CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3822
Heard in Calgary, Tuesday, 10 November 2009
Concerning
CANADIAN NATIONAL RAILWAY COMPANY
and
TEAMSTERS CANADA RAIL CONFERENCE
EX PARTE
DISPUTE:
The failure to comply with the workload allocation and board adjustments provisions of
the Collective Agreement, causing irreparable harm to various employees.
UNION’S STATEMENT OF ISSUE:
The Collective Agreement contains various provisions clearly defining the methods by
which road, yard and joint spareboards and pools are regulated. Given the implementation of
extended run trains, there are also provisions defining workload allocation for terminals
operating in an extended run environment.
Most of these provisions require the input and concurrence of the Local Chairman in the
regulation of these boards and, where concurrence is not required, boards are to be adjusted
“… to enable employees to earn the maximum miles.”
The Union submits that the Company has refused to comply with these provisions by,
inter alia: ignoring the input and advice of the Local Chairmen; unilaterally and arbitrarily
establishing the number of people assigned to these boards over the objections of the Local
Chairmen; unilaterally and arbitrarily adjusting boards on other than the assigned day;
improperly assigning more people than required, irreparably impacting and limiting the earnings
(and pension) of those people; and, improperly assigning work outside the parameters of the
required workload allocation.
The Union has repeatedly raised these issue at all levels, to no avail. The Union submits
that the Company has knowingly, blatantly, and indefensibly violated the Collective Agreement,
including the long standing interpretations of such, in an egregious manner that has caused
irreparable harm to many employees. The Union has repeatedly brought these violations to the
attention of the Company, only to be ignored. As such; the Union submits that remedy
provisions of the Collective Agreement are applicable and mandated with respect to the Instant
matter.
The Company has not responded to the Union’s grievance.
FOR THE UNION:
(SGD.) R. A. HACKL
FOR: GENERAL CHAIRMAN
There appeared on behalf of the Company:
K. Morris – Manager, Labour Relations, Edmonton
D. Brodie – Manager, Labour Relations, Edmonton
R. Marrese – Sr. Manager, Business Management Edmonton
C. Tytgat – Assistant Superintendant, Calgary
P. Payne – Manager, Labour Relations, Edmonton
And on behalf of the Union [among others]:
M. A. Church – Counsel, Toronto
B. R. Boechler – General Chairman, Edmonton
R. A. Hackl – Vice-General Chairman, Edmonton
R. S. Thompson – Vice-General Chairman, Edmonton
W. Franko – Vice-General Chairman, Edmonton
D. Finnson – Vice-President, TCRC, Calgary
B. Willows – General Chairman, Edmonton
AWARD OF THE ARBITRATOR
There are two aspects to the grievance before the Arbitrator. Firstly, the Union
alleges that the Company has regulated pools and spareboards in a manner contrary to
the intention of the collective agreement, essentially assigning too many employees to
the pools and boards, resulting in a significant loss of earnings to the employees
affected. Secondly, the Union alleges that the Company has disregarded the work
allocation rules intended to govern the ratio of work to be performed by the employees
home terminalled at either end of an extended run, again causing an undue loss of
earnings contrary to the agreed intention of the collective agreement which governs
operations in Western Canada.
The background to the dispute is instructive to understand the issues and the
positions of the parties. In 1992 the Company and the Union agreed to the introduction
of Conductor Only operations. With the advent of that development the Company had
concern to maintain pools and spareboards in such a manner to adequately service its
needs while the Union naturally wanted to avoid the excessive or inflated adjustment of
boards in such a way as to reduce the potential earnings of employees, whether on
spareboards or in pools. To that end, an agreement was executed on February 10,
1992 which provided as follows:
During the discussions which culminated in the Memorandum of Agreement
dated January 15,1992, the Union expressed concern with respect to board
adjustments and the local practices which have developed over a period of time
at various terminal governed by Agreement 4.3. In particular, the Union express
concern that the company could arbitrarily adjust boards thereby adversely
affecting the earnings of employees on spareboards or unassigned pools. The
Company expressed a concern that there may not be sufficient employees
available to meet the requirements of the service.
