CANADIAN RAILWAY OFFICE OF ARBITRATION
CASE NO. 3220
Heard in Calgary, Thursday, 15 November 2001
CANADIAN PACIFIC RAILWAY
CANADIAN COUNCIL OF RAILWAY OPERATING UNIONS
JOINT STATEMENT OF ISSUE:
Article 8, clause (c) of the collective agreement states:
The Company maintains that under this article, yard crews may be used within a distance of 15 miles outside the established switching limits, to a maximum of 20 miles where the first siding extends to within 20 miles, to provide timely transportation service which includes, but is not limited to, the following activities:
The Council maintains that the Company's interpretation is not consistent with the intended definition of "timely transportation: exceeds the scope of this work rule and is in violation of article 8, clause (c).
The parties request a declaratory ruling on the application of article 8, clause (c).
FOR THE COUNCIL:
FOR THE COMPANY:|
FOR: GENERAL MANAGER, OPERATIONS
|There appeared on behalf of the Company:|
C. D. Carroll
G. S. Seeney
C. M. Graham
- Manager, Labour Relations, Calgary|
- Director, Labour Relations, Calgary
- Manager, Labour Relations, Calgary
- Labour Relations Officer, Calgary
- Manager, Operations, Road, Calgary
|And on behalf of the Council:|
- General Chairperson, Calgary|
- Vice-General Chairperson, Calgary
AWARD OF THE ARBITRATOR
On February 3, 1988 Arbitrator Dalton L. Larson , exercising his jurisdiction as interest arbitrator under the Maintenance of Railway Operations Act, 1987, issued an award part of which has become article 8, clause (c) of the collective agreement governing the work of yard crews outside of established switching limits. The article reads as follows:
The parties are disagreed as to the interpretation and application of the foregoing provisions. By way of a policy grievance the Council asserts that the Company has exceeded the intended scope of the language, and seeks a declaration to that effect. Very simply, it is the Council's position that the amendment to article 8, clause (c) of the collective agreement was fashioned to give the Company the ability to respond to emergencies, including providing service to customers whose transportation needs are time sensitive. Its representative submits that the Company has gone beyond the original intention, and has interpreted the phrase "to provide timely transportation service" as being the equivalent of whatever is necessary to assist the Company's operational needs.
The Company, on the other hand, maintains that the application which it has made of article 8, clause (c) is entirely consistent with its language and the original intention of the article, as it was developed during the course of bargaining, conciliation and, ultimately, at arbitration.
In the Arbitrator's view it becomes necessary to review the history of this provision. It is clear that during bargaining, which at that time involved both CNR and CPR, along with the Associated Railway Unions, the Company sought relief from the limits on the work which could be assigned to yard service employees. It would appear that the mischief which the Company sought to deal with involved several kinds of problems. It sought to be able to have greater flexibility to respond to industrial customers who are within reasonable proximity of yard switching limits, and whose needs are time sensitive. In that circumstance to dispatch a yard crew to deal with an emergent or short notice problem would allow the Company to give greater service to such a customer. Secondly, it appears that the Company wished to resolve a problem of trains which had become disabled or stored within a relatively short distance of yard switching limits, as well as trains whose crews have tied up within a short distance from yard switching limits for rest. The employer sought to gain the flexibility to be able to dispatch yard crews to handle trains outside switching limits in the above circumstances.
The matter came to be dealt with, initially, by Conciliation Commissioner Douglas Stanley. His recommendations, which were obviously not binding upon the parties, tended to see the merit in the concerns advanced by the railways. In his report, dated August 1, 1987, the following appears at pp 53-54:
The employer has said that this proposal is not designed to reduce road crews and I would recommend that such a guarantee be started outside the agreement.
Subsequently, when the parties were unable to resolve the terms of their collective agreement themselves, and were legislatively compelled to submit to interest arbitration under the Maintenance of Railway Operations Act, 1987 the issue arose again. The companies then put the same issue to Arbitrator Dalton L. Larson, albeit with slightly modified language from the proposal put before the Conciliation Commissioner Stanley. The revised Company proposal, placed before Arbitrator Larson, read as follows:
Before Arbitrator Larson the Council entirely opposed any change, asserting that there was flexibility within the existing rules, whereby switching limits could be re-designated by agreement. In that regard the submission of the Council to Mr. Larson included, in part, the following:
The Council also opposed the rationale of flexibility to allow yard crews to go beyond switching limits to retrieve trains tied up for rest enroute. In that regard their brief to the arbitrator contained the following:
In my view a close examination of the language does reveal something of the thinking and the intention of Arbitrator Larson. Significant is his circumscribing of the distance beyond switching limits which can be serviced by yard crews. By opting for a fifteen mile limit, as opposed to the twenty-five mile limit proposed by the employer, he nodded to some degree in the direction of the Council. The fifteen miles awarded by Arbitrator Larson is obviously a far cry from the forty miles originally proposed by the companies before Commissioner Stanley.
