AH – 68
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
UNITED TRANSPORTATION UNION
IN THE MATTER OF A GRIEVANCE OF FIREMAN/HELPER F. WAGNER
SOLE ARBITRATOR: R. Barakett
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held … not listed.
This matter concerns a claim for 41 miles which is the difference between the miles claimed and the miles allowed Fireman/Helper F. Wagner for a trip from Atikokan to Rainy River on December 4, 1969. 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:
On December 4, 1969 Locomotive Engineer O.H. Nordin and Fireman/Helper F. Wagner were ordered for service Atikokan to Rainy River for 0530 hours. Fireman/Helper Wagner went on duty at 0510 hours and the train left Atikokan at 1050 hours.
The train on which Mr. Wagner was employed as fireman/helper arrived at Fort Frances at 1420 hours, performed 25 minutes junction switching and departed Fort Frances at 1620 hours.
Prior to leaving Fort Frances the engine crew advised the train dispatcher that due to long hours on duty they would require rest at the expiration of 12 hours from 0510 hours. This request was made as provided in the engineer’s and fireman/helper’s respective collective agreements.
The crew were then advised to place the train in the siding at Barwick, a distance of 116 miles from Atikokan, and that they would be deadheaded to Rainy River on the first westbound train. The train arrived at Barwick at 1705 hours.
The crew deadheaded from Barwick to Rainy River on train extra 4304 west, leaving Barwick at 2200 hours and arriving at Rainy River at 2250 hours at which time they went off duty.
Engineer Nordin, as is customary, submitted a time claim in favour of Fireman/Helper Wagner as follows:
On duty Atikokan 0510 hours
Passed designated yard switch 1050 hours
Arrive Barwick 1705 hours
Time off duty at Barwick 2200 hours
Total miles claimed 248 miles
In addition Engineer Nordin submitted an additional claim on behalf of Mr. Wagner for the deadheading portion, Barwick to Rainy River, as follows:
Leave Barwick 2200 hours
Time off duty at Rainy River 2250 hours
Total miles claimed 27 miles
On December 10, 1969 the Area Comptroller advised Fireman/Helper Wagner that the total miles claimed on his behalf, i.e. 275 miles, were reduced to 221 miles.
Fireman/Helper Wagner submitted a grievance claiming a further 41 miles as payment for the combined service and deadheading trip Atikokan to Rainy River under the provisions of paragraph 3 of article 7.4.
The grievance was progressed through all steps of the grievance procedure, was examined in joint conference with the General Chairman, and was declined by the Assistant Vice-President – Labour Relations in a letter dated November 8, 1970.
The Union’s contention is that in order to determine when deadhead time will commence it is necessary to examine the last sentence of article 7.4(2): “Time will be calculated from the time ordered for until arrival at objective point.” Fireman/Helper Wagner was within his rights to request rest after being on duty 12 hours. Authority for this is contained in article 7.16-B of the collective agreement. Since there were no sleeping facilities at Barwick which Mr. Wagner could use to have rest, the Company utilized paragraph (2) of article 7.16-B and provided relief for the fireman/helper. In applying this article they were required to observe that condition set out in the second sentence which is as follows:
2. … Firemen/helpers who are replaced will be instructed to deadhead to point to which ordered or to home terminal immediately.
The requirements of that rule are that when a decision is taken by the Company to replace a fireman/helper, he will be instructed to deadhead at that time and not some several hours later. Applying the principle set out in article 7.4(2) that deadhead time will be calculated from time ordered for until arrival at objective point, Wagner is entitled to payment for deadheading commencing from the time he was instructed to deadhead at 1705 hours until he arrived at Rainy River at 2250 hours.
Therefore, according to the Union, Wagner is entitled to payment for the trip from Atikokan to Rainy River as follows:
Terminal time at Atikokan from 0510 hrs to 1050 hrs 5 hrs 40 mins 70 miles
Road miles form Atikokan to Barwick 118 miles
Switching at Fort Frances 25 mins 5 miles
Deadhead time from 1705 hrs until 2250 hrs 5 hrs 45 mins 71 miles
Total Miles for Trip 264 miles
Miles Allowed 221 miles
Difference 43 miles
claimed is converted to miles by multiplying “time” x 12-1/2:
e.g. 8 hours x 12-1/2 = 100 miles
On the other hand, the Company contends that it is paragraph 3 of article 7.4 which applies:
3. Deadheading and road service may be combined and when so combined time deadheading will be paid on the basis of actual hours, and the service will be paid on the basis of actual miles or hours, on a continuous time basis with not less than a minimum day for the combined service and deadheading at the rate applicable to the service performed. Dead time will be taken into account when computing payment for service performed. The provisions of articles 2.5 and 3.5, Terminal Time and Delay, will apply when deadheading and service are combined. All deadheading time will be paid for at pro rata rates and will be deducted when computing overtime.
