VIA Rail - TCRC: Estoppel Grievances

AWARD

This arbitration concerns the resolution of a number of issues. As part of the bargaining process for the renewal of the parties’ collective agreement the Corporation provided estoppel notices to the Union. Numbering twelve, the estoppel notices essentially identified areas where the Corporation effectively maintained that it had not strictly enforced its rights under the collective agreement. With the renewal of the agreement, to the extent that there was no language change, it would henceforth strictly enforce those rights.

The Union disputes that the positions advanced by the Corporation are proper instances of estoppel, and submits that, in effect, the Corporation simply seeks to assert its own interpretation of collective agreement provisions in a manner not supported by principals of contract interpretation. In fact the Union filed a complaint with the Canadian Industrial Relations Board, alleging violations of section 50(1) and (2) of the Canada Labour Code and a failure to bargain in good faith. It appears that before the Board the parties agreed to present the issues dealt with in this award to the Arbitrator, by means of an expedited arbitration process, to give both of them some certainty as they return to the bargaining table. It is noteworthy that in fact some seven of the estoppel notice issues were settled by the parties themselves and are no longer issues in dispute. It was therefore agreed to submit five remaining estoppel notices to this Arbitrator for resolution. They will therefore be dealt with in sequence.

I – ESTOPPEL NOTICE NO. 1

Estoppel Notice No. 1 and the issues that flow from it are as follows:

Hours of Service and Overtime

Run cycles will be designed and built on hours worked not hours paid.

Under the existing terms and conditions of the collective agreement, and in particular Articles 3 and 4, the Union’s view is that the Corporation is required to design and build run cycles on hours credited not hours worked. The Corporation’s view is that it complies with the collective agreement as a whole and in particular Articles 3 and 4 if it establishes run cycles requiring locomotive engineers to work 160 hours in a four week period regardless of the number of hours paid.

Do the provisions of the collective agreement support the Corporation’s interpretation?

Does the fact that the Corporation issued Estoppel Notice #1 permit the Corporation to implement its interpretation of the collective agreement?

Run cycles are working assignments put together at each terminal and posted for bid by locomotive engineers at each location at the fall and spring change of card. They establish train runs which operate over a cycle of twenty-eight days. Underlying the run cycle system is the arbitration award of Justice Mackenzie in 1995 which introduced service based on hours rather than miles. At page 12 of his award Mr. Justice Mackenzie made the following determination:

We agree with the compromise proposed that scheduled runs of less than 4 hours should be considered as 4 hours, runs between 4 and 6 hours as 6 hours, and runs over 6 hours as 8 hours. In circumstances where scheduling constraints and days off requirements do not allow the accumulation of 160 hours of straight time in a 4-week period, the employee would be paid for 160 hours as a guaranteed minimum.

Based on the foregoing, the parties have been subject to article 4 of the collective agreement, which deals with the basic day. It provides as follows:

Article 4 – Basic Day

4.1 A minimum basic day shall be established in accordance with the tour of duty. In the calculation of this principle, the following shall apply:

	Time on Duty	Basic Day	2003
(a)	0’00” – 4 hours	4 hours	162.29
(b)	4’01” – 6 hours	6 hours	243.43
(c)	6’01” – 8 hours	8 hours	324.58
(d)	over 8 hours	Actual time

4.2 Locomotive engineers called out to attend locomotives after termination of tour of duty will be paid a minimum of four (4) hours for each call. Time paid for under this paragraph shall not be used to make up the basic day.

4.3 Locomotive engineers performing service will be paid on a minute by minute basis, with a minimum of four hours in straight away service, or a minimum of eight hours when returned to their home terminal on the same calendar day.

As can be seen from the foregoing, the monies paid to a locomotive engineer might, in the end, reflect more hours than in fact were actually worked. For example, a locomotive engineer whose active tour of duty totals five hours is paid as though he or she worked a full six hours, as provided in sub-paragraph (b) of the grid contained in article 4.1 of the collective agreement. It is not disputed that since 1995 Corporation administrators have built run cycles based on hours credited, and not actual hours worked. It would also appear that in collective bargaining in both 2001 and 2005 the Corporation tabled proposals to modify the collective agreement by providing for a basic day of four hours plus actual time thereafter. As appears from the material filed, in 2005, part of the Corporation’s intention was to have locomotive engineers paid for actual time worked. The employer’s proposal would have eliminated all arbitrary payments such as preparatory time, initial time and final time. The Corporation’s proposals were not accepted and did not become part of the collective agreement.

