BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Charles O’Connell, Q.C.

There appeared on behalf of the Company:

P.A. McDiarmid – Labour Relations Assistant, Montreal

C. Hollett – Superintendent, Express Freight, St. John’s

G. James – Employee Relations Assistant, St. John’s.

And on behalf of the Union:

Esau E. Thoms – General Chairman

Michael Walsh – Chairman, St. John’s Lodge

George Noseworthy – Local Chairman, Argentia Lodge

A hearing in this matter was held at St. John’s, Newfoundland on the 28th day of July, 1967.

This Board of Arbitration was set up to resolve a dispute between the parties hereto. The said Board was established pursuant to Clause 10.4 of Article 10 of the Collective Agreement entered into between the Canadian National Railway Company, hereinafter referred to as the "Company" and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees hereinafter referred to as the "Union" in force at the material time.

The Arbitrator, Charles O’Connell, Q.C., of Sydney, N.S. was appointed by the Honourable John R. Nicholson, Minister of Labour.

The Board held a meeting at St. John’s, Newfoundland on the 28th day of July, 1967 at which time representatives of both the Company and Union were present. The Company was represented by P.A. McDiarmid, Labour Relations Assistant, Montreal, and C Hollett, Superintendent, Express Freight, St John’s, and G. James, Employee Relations Assistant, St. John’s.

The Union was represented by Mr. Esau E, Thoms, General Chairman and also by Mr. Michael Walsh, Local Chairman, St. John’s Lodge, and Mr. George Noseworthy, Local Chairman, Argentia Lodge. At the St. John’s meeting both parties were given a full opportunity to adduce all relevant information concerning the matters in dispute and briefs and oral arguments were submitted to the Board.

On January 3 and 4, 1967, a carload of wallboard, shipped from Pointe Rouge, Quebac, was unloaded at Lewisporte, Newfoundland. The carload was checked on arrival at Argentia, Newfoundland and assigned to two smaller capacity cars 7705 and 7977. Upon arrival at Lewisporte, the two cars were placed on the team track which is located west of the Company’s shed.

The contents of cars 7705 and 7977 were consigned to R.W. Manuel Limited, who arranged for its employees to enter the Company’s property and unload Cars 7705 and 7977.

Mr. W. Woodford, a laid-off employee of the Company’s wharf operation at Lewisporte and covered by seniority group number 3 of the Collective Agreement, registered a grievance, claiming that a "Checker" should have been on duty at Cars 7705 and 7977 on January 3 and 4 as they were unloaded and that he, Mr. Woodford, should have been recalled from lay-off to perform that duty. He claims eight hours pay at the Checker’s rate of pay.

The duties of a Checker are normally performed by Group 2 employees but Mr. Woodford contends that on January 3 and 4 , as no Group 2 employees were available, as a laid-off employee of Seniority Group 3 he was entitled to employment as set out in Clause 6.6 of the said Collective Agreement and it is on this basis that he makes his claim.

The Company conducts a wharf operation and a Railway Shed operation at Lewisporte. The Company does not employ the classification of Checker in its rail operation at Lewisporte as this work is performed by a Senior Shedman and/or a Shedman. The Company does employ the classification of Checker in its wharf operation at Lewisport but that doesn’t concern us as we are dealing solely with matters affecting the Company’s Railway Shed Operation at Lewisporte.

Mr. W. Woodford, the Grievor herein, is claiming that no Checker was on duty at Cars 7705 and 7977 on January 3 and 4 as they were unloaded by the Consignee and that Clause 1.2 of the Collective Agreement was violated as the checking of Cars 7705 and 7977 was done by employees of the Consignee and not by Company employees covered by the Collective Agreement.

Mr. W. Woodford claims by not using his services as a Checker there was a breach of the Collective Agreement and as a consequence is claiming eight hours pay at the Checker’s rate of pay.

The Collective Agreement is silent as to the manner in which goods coming onto the Company’s property at Newfoundland is to be checked. In the absence of any express provision in the Collective Agreement on this point, it is the opinion of this Board that the manner in which goods are to be checked lies solely within the discretion of the company. In other words. the company decides in a given situation whether or not the contents of a car are to be checked. any Consignee may request the services of a Checker. The situation where the Company would not employ the services of a Checker are few because failure on their part to adequately check the contents of any car could lead to a multitude of claims which the Company would be forced to pay.

With reference to Cars 7705 and 7977, I find that an adequate check was made by Employees of the Company of the contents of the said cars.

I am also of the opinion that if all relevant information pertaining to this grievance had been given Mr. E. Thoms by local Union officials at Lewisporte, that this matter would not have gone to arbitration.

The reason I suggest this is because the evidence clearly indicates that the carload of wallboard was checked on arrival at Argentia and assigned to Cars 7705 and 7977. A copy of the Checker’s tally sheet confirming this was filed as exhibit 3 herein. The evidence further indicates that when Cars 7705 and 7977 were placed on the team track west of the Company’s shed, the seals of the two cars were broken by senior shedman, H. Manuel, a Company employee at Lewisporte and not connected in any way with the Consignee.

The evidence further indicates that when the consignee unloaded the contents of Cars 7705 and 7977 into their truck, as each truckload left it was checked at the Company’s shed prior to its removal from the Company’s property. The check was made in the following manner - the Consignee’s employees, as they were leaving the premises would state the number of wallboard bundles being carried in that truckload and this would be checked by the Company’s shed employees. When the tallies agreed the consignee’s truck would proceed out of the Company’s property. The Company’s count was registered on the back of the tally sheet, exhibit three herein, and a copy of this count is set forth in exhibit four herein. The check for the Company was performed by Company employees classified as Senior Shedman and Shedman under Seniority Group Number Two of the Collective Agreement, whose duties include that of a Checker.

The question to be decided by this Board is whether the Company violated the Collective Agreement in not recalling Mr. W. Woodford from layoff to work as a Checker to stand beside the doors of Cars 7705 and 7977 on January 3 and 4 to check the contents of the said cars as they were unloaded.

The evidence clearly indicates that Article 1.1 of the Collective Agreement was not violated since the check which the Company carried out was performed by employees who normally perform that duty at the Lewisporte railway operation.

The appeal of the Union for eight hours pay as a Checker for Mr. W. Woodford is dismissed.

DATED at Sydney, in the County of Cape Breton, Province of Nova Scotia, this 29th day of August, A.D., 1967.

Arbitrator

COMMENTARY: The Union claimed that Article 1.1 of the Agreement (Scope) was violated in the manner that checking was performed at Lewisporte, Newfoundland. They contented that the consignee’s employees checked the traffic and not Company employees. They further contented that since no Checker was available at the car door, a laid-off employee should have been recalled to work to perform this duty. The Company successfully proved that the car was checked by Company employees whose duties include checking and that the check was made in a manner satisfactory to the Company.