SHP - 15
IN THE MATTER OF AN ARBITRATION
ONTARIO NORTHLAND RAILWAY
RAILWAY EMPLOYEES’ DEPARTMENT, DIVISION NO. 4
RE:GRIEVANCE OF W.J. MARSH
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. H. Clark
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Montreal on April 10, 1975.
AWARD OF THE ARBITRATOR
JOINT STATEMENT OF FACT:
On December 29, 1972 a labourer was worked in the Machinists’ craft to perform the work of a Machinist’s Helper.
JOINT STATEMENT OF ISSUE:
The Machinists’ Organization claims that Rule 25.1 was violated when Helper W.J. Marsh, was not called. A time claim was submitted on behalf of Mr. Marsh. The Company denied the claim.
On Friday, December 29, 1972, M. Milne, an employee classified as Machinist Helper did not show up for work. He had, it seems, been absent on previous days but the Company had not found it necessary to replace him. He regularly worked on the 8:00 a.m. to 5:00 p.m. shift. There was no suggestion that this gave rise to the sort of vacancy of the sort to which Rule 23.12 would apply; in any event, there is no claim of violation of that article here.
On the Friday, the Company did require the services of a helper on the 8:00 to 5:00 shift, and it appointed C. Ceccanese, a labourer, to the job. The grievor, who is a Machinist Helper, was scheduled to work from 4:00 to 12:00 p.m. that day. Rule 25.1 provides as follows:
Labourers or similar class of workmen, shall not be permitted to do helpers’ work as outlined in Craft Rules, if regular helpers are available but if so used four hours or more shall be paid at helpers’ rate for all work performed.
That article contains two sorts of provisions: one (which is not in issue here) is as to the rate of pay for a labourer used as a helper for a certain time. The other is a general provision against the use of labourers for such work "if regular helpers are not available". The question is, therefore, whether the grievor was "available" during the shift in question. He was not in fact available during the entire period, because his own shift began at 4:00 p.m., while the shift in question lasted until 5:00. That was not suggested as the ground for dismissal of the grievance, however, and it would be my view that it would not, in the circumstances, be proper to conclude that the grievor was unavailable where this related to a small portion of the shift, and where a certain flexibility in requirements had already been demonstrated.
There was reference in the Company’s brief to occasions in the past where labourers had been used to do helpers’ work when helpers were off duty. In my view, this is not a case in which evidence of past practice is appropriate. Following the hearing, the Union submitted certain other evidence touching on this practice, but I have not considered that evidence in deciding this case since (a), past practice is not a material consideration and (b) materials such as this should not be received once the hearing is concluded, except on consent (or in certain other special circumstances not here material).
The thrust of the Company’s argument is that the grievor should not be considered available because he would have to be brought in on an overtime basis. In my view, that consideration would not in itself lead to the conclusion the employee was not available. If, of course, he had already worked overtime to such an extent as to make it impossible for him to accept the assignment without violating the provisions of the Canada Labour Code or any other applicable legislation, then of course he would not properly be said to be "available". That is not, however, this case. The work involved was work in the grievor’s classification, and the effect of Rule 25.1 is to retain such work – within certain limits – for persons holding the classification. In the circumstances of the instant case it is my conclusion that the grievor was available within the meaning of Rule 25.1 and that he ought to have been called for the work.
For the foregoing reasons, the grievance is allowed.
DATED at Toronto, this 26th day of April, 1975.
(sgd.) J. F. W. Weatherill