BAMCFC 3612: DOUBLING SWITCHING

CANADIAN RAILWAY OFFICE OF ARBITRATION & DISPUTE RESOLUTION

CASE NO. 3613

Heard in Montreal, Tuesday, April 10, 2007

Concerning

CANADIAN NATIONAL RAILWAY COMPANY

And

TEAMSTERS CANADA RAIL CONFERENCE

DISPUTE:

Interpretation of Article 12A.1 of Wage Agreement 1.1.

JOINT STATEMENT OF ISSUE:

Claims have been submitted to the Company in keeping with Article 12.A.1 to perform switching for their train either at the arrival or departure station by locomotive engineers working in a conductor only operation.

When a train crew in a conductor only operation is required to double cars when a train arrives or departs, the locomotive engineers claim the bonus in keeping with the provisions of Article 12A.1.

The Union submits that the fact of doubling cars in these cases justifies the payment of the 12 ½ mile bonus since it involves operations pertaining to their train.

The Company does not agree with the Union’s position.

FOR THE UNION: FOR THE COMPANY:

(SGD.) RENÉ LECLERC (SGD.) DONALD GAGNÉ

GENERAL CHAIRMAN FOR: SENIOR VICE-PRESIDENT

There appeared on behalf of the Company:

D. Gagné – Manager, Labour Relations, Montreal

C. Desjardins – Manager, Labour Relations, Montreal

D. VanCauwenbergh – Senior Manager, Labour Relations, Toronto

P. Rousseau – Assistant Manager, Pay Sytems, Moncton

And on behalf of the Union:

R. Leclerc – General Chairman, Grand-Mère

C. Desbiens – Chairman, Local 558

AWARD OF THE ARBITRATOR

As indicated by the Joint Statement of Issue, the Union maintains that its members are entitled to the 12 ½ mile bonus each time a locomotive engineer who is in a conductor only operation is required to double the cars at their departure, namely pull the cars from the train on two separate tracks, rather than on a single track. Hundreds of claims, mostly from the Joffre Yard, brought about the grievance. The Company claims that doubling cars that are on two tracks as a result of the length of a train is not switching and therefore does not justify the payment of the bonus in question.

The dispute concerns the application of the provisions of Article 12A.1 of the collective agreement, which reads as follows:

12A.1 When locomotive engineers on trains operating in through freight service with a train crew consist of a conductor only are required to perform switching in connection with their own train at the initial or final terminal (except to set off a bad order car or cars or to lift a bad order car or cars after being repaired), they will be entitled to a payment of 12-1/2 miles over and above all other earnings for the tour of duty.

The Union representative claims that the provisions of this article apply directly to a conductor only operation that is preparing to leave a station and is required to pick up its cars on more than one track in the yard before departing. According to the representative, assembling a train by doubling cars that are coupled and placed on two tracks in a yard means “switching in connection with their train” in the sense of Article 12A.1 of the collective agreement.

The Company does not agree. According to the Company’s representative, based on well-established practice, as well as the language concerning operations that is used in certain other railway collective agreements, it is clear that doubling a train, namely at the departure station in order to make up the train or the destination station in order to yard it, does not involve switching in connection with the train of the crew in question. To back his argument, he cited as an example the provisions of Article 11.7 of Collective Agreement 4.16 between the Company and the United Transportation Union (UTU), provisions which apply to the conductors that are members of the same conductor only crews as the locomotive engineers who are the grievors plaintiffs in the case of the grievance at hand. Article 11.7 of Collective Agreement 4.16 reads as follows:

11.7 Notwithstanding the provisions of paragraph 11.4, trains operating in through freight service may be operated with a conductor but without an assistant conductor provided that:

(a) Such trains are operated without a caboose;

(b) At the initial terminal, doubling is limited to that necessary to assemble the train for departure account yard tracks being of insufficient length to hold the fully assembled train;

(c) At the final terminal, doubling is limited to that necessary to yard the train upon arrival account yard tracks being of insufficient length to hold the train;

(d) Notwithstanding the provisions of article 41, such trains are not required to perform switching in connection with their own train at the initial or final terminal; if switching in connection with their own train is required at the initial or final terminal to meet the requirements of the service, (except to set off a bad order car or cars or lift a bad order car or cars after being repaired), the conductor will be entitled to a payment of 12-1/2 miles in addition to all other earnings for the tour of duty.

