IN THE MATTER OF AN ARBITRATION

AWARD

On January 15, 1992 the parties executed the Conductor-Only Agreement governing operations in Western Canada. The substance of that agreement is now essentially contained in article 15 of the collective agreement. Over the years the parties encountered a number of differences with respect to the interpretation and application of the Conductor-Only Agreement. That resulted in the reference to this Arbitrator of a substantial set of submissions governing a number of fact situations upon which the parties had disagreements with respect to the application of the conductor-only provisions. That dispute originally involved the presentation of facts and arguments over a period of six days, resulting in an award, now referred to as AH-560, dated August 14, 2004.

Because of continuing disagreements and an increasing backlog of grievances the parties requested the Arbitrator to engage in a mediation-arbitration process. That process resulted in the settlement of certain disputes and the clarification of issues which remain unresolved and which have become the subject of this arbitration.

With respect to the ongoing disagreements which give rise to this further arbitration, the parties agreed to place certain fact situations before the Arbitrator once again, with a view to obtaining rulings from which guiding principles can be derived. To that end each of them has presented a number of fact scenarios, five from the Company and a greater number from the Union, upon which they seek an arbitral ruling. Additionally, the Union goes beyond the request for a declaration and asks the Arbitrator for cease and desist directives as well as an order that a joint committee of the parties be formed to review individual conductor-only grievances, with the committee to have the first opportunity to determine an agreed remedy for each alleged violation, failing which the Arbitrator should fashion a remedy pursuant to the special remedy provisions of the collective agreement.

At the outset, it should be noted that a substantial amount of the dispute between the parties stems from the meaning and interpretation of the phrase “the requirements of the service”. That phrase appears as an exception to the limitation on switching at terminals as reflected in article 15.2(b)(iv) of the collective agreement which reads as follows:

(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.

The Union maintains that the Company has given an overly broad meaning to the phrase “the requirements of the service” so as to impose a greater burden of switching on the crews of conductor-only trains. The Company, for its part, maintains that the phrase does contain an element of discretion in the Company to respond to customer needs and operational adjustments in such a way as to maximize efficiency, particularly in the assembling and yarding of trains by conductor-only crews at initial and final terminals.

By way of background, the award in AH-560 did deal, to some extent, with the meaning of the phrase “the requirements of the service”. At p. 37 the following comment appears in that regard:

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.

The Union alleges that the Company has relied unduly on the foregoing passage to impose burdens upon conductor-only crews which essentially ignore the fundamental principles of the original Conductor-Only Agreement, giving precedence to Company requirements and related operational efficiencies in a manner not contemplated by the collective agreement. In the Union’s view the actions of the Company have effectively resulted in the reduction of yard crews and the improper operation of trains on a conductor-only basis when in fact those trains should, by reason of their switching requirements, include an assistant conductor. The Company counters that it is operating within the principles originally agreed to, stressing that by the very terms of the Conductor-Only Agreement the parties jointly accepted that the requirements of the service would ultimately be determined by the Company.

The Company also challenges the Union’s raising of the remedy provisions of the collective agreement; it maintains that in fact a specific remedy is to be found in the collective agreement for the alleged infractions, namely the application of the run-around provisions whereby a yard employee or an assistant conductor has been deprived of a call from the spareboard to perform work which should not have been assigned to a road crew on a conductor-only basis. In that regard reference is made to article 155 of the collective agreement which governs run-arounds.

Before turning to the scenarios presented by the parties it is useful to produce once again the language of article 15.2 of the collective agreement, which effectively constitutes the provisions of the Conductor-Only Agreement as incorporated into the current collective agreement. It reads 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.

En Route

(v) Such trains will make no more than three stops en route 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 en route (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.

I turn to consider the various scenarios put forward by the parties. The first issue is characterized by the Union as “Outbound crews being required to pick up from more than the minimum number of tracks.”

1 – Conductor Gaborieau – Symington Yard June 2, 2007

This fact scenario is one presented by both parties, concerning train M345. Before Mr. Gaborieau received his call for train M345 at 03:45 hours, the inbound crew had yarded the train in track WR-05 and then doubled over the head-end twenty-five cars into track WR-07. They then returned their locomotive consist to the shop track and went off duty.

