IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN NATIONAL RAILWAY COMPANY
(The “Company”)
-And-
CANADIAN NATIONAL RAILWAYS POLICE ASSOCIATION
(The “Association”)
2016-649
RE: Alleged violation of Article 6 and Addendum 13-A of collective agreement 28.2 when the constable “on call” was not required to respond to an incident on July 29, 2015, at mile 73.5 of the Rivers subdivision in Manitoba. Attached as Schedule A is the form of grievance submitted by the Association in relation to this matter.
ARBITRATOR: CHRISTINE SCHMIDT
APPEARANCES FOR THE COMPANY:
D. Laurendeau – Manager Labour Relations
D. Fisher – Senior Director Labour Relations and Strategy
S. Will – Assistant Chief CN Police
J. Latulippe – Deputy Chief CN Police
APPEARANCES FOR THE ASSOCIATION:
P. Nugent – Counsel, Nugent Law Office, Edmonton
G. St. George – President, CN Railway Police Association
W. Telis – Secretary, CN Railway Police Association
A hearing in this matter was held in Toronto on May 13, 2016.
Ad-hoc matter 2016-649.
AWARD
The nature of the dispute before the Arbitrator is reflected in the joint statement of issue filed, which reads as follows:
Dispute:
Alleged violation of Article 6 and Addendum 13-A of collective agreement 28.2 when the constable “on call” was not required to respond to an incident on July 29, 2015, at mile 73.5 of the Rivers subdivision in Manitoba. Attached as Schedule A is the form of grievance submitted by the Association in relation to this matter.
Joint Statement of Facts:
On July 29, 2015, at 20:17, the CN Police Communication Centre was contacted and notified that an eastbound train circulating on the Rivers subdivision had struck a vehicle at mile 73.5. The RCMP responded to the incident but no member of the bargaining unit was called to attend at the scene of the accident. Inspector Dan Ritchie of the CN Railways Police was contacted. The Communications Centre log for this incident is attached as Schedule B. The officer on call that night was Joram Jardine, who was located in Brandon, Manitoba, approximately one hour from the location of the incident.
The Association contends that in light of the nature of the incident, that the Company was required to dispatch the CN constable “on call” to respond to the incident in accordance with Addendum 13-A of the collective agreement. The Association also contends that the Company violated Article 6 of collective agreement 28.2, when the Inspector, who was on duty at the time, performed work which the Association argues is within the exclusive jurisdiction of its membership. Also attached as Schedule C is an “Emergency Call List” issued to Communications Centre employees on or about November 28, 2013.
The Association claims that the constable “on-call” should be paid at least 3 hours at the overtime rate of pay as per the collective agreement for these alleged violations of the collective agreement. The Association also seeks declarations that the collective agreement has been breached and directions that the Company cease using non-bargaining unit personnel to do bargaining unit work and comply with Addendum 13-A by calling officers on call.
The Company declined the grievance and disagrees with the Association’s contentions.
The Facts
On July 29, 2015 at 20:17 hours the Company Communication Centre (“CC”) was notified that a train on the River Subdivision had struck a vehicle at Mile 73.5. The CC informed the RCMP, which sent an RCMP officer to the scene. (It is not entirely clear when or at whose direction, but local emergency services were also directed, and did attend at, the scene of the accident). The CC then informed Inspector Richie of the accident. He was covering the territory that day on behalf of another inspector. Inspector Ritchie was approximately 1000 miles away from the accident scene at the time. Inspector Ritchie asked that the CC keep him informed of developments. It would appear, although no mention is made in the CC log for July 29, 2015, that Inspector Ritchie instructed the CC that it was not necessary to dispatch the on-call CN Police Constable (“PC”) to the scene. In any event, the PC on call, who was about one hour away from the accident, was not instructed to attend at the accident.
Immediately after speaking to Inspector Ritchie, the CC received a call from a 911 operator in Manitoba advising of the name of a witness to the accident. Further calls between the CC and the RCMP ensued. At approximately 21:26 hours an RCMP operator contacted the CC inquiring about the CN Police’s involvement regarding the accident, and was patched through to Inspector Ritchie. At approximately 21:34 hours Inspector Ritchie reported back to the CC the status of the individual who sustained minor injuries in the accident. Thereafter, it appears that the CC communicated with Winnipeg Police and the RCMP, and sent an e-mail to the on-call PC, Inspector Ritchie and the inspector for whom Inspector Ritchie was covering that night.
The provisions relevant to the determination of the grievance are Addendum 13-A, and articles 6.6 a) and e) and 6.13 of the collective agreement between the parties.