Therefore, the parties agreed that the following mileage figures are to be used
when adjusting road and joint spareboards or pools on a 7 day basis:
(a) Unassigned and assigned pools – 1125 miles
(b) All road or Joint spareboards – 1078 miles
The number of employees on the yard spareboard will be regulated between the
Local Chairperson and the appropriate officer of the Company each Friday
afternoon (or other day as mutually agreed to) to take effect at 0001 hours so
that the average earnings of a Yardman will not be less than the equivalent of 5
shifts per 7 day period in the following manner:
Add the total number of spare Yardmen used during the previous 7 days
and divide by 5, that is for example:
100 spare yard shifts for the 7 day period divided by 5 equals 20
employees on the yard spareboard.
The above two principles were incorporated as Addendum 31D to the collective
agreement and subsequently became paragraphs 44.12 for road employees and 90.3
for yard employees within the terms of the collective agreement.
The next significant event giving rise to the present dispute was the introduction
of extended runs in 1995. That permitted the operation of trains beyond the confines of
a single subdivision, running through intermediate terminals to more distant away-from
home terminals for crews operating extended run trains. It was agreed that extended
runs should be operated on a two-week board adjusted basis rather than the traditional
one week period contemplated in the original Conductor-Only Agreement. In the result,
the terms of the original Addendum 31D were not to apply to trains operating extended
runs. As part of the extended runs agreement the parties expressed the following:
The Company will use traffic forecasts in setting the boards. Boards will be
adjusted every 14 days, with advice from the local chairman, so as to enable
employees to earn the maximum miles.
The foregoing provision has now been incorporated into the collective agreement as
article 44.15.
Article 44 also makes other important provisions with respect to mileage
regulations. The monthly limitation on miles is contained in article 44.1 in the following
terms:
44.1 The mileage for which Train service employees are paid will, as far as
practicable, be limited by the Company to the following:
-
service paid at passenger rates 6450 miles per month;
-
service paid at freight rates 4300 miles per month.
Enforcement of the mileage limitations was incorporated into the provisions of
article 44.6 which sets up penalties for exceeding the limits, and reads as follows:
44.6 If Train service employees exceed their maximum mileage in any month,
such excess mileage will be added to their mileage for the following month
except where excess mileage is made because of a shortage of employees
at the home terminal. Upon accumulation of maximum mileage, or as soon
as possible thereafter, Train service employees will be relieved at the point
where relief is normally furnished. Train service employees who exceed the
maximum mileage limitation due to incorrect reporting of their mileage will
be penalized by the loss of two days for each 100 miles or major portion
thereof, made in excess of the maximum.
Significantly, the introduction of extended runs brought into the collective
agreement the provisions of article 22.10 which involve a 4,300 mile per month
guarantee for employees fully available for work as a conductor. That article reads, in
part, as follows:
22.10 (a) Employees assigned to runs identified in article 36.2 or road or joint
spareboard at terminals that included extended run territory and who
are available for duty for their entire mileage month will be entitled to:
4300 miles if working as a conductor
Such guarantee will be prorated for each 14 day board adjustment
period.
As noted above, the introduction of extended runs raised two issues: firstly the
equitable structuring of pools and spareboards so as to allow employees to earn the
maximum miles and, secondly, the equitable allocation of work as between crews
home-terminalled at either extremity of a segment of extended run territory. These
provisions, which are extremely important to the earnings of employees, are reflected in
articles 44.15 and 44.16 of the collective agreement which read, in part, as follows:
44.15 The Company will use traffic forecasts in settling the boards. Boards will
be adjusted every 14 days, with advice from the local chairperson, so as
to enable employees to earn the maximum miles.
44.16
(a) In the application of paragraph 36.2, the workload between terminals will
be divided based on the ratio of subdivision mileages. For this purpose,
the subdivision mileages shall be the mileage between the point where
road miles commence at the initial terminal and the point where road
miles cease at the final terminal prior to the implementation of this
Agreement.
Example
Terminal “A” to Terminal “B” 112.8 miles 48%
Terminal “B” to Terminal “C” 124.6 miles 52%
237.4 miles 100%
(b) During board adjustments, the total miles earned during the checking
period coupled with forecasted traffic requirements and employee
availability will result in a specific number of employees being required
to meet that workload. This total number of employees will be multiplied
by the terminal’s ratio to determine the number of employees required
on the pool at that terminal.
