BETWEEN:

(the "Company")

AND

(The "Union")

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:

W. G. Flood – General Chairman

G. C. Gale – Vice-President

Pursuant to a letter dated July 1st and signed by Thomas A. Johnstone, Assistant Vice-President, Labour Relations, Canadian National Railways, A.M.Hand, Manager, Labour Relations, Canadian Pacific Railways, 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, 1964, at Montreal.

These cases are similar and will be dealt with in the one award. I will deal fist with the Tamping Machine case.

The Brotherhood contends that Article 140, Paragraph 2 of the current schedule, which reads as follows:

should be interpreted in such a way that yard foremen will act as pilots on the tamping machines.

The Brotherhood states that yard foremen have been used as pilots on these machines prior to June, 1962, but on June 22nd, 1962 management changed what the Brotherhood contends was a long established interpretation of Article 140, and this, according to the contention, disregarded the work rights of the men. The Local Chairman, J.C. Leroux, submitted a time claim dated June 22, 1962 and drew the matter to the attention of management in accordance with the provisions of Article 148, a, b, c, and d of the contract. The claim was declined by management and the grievance was progressed and eight similar claims were submitted and are included in this dispute.

The Brotherhood also claims that because of the change in interpretation of Article 140 management were also in violation of Article 148, b, c, and d,. The Brotherhood filed copies of instruction which apply at the present time at the Toronto Area of the Great Lakes Region, which, according to their statement, have been in effect for a number of years and apply to all self-propelled work machines. The Brotherhood also cites a case where a tamping machine was operated from August 19th to October 3rd, 1963 at Sarnia, in the London area, and was advertised and filled as a temporary assignment for a yard foreman pilot.

As will be noted from the two matters in dispute, one, that Article 140 has been violated when the Company did not employ a yard foreman as pilot on the tamping machine in the Montreal Terminals, and second, that the Brotherhood did not have the right to complete and submit time returns on behalf of individual employees. The two sections of the dispute will be dealt with separately.

The Company states that an electric tie tamping machine was operated on June 22nd, 1962 in the Montreal yard on receiving tracks 1 to 3 and 6 to 20 without a pilot, and the local chairman, J.C. Leroux filled out and signed and submitted a time return claiming eight hours’ pay on behalf of yardman C. Yackinson at yard foreman’s rate on the grounds that Yackinson, who was working that day, should have been called as a yard foreman to act as a pilot on the tamping machine. The claim was processed and finally denied by the General Manager on January 15th, 1963. Similarly eight other time returns were filled out and submitted by the local chairman, Leroux, in the same matter, and after being processed were also denied by the general Manager on January 16th, 1963. The Management states that other than the passage in article 140, "other than that performed continuous with a road trip in such services", which was re-worded in 1962, the article has remained unchanged since 1929 when the original article became effective.

The Company further contends that in 1929 tamping machines were unknown, and that self-propelled machines such as electric tie tamping machines could not have been contemplated as being included within the reference to "work service". Management, however, says that in 1929 there were in use self-propelled steam cranes, pile drivers, weeders, sprayers and discers, and management further asserts that both before and after article 140 self-propelled work machines were either operated with or without a pilot at the discretion of management, and since 1929 up to the time of the present dispute no formalized grievance can be found in which the Brotherhood contended that Article 140 necessitated use of pilots on self-propelled work machines. The Company further asserts that the only references in the collective Agreement to self-propelled machines will be found in article 19 and 86. Article 19 deals with track inspection cars which, although self-propelled, are not work machines. Article 86 reads as follows:

This restriction, the Company further asserts, applies only to use of self-propelled cranes on the main line outside yard limits, and both Articles 19 and 86 apply only to road service employees and it does not give jurisdiction over yardmen. The Company says that tamping machines are self-propelled work machines which do tamping and is a smaller unit than the cranes and is manoeuvrable and can be removed from the track by means of a built-in jacking system. The machine itself carries a set of portable rails on which it sets itself off and the whole manoeuvre can be performed by the usual three-man crew in ten minutes time. The Company accordingly asserts that pilots have never been required on a compulsory basis within yards on cranes, nor on pile drivers, weeders, sprayers, and so on, and that the protection of movements of such equipment is taken care of by the Maintenance-of Way rules 903 (b) and Rule 955. The Company, however, freely states that pilots may be used within the limits of the yards, the operating officers frequently making judgement as to whether or not a pilot in the yard is justifiable, having in mind the safety of the crew and the machines and the safety of other employees and equipment. The Company of course asserts that the management has the responsibility for the safe operation of its enterprise, subject only to the limitations imposed by the Agreement. Management further asserts that there was a contract demand in 1961 made by the Brotherhood which requested a uniform crew consist rule for self-propelled machines, and the rule proposed reads as follows:

The conciliation board did not recommend the acceptance of this suggested rule and no such rule was included in the Agreement of 1962. Because of this the Company argues that the Brotherhood well knew there was nothing in the 1961 Collective agreement which gave it any entitlement to the enforced assignment of pilot in self-propelled work machines operating in yards.

