Heard in Montreal, Thursday, 12 January 1995

concerning

and

Spare board regulation – Capreol, Ontario

On October 14, 1994, the Company, without prior consultation with local union officers, regulated the Capreol spare board which resulted in a furlough board being established and, in addition, the laying off of some 7 employees.

The grievance concerning the regulation of the spare board was filed by the local chairperson under the provisions of article 92.2 of the collective agreement. However, no response was forthcoming from the Company.

On November 1, 1994, the Union submitted this grievance to the Chief of Transportation under the provisions of article 92.3 and again no response was forthcoming.

It is the Union’s position that the Company, in its regulation of its Capreol spare board, was in violation of articles 56.4 and 56.7 of agreement 4.16

The Company has not responded to any of the grievances in accordance with the grievance procedure.

There appeared on behalf of the Company:

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

J. P. Krawec – System Labour Relations Officer, Montreal

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

B. A. Kalin – System Transportation Officer, Montreal

B.W. Maskerine – District Superintendent, N.O.D., Toronto

D. K. House – District Superintendent, S.O.D., Toronto

B. J. Hogan – Manager, Special Projects, Toronto

J. W. Sauvé – Manager, Crew Management Centre, Toronto

And on behalf of the Union:

R. Beatty – Vice-General Chairperson, Hornepayne

M. P. Gregotski – General Chairperson, Fort Erie

W. G. Scarrow – General Chairperson, Sarnia

R. Roy – Local Chairperson, Capreol

R. Whoel – Local Chairman, CCROU(BLE), Hornepayne

It is common ground that Capreol, located in Northern Ontario, has a joint spare board which provides relief employees who are utilized for both road and yard service. Effective October 14, 1994 the Company implemented a change in the regulation of the Capreol spare board by eliminating fifteen employees. As a result of the Company’s action, eight of the employees cut off the board went to a furlough board established at Capreol while the seven remaining employees, who are non-protected, faced layoff. It appears that they were able to exercise their seniority to displace to positions at Hornepayne.

The Company’s action came as a result of its concern with respect to the efficiency of operations. Problems relating to profitability and the ratio of operating expenses to revenues caused the Company to examine closely its operations in the Great Lakes Region with a view to realizing savings, including savings in labour costs. The Company sought to optimize the use of crews by more efficient utilization of employees across the system, by a number of means which included reducing problems of absenteeism and of excessive unscheduled time off being taken by employees.

The Company’s view of the problem were related to the Union, initially at a meeting held on June 28, 1994 in Burlington, and thereafter at a follow-up meeting in Toronto on December 6, 1994. Among the suggestions advanced by the Company was a scheme to maximize regularity in work assignments through an increase in the work performed by pool assignments, and a corresponding reduction in spare board work. Eventually the Union formed the view that the Company’s proposals would occasion a reduction of work opportunities for its members in a manner which it took to be inconsistent with the intention of the Conductor Only Agreement previously negotiated with the Company. Consequently, in a letter dated September 8, 1994 to all yard and road local chairpersons, the Union’s General Chairperson counselled against local agreements with the Company’s proposals, stating, in part:

The thrust of the Union’s grievance is that the Company’s actions undermine the intention of the Conductor Only Agreement and that they reduce the regularity of assignments and depart from established norms in the regulating of spare boards. Prior to 1990 the Company was required to operate each train with a crew consisting of one conductor, one brakeperson (now known as an assistant conductor) and one locomotive engineer. The Company and the Union entered into a voluntary memorandum of agreement on May 24, 1991 which allows the Company, in certain circumstances, to operate trains with crew consists of one conductor and one locomotive engineer. The "Conductor Only Agreement" provided for the elimination, by attrition, of the position of brakeperson. Pending complete attrition, remaining brakepersons’ positions on through freight and Sprint train assignments were to be classified as "non-essential". Under the terms of the agreement only protected freight employees, with a seniority date as a brakeperson on or prior to June 29, 1990 could occupy non-essential brakepersons’ positions, now referred to as non-essential assistant conductors’ positions.

Following the Conductor Only Agreement assignments continued to be established for both conductors and for non-essential brakepersons. Such assigned positions could be bid on each change of time card, and typically filled by senior qualified applicants. Normally junior employees unable to hold an assigned position would then fill the spare board positions. Under the terms of article 49.1 spare board employees would work in relief for all vacancies, such as vacancies occasioned by sickness or injury, and to fill temporary assignments of less than seven calendar days in road service. Before the Conductor Only Agreement the temporary absence of a regular brakeperson had to be filled by a person from the spare board in order for the train to operate. After the Conductor Only Agreement, however, such a position need not be filled, and the Company could operate the train with a conductor only crew consist, subject to the right of a protected assistant conductor to claim a non-essential assistant conductor assignment. Should the spare board be exhausted the Company can fill a vacant or temporary assignment in road service by assigning the junior qualified conductor not working as a conductor to do so, in accordance with article 49.5(a) of the collective agreement. Further, the Company is entitled to hold conductors off their assignments to meet the requirements of the service, as contemplated under article 49.7.

