SHP - 86
IN THE MATTER OF AN ARBITRATION
Canadian National Railway Company
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO
RE:INTERPRETATION AND APPLICATION OF RULE 53.7, OF WAGE AGREEMENT NO. 16.
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Montreal on November 14, 1980.
AWARD OF THE ARBITRATOR
In the instant case the parties have submitted separate statements of issue, the company's setting out the particular circumstances which gave rise to the grievance and the union's posing the issue in general terms.
The company's statement of issue is as follows:
A derailment occurred on June 11, 1979, and as a consequence two locomotives were disabled. An auxiliary crew was sent out from Senneterre, Quebec, to clear the derailment in order that train service could he restored.
The auxiliary crew on this occasion did not include a member of the machinist craft.
The Union contends that Rule 53.7 of Wage Agreement No. 16 was violated in that a machinist was not called to accompany the auxiliary. It is the Union's position that whenever a wreck involving a disabled locomotive occurs, a machinist must automatically be sent out as part of the auxiliary crew. Accordingly, the Union argues that a machinist ought to have been sent with the auxiliary dispatched to clear the derailment which occurred on June 11, 1979.
The Company contends that Rule 53.7 was not violated and that this Rule provides only that a machinist be sent out if required. In the judgement of Company officers, such a requirement did not exist, relative to the June 11 derailment and thus a machinist was not called.
The union's statement of issue is as follows:
A derailment occurred recently and as a consequence two (2) locomotives were disabled. An auxiliary crew was sent out from point "A" to clear the derailment in order that train service could be restored. The auxiliary crew on this occasion did not include a member of the machinist craft.
The Union's position is that Rule 53.7 was violated when a machinist was not called up to accompany the auxiliary in this instance.
The grievance as originally filed was that of Machinist G. Vezina, claiming 46 1/2 hours at overtime rates account alleged violation of Rule 53.7 when he was not called to accompany the wrecking crew. Subsequently, the specific time claim was dropped, and the union now seeks to proceed simply on the general issue which was raised by the grievance. The company contends that a grievance must be adjudicated in relation to the details and circumstances which give rise to it, and that since the union seeks to proceed only on a general question of interpretation, the grievance should be dismissed.
The grievance did arise out a particular set of circumstances and the question must be whether or not, in those circumstances, there was a violation of the collective agreement. It is open to a party, during the course of a grievance procedure (and subject to any particular requirements the collective agreement may impose), to alter its position as to the relief it seeks or the arguments on which it relies. It may not however, substitute one grievance for another.
In the instant case, the grievance seeking payment for Mr. Vezina was based on an interpretation of the collective agreement. It was open to the union to drop the claim for wages, as it did, and it is also open to the union to advance whatever arguments seem appropriate as the question of whether or not there was a violation of the collective agreement. It may argue, as it does in this case, that there is a general obligation to have a machinist accompany the wrecker whenever an engine is disabled. On the other hand, it is also open to the company to insist that the point to be decided is the point raised by the grievance filed: that is, whether or not there was a violation of the collective agreement in the circumstances of this case. That is, the issue is the one raised by the grievance, and it is that issue (apart from any specific agreement of the parties altering it) which may be submitted to arbitration. The arguments relating to the issue, however, may be general in nature, if that is how a party wishes to present its case.
The essential facts in the instant case do not appear to be in dispute. There was a derailment, resulting in two locomotives being disabled. A wrecking crew, not containing a machinist, was dispatched to the site to clear the derailment. The locomotives were rerailed and made moveable. The work done, according to the company' s statement, included the cutting away of certain parts, the application of temporary couplers, the temporary repair of air pipes and reapplying a set of trucks. The work was performed, it seems, by carmen.
It is the company's position that a machinist was not required for this work. The union's position is not necessarily contradictory of this. The union has asserted that there is no jurisdictional conflict involved as between machinists and carmen, but that the question is simply whether or not an engine was "disabled" in which case, it is argued, a machinist should have accompanied the wrecker. This would be so, it seems, whether or not the machinist's services were in fact required.
