AH – 17
IN THE MATTER OF AN ARBITRATION
Canadian National Railways
Brotherhood of Railroad Trainmen
IN THE MATTER OF THE GRIEVANCE OF Conductor T.L. Chard, Brakemen A.M. Riches and P.L. Schilroth for an additional day’s pay
SOLE ARBITRATOR: Judge J. C. Anderson
There appeared on behalf of the Company:
K. L. Crump – Assistant Manager labour Relation
R. St. Pierre – Labour Relations assistant
S. J. Mayer – Labour Relations Assistant
J. K. Culkin – Labour Relations Assistant
T. A. Johnston – Assistant Vice-President, Labour Relations
And on behalf of the Union:
G. Mcdevitt – General Chairman
G. C. Gale – Vice-President
H. Walhs – General Chairman
A hearing in this matter was held at Montrealon August 28, 1964.
Pursuant to a letter dated July 1st and signed by Thomas A. Johnston, Assistant VIce-President, Labour Relations, Canadian National Railways, A.M. Hand, Manager, Labour Relations, Canadian Pacific Raiways, and G.C. Gale, Vice-President, of Brotherhood of Railroad Trainmen, I was appointed single umpire to arbitrate certain disputes between the Brotherhood of Railroad Trainmen of which this was one, and this matter was dealt with on August 28th at Montreal.
This dispute involves a claim for an additional day’s pay in favor of Conductor T.L. Chard, Brakemen A.M. Riches and P.L. Schilroth dated August 2, 1963.
Agreed Statement of Facts
Conductor T.L. Chard and Brakeman A.L. Riches and P.L. Schilroth were regularly assigned to trains 1/543 - L-544 in Road Switcher service operating daily except Saturday and Sunday between Mimico and Oakville, leaiving Mimico at 6:45 a.m. On August 2, 1963, the Company ordered this crew to leave at 5:a.m. to perform industrial switching.
The Brotherhood claimed that the work performed was extra service and that the employees were entitled, under Article 12 Rule (c), to an additional day’s pay at Road Switcher Rates. Conductor Chard and crew submitted claims accordingly and the Company declined them on the basis that Article 12 Rule (c) was not applicable.
Article 12 Rule (c) reads as follows:
(c) Trainmen called for extra service (not including, special service or switching required in connection with their own train or regular assignment) before commencing or after completion of their trip or regular assignment will be paid for such extra service not less than a minimum day at the schedule rate of pay and under the conditions applicable to service performed.
Road Switcher assignments appear in Article 8 Rule ( c ), Sections 1, 2, 3, of the Agreement, and Section 1 is the only one which has any bearing on this issue here. Article 8 (c) , 1, 2, 3, reads as follows:
(c) Rates of pay and working conditions applicable to Traimen on trains propelled by steam or other motive power in Road Switch service operating on a turn - around basis within a radius of thirty ( 30 ) miles.
1. Trainmen assigned to Road Switcher service operating on a turn-around basis within a radius of thirty (30) miles from the point required to report for duty will be compensated at a rate per day in excess of the basic daily wayfreight rate as follows:
June 1, 1962 Dec. 1, 1962 June 1, 1963
$2.28 $2.33 $2.38
Traimen may be run in and out and through their regularly assigned initial terminal without regard for rules defining completion of trips. Time to be computed continuously from the time trainmen are required to report for duty until time released at completion of day’s work. Eight (8) hours or less shall constitute a day’s work and time in excess of eight (8) hours will be paid for on the minute basis at a rate per hour of three-sixteenths (3/16ths) of the daily rate.
2. Trainmen regularly assigned to Road Switcher service will be paid not less than the equivalent of twenty-six hundred (2,600) miles at Road Switcher rates in any one month. When trainmen are assigned only a portion of a month, or trainmen are relieving on such assignments, the guarantee will be pro rated on the basis of the number of calendar days the assignment is in effect. If through act of Providence it is impossible to perform regular service during any portion of the month the guarantee will be reduced accordingly.
3. Service in any class of extra road service and/or extra yard service in open yards, payable under the conditions applicable to the service performed, may be required sufficient to make up the monthly guarantee and may be performed on days on which the regular assignment is cancelled or on days on which the assignment is not scheduled to work. The performance of such service will not constitute run-arounds under the provisions of Article 30.
