AD HOC 560: CONDUCTOR ONLY WESTERN CANADA

AWARD

This dispute concerns the allegation of the Union that the Company has continuously violated the provisions of the Conductor Only Memorandum of Agreement signed on January 15, 1992 in relation to freight operations in Western Canada. The hearing in this matter involved some six days of testimony and submissions, in addition to extensive briefs and supporting documentation. The nature of the dispute is reflected in the ex parte statement of dispute and statement of issue filed by the Union, which reads as follows:

DISPUTE:

The Company’s continuing violations of the Conductor Only Memorandum of Agreement signed on January 15, 1992 by having trains operating with a Conductor Only consist perform improper switching at the initial terminal, enroute and final terminal respectively.

UNION’S STATEMENT OF ISSUE:

The Union and the Company signed a Memorandum of Agreement on January 15, 1992, whereby trains operating in through-freight service may be operated with a conductor but without an assistant conductor provided that specific criteria were met.

The Company is continuing to violate the Conductor Only crew consist agreement by requiring Conductor Only crews to perform improper switching at initial terminals, enroute and final terminals instead of complying with the Agreement, including the provisions of Article 15 of Agreement 4.3.

The Union contends the Memorandum of Agreement signed January 15, 1992 is clear in respect to the work requirements of trains operating in a Conductor Only operation and has requested the Company honour the application and intent of this Agreement. The Company has refused to do so and continues to violate the Agreement.

The Union requests the following relief: a Declaration that the Company has violated the Agreement as alleged, an Order for the Company to cease and desist from said violations, an Order for the Company to comply with the Agreement and an Order for damages.

HISTORY OF CONDUCTOR ONLY AGREEMENTS

Historically, trains in road freight service in Canada were operated by a four-person crew, including a locomotive engineer, a conductor and two brakepersons. Over the years, with the implementation of technological advances, including such factors as more sophisticated radio communication and dispatching as well as mechanized hot box detectors, railways achieved the ability to operate with reduced crews. The earliest crew reductions between the UTU and the Company occurred in 1967, in relation to the reduction of yard crews in certain circumstances. The first reduced road crews resulted from the arbitration award of Mr. Justice Emmet Hall, on January 8, 1975. While the Hall award was never in fact implemented, the principles governing freight crew reduction in his award became the basis for reduced crew consist agreements in 1978 and 1982. The 1978 agreement was restricted to through freight service while the 1982 agreement extended crew reductions more broadly to all forms of freight service, including way-freight, road switcher and work train service. Because the Company found the agreements of 1978 and 1982 to be unduly restrictive and costly, it undertook further negotiations with the Union which eventually resulted in the Arbitrator’s award of June 29, 1990 and the ensuing Freight Crew Consist Reduction Agreement.

The agreement contemplated trains operating with a single brakeperson, with grandparenting provisions to protect senior employees designated as non-essential brakepersons. That arrangement was relatively short lived, being overtaken by agreements negotiated in both Eastern and Western Canada allowing for conductor only operations whereby freight trains in road service were to be operated by a two person crew, consisting of a locomotive engineer and a conductor. As noted above, the Conductor Only Agreement which is the subject of this dispute, relating to Western Canada, was executed on January 15, 1992. That agreement followed an earlier conductor only agreement concluded in Eastern Canada, the terms of which are in some respects different from the Western Canada agreement.

The first conductor only agreement in the industry in Canada arose in March 1991 on CP Rail. At that time CP and the United Transportation Union representing employees on eastern lines made an agreement permitting limited conductor only operations in CP Road Railer trains. The first conductor only agreement in relation to CN, which had much wider application, was negotiated by the UTU (Central Region) in the late spring of 1991.

The Union draws to the attention of the Arbitrator certain of the positions advanced during the negotiations for the first conductor only agreement in Central Canada. Its counsel notes, among other things, a document dated April 18, 1991, a Company proposal for conductor only operations. That document proposed a maximum of three stops enroute for the purpose of setting out a car or group of cars or picking up a car or group of cars. The Company also proposed that a conductor only crew might be required to perform switching enroute, as required by unforeseen service demands. The Union’s refusal to agree to the Company’s proposal led to subsequent changes of positions, and ultimately the agreement of May 24, 1991. The agreement in principle, signed on May 24, 1991, contained the following provisions, governing conductor only operations in through freight trains.

Conductor Only Through Freight Trains

D.1 To qualify for conductor only operation, through freight trains must:

(a) be operated without a caboose;

(b) perform only such doubling at the initial and/or final terminal as necessary where yard tracks are of insufficient length to hold the train;

(c) be designed for a maximum of two stops for the purpose of taking on and/or setting off a car or group of cars together; and

(d) perform no switching enroute except as may be required in connection with the taking on or setting out of cars such as, for example, to comply with marshalling requirements.

D.2 When a train operated with a conductor only crew consist is required to set out a car or cars (other than a bad order) or take on a car or cars or perform switching, the time so occupied, at each station, will be paid for at the applicable mileage rate 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 ½ miles for the first hour or portion thereof.

NOTE: Article 15 of Agreement 4.16 will not apply in respect of trains operated with a conductor only crew consist.

Following the successful negotiation of a conductor only agreement in Central Canada the Company undertook a similar agreement for Western Canada. Initial discussions, commenced in Edmonton on September 3, 1991, also included the UTU’s General Chairperson from the Atlantic Region. While those efforts did not then lead to the negotiation of a conductor only agreement in Western Canada, an agreement was later reached for conductor only operations in Atlantic Canada.

Conductor only operations subsequently formed part of the Company’s proposals in the round of bargaining for the renewal of the collective agreement of the United Transportation Union in the fall of 1991. While the Company’s proposals were eventually withdrawn, the parties did operate on the understanding that any conductor only agreement negotiated in Western Canada would have to be subject to ratification by the membership of the UTU. Negotiations then ensued between January 7 and January 15, 1992, with a tentative agreement being reached on January 15, 1992. The terms of that agreement, which were ratified by the membership, varied in some degree from those of the conductor only agreement governing Central Canada. The Conductor Only Agreement (West), which was ratified after extensive explanatory meetings conducted among the UTU’s membership in Western Canada, eventually became inserted as article 15 of the collective agreement.

The provisions which bear most significantly on conductor only operations in road service, which form the bulk of the issues in dispute, are now found in article 15.2 of the collective agreement which provides, in part, as follows:

15.2 On wayfreight runs where the work is unduly heavy, it will be lightened by using an additional assistant conductor

(a) Except as otherwise provided herein, all trains will have a conductor and one assistant conductor. On mixed trains, the assistant conductor may be used to handle baggage, mail and/or express.

Note: Where presently used in this Agreement, the term “reduced freight crew consist” shall hereafter refer to a crew consist of one conductor and one assistant conductor.

(b) Notwithstanding the provisions of sub-paragraph 15.2(a), trains operating in through freight service may be operated with a conductor but without an assistant conductor provided that:

(i) Such trains are operated without a caboose;

At terminals

(ii) At the initial terminal, doubling is limited to that necessary to assemble the train for departure account yard tracks being of insufficient length to hold the fully assembled train;

(iii) At the final terminal, doubling is limited to that necessary to yard the train upon arrival account yard tracks being of insufficient length to hold the train;

(iv) 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 12-1/2 miles in addition to all other earnings for the tour of duty;

Enroute

(v) Such trains will make no more than two stops enroute for the purpose of taking on and/or setting out a car or group of cars together, except to set off a bad order car or cars. The setting off of a bad order car or cars is not a stop for the purposes of this sub-paragraph;

(vi) Such trains will not be required to perform switching enroute (i.e. between the initial and final terminal) except as may be required in connection with the taking on or setting out of cars as, for example, to comply with the requirements of rules and special instructions governing the marshalling of trains;

POSITION OF THE UNITED TRANSPORTATION UNION

The instant dispute concerns the allegation of the Union that following an initial period of time during which the Company generally respected the rules of the conductor only agreement, the application of those rules became eroded over time. The alleged erosion commenced in 1995 and increased in subsequent years, after the introduction of extended runs in 1996. According to the Union, violations of the agreement increased in frequency through 1998. During those years the Union registered its concerns with the Company by filing specific letters of complaint with Company officers. Its counsel stresses that the Union did so rather than file numerous individual or specific grievances, in the hopes that good faith communications would be sufficient to return matters to what the Union considered to be the original intent of the conductor only agreement. It does not appear disputed that to some extent these alleged violations of the conductor only rules may have been prompted by the willingness of conductors to accept a bending of the rules as a means of increasing their own earnings by receiving more conductor only premiums established under Appendix 1 of the conductor only agreement of January 15, 1992. Initial concerns in that regard were expressed by Local Chairperson M.J. Rutzki of Melville, Saskatchewan. On February 9, 1995 he addressed the following communication to yardmasters at Melville concerning the administration of the conductor only agreement:

Dear Brothers & Sisters:

The intent of this letter is to emphasize to you the importance of maintaining the integrity of the Memorandum of Agreement reached by the UTU and CN Rail on January 15, 1992.

The following conditions of said Agreement are regularly being violated in our terminal.

