Heard at Montreal, Monday, April 18th, 1966

Concerning

and

Claim of Engineers J.W. Bidnall and L.G. Snowden, Kamloops, B C. for being run-around October 19th and November 14th, 1965, respectively.

The Engineers' spareboard at Kamloops consists of two men. On October 19th both spare men were working and a vacancy existed in the Engineers' pool immediately ahead of Engineer Bidnall. The same situation developed on November 14th involving Engineer Snowden. On both occasions although pool engineers were available to fill these pool vacancies, firemen were used for this purpose.

Engineers Bidnall and Snowden submitted run-around claims under article 29(f) of the Brotherhood of Locomotive Engineers collective agreement governing engineers. Run-around claims have been declined by the Company.

There appeared on behalf of the Company:

J. G. Benedetti – Supervisor, Labour Relations, Vancouver

C. F. Parkinson – Labour Relations Assistant, Montreal

H. G. McGinn – Assistant to Manager Labour Relations, Montreal

And on behalf of the Brotherhood:

H. L. May – General Chairman, Winnipeg

E. C. Machin – General Chairman, Montreal

This problem has overtones of a jurisdictional dispute between two Brotherhoods. It was stated that in 1962, as result of a suggestion made in Case No. 671 before the Canadian Railway Board of Adjustment, an amendment was made to the agreement between the Company and the Brotherhood of Locomotive Firemen and Enginemen's agreement. This was captioned article 26(k) 1, 2, 3, 4.

The suggestion made by the Board of Adjustment read:

As indicated in the Joint Statement of Issue, the engineers' spareboard at Kamloops consists of two men. There was a vacancy ahead of Engineer Bidnall on that date in the engineers' pool. The same situation existed on November 14th with relation to Engineer Snowden.

Mr. May contended that article 26(c) and article 29(f) should govern in these circumstances: Article 26(c) reads:

Article 29(f) reads:

It is to be noted article 29(f) makes no mention of the spare board.

For the Company Mr. Benedetti claimed that the amendment to this agreement with the Brotherhood of Locomotive Firemen and Enginemen was concurred in by representatives of the Brotherhood of Locomotive Engineers. Because of this, it was contended, the wording of this new provision should prevail. Different to the term "pool vacancies" contained in article 29(f) of the Engineers' agreement, article 26(k)(1), headed "Filling Engineers' Vacancies" reads:

Reliance for the action taken in refusing these claims is based solely upon the fact that the names of Messrs. Bidnall and Snowden did not appear on the "spare board".

No evidence was offered by the Company as to the formality of the concurrence of representatives of the Brotherhood of Locomotive Engineers. The statement was made they had participated and concurred in the finalized provision.

For the claimants, Mr. May produced copies of correspondence between officials of the Company and the General Chairmen of the Brotherhood of Locomotive Engineers. One of these, dated July 31, 1962, addressed to the Assistant Manager, Labour Relations, Canadian Pacific Railway, over the signature of Mr. J. F. Walter, General Chairman on the Atlantic and Eastern Regions, gave this qualified, and, in my opinion, important concurrence —

Having in mind the provisions of article 29(f) of the agreement with the Brotherhood of Locomotive Engineers, there would appear to me to be an obligation upon the Company to vitiate its clear implication that all those in pool service were to be in a superior position in filling vacancies to that of firemen, by language other than contained in article 26(k)(1) of the agreement with the Brotherhood of Locomotive Firemen and Enginemen.

No one can question the primary right of engineers to drive locomotives. The agreement the Company has with them still contains article 29(f). It was not deleted when article 26(k) came into effect. In my opinion it has not been amended by reference to the "spareboard" rather than "pool vacancies". Of controlling value, too, are the words in the latter provision "... and it is necessary to use a demoted engineer or qualified helper to protect an engineer's vacancy."

To have that provision apply in the circumstances being considered there would have to be established a necessity. Giving that term undefined in the agreement, a dictionary meaning as something unavoidable, it cannot reasonably be said that the two claimants should have been replaced by other than engineers because it was unavoidable They were available; they are the employees with basic rights to drive locomotives, except when those rights are modified by mutual agreement in a manner leaving no doubt that they are content to give to those whose rights appear in another agreement what is primarily theirs. In my opinion, in the circumstances described, this would have required an amendment to article 29(f) of the Engineers' Agreement. This not having occurred and there being "pool engineers" available on these occasions there was "no necessity" to use others.

For these reasons these claims are allowed.