Up until 2001, off-duty CN Police Constables (PCs) were not required to perform on-call/standby work. In the course of collective bargaining in 2000, the parties reached agreement regarding an on-call/standby allowance (Addendum No.15). They further agreed that PCs called to service by attending at the scene would be paid overtime or, at their option, equivalent time off. In the event that the on-call PC did not attend the scene but dealt with the call by telephone, the parties agreed that the PC would be entitled to equivalent time off only.
Addendum No. 13-A is a letter dated September 8, 2008 that the parties agreed to add to the renewal collective agreement. It is evident from a reading of Addendum No. 13-A that it was a compromise between the parties to address the Association’s concern that PCs on call were required to be available on 12 of 14 days at a stretch. The compromise reached was to reduce the period of standby to one week “on” and one week “off” at one-man points and during the PC’s off week, the on call assignment would be covered by the PC in the adjacent territory. The new arrangement, however, could not result in any diminution of service or response time. The entire Addendum No. 13-A is appended to this decision. It states in part:
In the spirit of working together and as part of this early resolution to our negotiations, we agreed to a one week on/one week off calls/standby arrangement for all one-man points on the following terms. Both parties agree that this arrangement has to be administered with the understanding that emergency calls must be covered. In other words, there cannot be a diminution of police service or response time to calls as a result of the implementation of this arrangement.
During the week when an employee at a one-man point is not on-call, the employee in the adjacent territory shall be expected to respond to calls on his/her behalf. The inspector shall, if required make a determination as to whether or not an emergency has arisen that necessitates immediate response by the employee at a one-man point not on-call. An illustrative emergency call list is attached to this addendum.
…
The illustrative emergency call list reads as follows:
|
EMERGENCY CALL LIST |
|
EMERGENCY WHEN NOT ON CALL |
|
ACCIDENT WITH INJURIES OR FATALITIES |
|
ALARM IN CN POLICE STATION AND VP RESIDENCE |
|
ARSON ,B & E, THEFT AND VANDALISM IN PROGRESS ON CN PROPERTY |
|
DERAILMENT IMPEADING [sic] TRAIN MOVEMENT ON MAIN LINE |
|
EMERGENCY MEASURE PROCEDURE (IMPEADING [sic] TRAINS MOVEMENT) |
|
DRUG & ALCHOOL AS REQUESTED BY THE INSPECTOR |
|
DEATH OR INJURY ON CN PROPERTY |
|
LABOUR DISPUTES |
|
SHOOTING AT TRAINS BY FIREARMS |
|
ALL OTHER EMERGENCY CALLS AS DESIGNATED BY THE INSPECTOR |
|
EMERGENCY WHEN ON CALL |
|
ACCIDENT WITH INJURIES OR FATALITIES |
|
ALARM IN CN POLICE STATION AND VP RESIDENCE |
|
ARSON ,B & E, THEFT AND VANDALISMIN PROGRESS ON CN PROPERTY |
|
DERAILMENT IMPEADING [sic] TRAIN MOVEMENT ON MAIN LINE |
|
EMERGENCY MEASURE PROCEDURE (IMPEADING [sic] TRAINS MOVEMENT) |
|
DRUG & ALCHOOL |
|
DEATH OR INJURY ON CN PROPERTY |
|
LABOUR DISPUTES |
|
SHOOTING AT TRAINS BY FIREARMS |
|
ALL OTHER EMERGENCY CALLS AS DESIGNATED BY THE INSPECTOR |
|
TRAINS DELAYS MORE THAN 30 MINUTES |
|
TRESPASSERS (AFFECTING TRAINS MOVEMENT) |
|
SUSPICIOUS PACKAGE AFFECTING TRAIN MOVEMENT |
|
POLICE OFFICER NEAR OR ON TRACK |
|
|
|
DEBRIS ON THE TRACKS |
|
STONING OF TRAINS |
|
NEAR MISS |
|
SEAL EXCEPTIONS |
|
TRESPASSER NOT AFFECTING TRAIN MOVEMENT |
NOTE: If Communication Centre staff is unsure whether to call a constable for a specific incident, they must contact the Inspector to determine if the constable is required to be called.
Article 6 relates to Hours of Service and Overtime. Article 6.6 a) and e) provide:
Overtime:
6.6
a) Time worked by employees on regular assignments, continuous with, before,
or after their regularly assigned hours of duty shall be considered as overtime
and shall be paid at one and one-half times the hourly rate of pay. Every
effort will be made to avoid the necessity for overtime; however, when
conditions necessitate, employees will perform pre-authorized overtime work as
directed by management.
