(the “Company”)







(the “Union”)







Sole Arbitrator:                      Michel G. Picher




Appearing For The Union:

            Brian McDonagh                 – National Representative, New Westminster

            Drew Ratajueuski                – Regional Vice-President

            Robert Davis                         – Lodge Chairman

            Patrick Foucault                   – Grievor



Appearing For The Company:

            Ross Bateman                      – Sr. Manager, Labour Relations, Toronto





A hearing in this matter was held in Toronto on Friday, 10 July 2009.




            The Union alleges that the Company failed to follow the provisions of the collective agreement in assigning a car mechanic from Capreol, Ontario to work a temporary position in North Bay. It maintains that the Company could not, as it purported to do, force junior Car Mechanic Patrick Foucault from his regular position in Capreol to perform car mechanic’s duties on a temporary basis at North Bay. It also submits that following the establishing of a permanent position at North Bay the grievor was treated improperly with respect to relief assignments to that location after March 19, 2007. The Union’s submission to the Arbitrator contains the following statements of fact and issue:


Statement of Fact:


On October 21, 2006, the Company began forcing the junior car mechanic from Capreol, Ontario (Patrick Foucault) to fill an alleged temporary position in North Bay.


On October 25, 2006, the Union filed a grievance requesting the establishment of a one man point position in North Bay in accordance with Rule 52.17, as it appeared that a permanent position of an expected period of over 90 days existed.


According to Car Mechanic Patrick Foucault he was forced from his seniority terminal of Capreol, Ontario to another seniority terminal in North Bay, Ontario on the following dates:


October 21, 2006 to October 25, 2006; (P. Foucault commuted)

October 26, 2006 to December 7, 2006; (P. Foucault began staying in North Bay

December 24, 2006 to December 31, 2006;

January 1, 2007 to May 6, 2007;

July 12, 2007 to July 15, 2007;

September 11, 2007 to September 30, 2007;

November 27, 2007 to December 2, 2007;

February 18, 2008 to February 23, 2008;

August 25, 2008 to September 6, 2008;

October 27, 2008 to November 4, 2008;

May 6, 2009 to May 10, 2009.


On March 19, 2007 the Company bid [sic] a permanent position in North Bay, but continued to force Patrick Foucault to North Bay to relieve the permanent position created on March 19, 2007.


Even though Patrick Foucault ceased being the junior employee at Capreol on October 3, 2008, the Company continues to force him to North Bay.


Statement of Issue:


The Union contends that the Company has no right to force a junior employee at a specific Seniority Terminal (Capreol) to work at another Seniority terminal (North Bay).


If further the position was temporary as alleged, the Company should have bid [sic] such temporary Assignment to the Region as has been done in the past and if not claimed, should have forced the junior car mechanic on the Region to North Bay.


It is further the position of the Union that the alleged Temporary position in North Bay was in fact a permanent position expected to be required for a period of over 90 days in North Bay and therefore should have been bid [sic] as a one man point in accordance with Rules 23.11, 23.13 and 52.17 of the collective agreement.


In regard to the above it is the Union’s view that the Company has violated the following provisions of the collective agreement: Rule 23, Rule 23.11, Rule 23.13, Rule 52.17 and Appendix 10.


            The Company has a substantially different view of this dispute. To that end it filed a separate ex parte statement of issue which reads as follows:


Statement of Issue:


When a temporary vacancy was created at North Bay, Ontario, in October 2006, the Company canvassed the Capreol Terminal for applicants under Rule 23.12. P. Foucault was subsequently forced to protect the vacancy at North Bay as a result of no interest from senior employees to protect the work.


The Union submitted a grievance on October 25, 2006, claiming that a permanent vacancy existed at North Bay and that it should be bulletined as a Car Mechanic One Man Point position in accordance with the provisions of Rues 23.11 and 52.17. The Union additionally submitted that the Company could not force Mr. Foucault to the North Bay position.


A Permanent Car Mechanic One Man Point position at North Bay was subsequently bulletined on March 19, 2007. As a result of the bulletining of a permanent position at North Bay, the sole issue remaining in dispute is the Union’s policy grievance alleging that the Company cannot force P. Foucault to North Bay to fill a temporary vacancy.


