ARTICLE 51 – REST PROVISIONS – COLLECTIVE AGREEMENT 4.16

During a recent trip to Belleville I was made aware of the Company’s application of the Rest Provisions contained in Article 51 (Rest). There were two specific issues presented to me;


1. The Company’s interpretation of an “unforeseen circumstance”;

2. Requiring employees to perform service at the destination terminal beyond the time rest is due to commence, this as a result of arriving at the “outer switch” before such rest was due to commence..

As many of you may be aware Article 51 has been the focus of many arbitration awards, a decision by the Canada Industrial Relations Board and arbitrations awards filed with the Federal Court of Canada. I will reference some of the decisions/orders and thereafter express my views.

Additionally, I will make available a “flow chart” that was created by the Central UTU Office when I was the active General Chairperson to summarize the application of Article 51. The flow chart was produced for a specific arbitration on Article 51. Please review my next post to obtain this sites' email address.

Although it is my personal position that the information provided to me indicates a blatant violation of Article 51 by the Company viewers are reminded that they are not to take matters into their own hands (resort to self-help action).

The accepted standard of “do now grieve later is still applicable”, this except for the application of the Federal Canada Labour Code – Step 2 – The Right to Refuse Unsafe Work (an individual right based on a specific situation).

As to how to “deal” with the alleged blatant violations I will, at the completion of each overview, provide my thoughts.

Here we go;

1. Unforeseen Circumstances (Yard and Road);

“Ad Hoc Arbitration – M. Picher Arbitrator – date of decision August 13th, 2004”


The Arbitrator, as a result of a grievance filed by UTU Central Region, stated the following;

“On September 28th, 2003, Yard Employee, J. Brant is said to by the Union to have given proper notice of his desire to book rest under the provisions of Article 51 of Collective Agreement 4.16, with such rest to commence at 2100 hours of the same day. The Grievor was held “on duty” until 2200 the same day, 1 hour, beyond the time rest booked was due to commence.

The Arbitrator finds that it is the Company’s responsibility to have Yard Employees “off duty” by the time rest booked is due to commence and confirms the requirements of Article 51.3 which provide that Yard Employees may book rest after nine hours on duty, where the employee has given the designated officer two hours’ notice of his or her desire to book rest…

…This applies in all cases, except where circumstances beyond the Company’s control make this impossible. A number of such circumstances are contained in the sub-paragraph.

And, while such circumstances are not necessarily limited only to the examples cited, the Company cannot rely on situations which do no affects its ability to comply with this requirement as a reason not to relieve trainmen by the time rest booked is due to commence…

…The Arbitrator directs the Company to cease and desist from violating Article 51. The Arbitrator further directs the Company to comply with the provisions of Article 51…” (emphasis added)

My view;

Clearly the Company has been directed to have employees “off duty” by the time rest booked is due to commence, the application of Article 51 applies equally to Road and Yard service.

Unforeseen circumstances do not relieve the Company of responsibility to comply with Article 51 unless such circumstances make it “impossible” to do so.

For example, the Company could not rely upon train failure (derailment or otherwise) where such failure does not prevent them from having the employee in and “off duty” at terminals or at accommodations (Road Service – en-route) by the time rest booked is due to commence.

2. Rest Road – Outer Switch;

“Ad hoc arbitration – M. Picher Arbitrator – Decision August 13th, 2004”

The Arbitrator, as a result of a grievance filed by UTU Central Region, stated the following;

“On October 9th, 2003, Conductor W. Namik gave proper notice of his desire to book rest under the provisions of Article 51 of Collective Agreement 4.16, with such rest to commence at 13:15 hours of the same day. Conductor Namik reached the outer switch of his objective terminal prior to the time rest booked was due to commence but was subsequently directed by the Company to remain on duty an additional 50 minutes beyond the time rest booked was due to commence, to perform work….

…The Arbitrator finds the company violated Article 51 of Agreement 4.16 in the circumstances of this case…

…As provided in a January 15, 1986 internal document clarifying the application of Article 51 (the “1986 implementation) and quoted in CROA 3280:

“”It is incumbent upon the Company to ensure that trainman, who give proper notice of the desire to book rest, are relieved of duty either at a location where accommodations can be provided or at the home terminal or away-from-home terminal by the time rest booked is due to commence, and even then, as soon as possible. In order to make the necessary arrangements to fulfill this requirement, a minimum of three hours’ notice is required””

…The RTC supervisor must make a bona fide and informed assessment of whether the employee should reasonably be able to make it to his or her objective terminal and complete the yarding of his or her train by the time rest booked is due to commence..

…Where the RTC dispatcher or supervisor makes a good faith assessment abut the crew’s ability to reach the objective terminal and to yard the relevant train by the time rest booked is due to commence, the Company will not be hold in violation of the collective agreement merely because that assessment proves inaccurate or where the employee in question does not make a good faith effort to complete his or her assignment consistent with the RTC’s assessment.

For purposes of clarity, it is not sufficient for the Company to merely attempt to have the employee to the outer switch by the time rest booked is due to commence: rather, the supervisor’s or dispatcher’s assessment must include the time it should take for the employee to yard his or her train at the objective terminal.

In making the initial assessment, the Company must include a reasonable estimate of the time that will be needed for yarding the employee’s train. It must ensure as far as reasonably possible, that the employee will be “in and off duty” before his or here scheduled rest begins. If that cannot reasonably be done, arrangements must be made for relief of the employee at the time his or her booked rest is due to commence…


…Once the employee commences yarding his or her train the employee must complete yarding the train before going off duty on rest…

…The Arbitrator, in making such findings and determination, orders and directs the Company to cease and desist from violating Article 51. The Arbitrator further orders and directs the Company to comply with the provisions of Article 51…”

My View;

The Company cannot just rely on a train reaching the “outer switch” in order to breach the time rest is due to commence. The Company would be in violation of the Collective Agreement if it can reasonably be demonstrated that the Company did not attempt to have employees in and “off duty” by the time rest booked is due to commence, taking in the time required to yard the train.


Additional Information:

1. Federal Court of Canada;

On November the Federal Court of Canada certified the filing of the above noted arbitration decisions. Such filing has the effect of making the arbitrators decisions the decisions of the Court. Any breach of these decisions can be advance to the Courts for resolution.

2. The C.I.R.B;

On March 24th, 2005, the CIRB issued a decision that included the blatant violations of Article 51 by the Company. The CIRB, among other things, stated the following;

“(a) declares that the employer has violated section 94(1) of the Code’s provisions as alleged in the union’s complaint with respect to the repeated violations of sections 41 and 51 of the collective agreement;

(b) directs the employer to cease and desist from violating the collective agreement with respect to these provisions;

(c) orders the employer to develop and conduct information and training sessions of all managers and supervisors charged with the interpretation and application of the collective agreements on the proper application of these provisions of the collective agreements;…”


My Conclusion:

It is my personal belief that the Company has and continues to violate Article 51. The options to address these violations are;

Proceed to the Federal Court of Canada for breach of its decisions;
Proceed to the CIRB for breach of its’ orders;
Proceed to arbitration under the Remedy Provision for breach of the continued blatant violation of the Rest Provisions.


I will provide my insight to the General Chairperson as to how he should proceed in addressing these matters.


Best Regards,


Rex Beatty