The Union grieves that, in effect, the Company has utilized these provisions to create a spare board of protected employees at Capreol by reducing the spare board to a level which cannot provide sufficient relief. In the result, the Company is reverting to the application of articles 49.5 and 49.7 to press protected non-essential brakepersons into relief service as conductors, thereby maximizing trains run on a conductor only basis. In other words, as the Union would characterize it, by reducing the spare board the Company has succeeded in substantially reducing the utilization of non-essential assistant conductor assignments. This, the Union submits, is in violation of article 27.6(d) Note 4 of the collective agreement, negotiated as part of the Conductor Only Agreement. It provides as follows:

The Company characterizes the situation in a very different way. It submits that what transpired at Capreol was not a spare board adjustment as contemplated by the collective agreement, but rather an administrative reduction of employees which is not otherwise prohibited by the agreement. The Company submits that what has transpired is a manpower reduction within its prerogatives, as contemplated in article 54 of the collective agreement which governs reductions in staff and the layoff of employees in road and yard service on the basis of seniority. While the Company acknowledges that it cannot lay off protected employees, by reason of the Conductor Only Agreement, it submits that nothing within the collective agreement restricts its ability to reduce staff by laying off unprotected spare board employees, and placing protected employees who are on a spare board onto a furlough board, as was done in respect of the certain of the employees at Capreol. The Company argues that the fact that the employees at Capreol who were affected by the reductions in staff were on the spare board is coincidental, noting that at other locations employees not exclusively assigned to the spare board were also laid off as part of the overall rationalizing of operations.

Fundamental to the Company’s position is its assertion that it retains the right to regulate the size of its work force, including the right to determine spare board adjustments, in accordance with operational requirements. In this regard it refers to the language of Addendum No. 57 to the collective agreement, a letter of August 27, 1982 issued by the Company’s Chief of Transportation and incorporated into the parties’ agreement, which reads as follows:

The Company asserts that nothing prevented it from making a management decision, for valid business purposes, to reduce the complement of employees at Capreol, by means of a reduction of the spare board, for the purpose of serving the needs of operational requirements and maximizing efficiency. In this regards it notes the use of the phrase "subject to operational requirements" which appears in the language of article 56.7, which the Union alleges to have been violated.

The following provisions of the collective agreement are pertinent to the resolution of this grievance:

I turn to consider the merits of the grievance. The Arbitrator appreciates the concerns which motivate the grievance, as the Company’s actions in respect of the Capreol spare board may have gone beyond the expectations of the Union’s officers arising out of the Conductor Only Agreement. That alone, however, would not disclose a violation of the collective agreement, if it can be established that the Company’s actions are within its prerogatives. Upon a close examination of the language of the collective agreement, I am satisfied that indeed the Company has acted in a manner consistent with the permissible limits of the collective agreement, and that no violation of its terms is established in the case at hand.

The issue to be resolved is whether the initiatives taken by the Company in respect of the regulation of the Capreol spare board is not practicable, or is less practicable than the Union’s position, as contemplated under article 92.5 of the collective agreement. Without attempting to be exhaustive on the meaning of the concept of practicability, it would appear to the Arbitrator at the outset that that concept cannot be interpreted to countenance overt violations of specific provisions of the collective agreement.

In considering whether the schedule implemented by the Company violates the collective agreement, the Arbitrator was given pause to consider whether its actions were in violation of article 27.6(d) NOTE 4 and article 27.5. There can be little doubt that the cutting back the spare board at Capreol by fifteen positions constituted a change in existing practices, arguably involving the application of mileage regulations, which, as a result, reduced the active working list. For the purposes of article 27.6(d) NOTE 4, however, the fundamental question is whether such action was implemented "… for the sole purpose of discontinuing assistant conductors’ positions."

In the Arbitrator’s view the meaning of the reduction of assistant conductors’ positions becomes more apparent when regard is had to the general language of article 27.6 which governs the establishment of non-essential assistant conductors’ assignments or pools. That article provides, in part, as follows:

As can be seen from the foregoing, the collective agreement makes a clear distinction between non-essential assistant conductors’ positions, on the one hand, and non-essential assistant conductors’ assignments, on the other hand. The Company remains obligated, subject to certain attrition rules, to maintain non-essential assistant conductors’ positions at various terminals, in accordance with the formula established as part of the Conductor Only Agreement. The list of non-essential assistant conductors can be readily identified, and can only be reduced in accordance with the rules. However, whether certain trains run with or without a non-essential assistant conductor is a different matter, and many factors can result in a reduction of the number of assignments which function with a non-essential assistant conductor. If the Company can so order its affairs as to assign a non-essential assistant conductor to cover a conductor only assignment on a given train, and thereby avoid the utilization of any assistant conductor in that train assignment, it cannot be said to have thereby reduced the number of assistant conductor positions. Assignments of non-essential assistant conductors can be reduced without reducing the number of non-essential conductors’ positions.

