AD HOC 558:

AD HOC 558

IN THE MATTER OF A MEDIATION ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

UNITED TRANSPORTATION UNION

(the "Union")

GRIEVANCE RE CONDUCTOR W. NAMINK

SOLE ARBITRATOR: Michel G. Picher

APPEARING FOR THE COMPANY:

J. Coleman – Counsel

J. Torchia – Director, Labour Relations, Edmonton

B. Hogan – Manager, Workforce Strategies, Toronto

J. Krawec – Manager, Labour Relations, Montreal

D. VanCauwenbergh – Manager Labour Relations, Toronto

APPEARING FOR THE UNION:

M. Church – Counsel

R. A. Beatty – General Chairperson, Sault Ste. Marie

J. Robbins – Vice-General Chairperson, Sarnia

G. Scarrow UTU Vice-President (retired), Sarnia

G. Gower – Local Chairperson, Toronto

W. Namink – Local Chairperson, Sarnia

This grievance was presented to the Arbitrator on January 28th, 2004 for resolution. By Memorandum of Agreement, dated February 11, 2004, the parties agreed to adjourn the matter, sine die, and agreed to have the matter mediated with the Arbitrator acting as sole Mediator. In the event the dispute could not be resolved through mediation the parties agreed to remit the matter back to the Arbitrator for final and binding resolution.

AWARD

DISPUTE:

Violation of Article 51 of Agreement 4.16, filed under Article 85, Addendum 123 of Agreement 4.16.

EX PARTE STATEMENT OF ISSUE:

On October 9th, 2003, Conductor W. Namink gave his rest message under the provisions of Article 51 of Agreement 4.16. Mr. Namink arrived at the outer switch at Sarnia 45 minutes prior to the time rest was due to commence. Mr. Namink was instructed to remain on duty 50 minutes beyond the time rest was due to commence as directed by the Company to perform additional duties. This in violation of Article 51 of Agreement 4.16.

It is the Union’s position the Company violated the reasonable intent of Article 51 and, as a result, requested that an appropriate remedy be applied.

The Company declined the Union’ request.

FOR THE UNION:

(SGD.) R. A. BEATTY

GENERAL CHAIRPERSON

Through a series of mediation sessions the parties were able to agree on a mediated settlement dated May 4th, 2004. This settlement contained, in part, the following:

Arbitrator Picher shall render decisions in respect of two of the grievances relating to article 51, identifying the issues and violations found, with appropriate cease and desist and compliance orders, the wording of the awards to be drafted in consultation with the parties.

In compliance with the agreement between the parties the following is the decision of the Arbitrator with respect to the dispute concerning the application of Article 51 as it applies at destination terminals for Road Crews.

On October 9th, 2003, Conductor W. Namink gave proper notice of his desire to book rest under the provisions of Article 51 of Collective Agreement 4.16, with such rest to commence at 13:15 hours of the same day. Conductor Namink reached the outer switch of his objective terminal prior to the time rest booked was due to commence but was subsequently directed by the Company to remain on duty an additional 50 minutes beyond the time rest booked was due to commence, to perform other work.

Counsel for the Union submits that the Company violated the provisions of Article 51 of Collective Agreement 4.16. Counsel submits that once the notice of rest was given the Company was contractually required to have the grievor off duty by the time rest booked was due to commence.

The Arbitrator finds that the company violated Article 51 of Agreement 4.16 in the circumstances of this case and, further to the parties’ settlement, dated May 4, 2004, directs that Article 51 be applied as follows.

Article 51 of Agreement 4.16 provides that train service employees, who have been on duty ten hours or more (or 11 or 12 hours where the assignment falls within Article 51.16), are entitled to book rest where the employee provides the dispatcher not less than three hour’s notification. As provided in a January 15, 1986 internal document clarifying the application of Article 51 (the “1986 Interpretation”) and as quoted in CROA 3280:

It is incumbent upon the Company to ensure that trainmen, who give proper notice of the desire to book rest, are relieved of duty either at a location where accommodations can be provided or at the home or away-from-home terminal by the time rest booked is due to commence, and even then, as soon as possible. In order to make the necessary arrangements to fulfill this requirement, a minimum of three hours’ notice is required.

