AH615

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(The Company)

and

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

(The Union)

RE APPENDIX S

SOLE ARBITRATOR:          Michel G. Picher

There appeared on behalf of the Company:

Caroline Gilbert                              – Manager, Labour Relations, Montreal

Sylvie Grou                                    – Sr. Manager, Labour Relations, Montreal

Susan Blackmore                          – Manager, Labour Relations, Edmonton

John Greene                                  – Manager, S&C, Montreal

Timothy Orr                                    – Sr. Manager, S&C, Toronto

Gilbert Liset                                    – S&C Supervisor, Toronto

And on behalf of the Union:

Ken Stuebing                                  – Counsel, Toronto

Luc Couture                                   – International Representative, St. Leonard

Ron Hewson                                  – General Chairman

A hearing in this matter was held in Montreal, on Tuesday, May 1, 2012.

AWARD OF THE ARBITRATOR

            The grievors, S&C Technicians C. Dallaire and V. Bernier, filed three hour claims for calls which they made on each other’s adjacent territories when one or other of them was on vacation. The Company disallowed the claims, which prompted the instant grievance.

            The nature of the conflict is reflected in the Dispute and the Union’s Ex Parte Statement of Issue filed before the Arbitrator, which reads as follows:

DISPUTE:

Appeal of the Company’s failure to pay S&C Technicians C. Dallaire and V. Bernier’s claim for payment in violation of article 18.18, article 4.5 and Appendix S of Agreement 11.1.

UNION’S EX PARTE STATEMENT OF ISSUE:

From 2008 to date, S&C Technicians C. Dallaire and V. Bernier have been required to protect calls on adjacent territories during their annual vacation. These employees have submitted claims as per article 18.18, article 4.5 and Appendix S of Agreement 11.1 for compensation for protect calls on adjacent territories during their annual vacation. The Company has failed to honour any of the employees’ claims to date.

The Union contends that the Company’s refusal to pay these claims constitutes a breach of Agreement 11.1. It is the Union’s contention that the Company’s new practice is contrary to article 18.18, article 4.5 and Appendix S as negotitated by the parties.

The Union seeks a declaration that the Company’s ongoing refusal to pay these claims violates agreement 11.1 and seeks an order that the Company honour these employees’ claims in the circumstacnes.

The Company denies the Union’s contentions and declines the Union’s request.

            The Union relies on the following provisions of the collective agreement:

18.18   The officer in charge and the recognized representative of the employees will, as far as practicable, make mutual arrangements to carry on the work while members of the staff are on vacation, but if this is not practicable, employees engaged temporarily, or employees temporarily promoted from one position to another, to provide vacation relief, will if definitely assigned to fulfill the duties and responsibilities of a higher-rated position, be paid the schedule rate applicable to such position.

4.5       On call days and outside of regular hours, employees will protect calls on their own territory. They will be available for calls unless they make suitable arrangements with the S&C Supervisor for the protection of their territory without involving additional expense to the Company and so advise the proper authority. It is the responsibility of the S&C Supervisor to advise the employee, in writing, as to who the “Proper authority” is at any given time.

NOTE:    Notwithstanding the provisions of this Article 4.5, in recognizing that the requirements of the service must be met under circumstances caused by the temporary absence of regular employees, the Company may require employees to protect calls on adjacent territories.

Additionally, the Union places before the Arbitrator Appendix S to the collective agreement, which is in the form of a letter dated May 28, 1992 which provides as follows:

This has reference to discussions during the current contract negotiations with respect to the Note to Article 4.5 of the Agreement and the Brotherhood’s request to have the application of this provision clarified.

The Note to Article 4.5 allows the Company to require employees on standby to protect calls on adjacent territories in instances of temporary absence of regular employees. The mechanism provided under the Note to Article 4.5 is not intended to have employees on standby protect calls on adjacent territories in instances of extended temporary absences, subcontracting the Company from its obligation to fill temporary vacancies in accordance with article 9 of this agreement.

For purposes of clarification, it is understood that the temporary absences contemplated by this provision are, in the normal course, of relatively short duration, ranging from a few days to a few weeks and addressed instances where the regular employee cannot protect his or her assignment on account of bereavement leave, sickness, training, etc.