In approaching this issue the Arbitrator must confess to having some difficulty with the fundamental position of the Union. In essence the Union must be taken to be saying that the dispute is a matter involving the interpretation of the collective agreement which does not allow the Corporation to simply assert an estoppel or its own unilateral interpretation as the rule for the future. That position would be plausible, it seems to me, if indeed the collective agreement did contain provisions relating to the design or establishing of run cycles. Importantly, there are no such provisions to be found in the collective agreement.

To be sure, there are basic day provisions, and related pay items, notably in article 3.2(a) and (b), which recognize the distinction between hours paid and hours credited, both for the payment of the guarantee and the payment of overtime for hours in excess of the aggregate basic 160 hours to be worked in a four week period. However there is no indication within the collective agreement as to how run cycles are to designed.

As noted above, it is beyond dispute that the Corporation has based run cycles on hours paid to employees, and not on actual hours worked. It has done that consistently since 1995. It now proposes to establish run cycles based on actual hours worked. In the Arbitrator’s view, to the extent that the establishment of run cycles is itself something outside the collective agreement, and accepting for the purposes of this dispute that the practice of the past thirteen years can be viewed as a representation by conduct on the part of the Corporation as to how it will establish run cycles, the Arbitrator is compelled to sustain the position of the Corporation. This would be a classic example of estoppel by conduct being brought to an end by notice, particularly to the extent that the collective agreement contains no provision with respect to establishing run cycles. This dispute can not fairly be characterized as a dispute between the parties with respect to the interpretation of the terms of their own collective agreement.

It is indeed arguable that the change in the system of establishing run cycles is simply a matter of exercising the unfettered discretion of the Corporation. It is unnecessary to frame the issue in those terms, however, as the parties themselves have agreed to do it in terms of the doctrine of estoppel. For the reasons related above, I am satisfied that this is, at a minimum, an appropriate application of doctrine of estoppel and that the estoppel notice issued by the Corporation is to be viewed as operative. Failing the negotiation of any contrary language, the Corporation will be at liberty to establish run cycles on the basis of hours worked following the renewal of the collective agreement.

II – ESTOPPEL NOTICE NO. 2

The next issue relates to hours of service and overtime. The Corporation’s estoppel notice and the agreed issues are as follows

Hours of Service and Overtime

Overtime will be calculated and paid only after 160 hours worked in the four week averaging period.

Under the existing terms and conditions of the collective agreement, and in particular articles 3 and 4, the Union’s view is that the Corporation is required to calculate and pay overtime after 160 hours credited in the four week averaging period. The Corporation’s view is that it is not required to pay overtime unless or until 160 hours have been actually worked in the 4 week period, not merely credited or paid, but actually worked.

Do the provisions of the collective agreement support the Corporation’s interpretation?

Does the fact that the Corporation issued Estoppel Notice #2 permit the Corporation to implement its interpretation of the collective agreement?

The position of the Union is that the Corporation cannot now depart from the established interpretation of the collective agreement whereby overtime has been paid after 160 hours “credited” in the four week averaging period, rather than after 160 hours worked.

In support of its position the Union points to the following provisions of articles 3.2(b) and 3.5:

3.2 As the nature of work performed necessitates irregular distribution of locomotive engineers, hours of work, and days of assignment, the principle of averaging will be in accordance with the following formula:

Locomotive Engineer

…

(b) Hours worked in each consecutive 4-week period will be averaged to determine time worked in excess of the aggregate basic 160 hours, and hours in excess of aggregate shall be paid at time and one-half at the hourly rate provided for in article 2.2(b).

Example:	Hours Credited	Hours paid
1st 2-week period	100	80
2nd 2-week period	75	80
Total	175	160
* Adjustment	15	22.5
Total	160
Adjustment	0	0
15 hours at 1 1/2	(straight time rates)	182.5

* Payable 1st pay period after the four-week period involved.