In the case at hand that is what has transpired. By a combination of a reduction in the spare board and greater utilization of article 49.7, the Company has succeeded in maximizing the assignment of non-essential assistant conductors into conductor only service. In so doing, however, it has not reduced or discontinued any assistant conductors’ positions at Capreol. Those positions remain intact, and can only be removed by the application of the attrition rules built into the Conductor Only Agreement. Significantly, the parties did not draft language to prevent the Company from minimizing or discontinuing as many assistant conductors’ assignments as possible. Indeed, the thrust of the Conductor Only Agreement is to allow the Company to operate assignments without an assistant conductor, and the reduction of such assignments is therefore not surprising. In the result, on the evidence of this case the Arbitrator cannot find that the Company’s actions at Capreol are in derogation of its obligation not to discontinue assistant conductors’ positions by the manipulation of spare board practices and mileage regulations, as no reduction in assistant conductors’ positions has been disclosed.

Can it be said that the Company has departed from the intention of article 27.5, which stresses the maximization of "… the regularity with which employees are required to report for work at the home terminal."? At first blush the observance of this provision appears, arguably, to be in doubt, in light of the Company’s admitted practice of holding a greater number of non-essential assistant conductors for less regular service as conductors by the operation of article 49.7. If the Arbitrator were satisfied that the Company’s use of that article effectively undermined the overall regularity of assignments at Capreol, such a departure from the intention of article 27.5 would arguably depart from the collective agreement and call into question the Company’s argument as the practicability of its spare board regulation initiative.

When the picture is examined as a whole, however, the Arbitrator cannot find that any such violation has in fact occurred. Prior to the reduction of the spare board some fifteen employees whose spare board positions were discontinued were subject to being called for service on an irregular basis, to provide relief to the regularly assigned pools. The Company’s actions have effectively transferred the lack of regularity experienced by those employees, to some degree, to employees who are occasionally held for service by the operation of article 49.7. It is not clear to the Arbitrator, however, that there has been any ultimate change in the total incidence of irregularity of assignments at the home terminal. Rather, such irregularity as already existed has been, at least in part, redistributed from the spare board to employees who are occasionally being held for service under article 49.7. The evidence before the Arbitrator does not establish that there are any more employees at Capreol who are now subject to a degree of irregularity in their assignments than there were previously. The overall balance of regularity has therefore not been disturbed in a manner inconsistent with article 27.5 of the collective agreement.

While the Union is obviously not pleased with the Company’s actions, the Arbitrator can see nothing in the collective agreement which would prevent the employer from utilizing article 49.7 in the manner it has. Nor is there anything to prevent it from minimizing the use of non-essential assistant conductor assignments, and maximizing conductor only operations, for reasons of efficiency and profitability. The Union has not negotiated language into the terms of the conductor only provisions which would prevent the Company from doing what it has done at Capreol.

Nor do the facts disclose a substantial prejudice to the ultimate ability of the Union to protect itself, should it feel that the Company’s actions are inconsistent with its expectations coming out of the Conductor Only Agreement. The Company’s initiative at Capreol, and apparently at other locations, is fairly recent, having been implemented only for a matter of a few months. The parties are now at the threshold of the open period of their collective agreement, and the Union is fully positioned to seek to negotiate any necessary protections into the provisions of the collective agreement.

Can it be said, in light of the evidence before the Arbitrator, that the actions of the Company are not practicable for the purposes of article 92.5 of the collective agreement? I think not. The evidence discloses, beyond controversy, that the reducing of the spare board at Capreol has not impacted the Company’s ability to service its manpower requirements in a manner consistent with the provisions of the collective agreement. A smaller body of employees is being fully utilized to discharge an unchanged workload, the only difference being that greater efficiencies are being realized as the complement of active employees has been reduced and there is less utilization of non-essential assistant conductor assignments. In the circumstances the Arbitrator cannot find that the Company’s initiative is not practicable, as contemplated within the language of article 92.5. Indeed, from the standpoint of efficiency, I am compelled to conclude that it is more practicable than the alternative position of no change advanced by the Union.

For all of the foregoing reasons the grievance must be dismissed.

17 February 1995 (signed) MICHEL G. PICHER