ABOISHMENT OF SECOND ENGINEER

REASONS FOR DECISION

By a decision dated December 29, 2006, the Arbitrator dismissed the grievance of the Union as well as the request for interim relief made by the Intervenor, stating that the reasons for that decision would be provided in writing. Those reasons are provided herein.

The facts pertinent to both the grievance and the request for interim relief are not in substantial dispute. They are generally reflected in the Union’s ex parte statement of issue, filed before the Arbitrator at the hearing. It reads as follows:

UNION’S EX PARTE STATEMENT OF ISSUE:

On August 28 [sic], 2006, the Company issued a single Notice of Material Change to the TCRC and the UTU to eliminate one locomotive engineer on the majority of GO Trains operated by CN for GO in the GTA. This would mean that all CN operated GO trains would operate with only one locomotive engineer.

On November 28, 2006, the unions were advised that the Company intended to replace the second engineer with one of the two conductors in the body of each GO Train consist (the coaches). This conductor would accompany the remaining locomotive engineer in the locomotive engine cab or beside the locomotive engineer in the leading cab car.

On December 19, 2006, the Company advised the unions that this change and others would be implemented on December 30, 2006. The unions filed grievances objecting to the Company’s proposed changes. The unions feel that the Company is in violation of numerous articles and addendums of each collective agreement as well as Mr. Picher’s “ad hoc” award of July 22, 1996.

The UTU alleges that the Company’s proposed action is in violation of article 11 and Addendums 50 and 63 of Agreement 4.16. The Union also submits that the Company has not even attempted to follow any process such as contemplated by Addendum 63 and that at the very least the Company should maintain the status quo until such process has been complied with.

The UTU seeks a declaration that the collective agreement and ad hoc award have been violated. The UTU seeks a cease and desist order. The UTU requests the Arbitrator to order the Company to comply with the collective agreement and maintain the status quo.

In the alternative, the UTU seeks an interim order pursuant to s.60(1)(a.2) of the Canada Labour Code until the Arbitrator can hear and determine both grievances filed by both unions on the merits.

The Company disagrees with the UTU’s contentions and request that the UTU’s grievance be dismissed.

For many years the Company has provided running trades employees to operate passenger commuter trains in and around the Greater Toronto Area (GTA). It does no under contract with GO Transit, a regional public transportation system, including both buses and trains, operated by the Province of Ontario.

Historically GO trains have been operated with crews that include two locomotive engineers. On the busiest route, the Lakeshore line, when a train travels in the eastern direction, which places the locomotive in the lead, both engineers have been situated in the cab of the locomotive. When the direction is opposite, with the locomotive pushing the trains, one of the two engineers has controlled the movement from a position in the cab control car, at the other extremity of the train, while the second locomotive engineer has remained in the trailing locomotive. By letter dated August 28, 2006, GO Transit notified the Company’s General Manager for the Eastern Canada Region that it wished to reduce the operating crews to have a single locomotive engineer, consistent with the practice of a number of other North American commuter train operators. Consequently, the Company gave notice to the intervenor union, which represents the locomotive engineers, of its intention to reduce the crews by eliminating one locomotive engineer in GO train service effective December 18, 2006, a date which was subsequently put back to December 30, 2006. While the notice of material change was served upon the intervenor union, a copy was also directed to the General Chairperson of the United Transportation Union, because the change would have adverse impacts on conductors and assistant conductors who stood to be displaced by second locomotive engineers returning to the conductors’ ranks by the exercise of their seniority. It appears beyond dispute that junior conductors and assistant conductors will be displaced from GO train service, presumably into freight service, either in Toronto or at other terminals, by reason of the abolishment of an estimated thirty-four second engineer’s positions in GO service.