3.5 (a) Regularly assigned locomotive engineers will not be required to perform work on another assignment to make up their guarantee for the basic four-week period.

(b) Work performed by an assigned locomotive engineer during layover, on other than his own assignment, shall be paid over and above the guarantee and included towards the accumulation of 160 hours for overtime purposes.

This is manifestly a situation in which there are two possible interpretations of the collective agreement. By reason of the provisions of article 4, reviewed in respect of the prior issue, it is clear that locomotive engineers are paid for hours not worked, to the extent that their wages are rounded up to the basic day of 4 hours, 6 hours or 8 hours, as the case may be, even though they may have worked less than those actual numbers. It appears clear to the Arbitrator that it was open to the parties to take the view that the phrase “hours worked” appearing in article 3.2(b) was intended to mean only time actually worked, and not rounded up time. However they clearly did not do so. For some thirteen years, without exception, the phrase “hours worked” is this provision has been interpreted to mean “hours deemed worked”, based on the basic day provisions found in article 4 of the collective agreement. In the Arbitrator’s view this is not a case of estoppel in which the Corporation can now fairly revert to the strict application of its rights. Rather, it is one where, I am satisfied, the parties have, over a substantial period of years and several renewals of their collective agreement, effectively agreed that the meaning of hours worked as it applies in article 3.2(b) is hours which are credited or deemed worked. That, moreover, is manifestly consistent with the overall guarantee provisions provided to locomotive engineers, and particularly reflected in article 3.5(a) and (b) of the collective agreement.

In the result, on this issue the Arbitrator must find in favour of the Union. The overtime provisions of the collective agreement as they have been applied for some thirteen years are the parties’ own agreement. This is not a situation of estoppel. Should the Corporation wish to change the method of payment for overtime, that is a matter which it must deal with at the bargaining table. Failing any change in the language through bargaining, the position of the Union must prevail.

III – ESTOPPEL NOTICE NO. 4

The next issue concerns switching at terminals and turnaround points. The estoppel notice and the issues before the Arbitrator read as follows:

Service at Terminals and Turn Around Points

The terms and conditions of article 9.2 and 9.3 will be strictly applied.

Does the collective agreement require locomotive engineers to perform switching at terminals or turnaround points where there are no yard engines on duty and the locomotive engineers will be paid on a minute by minute basis?

Does the collective agreement require locomotive engineers in road service to perform yard passenger switching at terminals where there are no yard crews available and the locomotive engineers will be considered in continuous service?

Does the fact that the Corporation issued Estoppel Notice #4 permit the Corporation to implement its interpretation of the collective agreement?

The parties further request that the arbitrator retain jurisdiction on this item for a supplemental question that could be thereafter initiated by either party as follows:

If the Corporation is entitled to require locomotive engineers to perform switching at terminals or turnaround points which is not in conjunction with their own train, on what basis are they to be paid?

This dispute bears on the application of article 9 of the collective agreement which reads, in part, as follows:

9.1 Locomotive engineers making less than 4 hours will be paid 4 hours but will be required for further service (except in switching at yards where regular yard engines are on duty).

9.2 Locomotive engineers required to perform switching at terminals or turnaround points where yard engine(s) are not on duty will be paid for such service on the minute basis from time switching is commenced until switching is completed at the daily rate applicable to the locomotive and service performed. Time so occupied will not result in a double payment and may be used to make up the basic day.

Definition of Separate Run

9.3 Locomotive engineers in passenger service used out of or at initial or final terminal to perform service other than that in connection with their train, before commencing or after completing trip, will be allowed a separate day for such work. It is understood at terminals where no yard crew is available, that road locomotive engineers may be required to do yard passenger switching, and will be considered as in continuous service.

