IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
GRIEVANCE RE: MATERIAL CHANGE NOTICES
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
Wm. Hlibchuk – Counsel,
J. Torchia –
Director, Labour Relations,
K. Morris – Sr.
Manager, Labour Relations,
D. Brodie –
Manager, Labour Relations,
J. Krawec – Manager,
Labour Relations (ret’d),
There appeared on behalf of the
M. Church – Counsel,
J. Robbins – General
P. Vickers – General
B. Willows – General
B. Boechler – General
R. Hackl –
Vice-General Chairman, TCRC-CTY,
T. Markewich – Vice-General
T. Thompson – Vice-General
W. Franko –
Vice-General Chairman, TCRC-CTY,
R. Beatty – Transition Director, TCRC-CTY, Sault Ste Marie
R. Lee – Local Chairman, TCRC(LE), Vancouver
A hearing in this matter was held in
This arbitration involves four grievances filed on behalf of four Union General Committees of Adjustment, each of them alleging a violation of their respective collective agreements. They maintain that the Company wrongfully utilized the material change provisions in their collective agreements to effectively compel employees to work outside the scope of their collective agreements and under the scope of another collective agreement in a manner contrary to the overall scheme of all four collective agreements. The Company maintains that it is entitled to give the material change notices which it did and that no violation of the collective agreements has occurred.
above, four collective agreements are involved. Collective agreement 4.16
governs the terms and conditions of employment of Train and Yard Service
Employees, including Conductors, on Eastern Lines. The geographic scope of the
collective agreement involves all territory to the east of
The nature of the dispute is outlined in the statement of dispute and joint statement of issue filed at the hearing. It reads as follows:
The applicability of the Material Change in Working Conditions Article as contained in collective agreements 1.1, 1.2, 4.3 and 4.16 (Articles 78.7, 89.7, 139.1(l) and 79.7 respectively).
STATEMENT OF ISSUE:
The Company on/about
It is the
1. the Company is prohibited from utilizing the Material Change in Working Conditions article of the applicable collective agreements to change the Seniority Districts and Geographical Territories governed by the above noted collective agreements; and
2. the Material Change provisions contained in the four (4) separate and distinct collective agreements are limited solely to the Geographical Territory and Seniority Districts specifically identified in each of the respective collective agreements; and
3. the parties have previously agreed that the Material Change in working Conditions cannot be utilized outside of the geographical territory governed by the specific collective agreements.
In the alternative, and without prejudice to the foregoing, the
The Company disagrees with the
(SGD.) P. VICKERS (SGD.) D. VANCAUWENBERGH
GENERAL CHAIRMAN DIRECTOR, LABOUR RELATIONS
(SGD.) B. WILLOWS
(SGD.) B. R. BOECHLER
(SGD.) J. ROBBINS
discloses that on
That changed with the notice provided to the four general chairmen of the General Committees of Adjustment for the respective regions, which prompted these grievances. In essence, the Company proposes to have western crews operate in an eastward direction beyond Sioux Lookout, through Armstrong and east to Hornepayne. Conversely, Hornepayne crews would operate, for the first time, beyond Armstrong, westward to Sioux Lookout. That is expressed as follows in the letters of notice provided to the respective general chairmen:
Current operations include the following:
Crews home stationed at Hornepayne operate extended
run service (11 hours) between
Crews home stationed at Sioux Lookout operate in
single subdivision service (10 hours) between Sioux Lookout,
Changes to be implemented involve:
Crews home stationed at Hornepayne operating between
Crews home stationed at Sioux Lookout operating between Sioux Lookout and Hornepayne over the Allanwater and Caramat Subdivisions (383 miles).
The Company does not anticipate any adverse effects to employees at Hornepayne. However, as contemplated by the material change article 79.1c of Agreement 1.1 the Company is prepared to discuss (although not limited to) the following items:
1) Hours of Duty
2) Equalization of Miles
3) Work Distribution
4) Learning the Road
The Company is prepared to meet and discuss these changes as outlined in the collective agreement at your earliest convenience. …
position, argued on behalf of all four GCAs, is relatively straightforward. It
submits that each of the four collective agreements is a discrete and complete
jurisdictional document governing the terms and conditions of the employees who
fall under it. The Company cannot, the Union argues, purport to reassign
employees who are home terminalled and work in the territory governed by one
collective agreement to perform work assignments into territory governed by a
different collective agreement, absent the
The provisions of the four collective agreements here at issue are not materially different with respect to the establishment of seniority and seniority districts, the establishing of extended runs or the introduction by the Company of material changes in working conditions.
