RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3907
CANADIAN NATIONAL RAILWAY COMPANY
The operation of trains and performance of work contrary to the Vancouver Direct Hit Agreements.
UNION’S STATEMENT OF ISSUE:
Prior to the implementation of these agreements traffic between Thornton Yard and these secondary locations was solely performed by Yard Employees working in Transfer Service. The Direct Hit agreement allowed Road Service employees to perform this work to/from specific locations and subject to specific conditions.
It is the Union’s position that the Company has repeatedly violated the Vancouver Direct Hit Agreements by requiring extended run crews to perform direct hits, having crews perform work not provided for in the Direct Hit Agreements and by circumventing the payments provided for in the Direct Hit Agreements.
The Company has not responded to either grievance.
(SGD.) T. MARKEWICH (SGD.) B. R. BOECHLER
FOR: GENERAL CHAIRMAN GENERAL CHAIRMAN
There appeared on behalf of the Company:
D. Crossan – Manager, Labour Relations, Prince George
K. Morris –
Director, Labour Relations,
R. Reny – Sr. Manager, Human
P. Payne –
Manager, Labour Relations,
B. Laidlaw –
Manager, Labour Relations,
G. Spanos – Assistant Superintendent, Vancouver
There appeared on behalf of the
M. A. Church – Counsel,
B. R. Boechler – General
B. Willows – General
R. A. Hackl –
T. Markewich – Vice-General
R. Thompson – Vice-General
W. Franko –
J. Robbins – General
P. Vickers – General
R. Lee – Local Chairman, Vancouver
AWARD OF THE ARBITRATOR
Locomotive Engineers in Pool Service, operating trains within Greater Vancouver Terminal with an originating or terminating out of Lynn Creek Yard, Vancouver Main Yard, Sapperton or Brownsville Interchanges or New Westminister will be governed by the terms of this agreement.
1. Locomotive Engineers operating trains to/from the aforementioned yards will be provided a flat rate, all inclusive payment as follows:
These flat rates are payable under an operating scenario wherein the trains would operate successfully to the following points within the Greater Vancouver Terminal:
— For trains destined north of the
— For trains destined south of the
2. Locomotive Engineers originating trains at Lynn Creek Yard, Vancouver Main Yard, Sapperton or Brownsville Interchanges or New Westminister will be compensated an amount equal to that of a yard transfer in the event the train fails to depart the Greater Vancouver Terminal. Additionally, Locomotive Engineers will be compensated under the provisions of article 36.4 of agreement 1.2 ($13.00 one way transfer premium), upon successful arrival at Thornton Yard.
Note: This will not result in duplicate payment (e.g. flat rates outlined in Item 1 do not apply)
Note: Locomotive Engineers will be permitted to book rest in accordance with Article 66 of Agreement 1.2
3. Locomotive Engineers upon arrival at Thornton Yard receiving yarding instructions that they will be required to proceed to Lynn Creek Yard, Vancouver Main Yard, Sapperton or Brownsville Interchanges or New Westminister, and unable to proceed, will be compensated as an exception ticket and not subject to the provisions of the System of Pay Agreement as outlined in Addendum 88 of Agreement 1.2.
4. Locomotive Engineers terminating trains at Lynn Creek Yard or Vancouver Main Yard will be released at those respective locations.
5. The aforementioned mileage will be included in the calculation of an employee’s monthly mileage under the provisions of Article 64 of Agreement 1.2.
6. Locomotive Engineers originating &
terminating trains at
Note: for the above noted trains, the on-duty / off-duty point will be either Lynn Creek Yard or Vancouver Main Yard. The on/off duty point for trains originating / terminating at other locations will be Thornton Yard.
Note: the travel allowance will be monitored closely and should actual travel times to/from North Vancouver or Vancouver Main Yard prove to be greater that the allowance provided, the parties will meet and adjust the travel allowance to reflect the increased times.
7. This agreement pertains only to the locations specified in Paragraph 1 of this agreement. Should the Company expand or change Direct Train service to include other locations within the Greater Vancouver Terminal, the parties are agreed to meet locally and establish rates and conditions which will be applicable to the new locations.
8. The parties agree to review the effects of this agreement relative to identifying any materially adverse effects emanating from any increase in the number of direct trains operated.
Note: if the number of direct trains increases above an average of 6 trains or more per day over a 30 day period, the parties will meet to discuss the adverse effects.
The agreements also include provision for a number of early retirement credits, apparently in recognition of the fact that the Direct Train Agreement would have some impact on the reduction of yard work.
have a substantially different characterization of the origins and purpose of
the Direct Train Agreements. The Union submits that prior to 1999, by a long
and consistent practice, the parties recognized that road crews terminating at
As an example,
the Company cites train 403 which operated on
Counsel for the
[Employees] terminating trains at Lynn Creek Yard or Vancouver Main Yard will be released at those respective locations.