In addition to the foregoing the parties negotiated Addenda 100 and 226 which apply in the West and in the East, respectively. While the Arbitrator does not purport to interpret or dispose of those Addenda for the purposes of this dispute, they would appear to give a specific definition to the payment of “a separate day”. It would appear that those Addenda became necessary as it emerged that the Corporation was doing away with all of its yard assignments. In fact, no yard assignments exist in the East or the West, and all switching done by the Corporation, at all locations, is done by locomotive engineers who would otherwise be in road service. In that regard it may be noted that with respect to the East, Addendum 226, which is identical to Addendum 100, provides, in part, as follows:

In the re-write of Collective Agreement 1.1 the issue of including the yard provisions in the new collective agreement arose. There are no regular yard assignments in the Eastern Region of the Corporation although a yard crew is occasionally called to move equipment between the Toronto Maintenance Centre and Union Station.

The Corporation recommended the shelving of the yard provisions and have any yard/transfer work performed by the locomotive engineers at the road rate of pay. The Brotherhood expressed the concern that this change might result in a reduction of earnings for locomotive engineers called to perform this work given that a basic day in the yard is established as 8 hours, although at a lower rate of pay.

In order to address this concern the Corporation and the Brotherhood have agreed that locomotive engineers called to perform yard/transfer work in the Eastern Region of the Corporation will be paid a minimum call of 6 hours at the road rate to perform this work. In return, all yard provisions in Collective Agreement 1.1 will not be included in the new 1.4 Collective Agreement. They can be included in the collective agreement upon 60 days notice under the terms of the Consideration Agreement set out as Addendum 16 in Collective Agreement 1.4.

The Arbitrator considers it important to note the clear agreement of the parties with respect to the application of article 9.2. There is no question that the article is intended to refer to switching performed at terminals or turnaround points by locomotive engineers called to work in road service, and to perform such switching in relation to their own train. It is common ground that time so expended is to be paid on the minute basis.

The real dispute arises with respect to the application of article 9.3. The Arbitrator has some difficulty understanding the Corporation’s approach to estoppel in the instant case. Its brief appears to suggest that at some locations local management have paid locomotive engineers “various amounts of money” over and above the guarantee for them to perform switching under either article 9.2 or 9.3 of the collective agreement. It would seem that the Corporation’s estoppel declaration is to put the Union on notice that it will henceforth strictly apply the provisions of article 9.2 and 9.3.

As noted above, there does not appear to be any dispute as regards the meaning and application of article 9.2. As regards article 9.3, the Arbitrator is compelled to agree with the Union that there is some ambiguity in that provision. That ambiguity stems from the second sentence of article 9.3, and the reference to road locomotive engineers being required to do yard passenger switching and being considered “as in continuous service.” On a review of the materials, the Arbitrator is compelled to agree with the Union, to the extent that it asserts that the final sentence of article 9.3 would appear to address the circumstance of a road locomotive engineer compelled to perform switching that is not relation to his or her own train. On balance, the Arbitrator is satisfied that the interpretation of the Union is to be preferred, namely that the last sentence of article 9.3 is to be read in conjunction with Addendum 100 and Addendum 226, and that what the provision contemplates is the payment of a day, as defined in the Addenda to be six hours, to apply when passenger switching is done under article 9.3, whether it be for work other than in relation to a locomotive engineer’s own train or for a specific call off the spareboard to do yard switching.

Most fundamentally, the Arbitrator has substantial difficulty seeing how the instant dispute can fairly be characterized as one which involves the right of the Corporation to assert an estoppel notice. The fact that local management may have applied different standards in dealing with locomotive engineers doing switching would not, on its face, constitute a clear representation relied upon by the Union to its detriment, in the sense understood within the doctrine of estoppel. At best the parties appear to have a difference of opinion as to the interpretation of the provisions of article 9.3 read together with the addenda. This is plainly not a circumstance where the doctrine of estoppel has any application. It is therefore not open to the Corporation to simply revert to its interpretation should this language go unchanged in bargaining.

As requested by the parties, the Arbitrator retains jurisdiction with respect to the issue of compensation in relation to this issue, should the parties be unable to resolve that question.

IV – ESTOPPEL NOTICE NO. 5

This issue concerns the nature of accommodations to be provided for crews who book rest. The estoppel notice and agreed issues read as follows:

Tied up between Terminals

For this and other articles addressing accommodation, accommodation can include sleeping accommodations on trains so equipped.

Under the existing terms and conditions of the collective agreement as a whole, and in particular article 12 and 15, when locomotive engineers are tied-up between initial terminal and the point for which they are ordered, can sleeping accommodation furnished by the Corporation include sleeping accommodation on-board trains so equipped?

