IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
TEAMSTERS CANADA RAIL CONFERENCE
RE: The Union alleges that the Company must not order away from home engineers until both the power and the train for their outbound assignment is ready.
ARBITRATOR: CHRISTOPHER ALBERTYN
APPEARANCES FOR THE COMPANY:
M. Marshall – Senior Manager Labour Relations
V. Paquet – Manager Labour Relations
B. Martingenetti – Transportation
B. Hogan – Retired CN Senior Manager Labour Relations
APPEARANCES FOR THE UNION:
K. Stuebing – Counsel, Caley Wray
R. Caldwell – General Chairperson
P. Boucher – Vice General Chairperson
P. Vickers – Former General Chairperson
J. Robbins – General Chairperson
R. Hackl – Vice President
R. Donegan – General Chairperson
A hearing in this matter was held in Toronto on July 6, 2015.
Ad-hoc matter 2015-4415.
1. This Award concerns a Union policy grievance. The issue is whether the Company must not order away from home engineers until both the power and the train for their outbound assignment is ready.
2. The dispute is reflected in the statement of dispute and the joint statement of issue filed, which reads as follows:
The Union alleges that the Company must not order away from home engineers until both the power and the train for their outbound assignment is ready.
Joint Statement of Issue:
On September 28, 2013, Mr. B Shortell was at the away from home terminal of Montreal. He had gone off duty at 0529 from train M31031 27. Mr. Shortell had been held at the away from home terminal for 15 hours and 56 minutes when he was called for duty at 2125 for train M37321 28 destined for Belleville.
Mr. Shortell reported to work for the return trip. The power for train M37321 28 was not ready at the ordering time. At 2145, the power was released. The blue flags were not removed from train M37321 28 until 2236, 17 hours and 7 minutes after the off duty time.
The Union Position:
The Union contends that Mr. Shortell was ordered contrary to the terms of the Collective Agreement and the Extended Run Principles. The Union contends that Mr. Shortell was called for duty at 2125 to avoid the deadhead costs that were about to be incurred in accordance with the Extended Run Principles.
The Union contends that the Company’s decision to call Mr. Shortell for duty at 2125, after being held at the away from home terminal for 15 hours and 56 minutes but without the train being ready for one hour and 11 minutes after reporting for duty constitutes sharp practice and an unreasonable exercise of management rights in the circumstances.
The Union seeks a declaration that the Company has breached the Collective Agreements and the Extended Run Principles as outlined above. The Union seeks an order that Mr. Shortell be paid 100 miles, in addition to such further relief that the Arbitrator deems necessary in the circumstances.
The Company’s Position:
The Company disagrees with the Union’s position. The Company relies upon the language of the Collective Agreement and the Extended Run Principles. The Company disagrees that there has been any violation of the Collective Agreement and denies that there has been sharp practice.
The parties agree that this matter is properly before the Arbitrator.
FOR THE UNION: FOR THE COMPANY:
(SGD.) R. Caldwell (SGD.) M. Marshall
General Chairman Senior Labour Relations Manager
3. Article 25.1 of the collective agreement provides that “employees will not be held at the away from home terminal more than 14 hours”.
4. The dispute is governed also by the Montreal/Belleville Principles for Extended Run Operations of June 1998. These Principles modify the rules for employees held away at the away-from-home-terminal under the Collective Agreement. Section 2 of the Principles permits employees to be held away from their home terminal for an additional 2 hours beyond the 14-hour maximum allowable time for Belleville crews in Montreal, making a total of 16 hours. This maximum time was intended to enable employees to have sufficient rest and capacity to perform the return portion of their trip. If the 16 hours maximum is reached the employee is automatically deadheaded home and a new crew is called to work the assignment.
5. Section 2 of the Principles reads:
Employees held at the away from home terminal in excess of the maximum allowable time as provided for in the Collective Agreement (14 hours), or as otherwise determined by the proper Committee, will be compensated 100 miles an hour, or portion thereof, for all such time held, beyond the allowable maximum time. The proper Committee will establish an upper limit (cap) beyond the allowable maximum time, after which time, the crew will be sent home.
This penalty will not apply in the case of a train delayed after calling time when such delay is the result of an unforeseen circumstance beyond the Company's control, such as a broken rail.
6. After being held away from their home terminal, if called to work, crews will be required to operate up to 12 hours back to their home terminal.
