AH 536
IN THE MATTER OF AN ARBITRATION
BETWEEN:
BC RAIL
(hereinafter referred to as the "Employer")
AND:
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL #1 (CUTE 1); CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL #6 (CUTE 6); UNITED TRANSPORTATION UNION (UTU); and COUNCIL OF TRADE UNIONS ON BC RAIL (the COUNCIL)
(hereinafter referred to as the "Union")
(Brandt Power Unit Arbitration)
Arbitrator: H. Allan Hope, Q.C.
Counsel for the Railway: Bruce Greyell
Counsel for CUTE 1: Robert Samson
Counsel for CUTE 6: Vic Greco
Counsel for the UTU: R.W. (Bob) Sharpe
Place of Hearing: Vancouver, B.C.
Date of Hearing: March 14 and 15, 2001
A W A R D
I - The Dispute
On August 22, 2000 the Railway put the Council, CUTE 1 and the UTU on notice that it intended to acquire one or more Brandt Power Units (BPU’s). The Council was advised that the Railway intended “to employ a BPU in rail tie peddling and pickup operations commencing in 2001”. In that notice the Railway set out an analysis of projected daily operating costs of rail tie distribution and recovery as between a BPU and the actual costs involved in using a work train. That analysis was based on the fact that rail tie peddling and pickup operations in current practice most frequently involve the use of a work train.
The Railway’s analysis incorporated the conclusion that a considerable saving could be achieved by using a BPU to provide the motive power required for rail tie distribution and pickup operations. The substance of the notice was that the Railway intended to assign two machine operators who are members of CUTE 6 to operate the BPU’s, whereas work trains are operated by a CUTE 1 engineman and a conductor and trainman who are members of the UTU. In the notice the Railway summarized its position as follows:
Notice to the Council of Trade Unions
This notice is being provided to the Council of Trade Unions (CTU) as a courtesy notice as we anticipate that there will be issues raised by individual constituents claiming that the proposed method of operation is in violation of individual clauses of their respective collective agreements. The Railway expressly denies that the implementation of this "new type of equipment and operation" is a violation of the collective agreement(s). We nevertheless anticipate that the CTU will oppose the operation of the BPU's as set out, and are putting the CTU on formal notice that the Railway will oppose any and all such claims through the jurisdictional umpire process set out in the Constitution of the CTU. On a proactive basis the Railway intends to unilaterally progress the intended assignments directly through the Umpire process to receive a declaratory opinion concerning the right of the Railway to make these intended assignments. If you wish to state your concerns about, or require any further information about the proposed operation then it is requested that you do so as soon as possible. The Railway intends to commence BPU assignments as described as soon as the unit is acquired in 2001.
That notice attracted a joint reply on October 30, 2000 from CUTE 1 and the UTU. The reply was contained in a letter signed by R.W. Sharpe, the general chairperson of the UTU, and Robert Samson, the general chairperson of CUTE 1. It is convenient to set that reply out in full. It reads as follows:
Please accept this as notice that CUTE 1 and the UTU disagree with the position taken by BC Rail with regards to the implementation of the Brandt Power Units. As you state in your letter, this is a, "new type of equipment and operation". It is the position of CUTE 1 and the UTU that this is not an issue for the jurisdictional umpire but falls fully under Article 23 of CUTE 1's collective agreement and Article 132 of UTU's collective agreement, and we will pursue this issue as an arbitrable grievance. It is also the positions of the unions that BC Rail has not complied with the collective agreements with respect to CUTE 1 Article 23.1.1 or UTU Article 132(1)(a). As the Railway has chosen to pursue this matter before the jurisdictional umpire and not as a material change, the unions will seek full compliance under the material change articles. We appreciate your "courtesy notice" to the CTU dated August 22, 2000, but advise you that in no manner does this comply with any of the requirements under the material change articles of CUTE 1 or the UTU. As you have indicated that the Railway intends to implement this type of operation by the end of March 2001, the unions are addressing this matter now to allow the parties ample time to deal with this issue as a material change. If you require any further information concerning this matter, please contact me at your earliest convenience. (emphasis added)
Those positions were maintained in these proceedings. In particular, Mr. Sharpe maintained a watching brief on behalf of the UTU but reiterated the position that the proposed introduction of the BPU’s did not raise in issue falling within the jurisdictional umpire process set out in Article XV of the Constitution of the Council. Mr. Greco supported the proposed assignment of the work to CUTE 6 members. Mr. Samson contested the proposed assignment on behalf of CUTE 1 on the basis that it fell outside Article XV, and in any event, because it did not fall within the jurisdictional umpire process and should be addressed under the material change provisions of the CUTE 1 collective agreement.
