SHP - 96
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
RE:GRIEVANCE RELATING TO POSITION OF CARMAN T.E. LITTLE
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Montreal on March 12, 1981.
AWARD OF THE ARBITRATOR
The Joint Statement of Fact and Joint Statement of Issue in this matter are as follows:
JOINT STATEMENT OF FACT:
On November 1, 1978, the Company awarded a Carman's position at Aroostook, N.B. to Carman T. E. Little, who then became the sole Carman employed at that point.
JOINT STATEMENT OF ISSUE:
It is the position of the Union that the Company violated the provisions of Rules 58.10 through 58.16 in not designating the Carman's position at Aroostook, N.B. as a "one man point" and in not paying Carman Little accordingly.
It is the Company's position that Rules 58.10 through 58.16 do not apply to the position of Carman at Aroostook, N.B.
At the hearing in this matter the union argued that the grievance should succeed because of the company's failure to render a decision on the grievance within the time provided for by the collective agreement. Generally speaking, such a failure on the part of a party responding to a grievance would simply give the party making the grievance the right to proceed to the next step, without further delay. Article 28.11 of the collective agreement provides, however, that "in the case of a grievance based only on a time claim", where a decision is not rendered within the time limit specified, then the claim shall be paid. The instant case is not one in which that article applies, as the grievance relates to the designation of a position. It may involve, as an incident thereof, a claim for compensation as a result of previous insufficient payments, but it is not a grievance "based only on a time claim". This, first argument, therefore, cannot be accepted.
The position to which Mr. Little was appointed by bulletin would appear to be a regular Carman's position. The hours of the assignment are 0600 to 1400, and days off are Sunday and Monday. Mr. Little is, it seems, the only Carman at Aroostook. His work is under the supervision of a Mechanical Supervisor, also located at Aroostook. While Mr. Little has been called on to work overtime from time to time, the company does not require any other person to work in a regular position of Carman at Aroostook, and Mr. Little has not been told that his sixth day is a standby day on which he must be available for emergency work or for maintenance of customer services.
The issue in this case is simply whether or not Aroostook is a "one man point" within the meaning of article 58.10 of the collective agreement. The material provisions of the agreement are as follows:
Carmen One Man Points
58.10 A "one man point" is an outlying point where there is employed one Carman day and one, night, or where there is only one Carman employed.
58.11 Carmen stationed one man points shall be allowed 179.3 hours per for-week period made up of 160 hours at straight time and 19.3 hours at time and one-half at the hourly rate provided in Rule 32.
58.12 Where car inspectors, including work train inspectors, or car repairers at one man points are required by order to work a total of more than 179.3 hours per four-week period, they shall be paid for all time worked in excess of 179.3 hours per four-week period in accordance with the following:
In the application of Rules 58.11 and 58.12:
Actual overtime hours worked in excess of 160 hours will be accumulated over a twelve-week period.
If these total overtime hours worked exceed 57.9 (comprised of 19.3 hours x 3 four-week periods) such additional hours worked in excess of 57.9 will be paid for at the rate of time and one-half at the conclusion of the twelve-week period.
NOTE: Should an employee take a position paid on the basis of this Rule 58.12 and remain on such position for a period of less than 12 weeks, the period so engaged will be recognized as the accumulation period for that employee. In such circumstances, overtime compensation will be calculated in relation to the total overtime hours worked pro-rated over the number of weeks actually engaged during the 12-week period. This does not apply to employees who work for periods of less than one week.
58.13 Employees covered by Rules 58.10 to 58.16 inclusive shall be assigned to work five days per week, their working hours shall be. mutually arranged to suit conditions and less than 8 hours may be specified for certain days. The sixth day shall bo considered as a standby day and employees must be available for call for work of an emergency nature or for the maintenance of customer services on such day. The seventh day, Sunday if possible, shall be their regular assigned rest day.
58.14 Carmen working under the provisions of Rules 58.10 to 58.16 inclusive, including those assigned to the combined duties of engine. watchmen and car cleaners, will be subject to call on the sixth day for emergency work or for the maintenance of customer services. Routine service, ordinary maintenance and construction work shall not be considered as emergency work.
58.15 Service on an assigned regular rest day shall be paid at the overtime rates as provided for in Rules 2 and 5. Hours paid for on such rest day shall not be included in computing the 179.3 hours per four-week period.
58.16 Such employees shall be compensated for the general holidays specified in Rule 46.2 in accordance with the provisions of Rules 46.12 to 46.14 inclusive.
The company contends that the attributes of the job in question are not those set out in articles 58.11 to 58.16; that the job bulletin did not set out such features of the job; and that Aroostook is not an "outlying point". As to the first of these arguments, it appears to assume that the company has some discretion to exercise in determining whether or not to designate some point as a "one man point". In my view, however, section 58.10 of the collective agreement sets out a full and complete definition of one-man point. If a point comes within that definition, then it is a one-man point, however the company might designate it. The attributes of such a job are then set out in articles 58.11 to 58.16. The requirement or otherwise of these attributes of a carman's job does not indicate whether or not the job is one at a "one man point". On the contrary, if the job is at a one man point (and that is determined by reference to article 58.10), then the various attributes set out in articles 58.11 to 58.16 apply to it.
On the second argument, the company cannot avoid the provisions of the collective agreement with respect to any situation simply by setting out only some of the appropriate attributes of the situation in the bulletin. It may be noted that the company does not appear to have met the requirements of the collective agreement with respect to furnishing a copy of the bulletin to the union. In any event, it is not clear that the bulletin was inadequate. It sets out, quite properly, a Carman's job with a five-day week. That is what article 58.13 contemplates. That the sixth day is to be considered as a standby day is also provided for by article 58.13, but it does not appear to be necessary (although it might be desirable) to set that out in the bulletin.
As to the third argument, the collective agreement does not appear to define or otherwise make clear what an "outlying point" is. The collective agreement, in speaking of locations where work is performed, appears to make frequent distinctions between "main shops" and "running points". Mention is also made of "inspection points" and "road work", and in the temporary assignment article, article 7, reference is made to an "outlying point or shop". Article 58, it may be noted, sets out the Carman's craft special rules. The other craft special rules appear to contain no analogous rules to those set out in articles 58.10 to 58.16, except in the case of the Electricians, where payment provisions somewhat similar to those in question here are set out and which apply, "At points where a special arrangement of hours is mutually agreed upon to meet the requirements of train service, and where only one electrician is employed". Finally, there appear to be at least some examples of "points" having characteristics analogous in material respects to those of Aroostook, and which are recognized to be one man points: such points would seem to be neither more nor less "outlying" than Aroostook. Without attempting any precise definition of the term, I would think that it should be read as connoting some degree of contrast with main shops (which, seem to present no problem of definition), and with "running points", a term as to which I am less certain. For the purposes of the instant case, however, I am satisfied that it is appropriate to describe Aroostook as an "outlying point" within the meaning of article 58.10.
It is clear that in other respects the definition set out in article 58.10 applies with respect to Aroostook. It is an outlying point "... where there is only one Carman employed". It follows that Aroostook is a one man point. The application of the following provisions articles 58.11 to 58.16 to the instant case follows from that finding.
For the foregoing reasons it is my conclusion that the grievance must be allowed. Mr. Little is entitled to compensation in, respect of the period from and after June 3, 1980, when the grievance was put forward by the union.
DATED AT TORONTO, this 17th day of March, 1981.
(signed) J.F.W. Weatherill