AH 532

IN THE MATTER OF AN ARBITRATION

BETWEEN:

                            BC RAIL

          (hereinafter referred to as the "Railway")

AND:

      CANADIAN UNION OF TRANSPOTATION EMPLOYEES, LOCAL #1

           (hereinafter referred to as the "Union")

                (Beltpack Training Arbitration)

Dispute:

The Company’s refusal to call a Locomotive Engineer to be in the cab of the Beltpack controlled locomotive while field training and working in Beltpack operations.

Joint Statement of Issue:

On March 19, 2001, Beltpack field training commenced at Prince George and UTU represented employees were receiving training in controlling yard movements through the use of Beltpack technology.  Until such time as the Ministry issued full “motive power” certificates to the employees being qualified in Beltpack operation, the Ministry required that a qualified “motive power operator” accompany the Beltpack locomotive while it was being operated by remote control.  Locomotive Engineers represented by CUTE #1 were not called to accompany the Beltpack locomotive during this period.  The Union contends that since the Ministry had not issued full “motive power certificates” to the employees directly involved a Locomotive Engineer from the Canadian Union of Transportation Employees Local 1 (CUTE 1) bargaining unit should have been present in the cab of the locomotive until certification was approved.  The Union goes on to state that there has been a violation of Article 4, Rule 18, and has claimed eight hours runaround pay to the first out spareboard employee as remedy.

The Company asserts that its actions are in compliance with the Arbitrator’s Award in respect of Beltpack operations dated March 27, 2000 and accordingly has declined all claims.  In addition, the Company submits that matters between the Railway and the Ministry are outside the ambit and authority of the collective agreement.

For the Union:                                         For the Railway:

Robert Samson                                   D.A. Lypka

General Chairperson                             General Manager

C.U.T.E. Local 1                                Field Operations

Arbitrator:                               H. Allan Hope, Q.C.

Counsel for the Employer:                 Michael Keiran

Counsel for the Union:                    Robert Samson

Place of Hearing:                         Vancouver, B.C.

Date of Hearing:                          September 24, 2001

Dispute

          This dispute turns initially on the question of whether the operation of a locomotive is work belonging exclusively to members of the Union.  There is no provision of the collective agreement that gives that jurisdiction to the bargaining unit.  The Union conceded that fact but referred to provisions of the agreement as support for its contention that the work in question, being the training of Beltpack operators to man yard engines, constituted yard work within the meaning of Article 4 of the collective agreement.  Its position was that Article 4, Rule 18 required that the training locomotive be manned by a member of the bargaining unit.  That rule reads; “Yard engine will be manned by junior engineer unless senior engineer applies”.

The Union also relied on the fact that, during the time in question, the training program established by the Railway had not been approved by the Ministry of Municipal Affairs, being the regulatory agency that administers the Railway Safety Act, and that the requirement therefore was to have a “qualified” engineer in attendance during the training.  That requirement, as expressed by the Ministry, was to have a “certified motive power operator” present until that regulatory requirement had been accommodated in an approval of the training plan. 

The initial position of the Railway was that the work assignment in question was not a yard assignment as that term is used in the collective agreement, it was a beltpack assignment, being an assignment that falls outside of the collective agreement in the sense that it contemplates the operation of locomotives by remote control by members of the UTU.  The assignment in question, said the Railway, involved a pilot project commenced on March 19, 2001 “when the 0730 yard assignment was selected as the proving ground for training and familiarization for the Beltpack operators”.

In terms of giving the assignment to supervisors, the Railway made reference to meetings held on February 20 and March 16, 2001, the first of which was with the Ministry and the Railway and the second of which included CUTE 1 and the UTU.  In its submission the Railway wrote as follows:

[T]he Railway committed to having a Road Foreman of Engines located in the cab of the Beltpack locomotive during training until such time as the Trainer, Mr. Grant Young, acquired his own accreditation, which he subsequently did on April 2, 2001.  Inasmuch as the Road Foremen are certified “motive power operators” this proposition was agreeable to the Ministry.  At the [CUTE 1’s] request, a second meeting was convened between the Ministry, the Railway and the unions on March 16, 2001.  At this time the Ministry reiterated that a certified motive power operator must accompany the Beltpack operation until such time as the trainer could be certified in his own right.  The Ministry also indicated during this meeting that situating a Road Foreman in the engine would satisfy the requirements of the Act, and therefore those of the Ministry.  The purpose of this meeting was simply to convey the decision to the union, not to negotiate terms or explore other possibilities.

On the facts, the Railway took one of the 0730 yard assignments in Prince George and converted it to a training exercise for UTU members.  The requirement to have a qualified engineer present was met by assigning road foremen to the task on the basis that they were “certified motor power operators” and thus able to meet the requirements of the Ministry with respect to having a qualified engineer on the locomotive throughout the assignment.