Following his arrival at work Mr. Gaborieau was instructed to take control of his locomotive consist and then to couple to three business cars which were situated on the shop track. Because business cars, by operating rules, are required to be separated from cars of pipe which are characterized as a load prone to shift (LPS) the conductor was next required to switch out a buffer car from track WD-03 to be located between the business cars and the LPS on his train. He was then required to pick up a cut of cars from track WD-03, said to be eighteen by the Union and twenty by the Company, following which he proceeded to track WR-05 where he picked up a cut of fifty-six cars in that track. He then doubled all of the cars to track WD-03 where the assembled train backed into the clear to perform an air test.

The fundamental complaint of the Union is that the cars were not in a minimum number of tracks at the initial terminal. It should be stressed that a review of the Union’s brief shows no objection to the switching done in relation to the buffer car. The sole basis of objection which the Union raises is that the entire train could have been previously assembled for collection out of two tracks, including the business cars. In the Union’s view the fact scenario so presented violates the fundamental requirement found in article 15.2(b)(ii) which mandates that “at the initial terminal doubling is to be limited to that necessary to assemble the train for departure account yard tracks being of insufficient length to hold the fully assembled train.” As noted, no objection is taken with respect to the switching done in relation to the buffer car.

The Arbitrator is satisfied that the Union’s position is correct. It is not disputed that tracks WD-03 and WD-05 could have accommodated all of the cars on Conductor Gaborieau’s train, including the thee business cars. No explanation is given as to why the cars were not in fact assembled in the minimum number of tracks, being those two tracks. In the result, doubling was not limited, as is plainly contemplated by the Conductor-Only Agreement, to that number of tracks dictated by spatial limitations.

The Company suggests that the situation was made necessary by reason of the short turnaround time of the arrival of train M-345 and its takeover and departure under Conductor Gaborieau “on connection”. The Arbitrator has some difficulty with that argument given the substantial lapse of time involved. In the Arbitrator’s view at most what that would suggest is that the inability to be able to pre-marshal the elements of the train into a minimum number of tracks should have contractually required the Company to call an assistant conductor to work on the departing train. This cannot fairly be characterized as a circumstance arising from the requirements of the service. And, in any event, the Union’s objection is not in relation to switching performed but rather in relation to the unnecessary amount of doubling to assemble the train from three tracks when it could have been fully contained within two tracks.

For these reasons the Arbitrator declares that the Company did violate article 15.2(b)(ii) of the collective agreement in the assignment given to Conductor Gaborieau at Symington Yard on June 2, 2007.

2 – Conductor Gibson – Winnipeg Terminal October 23, 2007

Conductor Comeau – Edmonton Terminal December 19, 2006

The Union next raises the scenario of the train operated by Conductor Gibson from the initial terminal of Winnipeg on October 23, 2007, train 347. The unchallenged record reveals that the conductor picked up 101 cars from track CO-31 and then placed them in track ER-09. He was then required to proceed to the west end and tie on to track ER-03, picking up an additional sixteen cars. He then doubled the sixteen cars onto the 101 cars previously moved to track ER-09 and finally doubled the 117 cars over to the twenty-nine cars remaining in track ER-03.

The Union’s challenge is that the Company made no effort to have the cars in question placed in the minimum number of tracks or to have them properly marshalled in advance. Absent any explanation from the Company, the Arbitrator is compelled to agree with the Union that the facts in relation to Conductor Gibson’s scenario confirm, on the balance of probabilities, that at the initial terminal doubling was not limited to that necessary to assemble his train merely on account of yard tracks being of insufficient length to hold the fully assembled train or significant segments of it. The Arbitrator therefore declares that the assignment of Conductor Gibson on October 23, 2007 as the terminal of Winnipeg was in violation of article 15.2(b)(ii) of the collective agreement.

The unchallenged record before the Arbitrator also indicates that in the assembling of his train Conductor Comeau was compelled to make six separate moves involving four separate tracks. There is nothing in the materials before the Arbitrator to rebut the Union’s allegation that in fact the Company made no significant effort to assemble train 526 in the minimum number of tracks or that the moves required of Conductor Comeau were compelled by the fact that the tracks were of insufficient length to hold either the fully assembled train or significant segments of it. In the circumstances, the Arbitrator is compelled to again find a violation of article 15.2(b)(ii) of the collective agreement.

