CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4062
CANADIAN NATIONAL RAILWAY COMPANY
behalf of Locomotive Engineer D.D. Ulmer for lost earnings on Train
L42141 17 on
COMPANY’S STATEMENT OF ISSUE:
contends that the
UNION’S STATEMENT OF ISSUE:
It is the
disagrees with the
(SGD.) T. MARKEWICH (SGD.) D. BRODIE
FOR: GENERAL CHAIRMAN FOR: VICE-PRESIDENT, HUMAN RESOURCES
There appeared on behalf of the Company:
D. Brodie –
Manager, Labour Relations,
D. VanCauwenbergh –
Director, Labour Relations,
There appeared on behalf of the
D. Ellickson –
T. Markewich –
B. Willows –
W. G. Scarrow – Witness
AWARD OF THE ARBITRATOR
makes a preliminary objection. It submits that the
It is common
ground that the grievor holds seniority both as a traffic coordinator (formerly
Yardmaster) as well as a locomotive engineer. At all times material to this
grievance he held permanent work as a locomotive engineer. As indicated in the
statement of issue, on
The issue is whether the Company has any authority to force the grievor from his position as a locomotive engineer to work as traffic coordinator.
Arbitrator’s view it is not surprising that the
It is therefore
not surprising that the
The collective agreement which governs locomotive engineers does recognize that locomotive engineers may hold and accrue seniority as a traffic coordinator. Article 56.14 reads, in part, as follows:
(a) Employees working as either a Traffic Coordinator or Locomotive Engineer shall continue to retain and accumulate seniority under Agreement 4.2 and 1.2 regardless of which classification in which they are employed.
(b) During the period he/she is employed on a yardmaster's position, he/she shall not be considered as having entitlement to work under this agreement.
(c) Employees exercising their seniority under this agreement shall do so in accordance with the appropriate provisions dealing with the exercise of seniority.
The Company relies, in part, on the provisions of article 4.12 of collective agreement 4.2, the collective agreement negotiated by another General Committee of Adjustment which governs traffic coordinators. That article reads as follows:
4.12 Traffic Coordinators must protect, all relief work and extra service as Traffic Coordinator or Assistant Traffic Coordinator in the yard in which employed. Vacancies of five (5) days or less, will be filled temporarily, on a day to day basis in the following sequence:
(1) The employee first up, at straight time, on the Traffic Coordinators Spareboard where established, if none; (See Addendums 10, 10A, 10B and 10C.)
(2) The employee first up, at punitive rates, on the Traffic Coordinators Spareboard where established, if none; (See Addendums 10, 10A, 10B and 10C)
(3) The senior qualified unassigned Traffic Coordinator available at straight time rates in yard service, which includes a Yard/ Joint Spareboard, if none;
(4) The senior regularly assigned Traffic Coordinator available at punitive rates, if none;
(5) The senior unassigned Traffic Coordinator governed by Agreement 4.3 or 4.16 assigned to yard service, which includes a Yard/ Joint Spareboard, as the case may be, at punitive rates, if none;
(6) The senior employee qualified as a Traffic Coordinator governed by other Collective Agreements, if none;
(7) The senior employee qualified as a Traffic Coordinator occupying a position on a road service spareboard, if none;
(8) The senior employee qualified as a Traffic Coordinator, working in road service, when it can be determined that the Traffic Coordinator position filled will not interfere with the employee’s normal assignment.
Note: In the event there is more than one vacancy to fill with the same starting time, the senior qualified employee will be given their choice of assignment.
In the Company’s submission, a locomotive engineer qualified as a traffic coordinator would fall under sub-paragraph (6) of the foregoing provision and would be liable to be called to work as a traffic coordinator. Counsel for the Union responds to that submission, stating that the locomotive engineers cannot, by any principle of contract law or collective bargaining, be bound to an undertaking made by a separate union, or in this case a separate General Committee of Adjustment, under the terms of an entirely separate collective agreement.
In my view the Company’s reliance on article 56.14 is substantially called into question by the history of that article. It appears that it first came into the collective agreement governing locomotive engineers in 1986. At that time the following explanatory note was published:
Employed on Yardmaster’s Position
A new paragraph, 56.14, has been added to Article 56 to allow employees, who hold seniority under both Agreement 1.2 and Agreement 4.2, to work, if they so desire, as a regularly assigned Yardmaster for up to one year, without loss of seniority under Agreement 1.2, even though able to hold work as a locomotive engineer. At the expiration of the year, or at the first time thereafter that he can hold work as a locomotive engineer, the employee will then make his election either to work as a locomotive engineer or remain working as a yardmaster. Election of one will result in the forfeiture of seniority as the other.
As set out in sub-paragraph 56.14(b), during the year in which an employee elects to work as a yardmaster, he is not entitled to work as a locomotive engineer.
Relying on the
above reflected history, counsel for the
finds the argument of the
In considering this dispute it is important to be guided by basic principles. Locomotive engineers have traditionally been regulated, and continue to be regulated, for the purposes of their terms and conditions of employment, under a collective agreement which is entirely separate from the collective agreement negotiated by a different General Committee of Adjustment for conductors, trainpersons and yardmasters. While it would be open to the General Committee of Adjustment which now represents locomotive engineers to agree to a collective agreement provision that would allow engineers holding traffic coordinators’ seniority to be compelled to protect such work under the provisions of collective agreement 4.12, in the absence of any clear provision within the locomotive engineers’ collective agreement to allow such an outcome, I can see no basis upon which the position of the Company can be sustained. To put the matter differently, I am aware of no principle whereby the locomotive engineers can be bound by the provision of another collective agreement, negotiated separately by another trade union under the administration of an entirely separate General Committee of Adjustment.
For the foregoing reasons the grievance must be allowed. The Arbitrator directs that the claim of Locomotive Engineer D. Ulmer be paid forthwith. I further find and declare that the Company violated the collective agreement and that it is without authority to force a locomotive engineer to protect a position as yardmaster or traffic coordinator. For the purposes of clarity, it should be added that nothing in this award should be taken as preventing a locomotive engineer from voluntarily accepting to cover off a temporary vacancy in a traffic coordinator’s position when requested to do so.