By way of example, article 79 of collective agreement 4.16, governing conductors and assistant conductors on Eastern Lines, reads, in part, as follows:
Material Change in Working Conditions
79.1 Prior to the introduction of run-throughs, changes or closures of home stations (including those brought about by the sale of a line), or the introduction of new technology initiated solely by the Company and having a significantly adverse effect on employees, the Company will:
(a) Give at least 180 days’ advance notice to the Union of any such proposed change, with a full description thereof and details as to the anticipated changes in working conditions; and
(b) Negotiate with the Union measures to minimize any significantly adverse effects of the proposed change on employees but such measures shall not include changes in rates of pay.
(c) While not necessarily limited thereto, in the case of run-throughs and other changes described in this paragraph 79.1, the matters considered negotiable will include the following:
(1) Appropriate timing
(2) Appropriate phasing
(3) Hours on duty
(4) Equalization of miles
(5) Work distribution
(6) Appropriate accommodation
(8) Seniority arrangements
(9) Learning the road
(10) Use of attrition
(11) Deferred separation
NOTE: For the purpose of this Article 79, home station is defined as the terminal where the spare board is maintained and/or from which relief is supplied.
Article 22A of collective agreement 4.16 expressly establishes extended run terminals and reads, in part, as follows:
22A.1 Extended runs in through freight service will be established between the following home terminals in accordance with Addendum No. 101.
Hornepayne – Armstrong
Toronto – Capreol
Capreol – Hornepayne
Buffalo – Oshawa
Joffre – Mont Joli
Joffre – Campbellton
For the purposes of the document, Sarnia-Port Huron are the same, and Windsor-Detroit are the same, Buffalo-Niagara are the same and the established travel allowances are applicable at these locations.
No. 101, which is in the form of a letter of understanding dated May 5, 1995,
establishes a set of principles governing extended runs for both conductors and
assistant conductors as well as locomotive engineers. That document recognizes,
on its face, that the extended run agreements are in relation to
During the negotiations at
It was decided in order to protect employees that a set of principles would be used to guide implementation and ongoing operation of extended runs. These principles are as follows:
A similar statement of principles of extended runs is found under a letter of the same date, forming Addendum No. 65 of collective agreement 4.3 governing train and yard service employees on the Prairie and Mountain Regions and extends, in identical terms, to locomotive engineers on the same territory.
the Union submits that all of these provisions reflect the agreement and
understanding of many decades whereby the parties have recognized that the
separate General Committees of Adjustment, for locomotive engineers East and
West and for conductors and assistant conductors East and West, have always
involved discrete collective agreements separate and distinct in geographic
scope. He stresses that each of them defines a self-contained employment
“world” which does not overlap into the work jurisdiction of any of the others
and into which none of the others can claim work or exercise jurisdiction. On
that basis, a conductor or assistant conductor who works under collective
agreement 4.3 in Western Canada cannot be assigned to work, in whole or in
part, under collective agreement 4.16 in
the Union stresses that the Company has never before implemented extended runs
by way of a notice of material change. He draws to the Arbitrator’s attention
the bargaining history between the parties whereby extended runs have always
been negotiated with the
the Union stresses that the
Whereas the Company acknowledges that all work between Current and Jellicoe belongs to and must be manned by employees covered by Agreement 4.16 working in the 20th seniority district and
Whereas the Company has requested that the Union enter into an Agreement under the provisions of Article 85 of Agreement 4.16 to allow the use of employees working under Agreement 4.3 so as to man work between Current and Jellicoe when there are no 20th seniority employees available at the terminal of Thunder Bay and,
1. When, on a trip by trip basis, a vacancy occurs on any assignment at the terminal of Thunder Bay the Company shall canvas all Thunder Bay East employees first prior to calling employees from the Thunder Bay West board as provided under the provisions of Appendix A.
NOTE: Appendix A is the Western Lines calling procedure
2. All permanent vacancies shall be advertised as outlined in Article 48 of Agreement 4.16.
3. At the change of time all assignments shall be advertised to the former 15th seniority district as described in Article 48 of Agreement 4.16.
4. If no bids are received by the Company, then the Company may advertise such positions to employees covered by Agreement 4.3 under the terms and conditions of Appendix A.
It is further understood and agreed that neither party shall invoke any or all dispositions of this Agreement as constituting a precedent or as constituting in any way admissions or concessions by the other party.
appears that not long thereafter, on
alternative submission, counsel for the Union submits that should the
Counsel for the Company makes a substantially different argument. He submits that the Company retains the ability to implement extended runs and that it is entitled to invoke the material change provisions of the collective agreements to do so. Counsel explains that the Company seeks to gain operational efficiencies by the utilization of longer trains, now made possible by technological changes in respect of a distribution of locomotive power and the construction of longer sidings, allowing greater operational efficiency. It is the Company’s view that by the proper operation of the material change provisions the introduction of an extended run between Sioux Lookout and Hornepayne, running through Armstrong, can be implemented with minimal, if any, adverse effects on the employees in the home terminals of Sioux Lookout and Hornepayne.