1. Picking-up or setting-out enroute

Clause 3 of the Memorandum of Agreement states in part:

Such trains will make no more than two stops enroute for the purpose of taking on and/or setting out a car or group of cars together, except to set off a bad order car or cars. The setting off of a bad order car or cars is not a stop for the purposes of this sub paragraph;

With regards to Clause 3, a train that exceeds two stops enroute requires an essential Brakeman. If it is the Yardmasters [sic] responsibility to order a crew for a train that does not meet the Conductor Only criteria then a Brakeman will be called.

2. Grain block work enroute

The intent of the Agreement was for the operation of through freight trains. I have been advised that certain on-line Officers take the position that our members must pick-up grain from two or three tracks at one location under a Conductor Only operation. The General Chairmans [sic] Office had indicated that there may be instances whereby our members may be required to couple a pick-up in an elevator track, do up air hoses or make a joint due to a boxed knuckle but the intent is on one track only, not two or three tracks as some on-line Officers have indicated.

Again if it is the responsibility of the Yardmaster to order a crew for a train doing grain block work [then] a train required to pick-up or set-out in 2 or more tracks at one location requires an essential Brakeman.

3. Extensive switching at initial or final terminals

The General Chairman’s Office has informed me that as agreed upon by the Company and the Union work afforded trains at initial/final terminals in Conductor Only operation will be that of “hook and haul method”. In other words, a straight pick-up and/or set out is allowed. Any more switching (passes in set out and/or pick up, setting out and/or picking-up in numerous tracks, etc.) requires an essential Brakeman.

Again if it is the Yardmasters [sic] responsibility to order a crew for a train that does not meet Conductor Only criteria an essential Brakeman must be called.

It has been brought to my attention that some of our members are voluntarily performing extensive switching in Conductor Only operations solely for the purpose of obtaining the increased rate of pay outlined in Appendix 1 of the Agreement. Unfortunately these members seem willing to forego the conditions negotiated in the Conductor Only Agreement without realizing the ramifications of doing so. The Company, on the other hand in some instances, [appears] to be in favour of these violations so as to save expenses.

If you encounter problems or harassment by the Membership or the Company Officers while complying with proper crew calling procedures for the above situations please forward names and circumstances to the undersigned.

Fraternally Yours:

M.J. Rutzki

Local Chairman

The grounds of dispute and issues raised in the grievance at hand are fairly broad, and to some degree can only be addressed by reference to specific examples. Generally, however, the concerns which underlie the Union’s grievance are reflected in a letter addressed to the Company’s Director of Labour Relations in Edmonton by then General Chairperson B.J. Henry, in a letter dated July 31, 2001. That letter reads as follows:

Dear Sir:

We attended a meeting with Mr. Ed Harris, Chief Transportation Officer, yourself, Mr. Ed Posnyiak, General Manager Pacific Division and four District Superintendents on June 26, 2001. The purpose of the meeting was to determine what was acceptable work to be performed in a Conductor Only environment.

We left the meeting with the feeling that, basically, nothing had changed. It was our understanding that Mr. Harris had asked you to contact Mr. Healy to determine the intent of several items. Ironically, it would appear that this writer has been asking for the same thing for the past three years.

So that we may determine what we do next we request that the Company state, in writing, what [their] position is in relation to excessive switching in regards to Conductor Only operation. So that there is no confusion would you please address the following in your letter:

1. At the initial terminal, are crews required to pick up from more than one track if the train will “fit” in one track?

2. At the initial terminal, how may stops will a crew be required to make prior to departing the outer switch?

3. Enroute, how many tracks will a crew be required to enter to do work – i.e. at a “Super Elevator” – will a crew be required to set out their entire train in more than one track?

4. At an industrial siding, enroute – i.e. Bloom on the Rivers Subdivision – will a crew be required to spot three (3) separate tracks as in the examples provided on many occasions to the Company?

5. Are crews required to set out or pick up behind cars other than what is required, by law, regarding dangerous commodities or other marshalling restrictions as outlined in the General Operating Instructions?

6. Are crews required to set out and pick up at the final terminal – i.e. the example given at Fort Francis?

7. Does the Company agree that the intent of the Conductor Only Agreement is that it is a hook and haul agreement and will not be used for grain block, work trains or way freights?

There have been many examples forwarded to your office. We now ask that you answer these questions. It is apparent to this Office that there is no need for further meetings until we receive answers to these questions. After the Company responds we shall advise if we wish to proceed to arbitration.

Due to the seriousness of this matter we request a reply by August 30, 2001.

We appreciate your time and efforts involved regarding this matter.

Yours truly,

(signed) B. J. Henry

General Chairperson, UTU

Counsel for the Union submits that while the conductor only agreement for Western Canada is in some particulars different from the agreement initially negotiated in Central Canada, there are nevertheless certain provisions which are similar, if not identical, and were intended to have the same meaning. In that regard, with respect to work enroute and at terminals, the Arbitrator is referred to a letter dated April 21, 1992 sent by the Company to UTU General Chairperson M.P. Gregotski and General Chairperson W.G. Scarrow. That letter reads, in part, as follows:

1. WORK ENROUTE AND AT TERMINALS

The primary focus of discussion on this matter centred on switching and marshalling requirements connected with the taking on or setting out of cars enroute in a conductor-only operation. The conditions attached to the operation of trains with a conductor-only crew consist are set out in paragraph 4.1(3) of Clause 4 of the memorandum of agreement. Our discussions on April 13 [1992] primarily concerned the provisions of sub-paragraphs (e) and (f) of paragraph 4.1(3). Those provisions read:

(e) such trains are designed to make no more than two stops for the purpose of taking on and/or setting out a car or group of cars together;

(f) such trains are not required to perform switching enroute (i.e., between the initial and final terminal) except in connection with the taking on or setting out of cars as, for example, to comply with the requirements of rules and special instructions governing the marshalling of trains.

Read together, the two sub-paragraphs reflect the intention of the parties to limit the amount of switching that might be required in a conductor-only operation to the minimum necessary to accomplish the task at hand, including that with might be required in connection with the taking on and/or setting out of cars enroute. At the same time, the parties also recognised that a certain amount of switching may be required in order to accomplish a lift or set out, governing the safety of train operation. It was, however, the clear intention of the parties, as reflected in the language of the Memorandum of Agreement, to limit such switching to the minimum necessary.

In respect to the taking on and/or setting out of cars at a location enroute, this intent is reflected in the language of sub-paragraph (e): “a car or group of cars together”. Where, for example, trains are required to take on cars from more than one track or to set out cars in more than one track solely for the purpose of marshalling, it was contemplated that these trains, by virtue of the additional discretionary switching involved, would not be suitable for a conductor only operation.

This, however, would not prevent trains operating with a conductor-only crew consist from being required to take on cars from more than one track or to set out cars in more than one track where yard tracks are of insufficient length to hold the cars being taken on or set out.

Nor should the foregoing be construed as prohibiting the taking on and/or setting out of cars in a manner that would contribute to the marshalling integrity of the train itself. As an example, a train operating with a conductor only crew consist could be required to take on a block of cars in the middle of a train – the example cited in this respect was the requirement to hold onto 30 cars when making the lift – or to set out a block of cars located in the middle of the train. Nor would the language prohibit the taking on of a car or group of cars that do not stand first out in a yard track – the example cited in this respect contemplated the taking on of a block or cars standing behind 10 or 12 cars that were to be left at the location.

(original emphasis)

With respect to work enroute, the record before the Arbitrator indicates that relatively early the Company made it clear that a stop means a stop at a given location, and that work performed on different tracks at that single location does not constitute an additional stop. That is reflected in a memorandum issued by the District Superintendent at Saskatoon on August 17, 1993 which reads as follows:

There seems to be some misunderstanding regarding the Clause 3.1(2) Item (e) of the Conductors Only Agreement [sic].

The Item states “Such trains will make no more than two stops enroute for the purpose of taking on and or setting out a car or group of cars together.

The Company takes the position that whether required to set off or lift from more than one track at a location will still only be considered as one stop and Train and Engine crews are required to perform this work.

The Union’s concern remained, however, as regards conductor only crews doing extensive switching and grain block work. That is reflected in a letter dated August 30, 1993 addressed to the Company’s Senior Vice-President R.A. Walker by General Chairperson J.W. Armstrong, which reads, in part:

We had thought that the Company was in agreement with our positions regarding the issues of:

1. Extensive switching and;

2. Going into more than one track during a stop.

We had thought that you agreed that Conductor Only operations were not to be used for grain block work, although we agreed there were times when a train could do so providing it was designed to not make more than two stops. Obviously we thought wrong.

Further Union concern is reflected in a letter of Mr. Armstrong to Mr. Walker dated September 1, 1993 which reads, in part, as follows:

Sir:

Further to our letter regarding violations of the Conductor Only Agreement, we wish to bring the following matter to your attention, although we have spoken to you about it on the telephone.

On August 30, 1993 Conductor Craven of Saskatoon was ordered at Kindersley for #563. He was told by the RTC and MTS Daniels to proceed from Eston, light units to Matador Junction then proceed backing up to Kyle, a distance of thirty miles.

Once at Kyle he was instructed to lift cars from both the elevator track and the overhead track. We are enclosing a letter received from Local Chairperson Borland. You will note that Conductor Craven, a UTU member, was advised by officials in Saskatoon that “this situation had already been hashed out with the Union and the Company has all rights to ask this to be done Conductor Only”. He was further advised to re-read District Notice No. 39/93 and abide by that bulletin.

Nothing has been hashed out with the Union and we take great exception to any Superintendent or his minions stating something that is totally untrue.

