CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3813
Heard in Montreal, Tuesday, 13 October 2009
CANADIAN NATIONAL RAILWAY COMPANY
The decision by the Great Canadian Railtour Company to crew their own seasonal excursion train – the “Whistler Mountaineer” effective 2010.
COMPANY’S STATEMENT OF ISSUE:
The TCRC contends that BCR locomotive
engineers must man the train as the work has been performed by BCR locomotive
engineers and article 1.11 and item #9 of the Memorandum of Agreement signed
The TCRC-CTY contends that BCR conductors must man the train as provided for under article 103.
The Company disagrees with the Unions’ contentions.
FOR THE COMPANY:
(SGD.) D. CROSSAN
FOR: DIRECTOR, LABOUR RELATIONS
There appeared on behalf of the Company:
J. Cavé –
D. Crossan – Manager, Labour Relations, Prince George
K. Morris –
Sr. Manager, Labour Relations,
B. Laidlaw – Manager, Labour Relations, Winnipeg
There appeared on behalf of the
S. A. Moore – Counsel, Vancouver
J. Holliday –
R. Ellerbeck – Local Chairman,
B. Willows –
T. Markewich – Sr. Vice-General Chairman, Edmonton
AWARD OF THE ARBITRATOR
The facts in relation to this dispute are
not essentially contested. The two grievances arise as a result of the announced
intention of the Company to permit the Great Canadian Railtour Company (GCRC)
to operate its passenger trains over former BC Rail trackage, now owned by CN,
using crews hired and employed by GCRC. Under that plan, commencing in 2010,
GCRC employees would operate trains which have been exclusively operated by
members of the two running trades bargaining units, conductors and locomotive
engineers, since the inception of the train in question, the Whistler
Mountaineer, in 2006. It appears that the GCRC commenced operating the Whistler
6. BCR locomotive engineers who maintain a continuous employment relationship with the Company shall have preference, in seniority order, over other locomotive engineers covered by collective agreement 1.2 [CN collective agreement] in the filling of locomotive engineers’ position on the former BCR territory. Such positions are identified herein as protected BCR positions.
Protected BCR positions are defined as all regular assignments, spare boards, pools, work train, yard assignments and any other train service that may operate at and/or between the following locations:
9. BCR Agreements including arbitrations, Memorandum of Agreements [sic] and Local Agreements, unless expired, cancelled or re-negotiated, will continue in effect and be applicable to all locomotive engineers working on the territory defined in Item 6 of this Memorandum of Agreement.
12. It is understood that Protected BCR positions may be discontinued or work re-scheduled through the issuance of Material Change Notice as outlined in Article 23 of the BCR collective agreement. This will not apply in respect of changes brought about by the normal application of the collective agreement, changes resulting from a decline in business activity, fluctuations in traffic, traditional reassignment of work or other normal changes inherent in the nature of the work in which employees are engaged.
2) Operational Issues
Third Party Passenger Services
Passenger trains operated by third parties on BC Rail track will be crewed by one Conductor and one Locomotive Engineer in a Cabooseless Conductor Only configuration
The Railway will
consult with the
Article 103 – Detouring
Foreign trains detouring over BC Rail
Ltd. shall be manned by BC Rail Ltd. crews. The question of operation under
joint section or running rights agreement to be the subject of discussion
between the Railway and the
Article 1.11 – Detouring
Foreign trains detouring over BC Rail
shall be manned by BC Rail engineers. The manner of operation under joint
section or running rights agreement to be subject of discussion between the
Railway and the
Most fundamentally, the
The Company maintains that the operation of
the Great Canadian Railtour Company which runs entirely over former BC Rail
lines, now CN lines, between
The Company further stresses to the Arbitrator numerous other circumstances in which third party trains, operated by the crews of a foreign railway, do so without violating any collective agreement. Examples cited by the Company include the GCRC tourist trains operating between Vancouver and Jasper via Kamloops, as well as VIA operations across Canada and GO Transit operations in Ontario, among others.
The Company submits, in part, that what has
occurred is essentially an exception to paragraph 12 of the agreement of
After careful consideration, and an
extensive review of the materials, including the prior award of Arbitrator
Hope, the Arbitrator has substantial difficulty with the position advanced by
the Company. Central to that view is the analysis of the detouring provisions made
by Arbitrator Hope, and the conclusions which he drew in his award of
Firstly, the Arbitrator does not view the factual circumstances before Arbitrator Hope as being materially different from those in the case at hand, contrary to the Company’s view. Arbitrator Hope dealt with a situation which involved an arrangement between BC Rail and CN which essentially allowed each railway to operate its own trains directly into the yards of the other railway. The agreement also contemplated CN trains operating directly over a BC Rail loop track at the Vancouver wharves. The operations there under consideration did not, it is clear, involve detouring in the sense that the Company would define it in this dispute. Trains in the circumstances before Arbitrator Hope did not depart their own tracks for a temporary diversion to then return to their own territory. Essentially, under the arrangement there under consideration foreign trains simply operated over a segment of BC Rail track to reach a destination, whether in a yard on tracks at the Vancouver wharves.
As a starting point, Arbitrator Hope recognized the long-standing practice whereby the operation of foreign trains over BCR territory was always reserved to BCR crews. At paragraph 20 of his award he commented in that regard:
In summary, in terms of the practice of the parties, the invariable practice for as long as they can recall has been to have foreign trains on BCR trackage operated by BCR crews. The Port Sub is anomalous in terms of practice. In physical terms, it is not part of the BCR system and is not included in the railway’s timetable … What has not occurred in practice is the operation of foreign trains by foreign crews into the BCR yard. That work has always been performed by BCR crews, as has all road operations involving foreign trains.