Counsel invokes the decisions of the Canadian Railway Office of Arbitration & Dispute Resolution confirming the important prerogative of management to schedule and assign work. In that regard, he makes reference to CROA&DR 3595 where the arbitrator commented:
… There are few managerial prerogatives more important than the scheduling and assignment of work. A surrender of authority over such a key issue, however, should obviously be supported by clear and unequivocal language. …
Reference is also made to CROA 2718, 3196, 3327, 3504 and 3615. The Company asserts that those cases stand for the proposition that any claim of exclusive work ownership must be supported by clear and unequivocal language. It submits that no language is to be found, for example in collective agreement 4.16, which would prohibit the Company from assigning employees working under collective agreement 4.3 from doing work within the geographic territory governed by collective agreement 4.16.
also cites CROA 1572 in support of
his argument that by these grievances the
also notes to the Arbitrator’s attention that since 1998 there has been a
single bargaining unit certificate for each running trades craft, which applies
counsel submits that estoppel cannot apply in the case at hand. Arguing that no
provision of the collective agreement expressly prohibits the assignment of
work across the East-West dividing line and that there has been no
representation by the Company that such an assignment might not be made, the
principles of estoppel canvassed in CROA
2650 simply do not apply. In counsel’s submission the facts of the instant
case more closely resemble those of CROA
2024 where it was found that the Company was free to implement a direct
deposit payroll system, and that it was not prevented from doing so simply
because a different system had been used in the past. In support of the notion
that parties to a collective agreement are not rigidly required to maintain
past practices, reference is further made to CROA 2638. Counsel also directs the Arbitrator to the rejection of
a jurisdictional claim made by the
I turn to
consider the merits of the respective positions of the parties. In doing so,
however, I consider it important to reflect briefly on the historical and
structural realities of the railway industry as it has evolved in
The trade unions which have traditionally represented running trades employees in the Canadian railway industry do not generally operate through units referred to as “locals”. Rather, as has particularly been the case within the running trades, collective agreements are negotiated and administered by units of national or international unions generally referred to as General Committees of Adjustment or GCAs. Historically, the operations of the instant Company in respect of running trades have involved separate units for the purposes of collective bargaining both by territory and by craft. Consequently, the craft of locomotive engineers has evolved to be represented by separate General Committees of Adjustment, for the Company’s Eastern Lines and for the Company’s Western Lines. Each of those GCAs holds its own separate agreement for its respective territory and administers the terms of those agreements in a relatively independent fashion. The same is true for the craft of trainmen, conductors and yardmen. They likewise negotiate and administer separate collective agreements, also on the basis of the territorial scope of Eastern and Western Lines, through their respective GCAs.
years there have been changes in the designation of the collective bargaining
agent. In the result, a single international trade union now holds the
certificates as bargaining agent for all of the running trades employees of the
Company. It also appears that under that framework the bargaining for the
running trades occurs at a single table, albeit separate collective agreements
emerge from that process. In the result, the concept of the GCA has been
preserved. With respect to locomotive engineers the GCA for Western Lines is
involved in the negotiation and the exclusive administration of collective
agreement 1.2, the GCA for Eastern Lines is involved in the negotiation and
exclusive administration of collective agreement 1.1. With respect to the
conductors’ trade the GCA for
There is, it must be stressed, a resulting collective bargaining structure which, although it has been subject to changes in the identity and structure of bargaining agents over the years, has preserved an extremely long-standing institutional framework for the bargaining of collective agreements and the administration of those agreements during their term, based on geographic and craft divisions. While the collective agreements east and west may be similar, they do have some distinct and different provisions.
collective agreements here at issue do not contain scope clauses of the kind
commonly seen in contemporary industrial or white collar institutional
collective agreements. That is so, in substantial part, because the existence
of these collective agreements and the bargaining relationship which underpins
them dates from well before the advent of labour relations boards and what have
now become well recognized certification processes for the establishing of
bargaining units. In fact, the parties to these grievances are heirs to what
may be among the longest standing collective bargaining relationships in
The Arbitrator must confess to some difficulty with the argument advanced by the Company. Its counsel quite correctly points out that there is no article within any of the four collective agreements which expressly states that work within the geographic area described within the collective agreement can be said to be jurisdictionally exclusive to the employees under that collective agreement.
