SHP 162

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Canadian Pacific Limited

(the "Company")

AND

THE CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS

(the "Union")

AND IN THE MATTER OF GRIEVANCE OF D. KRAWEC

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Union:

A. Rosner

E. Tandy

P. E. Perreault

 

 

And on behalf of the Company:

D. J. David

D. A. Lypka

 

 

A hearing in this matter was held at Montreal on August 14, 1984.

 

 

AWARD

The Joint Statement of Fact and Issue in this matter is as follows:

JOINT STATEMENT OF FACT

CP Rail Carman D. Krawec, Employee No. 468432, is a spare man on the Auxiliary Crew at Thunder Bay, Ontario. At 0300 hours on July 19, 1982, the auxiliary with a crew of 11 men were called at Raith, Ontario.

At approximately 1000 hours on July 19, 1982, the General Car Foreman, Mr. Mackie, brought in one (1) more employee (R. Lewis) to the wreck site in order to help Mr. Olinick in the kitchen.

JOINT STATEMENT OF ISSUE

It is the position of the Union that the Company violated Item 4 of the Calling Procedure, Appendix "A" of Wage Agreement No. 51, and the Union feels that Mr. D. Krawec, being the senior employee on the spare list, should have been sent as the supplementary employee on the wreck side, and, we also feel that he (Mr. Krawec) should be compensated for all time lost.

The Company denies the claim.

There is no substantial dispute as to the facts. The crew called at 0300 hours on July 19, 1982, was the full regular Auxiliary crew of eleven men. In such a crew, two of the carmen are usually assigned to kitchen work. In this case, however, the company felt that the workload in the kitchen would be reduced, and one of the carmen who would otherwise have worked in the kitchen was assigned to work on the ground. There is no complaint with respect to that. It was found, however, that there were more employees at the site than anticipated, and accordingly an extra man was required in the kitchen. Rather than reassign one of the employees in the crew working on the ground, the company called an extra man to join the crew, to assist in the kitchen.

The extra man who was called, Mr. Lewis, was first out on the spareboard, having the lowest cumulative overtime hours. The grievor was second out on the spareboard, but had greater seniority than Mr. Lewis. It is contended that the grievor was entitled to be called in the circumstances described, by virtue of clause 4 of Appendix "A" to the Memorandum of Understanding With Respect to Auxiliary and Emergency Service. That provision is as follows:

4. In the event that a regular crew member is absent due to sickness, vacation or leave of absence, his name is to be removed from the list and replaced by the first-named employee indicated on the spare list.

It is apparent from a reading of Appendix "A" as a whole (the entire Appendix need not be set out), and it is agreed, that for the purposes of clause 4, "the first named employee indicated on the spare list" means the senior employee, in this case the grievor. From the material before me, it appears that a number of persons on the regular Auxiliary list were there by virtue of the application of clause 4 of Appendix "A" that is, they had been senior on the spareboard and had been assigned to the regular list due to a known vacancy a regular crew member being absent due to illness, vacation or leave of absence.

In the instant case, however, there was no vacancy in the regular crew. The regular crew of eleven persons had been called, and had reported. Had there been a vacancy in the regular crew by reason of sickness, vacation or leave of absence, then it is clear that the grievor would have been entitled to fill such vacancy. Here, there was no vacancy; there was, rather, a requirement for an extra employee for that particular assignment. This was spare work, and for such work employees are called in turn, not in seniority order, from the spare list. This is clear from clause 5 of the Memorandum, which is 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.

It was argued that Mr. Lewis replaced a Mr. Bystrician, a regular member of the Auxiliary crew, who was on vacation. Mr. Bystrician, however, had been replaced by a Mr. Opaski, who is senior to the grievor. That was a proper application of clause 4 of Appendix "A". In the instant case, however, there was no vacancy in the crew itself; there was simply a need for an extra person, to be called in turn from the spareboard. In the instant case, Mr. Lewis, was the person in line to be called.

There has been no violation of the collective agreement, and the grievance must accordingly be dismissed.

DATED AT TORONTO, this 7th day of September, 1984.

(signed) J. F. W. Weatherill

Arbitrator