AH - 185

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the “Company”)

AND

THE BROTHERHOOD OF RAILROAD SIGNALMEN

(the “Union”)

IN THE MATTER OF THE GRIEVANCE OF J.L. HERRON

SOLE ARBITRATOR:                     J.F.W. Weatherill

There appeared on behalf of the Company:

                                L.A. Clark

                                R.A. Colquhoun

And on behalf of the Union:

                                J.E. Platt

A hearing in this matter was held at Montreal, Quebec, on September 17, 1982.

In this grievance, filed on April 8, 1981, the union, on behalf of the grievor, protests the declination of the grievor’s claim for overtime payment in respect of certain time worked on February 28.

                The Joint Statement of Fact and Issue is as follows:

Joint Statement of Fact

1.             Claim by the Union that Signal Maintainer J.L. Herron was entitled to 5 hours punitive overtime pay for performing planned work on February 28, 1981.

2.             Mr. Herron was required to transport the Signal Technician to the scanner location (mileage 52.40, Windsor Sd.) at approximately 10:30 a.m. on February 28, 1981.  The Signal Technician was called to assist Mr. Herron locate and repair a problem which developed in the hot box detector system on his assigned maintenance section.

Joint Statement of Issue

1.             The Union claims that as this was Mr. Herron’s call day and as this was not an emergency call but had been arranged ahead of time, Mr. Herron is entitled to 5 hours punitive overtime under Article 7.4A (I) of Agreement 25.

2.             The Company contends that the work performed by Mr. Herron on February 28 was a continuation of an emergency call received by him late on February 27, and not planned work.

3.             The Company denied the claim.

                At about 1400 hours on Friday, February 27, the grievor, a Signal Maintainer, was advised that a hot box detector or “scanner” located on his assigned territory was inoperative.  He want to the location, about ten miles from his headquarters at Chatham.  At about 1500, he called the Signal Maintainer to say that he was unable to determine the cause of the trouble.  The Supervisor asked for certain indications from the scanner chart, and when the grievor could not answer, he was instructed to return to the location and examine the chart again.  He did so, calling at about 1700 to advise that the chart looked normal.  The Supervisor then advised the grievor to return home, saying that he would make arrangements to have a Signal Technician assist him in locating the problem.

                On the evening of February 27, the Supervisor located the Signal Technician, and arrangements were made to have him visit the site at 1030 hours on Saturday, February 28.  The grievor and the Signal Technician went to the scanner at that time, and the problem was diagnosed and corrected.  It is said that it was a problem  which the grievor could have detected by a proper examination of the scanner chart, but there is no doubt that five hours were worked on the day in question.  The issue is as to the rate of pay therefore.

                The grievor is paid pursuant to article 7.1 of the collective agreement, which is as follows:

7.1 In view of the intermittent character of the work of the signal maintainer and his senior helper (except in positions where continuous shifts are worked and men are relieved two days in seven), except as otherwise provided herein, they shall be allowed 179.3 hours per four-week period.

The 179.3 hours per four-week period shall be comprised of 160 straight time hours and 19.3 hours at time and one-half at the rate to which they may be entitled under the provisions of Article 1.  In positions worked on a two-shaft basis, this clause shall apply only to signal maintainers and their senior helpers working the first shift who will be liable for additional service as required.

                In this case, the grievor’s claim is that the work performed on February 28 should not be considered as coming within the 179.3 hours in the four-week period, but comes within the exception provided for in article 7.4, which is as follows:

7.4  The following work shall not be considered as emergency work and will not be included in making up the 179.3 hours per four-week period:

(a)           Planned work

(i)            Work which is planned in advance requiring an employee to perform such work on a call day (the sixth day); or

(ii)           Work which is planned in advance requiring an employee to perform such work on a regular work day, outside of his regularly assigned hours.

                The work on February 28 was work on a call day, and the union’s argument is that it was “planned work” within the meaning of article 7.4 (a).  It was planned in advance, it is argued, when arrangements were made with the Signal Technician the night before.

                Of course virtually all work is “planned in advance”, in the facile sense that an intention is formed to do it, tools or supplies are picked up, and it is done.  That is not the sense in which that expression is used in article 7.4, where the parties distinguish “planned work” from the usual intermittent emergency or “trouble-shooting” type of work done by Signal Maintainers.  “Planned work”, bearing in mind this distinction, would include, perhaps, work under a program of preventive maintenance, new installations, or the like.

                Whether or not the examples given are appropriate, the work done on February 28 was in fact a continuation of, and of the same character as the work begun, but not concluding, the previous day.  Whether or not the grievor ought to have concluded it that day is not the question.  The question is as to the nature of the work.  That was to diagnose and correct the failure of a hot box detector to function.  Proper functioning of such equipment is important to the safe and efficient function of the railway.  In this case, until the scanner was repaired, a number of trains were required to halt for visual inspection, which would not have been necessary had the scanner been working.  To go and diagnose and repair such equipment is within the scope of the “emergency” work which Signal Maintainers regularly perform.

                It is to be remembered that there is no doubt that the work on February 27 was of this sort, and that the hours then spent would be counted as part of the 179.3 hours in the four-week period.  The time spent on February 28 was not of a different nature simply because the grievor required help which was not immediately available.  It had not become “planned work” within the meaning of article 7.4 simply on that account.

                For the foregoing reasons, it is my conclusion that article 7.4 does not apply.  The grievance is accordingly dismissed.

DATED AT TORONTO, this 24^th day of September, 1982.