SHP - 24
IN THE MATTER OF AN ARBITRATION
RAILWAY EMPLOYEES’ DEPARTMENT, DIVISION NO. 4
RE:GRIEVANCE OF G. R. BISHOP
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. H. Clark
APPEARING FOR THE COMPANY:
J. A. McGuire
J. E. Cameron
A hearing in this matter was held in Montreal on April 11, 1975.
AWARD OF THE ARBITRATOR
JOINT STATEMENT OF ISSUE
Claim of the Railway Employees’ Department, Division No. 4, for 8 hours wages at time and one half for the 1600 shift January 5th, 1973, on behalf of Nelson Machinist G.R. Bishop on the basis the Company violated provisions of Rule 5.11 of Wage Agreement No. 16.
JOINT STATEMENT OF FACTS
Account illness Machinist Moojelsky was not able to occupy his regular assigned 1600 shift on January 4th, 1973. The Company decided not to replace Mr. Moojelsky on January 4th; however, when Mr. Moojelsky again reported sick on January 5th, the Company promoted Machinist Helper L.A. Richichi to fill the vacancy.
The Union claims Machinists were available to fill this sickness vacancy and the Company violated Rule 5.11 by placing a helper in the position.
The Company contends the provisions of Rule 5.11 are not applicable in the filling of a regular scheduled position vacant account sickness.
Rule 5.11 is as follows:
Insofar as practicable helpers shall not be employed or advanced temporarily to do mechanics’ work – when mechanics are available to avoid the necessity of payment of overtime.
That rule would appear on its face to prevent the employment of helpers for mechanics work where mechanics are available. In the instant case, it would appear that a mechanic was available, although had been given this assignment, it would have been on an overtime basis. That alone, as Rule 5.11 makes clear, would not be a ground for assigning a helper in the peace of a mechanic.
The Company contends that this article does not apply in cases of vacancies, and that a vacancy was created in this case. Certainly, by Rule 23.8, helpers may in some circumstances be appointed to this work, but a limitation on the appointment of helpers is clearly set out in Rule 5.11, and the general provision of Rule 23.12, which would appear to apply to temporary vacancies of this sort, is that the senior qualified employees from the respective point from the home seniority terminal would be entitled to the job. This could mean that an employee gives up his regular assignment in order to move on to a temporary, relief assignment: that would seem to be the sort of typical situation to which the article is directed, and in such a case the employee so assigned would be subject to the terms of Rule 5.17 with respect to his rate of pay.
In the instant case, however, as in the case of Mr. Marsh decided this date between the Union and the Ontario Northland Railway, what is really involved is a claim by a regularly assigned employee for certain overtime work, without transferring from one position to another. Rule 5.11 has the effect, in my view, of protecting such employee’s work opportunity, subject to his availability – a question which has been dealt with in other cases.
On the basis that the grievor was available within the meaning of the collective agreement on the occasion,in question, I hold that it was a violation of Rule 5.11 to assign a helper to such work.
For the foregoing reasons the grievance is allowed.
DATED at Toronto, this 26th day of April, 1975.
(sgd.) J. F. W. Weatherill