            It is common ground that Mr. Dallaire and Mr. Bernier work on adjacent territories. In accordance with what appears to be long-standing practice, when one of them is away on regular vacation, the other covers his territory, being available for calls to perform work on the adjacent territory, if necessary. S&C Technicians Dallaire and Bernier have each made wage claims in respect of penalty payments which they maintains they are entitled to for being available on call to cover each other’s respective territories when the other was on vacation. Based on their claim of three hours per day for such coverage Mr. Dallaire has claimed twelve hours for October 14, December 8 and 9, 2008 and January 19, 2009. Mr. Bernier has claimed a penalty payment of forty-five hours in respect of October 3, 20 and 31, November 3 and 17, December 1, 2, 12, 15, 16, 17, 29, 30 and 31, 2008 and January 26, 2009.

            Article 4.7 of the collective agreement reads as follows:

4.7       On territories where conditions warrant, other mutually satisfactory arrangements may be agreed upon in writing between the S&C Supervisor and the accredited representative of the employee for protection of the employee’s territory.

            Counsel for the Union submits that pursuant to article 4.7, some time ago the parties worked out a local arrangement whereby employees who are on call to cover an adjacent territory by reason that the regular S&C Technician on that territory being on vacation were paid three hour claims for each such day, on a weekday basis. It appears agreed that weekend on call payments are separately dealt with and are not part of this grievance.

            Upon a review of the material before me, I am compelled to allow the grievance claims of Mr. Dallaire and Mr. Bernier. As noted by counsel for the Union, article 4.7 of the collective agreement contemplates the making of “mutually satisfactory arrangements between an S&C Supervisor and the accredited representative of the employees “for protection of the employee’s territory”. The representation of the Union is that an arrangement was worked out in the territories covered by Mr. Dallaire and Mr. Bernier, whereby they would be entitled to a three hour claim for weekdays when they are required to protect calls on each other’s adjacent territories by reason of vacation.

            The existence of that arrangement was not challenged at the hearing by the Company’s representatives. Moreover, it is repeatedly referred to in grievance correspondence to the Company from the Union’s local representative, Mr. Steven Hethrington. In fact, among the documents filed by the Union are a series of emails which confirm the application of the three hour rule as far back as 2001. The preponderance of the evidence before me would suggest that in principle, and in practice, the rule respecting penalty payments of three hours which is advanced in this case by the Union, was honoured by the Company through both agreements and practice. For the purposes of clarity, it would appear that it is entirely open to either side to end those arrangements by proper notice, absent any contrary limitation within their agreement. However, while it may be open to the Company to consider terminating the agreement which I find operated in favour of the grievors in the instant case, I am satisfied that that arrangement was in place and that the grievors and their Union had a proper expectation that it would be respected insofar as the claims before me are concerned.

            The foregoing conclusion does not, in my view, devoid article 4.5 and Appendix S of the agreement of any meaning. But I would be inclined to agree with counsel for the Union that while Appendix S appears to allow the Company to require employees to protect calls on adjacent territories in situations of brief coverage of the kinds listed in the third paragraph, there is no reference in that  paragraph to mutual coverage in respect of annual vacations. As indicated above, those situations seem to have been addressed in accordance with local understanding that the three hour claim would be paid. In effect, the record would indicate that the assertion of Mr. John M. Greene, Director for S&C Champlain, made in a letter dated June 8, 2009, that no agreement was established between the Company and the employees or the Union, is in fact without foundation. While I am satisfied that the Company may well be entitled to bring any past or existing arrangements to an end by a form of proper notice, it clearly did not do so at any time prior to the claims made by the grievors.

            In the result, the grievance claims are allowed. The Arbitrator directs that the claims made by Mr. Dallaire and Bernier be paid in full. I further retains jurisdiction in the
event of any dispute between the parties concerning the interpretation or implementation of this award.

Signed at Montreal, this 18th day of May 2012

                                                                                  __________________________________

                                                                                                      MICHEL G. PICHER

                                                                                                           ARBITRATOR