CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4056
CANADIAN NATIONAL RAILWAY COMPANY
Alleged violation of article 67.10 of agreement 1.2.
JOINT STATEMENT OF ISSUE:
contends the grievor must be paid 100 miles for the taxi to
disagrees with the
(SGD.) T. MARKEWICH (SGD.) P. PAYNE
FOR: GENERAL CHAIRMAN FOR: DIRECTOR, LABOUR RELATIONS
There appeared on behalf of the Company:
K. Morris – Sr.
Manager, Labour Relations,
D. Brodie –
Manager, Labour Relations,
D. VanCauwenburgh – Director, Labour
D. Broesky – Trainmaster,
There appeared on behalf of the
M. A. Church – Counsel,
B. Willows – General
T. Markewich – Sr.
AWARD OF THE ARBITRATOR
As is evident
from the joint statement of issue, on
compensated the grievor for his deadheading from New Sarepta to
(a) When rest is booked en route, locomotive engineers will, at the Company’s option:
(i) Be relieved of duty and provided with accommodation either in a Company facility or an available hotel or motel; or
(ii) be replaced and deadheaded immediately either to the point for which ordered or to the home terminal where they will be relieved of duty.
NOTE 1: When deadheaded in the application of sub-paragraph 28.8 (a)(ii), locomotive engineers will be compensated on a continuous time basis for service and deadheading (miles or hours whichever is the greater) as per class of service.
NOTE 2: In the application of sub-paragraph 28.8(a)(ii), locomotive engineers who are returned to the home terminal after being replaced on a trip to the away-from-home terminal will be paid, in addition to the earnings specified in NOTE (1) above, the additional actual road miles thy would have otherwise earned for the round trip had they not been replaced.
67.10 Deadheading and a tour in road service may only be combined once; i.e. going to the work location and tour of duty; or tour of duty and deadhead back to a terminal after completion of the tour of duty.
On the foregoing basis it maintains that the grievor should have been compensated on the basis of 100 miles for the second deadhead as contemplated within article 67.2 of the collective agreement which states:
67.2 Deadheading paid separately from service will be computed on the basis of miles or hours whichever is the greater, with a minimum of 100 miles, overtime pro rata, at the minimum rate applicable to the train on which the locomotive engineer travels.
The issue is
whether the grievor was entitled to be compensated, as the Union claims, for
100 miles at passenger rates for his second deadhead or whether, as the Company
maintains, he fell within the provisions of Note 1 of article 28.8. It should
be noted that the
The Company maintains that the grievor was properly paid in accordance with article 28.8(a)(ii) Note 1. It submits that notes kept by the Company at the time of the of the negotiation of these provisions in 1986 confirm that the deadheading which occurred after the booking of rest is to be considered as part of the same tour of duty, and paid accordingly.
counters that article 67.10 is in fact intended to limit or prevent the Company
from originally structuring or scheduling a tour of duty in such a way as
allowing that tour of duty to have two separate portions of deadheading, along
with a segment of road service. Its representatives submit that in fact the
Company has held to that approach to the article, as well as to the application
of article 28.8 for a number of years without apparent objection on the part of
and considered the submissions of the parties, I am left in some doubt as to
the Company’s interpretation of the language of article 67.10. There is clearly
nothing on the face of the article to indicate, as the Company would have it,
that it is intended solely as a prohibition against structuring or scheduling a
tour of duty in advance so that that tour of duty involves the combining road
service with deadheading more than once. In my view the language must be read
as it is found. The plain meaning of the words would, I think, extend to
preventing deadheading twice in a tour of road service in circumstances where
the second deadheading arises in a manner that is unforeseen, and not
scheduled. That said, however, I am not inclined to reject out of hand the
Company’s position with respect to the administration of this article over the
past eighteen years. As noted above, the Union points to only one precedent
where its position appears to have been accepted by the Company, albeit in the
context of a grievance which was settled. In my view the grievance must
therefore be resolved on the basis of the application of the doctrine of
estoppel against the
therefore finds and declares that the interpretation of article 67.10 of the
collective agreement presented by the
For the purposes of clarity, it should be appreciated that, in the Arbitrator’s view, article 67.10, which is placed in the collective agreement under article 67 which is entitled “Deadheading” speaks most directly to the limits on the Company’s prerogatives and the protections of employees with respect to the treatment of deadheading. Article 28.8 deals with deadheading in only a peripheral manner, as its principal focus is the booking of rest by employees. That provision pre-existed the introduction of article 67.10 into the collective agreement and must now, in my view, be interpreted to apply to the circumstance where there is a single deadheading segment attached to an assignment in road service. Given the chronology of events, I cannot see how the payment provisions of article 28.8 can be said to apply notwithstanding the more direct and specific provisions of article 67.10. Nor, as indicated above, can I find language to sustain the view of the Company that article 67.10 speaks only to the Company’s inability to schedule more than one segment of deadheading with an assignment in road service.
foregoing reasons the Arbitrator finds and declares that the interpretation of