It is the Company’s position that temporary vacancies at North Bay are to be offered to employees at Capreol Terminal in accordance with rule 23.12 and that if there are no applicants, the junior qualified employee at Capreol Terminal will be force assigned. [sic]


            The facts underlying the grievance are not in substantial dispute. North Bay, Ontario is not a Company terminal. However, the Company has operated train 450 through that location. In furtherance of that operation it entered into an arrangement with Ontario Northland Railway (ONR) for car mechanic services at North Bay. Over time the Company formed the view that its arrangement with ONR was excessively expensive with respect to costs of car inspection and repairs associated with train 450. It therefore determined to experiment with another means of servicing train 450.


            It appears that initially the Company dispatched the road repair truck from Capreol to North Bay to perform the inspections and repairs associated with train 450. As the employer viewed the withdrawal of one of two road repair trucks from Capreol to North Bay as being problematic for the services required out of Capreol, it discontinued that way of servicing the train in North Bay. As the Company describes it, to give itself an opportunity to review its options with respect to service to train 450 it decided to establish a temporary position for a car mechanic at North Bay. It maintains that it initially canvassed employees at the Capreol Terminal in seniority order and that no employees were interested in the temporary vacancy for work in North Bay. On that basis it decided to force the junior-most qualified employee, Mr. Foucault, to perform the work at North Bay on a temporary basis. It appears that he was also reimbursed for meal and lodging expenses and he either received mileage costs or transportation between Capreol and North Bay was provided to him.


            The fundamental position of the Union is that the Company does not have the ability to force the junior qualified employee from Capreol as it did. It submits, among other things, that the Company should have been required to offer the temporary position at North Bay on a region basis and, failing volunteers, to force the junior employee on the region. It also submits, in the alternative, that in any event the work at North Bay did not constitute a temporary vacancy and should have been bulletined as a permanent one man position, as in fact was eventually done on or about March 19, 2007. It also submits that in the event that the Company can be said to have the ability to force a junior employee from Capreol to North Bay, at least one apprentice junior to the grievor continued to work in Capreol, apparently gaining the advantage of more generous overtime assignments available from that location.


            The record appears to reflect that in fact Mr. Foucault was forced to North Bay for relatively extensive periods of time between October 21, 2006 and May 6, 2007. It also appears that after the Company did establish a permanent position at North Bay Mr. Foucault was compelled to provide relief for the employee at that location, generally for periods of vacation, on some six occasions between September of 2007 and May of 2009.


            The fundamental position of the Union is that the Company was obliged to establish a permanent position at North Bay from the outset. Its representative stresses that seniority under the collective agreement is on a terminal by terminal basis and that in the circumstances the vacancy which should have been bulletined at North Bay would first be made available to employees at the terminal of Capreol and, failing any bidders, would then be bulletined to the Basic Seniority Territory and then to the Region. The Union’s representative submits that those steps should have been taken. In that regard reference is made to the following provisions of the collective agreement:


23.3 (a)  Seniority of employees covered by this Agreement shall,  except as otherwise provided herein and in the Trade Special Rules and Employment Security and Income Maintenance Agreement, be confined to the seniority terminal at which employed and to the date of entry into their respective classifications.


23.11   When vacancies occur for which replacement is required, or new jobs are created or additional staff is required in a classification in a respective trade for an expected period of 90 calendar days or more such vacancies or new jobs shall be bulletined for a period of not less than 7 calendar days to employees in the classification at the seniority terminal where they are created, and will be awarded to the senior employees, subject to Rule 23.29, the local committee to be consulted. An employee who is awarded a position under this Rule 23.11 will not be awarded the vacancy caused by the employee’s departure from the employee’s former position unless the employee is the only qualified applicant. The foregoing sentence will only apply when the bulletined duties, hours of work and rest days are identical to the bulletined position the employee has vacated during the ninety (90) calendar days previous to the closure date for applications to the new bulletin.


(See Appendices II and IX


            Within a main shop, successful applicants will be permitted to move within fifteen (15) calendar days of the close of the bulletin. This period may be extended to 30 days by mutual agreement with the Regional Vice-President.