On October 14, 1993 Mr. Walker issued a directive to five District Managers in Western Canada with respect to compliance with the conductor only agreement. That letter reads as follows:

We have already received a number of complaints from the General Chairperson of the United Transportation Union regarding the application of the “Conductor Only” Agreement. The complaints relate to two particular arms of the agreement.

a) the operation of work trains as a “Conductor Only” operations wherein crews are being instructed to unload ballast or other OCS material and;

b) the number of stops and switching to be done when a train has a “Conductor Only” crew consist wherein crews are being instructed to perform more than two stops and to perform switching in conjunction with these stops.

During the ratification process of the “Conductor Only” Agreement, there was extensive discussions on these items of the agreement. Company officers committed during the above noted discussions that work trains would be crewed with a Conductor and a Brakeman, with the one exception being a straight hook and haul operation between two terminals or between the origin and destination of the run.

The Company further committed that on Conductor Only operation, crews would be required to make only two stops enroute and that switching at these enroute locations would not be done unless such was unforeseen at the time of call, in other words if switching was foreseen to be necessary a brakeman would be provided. The foregoing to apply whether or not the individual crew members are agreeable to additional stops or to do non required switching.

These principles are reflected in the wording of the agreement and the Questions and Answers which are included as an appendix to the agreement. Agreement on these matters were important in bringing the negotiations and ratification of the agreement to a successful conclusion. It is absolutely crucial that the Company live up to these commitments. Failure to do so will impact negatively on the upcoming round of negotiations.

Would you please ensure that those officers under your respective jurisdictions are made fully familiar with, and comply with the foregoing.

Counsel for the Union disputes the understanding of the Company contained in the foregoing communication as regards the predictability of switching at an enroute location. The Union submits that the foreseeability of switching work beyond the taking on or setting off of a car or group of cars at no more than two stops is not a condition for requiring a conductor only crew to perform additional switching, as reflected in the language of the agreement.

The Union directs the Arbitrator’s attention to the minutes of a meeting which took place between representatives of the parties in Edmonton on April 20, 1994. During the course of the exchange, which related in substantial part to the Union’s concerns respecting the Company’s alleged disregard of the conductor only agreement, Company representative Leroy Fox did admit to a departure from the terms of the agreement, in one particular circumstance. He stated, in part:

There are occasions where the second employee does not want to go or have a second employee. A train can go out Conductor Only and the customer phones and says I need a switch, then it happens. We plead guilty.

The Union submits that the Company has violated the conductor only agreement by requiring crews in through freight service to perform switching enroute, rather than merely taking on or setting out a car or group of cars together, as provided in article 15.2(b)(v). While the Union acknowledges that crews can be required to perform switching enroute as contemplated under sub-paragraph (vi) of article 15.2(b), it alleges that the Company has gone beyond the scope of switching contemplated within that article. Its counsel notes that switching might be necessary, for example, to comply with marshalling rules governing the location of dangerous commodities cars within the consist of the train. He submits, however, that crews are compelled to go beyond that kind of requirement, to perform what is in effect what he characterizes as “classification switching or the reverse”. He argues that as the conductor only operation was conceived as a “hook and haul” operation, the switching and movement of cars which amounts to marshalling should not be performed by conductor only road crews. At enroute locations such movements should, he submits, be performed by either a road switcher or a yard crew. In support of that submission counsel refers the Arbitrator to the following memorandum issued by Edmonton Superintendent A.J. Wagner on July 22, 1994 relating to work performed in the Edmonton terminal, which reads, in part, as follows:

There was a recent meeting with the U.T.U. and B. of L.E. over the operation of Conductor Only trains within the Edmonton Terminal.

For clarification purposes, Conductor Only trains can make a straight set-off and/or a lift at each location throughout the terminal. Multiple set-offs and/or lifts were not contemplated in the operation of Conductor Only trains. When a lift is made following a set-off, the lift must be made in the same location in the train where the set-off was made from. Cutting off a block of traffic on the tail end of a train and moving the S.B.U. up is considered a set-off if the Conductor performs this work. The locations referred to above, within the Edmonton Terminals, are locations such as Clover Bar, PC Yard, Calder Yard, Bissell, East Edmonton, Dunvegan, and Mile 125 Vegreville Subdivision.

Should a train arrive Edmonton improperly marshalled requiring multiple set-offs at one location in order to meet Customer needs, an alternative to Conductor Only operation must be used.

The response of Local Chairperson E.F. Seagris to the memorandum of Mr. Wagner reveals, to a certain degree, one aspect of the area of disagreement between the parties. That response, addressed to General Chairperson J.W. Armstrong, reads, in part, as follows:

Dear Sir and Brother:

Please find enclosed a copy of the internal correspondence from A.J. Wagner, Superintendent, Edmonton Terminals to Operation Coordinators resultant from our meeting of July 19, 1994, regarding the application of the Conductor-Only Agreement and violation of the same. As you can see, the only point agreed upon by the Company was to not force our members to lift in a location on their train other than the location from which a set-off was made. It is still the Company’s position that multiple lifts and/or set-offs may be made at multiple locations from the outer switch to the final yard.

Therefore, under their interpretation of the Conductor-Only Agreement, a Conductor may be required to:

1) Lift and set out at Wainwright. (initial terminal)

2) Lift and set out at Viking. (intermediate terminal)

3) Lift and set out at Bruce. (intermediate terminal)

4) Lift and set out at Clover Bar (first yard after arriving at outer switch)

5) Lift and set out at “A” Yard. (adjacent to Calder Yard but extends further eastward)

6) Lift and set out at Calder Yard.

7) Yard at Russell.

Local 1233 contends that the intent of the Conductor-Only Agreement has been violated by the Company …

As can be seen from the foregoing, the concern of the Union, at least in part, relates to lifts and set offs which a road crew might be compelled to make within a series of yards within the destination terminal, after arriving at the outer switch. It appears that the Company has consistently taken the position that the conductor only agreement places no limit on lifts and set outs which may be assigned to a conductor only crew either at the initial terminal or the terminal of destination. In that regard, its position is that such work is explicitly covered by article 15.2(b)(iv).

In support of its view with respect to work at the initial and final terminals the Union also refers to a memorandum issued by Mr. L. Fox, District Superintendent Transportation at Winnipeg, on April 5, 1995 which reads as follows:

The following pertains to conductor-only operation and is for your information.

INITIAL TERMINAL

Conductor-only is intended to be a “hook & haul: operation. If the train is stored in two or more tracks the crew can be required to double their train together. It was not the intent that crews would be switching or assembling their train, i.e. making various pick ups out of several tracks in the terminal. However, this would not preclude having a crew pick up, for example, the first five cars in track 4 and doubling onto their train.

For clarification purposes doubling at the initial terminal is not considered switching, which involves marshalling of cars. For conductor-only purposes switching is limited to, for example, marshalling dangerous commodities in order to satisfy safety and regulatory concerns and a premium payment of 12.5 miles applies.

FINAL TERMINAL

Where practicable, trains should be yarded in a track of sufficient length to hold entire train. Should there be none, the crew is required to double the excess over into two or more tracks. If a specific cut number is given in order to protect the blocking integrity of the traffic, a premium payment of 12.5 miles applies.

At terminal having a series of yards a crew can be required to pick up/set off blocks of traffic at each of those yards. However the intent is not to have the conductor-only crew perform work normally done by transfer assignments, and any traffic to be picked up must be for furtherance beyond the terminal. For example, traffic at Clover Bar yard which is destined for Vancouver may be picked up by a conductor-only crew for set off at Bissel yard.

ENROUTE

A crew can be required to make only two stops enroute to pick up and/or set out a car or block of cars at a location. This may entail having to pick up/set out on more than one track at that location, for example, where there are two or more storage tracks off one spur. However, it was not the intent in that one stop, for example, to have the crew make a set out on a spur north of the main line and then have to cross to the other side for a pick up on a south spur. This would constitute two stops.

For clarification purposes a pick up/set out enroute is not considered switching. Switching enroute for conductor-only purposes is limited to marshalling dangerous commodities or bad order cars in order to satisfy safety and regulatory concerns.

There may be exceptional or “emergency” situations when a conductor-only crew would be required to make more than two stops enroute, for example where it is absolutely essential that a pick up be made and there are no other crews in the vicinity. These situations should be rare and unforeseen at time of call. For premium pay purposes the crew should show the notation “emergency stop enroute” on their time return for the benefit of the Crew Management Centre.

(original emphasis)

Counsel for the Union stresses that the Union does not agree that a pick up/set out on more than one track at a single location constitutes one stop within the meaning of the conductor only agreement.

The Union also points to certain bargaining history to support its argument with respect to conductor only crews not being required to do switching. Counsel refers, in particular, to the 1994-1995 round of collective bargaining which resulted in submissions being made to the Honourable Justice George Adams, named interest arbitrator in that dispute. Counsel notes that Company representative Mickey Healey represented to the arbitrator, at a meeting held April 21, 1995, that the Company needed relief from the conductor only restrictions in Western Canada because the Company was prevented from performing any switching under that agreement. Counsel notes that notwithstanding that the Company was not able to obtain relief in Western Canada, a situation which he notes is distinguishable from Central and Eastern Canada, what the Union characterizes as violations of the conductor only agreement continued through 1997 and 1998. In particular, reference is made to part of a letter dated March 9, 1998, sent by Labour Relations Officer Kerry Morris to then General Chairperson B.J. Henry, in response to a complaint of excessive switching having been assigned to conductor only crews at Canora, Sask. and Smithers B.C.:

Investigation of the switch lists for the work being assigned to Canora crews was clearly excessive respecting the provisions of the Conductor-Only agreement. As such the local staff in Canora was advised and the amount of switching was reduced to conform to the memorandum of agreement.

