Heard in Montreal, Thursday, 16 March 1995

concerning

and

Time claims submitted by Locomotive Engineers R. King and J. Tierney for handling radios at Oshawa Yard, Don Yard and Malport Yard.

As a result of the congestion on the radio channels at Oshawa, Don Yard and Malport Yard, new radios with four additional channels were provided for yard locomotives assigned to these locations. Locomotive Engineers King and Tierney have submitted claims for payment for handling the radios and/or batteries at these locations.

The Brotherhood contends that the claims are valid and should be paid in accordance with Section "C" of Appendix "C" to agreement 1.1 for duties not delineated in Section "B" of Appendix "C".

The Brotherhood further contends that as employees in other locations are monetarily compensated for such duties, Locomotive Engineers King and Tierney should be compensated accordingly.

The Company has denied the claim.

There appeared on behalf of the Company:

J. P. Krawec – System Labour Relations Officer, Montreal

D. W. Coughlin – Manager, Labour Relations, Montreal

D. Gagné – System Labour Relations Officer, Montreal

And on behalf of the Brotherhood:

C. Hamilton – General Chairman, Toronto

It does not appear disputed that the extra radios which are the subject of this dispute would, in the normal course, be serviced by maintenance staff. In other words, the maintenance staff would normally be responsible for obtaining, inserting and removing batteries from the radios in question. As the three locations do not, however, have maintenance staff available to perform these functions, they are performed by locomotive engineers, normally in conjunction with their preparatory time at the commencement of a tour of duty.

The performing of additional duties by locomotive engineers at locations where maintenance staff are not available has been the subject of considerable negotiation between the parties over the years. It resulted in the execution of Appendix C to the collective agreement, and the further clarification of that document provided in Addendum 57C. Section B of Appendix C provides an exhaustive list of duties which locomotive engineers are required to perform as part of their normal duties in relation to preparatory and final inspection time. It may be noted that the list in question involves checking equipment such as flagging devices, and appliances such as fire extinguishers. There is no specific reference within section B to radios or related radio equipment. Section B of Appendix C further contains the following passage:

Section C of Appendix C deals with the performance of duties by locomotive engineers other than those which are normally required to be performed, and are delineated in Section B, with particular regard to locations where maintenance staff is not available. It provides, in part, as follows:

Addendum 57C to the collective agreement was added, because of apparent differences between the parties with respect to the application of Appendix C of the collective agreement. In the form of a letter dated June 21, 1989, Addendum 57C reads, in part, as follows:

The issue in the instant case becomes whether the servicing of the extra radios utilized at Oshawa, Don Yard and Malport Yard falls within the purview of Section B of Appendix C, as part of the normal and expected duties to be performed by a locomotive engineer or whether, as the Brotherhood claims, that work is over and above normal preparatory and inspection time work, to be paid in accordance with Section C. In support of its position the Brotherhood stresses that payments of the kind sought in the instant case have been paid by the Company at Turcot Yard in Montreal, at the rate of ten minutes.

The Company relies, in substantial part, on the concluding paragraphs of Section B of Appendix C. It places particular emphasis on the reference within that part of the appendix to "… the many types of locomotives, appliances and operations." It submits that the radios in question are "appliances" within the contemplation of Section B, and the servicing of them should be seen as a normal part of preparatory time, save where extraordinary circumstances would require a locomotive engineer to perform work beyond the anticipated time.

Upon a review of the provisions of Appendix C, and in particular the language of Addendum 57C, the Arbitrator cannot accept the position of the Company. The servicing of radios forms no part of the listed duties enumerated in Section B of Appendix C. It is noteworthy, however, that other equipment, such as material used for flagging, and appliances such as fire extinguishers, are specifically mentioned. On balance, I am satisfied that the parties did not intend that the transporting and installing of radio batteries on an extra radio in the cab of a locomotive, at points where maintenance staff are not employed, should be treated as part of the normal preparatory and inspection duties of a locomotive engineer. In the result, that work is to be paid, in accordance with the final paragraph of Addendum 57C, on the minute basis, over and above time paid for other service even though this might result in duplicate payment.

The next question, however, relates to the amount of time properly expended in relation to the claims before the Arbitrator. I am not satisfied, on the evidence before me, that the claims in question are necessarily correct. In the circumstances I deem it appropriate to remit the matter to the parties for the purposes of determining the appropriate level of compensation, and retain jurisdiction in the event of their inability to agree. For the purposes of their deliberations, however, they should appreciate that the Arbitrator has difficulty, in the circumstances of this case, in seeing how the time expended in relation to servicing the radios could have exceeded five minutes on any particular tour of duty.

For the foregoing reasons, and subject to the foregoing comments in respect of compensation, the grievances are allowed.

17 March 1995 (signed) MICHEL G. PICHER