Example
52 employees are required to meet the workload between Terminals “A”
and “C”.
Terminal “A” 52 employees x 48% = 25 employees
Terminal “C” 52 employees x 52% = 27 employees
In the application of this paragraph, the number of employees will be
rounded to the nearest number.
NOTE: The workload allocation for crews home terminalled at Rainy River for
work between Fort Frances and thunder Bay and Fort Frances and
Winnipeg will be determined prior to the implementation of extended
runs.
(c) To meet service requirements at a terminal(s), adjacent terminal(s) may
increase their complement of employees to satisfy service requirements.
As employees become available at the terminal which created the
necessity for the adjustment, the board will be adjusted reducing the
employees filling the shortage at that location.
Finally, it must be appreciated that the 4,300 mile guarantee found in article 22.10(a) of
the collective agreement is a minimum protection, and not a figure reflecting the
maximum potential earnings of an employee in a given month. In that regard it is
important to recognize that a number of different forms of payments can be earned over
and above the minimum guarantee and constitute an important enhancement in the
potential earnings of employees. Those payments are obviously not available to
employees, however, to the extent that they are not in fact called to work out of a pool
or off a spareboard. Article 44.7 makes reference to mileage wages which are not
charged against an employee’s mileage records, as expressed in the following terms:
44.7 In the application of this article mileage paid as:
(a) General Holiday;
(b) Bereavement Leave;
(c) Travel Allowance;
(d) Annual Vacation;
(e) Payment Received Pursuant to articles 124, 125 and 126;
(f) Held-Away-From-Home Terminal pursuant to article 34 and
Addendum 92;
(g) Runaround; and
(h) Called and Cancelled;
(i) pick up and or set out enroute premiums – Conductor Only;
(j) pick up and or set out entire trains enroute;
(k) premium for switching own train at initial or final terminal – Conductor
Only
Will not be charged against employee’s mileage records. However,
employees will not be permitted to stipulate the period off duty on account
of mileage limitations as their annual vacation period. When the annual
vacation date allotted in advance, as provided in article 127, paragraph
127.20 coincides with the time an employee is off duty because of
mileage limitations, the date will not be changed and the employee will be
allowed to commence vacation on the allotted date.
Counsel for the Union also pointed the Arbitrator to a number of other forms of payment,
for example train length and Conductor Only premiums, which can be earned over and
above for an employee who in facts earns 4,300 chargeable miles in a given month.
Central to the Union’s concern in this grievance is the recognition, agreed to by
the parties, within the terms of the collective agreement that spareboards are to be
administered and adjusted in such a way as to ensure both sufficient numbers of
employees to protect the service and sufficient numbers of work opportunities to allow
employees to earn the average of 4,300 miles per mileage month. That is enshrined in
the provisions of article 44.14 which states the following:
44.14 Should it be demonstrated that inequities exist in the adjustment of
spareboards, e.g., there are insufficient employees on the spareboard to
protect the service or insufficient work is available to allow employees on
road or joint spareboards to earn the average of 4,300 miles per mileage
month, the Local Chairperson and the appropriate officer of the Company
will adjust these spareboards to protect the situation. Should they be
unable to agree, the General Chairperson and the Vice-President, or his
delegate, will meet on a timely basis to resolve the matter.