That same letter also addresses switching at terminals, a matter being protested by the Union in respect of work assigned to conductor only crews. Mr. Morris’ response to Mr. Henry in that regards reads, in part, as follows:

At Terminals

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 12-1/2 miles in addition to all other earnings for the tour of duty.

The definition of “requirements of service” was addressed in Q. & A. #11 of the Conductor only memorandum which reads:

Q-11 In the application of Clause 3.2(2)(d), will the Company define “requirements of service”?

A-11 The Company anticipates that the present practices will continue. However, it is not the Company’s intention to have Conductor only trains do extensive switching.

Train 456 has as past practice confirmed, completed a set off and pick up in Smithers yard which clearly maintains the integrity of the Conductor only memorandum under switching at terminals. Train 456 work requirements presented by the Council in August 1997 and again in March 1998 are identical in substance and is not recognized by the Company as excessive switching.

Clearly the definition of extensive switching under the Conductor Only memorandum as it relates to workload in the field remains a concern for the Council and therefore this office is prepared to meet with you or your designate at your earliest convenience to further discuss this matter.

As the foregoing passage reflects, the Company’s position has been, and remains before this Arbitrator, that conductor only crews are to perform switching at initial and destination terminals, in accordance with what the Company maintains has been the general practice in Western Canada pre-dating the conductor only agreement.

Counsel for the Union submits that the alleged violations by the Company continued unabated, and gave rise to further expressions of concern into the year 2000. Counsel directs the Arbitrator to a meeting between the parties on June 29, 2000 and a subsequent letter prepared by Director of Labour Relations J. Torchia dated September 11, 2000 which, counsel submits, reflects the Company’s misunderstanding of the provisions of the conductor only agreement. Again, it is useful to reproduce that letter as it gives some focus to the position taken by the Company. The letter, addressed to then General Chairperson Henry reads, in part, as follows:

Initial / Final Terminals

At the originating terminal, trains will be assembled in one track unless yard tracks are insufficient to hold the entire train. In such cases, crews are required to double their train and such will not be considered switching.

At final terminals, when doubling is required as a result of yard tracks being of insufficient length to hold the train, and a designated cut has not been given no payment is allowed. In cases where a designated cut has been given, crews will be entitled to a payment of 12-1/2 miles. Crews required to double over cars when the entire train can fit in the track will also be entitled to a payment of 12-1/2 miles.

At the initial and final terminals, switching is limited to marshalling in order to satisfy safety regulations or where switching in connection with the train is imperative to meet service requirements, such as where the traffic involved is time sensitive or subject to competitive pressure. In such cases, crews will be paid 12-1/2 miles. The setting out of a bad order car(s) or lifting same after being repaired is permitted of which there is no payment.

At terminals with a series of yards, crews can be required to pick up/set out blocks of traffic at each yard, however, it is not the intent to have crews perform work done by transfer assignments.

If switching beyond the above is required, such as switching to make their train the Company will call an Assistant Conductor.

Enroute

Switching enroute is limited to marshalling in order to satisfy safety regulations and crews are required to make up to two stops for picking up and/or setting out a car or group of cars together. This may entail having to pick up/set out on more than one track at that location (for example where there are two or more storage tracks off one spur). It was not the intent to have crews, at one stop, make a set out on a spur north of the main line and cross to the other side for a pick up on a south spur as this would constitute two stops. Nor was it the intent to have crews switch in order to complete a pick up (with the exception of marshalling for safety regulations) and therefore, cars to be picked up should be first out.

In the same letter Mr. Torchia indicates that the Union expressed concerns about preferring cars being set out or taken on at the head end of a train, rather than at a mid-point. Such an operation would obviously reduce the walking and related work which might be performed by a conductor in enroute switching. However, Mr. Torchia responded to Mr. Henry that while such an arrangement might be preferable, operating efficiencies cannot guarantee it and, in any event, the conductor only agreement is silent on the matter. Counsel for the Union stresses that part of Mr. Torchia’s letter which indicates the Company’s view that switching in connection with the train “… such as where the traffic involved is time sensitive or subject to competitive pressure.” would be performed at initial and final terminals. Counsel submits that that is an incorrect application of the provisions of the conductor only agreement. As a further reflection of what he characterizes as the Company’s intention, counsel also refers to bargaining demands tabled by the Company in September of 2000 which would have effectively eliminated all switching restrictions in conductor only service.

The nature of the dispute is further highlighted in a letter written to Mr. Torchia by General Chairperson Henry on July 31, 2001, reproduced above. That letter sets out a series of questions which Mr. Henry asks the Company’s representative to respond to, indicating that the answers might determine whether the Union should proceed to arbitration.

Mr. Torchia’s response, dated August 15, 2001, repeats the questions put by Mr. Henry and provides the following answers:

1.Q. At the initial terminal, are crews required to pick up from more than one track if the train will “fit” in one track?

A. Article 15.2(b)(ii) reads, “At the initial terminal, doubling is limited to that necessary to assemble the train for departure account yard tracks being of insufficient length to hold the fully assembled train”. Therefore, in accordance with that article, it is clear that crews will not be required to pick up from more than one track if the train will fit in one track. However, as contemplated under article 15.2(b)(iv), there may be instances where crews may be required to do so which they will be compensated 12-1/2 miles in addition to all other earnings.

2.Q. At the initial terminal, how may stops will a crew be required to make prior to departing the outer switch?

A. The mention of two stops in the agreement is in reference to the amount of stops enroute. A crew performing work at a number of yards in a terminal is not considered a stop under the Conductor Only Agreement. With respect to how many yards within a terminal a crew may perform work, the agreement is silent. In Q&A 14 (Conductor-Only Agreement January 15, 1992) reference is made to work at “two or more different yards within the terminal” and payment for such work will be 12-1/2 miles.”

3.Q. Enroute, how many tracks will a crew be required to enter to do work – i.e. at a “Super Elevator” – will a crew be required to set out their entire train in more than one track?

And

4.Q. At an industrial siding, enroute – i.e. Bloom on the Rivers Subdivision – will a crew be required to spot three (3) separate tracks as in the examples provided on many occasions to the Company?

A. Switching enroute is limited to marshalling in order to satisfy safety regulations and crews are required to make up to two stops for picking up and/or setting out a car or group of cars together, which indicates they may perform both a lift and setoff at one location. In addition, this may entail having to pick up/ set out on more than one track at that location (for example, when there are two or more storage tracks off one spur and one track could not hold all the cars). It was not the intent to have crews, at one stop make a set out on a spur north of the main line and cross to the other side for a pick up on a south spur as this would constitute two stops. Nor was it the intent to have crews switch in order to complete a pick up (with the exception of marshalling for safety regulations) and therefore, cars to be picked up should be first out.

5.Q. Are crews required to set out or pick up behind cars other than what is required, by law, regarding dangerous commodities or other marshalling restrictions as outlined in the General Operating Instructions?

A. Although it would be preferable for obvious operating efficiencies to have the cars first out on the train, the agreement is silent on this issue and the Company cannot guarantee they will be first out on the train. However, the cars for a set out/ pick up must be together as provided in article 15.2(b)(v) but they can be anywhere in the train. Also, cars to be lifted from a siding or spur must be first out.

6.Q. Are crews required to set out and pick up at the final terminal – i.e. the example given at Fort Francis?

A. Yes, if switching in connection with their own train is required to meet the requirements of the service for which they will be compensated 12-1/2 miles in addition to all other earnings as per article 15.2(b)(iv)

7.Q. Does the Company agree that the intent of the Conductor Only Agreement is that it is a hook and haul agreement and will not be used for grain block, work trains or way freights?

A. The intent of the Conductor-Only Agreement is that trains may be operated conductor only provided they are operated without a caboose and switching at the initial and final terminals as well as work enroute falls within the parameters of article 15.2. Therefore trains hauling grain or company material falling under these parameters may be operated conductor only. The collective agreement provisions governing such operation would dictate, for example, a train requiring more than two stops enroute would require an assistant conductor, as well as a train requiring extensive switching.

Following the above exchange the Union, which had served an ex parte statement of issue upon the Company, on February 8, 2001 in anticipation of arbitration, proceeded to have this matter scheduled for hearing by the Arbitrator.

In addition to the concerns reflected in the various items of correspondence cited above, counsel stresses that there are indirect impacts of what the Union alleges are the Company’s violations of the conductor only agreement. Notable among them, he submits, is an erosion of work assignments in the service other than through freight. For example, he submits that there has been a reduction in the work available to road switchers, yard crews and yard transfers as a result of the practices engaged in by the Company, thereby reducing work opportunities and encroaching on work jurisdiction of other employees, in particular yard crews.

