SHP – 140
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
IN THE MATTER OF THE GRIEVANCES OF J.O. SMITH AND K. GEHRING
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
F. B. Reynolds
M. M. Yorston
And on behalf of the Union:
J. W. Asprey
A hearing in this matter was held at Montreal on March 11, 1983.
The Joint Statement of Fact and Issue in this matter is as follows:
JOINT STATEMENT OF FACT
CP Rail carmen J.D. Smith and K. Gehring are spare auxiliary crew members at Moose Jaw, Saskatchewan. On July 16, 1981, the Moose Jaw auxiliary was sent to Broadview, Saskatchewan, to change a truck on diesel unit 8528. The grievors were first out on the spare list at that time but two other members of the spare auxiliary crew were called to accompany the auxiliary to Broadview.
JOINT STATEMENT OF ISSUE
It is the position of the Union that the Company violated paragraph No. 5 of the Memorandum of understanding in respect of emergency and auxiliary service by not calling Messrs. Smith and Gehring on July 16, 1981.
It is the Company’s position that inasmuch as the work performed by the auxiliary crew was neither wrecking nor emergency service, and that as employees were called in accordance with the usual practice at the terminal, there was no violation of the Memorandum of Understanding.
The work in question was in the nature of road repair work, and had been planned to be performed on Friday, July 17, 1981. With the early arrival of certain spare parts, it was decided to advance the work by one day. This decision was made in the morning of July 16. At that time certain regularly assigned Carmen were on duty, on shifts of 0700-1500 or 0800-1600. Such employees were then directed to go with the auxiliary to perform the work. They did so, leaving Moose Jaw at 1100, having prepared their material and equipment. They arrived at the site at 1600, performed the work, and returned to Moose Jaw at 0100 on the Friday. They thus performed some 9 hours of work in addition to the hours of their regular shift, and were entitled to payment on an overtime basis for those additional hours.
The grievors have regular assignments, but at the times in question were not on duty. The Thursday and Friday were Mr. Smith’s rest days. Mr. Gehring worked 2300-0700, and had come off duty shortly before the decision was made to send the auxiliary out.
The grievors claim they were entitled to be assigned to the work in question by virtue of the provisions of a Memorandum of Understanding dated March 23, 1979, attached to the collective agreement. In particular, reference is made to clauses 5 and 12 thereof, which are as follows:
5. Carmen assigned to spare lists shall be called, for the respective emergency services, as required. In order to equalize overtime to the extent possible, such spare employees, when required, shall be called in rotation from the spare list, on a first in first out basis.
12. It is understood that this agreement does not guarantee that all employees assigned to wrecking service at any point will be called in each instance. Only sufficient number of employees to meet the particular needs of any emergency will be called, in accordance with the usual practice at the terminal.
The grievors held regular assignments but were also members of the spare crew. They stood first on the spare list. It was said that two of the employees who, being on duty, were assigned to the work in question were senior to the grievors, but however that may be, call from the spare list is not based on seniority, but is on a first-in, first-out basis. The relative seniority of employees is not a material consideration in this case. The question is whether or not the company was required to call employees from the spare list to perform the work in question.
Had the grievors, or other employees on the spare list been called, the result would be that - for that part of the work which fell within the regular hours of their assignments - the regularly assigned employees would be bypassed. Further, it would impose a requirement on the company to have work performed at overtime which regularly assigned employees could perform (in part) at straight time.
In my view, the collective agreement does not require this. Clause 5 does give employees on the spare lists a right to be called, as required, "for the respective emergency services". ("Respective" refers to the various services, including conventional auxiliaries, for which both regular and spare lists are to be maintained at certain locations). The second sentence of clause 5 simply provides for call, from the spare list, on a first-in, first-out basis so that overtime will be equalized for the employees on that list. Clause 5 does not give employees on the spare lists a right to be called where there is no emergency. There was no emergency in the instant case.
Clause 12 makes it clear that the Memorandum does not provide a guarantee of work, and repeats that employees will be called "to meet the particular needs of any emergency". Here again, there was none.
In the instant case the work in question involved certain overtime work for regular employees who were on duty when the work was assigned. It was not emergency work, and the company was not obliged to look to the spare list to have it performed.
There was, I find, no violation of the collective agreement, and the grievance must therefore be dismissed.
DATED AT TORONTO, this 28th day of March, 1983.
(signed) J. F. W. Weatherill