the Union and the Brotherhood are unreasonably withholding their consent to the required adjustment in rest rule hours over this corridor.
The Company maintains that this dispute is now properly before the Arbitrator.
DISPUTE – BROTHERHOOD:
The requirement for an increase in the working hours from ten (10) to twelve (12) hours on the Winnipeg/Fort Frances extended run corridor, consistent with the provisions found in paragraph 28.5(1) of Article 28, Paragraph 60.14(1) of Article 60 and Addendum 79 of Collective Agreement 1.2.
BROTHERHOOD’S STATEMENT OF ISSUE:
On May 10, 2002, the Company notified the Brotherhood that the hours of work identified in Article 60, paragraph 60.14(a) of Collective Agreement 1.2 would be increased from the present ten (10) hours to twelve (12) hours. As a result of this unilateral action, locomotive engineers were required to work an additional two hours prior to having the right to book rest under the provisions of Article 28, paragraph 28.5.
The Company implemented the above noted changes. The Brotherhood grieved the Company’s decision, actions and interpretation of the collective agreement provisions in question. The Company would not change its position. Accordingly, the Brotherhood referred the grievance to the Arbitrator of the CROA for a ruling on a number of issues including the following.
The Brotherhood argued that any adjustment in the booking rest en route standards relates to the hours of extended runs, and such could only be implemented by the Company by agreement with the Brotherhood through mutual agreement of the Regional Steering Committee. The Brotherhood argued that the Company could not make any changes in the listed hours of extended runs as reflected in Articles 28.5 and 60.14 of Agreement 1.2 without the consent of the Brotherhood.
The Brotherhood advanced a position that the implementation and maintaining of Extended Runs is administered jointly under the direction of the Regional Steering Committee and that any requests, from either party, relative to an increase or decrease in hours of work on any extended run must follow the nine (9) principles outlined in Addendum No. 79 of Collective Agreement 1.2.
The Brotherhood contended that the Company had not followed the principles of extended runs nor did it take into consideration the recommendations of the Regional Steering Committee (BLE) that would effectively enhance the operation in that particular corridor to facilitate an acceptable level of success.
The Brotherhood further contends that the principles of extended runs are essential in the implementation and continued monitoring of extended runs and the Company is prohibited from acting outside the Addendum No. 79 process.
By a decision dated July 12, 2002 (CROA Case No. 3275) The Arbitrator ruled in favour of the Brotherhood in respect to the preliminary/threshold issues referred to above. The Company was found to have violated the collective agreement. The Company was directed to cease and desist from said violation. Since the above-noted decision the Company has attempted to obtain the Brotherhood’s consent to increase the hours of the extended runs in question. These attempts included additional violations of the collective agreement, unfair labour practices and all sorts of other improper conduct on behalf of the Company. However, since the Company still will not honour the collective agreement (including the principles of extended runs), take into consideration the recommendations of the Steering Committee or propose any acceptable alternative solutions the Brotherhood cannot and will not consent to change the express agreement earlier reached between the parties vis-à-vis working hours (10 hours) relative to the Winnipeg Fort Frances extended run corridor.
The Brotherhood also contends: (1.) The Company has not made a case that the increase in hours is required. (2.) The data, which the Company has provided, reflects a significant improvement in the success rate on this corridor. (3.) The Brotherhood holds to the position that if the Company were to live up to its obligation under the Collective Agreement with respect to the “Ready Train Concept”, this particular extended run would have a success rate closely approaching 100%. (4.) The Union considers the Company’s request for an increase to 12 hours on a run which has a “running time” of four (4) hours, to be patently unreasonable and unjustifiable.
The Union submits that it is not obliged to consent to the request nor can the Arbitrator require such in the circumstances; the Arbitrator has no jurisdiction to extend the hours of work in this case; on the threshold issue res judicata/issue estoppel applies; the Company has not complied with the collective agreement; the Company is estopped from requesting an extension to the hours of work in this case; the Company has created any problems (if such exist) and that the Union’s position is not unreasonable in the circumstances.
The Brotherhood submits that the Company has not met the onus upon it in this case.
The Brotherhood has declined the Company’s request. The Brotherhood requests the Arbitrator to dismiss the Company’s request at this time.
In CROA 3325 a substantially similar statement of dispute and issue was also filed by the United Transportation Union of behalf of the conductors impacted by the Company’s initiative.
Most of the facts pertinent to the dispute are not in contention. In 1995 the parties agreed to the implementation of extended runs in a number of corridors in Canada. The result of that initiative was the closing of certain terminals which would otherwise have been change off points for running crews, with crews running longer distances between terminals. The extended run arrangement allowed the Company to achieve efficiencies in the expediting of traffic and improvements in customer service. Certain improvements accrued to the Unions as well, including such factors as wage guarantees, guaranteed spareboards, eight hour time windows in scheduling and the opportunity to work fewer days in a given month with more earnings per trip.
The general rule under the collective agreements of both Unions is that employees in conductor-only service are entitled to book rest upon the completion of ten hours on duty. The extended runs agreement of 1995 recognized that employees could be required to work up to twelve hours, the maximum under the law, before being eligible to book rest on certain agreed extended runs. For example, article 35.10 of the UTU collective agreement, which governs rest en route, reads as follows:
35.10 (a) Train service employees who may have been on duty 11 hours or more (10 hours or more, when operating with a reduced freight crew consist) will have the right to book rest en route, if they so desire, in accordance with the provisions of paragraphs 35.10 to 35.16 of this Article. Train service employees are to be the judges of their own condition.
