CANADIAN RAILWAY OFFICE OF ARBITRATION

CASE NO. 3411

Heard in Calgary, Tuesday, 9 March 2004 concerning

CANADIAN NATIONAL RAILWAY COMPANY

and

TEAMSTERS CANADA RAIL CONFERENCE

[BROTHERHOOD OF LOCOMOTIVE ENGINEERS]

EX PARTE

DISPUTE: The Company’s failure to properly compensate Locomotive Engineer K.P. Barr of Regina, Saskatchewan, guarantee entitlements, as outlined in article 2.3 of collective agreement 1.2. UNION’S STATEMENT OF ISSUE: On November 23rd, through November 30, 2003, Locomotive Engineer Barr was assigned to the 523 road switcher assignment at Regina. The Union submitted that the collective agreement provides for various guarantees, paid at certain rates for different classes of services. In the instant case, the Union contended that given the grievor was working in assigned road service, and therefore a guarantee of 3,000 miles is applicable, and such guarantee must be paid at road switcher rates The Company submitted that the assignment that the grievor was working was not considered an assigned run as contemplated under the provisions of paragraph 2.3 of article 2 and, accordingly, he was not entitled to road switcher rates. The Company disagrees with the Union’s position.

FOR THE UNION: (SGD.) D. E. BRUMMUND FOR: GENERAL CHAIRMAN There appeared on behalf of the Company: B. Laidlaw – Manager, Human Resources, J. Torchia – Director, Labour Relations, Edmonton R. Reny – Senior Manager, Human Resources, Edmonton S. Ziemer – Manager, Human Resources, Vancouver R. Dilssner – Assistant Manager, Crew Management Systems And on behalf of the Union: D. E. Brummund – Sr. Vice-General Chairperson, Edmonton B. Boechler – General Chairperson, UTU, Edmonton R. A. Hackle – Vice-General Chairperson, UTU, Edmonton AWARD OF THE ARBITRATOR

The instant grievance concerns the interpretation and application of article 2.3 of

the collective agreement which reads as follows:

Monthly Guarantee for Assigned Road Service 2.3 Locomotive engineers on assigned runs not able to make 3000 miles per month will be paid 3000 miles per month or their proportion thereof if they do not work a full month but may be held to that extent provided such service is not in yard service. Where agreed between the appropriate local officer of the Company and the local chairman, runs less than 3000 miles per month may be established because of local conditions and will not be governed by this paragraph.

It is not disputed that assigned road service can take a number of forms,

including through freight service, road switcher, work train, way freight, snow plow and

passenger service, each having its own separate rate of pay. The purpose of article 2.3

is to ensure that a locomotive engineer in assigned road service is able to earn no less

than a monthly minimum salary equivalent to 3,000 miles’ pay.

The instant grievance arises out of the circumstance of Locomotive Engineer

Kevin Barr of Regina, Saskatchewan. Mr. Barr worked road switcher assignment 523 for

a period of time in November of 2002. In submitting his pay claim the grievor requested

the road switcher rate per day of $198.62 for the eight days in November he was

assigned to the job, in what he claims is compliance with the guarantee provisions of

article 2.3 of the collective agreement. The Company did not, however, calculate the

grievor’s guarantee on the basis of the road switcher rate of pay. Rather, it gave him his

guarantee payment based on the through freight rate of pay, or the equivalent daily rate

of $150.30. In the result, the sole issue in dispute is whether the grievor’s guarantee is

to be calculated on the rate of pay for road switcher service or the rate of pay for

through freight service.

In the Arbitrator’s view it is significant that there is no formula provided within

article 2.3 with respect to the calculation of the monthly guarantee. The article simply

provides that employees are to be paid “3,000 miles per month or their proportion

thereof if they do not work a full month …”. In these circumstances it is arguable that the

Company was at liberty, absent any contractual constraint within the terms of the

collective agreement, to determine the manner in which the 3,000 mile guarantee is to

be calculated. That appears to have been the approach of this Office to the calculation

of deadheading rates of pay in a grievance between Canadian National and the United

Transportation Union in CROA 1142. But in the Arbitrator’s view it is unnecessary to

rest the instant decision on that basis.

In my view the proper approach was articulated in the following in SHP 379 , a

grievance between CN and the CAW, Local 100, an award dated April 8, 1993. In that

award the following comments appear:

It is a well-established rule in interpretation that where the language of the collective agreement is susceptible of two possible constructions, or where there is ambiguity apparent in a provision, recourse may be had to extrinsic evidence, and in particular to past practice as a means of determining the intention of the parties. … … There the consistent practice for more than 20 years has been to apply the rules in the manner stipulated by the Union. Given that the collective agreement has been renewed several times, without change, over those many years, I find it difficult to accept the suggestion of the Company that its practice simply constituted an error. In my view, in light of the length, consistency and preponderance of the practice, it is better understood as reflecting the original understanding of the parties.

The unchallenged representation of the Company is that for many years it has

calculated the guarantee payment for all forms of assigned road service based on the

rate of pay for through freight service. In the case of passenger service that has resulted

in an adjustment upwards, whereby 3,300 miles are paid monthly, while in the case of

crews assigned to road switchers there would be a downward adjustment. That

arrangement appears to have operated, without incident or controversy, through the

renewal of the collective agreement in successive rounds of bargaining. Nor can it be

said that the Union was entirely without knowledge of the practice, as its representative

confirmed his own understanding of the adjustment whereby employees in passenger

service are placed on an unequal footing with those in through freight service by an

upward adjustment in the miles of their guarantee.

From a purposive standpoint the Company’s interpretation is also compelling. It

would, in the Arbitrator’s view, appear reasonable to conclude that the parties would

have opted for a relatively simple method for the calculation of the guarantee of

employees in various forms of assigned road service. Were it otherwise, for example,

an employee who works a few days in a work train assignment, then does through

freight service, road switcher service and some snow plow service all within the same

month, an arguably complex and costly administrative burden of averaging formulae

would then come into operation. The fact that the Company has used an simple formula

for all classes of service, based on through freight rates, for the calculation of monthly

guarantees, apparently without complaint or grievance for a number of years prior to the

instant case, would suggest that the parties have long recognized and accepted the

value of the simple bright line system of calculation which has been in effect for years.

In the circumstances I am satisfied that the interpretation of article 2.3 advanced by the

Company is to be preferred to that argued by the Union.

For all of the foregoing reasons the grievance must be dismissed.

March 15, 2004 (signed) MICHEL G. PICHER ARBITRATOR