AH605

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

AND

TEAMSTERS CANADA RAIL CONFERENCE

(the “Union”)

GRIEVANCE RE: CONDUCTOR ONLY
LIFTING AND SETTING OUT OF CARS AT TERMINALS

Sole Arbitrator: Michel G. Picher

Appearing For The Union:

M. A. Church – Counsel, Toronto

J. M. Robbins – General Chairman, Sarnia

R. A. Beatty – Transition Director, Sault Ste. Marie

Appearing For The Company:

F. O’Neill – Manager, Labour Relations, Toronto

D. VanCauwenburgh – Director, Labour Relations, Toronto

A hearing in this matter were held in Montreal on Monday, April 26, 2010.

AWARD

The following Dispute and Statement of Issue was filed at the hearing by the Union.

DISPUTE:

The lifting of a car or cars at terminals by inbound train crews operating in Conductor Only service and the setting out of a car or cars at terminals by outbound train crews operating in Conductor Only service.

UNION’S STATEMENT OF ISSUE:

It is the Union’s position that the Company is in violation of the Conductor Only Agreement including but not limited to article 11.7 of agreement 4.16 and/or article 41 of agreement 4.16 by directing employees to perform such service.

As an example, and for demonstrative purposes only, the parties refer to the case of Conductor K.J. Cousins dated July 29, 2008 on Train M36231-29. Upon arrival at Belleville, his final terminal, Mr. Cousins was directed by Trainmaster J. Crawford to lift 6 cars from Track BY-26 and double cars from Track BY-15 to BY-27 and return to the train with the cars he picked up and added such to the train he had yarded on Track 2. The cars he lifted were not in connection with his own train and were for furtherance beyond the terminal by the new outgoing crew.

The Union additionally submits that the actions of the Company are in violation of: the Canada Labour Code; decision 315 of the Canada Labour Relations Board; articles 11, 56, 57 and 85 of agreement 4.16; arbitral jurisprudence.

The Union requests that the arbitrator find in favour of the Union and direct the Company to cease and desist from such violations and comply with the collective agreement.

The Union additionally argues that such directives are blatant and indefensible violations of the collective agreement. [sic]

The Company disagrees.

(signed) J. M. ROBBINS

General Chairman

The facts are not in dispute, it is clear that upon arrival at his destination terminal of Belleville Conductor K.J. Cousins was ordered to switch additional cars onto his train. The switching which he performed on that occasion was for the effective marshalling of the train which would be carried onwards by another crew.

The material before the Arbitrator confirms that there were no yard service employees or yard crews assigned to duty at Belleville. The Company’s representative submits that in that circumstance there was a need for switching to be performed at the destination terminal “… to meet the requirements of the service” within the contemplation of article 11.7(d) of the collective agreement.

The Company refers the Arbitrator to article 7.12 of the collective agreement which reads as follows:

7.12 Employees ordered for train service required to perform 5 or more hours switching at initial or final terminals where Yard Service Employees are not employed will be paid for time so occupied at yard rates and if the time required exceeds 8 hours, yard overtime conditions will apply. The time so paid will be deducted in computing overtime and, at the initial terminal, may be used to the extent necessary to make up the basic day (each 4.8 minutes to count at 1 mile). Time so occupied will be computed from the time switching service commences until the train is made up and the engine is placed on the train.

The Company’s representative submits that the foregoing provision confirms the understanding of the parties that road service employees may be required to perform switching at initial or final terminals where no yard employees are employed. That, he submits, is the circumstance at Belleville, so that the Company was properly entitled to require some switching to be performed by Conductor Cousins upon his arrival at the destination terminal of Belleville. Counsel for the Union responds that the terms of article 7.12 were fashioned before the conductor only provisions of the collective agreement, in contemplation of trains being operated by full crews, including an assistant conductor. He questions the plausibility of employees in conductor only service being compelled to perform five or more hours of switching at an initial or final terminal.

While the Arbitrator can understand the position argued by counsel for the Union, this is not a circumstance where a conductor in conductor only service has been compelled to perform extensive switching of the kind contemplated in article 7.12. The more fundamental question is whether the articles of the collective agreement, read together in a consistent fashion, contemplate the kind of switching assignment performed at Belleville by Conductor Cousins on or about July 29, 2008 in relation to train M36231-29.