Note: En route may also include the initial or final terminal.
Extended runs are agreed to in the following terms in article 35.10(b) in the UTU collective agreement:
35.10 (b) In the application of article 35.10 crews operating in an extended run territory will have the right to book rest as follows:
Winnipeg – Sioux Lookout 11 Hours
Vancouver – Kamloops 12 Hours
Kamloops – Jasper 12 Hours
Jasper – Edmonton 12 Hours
Edmonton – Biggar 12 Hours
Biggar – Melville 12 Hours
Melville – Winnipeg 12 Hours
Jasper – Prince George 12 Hours
Smithers – Prince George 12 Hours
Edmonton – North Battleford 12 Hours
Calgary – Kindersley 12 Hours
Edmonton – Ram River 12 Hours
Winnipeg – Fort Frances 10 Hours
Fort Frances – Thunder Bay 11 Hours
Edmonton – Calgary 12 Hours
Smithers – Ridley
Prince Rupert 10 Hours
Note: The hours on runs identified in this article may be increased to a maximum of 12 hours, or be decreased based on the principles set out in Appendix 65 of this Memorandum.
The comparable provision in the collective agreement of the Brotherhood of Locomotive Engineers is article 28.5 of collective agreement 1.2. Similarly, Addendum 79 of the BLE collective agreement is the same as Addendum 65 of the UTU collective agreement.
As can be seen from the foregoing, the Winnipeg-Fort Frances corridor extended run is among the shortest of the extended runs originally agreed to. As reflected in the “Note”, it is open to the parties to increase or decrease the hours of the Winnipeg-Fort Frances extended run, in keeping with the principles expressed in Addendum 65 of UTU collective agreement 4.3 and the identical terms of Addendum 79 of the BLE collective agreement 1.2.
Addendum 65 of the UTU collective agreement, which represents the agreed principles governing extended runs in Western Canada reads, in part, as follows:
During the mediation/arbitration process conducted by Mr. Justice Adams at Toronto in April and May 1995, which culminated in a mediated settlement on implementation of extended runs in Western Canada, a process of implementation and ongoing monitoring was established.
It was decided in order to protect employees and avoid restrictive work rules that a set of principles would be used to guide implementation and ongoing operation of extended runs. These principles are as follows:
Principles of Extended Runs
1. Will not reduce the level of safety.
2. Will enhance transit time, reduce initial and terminal time and improve customer service reliability.
3. Employees will be provided accurate line-ups to allow sufficient rest prior to starting an extended run.
4. Employees will arrange to report for duty prepared to complete the assignment for which called.
5. At the crew ordering time extended run trains will be ready for the outbound crew to commence their duties which vary by terminal.
i.e.: power on train, brake test completed, train coupled, etc.
6. Extended run trains will normally operate as hook and haul, however will perform customer services when other train service is not practicable, i.e.:
pick up a bad order
set out or pick up
provisions of conductor only agreement will apply.
7. Conductors must be qualified to operate a locomotive when accompanied by a locomotive engineer.
8. Cab conditions of locomotives will be improved within defined time frames to provide a more suitable ergonomic environment.
9. Marshalling and customer service activity in extended run territory to be primarily performed by road switchers and wayfreights that will not be operated as extended runs.
It was agreed for these principles to be used, a set of measures and standards needed to be developed which tracked adherence to these principles. The measurement would be provided to the union and the company at regular intervals (monthly) and jointly reviewed on a regular basis. Both parties are committed to action when unacceptable deviation occurs.
The addendum then establishes a permanent Regional Steering Committee as well as a permanent District Committee in addition to a Temporary Regional Implementation Committee to oversee the operation of the extended run agreement. The agreement then goes on to provide, in part:
Prior to the implementation, the parties agree that each affected terminal will be visited to explain extended runs to employees.
It is agreed that the appropriate Local Chairpersons will be assembled on each Region to explain the introduction of extended runs.
The parties agreed that employees will not be adversely affected by extended runs. However, in the unlikely event that there is an impact on employees which can be attributed to the introduction of extended runs, the Regional Steering Committee will address the matter and determine what remedial action, including any benefits covered by the material change provisions of the Agreements.
Crew sequencing and booking rest en route standards will be adjusted from time to time in keeping with extended run principles through the agreement of the Regional Steering Committee.
For the purposes of payment these committee meetings will be considered company initiated.
The overriding objective of the foregoing is to have extended runs function consistent with the least possible exceptions against the principles we have established.
The Company’s brief to the Arbitrator relates that the system worked effectively on the Winnipeg-Fort Frances corridor from its implementation in 1996 through to January of 2001. According to the Company’s submission, however, matters deteriorated from January of 2001 onwards. The essential reason for requesting an extension of the hours of service on the Winnipeg-Fort Frances extended run is the need which the Company has encountered to rescue or re-crew trains. A rescue occurs where, for example, a crew operating a train from Winnipeg to Fort Frances cannot reach the destination terminal within ten hours. In that circumstance, if the employees assert their right to book rest, the Company is compelled to replace the crew at some point en route, which involves deadheading a spare crew to the train by taxi with the related cost of utilizing the additional crew for the train in question.
