AH – 69
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 G. MCDONALD
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 81 miles which is the difference between a short run under 7.19A and a short run under article 7.19C for a second short run, in favour of Fireman/Helper G. McDonald when ordered for his assignment Somerset to Belmont and return, and operated on another short run Somerset to Notre Dame and return, November 13, 1969. The grievor is covered by 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:
Fireman/Helper G. McDonald was assigned to a regular wayfreight assignment bulletined to work from Somerset to Belmont and return to Somerset each Thursday. The road mileage on these trips is 79.8 miles.
On Thursday, November 13, 1969 Fireman/Helper McDonald was ordered at Somerset at 0700 hours, arrived Belmont at 0910 hours, departed 1050 hours; arrived Somerset 1225 hours. Upon arrival at Somerset the crew were advised they would be required to operate 22 miles to Notre Dame and return to Somerset. The crew departed Somerset at 1415 hours; arrived Notre Dame 1440 hours and returned to Somerset at 1525 hours.
Time claim for the second short run, Somerset to Somerset via Notre Dame, was submitted on the basis of article 7.19, Rule A, 100 road miles plus initial, final and turnaround time for a total of 116 miles.
On November 18, 1969 the Area Comptroller advised Fireman/Helper McDonald that his time claim had been reduced from 116 miles to 35 miles, payment being made on the basis of article 7.19, Rule C.
Thus the Company compensated Mr. McDonald in accordance with article 7.19B for the first short run on the date in question, and in accordance with article 7.19C for the second short run.
A grievance was subsequently submitted for payment of the additional 81 miles, 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 a letter dated November 6, 1970.
Foreman/Helper McDonald was paid in accordance with article 7.19, Rule B for his trip from Somerset to Belmont and return and there is no dispute regarding this payment. The dispute before the Arbitrator is whether Fireman/Helper McDonald should be paid under Rules A or C of article 7.19 for the short run in the continuous service from Somerset to Notre Dame and return.
The pertinent portions of article 7.19 read as follows:
7.19 SHORT RUNS
A. On short runs where the mileage of round trips if fifty (50) miles or less, one hundred (100) miles and terminal switching will be paid, also overtime.
B. All other short runs will be paid on the basis of one hundred (100) miles one way and mileage and terminal switching the other way, except in cases where overtime is made in either way, when such overtime will be paid.
C. If a fireman/helper is ordered out on another short run, or runs, and such run, or runs, completed within twenty-four (24) hours from time he was first ordered for, he will be paid actual mileage and terminal switching, also overtime. This to apply to continuous service.
The Union contends that when McDonald arrived at Somerset, after making the trip to Belmont he had arrived at his final terminal and his tour of duty ended.
It is necessary to determine therefore, what constitutes a tour of duty insofar as the collective agreement is concerned.
In road service, according to the Union, a tour of duty starts when a fireman/helper goes on duty at the beginning of the trip. This takes place at the “initial terminal”. He continues on duty until he arrives at the end of the run where he goes off duty. This takes place at the “final terminal”. The service performed from the time of going on duty at the initial terminal until going off duty at the final terminal is referred to as a “tour of duty”.
Thus it is the Union’s contention that when McDonald arrived at Somerset at 1225 hours, he had arrived at his final terminal and his tour of duty properly ended there. Thus McDonald was not properly in continuous service. A new tour of duty commenced when he left Somerset the second time. So the trip less than 50 miles from Somerset to Notre Dame and return falls within the purview of article 7.19A.
On the other hand, the Company contends that the Union’s statement that McDonald went off duty at the conclusion of his initial trip is not supported by the facts. The Company argues that exhibit 1, a letter dated January 14, 1970, established that the crew was at no time instructed to book off duty at Somerset on return from Belmont. In addition, Company records indicate that the crew was on continuous pay while at Somerset prior to making the trip to Notre Dame and return. The collective agreement does not contain a so called “automatic release” provision. The crew, of which Fireman/Helper McDonald was a member, could not automatically take themselves off duty at Somerset when the Company required their services for another short run.
The fundamental question at issue appears to me to be whether a regular assignment constitutes a tour of duty which comes to an end once such assignment has been completed. That is to say, once the tour of duty is completed service has been completed a new order for a further run constitutes a separate and distinct service.
The evidence does not reveal that in fact McDonald went off duty upon completing his first run. On the contrary, the facts support the view that McDonald remained on duty after completing his first run and before beginning his second run.
If, therefore, the contention of the Union is to be maintained the collective agreement must contain some stipulation to the effect that when a fireman/helper has completed a regular assignment he is automatically off duty, with the result that if he is ordered on another run, his service can not be considered continuous.
Unfortunately for the Union’s case, however, the collective agreement does not contain any clause supporting this interpretation of the notion of service.
I therefore consider, for the reasons above given, that article 7.19C is the proper rule to apply to this claim and thus, the grievance is denied.
DATED AT MONTREAL, this 18th day of August 1971.
(signed) R. BARAKETT
ARBITRATOR