The first location which the Union draws to the Arbitrator’s attention where it
maintains that the Company has failed to administer a spareboard in extended run
service in a manner consistent with the collective agreement concerns Kamloops. The
Union places data before the Arbitrator concerning board changes in Kamloops for the
two year period between November 2, 2007 and October 23, 2009. The Union submits
that the following charts and graph readily confirm that the Company has substantially
overloaded the boards at Kamloops, to a degree that substantially impacts the potential
earnings of employees in extended run service at that home terminal:
Kamloops Date: 2 Nov07 9 Nov07 16 Nov07 23 Nov07 30 Nov07 7 Dec07 14 Dec07 21 Dec07 28 Dec07 Calls For: 20.3 17.3 23.0 14.6 22.6 20.2 17.7 27.7 22.2 Set At: 22.0 20.0 21.0 21.0 18.0 20.0 18.0 27.0 42.0 Date: 4 Jan08 11 Jan08 18 Jan08 25 Jan08 1 Feb08 8 Feb08 15 Feb08 22 Feb08 29 Feb08 Calls For: 17.9 1 9.8 23.6 15.0 19.9 20.9 18.6 19.1 26.8 Set At: 39.0 35.0 35.0 35.0 40.0 32.0 30.0 25.0 33.0 Date: 08 03 07 08 03 14 08 03 21 08 03 28 08 04 04 08 04 11 08 04 18 08 04 25 08 05 02 Calls For: 22.9 27.9 25.4 22.6 21.3 20.9 19.8 17.2 20.4 Set At: 53.0 30.0 27.0 27.0 30.0 34.0 37.0 42.0 56.0 Date: 08 05 09 08 05 16 08 05 23 08 05 30 08 06 06 08 06 13 08 06 20 08 06 27 08 07 04 Calls For: 23.4 31.4 23.5 20.7 42.4 24.8 24.9 21.0 21.0 Set At: 30.0 28.0 28.0 37.0 28.0 36.0 29.0 44.0 41.0 Date: 08 07 08 08 07 18 08 07 25 08 08 01 08 08 08 08 08 15 08 08 22 08 08 29 08 09 05 Calls For: 32.3 32.3 24.4 24.4 Set At: 32.0 42.0 37.0 32.0 Date: 08 09 12 08 09 19 08 09 26 08 10 03 08 10 10 08 10 17 08 10 24 08 10 31 08 11 07 Calls For: 21.6 21.6 20.4 20.4 Set At: 40.0 40.0 36.0 42.0 Date: 08 11 14 08 11 21 08 11 28 08 12 05 08 12 12 08 12 19 08 12 26 09 01 02 09 01 09 Calls For: 20.9 20.9 19.1 19.1 25 .4 25.4 22.9 22.9 22.8 Set At: 42.0 47.0 43.0 33.0 26.0 41.0 48.0 48.0 46.0 Date: 09 01 16 09 01 23 09 01 30 09 02 06 09 02 13 09 02 20 09 02 27 09 03 06 09 03 13 Calls For: 22.8 31.9 31.9 25.4 25.4 29.3 29.3 29.0 29.0 Set At: 42 .0 38.0 38.0 41.0 41.0 41.0 41.0 44.0 44.0 Date: 09 03 20 09 03 27 09 04 03 09 04 10 09 04 17 09 04 24 09 05 01 09 05 08 09 05 15 Calls For: 30.8 30.8 27.4 27.4 30.6 30.6 27.0 27.0 24.8 Set At: 39.0 39.0 37.0 42.0 39.0 38.0 37.0 34.0 53.0 Date: 09 05 22 09 05 29 09 06 05 09 06 12 09 06 19 09 06 26 09 07 03 09 07 10 09 07 17 Calls For: 24.8 17.9 17.9 16.2 15.9 17.0 17.0 16.3 16.3 Set At: 43.0 40.0 31.0 34.0 30.0 37.0 37.0 27.0 27.0 Date: 09 07 24 09 07 31 09 08 07 09 08 14 09 08 21 09 08 28 09 09 04 09 09 11 09 09 18 Calls For: 20.9 20.9 21.7 20.0 21.7 20.0 15.1 15.1 12.6 Set At: 29.0 29.0 30.0 32.0 30.0 33.0 31.0 32.0 40.0 Date: 09 09 25 09 10 02 09 10 09 09 10 16 09 10 23 Calls For: 12.6 13.8 13.8 22.2 22.2 Set At: 38.0 32.0 32.0 29.0 29.0
Kamloops Spareboard 0.0 10.0 20.0 30.0 40.0 50.0 60.0 2-Nov-072-Dec-072-Jan-082-Feb-082-Mar-082-Apr-082-May-082-Jun-082-Jul-082-Aug-082-Sep-082-Oct-082-Nov-082-Dec-082-Jan-092-Feb-092-Mar-092-Apr-092-May-092-Jun-092-Jul-092-Aug-092-Sep-092-Oct-09 Calls For: Set At:
- No data available August October 2008.