The Railway urged that a distinction existed between a qualified engineer under the collective agreement and a certified motive power operator, but, on the facts, it was a distinction without a difference.  In its normal operations the O730 yard would have been operated by an engineer under the collective agreement who was a certified motive power operator and it would perform routine yard assignments.  Substituting road foremen, (who I assume, were recruited from the ranks of locomotive engineers), when the 0730 yard was assigned to the training exercise did not change its essential character in terms of the collective agreement.  It was a yard assignment, the difference being that the “motive power operator” was on standby on the locomotive while it was operated by remote control in the performance of yard work as a training exercise.

The road foremen were not required to operate the locomotive.  But they were required to be present in the event their intervention was required.  On the evidence, that particular yard assignment was unusual and perhaps unique.  But it was nonetheless a yard assignment that required the presence of a qualified engineer or his equivalent.  If it had been a traditional yard assignment, it is unlikely that there would be any question that assigning it to an excluded employee would have had the effect of drawing that employee (or employees) into the bargaining unit in the sense contemplated in the arbitral authorities.

It is correct to say that certified motive power operators are not necessarily locomotive engineers and members of the Union.  But it is also correct to say that the assignment in question, being the operation of the 0730 yard, was normally performed by a locomotive engineer who is a member of the Union.  Substituting road foremen amounted to the assignment of work normally performed by the bargaining unit to non-bargaining unit supervisors.  Thus, the question arising is whether that assignment is consistent with the terms and conditions of the collective agreement.  The position of the Union was that a “locomotive engineer from the [Union] bargaining unit should have been present in the cab of the locomotive until certification [of the trainer] was approved”.

I digress to note the response of the Railway to the second issue raised by the Union with respect to whether a member of the bargaining unit “should have been present between March 19 and April 2, 2001 until certification [of the trainer] was approved”.  The Railway submitted that nothing in the regulatory structure addressed the issue of whether a member of the Union was the only certified motive power operator who could fulfil the regulatory requirements.  The Railway pointed particularly to the fact that its decision to assign the work to road foremen was sufficient to meet the regulatory requirements.  I agree with that submission.  Hence, as stated, the real question is whether the provisions of the collective agreement prohibited the Railway from giving the 0730 yard assignment to supervisors excluded from the bargaining unit.

The arbitral principles governing that issue are reviewed in Brown & Beatty, Canadian Labour Arbitration, (2001).  (Those authorities were recently reviewed between these parties in the Squamish Shoptracks Arbitration).  The reasoning outlined by the authors, and the arbitrators whose decisions are cited, has application to the facts present in this dispute.  The reasoning was reviewed in para. 5:1400; pp. 5-22 to 26.1.  There the authors cited the decision of Arbitrator Lysyk as he then was in Orenda Ltd., (1973) 1 L.A.C. (2d) 72 @ p. 76 for the following proposition:

[P]erformance of bargaining unit work by a foreman was permissible only when an existing practice of performance of work by a foreman was shown, and that only then would the board look further to see if, even given such a practice, bargaining unit work was being performed “to such an extent” as to bring the foreman within the unit.

In terms of the facts present in this dispute, the authorities recognize that assigning employees who are not members of the CUTE 1 bargaining unit members to operate locomotives in the same context in which member engineers are called upon to operate them would likely be a breach of the collective agreement.  In particular, the line of authority outlined in Canadian Labour Arbitration addresses the issue of when a work assignment will be perceived as drawing the person to whom it is assigned into the bargaining unit in various ways. 

Most frequently, that issue is addressed in percentage terms in which a disputed assignment that reaches a significant percentage of the person’s activity will be seen as drawing the person into the unit.  However, in the unique facts in this dispute, the issue can be usefully addressed in the context of the nature of the assignment.  The Railway described the assignment in its submission in the following terms:

[T]he requirement for a Road Foreman to be present was a procedural regulatory one, not for operational necessity.  If the Company had chosen to call a locomotive engineer for these duties (and no suggestion is made that it was required to do so), that employee would have had to be content to simply ride the engine and perform no meaningful service other than his presence.  In fact, he would have been instructed to not intervene in the Beltpack operation, and like the Road Foreman, would serve no operational purpose whatsoever.  The Company retains the right, under Item 1.7 of the Memorandum of Agreement signed with the UTU in respect of the operation of Beltpack operations, to;

“… reserve the right to operate any yard assignment with a traditional crew if it is deemed appropriate.  In those instances, this agreement shall have no application”.

If the Company had chosen to invoke this provision, a locomotive engineer would have been called to the service.

. . . . . . . . . . . . . . . . . . . . . .

As this was in all respects a Beltpack operation, CUTE 1 has no claim to any of the work.  Agreements have long been concluded with the UTU that provides that all Beltpack operations falls exclusively to their membership, and the CUTE 1 employees have been specifically excluded from participation.