In 2001 the Company came to view the situation as problematic, as the rate of rescues and re-crewings became intolerably high. As a result, on September 12, 2001 the General Manager of the Prairie Division, V.J. Vena, wrote to the general chairpersons of both unions as follows:
I am writing in reference to Addendum 79 of the 1.2 Agreement and Addendum 65 of the 4.3 Agreement, specifically dealing with the current 10 hour standard hours of work on the extended run Winnipeg to Fort Frances defined in Article 28, paragraph 28.5(a) of the 1.2 Agreement and Article 35, paragraph 35.10(b) of the 4.3 Agreement.
The above Addendums provide that crew sequencing and booking rest enroute standards will be adjusted through the agreement of the Regional Steering Committee.
Approximately 2,574 trains operated over the Winnipeg to Fort Frances extended run from January 2001 to the end of July 2001. Of this total, approximately 9% (255 trains) had to be recrewed. The majority of these recrews were for trains on runs either terminating or originating at Ranier. Increased traffic, and running times on the Sprague and Fort Frances Subdivisions also have contributed to what can be considered a high failure rate, not contemplated when the original 10 hour standard was established.
Please consider this letter as a formal request to have the Regional Steering Committee convene to discuss the current 10 hours of work standard on the Winnipeg to Fort Frances extended run. A response to this letter within 7 days of its receipt would be appreciated.
In it’s brief to the Arbitrator the Company stresses that increased traffic and running times, problems of track congestion and customs delays at the US border, aggravated by the events of September 11, 2001, all contributed to an unacceptable failure rate over the Winnipeg-Fort Frances corridor. It should be noted that the corridor enters the United States for a brief span between Warroad and Rainy River, and that southbound traffic beyond Fort Frances again enters the US, proceeding a short distance to Ranier, Minnesota.
Following the above letter the Regional Steering Committee referred the matter to the District Committee to obtain data to better define performance issues in accordance with the principles of extended runs. At a meeting of the District Steering Committee in late October the Company articulated it’s concerns to the Unions’ representatives, citing the need to adjust the hours of the extended run corridor from ten to twelve.
The Union members of the District Steering Committee were given the opportunity to conduct their own study to determine the reasons for the failure rate on the corridor. It should be noted that the failure rate for eastbound trains was mutually acknowledged as being unacceptable. The study conducted by the Unions, presented on November 10, 2001, recommended a number of steps to solve the problem, as the Unions’ representatives saw it. In their view the fundamental problem was initial terminal delays experienced at Symington Yard in Winnipeg. For the purposes of this dispute the Arbitrator notes that both parties appear to agree that initial terminal time at Winnipeg of one hour and forty minutes, more or less, would be an acceptable normal standard. It is also acknowledged that initial terminal time delays tend to increase dramatically during the winter months, by reason of cold weather. The Unions’ report notes, among other things, that for the month of February 2000 six westbound trains were rescued, and that the average initial terminal delay time for the trains was four hours and eighteen minutes. In February of 2001, thirty-six westbound trains were rescued, recording an average initial terminal delay of three hours and fifty-one minutes. The Unions’ study, which examined trains operating in the corridor in February for the years 1997-2001 inclusive, as well as the period from September 24, 2001 to October 15, 2001, noted a significant increase in initial terminal delay from February 1998 to September/October of 2001. The study noted a drop in the success rate of eastbound trains from 95% recorded in February of 1998 to a low of 81% in September/October of 2001. The survey report contains, in part, the following observations and conclusions:
The data demonstrates a deteriorating success rate for eastbound trains.
For the period of time studied, there is a continuing trend to an increase in initial terminal delay.
The data indicates that the average time taken from train ordered time until the power was actually tied onto the train, was 1 hour and 15 minutes. This is only transit time from the shop to the train and does not include air tests, setting out bad orders, double-overs or wait time.
Data was received for 31 eastbound trains. Of these trains, 15 required a double-over. Trains requiring a double-over had a failure rate of 57%. (See graph attached as appendix 9.)
Crews on 5 of 31 trains were required to wait for their power. Three of five trains failed for a failure rate of 60%.
(Survey form attached as appendix 10.)
The failure rate for eastbound trains is significantly higher than for westbound trains.
This is the direct result of the increase in initial terminal delay at Winnipeg.
The increased “ITD” at Winnipeg is caused by:
1) Elimination of “Ready Train Concept”
2) Over-siding eastbound double-overs
3) Power not ready at ordered times
4) Setting out bad orders
5) Blocked by hump assignments
6) Awaiting Car Dept. (job cuts)
The late departure of eastbound trains from Winnipeg can result in a “domino effect” for westbound trains. Eastbound trains are given priority at meets resulting in longer road time for westbound trains.
The key to improving the success rate on this corridor lies in reducing initial terminal delay in Winnipeg.
