Heard at Montreal, Tuesday, May 11th, 1971

Concerning

and

Claim of Motorman F. Stillman, Halifax, N.S. that the Company violated Article 5.1 of Agreement 5.1 when a junior employee was used to man an extra highway trip in Express service.

On September 2, 1970 because of a large volume of traffic at Halifax, it was decided to operate an extra highway trip from Halifax, N.S. to Port Hawkesbury, N.S. Motorman G. W. Mitchell, who was on duty at Halifax at the time, was used to perform this service. The Brotherhood contends that Motorman Stillman, who was the senior man on an overtime list, should have been called for this service and is therefore entitled to nine hours’ pay at punitive rates. The Company denied the claim.

There appeared on behalf of the Company:

D. O. McGrath – System Labour Relations Officer, Montreal

R. R. Goodwin – Terminal Traffic Manager, Halifax

And on behalf of the Brotherhood:

L. K. Abbott – Regional Vice President, Moncton

Article 5.1 of the collective agreement is as follows:

There exists a local arrangement at Halifax made pursuant to Article 5.1. The arrangement is as follows:

The reference to the "CNTL Fleet" is a reference to highway service. Motorman Stillman, the grievor, was on the list to be called for overtime for such work. Motorman Mitchell, who did the work, was regularly assigned to pick-up and delivery, and was not on the list of those to be called for highway overtime.

It is clear that the "Halifax Fleet" is divided into certain operational segments. Mr. Mitchell, a pick-up and delivery driver, would not, it seems, normally be assigned to highway work. It appears, however, that he did have the necessary qualifications, and apart from the rights of other employees to be assigned to such work, his assignment to it would not seem to be improper. On the day in question he worked in the Halifax terminal on his regular work from 1600 hours until approximately 2200 hours, when he was instructed to drive the extra tractor trailer unit to Port Hawkesbury. He left Halifax at 2230 hours, one and one-half hours prior to completion of his regular shift. He arrived back at Halifax at 0830 hours the following morning.

It was the company’s submission that in assigning overtime work reference would be made to the lists established pursuant to the local agreement where it was necessary to call someone in for overtime work. Someone simply continuing on with his regular assignment would not be displaced, but would continue to perform it on an overtime basis where necessary. This may well be correct, and it may be noted that the procedure set out in the local arrangement is one in respect of "overtime calls". In the instant case, however, an employee was transferred from his regular assignment in one segment of the Halifax Fleet to perform work coming within the scope of a regular bulletined job in another segment of the fleet. The first hour and one-half of this latter work was within his regular time, but the bulk of this "temporary assignment" was on overtime, and would have constituted a day’s work for an employee entitled to be called.

Certainly the Company could not have called in Mr. Mitchell to perform this work, for that would have been contrary to the local agreement. In fact, however, it is my view that the transferring over of an employee who happened to be on the premises was, relative to the work to be done, virtually equivalent to calling him in, although its effect would be to evade the necessity of complying with the local arrangement. In my view, the extra trip to Hawkesbury required that someone be called in to perform the work, and the local arrangement sets out the procedure to be followed. That procedure was not followed, and the company was in violation of the arrangement and correspondingly of the collective agreement.

Accordingly, the grievance is allowed. It is my award that the grievor be paid the amount claimed.