Counsel for the Union questions by what logic a crew which is required to perform extra work, namely returning their power from Lynn Creek Yard back to Thornton Yard, should in the end be compensated at a lower rate than they would have been had they left their power at Lynn Creek Yard and proceeded back to Thornton Yard by taxi, in accordance with the travel allowance contemplated under paragraph 6 of the agreements. He maintains that the original intent of the agreements is that single subdivision road crews assigned beyond Thornton Yard whose trains terminate at Lynn Creek Yard are to be released at those locations, in accordance with paragraph 4 of the Direct Train Agreements. He submits that the Company cannot avoid paying the flat rate remuneration of the Direct Train Agreements by purporting to have the crew operate their engines light back to Thornton Yard, thereby obviating the application of the Direct Train Agreements.
example of an alleged violation raised by the Union concerns the operation of
extended run trains. It cites the example of train 730 operated on
In support of
its position, which effectively states that extended run trains are not to
operate under the Direct Train Agreements in any territory west of Thornton
Yard, the Union draws to the Arbitrator’s attention the minutes of a meeting
between the Company and the Union held at Calgary on
No. 1 Extended Run Trains Not To Be Included in Direct Hit Agreement
● No extended run trains will be required to
go beyond Thornton Yard with the possible exception of extended run trains
● Prior to requiring extended run trains to
The Unions also
object to the Company operating a reverse direct hit train from a location
other than Lynn Creek Yard, Vancouver Main Yard, the Sapperton or
Should the Company expand or change direct train service to include other locations within the Greater Vancouver Terminal, the parties are agreed to meet locally and establish rates and conditions, which will be applicable to the new locations.
The Unions submit that the Company could not originate a direct
hit train at the West Vancouver Yard without complying with the obligation to
negotiate terms as contemplated in item 7 of the locomotive engineers’
agreement. The Company responded that: “The former BC Rail yard is encompassed
by the GVT and is essentially an extension of our
further cites examples of delay in departing
representatives deny any violation of the Direct Train Agreements or the
collective agreements on the facts discussed above. The Company submits that
the fundamental collective agreement right of the Company to direct employees,
whether in single subdivision service or in extended run service, to operate to
a point of destination which might be through a series of yards is in no way
limited by the provisions of the Direct Train Agreements at Vancouver. As
explained by a representative of the Company, the purpose of the Direct Train
Agreements was to deal with a problem of substantial congestion which existed
before and during the year 2000. The congestion within the Vancouver Terminal
was due to a number of factors, including the fact that some five different
railways operate through the area, and that the Company was then obligated to
The Company stresses that there is no language within the Direct Train Agreements which would limit its ability, under the general terms of the collective agreement, to operate either single subdivision trains or extended run trains through a series of yards, including all of the yards of the Vancouver Terminal, such as is done at other locations on Western Lines with multiple yards such as Edmonton and Winnipeg.
has considerable difficulty with the position argued by the Company. Firstly,
the uncontroverted material before the Arbitrator confirms that prior to 1999
no road crews ever operated to the west of Thornton Yard. Crews might be
assigned through a series of yards, but that series was limited to the VIT, the
Surge Yard and Thornton Yard. Beyond that point, as the
That is the
contextual reality in which the Direct Train Agreements were negotiated in 1999
and 2000. In fact it appears to have emerged as a compromise following the then
Unions’ objections to the Company operating road crews through Thornton Yard,
apparently commencing in February 1999. As reflected in correspondence to the
Company from then BLE General Chairman M.W. Simpson dated
purposive point of view the argument advanced by the Company does appear
questionable. It is difficult for the Arbitrator to appreciate, according to
the Company’s reasoning, the differential treatment of two train crews in the
following example. Train Crew A, operating in single subdivision service from
Boston Bar to
Nor can the
Arbitrator accept the Company’s submission that it is at liberty to operate
extended runs which may originate or terminate west of Thornton Yard. It is
true that, on their face, the Direct Train Agreements make no reference to
single subdivision or extended run assignments. There is, however, in the
Arbitrator’s view a latent ambiguity established by reason of the evidence
placed before the Arbitrator concerning the negotiation of the agreement
itself. As noted above, the locomotive engineers’ General Chairperson expressly
wrote to the Company’s point person in the negotiation of the Direct Train
Agreements, Jim Vena, enclosing minutes of their discussion and understanding.
That communication includes the title “Extended Run Trains Not To Be Included
In Direct Hit Agreement”. Most importantly, the ensuing sentence clearly states
that no extended run trains are to be required to operate beyond Thornton Yard,
with one exception. Should that exception, involving the
In order to avoid any misunderstanding during the thirty day process, please review my notes from our meeting. If I don’t hear from you I will assume we are in agreement that the notes accurately reflect our discussions.
considers this to be an important piece of evidence. For reasons it best
appreciates, the Company did not have Mr. Vena attend at the hearing nor did it
call any other person to give evidence to refute the content of the minutes
reviewed above. This is not, in my view, a situation where a self-serving
document is tendered by one side. Rather, it is one where a shared document
appears to have been accepted for its content by the other side, without
objection and without subsequent evidence to suggest that there was in fact no
agreement. In my view this extrinsic evidence, admissible in these
circumstances, is conclusive. I must find and declare that the Company is not
at liberty to operate extended run trains in either direction in that part of
the Greater Vancouver Yard west of Thornton Yard, with the exception of the
is also compelled to find that the Direct Train Agreements do not presently
contemplate a direct train operating from the location of BCR West Vancouver
Yard, as occurred with train 300 on
also finds that the Unions’ allegation of a violation of the collective
agreement and the Direct Train Agreements on the occasion of a road crew being
required to unload a coal train prior to departure from Neptune Terminals on
I am not,
however, persuaded on the basis of the material before me that the manner in
which the Company is now requiring road crews to spot ore trains at Neptune
Terminals is necessarily in violation of the agreements. Indeed, it would
appear from the representations received that the Union has accepted the
legitimacy of spotting the initial four cars, for example on a coal train at
Nor do I
consider that this is an appropriate award to deal with the issues of delay,
given in the examples of train 798 on
remedies requested by the
On that basis, the matter is remitted to the parties. The Arbitrator retains jurisdiction with respect to all aspects of the remedy, or any dispute which may arise concerning the interpretation or implementation of this award.