Heard in Montreal, Tuesday, 8 March 1994

concerning

and

Applicability of article 79 concerning the abolishment of Brakeman's positions in GO service.

The Company served notice pursuant to article 79 – Material Change in Working Conditions to abolish all brakeman's positions in GO service in Toronto.

The Union contends article 79 is not applicable in these circumstances and contends the reduction of brakeman positions cannot be accomplished through a notice pursuant to article 79.

The Company disagrees.

There appeared on behalf of the Company:

K. Peel – Counsel, Toronto

A. E. Heft – Manager, Labour Relations, Toronto

D. W. Coughlin – Manager, System Labour Relations, Montreal

D. Nunns – Superintendent, GO Operations, Toronto

L. Caron – System Labour Relations Officer, Montreal

H. Koberinski – Coordinator, Special Projects Business Planning, Toronto

J. B. Dixon – System Labour Relations Officer, Montreal

V. J. Vena – Coordinator, Transportation Special Projects, Montreal

B. Olson – Observer

And on behalf of the Union:

M. Church – Counsel, Toronto

M. P. Gregotski – General Chairperson, Fort Erie

G. Bird – Vice-General Chairperson, Montreal

W. G. Scarrow – General Chairperson, Sarnia

M. J. Hone – Vice-President, UTU-Canada, Ottawa

F. Garant – Vice-General Chairperson, Montreal

R. Michaud – Provincial Legislative Chairperson, Montreal

The Company provides running trades crews to operate GO trains in commuter service provided in the Toronto area by a crown agency of the Government of Ontario. To date the crews have comprised locomotive engineers, conductors and brakepersons. On August 13, 1993 the Company gave written notice to the Union's General Chairperson of its intention to abolish all thirty-four brakeperson positions and to operate with a conductor only, in GO service at Toronto, effective November 13, 1993. The notice was provided pursuant to article 79 of the collective agreement, governing material change in working conditions.

In discussions with the Company, first held on August 26, 1993, the Union advised the employer that it considered the notice under article 79 of the collective agreement to be improper. There ensued several months of fruitless discussions. The Union maintained throughout that the terms of article 79 of the collective agreement were not contemplated for so sweeping a change as the abolition of an entire classification of employees in a particular service. It took the position that the reduction of crew consists is a matter to be raised for separate negotiation at the national bargaining table, and not one which can be characterized as a material change within the meaning of article 79 of the collective agreement. Assuming that article 79 does apply, the Union also questioned whether the notice should be provided to the General Chairperson responsible for yard employees who would, ultimately, be impacted by the flow of redundant brakepersons into yard service. The Union also expressed concerns about the safety of operations with a conductor only in GO service.

For its part, the Company maintained that its intentions were squarely within the ambit of article 79 of the collective agreement. The employer submits that the modification and transfer of certain duties previously performed by brakepersons to other employees, coupled with the installation of strip alarms in the GO train coaches for passenger safety, would justify the elimination of the brakeperson. It is common ground that the strip alarm, now installed in all GO coaches, permits passengers to activate an alarm in the event of any emergency or disturbance. The alarm alerts the crew as to the need for assistance. This, the Company submits, substantially eliminates the need for the security patrol duties previously performed by brakepersons through the coaches.

As the parties were unable to resolve their dispute, the Company progressed it to arbitration. The issue before the Arbitrator is the appropriate procedure to be followed by the Company, under the terms of the collective agreement, with respect to implementing a general reduction in the crew consists in GO train service at Toronto. The Company submits that giving notice under the material change provisions of article 79 of the collective agreement is the procedure to be followed. The Union submits, firstly, that a reduction in crew consists, implemented across the board in a particular classification of service, must be the subject of national negotiations, of the kind which would result in a special agreement or in the amendment of the collective agreement. Alternatively, it argues that the Company is compelled to follow the provisions governing the reduction of consists of crews in passenger train service found in Addendum No. 63 to the collective agreement. Specifically, it submits that Addendum No. 63 must be read and applied in conjunction with Addendum Nos. 64 and 64A as well as article 11 of the collective agreement.