…..
e) Overtime shall be worked only by direction of proper authority. Where
advance authority is not obtainable, overtime will not be allowed unless claim
is made to the proper authority within 72 hours from the time service is
performed.
Article 6.13 provides:
6.13
The Company will not use its supervisory employees to perform in the normal
course any duties usually performed by employees of the bargaining unit so as
to avoid the overtime provisions of this Agreement or so as to reduce the size
of the bargaining unit. It is recognized, however, that in cases of legitimate
demands of the service or emergency, the Company may temporarily assign
supervisory officers if employees of the bargaining group are not available.
Having regard to the above provisions, the Association argues that the emergency calls received pertaining to those listed as “EMERGENCY WHEN ON CALL” are bargaining unit work to which on-call PCs must be called. It asserts that the plain meaning of “illustrative” used in the last sentence of the reproduced portion of Addendum 13-A is a non-exhaustive list of emergency situations that the Association says assists to “elucidate a broader category.” The Association argues that the PC on call must be called to deal with any of the emergencies on the list. Any other interpretation of “illustrative” is unreasonable in the Association’s view.
The Association says that the reference in the second sentence of the second paragraph of the portion of Addendum No. 13-A reproduced above to an inspector making a determination as to whether or not an emergency has arisen necessitating an immediate response by an on-call employee, only applies to unclear situations that may or may not be emergency situations that fall within the non-exhaustive illustrative list of emergency situations which require an on-call PC’s response. Otherwise, the inspector would always have to make that determination for every incident, and there is no suggestion in Addendum No. 13-A that the inspector must do so in each and every case. The Association concedes that the Company may, in addition to having an on-call PC respond, also wish to have the inspector involved in an emergency, and also agrees that an inspector may deal with the emergencies listed in Addendum 13-A if no on-call PC is available.
There is no dispute that the work at issue is overtime work. Accordingly, article 6.13, which prohibits the use of supervisory officers from performing normal bargaining unit work so as to avoid overtime (subject to the circumstances set out in that article), in the Association’s view precludes the Company from having inspectors attend to “this work” rather than on-call constables. Even if Addendum No. 13-A does not expressly mandate that emergency overtime work be assigned to and carried out by on-call constables, article 6.13 achieves that result because the work of on-call PCs attending to emergency calls is work usually performed by the bargaining unit. In the alternative, the Association submits that the Company's past practice gives rise to an estoppel as the Company did not “successfully raise any changes to this practice in bargaining” such that it is precluded from altering the practice for the duration of the collective agreement.
Decision
My task is to ascertain the intent of the parties as reflected in Addendum No. 13-A to the collective agreement between the parties. It is by virtue of this Addendum that the Association asserts an on-call PC must be called when any of the emergencies listed on the page arise.
To succeed in its primary argument, which essentially is that PCs have a proprietary right to the work of monitoring and/or attending to the enumerative “illustrative” emergency situations arising while on call, the language of the collective agreement must be clear and unequivocal in that regard.
The Association says that language of Addendum 13-A supports its contention. I do not agree. The purpose of Addendum 13-A was to reach a compromise between the parties to balance the Association’s members’ interests to not be overly taxed by the demands of on-call/standby duty and the interests of the Company to ensure on-call coverage for emergencies. The purpose of Addendum 13-A was not to confer upon the Association and the bargaining unit members a right to be called out in each and every case of an emergency. The illustrative list does not confer such a right. It merely illustrates the kinds of emergencies for which the Company is entitled to demand coverage by PCs. Addendum 13-A was the negotiation of the process by which a PC could be summoned to respond to calls. The underlying premise was that PCs were not to be disturbed unnecessarily, which had been a problem for PCs prior to the creation of the illustrative list.
Nor does the sentence in Addendum No. 13-A: “The inspector shall, if required make a determination as to whether or not an emergency has arisen that necessitates immediate response by the employee at a one-man point not on-call” assist the Association’s position. That sentence only makes sense in relation to the “Note” at the end of the illustrative list, which reads: “If Communication Centre staff is unsure whether to call a constable for a specific incident, they must contact the Inspector to determine if the constable is required to be called.”
Normally the CC will refer the emergencies to the on-call PC, but if there is any doubt by the CC staff that a call-out is warranted, then they are to call the inspector for direction. In other words, the inspector has a discretion, once the CC seeks clarification, to decide whether the PC is to respond to the emergency. That is the most reasonable interpretation, on a plain reading of the two sentences in question. In any event, the language of Addendum No. 13-A certainly does not confer clearly and unequivocally a right by the PCs to be dispatched to every emergency that arises on the illustrative list.