The conclusion with respect to the preliminary issue raised by CUTE 1 and the UTU is that they are free to pursue this issue under the material change provisions of the collective agreement and their participation in this process does not serve to prejudice their rights in that regard. In short, the sole issue in these proceedings is whether the Railway’s proposal falls within Article XV. That provision is set out in part as follows:
ARTICLE XV: JURISDICITONAL UMPIRE
(a) Definition – A “jurisdictional issue” includes a work assignment made by BC Rail which is disputed by the Council or a constituent union, as well as any other difference between the parties as to the manner in which work has been or may be assigned.
(b) Criteria – The following criteria shall apply to the informal resolution of jurisdictional issues between the Council, constituent unions and BC Rail, and will also apply to proceedings of the Jurisdictional Umpire:
1. the parties will cooperatively participate in resolving workplace issues, adapting to changes in the economy, developing workplace skills and promoting workplace productivity.
2. craft rules and jurisdictional lines should not inhibit efficient operation of the Railway; provided, however, that work required to be performed by a qualified trades-person will be performed by an employee with the requisite trade qualifications; and
3. both the resolution and adjudication of jurisdictional issues are non-precedential, and will not serve to create an entitlement to jurisdiction in other circumstances.
(c) These Criteria apply to jurisdictional issues within and between constituent unions, and will prevail over any inconsistent collective agreement provision.
II – Positions of the Parties
(i) - The Railway
The submission of the Railway was that the issue in an application made by one of the parties under Article XV is whether or not the facts bring the application within the criteria set out in Article XV(b). In terms of the interpretation and application of that criteria, the Railway made reference to the reasoning set out in the various decisions of the Labour Relations Board that gave rise to the jurisdictional umpire process. Those decisions were summarized and applied in BC Rail and the Council of Trade Unions and CUTE 6, October 13, 1999, unreported, BCLRB No. B405/99. That decision was given by the Labour Relations Board in an appeal by the Council brought with respect to an arbitration decision in BC Rail and the Council of Trade Unions, May 30, 1999, unreported. The Railway relied in particular on the following extract from p. 4 of the Board’s decision:
The process as proposed by the Council empowers the Jurisdictional Umpire to override collective agreement provisions in certain circumstances where they conflict with workplace productivity (B131/98, at para. 35). The process provides an avenue in addition to collective bargaining for addressing functional integration and jurisdictional restrictions which preclude efficient operation of the Railway (para. 52). As we went on to state: (emphasis added)
The Council has accepted that one of the criteria for resolving jurisdictional issues should be Section 2(1)(b) of the Code; namely, encouraging "cooperative participation between [the Railway and the Council] in resolving workplace issues, adapting to changes in the economy, developing workforce skills and promoting workplace productivity". We interpret this acceptance as implicit recognition that craft rules and Jurisdictional lines of demarcation should no longer inhibit the Railway's ability to operate efficiently. The Board must be satisfied that the process will achieve this result in practice. The protective "quid pro quo" is the stipulation that work requiring a qualified tradesperson will be performed by someone with the requisite qualifications. This accords with the Railway's stated objective of utilizing skill sets within different Constituent Unions (for example, welding) where employees are qualified. The Council has additionally stated that the Jurisdictional Umpire provisions are intended to apply to special craft rules within Constituent Unions. (para 55; underlining added)
The necessity of the Jurisdictional Umpire process achieving its intended result in practice was underscored by the prospect of future Board review once both parties had an opportunity to operate under the revised regime (para. 60). (emphasis added)
The submission of the Railway is that the facts in this dispute fall comfortably within the criteria in Article XV(b) and the directional analysis given by the Board. The application, said the Railway, was motivated by the prospect of significant savings in manpower, equipment and operational costs in the work assignment of “peddling and recovering ties”. The Railway’s application was accompanied by a written summary. Following is an extract from that summary:
Tie Peddling and Pickup
In the year 2000 capital tie programs will pedal and install in the neighborhood of 200,000 hardwood and softwood ties on various subdivisions across the system. Conversely this tie changeout will require the railway to pickup and dispose of an equivalent number of used ties in addition to those generated by maintenance operations over the years. The breakdown of ties is as follows.