The Brotherhood contends that Article 8(c)3 provides the only reason and circumstances when a crew regularly assigned in this class of service may be used in extra road and/or extra yard service and not entitled to compensation other than their monthly guarantees.
The circumstances obtaining in this case do not conform with any of those listed in Article 8(c)3 of the current schedule.
The provisions of Article 12 – EXTRA SERVICE – FREIGHT SERVICE, Clause (a), reiterate the principles found in Article 8(c)3, stating quite specifically that trainmen in freight service will not be required to perform extra service outside of their regular assignment when unassigned trainmen are available, except to make up the monthly guarantee.
Article 12(c) provides payment due regularly assigned trainmen who are called for extra service before commencing or after completion of their trip or regular assignment.
When initially declining payment of this claim which is the subject of dispute (see correspondence re - produced as Appendix A), Management contended that "the advancing of your crew on this date is as provided for in Article 53, second paragraph, and Article 76 (b) 3".
Article 53 - Trainmen not considered absent, second paragraph, reads as follows:
Except as otherwise provided in article 82(b), trainmen assigned to regular runs will not be considered absent from duty after being relieved on arrival at final terminal at end of day’s run until again required for their regular assignment. If their services are required in the interval, they will be notified, and if so notified and not used, will be paid a minimum day, unless cancelled prior to the starting time of their regular assignment if it were being worked on that day, in which event they will be allowed half a day.
This rule provides two things - (1) except when required to protect promotion as a conductor under the provisions of Article 82(b), regularly assigned trainmen are not required to be available for service, following completion of a day’s work until again required for their regular assignment; (2) If conditions exist whereby their services are required for extra service, they will be so notified.
The Brotherhood further contends that Article 79 provides the work entitlement of unassigned crews and Article 78 provides for the work entitlement of spare trainmen, and it is the committee’s contention that the only circumstances whereby a regularly assigned trainman may be used for other than is regular assigned run is when no trainmen entitled to man extra service under the provisions of Article 79 and/or 78 are available if the regular assigned trainmen’s services are being utilized to make up his monthly guarantee, or if the trainman is called in turn to protect his promotion to conductor as provided for in Article 82 (b).
As there were spare trainmen available for and entitled to man extra service on August 2nd, none of the conditions outlined in the previous paragraph, the Brotherhood asserts, are applicable.
The Brotherhood’s contention is that Article 76 (b) 3 simply lists changes in working conditions on assignments which will necessitate the rebulletining of assigned runs, and that portion applying to freight service reading "the leaving or arrival time changed three (3) hours or more", refers to a change in the regular listing time of an assignment and is not and has not been construed to apply if a regularly assigned train is ordered late on intermittent occasions.
In short, the Brotherhood states that in addition to being ordered to perform a switching service prior the advertised starting time of their regular assignment, this was required to perform a switching service at a plant not normally switched as part of the regular duties of their assignment.
Management in a letter dated February 5, 1964, which is reproduced and attached to the Brotherhood brief as Exhibit B states:
Article 76 (b) 3 and other schedule provisions clearly establish the Company’s prerogative to advance or set back the order time of a regular assignment to meet requirements of the service.
The Brotherhood agrees that Management has the right to alter regular order times of assignments to meet service requirements and then the provisions of Article 76 (b) 3 are applicable as to whether or not it is necessary to readvertise the particular run.
The Brotherhood does not agree that this rule 76(b)3 contemplates or permits Management to advance the regular order hour of a crew on an irregular or intermittent basis by simply issuing instructions verbally or by message for the crew to report for duty ahead of their advertised starting hour for one day only. They feel to agree to Management’s contentions would destroy any semblance of regular working conditions contemplated by regular assignments and trainmen assigned to work on designated days, at designated times, would be relegated to unassigned service conditions. In other words, if the rules permit, as Management contends, it would be proper to order 1/543 at 4:00 a.m. Monday; 9: a.m. Tuesday; 6:45 a.m. on Wednesday and 4:00 a.m. on Thursday, simply by telling the crew the previous working day that their services would be required at an hour other than that to which assigned.