3 – Conductor Yarema – Winnipeg Terminal April 27, 2007

In the Arbitrator’s view a different conclusion is indicated in respect of the next scenario raised by the Union, that concerning Conductor Yarema departing on train A-43981-26 on April 27, 2007 at the Winnipeg terminal.

In the Arbitrator’s view it is instructive to review the explanation of the events concerning Conductor Yarema’s assignment as related in a letter from Senior Vice-President of Operations – Southern Region, Gordon Trafton, dated January 27, 2008. That letter reads, in part, as follows:

A review of the actual work performed by the grievor reveals that all the work performed was within Symington yard proper. First, he was instructed to lift 92 cars from West Departure track (WD01) and place all but 10 of those cars into East Departure track (ED07). East Departure track (ED07) was a clear track. He was then instructed to pick up 28 cars from East Departure track (ED03) and then double all 38 cars onto the tailend of his train in (ED07). And finally the grievor was instructed to pick up 68 cars from East Receiving track (ER03) and double those cars to the train (ED07). The total train included 188 cars and 11,266 feet in train length.

It is significant to note that track WD01 has a track capacity of 6320 feet and the traffic in WD01 (92 cars) equated to 5,460 feet, leaving 813 feet of room. Track ER03 has a track capacity of 6,234 feet and the traffic picked up in ER03 (68 cars) equated to 4,037 feet, leaving 2,197 feet of room. Track ED03 has a track capacity of 6,287 feet and the traffic picked up in ED03 (28 cars) equated to 1,631 feet, leaving 4,656 feet of room.

Clearly the train itself once built in Symington yard could not fit in any of the tracks involved in this dispute. Therefore double-overs were inevitable due to insufficient room to hold the entire train.

It is important to understand that the traffic in track ED03 (28 cars) and ER03 (68 cars) was not doubled over together simply because the traffic in ER03 (68 cars) was not in Winnipeg until shortly before train A 439 81 26 was ordered.

The Arbitrator must agree with the Company that the short lapse of time between the arrival and placement of traffic in ER-03 and the ordering of train A-439-81-26 did make it impracticable to double over that traffic into one of the other tracks containing segments of Conductor Yarema’s train. That fact, coupled with the fact that the train itself could not fit in any one of the tracks does, in the Arbitrator’s opinion, bring this scenario within the contemplation of article 15.2(b)(iv). This was switching in relation to the conductor’s own train made necessary to meet the requirements of the service by reason of the exigencies of time. In the result, no violation of article 15 of the collective agreement is disclosed. It may be noted that in the instant case there was a lapse of approximately one hour and twenty minutes between the placement of the incoming cars and the time ordered for the grieving conductor’s train. The Arbitrator is satisfied that that lapse of time did justify the move required by the Company. I make no comment as to the point in time at which the Company would have incurred the obligation to move the recently arrived traffic so as to minimize the moves of the conductor-only crew. In such circumstances the merits of specific cases must be determined on their own particular facts. Clearly, however, there would be a point at which the lapse in time between the arrival of the traffic and the assembling of the departing train would require the Company, presumably by the use of yard engines, to move the recently arrived cars into another track so as to conform with the requirement of using the minimal number of tracks contemplated in article 15.2(b)(ii). The two hours and thirty-five minutes of greater lapse time in the Gaborieau scenario discussed above, with the different conclusion that the Company did commit a violation, should be instructive in that regard. It should also be noted that in the review of the materials concerning this grievance the Arbitrator respects the without prejudice nature of the settlement discussions which occurred between the parties, a principle apparently overlooked in the Union’s brief.

All of the foregoing scenarios concern what the Union characterizes as the first issue, namely outbound crews being required to pick up from more than the minimum number of tracks. As noted above, that includes the scenario of Conductor Gaborieau, also selected by the Company for the purposes of obtaining a ruling on principle.

The Union characterizes the next issue as “Inbound crews yarding the train at the final destination yard and then spotting another track with a block of traffic and then spotting a second track with another block of traffic even though the traffic would fit in one of the tracks”.

