AH608

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

AND

TEAMSTERS CANADA RAIL CONFERENCE

(the “Union”)

GRIEVANCE RE: MOVEMENT OF TRAIN WITHIN SARNIA YARD

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:

D. VanCauwenburgh – Director, Labour Relations, Toronto

F. O’Neill – Manager, 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 by the Union at the hearing.

DISPUTE:

The transfer of traffic between Sarnia and Port Huron utilizing road crews.

UNION’S STATEMENT OF ISSUE:

It is the Union’s position that the transfer of cars, wholly within the switching limits is the work defined in article 41 to which yardmen have sole entitlement. It is the Union’s position that the Company is in violation of article 41.

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 are not in dispute, although the parties did use different examples from different dates. For the purposes of simplicity the Arbitrator refers to the dates provided by the Company. On October 29, 2008 a GTW road crew yarded their train in Sarnia Yard. They were then ordered onto a different train, Train M39331-29. It is common ground that that train originated at Macmillan Yard, Toronto and was ultimately destined to Chicago. The GTW road crew then took charge of Train M39331-29 and, as directed, lifted an additional twenty-three cars from track AO 15 in Sarnia Yard. They then proceeded to Port Huron, leaving the completed train within the yard at Port Huron which, it is agreed, forms part of the greater Sarnia Yard. It appears that the GTW road crew then went off duty and the train was shortly thereafter handled out of Port Huron, westward towards Chicago by another GTW road crew.

The Union grieves that in fact what transpired was a transfer movement by the GTW road crew from one point to another point within the greater Sarnia Yard, a move which it maintains was contrary to article 41 of the collective agreement. The Company maintains that the work performed by the GTW road crew was not a transfer and was not yard work. Its representatives submit that the lifting of the twenty-three cars, their coupling onto Train M39331-29 and the movement of the assembled train was “work in relation to their own train” by the GTW road crew, and fell within the exception to the prohibition of yard work by road crews.

Article 41.1 of the collective agreement bears on the resolution of this grievance. it reads as follows:

41.1 Except as provided in Article 12 of Agreement 4.16, the following will apply: switching, transfer and industrial work, wholly within the recognized switching limits, will at points where yard service employees are employed, be considered as service to which yard service employees are entitled, but this is not intended to prevent employees in road service from performing switching required in connection with their own train and putting their own train away (including caboose) on a minimum number of tracks. Upon arrival at the objective terminal, road crews may be required to set off 2 blocks of cars into 2 designated tracks.

The Arbitrator has some difficulty with the position of the Company. It would appear that the argument that the GTW crew were handling “their own train” is available to the Company in the instant case only because the collective agreement governing the GTW employees allows them, as occurred, to handle a particular train into a terminal, yard it and then take possession of an entirely different train which they might then operate in the opposite direction. It is in that sense that the train here in question arguably became “their own train” for the purposes of the GTW road crew. What happened in substance, however, is that the GTW road crew essentially added cars to an existing train which had already been yarded in Sarnia and moved the train consist to another section of the Sarnia Yard, in Port Huron where it would be taken over by another road crew for furtherance westward. In that circumstance, to say, as the Company does, that the train was “their own train” of the GTW road crew for the purposes of article 41.1 of the collective agreement is, I think, not consistent with the underlying purpose of article 41.

As reflected in prior awards of the CROA&DR, article 41 is viewed as a critical provision of delineating the work jurisdiction of yard service employees under collective agreement 4.16. (See, e.g. CROA 3043, 3182 and the ad hoc awards of the arbitrator in the grievances of Conductors J. Butler [AH-556] and W. Namink [AH-557], both dated August 13, 2004.)

In the instant case, a slide show prepared by the Company with respect to the application of article 41 of the collective agreement well captures the concept of the work of yard service employees. Page 7 of the printout of that video contains the following statement:

Yard service employees have the rights to work performed exclusively within switching limits.

How can the work performed by the GTW road crew in relation to train M39331-29 be qualified as anything but work which was performed exclusively within the switching limits of the Sarnia Yard? I can see no basis for concluding other than that the work which they performed was entirely within the yard, essentially involving the assembly of a train and the staging of the train from the Sarnia section of the yard to the Port Huron section of the yard, all within the Sarnia Yard switching limits. While it may be true, as the Company argues, that the simple movement of the train beyond the switching limits at Port Huron might have fundamentally changed the characterization of the work performed by the road crew, an arbitrator is compelled to take the case as he or she finds it.

From a purposive point of view, it appears to me that article 41 of the collective agreement views the phrase “their own train” as describing a consist of cars handled by a road crew across some portion of road territory and into or out of a yard. That description simply does not square with what occurred in relation to Train M39331-29 on October 29, 2008. Whatever the internal rules or provisions of the GTW collective agreement may provide, for the purposes of article 41 of the collective agreement which governs this dispute, I cannot conclude that the GTW road crew performed a movement in relation to “their own train” within the meaning of article 41.1 of the collective agreement, as the entirety of their handling of the train in question took place within the switching limits of the Sarnia Yard. What they did was to transfer a train within the switching limits of a yard.

The grievance must therefore be allowed. The Arbitrator finds and declares that the Company violated article 41.1 of the collective agreement as alleged by the Union. The matter is remitted to the parties for the purposes of determining a remedy, with the Arbitrator retaining jurisdiction in the event that they are unable to do so.

Dated at Ottawa this 30th day of April 2010.

_________________________________

MICHEL G. PICHER

ARBITRATOR