Nor is the Association’s interpretation that Addendum No. 13-A confers a right to be assigned all call-out emergencies assisted by reference to the overtime provisions of the collective agreement. In fact, its interpretation runs counter to the direction in article 6.6 (a) that “[e]very effort will be made to avoid the necessity for overtime,” and article 6.6 (e)’s imperative that “[o]vertime shall be worked only by direction of proper authority.” As I have said, the purpose of Addendum No. 13-A was not to increase work opportunities for on-call PCs. If anything its purpose was to reduce the demands of on-call work.
It appears obvious to me that Inspector Ritchie, on July 29, 2015 applied his managerial discretion in the circumstances surrounding the accident and, in the application of Addendum 13-A and paragraph 6.6 (a), decided that no personal intervention by a PC was warranted.
I turn to the Association’s contention that Inspector Ritchie performed bargaining unit work. It is worth noting that the Association has not identified the duties it contends lead to a violation of article 6.13. It is worth reviewing what Inspector Ritchie did. First, he answered a call from the CC, informing him of the accident. He determined that it was unnecessary to dispatch a PC to the accident location, and he asked the CC to keep him apprised of developments. The second thing that Inspector Ritchie did was receive a patched-in call from an RCMP operator wondering about the extent of CN Police involvement in the accident investigation. The precise details of the call between Inspector Ritchie and the RCMP operator were not disclosed in the hearing. In any event, after that call, Inspector Ritchie reported information to the CC about the state of an individual who had been injured in the accident.
What is clear is that Inspector Ritchie did not attend the scene of the accident and carry out an investigation. This was done by other agencies. The extent of Inspector Ritchie’s involvement was to respond to the CC, decide that no PC was required to attend the scene, and speak with the RCMP. It is far from clear that receiving calls from or initiating calls to the CC or the RCMP regarding emergencies constitutes work “in the normal course” (as stated in article 6.13) that is usually performed by employees of the bargaining unit. Furthermore, the Association concedes that the Company is entitled to involve inspectors in emergencies attended to by the on-call PC. In any event, the language of article 6.13 must be read in context with the overtime provisions, and in particular article 6.6’s stricture “to avoid the necessity for overtime.” In all the circumstances, I am not prepared to find that Inspector’s Ritchie’s phone call conversations constituted work of the bargaining unit in the normal course. They were the normal work activities of an inspector.
The Association argues that the Company is estopped by past practice from deciding not to use on-call PCs to address every emergency listed in Addendum No. 13-A. The doctrine of promissory estoppel is founded in equity. It precludes a party from relying on its strict contractual rights when it would be inequitable to do so. In order for the Association to succeed on this argument it must prove that a past practice could be reasonably be taken by the Association to be a representation by the Company to affect their legal relations where the Association (or employees) could be said to have relied on that representation to their detriment.
In my view, Addendum No. 13-A ushered in a new approach to call-out/standby whereby the parties sought to strike a balance between the need of the Company to have coverage for emergency situations and the interest of the Association’s members not to be called out unnecessarily. The context of Addendum No. 13-A suggests that the parties wanted a change to then existing practice of all too frequently calling out PCs in both emergency type and non-emergency type situations. It cannot be said that there has been a longstanding practice of always calling out PCs in every emergency situation such that the Company can be said to have made a legal representation to the Association that it would forgo its right to make the discretionary decision about whether or not to have an on-call PC attend at the emergencies set out in the illustrative list. Accordingly, the Association’s estoppel argument fails.
For all these reasons, the grievance is dismissed.
June 27, 2016
CHRISTINE SCHMIDT
ARBITRATOR
Addendum No. 13-A
September 3, 2008
Kelly Brown
National President
Canadian National Railways
Police Association
1701 Chappel Drive
Saskatoon, Saskatchewan S7M 5P5
Dear Mr. Brown:
This refers to our discussions held during current round of negotiations with respect to the Company’s requirement to have employees be available for duty on an on- call/stand-by basis at all time.
The Association raised concerns with respect to the fact that employees on-call/stand-by status are required to be available 12 days out of 14 to provide timely response when required to support internal customers. As we discussed, one-man points were created to allow for faster response to request for police assistance.. Additionally, those concerns also addressed certain work/life balance issues for our officers.
In our recent talks, the Association asked us to maintain local agreements at locations where employees have been on call/stand-by status at designated one-man points and have been available on a “one week on/one week off” basis provided that, during the week an employee is not on call/stand-by, an employee from an adjacent territory is available to respond to calls at all times during the regular work week, after hours and during rest days, or other days away from work, on the assigned territory normally covered by the employee who is not on call/stand-by.
