AH611

IN THE MATTER OF AN ARBITRATION

Between:

CANADIAN NATIONAL RAILWAY COMPANY

(“the Company”)

and

TEAMSTERS CANADA RAIL CONFERENCE

(“the Union”)

GRIEVANCE RE: MATERIAL CHANGE – EXTENDED RUN OPERATION BETWEEN KAMLOOPS & McBRIDE, B.C.

SOLE ARBITRATOR: Michel G. Picher

APPEARING FOR THE COMPANY:

Donna Crossan – Manager, Labour Relations, Prince George

Kerry Morris – Senior Manager, Labour Relations, Edmonton

Doug Rhydrchuk – Assistant General Manager, Edmonton

Patricia Payne – Manager, Labour Relations, Edmonton

APPEARING FOR THE UNION:

Michael A. Church – Counsel

Bryan Boechler – General Chairman, Edmonton

Bruce Willows – General Chairman, Edmonton

R. A. Hackl – Senior Vice-General Chairman, Edmonton

Wray McClelland – Local Chairman, Kamloops

Timothy Carrroll – Local Chairman, Jasper

R. Ermet – Vice-General Chairman, Edmonton

M. Sorba – Local Chairman, Kamloops

A hearing in this matter was held in Calgary, Alberta on November 8, 2010.

AWARD

On June 18, 2009 the Company gave notice to the Union, representing the locomotive engineers’ and conductors’ respective Committees of Adjustment, of its intention to institute an extended run between Kamloops and McBride, operating on the Clearwater, Tête Jaune, Robson and Albreda subdivisions, to be operated entirely by Kamloops based employees. Although the matter came before the CROA&DR arbitrator, it was determined that the parties had not completed the Board of Review process, and that they should do so. In the result, a Board of Review meeting was held on October 8, 2010 with recommendations being unanimously issued on October 20, 2010 to the parties. It is common ground that as regards the substance of the recommendations of the Board of Review, both parties are in full acceptance of them. They are unable, however, to agree on the formulation of the memorandum of agreement which is to put into effect the recommendations of the Board of Review. That dispute is the subject of this arbitration.

The dispute and history of the issue are reflected in the statement of dispute and the ex parte statement of issue

DISPUTE:

The terms and conditions of agreement associated with operational change served to the Union pursuant to article 89.2 of Agreement 1.2 and article 139.1 of Agreement 4.3 specific to the implementation of extended run service between Kamloops and McBride.

COMPANY’S STATEMENT OF ISSUE:

On June 18, 2009 the Company issued notices pursuant to article 89.2 of Agreement 1.2 and article 139.1 of Agreement 4.3 pursuing implementation of extended run train service between Kamloops and McBride, B.C. The parties met on September 17, 2009, and on May 5th and 6th, 2010 with the intent to discuss operational considerations and address any adverse effects flowing from the change. The parties were unable to reach an agreement.

On June 4, 2010 the Union [TCRC (LE)] submitted a grievance alleging that the Company’s Material Change notice did not provide a full description of the change contemplated. The Company disagrees.

On June 14, 2010 the Union [TCRC (CTY)] submitted a grievance alleging that the Company’s Material Change notice did not provide a full description of the change contemplated. The Company disagrees.

The following issues regarding implementation of extended run remain in dispute between the parties:

● Need for twelve (12) hours service before crew released for rest

● Method of addressing adverse effects associated with lost work to Jasper terminal.

● Material Change notice properly addresses implementation of future extended run trains in the Kamloops and McBride corridor.

The Company maintains that the parties have concluded negotiations as provided for under article 89 of Agreement 1.2 and article 139 of Agreement 4.3.