The Union submits that the numbers in respect of Kamloops speak for
themselves and confirm that employees have been seriously deprived of potential
earnings at that location. Its counsel also notes that some yard engine assignments
have been cancelled in Kamloops, resulting in employees being called for yard service
off the spareboard on a relatively regular basis. He submits that the resulting potential of
employees being called for extra yard assignments effectively removes them from the
working board and reduces their potential for earnings, as contrasted with what might
occur in the event of a regular yard assignment. In the result, according to the Union, it
is not uncommon for employees to remain on the spareboard without assignment or call
for periods of up to two to three days. The Union also submits that there was no
significant problem with respect to spareboard regulation at Kamloops from the
inception of extended runs in 1995 until late in 2007 when the substantial discrepancies
in employees called for and actually assigned to the boards began to manifest itself.
The Union next addresses the problem of the Edmonton Yard Spareboard, dealt
with under the terms of article 90 of the collective agreement. Again it maintains that
there has been an unacceptable departure from the standards of the collective
agreement which are intended, in accordance with article 90.3, to ensure “… that the
average earnings of a yardman will not be less than the equivalent of 5 shifts per 7-day
period …”. Reference is also made to article 90.6 which provides as follows:
90.6 Should it be demonstrated that inequities exist in the adjustment of
spareboards, e.g., there are insufficient employees on the spareboard to
protect the service or insufficient work is available to allow employees on
yard spareboards an average level of salary that equates to 5 shifts per 7
day period, the Local Chairperson and the appropriate officer of the
Company will adjust these spareboards to protect the situation. Should
they be unable to agree, the General Chairperson and the Vice-President,
or his delegate, will meet on a timely basis to resolve the matter.
By way of example, the Arbitrator is advised by the Union that on a number of
occasions the board at Edmonton was set to more than double the number called for.
By way of example, reference is made to the week of April 17, 2009 when the yard
spareboard at Edmonton called for 8.6 people and was set by the Company at 25
employees. By the Union’s calculation that equated to one shift per week for the twenty
five people assigned to the board, and a substantial reduction in their actual earnings.
The Union submits that these facts have impacts beyond the earning of wages,
impacting as they do the ability of employees to earn full pension credits for a given
months as well as the calculation of an employees E.I. insurable earnings, resulting in a
denial of maximum EI benefits.
The Union next addresses Saskatoon which has a joint spareboard protecting
both yard and road work. Being a single subdivision terminal, that spareboard is
adjusted on a weekly basis, being regulated to 1,078 miles.
Counsel for the Union submits that there is no guarantee for the spareboard
employees at Saskatoon, as they do not operate in extended run service contemplated
within article 22.10 of the collective agreement nor in regular assignments for which
various guarantees are provided under the terms of articles 22.2, 22.3 and 22.4. He
notes that the situation has deteriorated to the point that since December of 2007 the
average requirement for the spareboard in Saskatoon has been 6.7 employees whereas
the board has been set, on average, at 9.8 employees. He notes that that results in an
excessive loss of work opportunities for employees, characterized as a 30% cut in pay
to all employees on the spareboard. By way of dramatic illustration, he notes that in the
case on one employee the radical reduction of work available to him caused him to
have fewer than ten tours of duty over the thirty calendar days immediately preceding a
general holiday, as a result of which he failed to qualify for the statutory holiday pay
provided under the terms of article 128.2 of the collective agreement.
Finally, the Union addresses the separate issue of workload allocation. In that
regard its focus is the allocation of work as between the crews home terminalled at
Melville and Biggar operating in extended run service over the Watrous Subdivision. In
accordance with the terms of the collective agreement Melville crews are entitled to
52% of the work over the territory while Biggar crews are to have the remaining 48%.