23.13   If a vacancy or new position of expected duration of 90 calendar days or more requiring additionally staff is not filled by an employee in the classification at a home seniority terminal, it shall be bulletined for not less than 7 calendar days, firstly to the employees holding seniority in the classification in the trade union on the basic seniority territory and, secondly, to such employees on the Region. Subject to qualifications, seniority will govern.


            A running point employee who bids on a position at a main shop in accordance with this rule 23.13 and is delayed in transferring to the main shop for a period of thirty days or more shall, on transferring to the main shop, be entitled to exercise seniority on any position bulletined within the main shop during such delay.


            Employees who transfer under this rule 3.13 shall, after 90 calendar days forfeit their seniority at the seniority terminal form which transferred and shall carry their seniority rights to the new seniority terminal; except that employees on laid-off status at their home seniority terminal may exercise their rights under this rule without forfeiting their seniority at their home seniority terminal. The Regional Vice-President  shall receive a copy of all such bulletins.


            For the purpose of this Rule 23.13 the number of employees to be transferred and the method to be used shall be mutually arranged between the proper officer of the Railway and the Regional Vice-President in order to meet the requirements of the Railway service.


            The Union’s submission with respect to North Bay being a one car mechanic point, and its submission that the grievor should have been compensated, at a minimum, on the basis of the provisions governing one car mechanic points is a reference to rule 52.17 which provides, in part, as follows:


52.17 (a)  A “one car mechanic point” is an outlying point where there is employed one car mechanic, day, and one, night, or where there is only one car mechanic employed.


(b)   Car mechanics stationed at one car mechanic points shall be allowed 179.3 hours per four week period made up of 160 hours at straight time and 19.3 hours at tome and one-half at the hourly rate provided in Rule 31.


(c)   Where car mechanic inspectors, including work train inspectors, or car repairers at one car mechanic points are required by order to work a total of more than 179.3 hours per four-week period, they shall be paid for all time worked in excess of 179.3 hours per four-week period in accordance with the following:


       In the application of rules 52.17(b) and 52.17(c):


       Actual overtime hours worked in excess of 160 hours will be accumulated over a twelve-week period.


       If these total overtime hours worked exceed 57.9 (comprised of 19.3 hours x 3 four week periods) such additional hours worked in excess of 57.9 will be paid for at the rate of time and one-half at the conclusion of the twelve-week period.


            The Company submits that there is nothing within the terms of the collective agreement which prevents it from making a temporary transfer of a junior employee, as it did with Mr. Foucault to fill a temporary vacancy. Its representative stresses that while there have been exceptions, the Company does not generally assign apprentices to unsupervised assignments at remote locations. He argues that it was within the rights of the Company to transfer the junior most qualified employee at Capreol to cover the temporary vacancy at North Bay. In that regard the Company points to the provisions of rule 7 which read as follows:

Rule 7 – Temporary Transfers


7.1  Employees sent out to temporary vacancies at an outlying point or shop, or sent out on a temporary transfer to an outlying point or shop will be paid continuous time from time ordered to leave home station to time or reporting at point to which sent, straight time rates to be paid for straight time hours at home station and for all other time, whether waiting or travelling. If on arrive at the outlying point there is an opportunity to go to bed for five (5) hours or more before starting work, time will not be allowed for such hours.


7.2  While at such outlying point they will be paid straight time and overtime in accordance with the bulletin hours at that point, and will be guaranteed not less than eight hours for each day.


7.3  Where meals and lodging are not provided by the Company, actual necessary expenses will be allowed.


7.4  On the return trip to the home station, straight time for waiting or travelling will be allowed up to the time of arrival at the home station.


7.5  If required to leave home station during overtime hours, they will be allowed one hour preparatory time at straight time rate.


            The Company’s representative submits that the merits of this grievance fall within the principles canvassed by the Arbitrator in SHP 268, a grievance between the Ontario Northland Railway and the Brotherhood of Railway Carmen of Canada and the resulting award dated June 12, 1989. Reference is specifically made to the following from that award:


The Union objects to the Company’s assignment of Junior Carmen at North Bay to temporary relief positions at Timmins and Englehart. By means of this policy grievance it asserts that Company cannot force a junior employee out of his home terminal to relieve for vacation purposes at another terminal.


