IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY
AND UNITED TRANSPORTATION UNION
AND IN THE MATTER OF A GRIEVANCE RELATING TO THE APPLICATION OF ARTICLES 2.5, 7.9(d), AND 11.7(d) OF AGREEMENT 4.16
SOLE ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Toronto on October 2, 2003.
M. Church, for the union.
W.G. McMurray, for the company.
There is no Joint Statement of Issue in this matter. The union’s ex parte statement is as follows:
Application of Articles 2.5, 7.9(d) and 11.7(d) of Agreement 4.16.
Ex Parte Statement of Issue:
On or about August 20, 2003, the Company requested the Union’s interpretation of the above-noted Article. This interpretation was requested in accordance with Article 85 of Agreement 4.16.
On August 21, 2003, the Union provided this interpretation to the Company along with a bulletin setting out its understanding of the payment and applications of the aforesaid articles, respectively.
On August 22, 2003 the Company set out its bulletin which included the Company’s interpretation of the payment and application of the aforesaid Articles. The parties differed on their respective interpretations on certain points. Accordingly the parties agreed to join issue in this matter and expedited this dispute to an ad hoc arbitration.
The Union submits that the Company’s interpretation of the payments and application of the aforesaid Articles is, at certain points, in violation of the collective agreement. The Company disagrees with this position. The Company believes that its posted interpretation of its payment responsibilities and application for the aforesaid Articles is correct.
The Union respectfully requests a finding from the Arbitrator that the Company has violated the collective agreement; an order that the Company cease and desist violating the collective agreement; and an order that the Union’s interpretation of the payment and application of the aforesaid Articles is correct. In the alternative, the Union requests such relief as the Arbitrator deems appropriate in the circumstances.
The matter was expedited as a policy grievance in accordance with the
provision of Article 84 of Agreement 4.16. The parties differ as to their
interpretation of the Articles at issue. The parties request the guidance
of the Arbitrator.
The company’s statement is as follows:
The proper interpretation and application as intended by Articles 2.5, 2.6, 7.9 and 11.7 of 4.16 Collective Agreement.
Company Statement of Issue:
In January of 2003, a Joint Labour/Management Committee, comprised of one Company and one UTU appointee, undertook a review of Agreement 4.16, to determine the proper interpretation and application of various articles of this agreement.
Those found to be inconsistent with the Company’s and the Union’s understanding, would be discussed and resolved. Those articles identified as unresolved, would be expedited to arbitration for clarification.
One such article interpretation/application, remaining unresolved is Article 2.6 of Agreement 4.16, as it pertains to the payment, under Article 2.5, for work events at the initial or final terminal, by a crew consist of Conductor Only.
The Company position is that there is no entitlement to duplicate payment, that is, the payment of a Conductor Only bonus, in addition to actual time spent in the terminals for performing 1) a straight lift or setoff, 2) setting off or lifting a bad order car and, 3) doubling account yard tracks are of insufficient length to hold the fully assembled train.
The only time where duplicate payment could potentially occur is when the crew is required to perform “switching” (as opposed to a straight lift or set-off) in connection with their own train at the initial or final terminal.
The Company issued Eastern Division Notice No. 25 dated 22 August, 2003 to clarify its position.
The Union now takes the position that duplicate payments should ensue in a number of such cases.
The Company disagrees.
This disputes relates to the payments which may or may not be required to be made when a road crew consisting only of a Conductor is required to perform certain types of work (other than bringing the train in or out of the terminal), at an initial or final terminal. There appears to be no issue as to work performed en route.
The provisions respecting conductor only crews are relatively new, having been negotiated in the late 1980's and early 1990's. Article 2 of collective agreement 4.16 provides generally for rates of pay in road freight service. Articles 2.5, 2.6 and 2.7 set out specific provisions relating to “setting out and taking on cars in a in a conductor only operation”. While article 2.7 is not material to the instant dispute, it is useful to set out articles 2.5 and 2.6 in their entirety. They are as follows:
2.5 When a train, operated with a crew consist of a conductor only in accordance with the rules governing such operation, is required to set out a car or cars (other than a bad order car or cars) or take on a car or cars or perform switching in connection with the setting out or taking on of a car or cars, the time so occupied, at each location, will be paid for on a minute basis (each 4.8 minutes to count as one mile) over and above all other earnings for the trip with a minimum of 12˝ miles for the first hour or portion thereof. Time so paid will not be used to make up the basic day nor shall it be used in computing overtime. In calculating the time engaged in performing work, it is understood that the time shall be continuous from the time such work is first started until it is finally completed.