Given the nature of the work as it was generally described, and given the definitions of machinists' and carmen's work as set out in article 53.2 and 58.2 respectively, it might have been argued that a machinist was in fact required for the work in question. That issue was not raised, however, and I make no determination of it. For the purposes of this case, then, there is no finding that a machinist was in fact required, in the circumstances described. It remains to be determined whether or not a machinist ought to have accompanied the wrecker in any event, the derailed engines being disabled.
Article 53.7 of the collective agreement is as follows:
Work at Wrecks
53.7 In case of wrecks where engines are disabled, machinist, and helper if required (more if necessary), shall accompany the wrecker. They will work under the direction of the wreck foreman. They will be paid for wrecking service as per sixth paragraph of Rule 6 while working at wrecks or in charge of wrecked engines.
This was a case of a wreck where engines were disabled. It is argued that it is the plain requirement of the article that the "machinist . . . shall accompany the wrecker". That requirement, it is said, is mandatory (the machinist "shall" accompany the wrecker) and is not qualified: the helper too, it may be observed, shall acompany the wrecker, but only if a helper is required. The phrase "and helper if required (more if necessary)" is isolated by commas from the principal phrase "machinist . . . shall accompany" and so, it is argued, the machinist must attend at the wreck site, whether he is required or not.
It would appear that, in general, machinists have been dispatched to wreck sites only where they were required. In 1968, interdepartmental instructions affecting the territory in question were issued by the company to the effect that where it was known that a locomotive was involved in a derailment arrangements were to be made to dispatch a machinist to accompany the wrecking outfit. I do not think it is proper to draw from that instruction any acknowledgment on the company's part that machinists were necessarily to be called when they were not needed. It may simply reflect the frequent need for machinists in cases of locomotive derailment. It may be noted that article 53.7 deals with cases of derailments where locomotives are "disabled".
It is true that the placing of a comma between the word "machinist" and the phrase "and helper if required", tends to emphasize the separation of the two, and to suggest that the phrase "if required" modifies only "helper" and not the expression "machinist, and helper". This is not, however, a grammatical necessity. The comma may serve some other purpose, or it may simply be redundant. If there were no comma, the argument (whether or not convincing), might be made that a machinist must be accompanied by a helper, or that it is only if a "machinist and helper"' are jointly required that they must accompany the wrecker. The real thrust of the article (and somewhat similar articles are set out with respect to other crafts) is to indicate that machinists and their helpers may be involved in this type of work, that they do it under the direction of the wreck foreman, and that they are paid therefor pursuant to article 6. It is not, as the union would have it, a form of manning requirement.
"Wrecks where engines are disabled" are, no doubt, wrecks where the services of a machinist (or machinists) and perhaps a helper (or helpers) may likely be required. Certainly they will be required if machinists' work is to be performed, and if the task is one of repairing an engine mechanically to make it operative that will, in general, be machinists' work (I repeat that the issue of whether or not a machinist was required in the instant case is not now before me). It may be observed that the article sets no limit on the time during which a machinist shall accompany a wrecker. Such a limit would naturally be determined by reference to the time during which the engine was "disabled", in the sense that the services of a machinist were needed to make it operative again. It is surely in relation to the type of work required that the word "disabled" must be read in this context. Thus, where an engine is disabled so that a machinist must be called to effect the necessary repairs to make it operative, then where a wrecking crew is called and where it is sought to make a disabled engine operative, a machinist must be part of the crew when called, and he will work under the wreck foreman and be paid in accordance with article 6. That is the effect of article 53.7 as I read it.
Since, in the instant case, there is no finding that a machinist was required (for the reasons set out above), it was not necessary for one to accompany the wrecker in this particular case. Accordingly the grievance must be dismissed.
DATED AT TORONTO, this 25th day of November, 1980.
(signed) J.F.W. Weatherill