Thus, deadheading and road service may be combined. It was so combined in this case and there is no dispute on this point. When deadheading and service is combined, the deadheading portion of the trip will be paid on the basis of actual hours while the service portion of the trip will be paid on the basis of miles or hours. Dead time will be taken into account when computing payment for service performed.
According to the Company, dead time, as referred to in paragraph 3 of article 74, is the elapsed time between the completion of service and the commencement of deadheading, or vice versa.
According to the Union, dead time is the time between the end of service and the time instructed to deadhead. It is the Union’s contention that in the Wagner case, there was no dead time to be taken into account.
Whereas the Company maintains that dead time must be taken into account and calculates the Wagner claim as follows: The actual road miles operated between Atikokan and Barwick was 116 miles. Therefore, as the time involved running from Atikokan to Barwick, including the dead time at Barwick, when converted for pay purposes into miles on the basis of 12-1/2 miles per hour was greater than the miles run Atikokan to Barwick, namely 116 miles, Fireman/Helper Wagner was paid on the basis of hours for 11 hours and 10 minutes. This equals 139.5 miles. The Company contends that this is the payment to which Mr. Wagner is entitled under the provisions of paragraph 3 of article 7.4:
Time at Atikokan – 0510 hours to 1050 hours – 5’40” 71 miles
Atikokan to Barwick, including dead time at Barwick –
1050 hours to 2200 hours – 11’10” – (139 miles exceeded road miles
travelled Atikokan to Barwick by 23 miles) 139 miles
Deadhead Barwick to Rainy River on
the basis of hours –
2200 hours to 2250 hours – 50” 11 miles
Total Miles Allowed 221 miles
Thus the whole issue revolves about the question of whether or not, in accordance with the collective agreement, there was any dead time to be calculated in adjusting Wagner’s claim.
The Union claims that paragraph 2 of article 7.4 applies:
2. Deadheading paid for separately from service will be computed on the basis of actual hours at 12-1/2 miles per hour at the minimum diesel-electric through freight rate irrespective of the manner in which it is performed, with a minimum of eight hours, Overtime at 12-1/2 miles per hour at the minimum pro rate diesel-electric through freight rate will be allowed for deadheading time in excess of eight hours. Time will be calculated from the time ordered for until arrival at objective point. (emphasis added)
Thus, in its calculation, the Union is including the dead time at Barwick with the deadheading portion of the combined service and deadheading trip and not with the service portion of the trip. The Union’s argument is that, in accordance with paragraph (2) Rule B of article 7.16, when firemen/helpers are replaced they will be instructed to deadhead to the point to which ordered or to the home terminal immediately.
When an engineer and fireman/helper both book rest and relief is provided for the engineer who booked rest, a fireman/helper if available will also be called to provide relief for the fireman/helper booking rest. Firemen/helpers who are replaced with be instructed to deadhead to point to which ordered or to home terminal immediately. In the event firemen/helpers are not replaced and should the train proceed, firemen/helpers will be instructed to deadhead. (emphasis added)
The parties are in agreement that in this case, deadheading and road service are to be combined. Consequently, I consider that it is paragraph 3 of article 7.4 which applies and not paragraph 2. Paragraph 2 applies when deadheading is paid for “separately from service” and in that case “time will be calculated from the time ordered for …”.
It is paragraph 3 of article 7.4 which applies and this paragraph states that “dead time will be taken into account when computing payment for service performed” whereas deadheading is calculated on the basis “of actual hours”. This paragraph does not stipulate that “time will be calculated from time ordered for …” but rather on the basis of “actual hours” deadheading.
For these reasons, I consider that the claim should be adjusted in accordance wit the method adopted by the Company and therefore the grievance is denied.
DATED AT MONTREAL, this 18th day of August 1971.
(signed) R. BARAKETT