EXAMPLE 1: A train, operating with a crew consist of one conductor only in accordance with the rules governing such operation, is required to set out a car or cars at A, a location en route, and to lift a car or cars at B, another location en route. The time occupied at A is 20 minutes for which 12˝ miles is paid. The time occupied at B is 45 minutes for which 12˝ miles is paid.
EXAMPLE 2: A train, operating with a crew consist of one conductor only in accordance with the rules governing such operation, is required to set out and/or lift a car or cars at A as a consequence of which switching is required in order to comply with marshalling instructions. The time occupied at A is 1 hour and 15 minutes for which 15˝ miles is paid.
2.6 The provisions of Article 15 do not apply in respect of trains which are operated with a crew consist of one conductor only in accordance with the rules governing such operation nor shall the payments specified in paragraphs 2.5, 2.6 and 2.7 result in duplicate payment such as, for example, where initial or final terminal time is payable.
Article 2.6 provides that Article 15 does not apply in respect of conductor only crews. Accordingly, article 15 (the “conversion rule”) does not apply directly in respect of the present dispute. It may nevertheless be instructive to note certain provisions of Article 15.1:
Employees on trains specified in paragraph 2.1, except work, wreck and construction, required to load or unload wayfreight or Company’s material or switch en route, i.e., station switching (moving from one siding to another or spotting a car (or cars) not handled in their own train) or switching (as hereinafter defined) in setting out and/or picking up a car or cars handled in their own train, will - - - be paid at wayfreight rates - - - .
While “station switching” appears to be defined (in the parenthesis), “switching” does not appear to be “hereinafter defined” in article 15, although it may be implicitly defined in article 15.5, which provides that:
15.5 A stop shall be counted for picking up a car (or group of cars together) standing first-out on siding or setting out a car (or group of cars together) from any part of train. If more than one car (or group of cars together) are set out and/or picked up at a station a switch may be counted for each car (or group of cars together) set out or picked up, except that a switch shall not be counted in respect to the picking up of a car (or group of cars together) standing first-out on siding, or the setting out of a car (or group of cars together) when no additional move is required.
It is the union’s submission that Article 2.5 applies to all picking up, setting off and switching en route by a conductor only train. In the company’s bulletin issued on August 22, 2003, it stated, with respect to claims for work en route:
Articles 2.5 of the 4.16 Agreement and Article 17a.1 of the 1.1 Agreement pertain to crew required to set out a car or cars, pick up a car or cars, or perform switching en route. Payments are as follows:
1. Crews required to set out bad order car or cars, there is no payment.
2. Crews required to set out, or pick up a car or cars, or perform switching will be paid for on a minute to minute basis over and above all other payments, with a minimum of 12˝ miles.
These guidelines for payment of claims for work en route are correct.
Article 11.7(d) (Article 11 deals generally with crew consists) is as follows:
11.7 Notwithstanding the provisions of paragraph 11.4, trains operating in through freight service may be operated with a conductor but without an assistant conductor provided that:
- - -
(d) Notwithstanding the provisions of Article 41, such trains are not required to perform switching in connection with their own train at the initial or final terminal; if switching in connection with their own train is required at the initial or final terminal to meet the requirements of the service, (except to set off a bad order car or cars or lift a bad order car or cars after being repaired), the conductor will be entitled to a payment of 12˝ miles in addition to all other earnings for the tour of duty.
Article 11.4 provides for a train crew consisting of a conductor and an assistant conductor. Articles 11.5 and following deal with “reduced freight crews”. The present case involves articles which provide specifically for conductor only crews. Article 41 deals with the work of yard service employees. Road crews are generally prohibited from performing such work, although “the requirements of the service”may make that necessary, particularly in locations where there are no yard crews. In its bulletin of August 22, 2003, the company indicated what it considered to be the application of Article 11.7 to pay claims in respect of conductor only trains at initial and final terminals as follows:
[Claims at initial terminals)
1) If crews are required to Switch in connection with
their own train to meet requirements of the service,
the crew will be entitled to one payment of 12˝
miles in addition to all other earnings for the tour
2) If a crew is required to perform a straight lift they
will be entitled to one payment of 12˝ miles, however,
as per Article 2.6 of the 4.16 and Article 17a.2 of the
1.1 this will not result in the duplicate payment where
initial time is payable.
