IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
THE CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
AND IN THE MATTER OF GRIEVANCE OF J. LONE
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Union:
J. W. Asprey
And on behalf of the Company:
D. J. David
A hearing in this matter was held at Montreal on April 9, 1984.
The Joint Statement of Fact and Issue in this matter is as follows:
JOINT STATEMENT OF FACT
Machinist J. Lone, employed at Windsor, Ontario is claiming eight hours at time and one-half when Rules 53.2 and 12.1 of the Collective Agreement were violated by having Foremen performing Machinist work. This occurred on May 24, 1982 on Diesel Units 5530, 4500, 5525, 1st 904, 5525, 4742, 2nd 904 and 4733.
JOINT STATEMENT OF ISSUE
The Union contends that Rule 12.1 governs when Master Mechanics can perform Machinist’s work which is covered in Rule 53.2, and was violated in the above instance. In addition, Rule 28.11 was violated when the Company missed the time limits at Step I of the grievance procedure contained in the Wage Agreement.
The Company denies the claim.
There is no dispute as to the facts. The grievor is a regularly-assigned Machinist. He works an eight-hour shift, five days per week, at the company’s shop at Windsor, Ontario. Monday, May 24, 1982, was Victoria Day, a general holiday, and the grievor had a holiday with pay on that day in accordance with article 46 of the collective agreement. It would appear that none of the four Machinists holding regular positions at the shop were assigned to work that day.
The company did, however, have certain work performed which came within the scope of Machinists’ work as described in article 53.2 of the agreement, and which was a sort which the grievor normally performed. This work consisted of the coupling and testing of diesel units on the 0001-0800 shift, for about thirty minutes, and of similar work, as well as the application of a brake shoe key, on the 0800-1600 shift, for about forty-five minutes. The work was done in each case by a Foreman. The grievor was not called in to perform it.
It is contended that the grievor ought to have been assigned this work. Had the grievor been so assigned, it is clear that he would have been entitled to pay at the rate of time and one-half (in addition to his holiday pay), pursuant to article 46.7. The issue is whether or not the grievor was entitled to be assigned to perform the work in question.
Rule 53.2 describes Machinists’ work, and there is no doubt that the work in question comes within that description. Article 53.2, however, does not itself prohibit others from performing such work. The performance of such work by a Foreman is not in itself a violation of article 53.2.
Article 12.1 of the collective agreement is as follows:
12.1 Master mechanics or foremen shall not be allowed to do mechanics’ work when mechanics are working on a reduced hourly basis and are available. This is not intended to restrict the use of working foremen in accordance with established practice at small points.
The shop at Windsor, Ontario is, I find, a "small point" for the purposes of article 12.1. It may be that "working foremen" could be utilized there, although it was not shown in this case that there was any established practice in that respect. However that may be, it is clear from the first sentence of article 12.1 that Master Mechanics or Foremen are prohibited from doing Mechanics’ work only "when mechanics are working on a reduced hourly basis and are available". There is no general prohibition of the performance of Mechanics’ work by others, or of the performance of bargaining-unit work by members of management. (That is not to say, of course, that there may not be other restrictions on the assignment of such work). In the instant case, while the grievor may have been "available" to be assigned the work in question, he was not "working on a reduced hourly basis" at the material time. He was "working" – that is, his regular assignment called for – the daily and weekly hours called for in article 1 of the collective agreement. He did not in fact work on what would otherwise have been a working day during the week in question, because that day was a holiday for which he was paid. The grievor was not, however, "working on a reduced hourly basis" within the meaning of the collective agreement nor, it appears, was any other Machinist. Accordingly, the restriction on the performance of such work by Foremen did not apply. There was, therefore, no violation of article 12.1 of the collective agreement in the instant case.
There does not appear to be any other provision in the collective agreement which would oblige the company to call in an employee on holiday to perform, on an over time basis, work of the sort which the Foremen performed in this case. The grievor’s claim for payment is thus not supported by the collective agreement.
It was contended by the union that the claim should be allowed because the company failed to respond within the time limit provided at Step 2 of the grievance procedure. This claim is based on article 28.11 of the collective agreement. That article is as follows:
28.11 A grievance not progressed within the time limits specified shall be dropped and shall not be subject to further appeal. Where, in the case of a grievance based only on a time claim, a decision is not rendered by the designated officer of the Company at Steps I or II within the time limits specified in such steps, the time claim will be paid. Payment under such circumstances shall not constitute a precedent, or waiver of the contentions of the Company in that case or in respect of other similar claims.
It seems that the company did not in fact give its reply to the grievance at Step 2 within the time provided. If this were "a grievance based only on a time claim", then it would have to be paid, regardless of its merits, by virtue of article 28.11. In the instant case, however, the grievor is not submitting a claim in respect of time worked, but is rather making the claim that he ought to have been assigned certain work which was performed by others. The grievance is clearly not one "based only on a time claim". A somewhat similar provision (calling for payment of "a claim for unpaid wages", where it was not replied to within time limits), was dealt with in CROA Case No. 507, and in my view the general comments made in that case with respect to the meaning of the phrase "a claim for unpaid wages" apply as well to claims based "only on a time claim", to use the language of this collective agreement. As was noted in that case, claims of improper discipline, seniority claims, contracting-out claims or, as in that case and in this, claims of entitlement to be assigned work are not "wage claims", and they are certainly not "only" "time claims", even although a claim is made for wages (or "time"), by way of relief. This is not, therefore, a case coming within article 28.11, and the grievance is not to be allowed on the basis only that the company did not reply to the grievance at Step 2 within the time provided. The remedy for that default was that the union was then entitled to process the matter to the next step, without waiting for a reply.
For all of the foregoing reasons the grievance must be dismissed.
DATED AT TORONTO, this 7th day of May, 1984.
(signed) J. F. W. Weatherill