The issue of crew consists in GO trains has been the subject of previous arbitral awards. In particular, an award of this Arbitrator dated July 22, 1996, dealt with a proposal of the Company to eliminate the position of assistant conductor on GO trains, with trains to operate on a conductor-only basis. Under that proposal crews would then have been comprised of two locomotive engineers and a single conductor stationed in the body of the train. That initiative was only partially successful. As the proposal had to be presented by the Company under the terms of Addendum No. 63 of the UTU collective agreement, the burden was placed upon the Company to demonstrate that the crew reduction could be implemented safely and that the reduction would not result in an undue burden on the reduced crew. In the award (AH 408) the arbitrator sustained the position of the Company as regards certain of the commuter lines in GO service, and in particular on the lines operating to Georgetown, Richmond Hill, Stouffville and Bradford. The Company’s initiative was denied, however, with respect to the more heavily travelled Lakeshore line. Given the length of trains and the volume of passengers on the Lakeshore corridor the arbitrator found that the Company did not establish that the proposed change could be safely implemented or implemented in a way which would not overly burden the single conductor of the reduced crew. In the result, from 1996 to the present GO trains in the Lakeshore corridor service, operating between Burlington and Oshawa, have been operated by two locomotive engineers, a conductor and an assistant conductor.

The initiative of the Company which is the subject of this dispute does not propose any reduction in the positions occupied by conductors or assistant conductors in any aspect of GO train service. As proposed, however, the Company’s material change will occasion a different deployment of the conductor and assistant conductor on the Lakeshore line. The following passage from the award in AH 408 describes operations as they were before the Company’s proposal to operate with a single conductor and as they came to be implemented, in conductor-only service, on all but the Lakeshore line:

The principal change which the Company submits justifies a conductor-only operation involves the introduction of relocated door controls on cars made accessible for the physically disabled. Each train has a modified coach, placed in the fifth position, which contains riding areas for wheelchairs and other mobility vehicles utilized by the disabled. The conductor-only crew member would deploy a 26 lb. aluminium bridge plate at stations equipped with a special disabled access-ramp or mini-platform. This would allow the disabled to entrain and detrain without assistance from the conductor, it being understood that should assistance be needed it is the customer’s responsibility to provide it. In other words, in keeping with the policy of GO Transit of operating a “self serve transit system”, members of the train crew are not to provide direct assistance, beyond the placement of the bridge plate, for disabled patrons. Some 23 station platforms are said to be equipped with the disabled access mini-ramps.

Previously, door control panels were located only on the upper level of all bi-level coaches, at what is described as the “A” end. Recently, to allow for the introduction of conductor-only operations, a modified door control panel has been relocated to a second position on the lower level, at either side of the disabled accessibility coach. As this position is located at the “A” end of the fifth coach, it is generally referred to as the “5A” position.

The new door control position allows a single conductor to control the doors of the train from a lower level position where he or she can also deploy the wheelchair bridge plate. The position also has a speaker unit, in the form of a telephone on an extended cord, which allows the conductor to step out onto the platform with the speaker in hand, to ensure that all passengers have boarded, and that all doors are clear prior to re-entering and closing the doors. These innovations allow the conductor to operate the public address system and maintain surveillance while opening and closing the doors and deploying and retracting the wheelchair bridge plate, as needed. The 5A position also has an intercom system for private conversation between the engine crew and the conductor or train crew. In addition, the control stations also have a buzzer-type communication signal which allows the train crew to communicate signals to the engine crew. Further, cellular telephones are being introduced both in the cab control car, being the car located furthest from the locomotive, which becomes the lead car when the train is travelling in “push” mode, as well as in the disabled accessibility coach.

Under present conditions, before the implementation of the conductor-only system, crewing consists are comprised of one conductor, one assistant conductor and two locomotive engineers. When the train in travelling so that the locomotive is in the lead, both engineers are situated in the locomotive cab. When the direction is opposite, with the locomotive pushing, a single engineer controls the movement from a position in the cab control car, while the second locomotive engineer remains positioned in the trailing locomotive. The conductor and assistant conductor work in the body of the train, with the person responsible for the operation of the doors positioned in the upper level, generally toward the rear of the train. That individual normally makes announcements, as well as operating all doors. The second employee is normally in position for the deployment of the bridge plate at the 5A location, at stations equipped with an access ramp. Generally, at station stops, the second crew member steps out onto the platform to observe passengers leaving and boarding the train, using hand signals to communicate the all-clear to the employee operating the doors. It is also the duty of the second crew member to patrol the train while enroute between stations.

With the elimination of the second engineer, the Company proposes that on the Lakeshore line either the conductor or the assistant conductor will travel in the cab of the locomotive when the train is eastbound, calling signals with the locomotive engineer as well as receiving and communicating train orders, and generally overseeing the movement of the train in compliance with all operating rules and train orders. When the train is operating in the opposite direction, either the conductor or the assistant conductor moves to the control cab car, again in the company of the locomotive engineer, and performs similar duties westbound. Meanwhile, in both directions, the other crew member is stationed at the 5A position from which he or she can operate the doors, observe the all clear on platforms, deploy and remove the wheelchair bridge and make announcements, as needed.