Do the provisions of the collective agreement support the Corporation’s interpretation?

Does the fact that the Corporation issued Estoppel Notice #5 permit the Corporation to implement its interpretation of the collective agreement?

Article 15 of the collective agreement governs booking rest, including booking rest en route. Article 15.9(a) provides, in part, as follows:

15.9 (a) When rest is booked en route, locomotive engineers will, at the Corporation’s option:

(1) Be relieved of duty and provided with accommodation either in a Corporation facility or an available hotel or motel; or

(2) Be replaced and deadheaded immediately either to the point for which ordered or to the home terminal where they will be relieved of duty.

The fundamental position of the Union is that there can be no doubt but that the collective agreement contemplates employees being provided accommodation in a dedicated sleeping facility such as a bunkhouse, or in hotel and motel accommodation, when booking rest en route. The Union strongly resists the suggestion that in some circumstances the Corporation can provide on board sleeping facilities in satisfaction of its obligation under article 15.9(a) of the collective agreement.

The Corporation’ position is somewhat more circumscribed. It takes no issue with the fundamental position of the Union that the normal and unexceptional circumstance is that employees who book rest en route are entitled to be accommodated in a bunkhouse, hotel or motel, and are not to be given sleeping accommodation on a train. In that regard it points, by way of example, to the Emergency Fatigue Management Plan, apparently developed in conjunction with the Trade Union’s representatives, albeit it does not form part of the collective agreement. That document contemplates emergency situations where operating employees facing fatigue may be given the opportunity to take rest in on board accommodations. Under the heading “Procedures and Policies” that plan reads, in part, as follows:

Procedures and Policies

Management’s first responsibility in an emergency is the safety and security of our employees, passengers and the public. Operating Employees involved in an emergency situation contemplated by the Work / Rest Rules will be informed of the nature of the emergency situation and the plan to manage through that situation. The fatigue condition of Operating Employees must be considered in the plan. Management will take all reasonable steps to minimize the time involved in the emergency.

Management will relieve or replace affected Operating Employees as soon as practicable.

In situations of a known delay:

● When food and beverage are available on the train, the Operating Employees will be given opportunity to use the services provided on board.

In situation of a known extended delay:

● When accommodations that foster recuperative rest are available on the train, Operating Employees will be provided an opportunity to make use of those accommodations.

● When accommodations that foster recuperative rest are not available on the train, Operating Employees will be provided an opportunity for rest and / or meal provisions away from the equipment when accessible.

In the aforementioned, there may be a need to alternate opportunities between Operating Employees.

As is evident from the materials submitted, it would appear clear that the Union is concerned that the more broadly phrased nature of the estoppel notice issued by the Corporation, represents the thin edge of the wedge. The Union has obvious concerns that crews not be compelled, in non-emergency situations such as merely reaching their time limit for booking rest, to take accommodation on a moving train.

With respect to this issue the Arbitrator can see little merit to the position of the Corporation. There is, at best, ambiguity with respect to the meaning of the term “accommodations” as it appears within article 15 of the collective agreement. There is no material before the Arbitrator that would suggest any representation by word or conduct on the part of the Corporation concerning its ability to assign road locomotive engineers to take rest in on board facilities. The most that can be said is that the parties had discussions, surrounding the Emergency Fatigue Management Plan, which contemplate a rare circumstance in which employees may be compelled to sleep on board. I am satisfied that the Union is correct that there is nothing in the language of the agreement, as it has been applied for many years, to suggest that the Corporation can invoke the ability to assign employees to sleep on board in non-emergency situations, as for example when they simply book rest en route and reach the limit of their legal running time. This is not a case where estoppel applies, and any such departure from the established meaning of the collective agreement must be negotiated by the Corporation.

V – ESTOPPEL NOTICE NO. 11

The issue in relation to this matter concerns uniforms. The Corporation’s estoppel notice number 11 reads as follows:

Uniforms

The practice of not requiring the wearing of uniforms is at an end. While on duty locomotive engineers will be required to wear the uniform provided.

