SHP - 67



Canadian National Railway Company

(the "Company")



(the "Union")



SOLE ARBITRATOR: J. F. W. Weatherill




J.W. Asprey



J.R. McLeod



A hearing in this matter was held in Montreal on February 13, 1980.



The dispute in this matter relates to a claim for 119 hours pay at punitive rates, made by the Jonquiere wrecking crew, on account of their not being called to accompany the crane, with which they normally work, to the scene of a derailment.

The Joint Statement of Issue in this matter is as follow:

On 18 October 1978, the Senneterre auxiliary was called to the scene of a derailment at mileage 121.33, Chapais Subdivision. On 19 October some trouble was experienced with the Senneterre crane and the Jonquiere crane was ordered, along with an operator, to the scene of the derailment.

The Union claims that the Jonquiere crane was ordered to assist the Senneterre wrecking outfit and therefore the Company should have ordered the full Jonquiere wrecking crew to accompany the crane. The Union contends that by not doing so the Company has not complied with the letter of Understanding dated 7 February 1978 respecting crew consists on auxiliaries.

The Company maintains that the Jonquiere crane was ordered because the Senneterre crane had developed mechanical problems. Further, the Company maintains that in such circumstances it has been the practice to only call an operator to accompany the crane and, therefore, the Company has complied with the Letter of 7 February 1978.

The Union claimed 119 hours pay at punitive rates for seven employees assigned to the Jonquiere wrecking crew.

The Company denied the claim.

* * * * *

The trouble which was experienced with the Senneterre crane was that at least two teeth in the main swing gear had broken. This resulted in restricted circular rotation of the crane at least while it was carrying a load. The crane could not safely be used for all the work required, although it was not out of operation completely, and could be used for some work, and to assist in other work. It was therefore necessary to call for another crane, and in the circumstances it was the crane stationed at Jonquiere which was the appropriate one to call.

At first, a call was made for the crane and crew (that is, the crane operator plus the groundmen). Later, however, the Company considered that, it had called the groundmen (the grievors) in error, and their call was cancelled. Nothing follows from this for the purposes of the present decision. The issue is simply whether or not the grievors ought to have been called, along with their crane, in the circumstances described.

The Company, as it acknowledges, is bound in this regard to follow local policies with respect to the size of crew consists for conventional auxiliary service. The practice regarding the crew consist of auxiliary wrecking outfits on the St. Lawrence Region (that is, the practice governing the instant case), requires, as the Company states, that when a second auxiliary wrecking outfit is called to aid in clearing a derailment the entire wrecking crew accompany the auxiliary. However, when a second crane is called to replace broken equipment only the crane operator is called to accompany the crane. The question in the instant case is really one of characterizing the use to which the Jonquiere crane was put: was it to aid in clearing the derailment, or was it to replace broken equipment?

Had the Senneterre crane suffered damage of a sort to render it of no substantial use in the clearing operations, so that another crane had to be substituted for it, then it would simply be a case of substituting one piece of equipment (with its operator) for another. For example, had the Senneterre crane been removed and the Jonquiere crane put in its place, then it would become in effect, and for the purpose of that operation, "the Senneterre crane" and the regular operation of the equipment would, I gather, have been retained, the Senneterre crew would have worked with the crane as ground-crew. In that case, a grievance such as that in the instant case would have failed.

Such is not, however, the instant case. Certainly the Senneterre crane was disabled and it was no doubt appropriate to call in another crane. What happened, however, is that both cranes, the Senneterre crane with its operator and the Jonquiere crane with its operator, worked at clearing the wreckage. The work, it is clear, was in fact accomplished more quickly than if one crane (even fully operational) had been involved. The deployment of the two cranes may well have been such that two ground crews were not really necessary, although it may be (there is no evidence as to this), that the work might have been accomplished even more quickly in that case. That consideration, however, is simply not relevant to the determination on which this case turns, namely, whether the Jonquiere crane was used as such to assist in clearing the derailment or whether, it was used to replace the Senneterre crane.

In the circumstances of this case, where both cranes were actively involved in the work, and where the work was accomplished more quickly as a result, it cannot properly be said that the Jonquiere crane replaced broken equipment. The Senneterre crane, though limited in its utility, was not replaced. Both that crane and its operator were used in the work. The Jonquiere crane, accordingly, must be said to have been called out to aid in clearing the derailment, and the entire crew ought to have been called for that work, as the practice requires.

For the foregoing reasons, therefore, the grievance is allowed.

DATED AT TORONTO, this 5th day of March, 1980.

(signed) J.F.W. Weatherill