AH – 66

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

AND

UNITED TRANSPORTATION UNION

(the “Union”)

IN THE MATTER OF A GRIEVANCE OF FIREMAN/HELPER A.E. BLUMER

SOLE ARBITRATOR:                       R. Barakett

There appeared on behalf of the Company:

not listed

And on behalf of the Union:

not listed

A hearing in this matter was held … not listed.

AWARD

This matter concerns a claim for 800 miles in favour of Fireman/Helper A.E. Blumer for the period October 19 to 26, 1969 due to alleged improper engineer’s board adjustment on the checking date of October 17, 1969, at Biggar, Saskatchewan. The grievor is covered by the collective agreement with the Union on the Prairie and Mountain Regions of the Company.

The parties are in agreement on the facts which are as follows:

JOINT STATEMENT OF FACT:

Locomotive pool engineer R. Bentham at Biggar took his annual vacation from October 5 to October 25, 1969. Following a long standing practice, as agreed to between the Company and the Brotherhood of Locomotive Engineers, Mr. Bentham’s turn on the pool board was removed on October 10 and the next senior man was assigned to the pool board. This action had the effect of promoting a fireman/helper to the rank of locomotive engineer and in turn resulted in the upward adjustment of junior firemen/helpers.

The normal checking day is Friday, except twice a year it is moved to Sunday to correspond with change of timetable. This meant the checking date of Friday, October 24 was changed to Sunday October 26, 1969. The engineer’s vacation expired on Saturday, October 25. On Friday, October 17, according to the long standing practice, Mr. Bentham’s turn was returned to the west pool board. The return of Mr. Bentham’s turn had the result that one engineer was demoted and this in turn caused the downward adjustment of firemen/helpers. As a result Fireman/Helper A.E. Blumer was laid off the firemen/helpers working list. He made his last trip at Biggar on Saturday, October 18, 1969.

Subsequent to Friday, October 17, Engineer Bentham advised the local supervisor that he would require an additional 5 days of annual vacation from October 26 to October 30.

On October 26, 1969 Fireman/Helper Blumer submitted a claim for 100 miles for each day between October 19 and October 26, 1969, for a total of 800 miles, claiming violation of General Bulletin 2, Clause 12.

The grievance was progressed through all steps of the grievance procedure, was examined in joint conference with the General Chairman and declined by the Assistant Vice-President – Labour Relations by letter dated November 6, 1970.

The Union contends that while Engineer Bentham was on vacation he could not be considered available for service. The first sentence of clause 12 of general bulletin no. 12 is as follows:

12           When adjusting working boards it is not permissible to assign an engineer or fireman to a regular job or pool turn unless he is available and ready for service; neither is it permissible to assign an engineer or fireman to the spare board or retain him on the spare board a the checking date, unless he is available and ready for service, except when off for miles, sick, or on leave and it is known that he will be available within four days.

According to the Union the provisions of General Bulletin No. 2, clause 12, prohibited the assignment of Bentham to a pool turn on October 17. He was unavailable by reason of his being on vacation and he continued on vacation until October 25, some eight days later.

Thus the displacement of Fireman/Helper Blumer should not have occurred until the expiration of Bentham’s vacation at midnight, October 25.

The Company admits that Engineer Bentham’s “entitlement” to return to the board was restored on October 17, even though he was at that time still on vacation and obviously not available for duty. But, this restoration of his turn was made in accordance with long standing practice.

The Union admits the existence of the “long standing practice” but it contends that such practice is not in accordance with General Bulletin No. 2, clause 12.

The Company’s contention is twofold:

If (a) there was no such “board adjustment” within the normal schedule interpretation and application of these two words, or,

(b) there was on October 17, 1969 a “board adjustment” as contemplated within the schedule references as a result whereby an engineer’s turn was removed from the board on that date resulting in the lay-off of the grievor, but such “board adjustment” was not improper, then in either case the claim must fail.

First, I wish to deal with the question raised by the existence of a long standing practice concerning the adjustment of the board. The Company admits that engineer Bentham was returned to the pool board before he was available for service and therefore the provisions of clause 12, General Bulletin No. 2, were not followed. However, it justifies this change in the board on the basis of long standing practice.

I do not see how a long standing practice, not in accordance with the express terms of the collective agreement, in which either or both parties from time to time acquiesce can have the effect of changing the terms of the collective agreement or amendments thereto. The acquiescence of the Union to such practice would bar it from any claims during the period in which the acquiescence existed but would not prevent it from contesting such practice in the future if such practice was not in agreement with the express terms of the contract.

I therefore do not agree with the Company’s claims that the grievance should be denied on the basis on long standing practice.

Nor do I agree with the Company’s contention that no adjustment of the board took place within the meaning of the General Bulletin No. 2, clause 12. If no adjustment had been made after October 10, date of the removal of Bentham from the board and the assignment of another engineer to the pool board resulting in the promotion of Fireman/Helper Blumer to engineer, then it is hard to see how any dispute could have arisen. The adjustment of the board took place to allow the assignment of Bentham to a pool turn and this caused Blumer to be removed from the board and laid off.

However, this was done before Bentham was available for service and consequently the Company did not follow the terms of clause 12 of General Bulletin No. 2.

On the other hand, I agree with the Company’s contention that the Union must produce the applicable collective agreement provision which would require the payment of the claim of 800 miles submitted by Fireman/Helper Blumer if the grievance is to be maintained. This has not been done and no such provision in the collective agreement has been brought to my attention.

The Company states that if there is no basis for the penalty payment as claimed, then the only claim that can be made is for loss of earnings.

Therefore, for the reasons above given, I consider that the grievance should be maintained but only for loss of earnings.

DATED AT MONTREAL, this 17th day of August 1971.

(signed) R. BARAKETT

ARBITRATOR