The Union notes that a survey of twenty-eight bi-weekly periods between September
19, 2008 and October 15, 2009 reveals only five periods of the twenty-eight where the
ratio of 52% to 48% was properly respected. While the Union concedes that for some of
the time, notably November 14, 2008 to March 19, 2009, the allocations were close,
there were significant stretches of time where that was not the case. By way of example
for the close to two month period between September 19, and November 13, 2008, the
Melville Terminal was in fact assigned 8.5% less than its proper entitlement, or thirty
five less trains. According to the Union, over the entire survey period Melville crews
effectively lost the ability to operate some eighty-three trains, work which its counsel
submits represents a loss of some $100,000 in wages to employees at that terminal.
The fundamental response of the Company is that the collective agreement does
give it the discretion to manage operations in such a way as to maximize service to its
customers, taking into account such elements as traffic forecasts and train delays, a
factor which he submits is substantially impacted by the availability of employees. The
Company’s representative maintains that what it has done is in keeping with the
provisions of the collective agreement, with a view to sustaining sufficient and on time
operations to ensure that it can maintain and grow its business.
With respect to extended run territory, the Company’s spokesman questions
whether the Union is not in fact attempting to gain through arbitration something which it
did not achieve at the bargaining table. He stresses that the parties agreed to the 4,300
mile guarantee as a protection for the employees against the variables that can in fact
impact on the amount of work which they do. In his submission, what the Union in effect
seeks to achieve in the instant grievance is to increase the guarantee by those over and
above payments which would be available to employees who maximize their miles on a
monthly basis, so that the real guarantee is in effect considerably more.
With respect to single subdivision operations the Company notes that the
provisions of article 44 are fashioned in such a way that anticipates that there will be
inevitable exceptions and inequities that will need to be addressed, as is evident from
the terms of article 44.14 of the collective agreement. The mechanism for resolving
those exceptions and inequities is the discussion between the local chairperson and
appropriate Company officer contemplated for the purposes of adjusting the working
boards.
In support of the process of consultation the examples of Regina, Terrace and
Kenora are put forward as representing equitably administered spareboards in single
subdivision service between October 3 of 2008 and February 13, of 2009. Its
spokesman submits that the delays and unreliability of train service by reason of
manpower shortages is a legitimate factor to be taken into account when adjusting the
working boards. He also notes that factors such as PLDs, EOs, Union business and the
amount of rest which an employee may choose to take can impact his or her earnings
potential. In that regard, he submits that there can be no absolute entitlement that every
employee must earn to the level of 1,125 miles or 1,078 miles in each and every week.
In summary, the Company maintains that the negotiation of the 4,300 mile
guarantee was negotiated in exchange for the right of the Company to adjust the
working boards in such a manner as to protect efficient service. On that basis it
maintains that no violation of the collective agreement is disclosed.
I turn to consider the merits of the parties’ submissions. Starting with first
principles, the Arbitrator has some difficulty with the Company’s view of the bargain
which the parties made with respect to extended run service and the operation of pools
and spareboards in relation to that service. The implementation of extended runs in
1995 obviously gained to the Company important efficiencies and productivity gains. In
exchange for that, assurances were provided to the Union with respect to both the
guaranteed minimum earnings and, implicitly, the actual earned wages of the
employees affected by the change. That is clearly reflected in a Questions & Answers
document which was provided to employees during the course of a joint “road show”
presentation to employees at the time of the introduction of the Extended Run
Memorandum of Agreement of May 5, 1995. Questions and answer 9 of that agreement
reads as follows:
Q. How will boards be adjusted with respect to mileage regulations?
A. Boards will be adjusted to enable an employee to earn the maximum miles
over the full mileage month.
In the Arbitrator’s view the foregoing question and answer cannot easily be
squared with the position now advanced by the Company, which effectively submits that
there can be no complaint about board adjustments to the extent that all employees are
entitled to the minimum guarantee of 4,300 miles per month. As should be evident, the
mutual intention of the parties has been that boards are to be adjusted, in the words of
article 44.15 of the collective agreement “… so as to enable employees to earn the
maximum miles.” There is an obvious distinction between not working and receiving a
guarantee on the one hand and earning the maximum miles on the other. The
interpretation of these provisions advanced in this grievance by the Company effectively
reduces the undertaking to enable employees earn the maximum miles to a near
meaningless point, supposedly by reason of the existence of the minimum guarantee.