In the spirit of working together and as part of this early resolution to our negotiations, we agreed to a one week on/one week off call/stand by arrangement for all one-man points on the following terms. Both parties agree that this arrangement has to be administered with the understanding that emergency calls must be covered. In other words, there cannot be a diminution of police service or response time to calls as a result of the implementation of this arrangement.
During the week when an employee at a one man point is not on-call, the employee in the adjacent territory shall be expected to respond to calls on his/her behalf. The Inspector shall, if required make a determination as to whether or not an emergency has arisen that necessitates immediate response by the employee at a one man point not on-call. An illustrative emergency call list is attached to this addendum.
In cases of emergency occurring on the territory normally covered by the regular one-man point employee during the week he/she is not on-call/stand-by, he /she must respond to the emergency calls unless he/she is prevented from responding for valid and legitimate reasons. Employees shall notify their Inspector by phone when he/she is not available to take emergency calls during the week while not on call due to valid and legitimate reasons. Should an employee working one-man point not respond, not be reachable or not be available when called to respond to two emergency calls, the Chief of Police or his/her designated representative may at his/her discretion revert the employee involved to a 12 days out of 14 on call/stand-by pattern until such time that the Chief of Police or his/her designated representative is satisfied that the CN operations will be fully protected and secured. Employees will not be subject to the emergency list calls during the two rest days falling on the week that they are not on call.
Should employees working one-man points from two adjacent territories not want to be available on “one week on/one week off” basis, they shall be placed on a 10/14 or 12/14 cycle on call/stand-by schedule by mutual agreement between the Association and the Company.
A one-man point employee pairing up with another one-man point employee will not be entitled to take vacation or leave of absence at the same time, unless otherwise mutually arranged between the Association and the Company.
If you agree that the above properly reflects the agreement reached, please so indicate by signing in the space indicated below.
Yours truly, I CONCUR.
Kimberly A. Madigan Kelly Brown
Vice-President National President
Labour Relations
|
EMERGENCY CALL LIST |
|
EMERGENCY WHEN NOT ON CALL |
|
ACCIDENT WITH INJURIES OR FATALITIES |
|
ALARM IN CN POLICE STATION AND vp RESIDENCE |
|
ARSON ,B & E, THEFT AND VANDALISMIN PROGRESS ON CN PROPERTY |
|
DERAILMENT IMPEADING TRAIN MOVEMENT ON MAIN LINE |
|
EMERGENCY MEASURE PROCEDURE (IMPEADING TRAINS MOVEMENT) |
|
DRUG & ALCHOOL AS REQUESTED BY THE INSPECTOR |
|
DEATH OR INJURY ON CN PROPERTY |
|
LABOUR DISPUTES |
|
SHOOTING AT TRAINS BY FIREARMS |
|
ALL OTHER EMERGENCY CALLS AS DESIGNATED BY THE INSPECTOR |
|
EMERGENCY WHEN ON CALL |
|
ACCIDENT WITH INJURIES OR FATALITIES |
|
ALARM IN CN POLICE STATION AND VP RESIDENCE |
|
ARSON ,B & E, THEFT AND VANDALISMIN PROGRESS ON CN PROPERTY |
|
DERAILMENT IMPEADING TRAIN MOVEMENT ON MAIN LINE |
|
EMERGENCY MEASURE PROCEDURE (IMPEADING TRAINS MOVEMENT) |
|
DRUG & ALCHOOL |
|
DEATH OR INJURY ON CN PROPERTY |
|
LABOUR DISPUTES |
|
SHOOTING AT TRAINS BY FIREARMS |
|
ALL OTHER EMERGENCY CALLS AS DESIGNATED BY THE INSPECTOR |
|
TRAINS DELAYS MORE THAN 30 MINUTES |
|
TRESPASSERS (AFFECTING TRAINS MOVEMENT) |
|
SUSPICIOUS PACKAGE AFFECTING TRAIN MOVEMENT |
|
POLICE OFFICER NEAR OR ON TRACK |
|
|
|
DEBRIS ON THE TRACKS |
|
STONING OF TRAINS |
|
NEAR MISS |
|
SEAL EXCEPTIONS |
|
TRESPASSER NOT AFFECTING TRAIN MOVEMENT |
NOTE: If Communication Centre staff is unsure whether to call a constable for a specific incident, they must contact the Inspector to determine if the constable is required to be called.