It is not disputed that in the instances that gave rise to this grievance the Company did post bulletins in an attempt to obtain volunteers for vacation relief positions at the northern terminals. When those efforts proved unsuccessful, junior carmen at North Bay were forced onto the assignments. The Company’s contention is that the practice followed in the cases giving rise to this grievance has been in effect for a number of years.


The Union’s representatives have not directed the Arbitrator to any language in the collective agreement which would prohibit the employer from temporarily assigning junior Carmen at North Bay to vacation relief assignments at other terminals. In a collective bargaining setting it is a general presumption that an employer retains the management right to direct its workforce, including the right to assign and transfer employees, subject only to such restrictions as may be specifically articulated within the terms of the collective agreement. Rule 23.12 in the instant collective agreement required the Company to respect the right of senior qualified employees from the home Seniority terminal involved to claim vacancies, should they desire them. It does not, however, contain any provision that prohibits the Company from forcing a junior employee whatever his or her work location may be, from being temporarily assigned to perform the relief in question, when employees cannot be found through the exhaustion of the procedures in Rule 23.12.


The facts giving rise to the instant case disclose no violation of Rule 23.12, nor of any other provision of the collective agreement. For the foregoing reasons the grievance must be dismissed.


            I turn to consider the merits of this dispute. In doing so, it appears to the Arbitrator that a significant issue to be sorted out at the outset is whether the Company was entitled to treat the work at North Bay, at least on an initial basis, as a temporary vacancy. I am satisfied that it was so entitled. The unchallenged representation of the Company is that it was encountering difficulties and undue expense in the servicing of train 450 through the contracting arrangement it had with Ontario Northland Railway. As it was in the process of weighing its options and considering alternatives, in the Arbitrator’s view it was entirely appropriate for the Company, at least on a trial basis, to assign one of its own car mechanics to work at that location on a temporary basis to assess the feasibility of that approach. In essence, what transpired was Mr. Foucault being assigned on a temporary basis to North Bay between October 21, 2006 and May 6, 2007. While it would seem that that period did grow to be greater than ninety days, it is not disputed that in fact the Company did bulletin a one man point position at North Bay on March 19, 2007. I am satisfied that in the circumstances there was substantial compliance with the rules of the collective agreement, including rule 7 and rule 23.


            With respect, the Union’s case essentially rests on alleged violations of rules 23.11 and 23.13 which, on their face, plainly apply to permanent vacancies of ninety days or more, and not to temporary vacancies. The Union’s position is simply not responsive to the fundamental issue, which is whether the Company did have the right to resort to establishing a temporary vacancy at North Bay and forcing a junior employee to that location while it considered its options.


            In answering that question, the Arbitrator is satisfied that the principles expressed in SHP 268 do properly apply in the case at hand. In the instant dispute the Union has pointed to no provision of the collective agreement which would effectively guarantee to Mr. Foucault that he could not be forced from his position at Capreol or, if forced, was somehow entitled to be paid wages based on work which would have been available to him at Capreol rather than for the work which he actually performed at North Bay.


            Nor can the Arbitrator attach great weight to the suggestion of the Union’s representative that in fact there was no canvassing of senior employees by the Company at Capreol. No evidence was adduced to confirm that fact nor, significantly in the Arbitrator’s view, is there any serious suggestion that there was any senior employee willing to assume the assignment identified by the Union. Indeed, if that had been the case the Arbitrator might be faced with a very different grievance from such a senior employee. There being none, the Arbitrator has some difficulty in assigning significance to the Union’s allegation that senior employees were not properly canvassed. The Union’s argument in that regard is more technical than substantive, assuming that it could be grounded in direct evidence. Nor, as appears from the evidence, can the Arbitrator find any violation of the rules of the collective agreement with respect to the continuing assignment, on a relief basis, of Mr. Foucault to North Bay. The Union has directed the Arbitrator to no provision of the collective agreement which would prohibit such assignments to a junior employee.


            In the result, the Arbitrator cannot find that the rules and appendix asserted by the Union as having been violated were not respected by the Company it its handling of the assignment to Car Mechanic Foucault. No violation of the rules is disclosed and the grievance must therefore be dismissed.



Dated at Ottawa this 23rd  day of July, 2009.



“Michel G. Picher”

                                                                                                      MICHEL G. PICHER