IN THE MATTER OF AN ARBITRATION BETWEEN:
Canadian Pacific Railway Company
(hereinafter referred to as the employer)
- and -
The United Transportation Union, The Brotherhood of Locomotive Engineers
(hereinafter referred to as 'the trade unions")
And in the
Matter of a Dispute Relating to the Establishment of Sparwood as an Away-From-Home Terminal for Crews Manning Unit Coal Trains
Before: D.H. Kates, Sole Arbitrator
Appearing for the Trade Union: J. McLeod, General Chairman, UTU
Heard at Montreal, P.Q. on March 9, 1984.
AWARD
In accordance with the provisions of Article 47(1)(a) of the collective agreement between Canadian Pacific Limited and The United Transportation Union (West), and Article 30(a) of the collective agreement between Canadian Pacific Limited and The Brotherhood of Locomotive Engineers (West), C.P. Rail on September 21, 1983 served notice on the trade unions to establish Sparwood, B.C. as an away-from-home terminal for operating crews manning unit coal trains from the west coast for loading at locations on the Cranbrook and Fording River Subdivisions destined for the west coast once loaded
Pursuant to the said provisions of the collective agreement, negotiations took place between the company and the trade unions with a view to mitigating the adverse effects on employees affected by the change The parties were not successful in resolving all the issues raised by the unions and have thereby submitted those outstanding issues in dispute to a single arbitrator as provided under Article 47(1)(e) of the U.T.U. agreement and Article 30(b) of the B.L.E. agreement.
A Joint Statement of Issue was prepared in advance of these arbitration proceedings setting out the areas of dispute to be resolved:
(1.) (a) Final terminal time and final terminal detention for Locomotive Engineers and Trainmen respectively not to be used to make up a minimum day.
(b) Locomotive Engineers transported from Fort Steele to Cranbrook following coal train service to be paid as if deadheading in accordance with Article 5(b)(6).
(2.) The contention of the Unions that when Sparwood is established as an away-from-home terminal, crews on trains running through between Cranbrook and Crowsnest will be changed off at Sparwood in the same manner as coal trains.
(3.) Crews would be required to make only one turn-around trip out of Sparwood except in cases of emergency which does not include shortages of crews at Sparwood.
(4.) The Company to provide transportation from the resthouse to restaurants in Sparwood.
These issues remaining in dispute are hereby referred to the Arbitrator for final binding determination.
At the outset of its brief, CP Rail made a general submission objecting to the referral of the issues defined in the Joint Statement of Issue to arbitration because the said issues did not include the type of adverse effect that was intended to be cured by the procedures contemplated under Article 47(1)(e) of the U.T.U. and Article 30(b) of the B.L.E. agreements. In effect, the charge was made that the unions rather than seeking to alleviate the adverse effects of the change in question were attempting to improve benefits over and above the benefits provided all employees under the subsisting provisions of the collective agreements. The extent to which the employer’s objection to the "arbitrability" of the issues referred to in the Joint Statement of Issue is relevant may very well be academic consideration in light of my ultimate disposition of those issues on their merits. It is of some relevance to note however that nowhere in the Joint Statement of Issue was the employer’s objection, as aforesaid, expressed so as to enable the trade unions to prepare an answer in advance of these proceedings.
It will not serve a useful purpose to detail in this decision the nature and the extent of the material changes in working conditions that will be occasioned once Sparwood is established as the away-from-home terminal for Cranbrook crews manning unit coal trains as aforesaid from the coal mines to the west coast and back. It suffices to say, having regard to the exhibits that were enclosed in the company's brief that the more obvious and serious adverse effects of this operation change have been resolved through the parties' own negotiations.
On the first issue raised in the parties' briefs it appears that prior to the proposed change Fort Steele was treated by both the company and the trade unions as an extension of the Cranbrook Terminal. Employees living in Cranbrook would be transported at company expense to and from Fort Steele at the start and termination of their runs. They were paid at the appropriate rate for initial terminal time and final terminal time for the twelve mile trip.
Because prior to the proposed change most of the coal runs to and from the Cranbrook-Fort Steele Terminal were in excess of 100 Riles no apparent difficulty arose with respect to the payment of final terminal time. The distance between Sparwood as the away-from-home terminal and Fort Steele is less than 100 miles (79 miles to be exact). As a result of the abridged run between these terminals, the company now wishes to apply the final terminal time and final detention time (at the away-from-home terminal) to make up the 100 miles (or 8 hour day) before payment for such final terminal time will accrue. In support of its position the company has relied on the relevant provisions of both the U.T.U. agreement (Article 11(b) and the B.L.E. agreement (Article 3(c)(3) which provide essentially that 'final terminal time shall be included in making up a short day.