In AH-524 Arbitrator Weatherill was called upon to consider a number of the conductor only provisions. In dealing with the issue of conductor only crews performing switching he commented, in part, as follows:

… The present case involves articles which provide specifically for conductor only crews. Article 41 deals with the work of yard service employees. Road crews are generally prohibited from performing such work, although “the requirements of the service” may make that necessary, particularly in locations where there are no yard crews. …

(emphasis added)

I am not inclined to disagree with Arbitrator Weatherill’s conclusion that where there are no yard service employees, the requirements of the service, as that phrase is intended within article 11.7(d) of the collective agreement might require a conductor only crew to perform switching which would otherwise be performed by yard service employees, as long as such switching is in connection with their own train.

However, in the instant case it is difficult to conclude that the switching performed by Conductor Cousins was in relation to his own train. In the Arbitrator’s view the grievor’s train must be the train which he operated from Macmillan Yard to Belleville. Requiring him to lift an additional six cars from the Belleville Yard, to be added to the train which would thenceforth be handled by another crew cannot, in my view, be properly be viewed as switching in connection with his own train, as might properly be the case if he were simply dropping cars which he had handled from Toronto to Belleville. This issue was dealt with four-square in CROA 3182. That case concerned a conductor who operated a train between Joffre and Montreal. He was directed to pick up forty-five cars within Montreal Yard, coupling them to his train in anticipation of the movement then being handled onwards from Montreal to Belleville by another crew. In that case the Arbitrator concluded that the switching which the grievor performed within the Montreal Terminal was not in relation to his own train. In that award the Arbitrator made the following comments:

In the instant case the Company submits that there is a distinction to be drawn from the award in CROA 3043. Its representative stresses that in CROA 3043 the Arbitrator was dealing, at least in part, with picking up cars at Rivière des Prairies yard in Montreal “… in order to set them off at Taschereau yard, …”. The Company’s representative submits that it is that distinction which caused the Arbitrator to conclude that the work was not work in relation to the crew’s own train. He maintains that the instant case is different, in that the cars collected within the greater Montreal yard which are the subject of this grievance were not set off at Taschereau yard or Turcot yard, but rather remained within the same train, for furtherance onward to Toronto by the operation of another road crew. That, the Company maintains, is permissible within the language of article 41.1 of the collective agreement.

With the greatest respect, the Arbitrator cannot agree. As is evident from the broader language of CROA 3043, the Arbitrator expressly rejected the position of the Company, which was that “the crew operating the train from Garneau to Taschereau is only being called upon to perform switching in connection with “their own train” in that cars picked up at RDP yard will be transported to Toronto, via Taschereau, as part of the same train.” It is that proposition which the Arbitrator declined to sustain, for reasons related within CROA 3043. With respect, having regard to the well-established jurisprudence cited above, as well as the past practice of more than thirty years in relation to the movement of cars between Joffre and Montreal, and onwards to Toronto, the Arbitrator has some difficulty appreciating how the Company can assert that the movement of cars from one point inside the switching limits of Montreal to another point for furtherance onward by another road crew can be said to be switching “… in connection with their own train” in the sense contemplated by article 41.1 of the collective agreement.

In the result, the Arbitrator is compelled to conclude that the switching which the grievor was required to do at Belleville was not in relation to his own train. It was not, in other words, switching permissible within the contemplation of article 11.7(d) of the collective agreement. That conclusion does not, in my view, hamper the Company’s ability to operate efficiently. The lift of additional cars which was required could be performed by the outbound crew, as it would properly be switching in relation to their own train, without offending the provisions of article 11.7 of the collective agreement.

For the foregoing reasons the grievance is allowed. The Arbitrator finds and declares that the Company did violate article 11.7(d) of the collective agreement by requiring Conductor Cousins to perform switching at Belleville which was not in relation to his own train. The matter is remitted to the parties for discussion as to the appropriate remedy, while I retain jurisdiction in the event that they are unable to agree.

Dated at Ottawa this 30th day of April 2010.

_________________________________

MICHEL G. PICHER

ARBITRATOR