Heard at Montreal, Tuesday, March 14th, 1967

Concerning

and

Claim of Conductor W.E. Bufton and crew, Sutherland, Saskatchewan, for 11 miles run from Viscount back to Noranda Mine Spur and return to Viscount, also 35 minutes claimed at Viscount the turnaround point before returning to Noranda Mine Spur, December 13th, 1965.

The employees contend that payment for time only on the spur is not a correct interpretation of article 13 and that claim was properly under article 23, clause (a) (2). They also contend that the Company in declining this claim under article 23, clause (a) (2) and allowing an improper payment under article 13, has violated both rules.

There appeared on behalf of the Company:

C. F. Parkinson – Labour Relations Assistant, Montreal

P. A. Maltby – Supervisor Personnel & Labour Relations, Winnipeg

And on behalf of the Brotherhood:

S. McDonald – General Chairman, Calgary

As indicated, this was not a Joint Statement of Issue, the Company having maintained that because of untimeliness this matter was not arbitrable.

At the opening of the hearing the representative for the Company made a preliminary objection to the jurisdiction of the Arbitrator to consider the merits because of the failure of the claimant to bring himself within the clear requirements of article 39, clause (e) of the collective agreement.

It reads:

There was no dispute that under date of April 20, 1966, the General Chairman of the Trainmen wrote to the General Manager, Prairie Region, appealing the claim of Conductor W.E. Bufton and crew, Saskatoon Division for payment under the provisions of article 23(a)(2), of the actual main track miles run and time at the turnaround point when the crew was required to perform switching service on an industrial spur on December 13, 1965.

Further, that under date of May 24th, 1966, the General Manager, the highest officer designated by the Railway to handle claims, replied to the General Chairman's appeal in writing of April 20, 1966, declining the claim of Conductor Bufton and crew.

There was no question that subsequent to the General Manager's decision, contained in his letter of May 24, 1966, an exchange of correspondence instituted by the Trainmen, took place in respect of this claim and the matter was discussed at a meeting of the parties. There was, however, no mutual agreement to extend the time limits specified in clause (e) of article 39.

It was the position of the Company that the General Manager's letter of May 24, 1966, clearly specified that this claim had been disallowed and such decision set in operation the 60 day period provided in clause (e) of article 39. It was not until October 17, 1966, 86 days beyond the limit, that the agreement provides, that the Trainmen requested that this claim be progressed to the Canadian Railway Office of Arbitration.

The representative for the Brotherhood maintained that throughout his long experience in dealing with such claims this was the first time, to his knowledge, that clause (e) had been invoked by the Company.

Section (d) of article 39 was relied upon to support the reasoning that each letter from the Company after the date of May 24, 1966, should be construed as a declination as outlined therein, with the result that the 60 day period became operative from the date of each such letter. This provision reads:

It was established the upward course of a grievance progresses from what was described as the "ground level", to the assistant superintendent, then to the superintendent and then to the "highest officer designated", namely the General Manager.

Manifestly clause (d) relates to that negotiated pattern and is quite separate and apart from the clear provision in clause (e).

It need not be stressed that past practice cannot be considered unless the provision under consideration contains some ambiguity clouding the actual intent of the parties. In my opinion this does not exist in clause (e). The language is straight forward and permits of no doubt as to its meaning. Only a mutual agreement, which did not exist in this matter, can lengthen the 60 days period from the time the decision of the highest officer designated by the Railway, in this case the General Manager, has been given.

Canadian Railway Office of Arbitration Case No. 36 was referred to by the Company representative. It is perhaps useful to repeat this portion of that Award:

For these reasons I hold I have no jurisdiction to deal with this claim on the merits.