3) There is no payment for setting off a bad order car
or cars or lifting a bad order car or cars after being
4) There is no payment for doubling account yard tracks
being insufficient length to hold the fully assembled
5) Note: (This note is only applicable to the first seniority District). For the purposes of clarity, the taking on or setting out of cars at a yard (other than the yard in which the train originates or terminates) at terminals where there are a series of yards (such as Halifax or Montreal) will not count as a stop
in the application of sub-paragraph 11.7(e). However, the payment set out in paragraph 2.5 will be payable when cars are taken on or set out at such yards in a conductor-only operation.
[Claims at final terminals]
[The provisions of the bulletin in this respect are identical to those in respect of initial terminal claims, except for clauses 2 and 4, which are as follows:]
2) If a crew is required to perform a straight set out they will be entitled to one payment of 12˝ miles, however, as per article 2.6 of the 4.16 and 17a.2 of the 1.1, this will not result in the duplicate payment where final time is payable.
4) There is no payment for doubling the train upon arrival account yard tracks being insufficient length to hold the train.
The union agrees with clauses 1), 3) and 4) of these guidelines with respect to payment at initial and final terminals. They are clearly in accordance with the provisions of the collective agreement, and I agree that they are correct. The union disagrees with clause 2), in each case. In the union’s view, set offs and lifts are part of switching, and where the crew (that is to say, the conductor, acting alone) of a conductor only train is required to perform such work it is to be paid for at the rate set out in the collective agreement, and as a bonus, that is, in addition to all other earnings for the tour of duty.
In article 2.5, it is provided that payment, over and above all other earnings, is to be made when a conductor only train “is required to set out a car or cars (other than a bad order car), or take on a car or cars or perform switching in connection with the setting out or taking on of a car or cars” [emphasis added]. This might appear to suggest that these operations are set out disjunctively: that a “straight set out” (the expressions used vary slightly), a “straight lift” and “switching” are fundamentally different things. Of course the terms are not interchangeable. A lift and a set out, however, are simply the converse of each other and involve similar and relatively simple operations. The term “switching” is of much broader reference, and while all switching necessarily includes the operations necessary to set offs or to lifts, that leaves open the question whether a lift or a set off by itself constitutes switching.
The company, in its bulletin, gave its view of the application of articles 2.6 and 11.7. Under article 11.7, I think it is clear that switching as contemplated under that article, is to be paid for in addition to all other earnings. Article 2.6, set out above, includes the provision “Nor shall the payments specified in paragraphs 2.5, 2.6 and 2.7 result in duplicate payment such as, for example, where initial or final terminal time is payable”. It was the position of the company that if there are duplicate payments, while on initial or final terminal, the provisions of article 2.6 would trump the provisions of 2.5 and a duplicate payment would not apply.
That one clause in an article should “trump” another, where the second article does not set out exceptional circumstances, is, I think anomalous. There is no necessary contradiction, however, between articles 2.5 and 2.6 if the payment contemplated for switching (or for lifts or set offs) as “over and above all other earnings” be considered as not necessarily a “duplicate” payment. I do not, however, make any decision on that point since it is the clear provision of article 11.7 - to which article 2.6 does not refer - that the payment for switching there contemplated is to be in addition to all other earnings for the tour of duty.
That consideration, however, does not answer the question of what is included in “switching”; article 11.7(d) does not refer to straight lifts or straight set offs, but only to switching. In making an exception in the case of work relating to bad order cars, however, article 11.7 states “if switching is required - - (except to set off a bad order car or cars or lift a bad order car or cars - - )”, which suggests at least that the exceptions - setting off and lifting - to the generally paid activity of switching are themselves a form of switching; otherwise the exception would not need to be expressed. In CROA case No. 2099, which involved a different issue but included a discussion of certain issues related to those in this case, the arbitrator stated, “I can find nothing in the language of Article 7.9(d) [which dealt with road service employees performing yardmen’s work] to overrule the prior awards of this Office which [have] held that the setting off and spotting of cars at a destination yard as part of the delivery process falls within the meaning of the phrase “switching required in connection with their own train” contained in Article 41.1 of the Collective Agreement”.