Article 79 of the collective agreement provides, in part, as follows:

The provisions of article 79 further contemplate a process of negotiations to take place between the parties with respect to agreeing upon the measures necessary to minimize adverse effects upon employees as a result of the material change. Failing agreement, they may proceed to a board of review and, ultimately, to arbitration for the resolution of their dispute.

Article 11 of the collective agreement governs the consist of crews in passenger service. In respect of crew consists, article 11.1 provides, in part, as follows:

The issue of crew consists in passenger service is further dealt with in Addendum No. 63, referred to in article 11.1, as well as Addendum No. 64 and Addendum No. 64A to the collective agreement.

Addendum No. 63, an agreement dated August 27, 1982, arises from the implementation of reduced crews in passenger service, effective October 31, 1982. It provides for protected status for certain trainmen, and reads, in part, as follows:

Addendum No. 64, agreed to April 20, 1983, brought further clarity to the rights and obligations of protected passenger trainpersons, particularly with regard to the obligation to fill non-reducible passenger positions prior to electing to fill reducible positions. Finally, Addendum No. 64A, dated October 17, 1983, issued in the form of a question and answer presentation to assist employees and managers in the application of the Passenger Crew Consist Agreement of August 27, 1982. Among the questions and answers is the following:

The Company submits that there are no provisions within the collective agreement which define the crew consists to be applied in GO service. With respect to the application of article 11 of the collective agreement, the Company argues that, as neither the conductor nor the brakeperson in GO service are involved in the collection of fares from passengers on GO trains, the coaches in GO service cannot be described as a "working coach" within the meaning of article 11 of the collective agreement. The Company further points to the classifications of equipment described under article 11, submitting that they do not coincide with the type of commuter coach utilized in GO Transit service, but rather describe conventional passenger equipment utilized in inter-city service on VIA trains.

The Company further submits that Addendum 63 was intended to deal with what it describes as "conventional passenger trains", and does not apply to the reducibility of crews in GO train service. In this regard it points specifically to question and answer no. 4 found in Addendum No. 64A of the collective agreement. The Company submits that that article very simply excludes GO service from all of the provisions of article 11 and Addendum 63 of the collective agreement in respect of the manning of trains in GO Transit service. The Company concedes that prior to the memorandum of agreement of August 27, 1982 the collective agreement did contain provisions governing crew consists in GO service. It submits that articles 7 and 8 of the collective agreement which it submits were in effect, for example, in 1972 when a dispute arose with respect to the merits of reducing GO service crews, specifically provided for the crewing of trains in GO service, insofar as they governed the crew consists on all passenger trains. It argues that the deletion of articles 7 and 8 in the 1982 agreement, and the introduction of the language now found in article 11, effectively eliminated GO service from the coverage of the collective agreement for the purposes of crew consists. In its view factors such as the newly inserted definitions of "working coach" removed the application of article 11 and Addendum 63 to GO service, a matter which it maintains was further clarified by question and answer 4 found in Addendum 64A to the collective agreement.

The Arbitrator's review of the record, including prior awards such as CROA 344 concerning the reduction of crews in GO service, and prior collective agreements filed in this Office, suggests that the chronology related by the Company is not entirely accurate. At the time of CROA 344, the consist of crews in passenger train service and the process for reducing crews were governed by what were then articles 73 and 73A of the collective agreement, respectively. Prior to the 1982 agreement the substance of those provisions came to be incorporated into articles 7 and 8 of the collective agreement, as is evidenced by an examination of the 1979 collective agreement. There was, however, no difference in substance, although it appears that prior to 1982 the collective agreement never contained any separate reference to crew consists in GO train service, it being understood, presumably, that it fell into the general provisions relating to passenger service.

In the Company's view, given the evolution of the collective agreement, it is now under no obligation to renegotiate a change in crew consist in GO service, save as might arise within the material change provisions of article 79 of the collective agreement. On that basis it maintains that it has complied with the requirements of the collective agreement as they would pertain to the reduction of crews in GO service, and that there has been no violation of the provisions of the agreement in this regard.

In an alternative submission, the Company argues that if it should be found that the collective agreement does contain provisions governing crew consists in GO service, then the terms of article 79 provide a mechanism for relaxing those provisions to permit crew reductions. In this regard it points to the following sentence contained in paragraph 79.1(a):

The Company further notes the jurisdiction of the Arbitrator under article 79.1(f) of the collective agreement which extends to the relaxation of agreement provisions "considered necessary for the implementation of the material change,".