The trade unions, in my view, have correctly pointed out in its brief that the provisions relied upon by the company have been supplanted by the Coal Agreements (and the amendments thereto) that were agreed to when the coal runs from the Cranbrook-Fort Steele terminal to the mines at Elkview, Line Creek, Greenhills and Fording were first introduced. As a result of the accommodations that were reached that were advantageous to both sides both initial terminal time and final terminal time were added on to the employees regular pay. irrespective of the length of the runs, for the work services performed. The provisions of the relevant Coal Agreements affecting both trade unions each provide without qualification:
Payment for final terminal time will be allowed from the time of arrival at Fort Steele until the time of final release from duty at Cranbrook.
What the company is trying to achieve by adding "home terminal time" to the constructive time allowed employees for runs that are less than 100 miles is to alleviate itself from the adverse effects of its own proposed change. I do not hold that the company can unilaterally withdraw (or cancel) the commitments it has made to the trade unions provided in the Coal Agreements without the latter’s' consent. In my view, those Agreements have supplanted these provisions of the collective agreement behind which the company now seeks refuge. I have concluded that the company must continue to adhere to the status quo ante the proposed material change until such time as the parties might negotiate a different accommodation. In sum, on this issue the trade union's position must prevail.
Insofar as the company has relied upon the notion that this particular issue ought to be treated as being outside the scope of these proceedings I am of the view that that particular position is without merit. Although the technological or operational change provisions of the B.L.E and U.T.U. agreements contain different language as to what should be defined as an adverse effect I am satisfied that Article 47(l)(c) of the U.T.U. agreement sufficiently encompasses this issue in that it clearly provides a material change in working conditions is to include matters relevant to constructive miles . In the result, the company shall continue to be bound to pay final terminal time apart from the minimum pay entitlements that employees normally receive for runs less than 100 miles.
The second issue applies solely to the B.L.E. bargaining unit. To a great extent my decision with respect to this particular claim is predicated on the same principle as set out in the disposition of the first issue. Here, the B.L.E. has requested owing to an anticipated increased frequency of the number of short term runs between Fort Steele and Sparwood, that the provisions of the collective agreement be reinstated with respect to payment at the deadheading rate for the twelve mile trip from Fort Steele to Cranbrook. Article 5(b)(6) of the collective agreement provides in part:
When an engineer is ordered to deadhead following the performance of active service the deadheading and working service portions of the trip will be paid separately with not less than a minimum day for the service portion and not less than 100 miles for the deadheading at the deadheading rate.
Should the trade union's position prevail an employee would be paid, in addition to his normal work service rate, a minimum of eight hours pay at the appropriate deadheading rate for a 40 minute bus ride. Apart from the persuasiveness of the company's submission that the Cranbrook - Fort Steele terminal was intended to be treated as a single terminal, I would view the trade union's position, if implemented, as a unilateral withdrawal from the obligations it has undertaken under the Coal Agreements. That is to say, the provisions with respect to the rate paid for final terminal time apply just as cogently to the trade unions as to the company. In short, whatever considerations that applied to the company on the first issue raised herein must also apply to the B.L.E. For the foregoing reasons, the B.L.E.’s claim to resurrect the provisions of the collective agreement hitherto supplanted must be rejected.
The trade unions contend that once Sparwood is established as the away-from-home terminal, crews on trains running through Cranbrook and Crowsnest should be changed off (released) at Sparwood in the same manner as coal trains. In other words, it is requested that the objective terminal at Crowsnest be changed to Sparwood. The effect of such change would result in imposing on the company the requirement to pay, in addition to what is paid the regular crew, another crew at the minimum rate of an eight (8) hour day for completing the 18 mile run from Sparwood to Crowsnest.
The Company has strenuously challenged the relevancy of the trade unions request in this regard to the principal issue of mitigating the adverse effects of creating Sparwood as the away-from-home terminal to employees assigned to coal runs-At the arbitration hearing the trade unions enumerated a number of reasons for making this request. These run the gamut of delays incurred to crews running through Sparwood owing to the increased coal traffic, to more protracted layovers that would be occasioned by the traffic, to anticipated difficulties en-countered by crews in making their monthly mileage. It is my view however that these concerns, at this point in time, are merely speculative and unsubstantiated and ought to await the implementation of the proposed change at Sparwood, before being dealt with at a later date during the parties' negotiations.
