CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3769
Heard in Montreal
Thursday 14 May 2009
Concerning
CANADIAN PACIFIC RAILWAY COMPANY
and
TEAMSTERS CANADA
RAIL CONFERENCE
DISPUTE:
The application of article 15.01 and the footnote referring
to the appended letter re: Off Main line/Conductor Only Premiums En Route (EC)
in the circumstances involving the operations covered by Eastern Services Area
Information Bulletin No. CMC-100/06.
JOINT STATEMENT OF ISSUE:
On November 9, 2006, the Company issued Eastern Services Area
Information Bulletin No. CMC-100/06 which involved EC (En Route Switching) and OM (Running Off Main line) claims at Franz. The notice
was being issued to running trades operating crews over the territory in
question to clarify when EC claims and OM
claims are to start and end at Franz.
On December 5, 2006, the Union
filed a policy grievance on behalf of all locomotive engineers of Division 319
in respect of the language contained in Bulletin CMC-100/05 referred to above.
The Union’s grievance claims Off Main line pay
under article 15.01 in respect of movements by CP Rail crews on CN lines. In
particular, the Union’s grievance involves movements on CN lines when switching
at Franz, Ontario
while en route from White River to Chapleau.
The Union claimed payment for all locomotive
engineers when required to operate off the CP main track onto another railway’s
main track in such circumstances.
The Union also relies on an
argument based on estoppel. The Union contends that the Company has honoured
similar claims under article 15.01 arising out of Franz runs in the past but
unilaterally cancelled the practice in November 2006 without offering the Union
an opportunity to bargain about the language and application of article 15. In
the circumstances the Union took the position
that the Company was estopped from unilateral departure from past practice.
The Company disagrees with the Union’s
positions and denies any violation of the collective agreement.
FOR THE UNION: FOR THE
COMPANY:
(SGD.) T. BEAVER (SGD.)
A. A. GARCIA
GENERAL CHAIRMAN FOR:
ASSISTANT VICE-PRESIDENT
There appeared on behalf of the Company:
A. A. Garcia –
Manager, Labour Relations, Calgary
D. Freeborn –
Manager, Labour Relations, Calgary
S. Nelson –
Manager, Operations, Smiths Falls
And on behalf of the Union:
M. A. Church –
Counsel, Toronto
T. Beaver –
General Chairman, Oshawa
K. Travis –
Witness
W. Cormier –
Sr. Vice-General Chairman, Chapleau
R. Woodruff –
Local Chairman, Schreiber
M. Hamel –
Vice-General Chairman, Chapleau
AWARD OF THE ARBITRATOR
The instant grievance raises a unique situation. It concerns
the interchange of rail traffic between the Company and CNR at the intersection
of the Company’s main line running between White River and Chapleau and the CN
main line at Franz, Ontario. While it appears that the
interchange activity previously took place on siding tracks known as the ACR
Transfer adjacent to the CP main line, starting May 15, 2005 train 434, which handled
the transfer traffic on approximately one-half of its runs would, on those
occasions, be required to travel off the CP main line, over approximately 1,000
feet of connecting track and enter the CN main line travelling slightly more
than one mile to the CN siding at Franz which then became the depository of
transfer traffic. Initially, apparently at the direction of the Company’s Chief
Auditor, employees on train 434 performing that work were paid an OM premium for work off the main line. Those payments
were ostensibly made under the provisions of article 15.01 which provides as
follows:
15.01 Mileage
or hours made, whichever is greater, when engine is run more than one mile off
main track will be added to mileage of trip.
However, on November 9, 2006, as a result of OM claims being reviewed through the audit system, the
Company reversed its position. It then issued a bulletin in the following
terms:
OM Claims:
OM claims are not
applicable when running to CN Franz. It is the Company’s position that this
location is considered a main line of Canadian National Railway.
It is understood that OM
claims have been claimed in the past for the time spent running to CN Franz.
Effective immediately, OM claims should no
longer be submitted for this time at this location.
In essence, the position of the Company is that the movement
at Franz off the CP main line onto the main line of CN to the transfer siding
does not involve running “off main track” within the contemplation of article
15.01 of the collective agreement. On that basis, therefore, it maintains that
the OM premium is not payable, albeit
employees are paid the Conductor Only “EC” premium for switching en route in
relation to the work performed in the transfer siding. The Company’s representative
submits that the intention of article 15.01 is to recognize that work off main
tracks is subject to more complex operating rules and reduced speeds, thereby
justifying the premium. That situation, she argues, does not occur in the case
at hand.
The Union argues, firstly,
that the Company is estopped from the change in practice which it implemented
in November 2006. Alternatively it argues that the language of article 15.01
was not intended to encompass main track of another railway. Its counsel submits
that the work performed at Franz should be paid no less than work that would
involve leaving CP main track to work on an industrial spur to perform
switching. He stresses that in fact no mileage or time, which would be paid in
the case of work on an industrial spur, is paid by the Company for the work
performed at Franz.
The Arbitrator can appreciate the position of both parties.
The language of article 15.01 could credibly be interpreted either way. In my
view it is important to consider the purposive dimension of the provision in
question, particularly as it applies to the factual circumstances of this case.
Before turning to that aspect, however, the Arbitrator must
agree with the Company’s representative that a case of estoppel is not made out
on the facts before me. The record discloses that at the time the Union was aware of the Company’s change of position with
respect to the payment practice at Franz it was in bargaining with the Company
for the renewal of the collective agreement. In other words, the Union did have
every opportunity to deal with the Company’s change of position as regards the OM premium being discontinued at Franz, contrary to the
previous practice. For reasons the Union best appreciates, however, although it
filed a grievance during the same period, it made no attempt to resolve the
issue at the bargaining table. In that situation I must agree with the
Company’s representative that the element of injurious reliance on the part of
the Union is not made out.
However the Union’s case is
more compelling as regards the purposive interpretation of article 15.01. If
the Company’s interpretation is accepted, an obviously anomalous situation
arises where employees would receive no payment in the form of mileage or time
for travel over main line which is not main line of the Company. It does not
appear disputed that in other circumstances where employees of the Company are
compelled to run over CN main line, as for example on the Oakville Subdivision
between Toronto and Hamilton, while they are not paid OM premiums they do
receive payment for their mileage and time. I am satisfied that the parties
would not have intended the anomalous situation by which no such payments are
made for the movement of the Company’s crews on CN territory at Franz where, if
the Company’s practice is supported, no OM payment is to be made and no mileage
or time payment is to be made either. From a certain perspective that
interpretation would occasion something of a windfall to the Company.
The Arbitrator is satisfied that nothing in the instant case
creates any obligation on the part of the Company to, as its representative
suggests, pay OM premiums for the myriad other
situations where Company employees may operate over the main lines of other
railways. The ruling in the instant case must be confined to the unique facts
of the situation at Franz. In the end, the Arbitrator is more persuaded by the
argument of the Union’s representatives to the effect that what occurs at
Franz, by entering onto the CN main line to switch out the transfer siding is
in fact analogous to leaving the CP main line to perform switching work on an
industrial spur. I can see no basis upon which to conclude that the parties
would have intended that the work so performed at Franz should be treated any
differently, particularly as it involves movement over the main line of another
railway which in fact attracts no mileage or time payment.
For the foregoing reasons the grievance is allowed. The
Arbitrator remits the matter to the parties for the orderly payment of all off
main line (OM) claims, it being understood
that the interpretation and application of article 15.01 herein is limited to
the unique facts of this case.
May 19, 2009 (signed)
MICHEL G. PICHER
ARBITRATOR