7. Under Article 25.1, held away time continues only until the engineer is called for duty. Any penalty for extended runs ceases when the crew goes on duty.
8. On September 28, 2014, Locomotive Engineer Shortell, whose home terminal is Belleville, while away at the Montreal away-from-home-terminal, was ordered to protect train M37321 28 (an assignment destined from Montreal to Belleville). By that stage he had been held at the away-from-home-terminal for 15 hours 56 minutes. He was called four minutes prior to the 16 hours, when he would have been deadheaded from the away-from-home-terminal to his home, instead of working the assignment. His train was not then ready for immediate departure. The train required inspection and testing of the air brakes, communicating systems and safety control devices. Mr. Shortell waited a further period for the blue flags to be removed. His train was finally ready to leave 1 hour 11 minutes after he was called for duty. That was 17 hours 7 minutes after his off duty time.
9. The Company suggests this period after Mr. Shortell came on duty until his train departed was well within the reasonable time for the preparation of the power and the train for departure.
10. The Union’s position is that there was nothing unforeseen about the maintenance being performed on both the power and the train. It submits that Mr. Shortell should have been deadheaded because the train was not ready for him, and another crew should have staffed the train.
11. Mr. Shortell submitted a claim for 200 miles in addition to the 275 miles he was paid for, for being held for 2 hours beyond 14 hours maximum held away time. His additional claim for 200 miles was for the 1 hour 7 minutes when he effectively continued to be held away without power and/or train, after being called to duty. The Company denied this additional 200 miles claim. However, the Company acknowledged that the power was not ready at the time Mr. Shortell was ordered, and it agreed to pay him 100 miles for additional held away time, not 200 miles, as he claimed. The reason for declining to pay the additional 100 miles of held away time was because the Company contends the held away time ceased when Mr. Shortell came on duty.
12. The Union claims that the Company ordered Mr. Shortell to assume duty in order to avoid losing him. The Union contends that this was sharp practice, contrary to the Collective Agreement and the Extended Run principles. The Union submits that Mr. Shortell was called to work solely to avoid the costs of deadheading him home and re-crewing the train, when there was no actual assignment ready to be worked. The Union suggests it was a cheaper option for the Company simply to call him and make him wait an additional hour and seven minutes beyond his maximum held away time than it was to assign a fresh crew.
13. The Union submits that an employee who is effectively held beyond 16 hours at the away from home terminal will likely lose the ability to effectively perform an extended run assignment in a safe and optimally attentive manner, that being the concern that motivated the parties to agree to the maximum held away times in the Extended Run Principles.
14. The Union seeks an order that Mr. Shortell be paid 100 miles for the additional held away time waiting to commence his assignment.
15. In November 2005, the Company gave the Union an assurance regarding the application of extended runs:
Claims that crews are being ordered strictly to cease held away payments when it is clearly evident that the train would not be ready or have arrived at the time the crew was ordered are entitled to payment. This does not preclude the fact that certain unforeseen circumstances can happen, nor does the train arriving or being ready for departure within a reasonable time frame constitute payment for held away.
16. The Company says, on the basis of the assurance, that, so long as the train is ready within a reasonable period of time, there can be no claim for any delay. The Company argues that to have different operational requirements for trains staffed by Belleville engineers (those on an extended run) and those by Montreal engineers (those called to duty at their home terminal) would be impractical and would hamper business and customer service. The standard for both should be that the train is ready within a reasonable time frame.
17. The records show that, in the relevant period (one week prior and one week afterwards), the initial terminal time for preparing an engine and train for departure took between 1.5 hours and 3.4 hours. All of these cases were on held away time prior to going on duty. The initial-terminal-time Mr. Shortell had on September 28, 2013 was therefore well within the range of normal initial-terminal-time for building and checking the train for those on held away time.
18. On the facts I do not find sharp practice by the Company, nor an intention deliberately to avoid the costs of deadheading Mr. Shortell and sending him home. Mr. Shortell’s held away status ended upon his going on duty. The preparation of his power and the train occurred within a reasonable period of time. There was no undue delay.
19. Accordingly, given the record of normal preparation for trains to be ready for departure, on the facts concerning Mr. Shortell, the train was ready within a reasonable period of time. Any claim by Mr. Shortell for held away time ceased when he came on duty. He is not entitled to any further payment.
20. In the circumstances, I find no breach of the collective agreement, nor of the extended run principles. The grievance is therefore dismissed.
August 31, 2015 __________