 …That is, in terms of the facts in this dispute, the change proposed by the Railway contemplates that foreign trains in the sense of trains retaining their essential characteristic of belonging to a foreign railway, will be operating on BCR yard trackage. The question then becomes whether such trains are “detouring” on BCR trackage.
 Caught up in that question is whether the terms, “detouring”, and “operation under joint section or running rights agreements” are mutually exclusive. …
 … However, in dictionary terms, the Concise Oxford Dictionary, Ninth Edition, includes in the definition of detour, “a divergence from a direct or intended route” as one of its meanings. In Webster’s Third New International Dictionary, Unabridged, the meanings of detour include, “to divert, turn aside … a turning aside a circuitous route, a deviation from a direct course or the usual procedure, a roundabout way temporarily replacing part of a route”. In short, a “roundabout way temporarily replacing part of a route” is only one of the meanings to be ascribed to the term.
 The question of whether a particular movement constitutes “detouring” must be measured in a consideration of the operation in which the movement occurs. In this dispute, the movement proposed by the Railway occurs in the context of an interchange of trains between railways. On the evidence, the existing procedure in the interchange of trains in North Vancouver is for the foreign train to be handed over, in effect, to BC Rail in the interchange or short extensions of the interchange. In that process, foreign trains are parked or interchanged directly with BCR crews. The proposed change involves foreign trains retaining their foreign identity while they travel over BCR trackage, a change which certainly constitutes “a deviation from … the usual [interchange] procedure”.
Finally, at paragraphs 70, 73 and 75 Arbitrator Hope voiced the following thoughts and conclusions.
 However, in selecting between two possible meanings, I conclude that the governing principles favour the interpretation advanced by the Unions. In particular, the structure of the provisions, including their title, favour a conclusion that the entire provision involves detouring, including the language relating to running rights agreements. If, as is argued by the Railway, operations under running rights agreements are unrelated to detouring, a significant question is, why was the title confined to detouring? Similarly, if foreign trains do not fall within the meaning of detouring, why was the running rights language included in the detouring provision? More particularly, if it represents a right reserved to management, why was it necessary to include it in the collective agreement at all?
On the Railway’s interpretation, the topics of detouring and operating under running rights agreements are unrelated. But it is only if operations under running rights agreements are seen as a particular example of detouring that the inclusion of two topics in one provision under one title can be reconciled with the interpretive principles that apply. …
 To accept the interpretation of the Railway would require the second sentence to be read as expressing the meaning that foreign trains operating with foreign crews under a running rights agreement are not detouring, and, more particularly, can be operated with impunity. In a literal application of the language, the Railway could operate foreign trains into any yard, including the Prince George yard, and, in fact, could allow the operation of any number of foreign trains over its trackage provided their operation did not meet the Railway’s narrow definition of a detour in the sense of returning the particular train or trains to the foreign railway.
 In the result, I accept the submission of the Unions and the grievance is granted. However, in terms of declaratory relief, there is no jurisdiction in an arbitrator to prohibit the Railway from entering into a running rights agreement. What is within my jurisdiction is the granting of a declaration that foreign trains operating on BCR trackage outside the interchange process fall within the detouring language and must be operated by BCR crews. The Railway has a clear business interest in negotiating yard to yard movements in place of the interchange process. But, if the objective cannot be achieved within the terms of the collective agreement, the Railway must pursue its objective in negotiations with the Unions.
It is well settled, as has been stated in
prior awards of this Office, that under the Canadian collective bargaining
system when a board of arbitration has rendered an interpretation binding upon
both parties and they have thereafter renewed their collective agreement
without making any change in the language so interpreted, they are deemed to
have accepted the arbitrator’s award as the proper interpretation of their
collective agreement. Indeed, that principle is well reflected in the documents
before the Arbitrator in the instant case, notably the express provision found
in paragraph 9 of the
While the foregoing observations would dispose of the grievances, the Arbitrator is also of the view that the 2003 MOS is supportive of the same conclusion. In that agreement BC Rail negotiated with the Unions the precise crew consist of passenger trains operated by third parties on BC Rail track. I find it difficult to believe that the parties who made the agreement with respect to the reduction in crew consists did so with the view to binding the employees of another railway. Indeed, the reference within the 2003 MOS to the parties consulting “… with respect to any other work by BC Rail employees” strongly suggests the contrary, and that the underlying principle at all times was that the work in question would belong to the employees of BC Rail.
For clarity, it should be stressed that the instant award must be viewed as confined to the contractual provisions here in question, namely those governing former BC Rail territory. While, as the Company emphasises, different arrangements may exist elsewhere without doing violence to any collective agreement, the collective agreement provisions which govern in the case at hand clearly require that the Whistler Mountaineer, operating over former BC Rail territory, must be operated by running crews of the Company.
For the foregoing reasons the grievances are allowed. The Arbitrator finds and declares that the Whistler Mountaineer must be crewed by Company employees, with priority to be given to former BC Rail locomotive engineers and former BC Rail conductors. The Company is directed to bulletin forthwith the seasonal assignments associated with the Whistler Mountaineer train in accordance with this award.
November 6, 2009
(signed) MICHEL G. PICHER