Central among the recommendations put forward by the Unions was a return to the use of “herders” in the Winnipeg yard. Herders are running trades employees utilized in the preparation of trains for departure. For example, they might be used to move locomotive power from the shop to the train, generally staged at the east end of Symington Yard, a task which the Unions’ report describes as talking an average time of one hour and fifteen minutes. The Unions suggest that herders could also be utilized to detect and iron out any problems with the motive power, perform double-overs and set out bad order cars. In the submission of the Unions, in other words, the principle of the “ready train” concept found in Addendum 65 of the UTU collective agreement and Addendum 79 of the BLE collective agreement would be met, as trains would then “… be ready for the outbound crew to commence their duties …” and would be more consistent with the assertion in paragraph 6 of the principles that “Extended run trains will normally operate as hook and haul, …”.
Very simply, the assertion of the Unions at the time of the meeting of the District Steering Committee, as well as at this arbitration, is that changes in Company operations between 1995 and 2001, particularly as relates to delays in the initial terminal of Winnipeg for eastbound trains, was the principal cause of the failure rate on the Winnipeg-Fort Frances corridor. Among the changes cited is the elimination of herders at Winnipeg, apparently implemented in 1998, and the gradual reduction by the Company in the number of locomotives in its inventory, with increased reliance on tighter turnaround times in the arrival, service and departure of locomotive units in and out of Winnipeg. The Unions submit that the elimination of herders, the reduction of motive power inventory and the resulting delays when locomotive units are in fact not road ready on time, coupled with problems of traffic congestion at Symington Yard, compounded by hump operations in the east end of the yard which often delay the departure of eastbound trains, all contributed to the failure rate. Most significantly, the Unions argue that the Company’s departure from the ready train concept, whereby power is no longer coupled to the train, brake tests might not be completed and bad order cars might have to be switched out by the departing road crew, all contribute to a deterioration in the success rate of eastbound trains.
With respect to westbound trains the Unions submit that there was little, if any, problem with respect to failure rates prior to 2002. They note that in 2002 the Company became subject to certain rules governing the payment of employees held at the away-from-home terminal, with rates escalating at eleven hours and fifteen hours respectively, and the right of crews to be ordered to deadhead or work home after nineteen hours. The Unions submit that the “held away agreement” operated to compel the Company to call employees to service at Fort Frances even though their train might not yet be at that location, and available to them. In the result, on some occasions employees might be compelled to wait for periods up to several hours, while on duty, before departing Fort Frances, thereby compromising their ability to get over the road to Winnipeg within ten hours.
In short, the Unions maintain that the problems being encountered by the Company, namely the high rate of rescues on the Winnipeg-Fort Frances extended run is in fact due to the failure of the Company to live up to the principles of extended runs. It’s counsel stresses that the Company has not adhered to the “ready train concept” whereby crews assigned to extended runs should expect to find their train assembled, coupled to it’s locomotive power, brake tested and otherwise ready to depart the initial terminal. This, he submits, is what is intended by the general rule, reflected in paragraph 6 of Addendum 65 of the UTU collective agreement, that extended run trains “… will normally operate as hook and haul”. Counsel submits that in the circumstances disclosed the Company has not established the conditions necessary to justify the agreement of the Unions to an amendment of the permissible hours for the Winnipeg-Fort Frances extended run from ten to twelve.
Counsel for the Unions also points to evidence relating to the manner in which the extended run principles was presented to running trades employees at the time of the ratification of the extended runs agreement. In that regard he notes the provisions of Addendum 65 of collective agreement 4.3 and Addendum 79 of collective agreement 1.2 respecting the informational meetings. Reference is made, by way of example, to a ready train concept presentation held in Melville, Saskatchewan on August 22, 1995, as well as to the general content of a Company prepared town hall presentation utilized throughout Western Canada. Reference is also made to a Company handout respecting the ready train concept presented to employees in the Manitoba District on August 26, 1995. The Unions’ brief to the Arbitrator quotes the following portions of that handout:
READY TRAIN – MANITOBA DISTRICT
(1) concept partially implemented in Winnipeg
(2) effective September 1, 1995 New Management Concept
(3) Supt. Oprns. Has responsibility for transportation – Equipment – engineering process
(4) Train will be set, Schedule A,B
(5) All tests complete
(6) Only a set up and release
(7) Same concept to be implemented in Thunder Bay
POWER SET 120” BEFORE DEPARTURE
Power must be set 30 minutes before the actual train set time. This would allow sufficient time for the herder to inspect and deliver locomotives to the trains.
HERDER – SET 90’ BEFORE DEPARTURE
Train is not considered set for equipment until the power on. Equipment is allotted 90 minutes.
CHAUFF – TO HERDER
Chauffeur checks train 90” before & picks up crew.
Journals, bills, tgbo’s, radios all read 45” before departure
EQUIPMENT – AIR TEST
Final air test will be performed by carman after engine is on and before crew is on
TRAIN CREW – SET 30” BEFORE DEPARTURE
Crew ready on order time
CHAUFFEUR – TO CREW – 30” BEFORE DEPARTURE
Chauffeur crew to train, no later than 15” before depart.
