AH606

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

AND

TEAMSTERS CANADA RAIL CONFERENCE

(the “Union”)

GRIEVANCE RE: INITIAL TERMINAL SWITCHING

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:

At the initial terminal a train crew in Conductor Only service was required to double from more than one track to assemble a train which was not as a result of yard tracks being of insufficient length to hold the fully assembled train.

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 requiring a Conductor Only crew to perform such service.

As an example, and for demonstrative purposes only, the parties refer to the case of Conductor S. Stevenson. On April 14, 2009, Conductor Stevenson was ordered Conductor Only Mac Yard to Belleville. Mr. Stevenson noticed that his train was in tracks EO-01, EO-06 and CO-51 and informed that he would be required to lift all the cars from CO-51 then double over to EO-06 spotting it for ground air for a brake test. Then he would be required to double it to EO-01. Mr. Stevenson informed the yardmaster and told him that this would be in violation of articles 41 and 11 as the fully assembled train would in fact have fit in two tracks. He was ordered to comply with the instructions.

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. The Union, given such blatant and indefensible violations, requests that the arbitrator issue the appropriate remedies under the provisions of Addendum 123 of agreement 4.16. [sic]

The Company disagrees.

(signed) J. M. ROBBINS

General Chairman

The facts of the instant case are not complex. Upon taking charge of his train in Macmillan Yard Conductor Stevenson saw that the segments of his train were in three separate tracks. It is not disputed that they could have been accommodated in two tracks. On its face, the fact situation would appear to be in violation of article 11.7(b) of the collective agreement which reads as follows:

11.7 Notwithstanding the provisions of paragraph 11.4, trains operating in through freight service may be operated with a conductor but without an assistant conductor provided that:

…

(b) 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;

Additionally, reference is made to sub-paragraph (d) of article 11.7 which reads as follows:

(d) Notwithstanding the provisions of Article 41, such trains are not required to perform switching in connection with their own train at the initial or final terminal; if switching in connection with their own train is required at the initial or final terminal to meet the requirements of the service, (except to set off a bad order car or cars or lift a bad order car or cars after being repaired), the conductor will be entitled to a payment of 12-1/2 miles in addition to al other earnings for the tour of duty.

In the presentation of its case the Company presents the alternative fact situation involving Conductor D. Griffin, departing Macmillan Yard on October 18, 2008. It appears that in that case Conductor Griffin was required to extract the cars of his train from three separate tracks. Two of the tracks apparently contained segments of two other trains, respectively, which cars were fully brake tested and prepared to go. The third track, referred to as the Hump Track, contained the balance of the cars which would make up the train. The Company’s representative submits that in that situation drawing cars from all three tracks was necessary “… to meet the requirements of the service” within the meaning of article 11.7(d), so that it was permissible.

The Arbitrator cannot agree. It is well settled that the concept of “the requirements of the service” is not the equivalent of the arrangement which would best suit the convenience or efficiency of the Company. While customer service might have a bearing, it is generally external factors, such as safety regulations or operating rules which are intended to be caught by the phrase “the requirements of the service”. That is reflected, in part, in AH-560 where the arbitrator commented:

… 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. …

The rule in article 11 of the collective agreement is, in my opinion, clear. Presumptively, at the initial terminal cars are to be placed in the minimum number of tracks for departure. The limitation is to the number of tracks necessary, to be limited only by the possible insufficiency of track length to hold the fully assembled train. In the case at hand there was clearly no insufficiency of track space to accommodate the train of Conductor Stevenson, or the train of Conductor Griffin, from being contained in two tracks. Nor, for the reasons touched upon above, can I find that any switching was required to meet the requirements of the service within the exception provided in sub-paragraph (d) of article 11.7.

For the foregoing reasons the grievance must be allowed. The Arbitrator finds and declares that on both examples reviewed above the Company violated article 11 of the collective agreement. It should, in the circumstances disclosed, have assigned an assistant conductor to the train in question. Alternatively, it can be found that there was a violation of article 44, in that the Company failed to have the necessary yard switching work performed by yard service employees.

The matter is remitted to the parties for discussions with respect to the appropriate remedy. I retain jurisdiction in the event of their inability to reach agreement upon that question.

Dated at Ottawa this 30th day of April 2010.

_________________________________

MICHEL G. PICHER

ARBITRATOR