In essence, the position of the Union is that a conductor-only crew arriving at its destination terminal is to yard its train into a single track and that any doubling which may be required can only be on account of yard tracks being of insufficient length to hold their train. On the other hand the Company maintains that incoming crews can be can be required to perform switching in connection with their own train at the final terminal when they do so to meet the requirements of the service, albeit they are then entitled to the premium payment contemplated in article 15.2(b)(iv).

4 – Conductor Zarecki – Symington Yard November 20, 2007

The first scenario, presented by both parties, concerns the assignment of Conductor Zarecki in the yarding of train Q-10321-19 on November 20, 2007 at the final terminal of Symington Yard.

In dealing with the issue of the yarding of trains it is important to bear in mind the provisions of Addendum No. 25 of the collective agreement. That letter, issued by the Company with the agreement of the Union on February 13, 1998, concerns the concept of the “designated cut” or “DC”. As appears from the text of the letter, signed by Company officer D.W. Coughlin, the parties expressly agreed to limit the Company’s ability to require incoming crews to disassemble and store segments of their train, albeit the Company does retain the ability to order a designated cut of cars to be placed in a second yard track.

In that regard Addendum No. 25 reads, in part, as follows:

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 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).

As can be seen from the foregoing, the concept of a designated cut arises only in the circumstance of yard congestion, where it becomes necessary to double over onto more than one track. As is evident from the final paragraph quoted above, the Company does not have the discretion to effectively direct employees to marshal trains upon arrival by breaking their train into segments of cars for furtherance to separate destinations.

It is also significant to appreciate that during the course of the mediation aspect of the mediation-arbitration process the Union agreed that the Company can, in addition to a designated cut, direct an incoming conductor-only train crew to set out a single cut of cars to intermodal tracks after making the initial designated cut.

The foregoing understanding appears to be reflected in the fact scenario concerning the yarding of inbound train Q-10321-19 by Conductor Zarecki on November 20, 2006 at the terminal of Winnipeg. It does not appear disputed that in that case Mr. Zarecki was instructed to yard his train in Symington Yard by first pulling into track WR-04. He was then given a designated cut on his train and told to set over the block of traffic to WR-05. He was next instructed to deliver a block of cars from his train to the Winnipeg Intermodal facility, also in Symington Yard, which he did. It appears that in that circumstance Conductor Zarecki was paid a “DC” for making the designated cut, which is a premium of 12-1/2 miles and he also claimed and was paid an additional premium of 12-1/2 miles for a “PF” which is a conductor-only payment of final terminal in respect of switching to meet the requirements of service. Although it appears that the Union initially grieved the treatment of Mr. Zarecki, following the mediation-arbitration process the Union agreed that the Company was in fact entitled to first instruct Conductor Zarecki to make a designated cut and to separately require him to make an additional move to set out sixteen cars to the intermodal yard. In the result, there is no conflict between the parties with respect to the scenario of Conductor Zarecki and the Arbitrator need make no ruling in respect of it.

5 – Conductor Lintick – Calgary, April 28, 2007

The same cannot be said with respect to the scenario involving Conductor Lintick in the yarding of train A-44251-27 at Calgary on April 28, 2008. The scenario concerning Conductor Lintick and the conflict between the parties is well captured by the following passage under the heading “Dispute” found in the Company’s brief filed in relation to the claim of Conductor Lintick:

Union Grievance R-1233-08-856, claiming violation of articles 102, 15.2(b)(iii), Addendum 25 of agreement 4.3 as well as Ad Hoc arbitration award No. 560 when Conductor Lintick was instructed to yard his train in track SO02 at Sarcee yard in Calgary. The grievor was then instructed to spot intermodal traffic from his train to tracks SO24 and SO23. Inbound conductor only crews yarding the train in a track at the final destination yard and then spotting one track with a block of traffic and then spotting a second track with another block of traffic even though the traffic would fit in one of the tracks utilized. Company maintains the spotting of traffic in these circumstances is a switch to meet the requirements of the service pursuant to article 15.2(b)(iv) of the 4.3 agreement. Union disagrees.