(e) Such trains are designated to make no more than three stops en route (i.e., between the initial and final terminals) for the purpose of taking on and/or setting out a car or group of cars together;

NOTE: (This Note is only applicable to the First Seniority District). For the purposes of clarity, the taking on or setting out of cars at a yard (other than the yard in which the train originates or terminates) at terminals where there are a series of yards (such as Halifax and Montreal) will not count as a stop in the application of sub-paragraph 11.7(e). However, the payment set out in paragraph 2.5 will be payable when cars are taken on or set out at such yards in a conductor-only operation.

[bold added]

The Arbitrator cannot allow this grievance. First, it is important to note that since 1992, when the reduced crews were introduced, the employees in the bargaining unit of the locomotive engineers on the Eastern Lines have never submitted a grievance against the well-established practice concerning the doubling of the cars in their train, either at the departure station or the destination station. Practice indicates that the employees acknowledge that doubling cars because a single track is not sufficient to hold the train is completely different from switching in connection with their train.

The well-established practice is, moreover, consistent with jurisprudence concerning operations. Well before the period of reduced crews, certain employees occasionally tried to obtain additional compensation for what they claimed were switching operations specific to the yard crews when they stored their train on more than one track. In CROA 2099, a crew in road service, including the locomotive engineer, claimed a premium at the rate of one day at yard rates when the Company ordered them to yard the cars of their train in a precise manner in order to place them on two different tracks, in order to facilitate the assembly of another train. In this case, the UTU agreement contained the following provisions:

41.1 Switching, transfer and industrial work, wholly within the recognized switching limits, will at points where yardmen are employed, be considered as service to which yardmen are entitled, but this is not intended to prevent employees in road service from performing switching required in connection with their own train and putting their own train away (including caboose) on a minimum number of tracks.

7.9(d) in the application of the provisions of paragraph 41.1 and 41.2 of Article 41, (Yardmen’s Work Defined), when employees in road service are instructed to yard their train in a particular track at a terminal and such track will not hold the entire train, they will double over surplus cars to another yard track or, in cases of yard congestion where there is insufficient room to double over all cars to one track, it is necessary to double over to more than one track to effectively yard the train.

NOTE: In the application of the foregoing sub-paragraph (d) of this paragraph, employees will not be required to marshal trains upon arrival at terminals (e.g.: setting over 10 cars for one destination to one track and 10 cars for another destination to another track).

The Arbitrator dismissed the grievance, stating partially as follows:

The Arbitrator has some difficulty with the position of the Union respecting the effect of Article 7.9(d). If it is correct there would be little or no effective difference remaining between the concept of employees performing switching “in connection with their own train” and the concept of “putting their own train away … on a minimum number of tracks” as relates to the work of incoming road crews at destination yards. In other words if that view should prevail it would appear that the only prerogative remaining to the Company is to direct the road crew to set off all of the cars which comprise its train in a particular track, with the right to direct them to switch out part of those cars into one or more other tracks only to the extent that the designated track is insufficient to hold them. That interpretation of the application of Article 41.1 of the Agreement would, it seems to me, leave little or no scope for the meaning of the words “switching required in connection with their own train”. However, the parties have chosen to leave that phrase unchanged and, absent clear language to demonstrate a contrary intention, must be presumed to have intended that its prior meaning should continue.

Having regard to the evolution of the language of Article 41.1 revealed in the cases noted above, it is indisputable that traditionally there was no question that switching in connection with a road crew’s own train related to more than merely putting their train away at a destination yard. Switching in connection with a road crew’s train could and did involve the setting off and spotting of cars intended for delivery to that destination (CROA 13). In the Arbitrator’s view the record reveals that Article 7.9(d) was added to the Collective Agreement for a purpose other than abolishing the pre-existing right of the Company to require the incoming road crew to switch off and spot cars which they are delivering to a destination yard. It speaks to the separate question of how they are to put their train away, which presumably may involve both the setting off of cars which have reached their destination yard and the storage of cars other than cars destined for delivery at that yard. The purpose of Article 7.9(d), as evidenced in the letter of May 10, 1979, is to ensure that the storage of cars in that circumstance is not converted into the marshalling of trains for furtherance to other locations.