The parties have agreed on the following questions to be determined:

Under the existing terms and conditions of the collective agreement are locomotive engineers required to wear a uniform?

Do the provisions of the collective agreement support the Corporation’s interpretation?

Does the fact that the Corporation issued Estoppel Notice #11 permit the Corporation to implement its interpretation of the collective agreement?

The material confirms, without contradiction, that in 1998, with the abolishment of Conductors’ position on the Corporation’s passenger trains, it was decided that locomotive engineers should wear designated uniforms. It does not appear disputed that from that time to the present the Corporation has provided uniforms to employees at its own cost, with specific order forms being utilized by individuals to make their respective orders. It is also not disputed, however, that not all locomotive engineers have followed the directive to obtain and wear uniforms. By way of example, the Arbitrator is advised that in 2007 only 205 of some 360 employees ordered all or part of the uniform designated for them.

With respect to this issue the Arbitrator readily understands the position of the Corporation. With the removal of the conductor from service, the responsibilities of the conductor, including the ability to maintain order on a train, up to and including the ability to have a passenger removed, devolved to the locomotive engineers. In other words, albeit on rare occasions, the locomotive engineer might be required to go into the body of the train to deal with a situation involving a passenger. It would also not appear disputed that locomotive engineers might have increased contact with passengers in any emergency situation which could involve evacuating a train, for example.

The Union cites prior jurisprudence to support its argument that the Corporation must first show that it has reasonable grounds to require that locomotive engineers be required to wear uniforms. In that regard reference is made to the following award: Re Kitchener-Waterloo Record v. Communications, Energy and Paperworkers Union, Local 87M (Southern Ontario Newspaper Guild), [2006] O.L.A.A. No. 114 (Rose).

This Arbitrator is satisfied that there are ample reasonable grounds for the Corporation to prefer and require that its locomotive engineers wear a Corporation uniform while on duty. Firstly, that kind of requirement is arguably a standard in the transportation industry, at least as regards the carriage of passengers. Whether in relation to aviation, ships and ferries, or bus transportation, the common rule is that uniforms are worn by operating employees. That, in part, identifies them as persons in authority and arguably works to advance a positive image of the employer-carrier. While it may be true that the passenger contact experienced by locomotive engineers is somewhat less than what would be the case for on board service employees, who are uniformed, the fact remains that locomotive engineers, whether moving about on a platform, handling baggage or in fact dealing with passengers in an extraordinary circumstance, are visible to the passengers who use the Corporation’s services. It is clearly within the reasonable and legitimate business interests of the Corporation to prefer, and to require, that all employees involved in the operation of a train wear the uniform designated by their employer.

In the Arbitrator’s view this clearly is a circumstance where estoppel applies. The Corporation decided in 1998 to have its locomotive engineers wear uniforms, and to that end designed and provided them for over ten years. It is equally true, however, that it did not enforce, through discipline, the application of its rule with respect to wearing uniforms. It now wishes to do so. I am satisfied that it has the right to take that position.

It is nevertheless essential to emphasize that any future discipline in respect of the failure to adhere to the dress code may not be successfully asserted merely on the basis that at the bargaining table the Corporation communicated its new position to the Union, by means of its estoppel notice. In keeping with Canadian arbitral jurisprudence, and the well known KVP rules, should the Corporation now wish to strictly enforce its uniform dress code for locomotive engineers, it is plainly incumbent upon it to first give clear and adequate notice to all employees of that requirement, and a reasonable period of time to allow them to obtain the necessary uniforms and conform to the employer’s directive. Once those conditions are met, the Corporation will be at liberty to enforce its rule with respect to uniforms, including resort to discipline, if necessary.

For the reasons related above, the Arbitrator is satisfied that the estoppel notice issued with respect to the issue of uniforms is entirely appropriate, and that, subject to the appropriate notices to employees, the Corporation will be entitled to revert to the strict application of its uniform policy upon the renewal of the collective agreement. For the purposes of clarity, the Arbitrator is satisfied that the requirement for uniforms need not be negotiated within the collective agreement, but remains a matter to be determined in the employer’s discretion, as part of its management rights.

Dated at Ottawa this 26th day of September, 2008

_________________________________

MICHEL G. PICHER

ARBITRATOR