In keeping with the principles governing the scenario of Conductor Zarecki, described above, the Union does not object to the designated cut which was first given to Conductor Lintick. Nor does it object to the fact that Conductor Lintick was next instructed to set off cars at the intermodal yard or facility. It is the events at the intermodal facility which give rise to the grievance of Conductor Lintick. In effect, it does not appear disputed that all of the cars which Conductor Lintick set off in intermodal facility could have been set off into a single track on one side of the intermodal pad. However, to facilitate unloading and to increase the efficiency of operations the Company instructed Conductor Lintick to make two separate set offs at the intermodal facility, one in each track on either side of the intermodal pad. In other words, cars which could have fit into a single track were set off into two separate tracks purely for reasons of greater efficiency.

The Company submits that that instruction was permissible as it constituted switching at the final terminal “to meet the requirements of the service” as contemplated within article 15.2(b)(iv).

With respect, the Arbitrator cannot agree. To interpret the words as the Company would have it would, I think, be tantamount to stating that conductor-only road crews can be compelled to perform yard work whenever it is more efficient for them to do so from the standpoint of customer service. That is clearly not the tenure of the language of article 15. In the Arbitrator’s view, the requirement to separately set off cars at the intermodal facility, albeit in one track if a single track will accommodate them, is manifestly in keeping with meeting the requirements of the service as contemplated within sub-paragraph (iv). However, the separate breaking up and marshalling of cars to separate positions on the intermodal pads is of a different order of work, going beyond the requirements of the service to what is in effect the undue performance of yard work in dismantling a train, beyond the contemplation of the Conductor-Only Agreement.

The Arbitrator must therefore find and declare that the assignment given to Conductor Lintick at Calgary on April 28, 2008, was in violation of the provisions of article 15 of the collective agreement.

6 – Conductor Knox – Kamloops, February 26, 2008

The next scenario in connection with inbound traffic raised by the Union concerns the operation of train 107 into Kamloops by Conductor Knox on February 26, 2008. In the yarding of train Q-10731-21 Conductor Knox was instructed to pull into the north track and cut off all but 115 cars. He was then instructed to set twenty-three cars into track KF-02, then set thirty-three cars back to the north track. Following that he was instructed to set a further five cars to KF-02 and then an additional five cars back to the north track. Next he was instructed to set ten cars to track KF-02 and, finally, set twenty-nine cars back to the north track.

As should seem obvious, the yarding assignment given to Conductor Knox is in no way consistent with the conductor-only limitations provided in article 15 of the collective agreement. He was plainly required to perform extensive marshalling in a manner beyond the provisions of article 15 or the designated cut provisions of Addendum 25. The Arbitrator must therefore find that the scenario in respect of Conductor Knox also involves a violation of article 15 of the collective agreement.

7 – Conductor Miller – Edmonton, December 16, 2007

The same conclusion must be drawn with respect to the assignment given to Conductor Miller on train 107 in Edmonton on December 16, 2007. As the material before the Arbitrator confirms, without controversy, Conductor Miller was required first to pull into track B-107 in the intermodal yard to cut off the tail end thirteen cars from his train. He was then instructed to set off seventy-two cars to track B-104, thirteen cars to track B-103 and another twenty-five cars then to track B-104 and the final thirteen cars of his consist back into track B-103. Again, it is difficult to understand the assignment given to him as being in any way consistent with the provisions of article 15. Clearly what Conductor Miller was assigned was the strategic marshalling of cars in the disassembly of his train upon arrival in Edmonton. That is plainly beyond the scope of the concept of switching in relation to his own train to meet the requirements of service as contemplated within article 15.2(b)(iv) of the collective agreement. The Arbitrator is therefore compelled to declare a violation of the collective agreement in that regard.

8 – Conductor Gibson – Winnipeg Terminal, December 29, 2007

The next scenario in relation to the yarding of incoming trains presented by the Union relates to the example of Conductor Gibson on incoming train 106 at Winnipeg on December 29, 2007. Having reviewed the evidence the Arbitrator is satisfied that the eight separate moves required in the yarding of train 106 at Fort Rouge did violate the collective agreement, as the work was plainly marshalling.