Insofar as the company is alleged to be in violation of the various provisions of the collective agreement, particularly Article 11(2)(c) (U.T.U.) and Article 2(b) (B.L.E.), I am of the vi that such concerns are more susceptible to a grievance under the grievance procedure and ultimately if unsettled to resolution at the C.R.O.A. It is significant to note the company takes issue with each of the allegations advanced by the trade union with respect to such violations of the collective agreements. Indeed, I made the same point in a similar situation in CROA case 1167 where it was stated:
Incidentally, I have noted that the trade union has alleged several infractions of numerous provisions of the collective agreement in its brief should the company’s proposed changes be allowed. In my view the appropriate manner in which such allegations should have been treated by the trade union if by way of separate grievances that could be dealt with in an appropriate manner under the grievance procedure. I do not find that such allegations of any relevance to the principal allegation of whether the company 5 proposed changes ought to have given rise to the advance notice requirements provided under Article 114.1(b) of the collective agreement.
In a like fashion the trade union's claim that Sparwood be made the new terminal for the Cranbrook-Crowsnest Run is at best premature and at worst without legitimate reason.
The trade union has requested that only one turn-around trip be permitted out of Sparwood to the coal mines except in cases of emergency which would not include shortages of crews at Sparwood. As pointed out in the company’s brief, Article 26(i) of the B.L.E. agreement and Article 14(c) of the U.T.U. agreement protects a crew member who wishes “to book home” after the first turn-around trip. He will be permitted to return to Cranbrook “provided crews are available at the away-from-home terminal". Moreover, a maximum of two such tours of duty are all that can be required of an employee under any circumstances.
The trade union's obvious concern in making the request that manpower shortages at Sparwood not be considered an emergency situation is attributable to the prolonged layovers anticipated by the increased traffic at away-from-home terminal. I am satisfied, however that the present collective agreements adequately protect the crews from any abuse by the employer of requiring their continued services at Sparwood.
Quite clearly this request, if acceded to, would represent a benefit that would be uniquely applied at Sparwood and would be unavailable to other employees “where short turns out of an away-from-home terminal are also required". Because the trade unions request amounts to practically a guarantee of a one day lay-over at Sparwood I am of the view that its request must be rejected.
Arising out of Sparwood becoming an away-from-home terminal the company has constructed a resthouse at Sparwood for the accommodation of employees during a layover. Included amongst the sleeping, recreational and other services that are provided are cooking and eating facilities. The kitchen at the Sparwood resthouse has 2 electric ranges, 2 microwave ovens, 2 refrigerators, food storage lockers, cooking utensils and dishes and a dishwasher. In addition, vending machines for various types of snacks will be available.
The trade union has requested that the company subsidize a crews' travel expenses (presumably by taxi) from the resthouse to the town of Sparwood (one mile's distance) to enable them to have a meal at a restaurant. It was submitted that, given the off-hour periods when crews might book-off duty, they will be in no position to purchase groceries to take advantage of the cooking facilities provided at the resthouse. Accordingly, it was argued that a crew should be able to travel to a restaurant, at the company's expense, in order to obtain a hot meal.
The difficulty I hold in acceding to this particular request is the admitted concern that even if the company were to subsidize the travel expense to Sparwood from the resthouse there is no guarantee that a restaurant would be open at the off-hour periods when the benefit may be needed. In any event, a one mile taxi ride, particularly if shared by several members of a crew, does not appear to be so onerous an expense for the crew to absorb for the isolated occasions when the requirement to eat in a restaurant might be warranted
It seems to me that in light of the expressed difficulty the focus of the trade union's attention should be placed on the adequacy of the food and eating facilities at the company's resthouse. 1f, for any number of legitimate reasons an employee cannot take advantage of those facilities for a hot meal, then measures should be taken to ensure that the company, perhaps through its contract with the vending company, provide hot food on a twenty-four hour basis at the resthouse.
I cannot accept based on the material before me that a subsidized trip to Sparwood would necessarily resolve the anticipated problem expressed by the trade union’s representatives. Accordingly its request for subsidized transportation to Sparwood is denied.
In sum, save for the trade unions' request that final terminal time and final terminal detention not be used to make up a minimum day, the trade union's other claims, as set out herein, are rejected. I shall remain seized with respect to all matters discussed in this decision.
Dated this 1st day of April 1984.
David H. Kates
IN THE MATTER OF AN ARBITRATION BETWEEN:
Canadian Pacific Railway Company
(hereinafter referred to as the employer)
- and -
The United Transportation Union">