AH – 60
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Canadian National Railway Company
(the "Company")
AND
United Transportation Union
(The "Union")
IN THE MATTER OF THE GRIEVANCE OF S. B. Karpinski
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
W. S. Mason
And on behalf of the Union:
G. H. Warren
A hearing in this matter was held at Montreal on April 15, 1970.
AWARD
Dispute:
Claims submitted by Fireman/Helper S.B. Karpinski for wayfreight rates instead of through freight for tours of duty out of Melville, Saskatchewan during 1969.
Joint-Statement of issue:
On October 10. 1968 a bulletin was issued at Melville asking for applications for one locomotive engineer and one fireman/helper to man a through freight service assignment commencing October 15 between Melville-Yarbo-Cutarm-Melville.
Fireman/helper S.B. Karpinski, based on his seniority, was awarded the position during 1969. He submitted claims for wayfreight rates and used as support for doing so, a letter dated July 27, 1951, signed by the then General Manager, F.K. Keefe.
The Company declined the claims for the higher wayfreight rates and allowed compensation at through freight rates in keeping with the terms of reference in the bulletin dated October 10, 1968.
The Company, upon notice to the union raised a preliminary objection to the arbitrability of this matter, and this objection was argued at the hearing. The parties agreed, however, that I might reserve my ruling on the preliminary objection and hear the case on the merits, and this course was followed.
It is the company’s contention that the claim is not one which may be brought to arbitration pursuant to the collective agreement between the parties. Article 16 of the agreement sets out a procedure for dealing with grievances concerning the "interpretation or alleged violation of it, and article 16d. in particular, provides that "A" grievance concerning the interpretation or alleged violation of this agreement, or an appeal against discipline imposed …", may be referred to arbitration. The company contends that this grievance is not arbitrable it is based, not upon some provision in the collective agreement, but upon the terms of a letter, issued by the company on July 27, 1951, and which does not form a part of the collective agreement. It is said that the letter cannot properly be the subject of a grievance.
The proposition is in itself unexceptionable, and is supported by the provisions of the seventh paragraph of article 16 D, which is as follows :
Disputes arising out of proposed changes in rates of pay, rules or working conditions, modifications in or additions to the scope agreements, are specifically excluded from the jurisdiction of the arbitrator, and he shall have no power to add to, subtract from, or modify any of the terms any agreement.
The grievance, however, does not on its face purport to be a claim based solely on the letter of July 27, 1951. The claim is that the grievor has not been paid for this work on the proper basis. The collective agreement contains provisions dealing with the several types of assignments which may be made, and with the matter of payment. The grievance surely relates to a subject-matter dealt with in the collective agreement, and in my view the grievance and arbitration procedure is intended to provide for the disposition of such claims as this, among others.
It may be that the union’s argument based on the letter of July 27, 1951, cannot succeed, the letter not being a part of the collective agreement. Where the subject-matter of a grievance is arbitrable, however, it does not lose that character simply because the arguments in support of it may not succeed, it may be that the status or binding affect of the latter of July 27, 1951 is itself an issue to be determined. For these reasons, it is my conclusion that this matter is arbitrable, and I will proceed to deal with it on the merits.
The grievor’s claim relates to work on an assignment bulletined on October 10, 1968, as "through freight service between Melville-Yarbo-Cutarm-Melville to perform switching at Yarbo-Cutarm and intermediate points" Payment for work on such an assignment would, one would expect, be at through freight rates, but it would be open to an employee to show that in fact the assignment was falsely described ; for example, that it was actually way freight service and in such a case way freight rates would no doubt be payable.
In certain cases employees in through freight service are entitled to be paid at way freight rates. Thus, article 7.25 provides as follow:
7.25 when way freight rate applies:
Way freight rates will be paid to fireman/helper engaged in snow plow and way freight services.
Fireman/helpers on through freight or mixed trains required to load or unload Company’s material, way freight or switch enroute will be paid way freight rates for time so occupied, but not in excess of way freight rate for the full trip, such time to be deducted when computing overtime.
A switch:
This term covers movements necessary in order to place a car or group of cars ahead of or around another car or group of cars. Picking up a car or cars standing first out in siding and/or setting out a car or cars that are together in train does not constitute a switch. The setting out of a bad order car or cars shall not be considered in applying this rule.
The Melville-Yarbo-Cutarm-Melville assignment was, for some years prior to February 23, 1968, bulletined as "switcher service". This description no doubt was intended to fit the work involved. In 1967, however, the nature of the work changed to some extent, as the amount of switching required at the Yarbo and Cutarm potash plants was greatly reduced. It is no longer considered by the company to be switcher service.
By its letter of July 27, 1951, the company expressed its decision to pay way freight rates to crews in assigned switcher service. This letter, which was in the form of advice to managerial officials, and was not an undertaking given to the union, may be described as a statement of the company’s policy as to the rates it would pay in certain cases. That policy, of course, was simply the company’s position, and would be subject to change as well as to challenge. In any event while the run in question was described as switcher service, it seems the crew on it were paid way freight rates. More recently, however, the run has been described as through freight service. There is come switching involved, and for that employees would be entitled to way freight rates for the time so occupied. The issues which arise are whether, at the material times, the run was properly described as through freight service, and whether the grievor was properly paid therefor.
"Through freight" is not defined in the collective agreement. Without attempting any final determination of the meaning of the phrase, I am unable to accept that a definition suggested by the union, namely "travelling to the destination without stops" can apply here, since article 7.25 itself contemplates that persons on through freight service may perform switching or other service enroute.
In my view, it has not been established that the assignment in question was either way freight service (indeed, that was not suggested) or switcher service. It appears that the company had good reason to change the characterization of the assignment, and did so. Under the conditions previously existing the company had a applied the policy set out in its letter of July 27, 1951. Whatever may be said as to that policy, it had no application in the changed circumstances. On the material before me, it appears that the grievor was properly paid for the work in question.
For the foregoing reasons, the grievance must be dismissed.
DATED AT TORONTO, this 27th day of April, 1970.
(signed) J. F. W. Weatherill