Counsel also notes to the Arbitrator’s attention what he characterizes as a disagreement between the parties concerning “marshalling a train”. In that regard he directs the Arbitrator to Addendum No. 25 of the collective agreement, which is in the form of a letter addressed to Mr. Henry by then Manager of Labour Relations, D.W. Coughlin, on behalf of the Assistant Vice-President Labour Relations, dated February 13, 1998. That letter reads as follows:

Dear Mr. Henry,

During national negotiations which culminated in the signing of the Memorandum of Settlement concerning Agreement 4.3 on February 13, 1998 it was agreed that we would provide you with a letter clarifying the intent of the agreement insofar as work required by train service employees upon arrival at the final terminal of their trip where yard engines are on duty.

During our discussions on the matter you confirmed that the Union was not seeking to change the accepted practice whereby the appropriate Company officer in charge of the operation of a terminal would designate the track on which a train is to be yarded. Your concern was that in some operations Company officers were instructing train service employees to marshal cars on arrival at terminals where yard engines are on duty.

The Company informed you that where yard engines are on duty, if 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 the 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 track, in the manner described above, to effectively yard the train. In order to meet operational requirements, employees in road service may be instructed to double over a designated cut of cars on their train to other tracks. Employees (including those working in a conductor only operation) required to double over designated cuts of cars will be paid 12 and 1/2 miles in addition to all other earnings for the tour of duty.

Except as provided in the foregoing paragraph, employees will not be required to marshal trains upon arrival at terminals (e.g., setting over 10 cars for one destination to one track and 10 cars for another destination to another track).

We believe that generally speaking line officers are arranging work on arrival at terminals where yard engines are on duty along the foregoing lines. However we hope that the above clarification will clear up any misunderstanding in this regard.

Yours truly,

(signed) D. W. Coughlin

for: Assistant Vice-President, Labour Relations

Counsel submits that to the extent that unreduced crews are to be protected from marshalling a train in circumstances where yard engines are on duty, it is all the more evident that a single conductor crew should be sheltered from the same burden. In that context he suggests that the manner in which conductor only crews may be called upon, either at the initial or final terminal, to handle cuts of cars in and out of a substantial number of tracks is outside the purview of the conductor only agreement, even though the Union does not take issue with the Company’s entitlement to require a crew to make a designated cut. In this regard he cites the example of a conductor only crew being required to expend up to five hours building their own train. He maintains that such work is beyond the contemplation of the conductor only agreement, and is a far cry from the “hook and haul” concept which he submits both parties have recognized as the basis for conductor only service.

Additionally, counsel stresses that the Company’s violations of the conductor only agreement extend to requiring conductor only crews to do switching at multi-yard terminals that is not in connection with their own train. Such work, he submits, is in the nature of transfer assignments which properly belong to yard crews.

In addition to the interpretation based submissions made by the Union, its counsel also argues that promissory estoppel should apply to the facts in the instant case. He refers the Arbitrator to a number of statements, both verbal and written, made over the years by Company representatives, as well as past practice, to suggest that the Company cannot be allowed to rely on a more narrow and literal interpretation of any part of the conductor only agreement to the detriment of the Union which relied on statements made by Company representatives in negotiations and elsewhere.

On the foregoing basis the Union seeks a finding by the Arbitrator that the Company is in violation of the collective agreement provisions relating to conductor only operations, and an order requiring the Company to cease and desist from such violations and to comply with the terms of the collective agreement, with a direction for the payment of damages, where appropriate.

III

POSITION OF CN

As an opening argument, counsel for the Company maintains that the Union cannot now succeed in disputing Company practices and interpretations, having effectively lived with the conductor only agreement in Western Canada for some ten years without taking any of its concerns to arbitration. He submits that in effect the Union is unhappy with the deal which it made and is seeking to have it altered by a belated grievance which would result in a form of interest arbitration. The Company submits that in fact over three successive collective agreements it has applied a consistent interpretation to the terms of the conductor only agreement, and has done so over all of those years without any formal challenge from the Union until this grievance. Its counsel submits that in these circumstances the dispute is better addressed at the bargaining table than through arbitration.

Counsel notes that the conductor only agreement gained substantial monetary benefits to both running trades employees and the United Transportation Union itself and that, against that background, it now seeks to characterize the agreement as one for a “hook and haul” operation which would involve virtually no switching at terminals and almost no work enroute. He stresses the “hook and haul” notion which the Company sought to achieve, and the expectation that there would not be extensive switching at terminals and only limited work enroute. That, counsel submits, was the intention of the agreement at its inception and has been the reality of its operation. In the Company’s submission, from the outset the agreement understood that extensive switching might, on occasion, be unavoidable. In that regard its counsel directs the Arbitrator to Q&A 10 incorporated into the agreement which reads as follows:

Q.10 In the application of 3.1(2)(d) does this supersede that portion of Agreement 4.3 which provides for yard rates after 5 hours switching?

A. No.

As an outline of the big picture, the Company notes to the attention of the Arbitrator that in fact relatively little work is performed at the initial terminal, the final terminal and enroute. By way of example, its counsel notes that in 2001 approximately 18.5% of trains operating conductor only saw crews claiming payment for performing work at the initial terminal, while only 9.1% claimed payment for work at the final terminal under clause 3.1(2)(d). In addition, he submits that claims for picking up and/or setting out enroute as contemplated in clause 2.2(1) amounted approximately 4 to 5% per cent of all conductor only runs in the year 2001. The evidence which the Company has at its disposal would, it submits, establish that those percentages have remained relatively constant since the conductor only agreement was implemented in 1992.

Counsel stresses that the conductor only agreement incorporates an extensive series of questions and answers, as noted above. He submits that from the outset of the agreement the Union has not challenged by way of grievance that its members were paid other than in conformity with the agreement and the Q&As for work at initial or final terminals. He also stresses that the conductor only formula has also provided bonuses for train length and for the length of a train’s run. He notes that depending on the length of train and run and the switching, picking up and/or setting off work performed, crews operating conductor only have realized a significant wage increase of between 11 and 13 per cent, in addition to a monetary benefit in excess of one-half million dollars which was paid to the United Transportation Union.

Counsel for the Company submits that for ten years the Company’s practice has been consistent. Over that time, he argues, the Company has continuously required employees to double over their trains from multiple tracks, to switch in connection with their own trains at terminals, and to perform set offs and/or lifts in single as well as multiple tracks enroute. While counsel acknowledges that there have been some “minor glitches” with respect to the application of the conductor only agreement, he emphasizes that no grievance was ever referred to the Canadian Railway Office of Arbitration, nor proceeded with on an ad hoc basis, to challenge the Company’s interpretation and practices prior to the instant grievance. That situation, he stresses, has gone on through three renewals of the collective agreement.

Counsel further maintains that over the years the complaints made informally, and without actual grievances by Union officers have been “a moving and blurry target” which the Company could not readily deal with. In that regard he stresses the importance of the correspondence between General Chairperson Barry Henry and Director, Labour Relations Joe Torchia reproduced above as critical to an understanding of the evolving debate.

With respect to the Union’s concerns regarding work at the terminal, counsel for the Company refers the Arbitrator to certain of the questions and answers incorporated into the Western Canada conductor only agreement booklet, in reference to clauses 3.1(2)(b) and 3.1(2)(c):

Q.4 If a conductor is given a cut number when doubling his/her train into a minimum number of tracks, does this constitute switching?

A.4 Yes, however the intent is that this only be done to protect the blocking integrity of the train and the 12-1/2 mile premium will apply.

Q.5 Does the doubling over of a train or transfer into the minimum number of tracks, in order to facilitate the operation constitute switching?

A.5 No. It may be necessary for a train or transfer, double over even if there are tracks available to hold the movement, in order to facilitate the operation of the yard.

Q.6 If a train is required to double over three or more tracks can this be considered as a conductor only train?

A.6 Yes, providing they are straight double overs.

Q.7 Is it the Company’s intention to have inbound intermodal trains set off and spot a portion of their train at intermodal terminals.

A.7 Current practices in this regard will continue.

Reference is further made to the Q&As contained within the agreement booklet in reference to clause 3.1(2)(d):

Q.10 In the application of 3.2(2)(d) does this supersede that portion of Agreement 4.3 which provides for yard rates after 5 hours switching?

A.10 No.

Q.11 In the application of Clause 3.1(2)(d) (now 15.2(b)(iv)), will the Company define “requirements of service”?

A.11 The Company anticipates that present practices will continue. However, it is not the Company’s intention to have Conductor Only trains do extensive switching.

Q.12 How will a conductor be paid for switching in a Conductor Only train at the initial or final terminal?

A.12 Example: 2 hours initial terminal time 25. miles

12.5 miles switching premiums 12.5 miles

TOTAL: 37.5 miles

Q.13 If while yarding a train it is necessary to cut crossing(s) and/or cut off power and take it to the shop track. Does this type of work constitute switching?

A.13 No.

Q.14 A train is called from location “A” to location “B” and no work is performed enroute. Such train is required to set out at two or more different yards within the terminal what premiums and/or rates does the crew get paid?

A.14 Will be considered as falling within the provisions of clause 3.1(2)(d) for which they will be paid a payment of 12.5 miles in addition to final terminal time.