The most fundamental position asserted by the Company, however, remains its argument that article 79 of the collective agreement, concerning the introduction of material change, remains available to it, notwithstanding that a change is general and would result in the reduction of crews. In this regard it refers the Arbitrator to the prior decision of this Office in CROA 221. In that case, it was found that the introduction of ground to cab radios in yard service would result in the reduction of certain crews, although there was no contemplated reduction in yard assignments. In that circumstance the Arbitrator found that the change in question did fall within the material change provisions of the collective agreement there under consideration, between the Canadian Pacific Railway Company (Pacific Region) and the United Transportation Union. By analogy, the Company submits that the introduction of alarm strips in the GO train coaches for passenger security is a similar change, which will result in the reduction of crew consists, and which may be dealt with under the terms of the material change provisions of the collective agreement, as was found in CROA 221.

The Union submits that the provisions of article 79 of the collective agreement governing material change were never intended to deal with so radical a change as the elimination of an entire classification of employees in a particular form of service. It points to the genesis of the material change provisions, in the report of Mr. Justice Samuel Freedman, following a strike by employees who were dislocated as the result of the implementation of run-throughs at Nakina and Wainwright. The Union notes that the material change provisions were first incorporated into the collective agreement in late 1969, and have continued with little substantial change, to the present time.

The Union cites the history of the application of the material change provision of the collective agreement in support of its view that it was intended, and has at all times has applied, to changes in operations, generally on a local or regional basis, the implementation of which was not prevented by any other provision of the collective agreement. By way of example, it cites of number of CROA decisions concerning the application of the material change provisions including CROA 1408, 1444, 1591, 1675, 1684, 1738, 1765, 2024, 2067, 2070, 2138, 2139, 2166 and 2159. Without being exhaustive, the cases cited include such changes as the relocation of yard limits, the introduction of a flying crew, a change in home terminals, changes in assignments and, in one case, an extension of run in GO service. In essence, the Union submits that the material change provisions of the collective agreement were intended to address changes in operations implemented at the discretion of the Company which adversely impact employees. It argues that a wholesale change in crew consist, a matter which, for example, in freight service has been the subject of complex special agreements, is not a matter properly dealt with within the framework of the material change provisions of the collective agreement.

Counsel for the Union notes that GO Transit service has involved the assignment of at least one conductor and one brakeperson since the inception of the service. In support of his view that the collective agreement does contemplate regulation of crew consists in GO service, Counsel for the Union refers the Arbitrator to article 11, as well as to Addendum 50, Addendum 63, Addendum 64 and Addendum 64A of the collective agreement.

Addendum 50 of the collective agreement, dated December 19, 1980, deals directly with the assignment of employees in GO service and contains a number of provisions in respect of work schedules, split tour assignments and overtime rules. It also provides for certain arbitrary allowances, bulletining arrangements and training for brakepersons. Article 17 of Addendum No. 50 provides as follows:

Counsel for the Union stresses the unprecedented nature of the Company's action. He notes that while a number of Company initiatives, such as the introduction of run-throughs and terminal closures have been dealt with by the parties through the material change provisions of the collective agreement, there has never been a general crew consist reduction negotiated or implemented by way of the material change procedure. By way of contrary example, he points to the provisions of article 11.5 of the collective agreement which were the result of a negotiated reduced freight crew agreement fashioned by the parties. Similarly, Counsel points to Addendum No. 63 itself as an example of the parties' ability to negotiate reduced crew consists in passenger service.

The Union submits that the position taken by the Company in the last round of bargaining is further support for the Union's argument. During the course of bargaining in 1991 the Company tabled a proposal in respect of reduced crew consists which included a proposal to amend the collective agreement to provide for the following crew consist in passenger service:

The Union submits that the Company's tabling of that proposal constitutes a tacit recognition of its inability to unilaterally implement such a change under the aegis of the material change provisions of the collective agreement. It is common ground that the proposal advanced by the Company was not agreed to the by the Union and was eventually withdrawn.