With respect, that argument fails entirely to appreciate the history and evolution of the collective agreements here at issue. The Company in the instant case came into existence in the early decades of the 20th century, initially as a Crown Corporation, through the government’s acquisition of a number of large and small railways. That process, even after the more recent privatization of the Company, has continued to ebb and flow to this day. It is therefore not surprising to see that the collective agreements do not contain a traditional scope clause, but rather make reference to terminals, seniority districts and subdivisions as a means of defining the scope of their operation.
I consider it significant that the Union’s assertion that as long as there has been a division between Eastern Lines and Western Lines for the purposes of the four collective agreements here under consideration, employees who work under one or other of the collective agreements have never been assigned outside the territory to which that agreement applies. The lone exception is the Current and Jellicoe (Kinghorn) arrangement, made by express agreement. There have been many circumstances in which material change has involved assignments which overlap the seniority districts within each of the collective agreements. Those circumstances have been dealt with, whether by negotiation between the parties or by arbitrated resolution, under the express terms of the material change provisions of the collective agreements at least since the introduction of extended runs. It is in that context and within that framework that the material change provisions, for example article 79 of collective agreement 4.16, have involved the negotiation or arbitration of adjustments in seniority arrangements and work distribution as between employees at various home terminals.
Company is unable to point to any specific instance in which a material change
has involved the assignment of employees who work on Western Lines to perform
work on Eastern Lines, or vice versa. Indeed, as stressed by one of the
basis can it now be concluded that the Company’s prerogative to implement
material changes is unconstrained by the territorial limitations of the four
collective agreements? For the reasons touched upon above, the history and
evolution of these collective agreements has effectively been based on an
understanding that work within the Eastern and Western Lines, as defined within
the collective agreements, is to be performed exclusively by employees who work
under those agreements. I find it difficult to reject the suggestion of counsel
To be clear, in the Arbitrator’s view the collective agreements do, by their express and implied terms, affirm that work within the geographic areas described within them is to be performed exclusively by employees who hold seniority under those collective agreements. That, in my view, is a conclusion which must be drawn by necessary implication from the very scheme and framework of the four collective agreements. If it were otherwise, and the submission of the Company is correct that there can be no claim of exclusive work ownership in these geographic areas, what would prevent the Company from hiring an entirely separate cadre of employees to perform work in the same territories, in disregard of the terms of the collective agreements? What would prevent the Company from assigning employees from Eastern Lines, to perform various kinds of work on Western Lines, as needs dictate, over a territory in which they hold no seniority? To simply ask these very fundamental questions is to answer them. To allow the position of the Company and dismiss these four grievances would be to disregard the most fundamental jurisdictional underpinnings of the collective agreements and, in my view, the well entrenched understanding of the parties over many years.
the foregoing analysis be viewed as visiting undue hardship upon the Company.
It obviously remains open to the employer to negotiate with the
What of the suggestion made in the Company’s argument, as reflected in the decision of the Canadian Industrial Relations Board cited above, that multiple collective agreements within a single bargaining unit are not appropriate? The Arbitrator obviously does not exercise the discretion or jurisdiction of the CIRB with respect to commenting upon or ordering changes in the fundamental structures which the parties have long fashioned for collective bargaining. It is obviously within the rights of the employer to seek an order from the CIRB which might effectively result in a single collective agreement governing both running trades crafts on a national basis. However, as an arbitrator I must take theses collective agreements as I find them. For the reasons discussed above, they each reflect an understanding of the parties, over many years of practice, that work jurisdiction in respect of Eastern and Western Lines, just as the terms of conditions of employment for those respective territories, are separate and exclusive to the GCAs responsible for each of the four collective agreements here in issue. Given the language and framework of the four collective agreements, the history of material change provisions as they have evolved and the extensive history of the collective bargaining framework within the industry and within the Company, it would require clear and unequivocal language within the collective agreements to persuade the Arbitrator that it is open to the Company, by the exercise of material change prerogatives, to effectively assign work under one collective agreement to employees who work under another. No such practice has ever been followed or claimed and no such language has been cited to me in the instant case.
If I am
incorrect in my interpretation of these collective agreements and the
limitations on the Company’s prerogative with respect to implementing a
material change with trans-territorial consequences, I would also be inclined
to accept the
For all of
the foregoing reasons the Arbitrator finds and declares that the material
change provisions of the four collective agreements do not extend to permitting
the Company to assign employees who hold seniority and work under one
territorial collective agreement to perform work over lines which fall under
another territorial collective agreement. Any such arrangement must be the
subject of negotiation and agreement with the
Dated at Ottawa this 18th day of June 2010
(original signed by) MICHEL G. PICHER