Counsel for the Company further stresses that any doubt about the nature of work which might be performed by conductor only crews in terminals, and in particular at the final terminal of their trip, in circumstances where yard engines are on duty, is clearly dealt with in Addendum No. 25 of the collective agreement, being the letter from Mr. Coughlin to General Chairperson Henry dated February 13, 1998. Counsel further stresses that the language of Q&A 4 makes it clear that conductor only crews can be required to double their train into tracks using a designated cut number, which, as opposed to the normal doubling process, would constitute switching for which the 12-1/2 mile premium applies. As reflected in Q&A 5, the normal doubling of a train into a minimum number of tracks does not constitute switching, and, as reflected in Q&A 6, such doubling over can involve three or more tracks. Counsel further submits that it is extremely surprising, after ten years of practice in accordance with the Q&As, for the Union to object to employees in conductor only service doubling over their train at a designated cut where the train might otherwise fit into a single track, or switching at both the initial and final terminal. The Company submits that the Union’s objection to what it maintains are practices well contemplated within the language of the conductor only agreement would impose serious operational limitations never intended by the parties’ agreement.

Counsel for the Company stresses that in this regard the agreement negotiated in Western Canada is to be distinguished from the Central Canada conductor only agreement. In that regard he notes that article 11.7(d) of collective agreement 4.16 governing Eastern Canada contains the following:

11.7 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 12-1/2 miles in addition to all other earnings for the tour of duty.

(emphasis added)

Counsel submits that the different language formulation found in Central Canada and the omission of the prohibition against switching in connection with their own train, confirms the Company’s view that in the Western Canada conductor only agreement the parties wanted to make it clear that there could be no impediment to the Company’s ability to assign switching work relating to their own train to conductor only crews within terminals. Counsel further submits that the language governing terminals in Western Canada is to be contrasted with the language governing conductor only operations enroute, where there is a clear prohibition against switching, save to comply with requirements and rules governing the marshalling of trains, as provided in article 3.1(2)(f) of the conductor only agreement.

With further reference to work at terminals, counsel for the Company notes that there is nothing within the provisions of the conductor only agreement to prohibit or limit the number of stops which a crew may be compelled to make within an initial or final terminal, as distinguished from the number of stops which may be made enroute. In that regard reference is made to Q&A 2 of the agreement which is as follows:

Q.2 At the initial terminal how many stops will a crew be required to make prior to departing the outer switch?

A.2 The mention of two stops in the Agreement is in reference to the amount of stops enroute. A crew performing work at a number of yards in a terminal is not considered a stop under the Conductor-Only Agreement. With respect to how many yards within a terminal a crew may perform work, the Agreement is silent. In Q&A 14 (Conductor-Only Agreement January 15, 1992) reference is made to work at “two or more different yards within the terminal” and payment for such work will be 12-1/2 miles.

On the basis of the foregoing, the Company’s position is that stops are fundamentally a non-regulated issue, with the sole exception of work enroute between the initial and final terminals. Counsel submits that the distinction between stops enroute and work which may be performed at a destination terminal is further confirmed in Q&As 7 and 14, as follows:

Q.7 Is it the Company’s intention to have inbound intermodal trains set off and spot a portion of their train at intermodal terminals.

A.7 Current practices in this regard will continue.

A.14 Will be considered as falling within the provisions of clause 3.1(2)(d) for which they will be paid a payment of 12.5 miles in addition to final terminal time.

Essentially, in the Company’s submission, no change in the practice before and after the inception of the conductor only agreement has been made with respect to work to be performed within terminals. On that basis any suggestion in the submission of the Union to the effect that under the “hook and haul” concept a crew is only to lift its train from one track, or more than one track only if the capacity requires, without doing any further work, is simply erroneous.

The Company further disputes the concept of stops enroute advanced by the Union. It maintains that the Union seeks unduly to restrict the number of tracks a conductor only train may be required to enter while stopping enroute. In the Company’s submission there is nothing in the conductor only agreement which would limit the ability of a conductor only crew to enter more than one track at an enroute stop. The Company stresses that its practice has been otherwise for some ten years, and should there be any ambiguity within the language of the agreement, practice would support the Company’s view that a given location where one of two possible enroute stops is made, there is nothing in the language of the agreement to prevent a crew from being required to enter two or more tracks to set off or lift cars. While the Company acknowledges that the crew cannot be compelled to perform switching at such a location, there is no restriction on the number of tracks on which set offs and/or lifts can be performed. The Company submits that it would be illogical to conclude that the parties would have agreed that a conductor only train proceeding enroute could stop at a given location where cars spotted for onward furtherance might be located in four tracks, and the crew would be restricted to entering only two tracks to lift such cars and add them to their train. In the Company’s submission the concept of a stop enroute was never intended to be so restrictive.

Similarly, counsel stresses that there is nothing within the language of the conductor only agreement to prevent lifts and setoffs being made at other than the head end of the train, while holding onto cars. On the basis of the provisions of the conductor only agreement the Company submits that cars to be set off can be located anywhere in the body of the train, although, as noted in Mr. Torchia’s letter, and at Q&A 5, cars to be lifted from a siding or spur must be first out. With respect to setting out cars enroute, the Company’s counsel further notes that the collective agreement itself has further protections to ensure the minimizing of switching when cars are set out. In that regard article 56.1 reads provides as follows:

56.1 At departure terminals, two or more cars consigned to an intermediate point forwarded on through freight trains, will be assembled on train in such a manner, with respect to other cars on the trains, as will cause only the minimum of switching when setting out at points of destination.

In further response to the Union’s suggestion that cars to be set off or lifted are to be at the head end of the train, counsel for the Company refers the Arbitrator to article 70 which he maintains is the only provision in the collective agreement which specifically relates to the location of cars at the head end of a train. It reads as follows:

70.1 Repair cars moved 40 miles or less will be handled on head end of train.

The Company’s argument is that if the parties had intended that the head end was to be the sole location for set offs and lifts enroute, they could have expressly so provided. The fundamental position advanced by the Company is that holding onto cars positioned next to the locomotive while lifting or setting out other cars is not switching.

The Company next addresses the issue of train types raised in the questions put by General Chairperson Henry. It submits that there is nothing within the conductor only agreement to prevent the Company from assigning grain block trains to conductor only crews so long as they operate in through freight service and make no more than two stops enroute. Its counsel confirms, however, that the circumstance is somewhat different as regards work train service. Trains which fall within the definition of work trains as defined in article 16(A) of the collective agreement are not eligible to operate conductor only. However, as reflected in a letter dated October 14, 1993 from the Company’s Senior Vice-President, where a work train operates on a straight “hook and haul” basis between two terminals or any two other points it can be operated on a conductor only basis.

Finally, with respect to extensive switching, the Company submits that there is no clear definition of extensive switching not to be performed within the parameters of the conductor only agreement. By the same token, however, reference is again made to Q&A 10 of the agreement which reads as follows:

Q.10 In the application of 3.2(2)(d) does this supersede that portion of Agreement 4.3 which provides for yard rates after 5 hours switching?

A.10 No.

Counsel for the Company notes that whatever might constitute excessive switching, the foregoing question and answer, which formed part of the agreement, would clearly confirm that the parties did contemplate that a road crew might, on occasion, be compelled to perform switching in excess of five hours. The Company notes that while that is not its general intention, and indeed inefficiencies would result if that was the normal utilization of road crews, the language of the collective agreement does not foreclose that possibility. On the contrary, it contemplates that it might occasionally occur.

On the whole, the Company submits that the Union has not established the alleged pattern of violations of the conductor only agreement which the Union submits has motivated this grievance.

DECISION

As can been seen from the foregoing, the issues arising in this dispute are multi-faceted and complex. In the Arbitrator’s view a useful method of approaching the problem is to examine a number of examples of fact situations presented by the Union, each of which it maintains constitutes a violation of the conductor only agreement. Before turning that analysis, however, the Arbitrator is satisfied that certain general principles can be drawn from the language of the agreement, and that it is a useful starting point to examine and outline those principles.

The first question to be examined is the extent to which the conductor only service can be said to be a “hook and haul” operation. The phrase “hook and haul” is not to be found in the language of the conductor only agreement itself, or in the questions and answers. It would nevertheless appear that in the ideal “hook and haul” fairly describes the generally intended method of operation for crews running without an assistant conductor. That view, reflected both in the evidence of Mr. Armstrong and in the letter of District Superintendent Fox dated April 5, 1995, is generally consistent with the language of the conductor only agreement itself.

However, “hook and haul” is not an absolute rule. In that regard, particular attention must be paid to the language of article 15.2 (b) (iv) which reads as follows:

The foregoing article clearly contemplates situations in which conductor only crews are required to perform switching at initial or final terminals. Firstly, it is paramount that such switching must be “in connection with their own train”. They are not to perform switching intended for the purposes of another train or yard movement. Secondly, such switching must be necessary “to meet the requirements of the service”, subject to the exceptions expressly enumerated with respect to bad order cars.

After careful consideration, the Arbitrator is satisfied that the phrase “the requirements of the service” can involve some regard for the requirements of the Company or of the Company’s customers. I am compelled to conclude that the intention of the phrase “to meet the requirements of the service” obviously includes those circumstances where, by legal regulation or otherwise, certain cars or commodities, for example cars containing hazardous goods, must be marshalled at a certain position within the consist of a train. That, however, is not the limit beyond which switching can be performed in relation to their own train. In the Arbitrator’s view it is significant that the parties have acknowledged, as reflected in Q&A 11, that it is for the Company to define “requirements of service”, and that “present practices” are to continue, bearing in mind that in Western Canada road crews have traditionally performed some switching, for example in relation to misrouted cars, bad order cars or late releases, in respect of their own train in yards where yard crews are on duty.