At the time a train service employee, en route, notifies the RTC of his or her desire to book rest, the RTC supervisor or dispatcher must make a bona fide and informed assessment of whether the employee should reasonably be able to make it to his or her objective terminal and complete the yarding of his or her train by the time rest booked is due to commence. The assessment is made roughly three hours prior to the time rest is due to commence; the RTC cannot be expected to make that assessment at the time the employee begins his or her assignment. If, in good faith, the supervisor or dispatcher determines that the employee cannot complete those tasks prior to the time rest booked is due to commence, the Company must make arrangements to relieve the employee from duty at the time rest booked is due to commence. Where the RTC dispatcher or supervisor makes a good faith assessment about the crew’s ability to reach the objective terminal and to yard the relevant train by the time rest booked is due to commence, the Company will not be held in violation of the collective agreement merely because that assessment proves inaccurate or where the employee in question does not make a good faith effort to complete his or her assignment consistent with the RTC’s assessment.

For the purposes of clarity, it is not sufficient for the Company to merely attempt to have the employee to the outer switch by the time rest booked is due to commence; rather, the supervisor’s or dispatcher’s assessment must include the time it should take for the employee to yard his or her train at the objective terminal. In making the initial assessment, the Company must include a reasonable estimate of the time that will be needed for yarding the employee’s train. It must ensure as far as is reasonably possible, that the employee will be “in and off duty” before his or her scheduled rest begins. If that cannot reasonably be done, arrangements must be made for relief of the employee at the time his or her booked rest is due to commence.

However, consistent with the language and intent with Article 51 and the 1986 Interpretation, it will not generally be a violation of the collective agreement for the Company to require train service employees to complete the yarding of their trains before going off on rest, so long as the employee reaches the outer switch before rest is due to commence. In other words, once the employee has commenced yarding his or her train, the employee must complete yarding the train before going off duty on rest. Indeed, the 1986 Interpretation states, at page 16:

Q. WHEN TRAINMEN COMMENCE THE YARDING OF THEIR TRAIN AT THE OBJECTIVE TERMINAL PRIOR TO THE TIME REST BOOKED IS DUE TO COMMENCE BUT ARE STILL IN THE PROCESS OF YARDNG THE TRAIN AT THE TIME REST BOOKED IS DUE TO COMMENCE, WILL THEY BE RELIEVED UPON REQUEST:

A. No. Trainmen will complete the yarding of their train.

Where the yarding of an employee’s train is/will be delayed, the employee will be relieved by a yard employee. However, where no yard service employees are available, the train service employee must complete the yarding of his or her train before going on rest. The 1986 Interpretation provides the following guidance:

Similarly, if there are no yard assignments on duty, trainmen will yard their train whether they are delayed or not on the basis that they are required to clear trains before taking rest.

A note of caution is introduced. Notwithstanding the provisions of sub-paragraph 51.7(d) it is the responsibility of the Company to relieve trainmen by time rest booked is due to commence except where circumstances make this impossible. Thus, trains can no longer be run in the hope that the final terminal can be reached by the time rest booked is due to commence only to find that the train must sit at the outer switch for an extended period waiting for a clear track in which to yard.

In summary, consistent with the language of Article 85 and the 1986 Interpretation, where an employee has given proper notice of his or her desire to book rest in accordance with Article 51, the employee is entitled to be off on rest by the time rest booked is due to commence, except in circumstances beyond the Company’s control or where the Company lawfully compels the employee to complete the yarding of his or her train. The fact that an employee reaches the outer switch by the time rest booked is due to commence does not entitle the Company to require the employee to perform work in the yard that is not related to the yarding of the train.

The Union acknowledge that if, on occasion, a crew should work some limited minutes (i.e. five or ten minutes) beyond their booked rest time to complete the yarding of their train, that will not constitute a violation of article 51 of the collective agreement. The Arbitrator confirms, however, that where crews are held on duty yarding their trains for a substantial period of time beyond their booked rest time, in circumstances that were reasonably predictable at the time rest was booked, a violation of Article 51 of the collective agreement will be disclosed.

The Arbitrator, in making such the above findings and determinations, order and directs the Company to cease and desist from violating Article 51. The Arbitrator further orders and directs the Company to comply with the provisions of Article 51.

The Arbitrator remains seized of this matter should there by any dispute in the application of this award.

Dated in Toronto this 13th day of August, 2004

(signed) MICHEL G. PICHER

ARBITRATOR