AD HOC – 70
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
UNITED TRANSPORTATION UNION (E)
IN THE MATTER OF THE GRIEVANCE OF FIREMAN/HELPER R. H. SELMAN
SOLE ARBITRATOR: Raymond Barakett
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held in August 1971.
This matter concerns a claim for 194 additional miles in favour of Fireman/Helper R.H. Selman for trips on December 29 and 30, 1968, from Rainy River to Atikokan and return to Rainy River. 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:
On December 29, 1968 Locomotive Engineer G. Murray and Fireman/Helper R.H. Selman were ordered at Rainy River, Ontario for train No. 408 (freight) for 0040 hours. Fireman/Helper Selman was on duty at 0025 hours. Train no. 408 normally operates Rainy River to Atikokan.
Train no. 408 departed Rainy River at 0150 hours and arrived at Fort Frances at 0305 hours. Cars were set out and picked up at Fort Frances, and after the train was recoupled it was unable to proceed on account of excessive air leakage from the brake system due to the extremely cold weather.
Following repeated unsuccessful attempts to recover the air, Engineer Murrary and Fireman/Helper Selman requested five hours’ rest in accordance with their respective collective agreements. They were permitted to take rest at 1130 hours in the bunkhouse at Fort Frances.
In order to avoid further delay to train no. 408 another engine crew was ordered at Rainy River for 1115 hours to deadhead to Fort Frances to operate train no. 408 on to Atikokan. The relief crew, after some delay, arrived at Fort Frances at 1445 hours; departed from Fort Frances on train no. 408 at 1645 hours, and arrived at Atikokan at 1925 hours.
On completion of their rest period at 1630 hours Engineer Murray and Fireman/Helper Selman were called to deadhead from Fort Frances to Rainy River. Engineer Murray and Fireman/Helper Selman departed Fort Frances at 1900 hours and arrived at Rainy River at 2005 hours.
Engineer Murray submitted a time claim in favour of Fireman/Helper Selman for 307 miles for the combined service and deadheading trip.
On January 3, 1969 the Area Comptroller advised Fireman/Helper Selman that his claim was reduced from 307 miles to 223 miles.
On January 21, 1969 Fireman/Helper Selman submitted a claim at Step 1 of the grievance procedure for 310 additional miles, over and above the 223 miles already paid – a total of 533 miles or over 5 basic days’ pay. The claim was made under the second paragraph of article 7.23. The claim was progressed to Step 2 of the grievance procedure on the same basis by the Local Chairman.
At Step 3 of the grievance procedure the General Chairman made reference to paragraph (2), article 7.16, rule B and the second paragraph of article 7.23 in support of the Union’s contention. In addition the General Chairman altered the claim submitted by Fireman/Helper Selman from 310 miles to 194 miles, reducing the total mileage claimed to 417 miles.
The grievance was examined in joint conference with the General Chairman and was declined, as presented, by the Assistant Vice-President – Labour Relations by letter dated April 8, 1970.
The Union’s contention is that in accordance with article 7.16B(2), Selman should “have been deadheaded from Fort Frances to Atikokan on the same train that he worked on from Fort Frances. In that case he would have been entitled to payment in accordance with article 7.16 B(3) and 7.4(3). As Selman began his tour of duty at Rainy River at 0025 hours and would have continued to be compensated until arrival at Atikokan at 1945 hours, payment for the tour of duty would have amounted to 1900 hours or 241 miles. He would also have been entitled to man the return portion of his assignment from Atikokan to Rainy River. The miles made by Fireman/Helper T. Kuchma for the return part of the trip ere 176 miles. The miles that Selman was entitled to for the round trip were 417. He was paid 223 miles. The difference was 194 miles.”
The Company admits that it did not comply with the provisions of article 7.16B(2), but contends that it “should have either permitted Fireman/Helper Selman to take requested rest at Fort Frances and delay train no. 408 by not replacing him or replace him and instruct him to deadhead, upon being replaced, to either Atikokan, “… to point to which ordered …”, or to Rainy River, “… to home terminal …” as provided in paragraph (2).”
Both parties agree that there was a breach of article 7.16B(2) and that the grievor should be compensated in accordance with article 7.4, paragraph (3). These articles read as follows:
7.16 B(2) 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 will 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.
7.4 (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 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 a pro rata rates and will be deducted when computing overtime.
On the other hand, the parties disagree on whether or not there was a breach of the second paragraph of article 7.23 which reads:
7.23 Locomotives will not be taken away from firemen/helpers booking rest between terminals unless deadheaded to terminals before having the required rest, when they will be paid the same as if they had not been tied up.
However, the Union declares that it is pressing the claim for 194 miles “because the Company could have properly utilized the provisions of article 7.16B(2) and instructed Selman to deadhead”. Thus, I do not consider it necessary to decide on whether or not there was a breach of the second paragraph of article 7.23.
Article 7.16B(2) allows the Company the option of ordering the fireman/helper to deadhead either to Atikokan or Rainy River. Since the option is left with the Company and the Company has opted for deadheading to Rainy River, then I cannot agree with the Union’s contention that the claim should be calculated on the basis of deadheading to Atikokan.
For these reasons, I consider that the claim should be paid as follows:
Time at Rainy River – 0025 hours to 0150 hours – 1’25”.............
Time Rainy River to Rainy River via Fort Frances including the time at Fort Frances and the dead time at Fort Frances – 0150 hours to 1900 hours – 17’10”...........................................................
Deadhead Fort Frances to Rainy River on basis of hours – 1900 hours to 2005 hours – 1’05”....................................................
The Union argues that Selman should have been ordered to deadhead immediately the decision had been taken to replace him. However, article 7.16B(2) does not read “Firemen/helpers who are going to be replaced …”. It reads “Firemen/helpers who are replaced …”. Thus instructions to deadhead need only be given once replacement has taken place.
The grievance is therefore denied for the claim of 194 miles and allowed for a sum of 22.5 miles.
DATED AT MONTREAL, this 20th day of August 1971.
(signed) R. BARAKETT