An electric tamping machine was not in existence when article 140 was first included in the Contract. Article 140 can not be extended to mean that yard foremen must be assigned as pilots on these machines when operated in the yard. There is no provision in the Collective Agreement which makes it compulsory on management to assign a foreman pilot to a tamping machine when used in yards. Obviously this was the accepted interpretation of the rules by the negotiating committee of the Brotherhood when the Brotherhood requested as part of the negotiations for the 1962 contract a rule which would compel the Company to assign a foreman pilot when any self-propelled machine is used within switching limits and that when cars are handled by any self-propelled unit a full crew will be used.

My finding is, therefore, that the company has not violated Article 140 when on various occasions in the Montreal yard between June 22, 1962 and July 17, 1962 it did not employ a yard foreman as a pilot on tamping machines operated in the Montreal Terminal.

Part Two of the dispute relates to the contention on the part of the Company that the Brotherhood did not have the right to complete and submit time returns on behalf of individual employees.

The Local Chairman J.C. Leroux, submitted on nine occasions claims on behalf of yard foremen when the Company did not assign yard foremen as pilots on tamping machines operated in the Montreal Terminal during that period. The individual employee did not sign the claim, the claim for pay because all alleged breach of Rule 140 when foreman were not assigned as pilots on the tamping machines.

The Brotherhood contends that in a large terminal such as Montreal the Local Chairman would have great difficulty in contacting a man in order to have him submit a time claim when the Local Chairman considers the Agreement has been violated, and further submits that up to and including the Trackmobile Board Case No. 786 which commenced January 23rd, 1957 time claims submitted by the Local Chairman in favour of a fellow employee had been recognized by the Railroad, and that since that time the Railroad has refused to recognize such claims. The Brotherhood contends that as it is the signatory organization with which the Agreement is made that its representative has the right to police the Contract rather than individual members who may not even know of infraction of the Contract.

The Brotherhood also states that if time claims are involved in a violation and such violation is drawn to the attention of management under Article 148 the men suffer a loss of earnings over a period of time waiting for the dispute to be resolved

The Company says that under Article 144 yardmen are required to complete and submit time returns on completion of a shift, and there have been numerous occasions when yardmen did complete time claims where there was a claim for work which was lost or alleged to have been lost by the yardmen by reason of non-compliance of the Company with the terms of the Collective Agreement.

Under this Article 144 in cases where time claimed is disallowed such time return will be returned to the employee. The second part of Article 144 sets out procedures to be followed when the Company decides not to accord payment for a time return submitted and the Company’s decision is disputed by the employee. At this stage a grievance has been created and the employee’s accredited representative comes on the scene.

Nowhere in the Contract is there any mention made of the authority of employee’s representatives to file any time returns and submit them on someone else’s behalf. On the contrary, paragraphs one and two of Article 144 confine the submission of time claims to employees, and Article 148 provides for the means of settling a dispute involving the interpretation of the Contract. The Company does not deny that in the past time claims submitted by Local Chairmen have been accepted and paid, but states that since 1961 instances of accepting for payment time returns signed by local Chairmen on behalf of employees have been completely eradicated.

The Collective Agreement (Article 144) does not give Brotherhood representatives the right to sign and submit claims for compensation on behalf of employees Yardmen under this Article must submit their own time returns.

Until the time claims has been rejected there is no dispute and it is at the rejection stage that the Brotherhood, under Article 144, may have a representative act on behalf of an employee. Article 148 sets out the proper procedure for Brotherhood representatives in case of an alleged violation of the Agreement to call the attention of this to the supervisory officer and then the matter may be duly processed to arbitration if necessary. Past practice at times under which time claims signed by Local Chairmen have been honored does not constitute a generally accepted practice which affects the interpretation of clear and unambiguous words in the Collective Agreement.

For these reasons I find that the Brotherhood representatives did not have the right to complete and submit time returns on behalf of individual employees. If individual employees should give general and irrevocable power of attorney to Brotherhood representatives to submit time claims on their behalf this might raise another issue which is not now before us, and therefore I am called upon to decide the effect of such a possible power of attorney being given to Brotherhood representatives by individual employees. In any event, if such were done, the individual employee could not escape any liability involved in the event that an improper time claim was made.

There were thirty-seven similar returns completed by the Local Chairman between December 20, 1961 and February 28, 1962 when a switchbroom machine was operated in Montreal Terminal without a yard foreman acting as pilot. All the arguments and contentions which were advanced in the former case both on behalf of the Brotherhood and on behalf of the employer were again brought forward in this case. Reasoning in the electric tie tamping machines case must prevail in this case and I likewise find that the grievance must be denied because, for the reasons given in the tie tamping case, the Article 140 has not been violated and the Brotherhood did not have the right to complete and submit time returns on behalf of individual employees.

The grievance is therefore denied.

DATED at Belleville, Ontario, this 5th day of October 1964

Single Umpire