Counsel for the Unions also submits that the Company’s initiatives in recent years for reducing manpower and increasing productivity have made it impossible to respect and achieve the ready train concept inherent in the extended runs agreement. Specifically, he notes that as of April 14, 1996 there existed eight herder assignments at Symington Yard in Winnipeg. Herders are running trades employees entirely dedicated to preparing trains for departure. Their duties included such aspects as transferring the locomotive power of a train from the shops in the western part of the yard to the staging point eastbound trains in the more easterly part of the yard. In addition, herders became responsible for such preparatory work as identifying and switching out bad order cars, identifying and trouble shooting any problems which might arise in relation to the locomotive units, coordinating with carmen’s crews for timely inspection and conducting necessary brake tests. In the submission of the Unions the herder assignments were essential to the smooth functioning of the ready train concept whereby crews called for extended run service could expect to find their train in a relatively ready state upon going on duty at the initial terminal.
Counsel stresses that in 1998 the Company introduced severe budgetary constraints which resulted in the elimination of hundreds of jobs on the Laverendrye District, including the elimination of the herder assignments at Winnipeg, effective November 6, 1998. After that date the work performed by herders, such as taking locomotives from the shop to the train, troubleshooting locomotives, performing air tests and switching out bad order cars was performed by the extended run crews. The record discloses that the elimination of the herder positions was grieved at the time by the BLE, a dispute which remains pending at the Steering Committee level. It appears that that dispute became the context, in part, for the refusal of both Unions to agree to an increase in the hours of extended runs on both the Winnipeg-Fort Frances and Winnipeg-Sioux Lookout assignments, in May of 2000. It appears that the Company did not then pursue the matter. Counsel also notes that in December of 2000 local discussions resulted in an understanding whereby herders would be reassigned at Symington, in accordance with an agreement executed on February 13, 2001. That agreement, however, was cancelled by the Company some three weeks later, thereby eliminating the possibility of five new herder assignments being reinstated.
In essence, the submission of counsel for the Unions is that the Company has fundamentally violated the original understanding which was a cornerstone of the extended runs agreement. Essential to that agreement, he submits, was the undertaking of the Company to respect the principles of extended runs, including the ready train concept and the general operation of extended runs on a “hook and haul” basis. In counsel’s submission the Company has forsaken those principles in the pursuit of greater productivity and profitability, without regard to its contractual obligations to the Unions and its employees. He submits that the Unions are more than willing to consider amendments to the extended run standards and hours of service in appropriate circumstances. However, he stresses that where, as in the case at hand, the problems which prompt the Company’s request for extending hours of service on the Winnipeg-Fort Frances run, the need to rescue and re-crew trains, is the result of the violation of the extended run principles by the Company itself, the refusal of the Unions to agree to any such extension is not arbitrary nor in bad faith, but rather is consistent with the administration of the extended runs agreement as originally intended.
Counsel for the Company presents a substantially different argument. He submits that the Unions are violating the collective agreements by unreasonably refusing to consent to any increase in the hours on the Winnipeg-Fort Frances extended run. He maintains that the Company is abiding by the principles of extended runs and has made all reasonable attempts to accommodate the Unions’ concerns.
Counsel stresses that the recommendations tabled at the District Committee meeting by the Unions on November 10, 2001 would not, in the Company’s view, correct the performance problems being encountered and that they were impracticable or were beyond the purview of the Committee. It may be noted that among the problem factors identified in the Unions’ report were disregard of the ready train concept, the over-siding of eastbound double-overs, power not being ready at the ordered time, delays in the setting out of bad order cars, the blocking of trains by hump operations, and undue delay in awaiting service from the car department because of staff reductions.
With respect to the Union’s proposal for reinstating the herder positions, the Company maintains that there is no evidence that that would solve the problem. In that regard it’s representatives stress that the problem of rescuing and re-crewing trains on the Winnipeg-Fort Frances run was already in existence at the time herders were in service. It may be noted that the Unions question whether the herders were properly utilized at the time, suggesting that they were often diverted to other tasks unrelated to extended run trains. In addition, the Company argues that because of limitations caused by the physical layout of the yard, including the fact that track lengths are insufficient to accommodate longer trains, it would be impracticable to have herders preparing double-overs of train segments in advance without substantially hampering the hump yard operation. The Company also questions the Unions’ suggestion that herders should be assigned to deliver power to the trains, arguing that the language of the principles of extended runs expressly acknowledges that crews are to pick up their own power.
Counsel for the Company notes to the Arbitrator’s attention the fact that there is no substantial dispute between the parties that the re-crewing rate encountered on the Winnipeg-Fort Frances extended run has reached unacceptable levels, being in the order of 15% for significant periods of time. He notes that the Company, faced with the refusal of the Unions to amend the extended run provisions, felt itself compelled to reinstate single subdivision operations on the territory in question, using a mixed form of service to alleviate the problem. He notes that at a meeting on January 14, 2003 the Regional Steering Committee was advised that success rates of 95.5% eastbound and 96.5% westbound in the period from August to November of 2002 between Winnipeg and Fort Frances was substantially due to the Company removing some 30% of the traffic into single subdivision operations. The Company submits that in the face of the data, and the factors of constraint explained by the Company relating to the problems inherent to operations in the Symington Yard, the continuing refusal of the Unions to agree to an adjustment of the hours of the Winnipeg-Fort Frances run from ten to twelve is unreasonable and contrary to the principles of extended runs as established within the collective agreement.