Thirdly, while the general rule is that a conductor only train strives to operate as a “hook and haul” movement to be yarded at the destination terminal by doubling over into a minimum number of tracks, the agreement does not itself prevent a crew from setting out cars at two or more different yards within a multi-yard terminal at its point of destination. Such an operation, however, is expressly recognized by the agreement as falling under the provisions of article 15.2 (b) (iv). In other words, such a set off or series of set offs is considered to be switching, and is payable at the rate of 12.5 miles in addition to final terminal time, as expressly reflected in Q&A 14 of the agreement.

Fourthly, with respect to service enroute, the Arbitrator is satisfied that the phrase “stops enroute” found in article 15.2 (b) (v) is intended to reference a stop at a location enroute, and not to the number of tracks which a crew may be required to enter at a particular stop location. In other words, should a crew be required to stop at a grain elevator to lift or set off cars in three tracks, such an operation must be considered a single stop for the purposes of the conductor only agreement. Further, as reflected in sub-paragraph (vi), switching at such locations can only be performed where it is required for compliance with requirements governing the marshalling of trains. Given the language of sub-paragraph (vi), such switching cannot be for the sole purpose of serving the requirements of the Company or its customers, whether foreseen or not.

Finally, it appears clear on the face of the language of the agreement that the use of conductor only crews to perform grain block work, for example extensive switching and spotting at grain elevators enroute, is clearly out of keeping with the intention of the conductor only agreement. While the enroute provisions of the agreement would clearly contemplate that conductor only crews might be utilized to make set offs and lifts at a grain elevator, and that they might do so in more than two tracks, the utilization of a conductor only crew to do extensive switching at a grain elevator, as occurred in at least one example, at Acheson, Alberta cited to the Arbitrator, is clearly beyond the scope of what was intended by the conductor only agreement. Switching of any kind enroute is prohibited save to comply with marshalling rules and safety regulations. As noted above, the Arbitrator cannot sustain the suggestion appearing in certain Company correspondence that “unforeseen circumstances” can justify the assignment of switching enroute to meet the demands of a customer.

With the foregoing principles in mind I turn to consider certain of the examples cited by the Union as constituting alleged violations of the conductor only agreement. The first group of examples to be considered relates to work at the initial terminal.

Tab 1 of the Union’s example book relates to train 119 on October 16, 2001, called at Edmonton for through freight service to Jasper. The crew reported at Walker Yard where they took control of their locomotive power and attached cars, proceeding to the Intermodal Yard. At the Intermodal Yard they set off the head end three cars into track IN03. They then cut off the head end sixteen cars from their train and proceeded to lift thirteen cars from track IN03. They then coupled back onto their train and departed for Jasper.

In the Arbitrator’s view in the example of train 119 , the set off of three cars into track IN03 is in violation of the conductor only agreement. The setting off of cars within the initial terminal prior to departure cannot be fairly characterized as work or switching “… in relation to their own train … in the initial … terminal to meet the requirements of the service” within the meaning of article 15.2(d)(iv) of the collective agreement. The “train” of a road crew in through freight service is generally that consist of cars which they carry from the outer switch of the initial terminal to the outer switch of the final terminal. The assembling or disassembling of that consist is work in relation to their own train. The fact that the cars may have been placed in the Intermodal Yard for furtherance on another train does not bring the movement within the purview of the provisions of the conductor only agreement as they are not cars “in connection with their own train”. Conversely, the fact that the crew may have lifted thirteen cars at the Intermodal Yard prior to leaving the Greater Edmonton Terminal is not, of itself, a violation of the agreement as those cars are clearly part of their own train as it is constituted when it clears the outer switch of the initial terminal.

A similar example, provided at tab 7 of the Union’s example book, concerns train 104 on November 10, 2001, called at Edmonton for Biggar. The conductor only crew in question took their engines from Walker Yard to the Intermodal Yard where they lifted the cars from one track and coupled with the cars in a second track. They then departed the Intermodal Yard for Walker Yard where they set off thirty cars in CF53 before departing for Biggar. Again, as with the set off of cars in the prior example, the work in question cannot fairly be characterized as work in relation to their own train. That is so regardless of whether the cars set off at Walker Yard are intended for furtherance onward. The possibility of onward furtherance, argued as the factor which justifies the movement by one of the Company’s witnesses is, in the Arbitrator’s view, virtually meaningless. It is in the essential nature of rolling stock that all cars, in whatever yard they may be found, are intended at some time for furtherance onward. That does not change the ultimate reality that the movement of cars from one yard to another for the purposes of more than one train are by their nature yard movements not intended to be performed as a general rule by road crews, and clearly not contemplated within the rules of conductor only road service.

At tab 10 of the Union’s example book the handling of train 417 on September 25, 2001, from Edson to Jasper, also reflects violations of the conductor only agreement at the initial terminal. In that example the crew began their work by setting off some sixteen cars to track FC16 at Edson. They then lifted twenty-six cars from track FC17, setting over twelve of those cars and returning fourteen of them to track FC17. Next they lifted six cars from FC15 and placed the eighteen lifted cars onto the train on the main line. They then set off an engine unit to the shop track, re-coupled to the train, air tested and departed for Jasper.

The operation so described clearly involves work not in relation to their own train, for example the cutting and setting off of sixteen cars from the train into track FC16. The work concerning those cars cannot be said to be in relation to their own train. Conversely, the move concerning the extraction of the twelve cars from track FC17, and the replacement of fourteen of the twenty-six cars initially lifted from that track is clearly switching in relation to their own train “to meet the requirements of the service” as those words are intended within articled 15.22(b)(iv) of the collective agreement.

The example of train 809 on December 12, 2001 from the initial terminal of Mirror to Walker Yard in Edmonton, reflected at tab 13 of the example book, does disclose a violation of the conductor only agreement. The unchallenged evidence is that in that example the conductor at Mirror was instructed to marshal his train by reordering the sequence of cars that already made up his train, which was on the main line, before bringing it to Walker Yard, a process which apparently involved handling and coupling in sequence eight separate cuts of cars. While all of the cars involved were part of his train’s consist, the work was solely to facilitate the later forwarding of three separate segments of cars beyond Walker Yard on different trains. In that circumstance the switching was clearly not switching in relation to the crew’s own train to meet the requirements of the service. The wholesale reordering of a train in the manner disclosed is entirely inconsistent with the limited doubling and switching contemplated at initial or final terminals, and is beyond the meaning of the phrase “to meet the requirements of the service”. If it were otherwise, the Company could order unlimited switching, which is not what the conductor only agreement contemplates.

Finally, a violation of the agreement at an initial terminal is further revealed at tab 14 of the Union’s example book, in relation to train 453 departing Vermillion for Edmonton on March 1, 2002. In that case the crew took charge of their train in the yard, and immediately set out two cars from the body of the train behind 17 cars in track KE03. They then performed a number of lifts of cars from four separate tracks in various locations in the yard at Vermilion. In the Arbitrator’s view the doubling which the crew was required to perform was clearly not occasioned by the fact that the yard tracks were of insufficient length to hold fully assembled trains. While that may have been true in relation to two of the tracks from which they were compelled to lift cars, at least based on the diagrams presented to the Arbitrator, that was not the case for two smaller cuts of cars located in other remotely located parts of the yard. Moreover, by any account, the setting out of two cars into track KE03 at the beginning of their tour of duty cannot be characterized as work in relation to their own train as it was strictly a disassembling operation.

I turn next to consider certain of the examples of work performed at final terminals by conductor only crews, alleged by the Union to be in violation of the conductor only agreement. The example given at tab 15 of the Union’s example book concerns train no. 201 final terminalled from Biggar at Edmonton on February 22, 2002. According to the diagram provided, the train pulled into track VF10 at Clover Bar and cut off the tail end twenty-four cars. It then proceeded to Walker Yard where the tail end forty-seven cars were cut off to CS56. The train then progressed to Bissel Yard with the four head end cars which were then set off at Bissel, in track BS16. While the Union maintains that this sequence of cut offs constitutes a violation of the conductor only rules, the Arbitrator cannot agree. It would appear that the train proceeded normally into a series of yards, setting off cars in the three separate yards of the Edmonton terminal, all of which work was in relation to the crew’s own train. The facts reviewed would, in my opinion, fall squarely within the concept of a train required to set out at two or more different yards within a single terminal, as contemplated within Q&A 14 of the agreement. While in that circumstance the employees would be entitled to a payment of 12.5 miles in addition to final terminal time, there is nothing in the example disclosed which can be said to constitute a violation of the conductor only agreement. It may be stressed that in the example considered at each of the three yards within the Edmonton terminal the set offs appear to have been made into a single track, with no unnecessary or excessive doubling.

A violation does appear to have occurred in relation to the example cited at tab 2 of the Union’s example book. Train 104, arriving in Edmonton from Jasper on October 11, 2001 pulled into the Intermodal Yard where it set off the head end fifty-six cars. It then dropped the sixteen cars at the rear of that cut into track IN02 and proceeded to track IN03 with the head end forty cars where it lifted a further cut of forty to fifty cars. It then coupled back onto the remainder of its consist and pulled the train to Walker Yard where it left a segment of the train on the lumber spur and a segment on track PC31. In the Arbitrator’s view there is nothing untoward about the setting off of cars in the Intermodal Yard. The evidence does disclose, however, that the crew was compelled to lift a cut of forty to fifty cars from the Intermodal Yard and transfer them to Walker Yard. Even accepting that the cars in question were gathered for furtherance beyond Walker Yard by another crew on the continuing train, those cars cannot, in my view, be said to be cars lifted or switched in connection with the crew’s own train. As noted above, the concept of the crew’s own train must be related to the consist which the crew carried from the outer switch at Jasper to the outer switch at Edmonton. Movements at either the initial or final terminal could only be in relation to assembling or disassembling that train, and not portions of what was or might become another crew’s train.