In considering the merits of the instant dispute it is important to distinguish the issue in the case at hand from the issue which was before the Arbitrator in AH 408. In that award the employer was constrained by the terms of Addendum No. 63. It was then compelled to satisfy two conditions within the addendum, as found in article 6(b):

6(b) (i) That adequate safety can be maintained with the proposed crew consist reductions; and

(ii) That such reduction will not result in undue burden being placed on the reduced crews.

The instant case does not give rise to those considerations. There is, in fact, no reduction in the crew, insofar as the presence on the train of a conductor and an assistant conductor on the Lakeshore line is concerned. The complement of conductor and assistant conductor remains at two.

The issue in the case at hand is solely whether the re-stationing of one of the two members of the crew into the cab of the locomotive eastbound, and into the leading control cab car westbound, violates the collective agreement, or the decision in AH 408 because the employee so assigned essentially performs locomotive engineer’s functions, and not those of a conductor or an assistant conductor. More specifically, the Union alleges that the Company’s proposed action is in violation of article 11 and Addenda 50 and 63 of the collective agreement.

Article 11 is entitled “Consist of Crews” with a sub-title “Passenger Service”. That article reads, in part, as follows:

11.1 In accordance with the provisions of Addendum No. 63 of this Agreement, crew consists in passenger service shall be as follows:

…

(e) five (or more) working coaches – one Conductor

– one Asst Passenger Conductor

– one Asst Conductor

The provisions of article 11.1 also deal with other aspects of passenger service, such as the handling of baggage, for example, sub-paragraph (b) describes a crew of one conductor, one combination assistant conductor/baggage handler where the train operates with two or less working coaches, a maximum of five cars overall and checked baggage handled en route. Sub-paragraph (d) provides for one conductor, one baggage handler and one assistant conductor on trains of three or four working coaches and one or more working baggage cars.

In the case at hand counsel for the Union submits that the concept of working coaches reflected in article 11.1 of the collective agreement indicates the understanding of the parties that conductors in passenger service are not to be deployed to the cab of a locomotive, but are to be assigned within the body of the train, which is to say within the passenger cars proper.

However, at best, the arguments of the Union in that regard are derivative and indirect. The collective agreement is clear that the crew consist provisions of article 11 do not apply to GO train commuter operations. In that regard, Addendum No. 64A of the collective agreement specifically addresses the question. That addendum, signed by both parties on October 17, 1983, contains a series of 44 questions and answers with respect to crewing in passenger service, including commuter services. Question and answer 4 of that document are as follows:

Q.4 Do the manning provisions of the Agreement apply to “GO” Transit service?

A.4 No.

Indeed, as is apparent, for many years crews in GO train service have been assigned in a manner entirely inconsistent with the provisions of article 11, as least as regards the number of crew members in relation to the number of cars operated.

The Union nevertheless argues that the overall thrust of the collective agreement is to the effect that conductors are to be utilized in the body of a passenger train. With respect, the Arbitrator cannot see that position grounded in the language of the collective agreement. That assertion is especially doubtful given the reality of rail operations in general, bearing in mind that under conductor-only freight service conductors have occupied a position in the cab of a locomotive for a number of years, and that members of the Union even did so prior to crew reductions in freight service as, for example, was the case for the head-end brakeperson years ago. In the Arbitrator’s view the best that can be said is that the collective agreement is essentially silent on the matter and that its terms do not lend meaningful weight to the position of the Union. Moreover, as counsel for the Company stresses, the time spent in the cab of a locomotive in GO train service by a conductor or assistant conductor would approximate little more than 40% of that individual’s working time, regard being had to that individual’s time spent in the cab control car at the other extremity of the train and patrolling through the train while changing positions at the reversal of direction.

Addendum 50 deals specifically with the manning and operation of GO commuter trains operating in and out of Toronto. Dating from December 19, 1980, it deals with issues such as split tour assignments and the structuring of shifts and overtime, in addition to such matters as extra service, arbitrary allowances, seniority rights, the equalization of miles, bulletining, training and familiarization. Counsel for the Union points to no provision of Addendum No. 50 which is effectively violated by the initiative of the Company in the case at hand. Nor, for the reasons touched upon above, can it be said that there is a violation of Addendum No. 63, as there is no effective reduction in the number of conductors and assistant conductors within a crew consist.

