AH – 30
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAYS
CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT and GENERAL WORKERS
IN THE MATTER OF THE GRIEVANCE OF J.J. Cheeseman and J. Boychuk
SOLE ARBITRATOR: J. A. Hanrahan
There appeared on behalf of the Company:
R. Abbot – Assistant Manager, Labour Relations
P. A. McDiarmid – Labour Relations Assistant
W. S. Hodges – Labour Relations Assistant
S. J. Goldenberg – Senior Agreements Analyst
C. R. Kelley – Assistant Labour Relations Officer
And on behalf of the Union:
C. Beckerton – General Chairman, Toronto
L. K. Abbott – General Chairman, Moncton
J. A. Pelletier – Secretary, Joint Protective Board
G. Gagnon – Acting General Chairman
A hearing in this matter was held at Montreal in February 1966.
The background for this case is contained in a letter from Mr. C. Beckerton, General Chairman, under date of March 30, 1965:
Enclosed are time tickets submitted by Train Messengers J.J. Cheeseman and J. Boychuk. Claims are submitted due to loss of run through Messengers being cancelled on Christmas Day and New Year’s Day on Train 27 and 36, out of Toronto.
In accordance with Article 12.3 and Article 27.3 the run was advertised as a six-day operation. On this basis the above two employees applied and were awarded the positions. No notification was shown on the bulletin that the Messengers would not be required December 25th and January 1st, and when the run was cancelled on those dates this constituted abolishing the position and they should have been rebulletined.
As the company did not rebulletin the position it must be assumed they were biding by the original bulletin which called for a six-day operation, therefore claim of the above two employees is valid.
Before the Arbitrator Mr. Beckerton contended that when positions are bulletined employees desiring to bid on them do so on the basis of a full-time position. Messengers’ positions are advertised without showing that the train would be cancelled on a statutory holiday. Three such holidays are involved in the Winter Bulletin – Christmas Day, New Year’s Day and Good Friday. This could mean seven to eight hundred miles to a messenger. If employees knew at the time the position was bulletined that the run was subject to cancellation, it would give them the opportunity of applying for other runs, thereby maintaining approximately the same take-home pay each month.
A search of Article 12.3 and Article 27.3 discloses no guarantee that trains involved in bulletined openings may not be cancelled. On the contrary, as Mr. Hodges contended for the Company, Article 27.7(k) provides for such a possibility in this language:
27.7 (k) When a train is delayed, set back or cancelled at an initial terminal of a route, the Train Messenger assigned to cover such train will be advised accordingly and notified of the time required to report for duty.
In this instance the messenger was notified on December 7, 1964, that the trains in question would be cancelled on December 25, 1964 and January 1, 1965.
Mr. Hodges told the Arbitrator that this claimant had been paid for Christmas Day an additional 160 miles, in accordance with Article 27.14. This was over and above his regular monthly mileage.
Article 27.7 (a) reads:
27.7 (a) The basic monthly rate for a Train Messenger paid on a mileage basis will be $422.84 (now increased) for an average monthly mileage of 4,500 miles or less in exclusive passenger service.
During the month of December 1964, the grievor had accumulated 4437 miles. He was given an additional 63 miles to bring his monthly mileage to the 4500 average monthly mileage mentioned in that Article.
Mr. Hodges stressed the Brotherhood could point to no particular provision in the agreement that had been violated in the manner suggested.
A study of the applicable provisions verifies that positions, as stated, nothing appears in the provisions as to bulletining guaranteeing that a six-day operation as advertised is not subject to cancellation. If it did so this would be accomplishing the yet distant goal of industrial unions, namely, guaranteed employment. As stated, Article 27.7(k) on the contrary gives warning that a cancellation may occur.
The only guarantee a messenger is given in the existing provisions is contained in Article 27.7(k), with the practice the Company has of implementing it. An example of this was as described, with the grievor being given an additional 63 miles to bring his monthly mileage to the 4,500 average mileage specified.
For these reasons this claim must be denied.
J. A. Hanrahan
COMMENTARY: The Company cancelled Train 26 and 27, and thereby the Train Messenger assignments on these trains, on Christmas and New Year’s Day. The Brotherhood claimed that, since these positions had been bulletined as six-day assignments, the Company should pay the Train Messengers a day’s pay for each day that the assignments were cancelled. The Arbitrator said "Nothing appears in the provisions (of the Agreement) … guaranteeing that a six-day operation, as advertised, is not subject to cancellation. If it did so this would be accomplishing the yet distant goal of … guaranteed employment."