The real nature of the conflict in the case at hand is the degree to which the memorandum of agreement should provide elaboration of the nature of the obligations and protections emanating from the recommendations of the Board of Review which, as noted above, have been agreed to by both parties. The document proposed by the Company is relatively spare, being a two page document. The Union’s proposed memorandum of agreement, on the other hand, is considerably more elaborate and detailed, covering some five pages. This would appear to be, insofar as can be recalled, the first occasion on which the parties have agreed on the substance of provisions intended to minimize the adverse impacts of a material change but have been unable to agree on the final wording of their memorandum of agreement.

In the Arbitrator’s view it is obviously important for the memorandum of agreement to adequately represent all of the substantive elements of the recommendations of the Board of Review, recommendations which have been fully accepted by both sides. Counsel for the Union submits that the proposed memorandum of agreement which it puts forward more adequately captures the substance of the recommendations of the Board of Review. He submits that the briefer version proposed by the Company does not capture all of the elements of the Board of Review recommendations, and should therefore not be adopted by the Arbitrator.

The Company’s representative explains that in the employer’s view the memorandum of agreement should be simple and straightforward, suggesting that the formulation advanced by Union might be prone to prompt disagreements as to interpretation, causing future conflicts. He submits that what he qualifies as ambiguous language in the Union’s document renders it potentially problematic for the purposes of future administration.

In resolving this dispute I have carefully read report of the Board of Review and have compared it with the proposed memoranda of agreement put forward by both sides. In my view there is one instance in which the Union’s proposed formulation would, as the Company suggests, have some potential to spawn disagreements in the future. Paragraph iv of the Union’s proposed memorandum of agreement deals with rescue service and proposes the following language:

All rescue service will be performed in accordance with the collective agreements and in keeping with the discussions between the parties during the Board of Review.

The Arbitrator must agree with the Company that the adoption of the standard of “…discussions between the parties…” as contractual language is of dubious value and could well invite disagreement as to the precise nature of those discussions at the Board of Review. It does not appear disputed that in fact what the parties did agree to was that rescue service would be performed as contemplated under the collective agreements. With respect to this aspect of the case, I am compelled to conclude that the Company’s concern is well founded.

Having carefully reviewed the balance of the Union’s document, however, I cannot find that it is fraught with ambiguity or uncertainty so as to invite future misunderstandings and disputes. In fact, having compared the language of Union’s proposal to the language of the recommendations of the Board of Review, I see a substantial closeness between the language and spirit reflected in both documents. Conversely, the Arbitrator does have concern that the Company’s proposal does not in fact touch all bases. For example, the last sentence of the report of the Board of Review under the heading “Workload Allocation” reads as follows:

Additionally the Company be restricted, under the terms of this notice, to operate no more extended runs, between Kamloops and McBride, th[a]n can be accommodated (off set), by the reallocation of work to Jasper crews between Jasper and Kamloops.

A review of the Company’s proposed memorandum of agreement does not reveal language which would clearly indicate the above-noted limitation being placed upon the Company. While it may be implicit that the overall operation must be such as to respect the workload allocation contemplated, I am compelled to conclude that the Union’s formulation is more clear and therefore more compelling in this regard. Additionally, I find that the Union’s proposed memorandum of agreement is more complete and explicit to the extent that it makes greater and more frequent reference to specific collective agreement provisions as well as specific facts, such as the citing of the 222.3 miles to be applied to the calculation of additional crew starts for Jasper based employees. While the employer’s formulation that “…additional extended run crew starts will be assigned to Jasper Terminal…”, coupled with the workload allocation formula already in effect as between Kamloops and Jasper would arguably lead to the same result, there is a greater degree of clarity in the Union’s proposal.

For the foregoing reasons, subject to one qualification, the Arbitrator awards that the memorandum of agreement shall be in the language proposed by the Union, as reflected at tab 4 of the document which it presented to the Arbitrator. However, the language of section iv of the memorandum of agreement shall be amended from that proposed by the Union with the elimination of the words “…and in keeping with the discussions between the parties during the Board of Review.”

I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.

Signed at Ottawa, Ontario this 15th day of November, 2010

“Michel G. Picher”

________________________________

Michel G. Picher

Arbitrator