Can it be said that the employees who are the subject of the adjustment being made by the Company are being used as other than conductors or assistant conductors in a manner that violates the letter and spirit of the collective agreement? The Arbitrator has substantial difficulty seeing how that can be so. As outlined in the Company’s brief, without substantial dispute by the Union, the duties and responsibilities of the conductor and assistant conductor under the new arrangement are generally described as follows:

– ensure the train is operating in accordance with its operating authority

– monitor and communicate on approach of R42 limits

– monitor result of hotbox detection inspections

– perform pre-departure inspection at start location and perform air brake tests

– operate doors and accessibility ramp

– patrol train when conditions permit

– make public address announcements

– observe passengers entraining and detraining as conditions permit

– attend the cab car and comply with Rule 34 as conditions permit

– respond to Passenger Assist alarms as directed by the conductor

The reference to rule 34 involves the calling of signals with the locomotive engineer, a function which is fully consistent with the duties of conductors and assistant conductors in freight service. It also does not appear disputed that in an emergency situation the conductor and assistant conductor will have continued responsibility for flagging, as may be needed.

On a review of the evidence, the Arbitrator is satisfied that the nature of the duties assigned to the conductor and assistant conductor in GO train service on the Lakeshore line manifestly continue to be the core duties of the craft. They are not the core duties of a locomotive engineer. While the Arbitrator appreciates that the change in positioning represents a major adjustment in the workday routine of the conductors and assistant conductors on the Lakeshore line, for the purposes of this award it is essential to recognize that the work in question remains work of a conductor or of an assistant conductor which can properly be assigned by the Company, as it has been. There is, very simply, nothing in the collective agreement which would prevent the Company from deploying the conductor and assistant conductor in GO train service as it has proposed to do under this new arrangement. Nothing in the Company’s initiative violates any provision of the collective agreement, nor does it derogate from the decision of this Arbitrator in AH 408, a decision which confirmed the presence of both a conductor and an assistant conductor on GO trains in service on the Lakeshore line.

Is there any basis demonstrated for the interim relief sought by both the United Transportation Union and Teamsters Canada Rail Conference, which represents locomotive engineers? After careful consideration of the submissions of counsel for both unions I do not see any. As it has the right to do, the TCRC has grieved the Company’s actions, presumably under the material change provisions of its collective agreement. Any adverse effects of the Company’s actions can be dealt with fully within the ambit of those provisions, in the fullness of time. There is no serious suggestion before the Arbitrator of any imminent safety hazard or irreparable harm which might be suffered in the event the initiative is implemented. On the contrary, it does not appear disputed that commuter service has for some time operated, without apparent difficulty, with a single locomotive engineer, as for example on the Milton line of GO train service. It appears that that arrangement, involving another company, was freely negotiated between the employer and the running trades unions.

The authority of a board of arbitration to order interim relief under the provisions of the Canada Labour Code is an important jurisdiction, to be exercised in a considered way, and only where it is appropriate to do so. In the instant case it is clearly apparent that the collective agreements’ grievance and arbitration provisions, including the specific provisions governing the resolution of disputes concerning material change, offer ample protection to both trade unions to the extent that their members may be adversely affected by the change in operations being implemented by the Company. The facts of the instant case do not, on their own, justify an effective freezing of the status quo until such time as those issues are fully discussed and either settled or arbitrated. In approaching this question it is notable that the parties do not appear to dispute that, in the end, no employees will in all likelihood lose their employment, although there will obviously be some resulting bumping and job displacements. This is not, on its face, a circumstance which would justify interim relief in the form of a cease and desist order from the Arbitrator. The most that can be asserted is that the affected employees will suffer some adverse effects. That is a consequence specifically contemplated within the collective agreement and for which specific procedures are provided.

For all of the foregoing reasons both the grievance and the request for interim relief advanced by the Union must be dismissed and the request of the Intervenor for interim relief must also be dismissed.

Dated at Ottawa this 7th day of February, 2007.

(original signed by) MICHEL G. PICHER

ARBITRATOR

AH571

IN THE MATTER OF AN ARBITRATION