Counsel for the Union advances a different interpretation of the provisions of article 79.1(a) of the collective agreement relating to the relaxation of collective agreement provisions. He submits that that part of the article is intended to permit the parties to avoid the impact of collective agreement provisions which would otherwise stand in the way of minimizing the adverse effects of a material change. It is not, he argues, a provision which opens the door to the avoidance of rights and obligations otherwise vested in the Union or the employees under the terms of the collective agreement. In effect, to put it simply, Counsel would argue that the Company could not, for example, purport to reorganize its wage structure and introduce lower wage rates under the material change provisions of the collective agreement, by purporting to seek a "relaxation" of collective agreement provisions.

The Union relies on the terms of article 11 and Addenda 60, 63 and 64A as establishing the makeup of crew consists in passenger service, including GO train service. Counsel stresses that paragraph 6 of Addendum 63 contains a precise mechanism for the reduction of crewing levels in passenger service. He notes that that process was followed in a prior crew reduction implemented by the Company in GO train service. In CROA 344, under what was then the terms of article 73-A of the collective agreement, which are identical to the provisions of paragraph 6 of Addendum 63, the Company sought to reduce crews in GO Transit trains to one conductor and one brakeperson. It was there determined that the proposed crew reduction could be implemented with due regard to adequate safety, and the Company's request was allowed.

As an alternative submission, the Union argues that the procedure followed in CROA 344, presently available under paragraph 6 of Addendum 63, is one which should be followed by the Company, should the Arbitrator reject the first submission of the Union with respect to the appropriateness of negotiating a crew consist reduction only at the national bargaining table. In advancing that position it is clear that the Union does not accept the Company's characterization of "passenger service" within the terms of Addendum No. 63 as meaning "conventional passenger service", and excluding commuter passenger service. In this regard, its Counsel points to the following definition of passenger service found in Addendum No. 64A, the purpose of which is to clarify the application of Addendum No. 63 dealing with the implementation of reduced crews. The first question and answer in Addendum No. 64A defines passenger service as follows:

Counsel for the Union submits that there can be no doubt, in light of the foregoing definition, that Addendum No. 63 was intended to apply, insofar as the process for reduced crew implementation is concerned, to commuter services, including GO train service.

It is against that context that the Union explains the meaning of question and answer no. 4 in Addendum No. 64A. Counsel submits that while that question and answer would indicate that the "manning provisions" of Addendum No. 63 do not apply to GO transit, it is limited to that qualification, and does not purport to strike the application of other provisions in Addendum No. 63. In this regard Counsel makes a distinction between the manning provisions and the provisions relating to the reductions in crew consists. Specifically, as elaborated by one of the Union's general chairpersons, the purpose of the clarification in question and answer no. 4 is to make it clear that a protected passenger trainperson does not have the ability to occupy a reduced brakeperson position on a GO train. It is in that sense, the Union submits, that the reference to the manning provisions of Addendum No. 63 is to be understood. By way of further support, Counsel points to the content of question and answer no. 3 which states that the manning provisions of the agreement do not apply to mixed and combination assignments. The Union submits that the purpose of the questions and answers found in Addendum No. 64A is to reflect the understanding of the parties that the basic crew consist of one conductor and one brakeperson is to be maintained in GO train service, notwithstanding what would otherwise be the rights of protected passenger trainpersons.

Further, in support of the substance of its argument, Counsel for the Union points to the content of the second question and answer found in Addendum No. 64A. Noting the language of the first question and answer, which confirms that commuter service is included within passenger service for the purposes of Addendum No. 63, Counsel draws to the Arbitrator's' attention the following part of the answer to question no. 2:

I turn to consider the merits of the positions advanced by the parties. In the Arbitrator's view there is substantial difficulty attempting to follow the logic of the Company's argument, when regard is had to the language of the collective agreement, and of the addenda referred to above. If the Company's argument is accepted, parties sophisticated in the ways of collective bargaining, for whom the issue of crew consists has been one of major concern for many years, effectively agreed, by omission, to make no provision in their collective agreement for crew consists in GO service after the introduction of Addendum No. 63 in August of 1982. The Company does not dispute that prior general definitions of passenger service, as for example under article 7 of the 1979 collective agreement, would have included GO train service, and the crew consist provisions, such as existed prior to 1982, would have applied to GO train service. It submits that the introduction of article 11 and Addendum No. 63 effectively excluded GO service from the collective agreement, at least for the purposes of the regulation of crew consists.