The Company also challenges the suggestion of the Unions that the bulk of the problem is in relation to eastbound trains originating in Symington Yard. It notes that in a survey taken after June 1, 2002 10% of crews operating westbound were required to work over ten hours as compared with 30% of crews working eastbound from Symington. In the Company’s submission a substantial part of the problem can be traced to westbound trains. It’s representatives also note that eastbound trains incurred delays for reasons unrelated to operations within Symington Yard, including customs delays at Fort Frances, congestion at Ranier, delays resulting from meets online, work en route, work block overruns and delays occasioned by pick ups at Fort Frances. According to the Company’s representations, of the fifty-four eastbound crews delayed beyond ten hours during the period surveyed no more than eighteen delays were attributable to problems arising at the initial terminal of Symington.
The Company stresses that the issue at hand is critical to efficient and profitable operations, as well as to the interests of running trades employees. It’s counsel notes that a high re-crew rate is obviously inconsistent with the principles of extended runs. He further stresses that it results in substantial uncertainty in the integrity of crew line-ups, a factor which impacts upon employees’ planning in relation to their on duty time. Re-crewing also increases delays in customer service, which can attract additional penalty costs and jeopardize customer relations. With respect to the application of the extended run principles counsel submits, among other things, that a method of pay review conducted since 1999 does not indicate any significant increase in initial terminal time recorded at Symington. He stresses that the survey period includes years when herders were utilized at Symington, noting that the presence or absence of herders has little bearing on terminal time data in relation to Symington Yard as an initial terminal. Additionally, although little meaningful data is provided, the Company expresses concerns about border crossing delays on the Winnipeg-Fort Frances territory, particularly in light of increased security controls following September 11, 2001, including the installation of VACIS scanning units at US customs, which is currently underway.
Counsel for the Company stresses that the obligation upon both parties in relation to making adjustments to extended run standards is to act reasonably. He suggests that the arbitral jurisprudence provides some guidance to the meaning of that concept, albeit in the context of analogous collective agreement provisions relating to the reaching of agreement in respect of vacations, work schedules and conditions which justify contracting out. In that regard he cites the following awards: Re United Automobile Workers and Office Professional Employees International Union, Local 343, (1978) 17 L.A.C. (2nd) 348 (Shime); Re Family and Children’s Services of Renfrew County and City of Pembroke and Ontario Public Service Employees Union, Local 459, (1985) 20 L.A.C. (3d) 359 (Devlin); Re Algoma Ore Division, Algoma Steel Corp. and United Steelworkers, Local 3933, (1986) 27 L.A.C. (3d) 113 (Brunner); Re United Nurses of Alberta, Local 33 and Capital Health Authority (Royal Alexandria Hospital), (1998) A.G.A.A. No. 63 (QL, Price); Re East Isle Shipyard Ltd. and International Association of Machinists and Aerospace Workers, Lodge 1934, (1998) 74 L.A.C. (4th) 265 (Outhouse).
Counsel for the Company stresses that the language of the agreed extended run principles supports the employer’s position. In that regard he cites the objectives of avoiding restrictive work rules, of achieving extended runs with the least possible exceptions and responding to the need to take action in the face of unacceptable deviations. Counsel further argues that the extended run agreement must be recognized as expressing “principles” rather than hard and fast rules. He maintains that the implementation of principles must, by definition, allow of flexibility and case by case adjustment. In his submission the Company has at all times respected the principles of extended run operations as articulated within both collective agreements. In the result, he argues, the refusal of the Unions to agree to the extension of the Winnipeg-Fort Frances run to twelve hours, in the face of a rate of rescues and re-crews acknowledged to be excessive, is unreasonable. He therefore requests the Arbitrator to declare that the Unions have unreasonably withheld their consent to the desired adjustment in hours and that the Company is therefore relieved of the need to secure their agreement, or alternatively that the Arbitrator direct the Unions to provide their agreement to the extension of hours on the Winnipeg-Fort Frances extended run from ten to twelve.
After reviewing the submissions of the parties and an extensive volume of supporting data, the Arbitrator is compelled to question a number of aspects of the case presented on behalf of the Company. Firstly, there is some basis in the evidence before the Arbitrator to question the Company’s statement of the failure rate of trains operating over the Winnipeg-Fort Frances territory in either direction. A document filed in evidence by the Unions, which was prepared by UTU Local Chairman Turc Conrad, the accuracy of which was not challenged by the Company, indicates that acceptable success rates were achieved during significant periods of time in the one year period between July of 2002 and June of 2003, inclusive. Acceptable performance rates, being rates in the range of 95 to 97% of trips without any need of rescue were registered in a number of the months under consideration, with the worst pattern of performance generally being recorded in the winter months of January through February, when cold conditions have a significant bearing on performance. The data demonstrates a clear correlation between high failure rates and delays in initial terminal time in eastbound movements originating at Symington Yard particularly, although not exclusively, during the winter months. It is also clear from the data that the preponderant pattern of failures indicates a higher rate of failures in eastbound trips as opposed to westbound. It appears equally clear that failures in eastbound movements generally coincide with initial terminal time at Symington exceeding one hour and forty minutes.