The Company states that the Brotherhood’s contention that the service performed by Conductor Chard and crew on August 2nd included "extra service" over and above their regular assignment and that the employees are entitled to an additional day’s pay under the provisions of article 12, Rule (c) based on two factors: One, that the crew was ordered in advance of time shown in the bulletin; two, during the course of the trip they serviced an industry which was usually serviced by another crew.
The Brotherhood, in submitting the case to arbitration, limits its claim to a violation of Article 12 (c), which is quoted earlier under the Brotherhood’s contention section of this award.
The Company says that in the bulletin a starting time of 6:45 a.m. was given, which advertised the position on train 1/543-1/544, which were bid in by Conductor Chard, Brakeman Riches, and Schilroth, and that the bulletins contain a starting time simply for convenience of employees applying for advertised positions which could be usually expected to be operated at the time indicated, but the Company asserts that a bulletin advertising starting time is not a guarantee and does not restrict the Company’s right to operate its trains in such a way as to meet requirements of the service provided it is within its rights in the Collective Agreement. The Company says that in this case the crew was notified to report earlier prior to release from duty the previous day, in accordance with Article 53.
Article 80, Running of Assignment Crews, reads as follows:
80 Regularly assigned trainmen will, when available for service, make their regular assigned trip or run notwithstanding the trains may be late or running ahead of time except as otherwise provided in this Article. (Emphasis added)
Article 76 Rule (b) 3 reads :
76 (b) 3 When the schedule of a run is changed from daily to daily except Sunday, or from a local to a through run, or vice versa, or the mileage of a passenger run is increased or decreased 600 pay miles per month, or when the point of lay-over is changed, or the leaving or arrival time changed three (3) hours or more, or a change in the lay-over at either terminal of more than six (6) hours, the run will be bulletined over the promotion district and the trainmen on such runs will be permitted to remain on the assignment during the period of bulletin or exercise their seniority in accordance with Article 64. (Emphasis added)
Article 53 Paragraph 2 reads :
53 (2) Except as otherwise provided in Article 82 (b), trainmen assigned to regular runs will not be considered absent from duty after being relieved on arrival at final terminal at end of day’s run until again required for their regular assignment. If their services are required in the interval, they will be notified, and if so notified and not used, will be paid a minimum day, unless cancelled prior to the starting time of their regular assignment if it were being worked on that day, in which event they will be allowed half a day.
The Company argues that Article 76 (b)3 recognizes that the Company has the right to change a bulletined starting time of a road assignment up to three hours without even re-advertising the assignment, and Article 53 provides that trainmen required for service prior to the time of the regular road assignment will be notified when to report.
Dealing with the Brotherhood’s second contention in respect of its claim for extra service payment under Article 12(c), the Company asserts that it is based on an astonishing proposal, namely, that an assigned crew can not be required to service trackage which they do not usually serve. The Company explained that industries are generally serviced on a regular schedule although their operations and requirements vary from time to time, and that railways must possess flexibility to render service to meet the varying needs of their customers without being subjected to penalties, and that the Collective Agreement recognizes this by giving certain flexibility in respect to various starting times of road assignments.
The Company then refers to Article 8(c), which has been quoted in detail above. The Company points out that Article 12(c) on which the main contention of the Brotherhood’s case rests, reveals that it is solely concerned with service performed outside an assignment, and specifically excludes switching in connection with a regular assignment, and that the service for which Conductor Chard and his crew are claiming payment was service performed entirely within the limits of their own assignment on their own assigned territory.
I find that Conductor Chard and his crew were performing service entirely within the limits of their own assignment and on their own assigned territory and within the accepted starting time limitations for the assignment as provided for by Article 80 and 76(b)3, and Article 12 deals with work outside of and in addition to or above a regular assignment, and as switching on the siding came within the limits - Mimico to Oakville are part of the assignment for trains 1/543-1/544 - and as the crew of such assignment may be required to perform work anywhere within the confines of their assignment, there is, in my opinion, no breach of the Contract by bulletining the train at an hour and 45 minutes earlier than usual and asking the crew to switch at Texaco, which is usually switched by a crew which started later in the day.
Therefore I do not find that the Company has been in breach of any of the rules, and the grievance of Conductor Chard and his crew must, for reasons given, be denied.
DATED at Belleville, Ontario, this 5th day of October 1964
J. C. Anderson (Judge)