Squamish Subdivision - 10,300
Liilooet Subdivision - 62,250
Chetwynd Subdivision - 45,200
Stuart Subdivision - 68,200
Ft. Nelson Subdivision - 20,000
The examples noted above represent an actual work train operation in April of this year versus the proposal to use a Brandt Roadrailer as well as historic costs associated with tie pickup. Outlined below is our estimate of costs for a work train operation versus the Brandt if in fact one was available to undertake this year's capital work. Appendix one and two illustrate the daily operating costs (standard 10 hour day) for the Brandt Roadrailer (see picture no. 5) and a standard work train involved in either tie pickup or distribution.
Appendix one - Brandt Roadrailer - $1362.20 per day
Appendix two - work train - $3445.90 per day
Comparative Costs for tie pickup and distribution based on estimated production figures.
Brandt Roadrailer - Pickup @ 3000 ties per day - $.45/Tie
- Distribution @ 3900 ties per day – $.35/Tie
Work Train crew - Pickup @ 3000 ties per day - $1.15/tie
- Distribution at 6000 ties per day - $ .57/tie
In the year 2000, and presuming scheduling would permit the use of the Brandt exclusively, then the savings recognized over the year based on the need to peddle and pickup 200,000 ties would have been as follows.
Distribution: .57 Work Train -.35 Brandt = Savings
of $.22 x 200,000 = $ 44,000.00
Tie Pickup: 1.15 Work Train ‑ .45 Brandt = Savings
of $.70 x 200,000 = $140.000.00
$184,000.00
We are also confident that we could achieve additional savings in the purchase price of the tie itself by minimizing the requirement for our suppliers to load and band on railcars. In the spring of 2000 we negotiated a $31,000.00 savings with Ashcroft Treating as a result of their delivery by truck to Exeter versus Railcar.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Savings Potential $.30 x 15,640 ties = $4692.00
The position of the Railway was that its analysis disclosed that the tie peddling and recovery assignments could be performed more efficiently and cost effectively through the use of a BPU operated by two CUTE 6 operators as compared with a work train operated by a CUTE 1 engineman and a UTU conductor and trainman.
(ii) - CUTE 1
CUTE 1 called evidence with respect to the regulatory framework governing the operation of motive power units on the rail system. Called as a witness was Carl DeCiccio, an official of the Railway Safety Branch of the Ministry of Municipal Affairs. Mr. DeCiccio gave evidence with respect to a letter he had drafted and addressed to CUTE 1 to be signed by Martin Howbold, the Senior Railway Inspector, Boiler, Gas and Railway Safety, on the application of the regulations to BPU’s. The letter consisted of a series of questions posed by CUTE 1 with responses from the Ministry.
Mr. DeCiccio confirmed what was stated in the letter with respect to how operators of BPU’s would be classified for certification purposes. In particular, he confirmed that “locomotive engineers, power car operators and locomotive crane engineers” are all classified as “motive power operators” and that operators of BPU’s would fall into the same category. He also confirmed that locomotives and BPU’s are both considered under the governing legislation as “motive power units”.
Mr. DeCiccio next confirmed that the BPU’s the Railway intends to introduce have not yet received regulatory approval from the Ministry and that no program for the training of operators of BPU’s has been approved. Based on the evidence of Mr. DeCiccio, CUTE 1 submitted that no distinction could be made between BPU’s and locomotives or employees assigned to operate the BPU’s and engineers assigned to operate locomotives. On that basis, CUTE 1 said that the proposal of the Railway amounted simply to a move to have work normally performed by enginemen assigned to a lower-rated classification in another union contrary to jurisdictional provisions of its collective agreement.
In the submission of CUTE 1, Article XV could not be read as reflecting an intention to permit the Railway to compromise jurisdictional lines agreed to by the parties for the sole purpose of corrupting pay rates negotiated for the performance of particular work. The operation of motive power on the Railway is required by law and by contract to be performed by qualified and certified engineers paid at the rates payable to engineers, said CUTE 1, and the Railway proposal undermines the integrity of its collective agreement with the Union.
(iii) - The UTU
As stated, the UTU took the position that the work assignment in question did not fall within the terms of the jurisdictional umpire provision and that it should be submitted to the material change provisions of the UTU collective agreement. Mr. Sharpe was present to maintain a watching brief on behalf of his Union and his limited participation was not intended to restrict the UTU’s jurisdictional objection. Subject to that objection, his submissions were addressed in terms of what he perceived as an act of bad faith on the part of the Railway.