A further cause for concern in relation to the case presented on behalf of the Company is evidence before the Arbitrator supporting the arguments of the Unions that the Company has not lived up to the original undertaking made with respect to the ready train concept as an essential component of successful extended run operations. In fact, the arguments presently put forward by the Company concerning the concept of ready trains appear to be substantially at variance with what was presented to the Unions at the time of the original ratification of the extended run agreements. For example, an implementation plan presented by the Company at town hall meetings in Western Canada contained an outline of the strategies which would contribute to successful extended run operations. Including among those was the following entry under the heading “ready train”:
· EXTENDED RUN TRAIN STRATEGIES
- READY TRAIN CONCEPT – MAJOR TERMINALS
· Hosting power to trains
· Bad Orders / Mis-Routes switched off
· Air brake test completed
· Prioritize arrivals of extended run trains into Edmonton Terminal
· Documentation Envelope ready when crew reports for duty
· Taxi available for duty on time of crew
· Inter-functional team to deal with disconnects in process
By way of another example, the presentation made in Edmonton contains the following entry under the heading “ready train concept”:
Hostling power onto extended run train given priority
Switch off bad order or mis-routed cars by Hostler
Air brake test completed
The accompanying document, referred to as “Example 304” outlines the preparation of a train originating in Walker Yard. It appears clear from that document that the ready train concept was originally conceived and presented on the basis that persons other than the road crew would commonly check the locomotive consist to ensure that it is in working order and then transfer the power from the shop track to the train as a hostling assignment. The same document indicates the air brake test being completed and the final report of bad order cars being made before the train crew comes on duty. While the specific documents pertain to Edmonton, they do give some insight into the more general concept of the ready train principle incorporated within the collective agreement.
There is also evidence, in the form of recorded minutes, indicating that there was once some recognition on the part of Company officers that the ready train concept was not being sufficiently respected. At a meeting held on February 18, 1997 between members of both Unions and Company management at Edmonton the following comment was made by Mr. Greg Pichette, a respected Company officer:
We have fallen down on ready train and have to get that back on track.
Nor can the Arbitrator accept the interpretation of the principles of extended runs advanced by the Company during this arbitration, particularly as relates to item 5 which reads as follows:
(5) At the crew ordering time extended run trains will be ready for the outbound crew to commence their duties which vary by terminal:
· Power on train, brake test completed, train coupled, etc.
The Company’s representatives submit that the foregoing language recognizes that it is the obligation of the road crew to perform the preparatory items listed within paragraph 5, such as coupling locomotives to their train, performing a full brake test and coupling the train itself. The Arbitrator cannot agree that the language of paragraph 5 was intended to describe an additional burden to be placed upon the outbound crew. On the contrary, in my opinion, what the paragraph clearly indicates is that “trains will be ready for the outbound crew …” in the sense that such preparatory tasks as transferring locomotive power to the train, coupling the train and performing brake tests is normally already done when they arrive at their crew ordering time for an extended run train. That reading, it would seem, is also more consistent with the thrust of paragraph 6 of the principles of extended runs which states, in part: “Extended run trains will normally operate as hook and haul, …”.
These observations are not to suggest that road crews should invariably expect to find their train fully prepared and ready to depart at their on-duty time. The Arbitrator agrees with counsel for the Company that principles are different from rules. What the extended run principles establish is that the ready train concept should be respected to the extent that it must be to get a road crew to their destination within their extended run time standard. The principles are obviously not offended if the road crew is required to perform preparatory work at the initial terminal, including the tasks cited in paragraph 5, when they can do so without jeopardizing their ability to get over the road within the normal limits of their extended run time.
The Arbitrator also recognizes, as argued by the Company, that the principles of extended runs must be read so as to allow for the particular conditions and idiosyncrasies of different terminals. It does not appear substantially disputed that the phrase “their duties which vary by terminal” gives a degree of recognition of the fact that outbound crews may be faced with circumstances which may vary from one terminal to another, which may influence tasks which they may be required to perform or incidental delays which may be encountered. However, the general thrust of the principles of extended runs, read in a manner consistent with the implementation plans disseminated by the Company at the time the original extended run agreements were made, particularly as relates to the ready train concept, lead, on the balance of probabilities, to the conclusion that the parties did originally intend that road crews in extended run operations should generally expect to find their train to be in an advanced state of readiness when they arrive to work at their ordering time, to the extent that that is necessary to the timely completion of their extended run. Consistent with the principles of extended runs they should also expect that delays at the initial terminal will be minimized and that other work being conducted in the departure yard will be organized in such a way as to give a degree of priority to the extended run train.
The latter concept appears to the Arbitrator to be amply reflected in the Company prepared handout to employees describing the ready train concept in the Saskatchewan District. A page of that presentation entitled “Rules of Operation – Standards” includes the following checklist, in part:
· No bad orders
· Must not be blocked on departure
· Arrivals/Departures take precedence over all other terminal activity
Additionally, allowing for some variances from one terminal to another, it is noteworthy that the ready train concept as presented in Saskatoon/Melville indicates the following elements:
· Motive Power
- fully supplied
- schedule B checklist
· Power on Train
· SUB tested
· Air brake test completed
- Certified and on engine
The thrust of that document appears to recognize that the responsibility of the departing road crew is to review their train orders, conduct a number 3 air brake test and depart the terminal.