That, in the Arbitrator’s view, is simply not sustained by a review of the provisions of
article 44 of the collective agreement.
As is evident from the material before the Arbitrator there are locations at which
there has been no discernible problem as spareboards have been administered in a
manner consistent with the manpower required. That is clearly the case with the
examples of a number of terminals reviewed in the materials of the Company. It is not,
however, apparent in the problem locations which have prompted the Union’s concerns.
Very simply, the Arbitrator finds it difficult to reconcile the discrepancy between
the employees called for on the spareboard at Kamloops, for example, and the number
of employees placed on the board by the Company. For example, on April 25, 2008 the
collective agreement formula called for 17.2 employees to be on the spareboard when
in fact the Company placed 42 employees on the board, clearly having an adverse
impact on the potential earnings of the employees in question in a manner which is
difficult to reconcile with a good faith attempt to regulate the board “… so as to enable
employees to earn the maximum miles.” I am satisfied that the same facts are disclosed
with respect to the Edmonton Yard spareboard and the joint spareboard at Saskatoon.
In the result, it must be concluded that the Company has not administered the
provisions of article 44 in a way consistent with its obligation to enable employees to
earn the maximum miles.
The foregoing conclusion is not to say that the Company cannot take into
account such factors as forecasted traffic requirements and employee availability for the
separate question of workload allocation between separate terminals, as expressly
contemplated under article 44.16 of the collective agreement. The work allocation
exercise, however, cannot operate to effectively override the more fundamental
obligation enshrined in article 44.15 in the primary exercise of setting the boards for
extended runs. While under that article traffic forecasts are also relevant, the obligation
remains that the boards must be set so as to enable employees to earn the maximum
miles.
With respect to single subdivision terminals the Arbitrator is left with some
uncertainty regarding the Company’s submission to the effect that article 22.4 provides
a monetary guarantee for working spareboards. The language of article 22 does speak
in terms of guarantees for road service, indeed that is the title of article 22. However
when regard is had to the provisions of article 22, article 22.2 speaks of employees
“regularly assigned to road switcher service”, while article 22.3 refers to employees
“regularly assigned to mixed and way freight road service” and article 22.4 addressed
“train service employees in through freight train service regularly set up …”. Given the
important distinction between regular and spare service, the Arbitrator is left in some
difficulty as to the correctness of the Company’s submission and is compelled to prefer
the presentation of the Union which appears to acknowledge that there is no guarantee
available to spareboard employees in single subdivision service.
With respect to the issue of work allocation the Arbitrator must also conclude that
the grievance is well founded. Even allowing for a 2% margin of error, when regard is
had to the period surveyed with respect to the allocation of work between Melville and
Biggar, with Melville being entitled to 52% of the work over the Watrous Subdivision in
extended run service, and Biggar entitled to 48%, fully one-half of the examples
provided reveal a relatively lopsided advantage in favour of Biggar, the general effect of
which amounts to a reversal of the ratio at least half of the time. That, in the Arbitrator’s
view, cannot be squared with the requirements of the work allocation provisions
fashioned by the parties within the terms of article 44.16 of the collective agreement.
For all of the foregoing reasons the Arbitrator concludes and declares that the
Company did violate the provisions of article 44 of the collective agreement with respect
to the management of spareboards at Kamloops, Edmonton Yard and Saskatoon. It
also violated the work allocation provisions of article 44.16 with respect to the allocation
of work as between Melville and Biggar on the Watrous Subdivision.
The Arbitrator directs that the Company cease and desist from the violations
disclosed in this award. Further, with respect to the request by the Union for a direction
that the Arbitrator orders the Company to compensate employees who were adversely
affected by the violations of the collective agreement, I deem it more appropriate at this
time to remit the matter to the parties to determine the appropriate quantity of relief
which might be payable in respect of the specific violations found within this award. To
that end the Company is directed to establish a joint committee of Company and Union
representatives, with no more than two representatives from each side, with the Union’s
representatives to be compensated for any time and expenses relating to the work of
the committee. Should the parties be unable to agree on the ultimate remedial
measures, the matter may be further spoken to.
November 27, 2009 (original signed by) MICHEL G. PICHER
ARBITRATOR