The material before the Arbitrator discloses further evidence that the concept of work in connection with a road crew’s own train can be different from merely putting its own train away on a minimum number of tracks, even though the two concepts may be interrelated. It is common ground that it is not unusual for incoming road crews whose train consists, in part, of livestock cars to be required to set off and spot those cars separately within the destination yard at a facility properly equipped for the feeding and care of livestock. The Union does not argue that that work is exclusively the work of yardmen, or that in those circumstances a road crew could invoke the strict application of Article 7.9(d) to insist on its right to simply switch all of their train, including the livestock cars, into a single designated track, or in more than one track only in a case of yard congestion. The example of the livestock car serves as an illustration of the parties’ intention that incoming road crews can be required to perform switching in connection with their own train, and that that operation may be more than merely putting their train away on a single track, subject only to problems of congestion.

…

For the reasons related above, I am satisfied that the parties have preserved within their Collective Agreement a degree of distinction between the concept of switching required to be performed by a road crew at a destination yard in connection with their own train and the concept of putting their own train away on a minimum number of tracks. Article 7.9(d) was intended to clarify the rights of road crews in respect of putting away their train, but it did not have the purpose or effect of abrogating the rights of the Company or the obligations of the employees in respect of their long established duty to perform switching in connection with their own train as they had previously been required to do. I can find nothing in the history or language of Article 7.9(d) to overrule the prior awards of this Office which has held that the setting off and spotting of cars at a destination yard as part of the delivery process falls within the meaning of the phrase “switching required in connection with their own train” contained in Article 41.1 of the Collective Agreement. That is what the crew were required to do upon arrival at Brampton by cutting and spotting the Brampton destined cars on Pad No. 4 as directed. The placement of those cars at that point, as well as the remainder of the cars and the caboose on a separate track designated by the Company is consistent with the putting away of their own train, including its caboose, on a minimum number of tracks as contemplated in Article 41.1 of the Collective Agreement.

It is true that, as the Union representative says, the dispute concerning this grievance depends solely on the interpretation of the wording of the collective agreement concerned. However, it is legitimate and useful to refer to jurisprudence and to the provisions of other collective agreements in the industry to better understand the scope of certain words and certain expressions specific to the railway industry. CROA award 2790 provides another example of when the union acknowledges, in its collective agreement with the company, Canadian Pacific, that a locomotive engineer cannot claim an additional premium for simply doubling his train at the departure point. The article in question reads as follows:

Article 3 Preparatory, Initial and Final Time

(b) Freight, Wayfreight, Mixed, Unassigned Pusher and Unassigned Snow Service

(1) Engineer will be paid initial terminal time, including switching, on the minute basis at pro-rata rates from time ordered for until departure of locomotive from the outer main track switch or designated point.

A locomotive engineer, on a train on which no brakeman is employed, required to perform switching at the initial terminal, except doubling to the extent necessary to assemble the train for departure because yard track(s) is of insufficient length to hold the fully assembled train, will be paid on the minute basis at pro-rata rates for all time so occupied with a minimum payment of one hour in addition to initial terminal time. ...

[bold added]

Should the Arbitrator conclude, as the Union pleads, that there is a serious shortcoming in the collective agreement of concern to us and that having a conductor only crew double cars is therefore the same thing as the switching operations that pertain to their train? I do not think so. The jurisprudence examined clearly demonstrates that well before the text of Article 12A.1 was written in 1992 the parties were clearly aware of the difference between switching operations on the one hand and doubling a train on the other, either upon arriving or upon departing, as a result of the limited space available on the yard tracks. This observation is further backed by the well-established practice of almost 15 years, without complaints or grievances, before the claims concerned by the dispute were submitted.

For these reasons, the Arbitrator concludes that having conductor only crews double trains in preparation for their departure is not switching in connection with their train in the sense provided in Article 12A.1 of the collective agreement. For these reasons the grievance must be dismissed.

April 16, 2007 ____________________________

MICHEL G. PICHER

ARBITRATOR