How does the situation at Symington Yard measure up against the understandings and expectations surrounding the principles of extended runs as originally conceived, and reflected in documentation dating from August of 1995? As noted above, the material before the Arbitrator in the case at hand appears to confirm that it is not uncommon for departing crews on Winnipeg to Fort Frances extended runs to be required to obtain their motive power themselves at the shop track in the west end of the yard, make their own verification as to its fitness for service and transfer their locomotive consist to the east end of the yard to be coupled to their train, sometimes encountering substantial delays by reason of other yard traffic. It would also appear that the hump operation in the east end of the yard is managed with a degree of indifference to the need to ensure the prompt departure of the eastbound extended run train. There is no evidence before the Arbitrator to suggest that local management at Winnipeg have taken adequate steps to ensure that yard coordinators and yard crews involved in hump operations organize their work so as to avoid delaying the departure of extended run trains bound for Fort Frances.
On the whole the evidence appears to confirm that over the years the Company has effectively reduced its commitment to the ready train concept and the priority to be given to extended run trains operating between Winnipeg and Fort Frances. That is not to say that the Arbitrator necessarily endorses the view of the Unions to the effect that the problem could only be corrected by the reassignment of herders. Nor is it necessary to find that the high failure rate of extended run trains between Winnipeg and Fort Frances is necessarily the result of the Company’s decision to reduce the complement of employees in the running trades or the car department. A great number of factors go into preparing, assembling and inspecting a train and operating that train over the road in a timely fashion. It may well be that the Company might, by adjustments in the management of operations, achieve a satisfactory degree of adherence to the ready train concept, bringing itself within the principles of extended runs, even allowing for the introduction of longer trains since the original extended runs agreements, so as to reduce the unacceptably high failure rate encountered in the operation of extended runs between Winnipeg and Fort Frances. On the other hand, experience may come to demonstrate that the Company may not be able to meet its contractual obligation to respect the principles of extended runs, including the ready train concept, without making certain manpower adjustments.
Whatever the future may hold, for the purposes of the instant dispute, it is established, on the balance of probabilities, that the Company has not sufficiently respected the principles of extended runs as they apply to the extended run operations between Winnipeg and Fort Frances, particularly in more recent years. On the whole, therefore, the Arbitrator is persuaded that the objections registered by the Unions are not without foundation. Nor can the Arbitrator reject out of hand the submission of counsel for the Unions to the effect that the pursuit of increased efficiencies and profitability cannot, of itself, justify ignoring the contractual obligation undertaken within the agreed principles of extended runs incorporated within the collective agreements of both Unions. While the Company is at liberty to pursue the advantages of longer trains and reduced payroll burdens, it may only do so within the constraints of its contractual obligations, including the undertakings contained within its collective agreements.
For these reasons the Arbitrator is not persuaded that the Unions have acted in bad faith or arbitrarily in declining to give their agreement to an adjustment in the hours for the allowable extended run between Winnipeg and Fort Frances. Nor, in my view, have they been unreasonable in withholding their agreement, based on the whole of the evidence. While the Arbitrator need not necessarily agree with the suggestion of the Unions to the effect that the Company seeks an extension of the allowable hours as a justification for less rigorous management practices, there is a substantial basis in the evidence before me to conclude that there has been some misconception of the principles of extended runs operating within local management at Winnipeg which may have contributed to the failure rate of extended runs encountered between Winnipeg and Fort Frances.
As the party seeking relief, it is incumbent upon the Company to establish that strict adherence to the principles of extended runs as found within the collective agreements has nevertheless resulted in an unacceptable failure rate on the territory in question. Very simply, that is not demonstrated on the evidence before the Arbitrator in the case at hand. The Company has not demonstrated, on the balance of probabilities, sufficient understanding of and adherence to the ready train concept that is an essential part of the original bargain between the parties concerning extended run operations. Nor does the evidence confirm to the satisfaction of the Arbitrator that local operations in Symington Yard have been managed in such a fashion as to give sufficient priority to extended run trains, as compared for example with hump operations in the east end of Symington Yard. Needless to say, if the Company could show a sustained period of adherence to the principles of extended runs as originally agreed between the parties, coupled with sustained diligence in the management of traffic within Symington Yard, without substantially reducing the failure rate of extended run trains between Winnipeg and Fort Frances, the result would be substantially different and might well justify a change. A more successful application by the Company in the future might also contain evidence of more efficient practices in respect of the calling of crews ordered at Fort Frances/ Ranier.
In summary, the Arbitrator is satisfied that the Company has not demonstrated that an increase on the Winnipeg-Fort Frances extended run is the only means available to avoid the problem of an unacceptable rate of rescues and re-crewing on the territory in question. I am persuaded by the submissions of the Unions, and the supporting data, that closer adherence by the Company to the principles of extended runs, particularly as regards the “ready train” concept and initial terminal operations at both Symington and Fort Frances/Ranier might well eliminate the failure rates which prompt the Company’s request. As noted above, should a substantial period of adherence to those principles be shown, through proper documentation, to be inadequate to resolve the problem, the Company’s case would obviously then be more compelling. On the evidence as presented, however, the Arbitrator cannot find that the refusal of the Unions to agree with the change proposed by the Company is in violation of its obligation to be reasonable in its willingness to agree to adjustments in the extended run standards within the collective agreements.
For all of the foregoing reasons the grievance of the Company must be dismissed.
Dated at Toronto, this 13th day of August 2003
MICHEL G. PICHER