In Mr. Sharpe’s view, the introduction of BPU’s could not be distinguished in collective agreement terms from the introduction of Isco car movers. As such, said Mr. Sharpe, the assignment fell within an agreement made between the parties at the time that the operation of Isco car movers was assigned to members of the CUTE 6 bargaining unit whereby their operation would be limited to two cars. He saw the Railway’s introduction of BPU’s, coupled with its declared intention of operating them with more than two cars, to be a breach of that agreement. He was particularly concerned about what the UTU perceived as a failure on the part of the Railway to give clear notice of its intention to use the BPU’s with more than two cars and a failure to negotiate that use of BPU’s with the running trades unions.
III – Decision
The issue raised in the jurisdictional umpire process is limited to a consideration of whether a contested work assignment falls within the criteria set out in Article XV of the Constitution. In particular, Article XV(2) provides in part that:
[J]urisdictional lines should not inhibit efficient operation of the Railway; provided, however, that work required to be performed by a qualified trades person will be performed by an employee with the requisite trade qualification.
That aspect of the provision embraces the issues raised in this dispute. The submission of the Railway is that its proposal to introduce BPU’s to be operated by members of CUTE 6 will achieve efficiencies in its operations with respect to the distribution and pickup of ties. That submission falls within the scope of the reasoning that gave rise to the introduction of the jurisdictional process. The Railway’s answer to the issues raised by the UTU is that the arrangement made with respect to Isco car movers preceded the introduction of the jurisdictional umpire provision and, in any event, was made expressly subject to the right of the Railway to revisit the use of car movers when the proceedings that gave rise to the jurisdictional umpire provision were concluded.
The response of the Railway to CUTE 1 was that CUTE 6 employees now operate car moving equipment and that any issue with respect to regulatory approval and the adequacy of training will be addressed through the Ministry. I agree with that submission. The sole question raised in these proceedings that falls within the limited scope of the jurisdictional provision is whether the work assignment in question, being the pickup and recovery of ties using a BPU operated by two CUTE 6 operators, is justified by the material submitted by the Railway. On the Railway’s submission, the cost, manpower and equipment efficiencies it anticipates, if achieved, will support the conclusion that using a BPU as the motive force is consistent with Article XV.
In terms of whether the operational efficiencies contemplated by the Railway will be achieved, the answer is that if they are not achieved, it is open to CUTE 1 to apply for jurisdiction over the operation of BPU’s, or, alternatively, to require that the distribution and pickup of ties be performed using a work train. The same conclusion applies to the question of regulatory approval of BPU’s, the qualifications of employees assigned to their operation and the establishment of approved training programs that meet the requirements of the Ministry. If regulatory approval is not received, the Railway will not be able to operate BPU’s.
I digress to note that the jurisdictional umpire process has proven to be extremely controversial. In the context of that controversy, I agree with CUTE 1 that caution must be exercised to prevent the process from being used as a medium to undermine wage rates. If, for example, employees from outside CUTE 1 and the UTU were assigned to operate locomotives or trains at lesser wage rates on the basis that the cost savings would increase productivity, that move would fall well outside the jurisdictional umpire criteria. But the application of that reasoning to a particular motive power unit will depend on a number of factors, including the nature of the unit and the work to which it is assigned. If, for instance, a BPU was used in revenue service, either passenger or freight, the Railway would be required to justify why its operation should be assigned to employees outside CUTE 1 and the UTU.
Here the narrow issue is whether a BPU can be operated by qualified CUTE 6 employees coincidental with the CUTE 6 task of distributing and recovering ties. That particular work assignment falls within the jurisdictional umpire criteria. In particular, the use of a BPU operated by CUTE 6 employees introduces the manpower and equipment efficiencies that can be achieved by multi-tasking the tie peddling and recovery process. It is not simply a question of replacing a three-person work train crew with two CUTE 6 employees. Rather, the proposal introduces a significant range of wage and equipment cost efficiencies that cannot be achieved through the assignment of CUTE 1 and UTU employees to the operation of the BPU’s or by continuing to assign the tie peddling task to work train crews. I conclude that the proposal to assign the operation of BPU’s to CUTE 6 employees for purposes of distributing and recovering ties is in accord with the provisions of Article XV.
DATED at the City of Prince George, in the Province of British Columbia, this 3rd day of April, 2001.
_____________________________________
H. ALLAN HOPE, Q.C. – Arbitrator