While the Arbitrator agrees with certain of the contents of the letter of District Superintendent Fox dated April 5, 1995, I must respectfully conclude that the superintendent is in error with respect to a segment of his letter concerning work at final terminals. He states, among other things, that conductor only crews can be required to pick up blocks of traffic at a series of yards within a single terminal, before reaching their destination yard. In that regard he states: “For example, traffic at Clover Bar Yard which is destined for Vancouver may be picked up by a conductor only crew for set off at Bissel Yard.” The Arbitrator cannot find any language within the provisions of the conductor only agreement, or the questions and answers appended to it, which would bring such an operation within the purview of its provisions. As noted above, conductor only crews required to pick up blocks of cars within a series of yard at their destination terminal, whether or not those cars are destined for furtherance beyond that terminal, cannot be said to be performing work or switching in relation to their own train.

The Arbitrator must also find that the movement set out at tab 3 of the Union’s example book, concerning train 119, final terminalled at Edmonton upon arrival from Biggar on October 18, 2001 also constitutes a violation of the conductor only agreement. In that case the crew of train 119 dropped two cars into track VF09 at Clover Bar. It then proceeded to Walker Yard where it cut off the head end two cars and lifted fifty-eight cars from track PC31. It then proceeded to the Intermodal Yard where, among other things, it set off eight cars in track IN03 which it had lifted in the PC yard. That work is clearly transfer work to be performed by yardpersons under article 102 of collective agreement 4.3, and cannot be performed by road crews, whether conductor only or otherwise. The same violation is equally evidenced in the examples cited at tabs 4, 6, 8, 17 and 18 of the Union’s example book, all of which concern conductor only road crews performing transfer movements within the greater Edmonton Terminal. It may also be noted that the sequence of movements performed by the outgoing crew, for whom Edmonton was the initial terminal enroute to Biggar, also described at tab 8, discloses violations of the conductor only agreement to the extent that the crew in question was required to cut off two segments of six and eighty-six cars respectively for set off in tracks before departing for Biggar. Those moves were plainly not in relation to their own train.

The Arbitrator cannot agree with the Union with respect to the example cited at tab 9. That evidence concerns train no. 358 proceeding into Edmonton from Jasper on December 9, 2001. The conductor only road crew cut off seventy-one cars from the head end of their train in Walker Yard and then set off the thirty-nine tail end cars into track CF57 at Walker Yard. They then returned to their consist with the remaining head end thirty-two cars, and five cars were cut off in the segment of the yard referred to as the “long pocket”. The SBU was moved up and the train then proceeded to Clover Bar Yard where the remaining cars from the head end were set off in track 14. It would appear to the Arbitrator that the facts so described are a text book example of the disassembling of a train within several yards of a multi-yard terminal, all movements of cars being in relation to the crew’s own train. That is clearly within the contemplation of Q&A 14 of the agreement, albeit the premium of 12.5 miles would be payable.

Tab 12 of the Union’s examples book concerns train 356 from Jasper final terminalled at Edmonton on November 2, 2001. The crew was directed to pull their train into Bissel Yard and set off twenty-one cars to track BS02, while holding onto ten cars. They then placed those head end ten cars into track BS01 before re-coupling onto the twenty-one cars in BS02. They then proceeded to Walker Yard where they pulled through track CS56. Finally, they backed into track CS57, coupling to cars already in that track. In the Arbitrator’s view the setting off of ten cars at Bissel Yard involved switching in connection with their own train within the contemplation of the conductor only rules. However, requiring the crew to couple onto cars already in track CS57 in Walker yard involved work which is not in connection with their own train. That work was therefore in violation of the conductor only agreement.

Finally, I turn to consider certain of the examples relating to work enroute. The first example cited at tab 5 of the Union’s examples book concerns train 827 enroute from Edmonton to Jasper on October 28, 2001. The train stopped enroute at Acheson where some ninety-nine cars were prepared and ultimately lifted from three tracks, following which a brake test was performed and the train proceeded onwards after a total time at Acheson of five hours and twenty minutes. In the Arbitrator’s view the facts do not disclose any violation of the conductor only agreement. The fact that three tracks were utilized for lifting cars does not change the essential character of what transpired, namely a stop at one location, or a single stop enroute. Nor does the fact that that stop consumed some five hours and twenty minutes change the essential nature of what transpired. No violation of the conductor only agreement is disclosed in those circumstances.

A different conclusion must be drawn, however, with respect to the work reflected at tab 11 of the example book filed by the Union. In that case train 418, enroute from Smith to Edmonton, stopped on the main line. The crew cut off their engines and coupled onto cars in track EA47, lifting twenty-two cars and spotting the last one of those cars in track EA65. The crew then returned the remaining twenty-one cars to track EA47 and returned to re-couple onto their train on the main line, departing for Edmonton. There could scarcely be a better example of switching enroute, involving no setting off of cars from their own train or lifting of cars to be added to their own train. The facts disclosed are clearly a violation of the conductor only agreement as the stop in question was not “for the purposes of taking on/or setting out a car or group of cars together …”. What transpired was clearly a violation of the prohibition against switching enroute expressly found within article 15.2(b)(vi) of the collective agreement. Further, for the purposes of clarity, the Company would not be permitted to direct a crew to perform the work in question solely on the basis that it was done as the result of an unforeseen request made by its customer at the grain elevator in question. The prohibition against such work by conductor only crews is absolute and without qualification, beyond those exceptions expressly provided in the provisions of article 15.2(b)(v) and (vi) of the collective agreement.

Tab 19 concerns two grain elevators at Balcares, Saskatchewan which are part of the same establishment of a single customer. They are some ¾ of a mile apart, on opposite sides of the main line. The conflict in relation to that location appears to concern the fact that there are some seven storage tracks in two locations associated with the grain elevator. The Union has taken the position that requiring a conductor only crew to operate in and out of three tracks at one location and four tracks some three quarters of a mile beyond must be viewed as constituting more than one stop enroute. The Arbitrator cannot agree. The grain elevator in question is a single location operated by one customer. Performing lifts or set offs at that location constitutes one stop within the contemplation of the conductor only agreement, notwithstanding that the storage tracks may be in two segments on different sides of the main line.

The Union’s examples book contained a number of other examples concerning work in both yards and enroute. After a careful review, however, I am satisfied that the issues which they raise are in fact dealt with in the examples which are discussed above. Therefore, absent any further submissions from the parties, I do not deem it necessary to deal specifically with those further examples as they would add nothing to the principles developed in this award.

CONCLUSION

The Arbitrator has given careful consideration to the submissions of counsel for the Company with respect to the timeliness of this grievance. With respect, I cannot sustain the view that the Union is prevented from raising these issues for resolution at arbitration by reason of the passage of time and the succession of several collective agreements. To some degree there is a guideline dimension to the conductor only provisions, as argued by counsel for the Company and as reflected in the Q&As appended to the agreement. As the extensive evidence before the Arbitrator confirms, it was only by virtue of trial and error and repeated exchanges of correspondence that the parties came to define their own views as to the limitations of the conductor only agreement. While I do accept that the scope of any remedial order which might ultimately issue should take into account the passage of time, I am equally satisfied that the actions and statements of the Union’s representatives have never constituted acquiescence in the positions of the Company or an express or implied waiver of the Union’s own right to ultimately bring these matters on for adjudication. For these reasons I am satisfied that the dispute is properly before me and that the submissions about arbitrability raised by the Company must be dismissed.

I retain jurisdiction with respect to all aspects of the remedy which might be appropriate beyond the findings and declarations contained in this award. The Arbitrator considers it best to simply remit this award to the parties, who are presently at the bargaining table and therefore in the best position to discuss it’s impact or any adjustments in their agreement which might be appropriate. It seems apparent to the Arbitrator that there may be a degree of concern on both sides. On the one hand it may be that the Company believed that it had greater flexibility with respect to the utilization of conductor only crews in the movement of cuts of cars between multiple yards in a single terminal, at both initial terminals and destination terminals. Conversely, the expectations of the Union may have been different with respect to the amount of work which can be required of conductor only crews enroute, particularly at multiple track grain elevators. It is important to bear in mind that a grievance arbitrator cannot, like an interest arbitrator, fashion the result which he or she feels would be most appropriate or most efficient. I am bound by the language of the agreement made by the parties themselves, and must take that agreement as I find it. Any relief which either of them may seek from the adjudicated interpretation of their agreement must inevitably be a matter for their own negotiation and mutual compromise.

The matter is therefore remitted to the parties with the findings and declarations contained herein. I retain jurisdiction in the event of any dispute between them concerning the interpretation or implementation of any aspect of this award and with respect to any further submissions concerning remedy.

Dated at Toronto, this 14th day of August 2004

(signed) MICHEL. G. PICHER

ARBITRATOR