9 – Conductor Bolianaz – Winnipeg August 7, 2007
Conductor Guile – Winnipeg, June 19, 2007

The final dispute concerning the yarding of trains involves a scenario selected by the Company concerning the grievance of Conductor Bolianaz in the yarding of train 302 in a series of yards at the terminal of Winnipeg on August 7, 2007. The Union has also addressed the scenario of Conductor Bolianaz under the issue heading of “Crew being required to set out or yard segments of their train in a series of yards out of sequence”.

The facts concern the arrival of train 302 travelling eastbound from Rivers into Winnipeg, with a final destination yard of Symington within the Winnipeg terminal. Upon arrival at the outer limits of the Winnipeg terminal Conductor Bolianaz was instructed to continue eastward on the Rivers and Redditt Subdivisions to Transcona Yard at mile 254.7 on the Redditt Subdivision. It is common ground that that move involved him in proceeding eastward past Beach Junction. According to the Union’s account he cut off the tail end forty-two cars of his train into track WM-07 at Transcona Yard and thereafter set the remaining thirty-four cars into track WM-08. He was then instructed to re-couple to the cars he had left in track WM-07 and to proceed back westward to Beach Junction from where he made his way into Symington Yard where he set the remainder of his cars into track ER-07. It does not appear disputed that the return travel westward to Beach Junction was approximately 2.8 miles.

In essence the Union objects to the non-sequential setting off of cars in a series of yards at Winnipeg. As the Union would have it, the Conductor-Only Agreement would have required that the cars destined to Symington be set off first, with the movement continuing eastward ultimately to Transcona. In the submission of its representatives the movement of the train past the access to Symington Yard at Beach Junction, onwards to Transcona and then back again to Symington is analogous to a transfer movement. That, the Union submits, should properly be yard work.

The Union likewise raises the circumstances of train 115, operated by Conductor Guile westward from Sioux Lookout to Winnipeg on June 19, 2007. In a manner similar to the train of Conductor Bolianaz, Conductor Guile was directed to travel westward past Symington Yard to Fort Rouge where he set over fifty-four cars to track WF-32 and then returned thirty-six of the fifty-four cars back into Track WF-34, where he had initially yarded his train. He was next required to run around the eighteen cars set out in track WF-32, tying on to the east end of the cars which he then was instructed to take in a reverse direction eastward back to Symington Yard. He was finally instructed to spot the cars in track W-102 in Symington.

The Union submits that the Arbitrator’s decision in AH-560 dealt with the sequential setting off of cars within a series of yards at the destination terminal and that neither that award nor the Conductor-Only Agreement contemplates that cars can be set off in a series of yards other than in the geographic sequence of the yards.

With respect, the Arbitrator has some difficulty with that submission. Firstly, the most that can be said is that the fact situation presented to the Arbitrator in AH-560, referred to at page 43 of the award concerning the yarding of the cars of train no. 201 at a series of yards in Edmonton on February 22, 2002, simply addressed the fact situation there at hand, which, as the Arbitrator noted, a normal sequential setting off of cars in three separate yards all in relation to the crew’s own train.

Obviously, the scenarios concerning Conductors Bolianaz and Guile are different. While they did set off their cars in a series of yards, they did so in a non-sequential fashion, being required to backtrack to some degree. On what basis can that movement be said to violate the provisions of the Conductor-Only Agreement or article 15 of the collective agreement? I can see none. Firstly, there is nothing expressly addressing the situation in the language of article 15.2, save perhaps the reference to switching to meet the requirements of the service at the final terminal, as contemplated in article 15.2(b)(iv). Significantly, the parties’ agreed questions and answers, an operative part of the original Conductor-Only Agreement, contain the following Q&A:

Q.14 A train is called form 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 Will be considered as falling within the provision of Clause 3.1(2)(d) for which they will be paid a payment of 12.5 miles in addition to final terminal time.

As can be seen from the foregoing the parties contemplated that a conductor-only crew might be required to set out at two or more different yards within a given terminal. There is no language within the Q&As or within the provisions of article 15 of the collective agreement which in any way limits the order or sequence in which set offs are to be made within a series of yards at a single terminal. Obviously there may be valid operational reasons for setting off cars in a series of yards out of sequence. The Arbitrator can see nothing in the facts relating to the movements made by Conductors Bolianaz and Guile as violating the provisions of article 15 of the collective agreement.