          The conclusion invited on those facts is that the assignment in question was unique between the parties, but that it involved the equivalent of a yard assignment in the sense that it required a “motive power operator” in the form of a qualified locomotive engineer to be present on a yard locomotive while it was being operated by beltpack operators.  The Railway characterized that assignment as a regulatory formality.  However, the implication in the facts is that the presence of the engineer in the form of a road foreman was more than a mere technicality.  The facts indicate that the Ministry required the presence of a qualified locomotive engineer or the equivalent for safety reasons with the expectation that the operator would intervene in any circumstances in which a safety issue arose.

Decision

I conclude that the assignment performed by road foremen was a yard assignment within the meaning of the collective agreement and the fact that the assignment was to facilitate beltpack training did not mean that it was not a yard assignment in the broad sense.  It was an assignment involving the operation of a yard engine in the yard performing yard work.  Hence, while the Railway, as indicated in its submission, had the option of treating the assignment as a yard assignment, it elected to meet its needs by assigning road foremen to the task. 

In its submission the Railway met the implications of that finding with the argument that the structure of the collective agreement permitted it to use road foremen in those circumstances.  In that context, the Railway took the same position it took earlier in the Squamish Shoptracks Arbitration.  In this dispute the Railway wrote as follows:

It is imperative to note at the onset that the collective agreement covering CUTE 1 represented employees does not contain a “scope” clause and so the union can point to no contractual language that would give them a prima facie claim to the work in question.  Nor is the designation of “certified motive power operator” reserved exclusively for members of CUTE 1.

          However, as noted in the Squamish Shoptracks Arbitration, the absence of what the Railway refers to as a “scope” clause, does not support the conclusion that the Railway is free to assign work falling within the scope of the bargaining unit to employees outside of the unit, even in the absence of work jurisdiction language.  The initial question of what constitutes bargaining unit work is addressed under the arbitral authorities in terms of the structure of the particular collective agreement and the practice of the parties in its application.

This collective agreement contains provisions identifying yard assignments and the operation of yard engines as falling within the scope of the bargaining unit.  The agreement incorporates terms and conditions governing the work involving the operation of yard engines in the context of various work assignments.  It would be inconsistent with the governing principles to conclude, for example, that the absence of what the Railway refers to as a “scope clause” would entitle it to assign a non-bargaining unit employee to operate the 0730 yard in the performance of routine yard work.  The reasoning reflected in Canadian Labour Arbitration mitigates against such a conclusion.  Assigning the operation of the 0730 yard to a non-bargaining unit employee would clearly bring that employee within the bargaining unit as that concept is defined in the authorities.

Hence, the question here is whether converting the 0730 yard to what the Railway describes as a training assignment took the facts outside the reach of those arbitral principles.  The answer to that essential question offered by the Railway is that a beltpack training assignment falls outside the collective agreement.  That is so when no locomotive engineer is required to be present.  That is, the assignment after April 2, 2001 involved the trainer who was then a certified motive power operator and other persons involved in the training.  It did not involve the presence of a certified motive power operator in the locomotive. 

On that basis, there is at least a factual distinction between the assignment of the O730 yard when it was manned by road foremen and its assignment as a training exercise when the trainer was qualified and able to meet the regulatory requirements.  To that extent, the disputed assignment was a yard assignment within the meaning of the collective agreement, the only distinction being that the 0730 yard performed yard work which included a training component.

          Turning back to the application of the authorities, the assignment in question is subject to the two-fold test of whether it is of a nature that draws the employee into the bargaining unit and, in any event, whether it is consistent with the practice between the parties relating to the assignment of the work in question.  Unlike the facts in the Squamish Shoptracks Arbitration, there was no evidence of a practice between these parties in which assignments equivalent to the 0730 yard training assignment were made to excluded employees.

The assignment was anomalous in the sense that it was the 0730 yard with a training component in which road foreman were not expected to operate the yard engine.  In actual beltpack operations no engineer is expected to fill that role.  The yard engine will be operated by remote control by a qualified member of the UTU.  (I pause to note that the question of whether UTU employees will be qualified to operate the yard engine directly has not yet matured between the parties and nothing in this award is intended to address that potential issue).  However, accepting that the assignment was anomalous in one respect, there was no evidence of any practice which would assist the Railway in giving a yard assignment to excluded employees, albeit one which incorporated a training component.

In this dispute the Railway readily acknowledged that it could easily have assigned the work in question to a member of the bargaining unit and, having acknowledged that fact, the Railway’s justification for electing to assign it non-bargaining supervisors did not fall within the areas of discretion recognized in the arbitral authorities.  I conclude that the assignments in question were in breach of an implied term of the collective agreement that yard assignments would be made consistent with past practice and would be made to members of the bargaining unit.  In the result the grievance is granted and the Union is entitled to the remedy claimed.  I will reserve jurisdiction to assist in calculating the amount of the remedy if that becomes necessary.

DATED at the City of Prince George, in the Province of British Columbia, this 9^th day of November, 2001.

  “H. Allan Hope, Q.C.”             

                     H. ALLAN HOPE, Q.C. – Arbitrator