In my view, and having regard to the material before me as to the past practice of payment (although I consider this as simply corroborative of the conclusion I have reached; I do not consider this to be a case in which the company would be estopped or otherwise prevented from applying a correct interpretation of the collective agreement, if such were the case), lifts and set outs are included in “switching” at an initial or final terminal for the purpose of payment in conductor only operations.
Article 7.9(d) of the collective agreement is as follows:
7.9 Should a train be delayed at the signal controlling movement into a yard or terminal, yard limit board or behind another train similarly delayed, final terminal time shall be computed from the time the engine reaches that point of delay until time conductor registers off duty. However, should the crew be held on duty thereafter to perform service in connection with their own train or terminal switching (full crew will be used) the terminal time will be extended to include the time so occupied, provided that:
- - -
(d) In the application of the provisions of Article 41, when employees in road service are instructed to yard their train in a particular track at a terminal and such track will not hold the entire train, they will double over surplus cars or a designated cut of cars to another yard track. In cases of yard congestion where there is insufficient room to double over all cars to one track it will be necessary to double over to more than [one], in the manner described above, to effectively yard the train. Employees (including those working in a conductor only operation) required to double over designated cuts of cars will be paid 12˝ miles in addition to all other earnings for the tour of duty.
With respect to “designated cut” claims, the company bulletin of August 22, 2003, stated as follows:
Articles 7.9(d) of the 4.16 agreement and 13.2 of the 1.1 agreement pertains to crews required to do designated cuts when yarding their train. Payments are as follows:
1) When employees in road service are instructed to yard their train in a particular track at a terminal and it will hold the entire train, but are requested to make a designated cut to another track the crew will be entitled to one payment of 12˝ miles in addition to all other earnings for the tour of duty. Crews may be required to make up to two designated cuts there is still only one payment of 12˝ miles.
2) When employees in road service are instructed to yard their train in a particular track and it is of insufficient length to hold the entire train, crews will be required to double over surplus cars. There is no payment for this.
It is the union’s position that since designated cuts necessarily involve switching (with which I agree), crews in conductor only operations who are required to make designated cuts in the course of yarding their trains are entitled not only to the bonus payment called for in article 7.9(d) but also to the bonus called for in article 11.7(d), for switching. It may be that were it not for the express inclusion of conductor only operations in the road service operations with which article 7.9(d) deals, that it might be argued that crews in conductor only operations would not have the benefit of article 7.9(d), but would then be entitled to payment under 11.7(d) for such work. They are, however, specifically included under article 7.9(d), which deals with a particular instance of switching. It would take express and clear language in the collective agreement to provide that an employee should be paid twice for the same work because it may be described with more than one name. Accordingly the union’s claim in this respect must be dismissed
Comment may be made on two points raised by the union in the course of the hearing, although not specifically set out in the Statement of Issue. These both relate to the doubling over of “surplus” cars where there is not room in one track to yard the entire train. It would be my view that it would not be improper for the company to call for the cut to be made for doubling to another track at some reasonable point in the train consist (although not such as to necessitate doubling into more than one track), rather than being required to make the cut at the very last car in the track. If, however, the “surplus” consists of cars at a different location within the train, then the extraction and doubling of those cars to another track would, I think, clearly amount to a designated cut.
The second comment is with respect to the note appended to the company’s bulletin with respect to payment claims relating to designated cuts. The company requires that employees making such claims must give the car number where the cut was made, and the name of the person who authorized the cut. I do not as a general matter consider those requirements to be unreasonable, but I am in agreement with the union that it would be a serious abuse for any company officer, or person acting under company authority to refuse to provide his or her name in such circumstances. There is no particular instance before me in that respect, and I do not consider that I am called on to make any binding determination in that regard.
For all of the foregoing reasons, the claims are allowed in part, to the extent noted above with respect to each material article. In my - view, these are not circumstances in which a particular cease-and-desist order should issue. I retain jurisdiction for the purpose of issuing any precise directions which may be required if the parties are unable to agree on the appropriate payment guidelines in accordance with the above, and to complete the award.
DATED AT OTTAWA, this 14th day of October, 2003,
Original signed by: J.F.W. Weatherill ,