The next issue to be addressed is characterized by the Union as “A conductor-only crew being required to pick up cars and set out cars to the same track at an enroute location”. Work to be performed enroute by conductor-only crews is addressed in articles 15.2(b)(v) and (vi) of the collective agreement which provide as follows:

En Route

10 – Conductor Simunac – Vavenby, September 7, 2007

A scenario to be addressed in relation to that issue, advanced by both parties, is the handling of train A-41651-07 by Conductor Simunac between Kamloops and Blue River on September 7, 2007. Conductor Simunac’s train was to set off ten cars at a lumber mill at Vavenby. The grievor’s train was required to set off and lift cars at Vinsulla at mile 123.0 on the Clearwater Subdivision as well as at Vavenby at mile 53.0 on the Clearwater Subdivision. It is the movements at Vavenby which are objected to by the Union.

It is noteworthy that at Vavenby the lumber mill which was being serviced has a single storage track. As described by the Company, the grievor was required to stop his train movement on the main line and to cut off ten empty lumber rail cars from his train. He was then required to couple onto six loaded lumber cars in the Vavenby siding which he then pulled from the siding and set over to his train. Finally, he spotted empty lumber cars for loading back into the siding.

The Union submits that the movements performed by Conductor Simunac at Vavenby constitute switching by reason of the fact that he was picking up and setting off cars from a single track. That is not disputed by the Company. The Company nevertheless submits that such switching is permissible within the terms of article 15 of the collective agreement.

The Arbitrator must agree with the submission of the Company. Article 15.2(b)(vi) expressly contemplates that trains may be required to perform switching enroute. While the general rule is that they are not to perform switching enroute, that paragraph specifically makes the exception for switches “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;”. In the Arbitrator’s view it cannot be denied that the switching performed at Vavenby was plainly in relation to the taking on or setting out of cars. That, it would appear, is precisely what is contemplated within sub-paragraph (vi). While that paragraph cites as an example the placement of cars so as to comply with operating rules and marshalling requirements, there is nothing to suggest that the example given is the only possible exception. The fundamental question is whether the switching is “required in connection with the taking on or setting out of cars”. That was plainly the case at Vavenby in the operation conducted by Conductor Simunac. The same conclusion must be drawn with respect to other examples raised by the Union, including Conductor Raniseth at Vavenby and Conductor McLoughlin at Endako on November 30, 2005. The same is also true for the movement performed by Conductor Humphrey on train 416 at Vavenby on November 17, 2007.

In summary, at enroute locations where cars are taken on or set off from a single track, the related switching is switching enroute which is contemplated as permissible within the provisions of article 15.2(b)(vi) and no violation of the provisions of article 15 of the collective agreement is disclosed in the scenarios as presented.

For all of the reasons related above, the Arbitrator has found that in certain scenarios the Company did violate the provisions of article 15 of the collective agreement while in other scenarios it did not. Nor is the Arbitrator able to accept that the run-around provisions in the collective agreement provide the specific remedy for these violations. Those provisions, which for example are found in respect of Road Service at article 155 of the collective agreement, deal with the redress for employees on spareboards or in unassigned pool service whose rights are not respected. They do not deal with questions such as the need to assign a yard crew or to use an increased crew consist, as contemplated within the conductor only provisions.

With respect to those situations of violation the Arbitrator directs that the Company forthwith cease and desist from such violations and further directs that it pay to the Union and its affected members an appropriate remedy for each violation. To that end the Arbitrator directs the Company establish, with the cooperation of the Union, a joint committee to review and discuss individual grievances in light of the findings of general principle made in this award for the purposes of establishing the appropriate remedy for each violation. Should the parties be unable to agree in that regard the Arbitrator retains jurisdiction with respect to the ultimate determination of any appropriate remedy. To that end I remain fully seized of this matter for the purposes of the interpretation or implementation of this award, including the determination of any appropriate remedy with respect to individual grievances should the parties be unable to agree in that regard.

Dated at Ottawa this 22nd day of July 2009.

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MICHEL G. PICHER

ARBITRATOR

AH583