SHP 109

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Canadian National Railway Company

(the "Company")

AND

CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS

(the "Union")

 

AND IN THE MATTER OF A GRIEVANCE RELATING TO THE ALLEGED VIOLATION OF RULES 6.11 & 6.16 OF WAGE AGREEMENT 16 IN RESPECT OF A WRECKING SERVICE ASSIGNMENT AT MONCTON

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

W. A. McLeish

J. A. Cameron

 

 

And on behalf of the Union:

J. W. Asprey

J. Cairns

 

 

A hearing in this matter was held at Ottawa on November 4, 1981.

 

 

AWARD

The Dispute, Joint Statement of Facts and Joint Statement of Issue in this matter is as follows:

DISPUTE:

Alleged violation of Rules 6.11 and 6.16 of Wage Agreement No. 16 concerning wrecking service assignment, Moncton, New Brunswick.

JOINT STATEMENT OF FACT:

At approximately 1800 hours 29 October, 1980, a wrecking outfit at Moncton, composed of crews of an auxiliary crane and a Holmes crane, was called in wrecking service to attend a derailment on the Springhill Subdivision.

On 31 October the Holmes crane crew, composed of four men, was instructed to leave the initial derailment and proceed with the crane to the Kensington Sub to attend a second derailment and rerail a locomotive and two cars.

Enroute to the Kensington Sub, the Holmes crane crew rerailed a locomotive on the Tormentine Sub.

After clearing the derailment on the Kensington Sub the crew was put on rest at a motel, without pay, from 2300 hours October 31, 1980 to 0600 hours November 1, 1980. They completed their assignment and returned to Moncton at 0530 hours November 2, 1980.

JOINT STATEMENT OF ISSUE:

It is the position of the Union that the attendance at the two derailments constitutes two separate calls under Rule 6.11 (Blue Section) of Wage Agreement No. 16; that the crew was entitled to two continuous pay periods of 24 hours each and that the company violated Rule 6.16 of Wage Agreement No. 16, when it refused to pay the crew while on rest from 2300 hours October 31, 1980 to 0600 hours November 1, 1980, at overtime rates.

It is the position of the Company that the wrecking service involved only one call and that no violation of Wage Agreement No. 16 occurred when the wage claims were denied.

This case, it will be noted, relates to one of the crews called on 29 October, in wrecking service. That crew, the Holmes crane crew, was on-continuous pay from the time called 1800 on October 29 until the time of return to home terminal 0530 on November 2 with the exception of the period here in question, namely from 2300 on October 31 until 0600 on November 1. They were in fact on rest during this period, but they would nevertheless be entitled to pay if those hours fell within "the first twenty-four hour period".

Rule 6 of the collective agreement deals with "Emergency Calls and Wrecking Service". It would appear to have been rather expansively "interpreted" by a Memorandum of Interpretation made by the parties, effective September 1, 1970. It would appear to be Rules 6.11 and 6.16 of this Memorandum which are referred to in the Dispute set out above.

Rule 6.11 of the Memorandum is as follows:

6.11 Wrecking Service is defined as a call of any duration requiring the use of an auxiliary wrecking outfit. A second or subsequent calls to a wreck to perform cleanup operations shall be considered wrecking service except that the 24 hour continuous service provision of Rule 6.16 shall not apply.

Here, the grievors were called at 1800 on October 29. They were called in wrecking service within the meaning of Rule 6.11. They were "called" subsequently to proceed to another wreck site (incidentally performing further wrecking service en route), at 0700 on October 31. This second call was not "to perform cleanup operations" and was not the sort of call referred to in the second sentence of Rule 6.11. The exception therein set out to the "24-hour continuous service provisions" does not, therefore, apply, and that provision, set out in Rule 6.16 of the Memorandum, would apply, if the "call" made at 0700 on October 31 was a new call, which would of itself give rise to the application of that rule.

Rule 6.16 of the Memorandum is as follows:

6.16 Employees engaged in wrecking service, provided they are in such service for a continuous period of twenty-four hours, will be considered as in continuous service for the first twenty-four hour period Including the meal periods. Employees relieved from duty subsequent to this twenty-four hour period for five hours or more, will not be paid for such time, provided sleeping accommodation is available and provided they are not travelling during such five hours or more. After the first 24-hour period, all employees shall be considered to have assigned hours of 8:00 a.m. to 4:00 p.m.

In the instant case, the grievors were engaged in wrecking service for a continuous period of twenty-four hours, and were to be considered as in continuous service for the first twenty-four hour period. It would seem that they were paid appropriately in respect of the twenty-four hour period following their call at 1800 on October 29. If they continued on in wrecking service after that time, they would not be paid for periods in excess of five hours when relieved from duty; for example, they would not be paid in respect of the period from 2300 on October 31 until 0600 on November 1. It is argued, however, that the call given at 0700 on October 31, to go to another work site, was the start of a new engagement, so that the twenty-four hour provision (employees being considered as continuously on duty for the first twenty-four hours) would apply once more, as of 0700 on October 31. Since the period from 2300 on October 31 until 0600 on November fell within the first twenty-four hours following 0700 on October 31, the grievors would be entitled to pay for that period.

With respect, I do not consider that the grievors were given a new "call" (in the strict sense) when they were directed to the second derailment, nor, incidentally, were they given a new call when they were diverted to a third derailment while en route to the second. The grievors were already on duty in wrecking service and were then assigned to another task. They remained on duty throughout, apart from the period in question. Whether or not other employees might, in some circumstances, have been entitled to be called for the second assignment in priority to the grievors is a quite different question, and one which does not arise here. The grievors, however, did not receive a second (or third) "call".

The matter of calls is referred to in various provisions of the collective agreement, particularly in Rule 5 ("Overtime and Calls") and Rule 6 ("Emergency Calls and Wrecking Service"). The definition of wrecking Service in Rule 6.11 of the Memorandum as "a call of any duration requiring the use of an auxiliary wrecking outfit" is addressed to the matter of what Wrecking Service is; it does not deal with the question raised in this case, and in particular does not limit the duration of, or otherwise define a "call".

Most significantly for this case, however, Rule 6.16 of the Memorandum does not provide for a "24 hour continuous service provision" in respect of a "call" as such. It deals simply with any case of employees engaged in wrecking service, where the employees are in such service for a continuous period of twenty-four hours. The grievors were "engaged in wrecking service" and had the benefit of that provision. There is no provision to the effect they were entitled to a new 24 hour continuous service period, where they did not go out of service, or out of wrecking service, and did not respond to any new "call". Rule 6.16 of the Memorandum does not deal with the matter of the conclusion of an on-duty period, nor does Rule 6.11. There is nothing to suggest that assignment to a separate task within the same class of service brings an end to an on-duty period and requires a new "call". Even if the term "call" be considered as referring, not simply to the call to report for duty (Wrecking service is rather special in that it commences at the time called: Rule 6.8 of the collective agreement) but more generally to a "run" or "tour of duty", nothing in the collective agreement or Memorandum to which I was referred limits the scope of work (in the same class of service) which may be performed in the course of a "call" so understood.

For the foregoing reasons it is my conclusion that the grievors were not entitled to the benefit of a new 24 hour continuous service period when they were assigned to a second derailment, being already in wrecking service. Accordingly, the grievance is dismissed.

DATED AT TORONTO, this 24th day of November, 1981.

(signed) J. F. W. Weatherill

Arbitrator