It is, of course, open to the parties to the collective agreement to make so radical a departure in the delineation of right and obligations running between them, in something so critical to the Union's interests as well as the Company's as the issue of crew consists. They should not, however, be lightly taken to have done so, absent clear and unequivocal language to support the conclusion that they so intended.

The language in the collective agreement before the Arbitrator is far from supportive of such a conclusion. Bearing in mind that Addendum No. 64A is the product of the parties' agreement, it is significant in my view that the first question and answer within that document defines passenger service, for the purposes of Addendum No. 63, as including commuter services which I take to include GO service, the largest volume of commuter service operated by the Company. Does that provision stand in conflict with question and answer no. 4? I think not. It is trite to say that the provisions of a collective agreement should not be construed as contradictory, where reasonable interpretation can apply them in a manner that is complementary and consistent. It is difficult to understand what purposive basis would underlie excluding employees in GO train service from the general protections of Addendum No. 63. In the Arbitrator's view the more rational conclusion is that the parties did intend, by question and answer no. 4 of Addendum No. 64A, to make it clear that protected passenger trainpersons could not exercise their protected rights to claim reduced positions in GO train service, and nothing more. That issue is entirely separate from the issue of the further reduction of crew consists in commuter service, a matter which is plainly within the ambit of paragraph 6 of Addendum No. 63.

It is significant, I think, that at least from the time of CROA 344, the collective agreement has retained the same language in respect of the procedure to be followed for further reducing crew consists in passenger service. What was originally article 73A of the collective agreement of 1972 became incorporated into article 8 under the 1979 collective agreement and eventually emerged as paragraph 6 of Addendum 63, with no substantial change in language. It is also worthy of note that paragraph 6 of Addendum No. 63 speaks of a reduction in crew consist "provided by article 7", an apparent reference to the crewing provisions reflected in the 1979 collective agreement, and which the Company concedes applied to GO train service. While it is arguable that the reference to article 7 is an oversight, and that "article 11" should be substituted, it is equally plausible that the parties were content, in 1982, to refer to the previous article 7 because they did not believe they were making any change in substance with respect to the application of the crew consist provisions to any class of service, including commuter service, such as GO transit.

Given the evolution of the collective agreement, I do not find the analysis of article 11 to be helpful to the issue at hand. Whatever may have been intended by the terms of article 11 of the collective agreement, it is clear by the terms of Addendum No. 63, read in light of Addendum No. 64A, that the parties intended commuter service to be covered by the agreement of August 27, 1982, and that, subject to the proper application of the procedure for reducing crews, a basic crew consist is to include one conductor and one brakeperson.

Because I am satisfied that Addendum No. 63 is intended to apply to commuter service, including GO train service, insofar as the mechanism for the reduction of crew consists is concerned, I find it unnecessary to resolve the argument between the parties with respect to the meaning of that part of article 79.1 relating to the relaxation of collective agreement provisions. Suffice it to say, for the purposes of this award, that the collective agreement is specific as to the procedure to be followed should the Company wish to implement a crew consist reduction in passenger service. The specific procedure to be followed is expressly established within the terms of paragraph 6 of Addendum No. 63 of the collective agreement. In the case at hand it is that procedure which the Company is under a contractual obligation to follow.

As is obvious from the foregoing conclusions, the Arbitrator cannot accept the first argument of the Union, to the effect that the Company is without the ability to seek to implement a reduction in crew consists, save through negotiaitons at the national bargaining table. If that position were correct, the language of paragraph 6 of Addendum No. 63 would be entirely superfluous. In the Arbitrator's view the parties have plainly addressed the question of how to implement a crew consist reduction in passenger service, including GO service, as reflected in the terms of Addendum No. 63.

For the foregoing reasons the position advanced by the Company cannot be sustained by the Arbitrator. It is not open to the Company to by-pass the crew consist reduction provisions of Addendum No. 63, provisions which, for the reasons related above, I find have application to GO train service. For these reasons the proposition of the Company must be rejected, and the position of the Union, insofar as it supports the application of paragraph 6 Addendum No. 63, must be sustained.

April 12, 1994 (sgd.) MICHEL G. PICHER