CANADIAN RAILWAY OFFICE OF ARBITRATION

CASE NO. 509

Heard at Montreal, Tuesday, June l0th, 1975

Concerning

CANADIAN NATIONAL RAlLWAY COMPANY

and

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

DISPUTE

The Union claims the Company violated Rules 7.1 and 32.3 of Wage

Agreement No. 17 when Crossing Watchman I. Challice was not called

to work on an overtime basis on four rest days. August 17th, 18th,

24th and 25th, 1974. The claim is for 32 hours at the rate of time

and one-half.

JOlNT STATEMENT OF lSSUE..

The grievor's regular assigned position is Crossing Watchman, King

St., Peterborough, Ontario. His hours of work are 1030 hours to 1830

hours with Saturday and Sunday rest days. His duties consist of

manually operating the crossing protection to prevent excessive and

needless operation thereof when switching movements are being made or

when cars are standing with the track circuit, otherwise the

protection is operated automatically.

On August l7th, 18th, 24th and 25th, the girevor's rest days, certain

rails were removed from the tracks in connection with open-cut sewer

construction. Prior to and after completion of the construction work

the signals were de-activated and activated by a Signal Maintainer.

The Union alleges such work should have been performed by the

Crossing Watchman and claims 8 hours' pay at time and one-half for

each of the four days involved.

FOR THE EMPLOYEE: FOR THE COMPANY

(SGD.) P. A. LEGROS (SGD.) S. T. COOKE

GENERAL CHAIRMAN ASSlSTANT

VICE-PRESlDENT

LABOUR RELATIONS

There appeared on behalf of the Company..

W. H. Barton System Labour Relations Officer, C.N.R.,

Montreal

A. D. Andrew System Labour Relations Officer, C.N.R.,

Montreal

W. W. Wilson Labour Relations Assistant, C.N.R., Toronto

And on behalf of the Brotherhood..

P. A. Legros System Federation General Chairman, B.M.W.E.,

Ottawa

G. D. Robertson Vice President, B.M.W.E., Ottawa

W. Montgomery General Chairman, B.M.W.E., Belleville

AWARD OF THE ARBITRATOR

Rule 7.1 of the collective agreement is as follows..

"7.1 Where work is required by the railways to be performed on a

day which is not part of any assignment, it may be performed

by an available laid-off or unassigned employee who will

otherwise not have forty hours of work that week. ln all

other cases by the regular employee."

The only question which arises under this section, requiring

resolution in the instant case, is whether the grievor was "the

regular employee and thus entitled to be called for the work in

question. Article 32.3, also relied on by the Union, is as follows..

"32.3 Except in cases of emergency or temporary urgency, employees

outside of the maintenance of way service shall not be

assigned to do work which properly belongs to the

maintenance of way department, nor will maintenance of way

employees be required to do any Work except such as pertains

to his division or department of maintenance of way

service.''

Under this article, the question which arises with relation to this

case is whether the work in question properly belongs to the

maintenance of way department.

Now I have no doubt that the work of the Crossing Watchman, at the

location in question, is work properly belonging to the maintenance

oi way department, and that the grievor is "the regular employee" on

that Job. With respect to both the above articles, then, the

question to be determined in this case comes to this: did the

activation and de-activation of the signals on the days referred to

by a Signal Maintainer amount to the performance of the work of the

Crossing Watchman? If it did, then the grievance must succeed, if it

did not, then it must fail.

ln Cases Nos. 453 and 471 it appeared that the grievor was "the

regular employee", or one of the regular employees, assigned to

certain Work. Each case turns on its own facts, however, and there

is no analogy from the circumstances of those cases to the situation

here. In the instant case, the work of the Crossing Watchman at the

location in question involved the control of the signals to provide

proper protection for movements on sidings and on the main track.

The actual physical motion involved may have been merely that of

pushing a switch, but the essence of the Job is that the switch be

pushed at such times, and having regard to such train movements, as

will provide the proper crossing protection, and avoid excessive

operation of the signal on switching movements.

On the occasion in question the Signal Maintainer activated and

deactivated the signals, not on account of train movements (for there

were none), but in order to cut out the automatic operation of the

signal which would ensue when rails within the crossing circuit were

removed. Operation of the signal switch for this purpose did not

form part of the Crossing Watchman's duties, but was simply for the

purpose of assisting the sewer construction. The Signal Maintainer

was not, in this case, concerned with train movements or the

protection of the crossing, as the Crossing Watchman would be. He

did not perform the work of a Crossing Watchman on the occasion in

question. The reply to the question posed in this case, then, must

be "no".

For the foregoing reasons, the grievance is dismissed.

J. F. W. WEATHERHILL

ARBITRATOR