However, some insight into the nature of the work which might be assigned to yard crews is revealed in the fact that Arbitrator Larson identified a possible extension of the distance: "... to a maximum of twenty miles where the first siding extends to within twenty miles." In my view that qualification recognizes that yard crews can be utilized not only to service industrial customers within a distance of fifteen miles from yard switching limits, but that yard crews can also be dispatched to retrieve trains stored on a siding to a limit of twenty miles, a circumstance which could cover a disabled train, a stored train or a train whose crew has tied up for rest.
It is plain from the language handed down by Arbitrator Larson that he did not place any limits or qualifications on the kind of work which yard crews could be called upon to perform within the fifteen to twenty mile limit outside switching limits. He simply awarded that yard crews "... may be used" within the area so circumscribed. That he indicated that the amendment is "in order to provide timely transportation service" is itself language which tends to be far more general than specific. With the greatest respect to the contrary position ably argued by the Council's representative, that phrase does not give any clear indication that Arbitrator Larson seized on the sole exception of providing fast service to a time sensitive industrial customer. That narrow interpretation is, in my view, not supported by the specific reference to the possibility of extending the distance a maximum of twenty miles to accommodate the location of a first siding. The express reference to reaching the first siding in that circumstance must, I think, implicitly involve other circumstances such as the recovery of disabled or stored trains, or trains whose crews have booked rest.
Can it be said that the language so awarded cannot accommodate the final form of activity specified by the Company, namely advancing trains out of a yard for storage or staging in a siding to reduce yard congestion? I do not see how the language would prevent that kind of activity by yard crews. Bearing in mind that the amendment was directed to the mischief of inefficiencies and congestion occasioned by work boundaries traditionally associated with switching limits, it would appear to the Arbitrator that any purposive interpretation of article 8, clause (c) of the collective agreement must be taken as including within the concept of promoting "timely transportation service" the possibility of yard crews being utilized to advance trains, albeit within the mileage limits stipulated, to sidings as a means of relieving yard congestion.
Nor is the Arbitrator persuaded that the interpretation applied by the Company, which this award endorses, is tantamount to doing away with yard switching limits. While it does marginally extend the area within which yard crews can be assigned work, yard switching limits nevertheless remain an extremely important line of demarcation beyond which road crews cannot perform yard switching, subject to the closely circumscribed exceptions found within the collective agreement, such as work in relation to putting away their own train. In that context, and perhaps in others, yard switching limits remain an important line of demarcation for the purposes of assignments and work jurisdiction properly falling within the purview of yard crews.
Lastly, upon a broader examination of the provisions of article 8 of the collective agreement, it appears to the Arbitrator that the position argued by the Company is more consistent with the historic evolution of work outside switching limits for yard crews. Article 8, clause (b) provides as follows:
As can be seen from the foregoing, before the Larson award, the parties had turned their minds to the limits within which yard crews could be assigned to work which would otherwise be work in road service, which is to say work which did not fall within switching limits. Under the then existing provision yard crews could only be assigned outside switching limits where two conditions were met: an emergency and the unavailability of road crews to perform the work. Plainly, in a manner in keeping with the history of negotiations reviewed above, Arbitrator Larson did not choose to frame the language of article 8, clause (c) by reference to emergency conditions. On the contrary, he effectively allowed the proposal of the Company by defining a territory immediately outside switching limits within which yard crews could work, at yard rates of pay, for the broader and non-emergency purpose of, "... to provide timely transportation service". In the Arbitrator's view, for the reasons elaborated above, that phrase comports a general intention to allow yard crews to be engaged in assignments outside switching limits to achieve the kinds of operational efficiencies contemplated within the proposal advanced by the Company before Arbitrator Larson.
The present wording of the first sentence of the second paragraph of article 8(b) is also supportive of the interpretation advanced by the Company. It distinguishes the circumstance of an emergency with the separate conditions contemplated in clause (c), essentially providing that yardmen are not to be used in road service when road crews are available, "... except in case of emergency OR as provided in Clause (c)" (emphasis added). When that phrase is interpreted alongside the phrase "in order to provide timely transportation service" as found within clause (c) of article 8, the logical conclusion must be that the phrase concerning timely transportation service connotes something substantially different from emergency circumstances. On the whole, therefore, the Arbitrator is satisfied, having regard to the history, context and wording of article 8, clause (c) of the collective agreement that the interpretation advanced by the Company is correct.
For these reasons the grievance must be dismissed.
November 22, 2001
(sgd.) MICHEL G. PICHER