SHP 169

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Canadian National Railway Company

(the "Company")

AND

THE CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS

(the "Union")

AND IN THE MATTER OF GRIEVANCES OF R. LAITE, P. MURPHY AND T. AVERY

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Union:

J.W. Asprey

S. A. Horodyski

 

 

And on behalf of the Company:

J. A. Cameron and others

 

 

A hearing in this matter was held at Montreal on May 10, 1984.

 

 

AWARD

The Dispute and Joint Statement of Issue in this matter are as follows:

DISPUTE:

Claim on behalf of Upholsterers R. Laite, P. Murphy and T. Avery, St. Johnís, Newfoundland for payment under the provisions of Rule 6, Agreement 12.1.

JOINT STATEMENT OF ISSUE:

On Friday, March 18, 1983 the grievors departed St. Johnís, Newfoundland in a rented vehicle enroute to North Sydney, Nova Scotia to install seat covers on seats on the Motor vessel Sir Robert Bond.

The grievors, upon return to St. Johnís, Newfoundland on April 2, 1983, filed a time claim for pay in accordance with Rule 6 Ė Emergency Calls and Wrecking Service Agreement 12.1 as the work was of emergency nature.

The Company paid the grievors in accordance with Rule 7 Ė Temporary Transfers Ė Agreement 12.1 as the work performed was planned, i.e. the seat covers made up prior to leaving St. Johnís, Newfoundland, thus this was not emergency work.

The Union contends that the grievors should be paid under the provisions of Rule 6 Ė Emergency Calls and Wrecking Service in accordance with the past practice.

The Company has declined the Unionís request.

The grievors worked their regular assignment, from 0800 to 1600 hours, on Friday, March 15, at St. Johnís. They then proceeded to North Sydney to carry out the installation work referred to in the Joint Statement. The requirement for this work had been known in advance and the work itself had been planned. There was, however, some pressure to have it completed so that the ship on which the grievors were sent to work could be returned to service. In this respect, it is to be noted that the grievors, following the completion of their regular shift, put in some twenty-seven hours of travel time on that and the following day, and that they worked on the job on each of the thirteen days then following, without interruption, until the work was completed. On two of those days they worked a regular turn, of eight hours, but on each of the remaining days they worked twelve hours.

While the installation of seat covers on the ship in question was not an "emergency" in the sense in which that term is often used as referring to sudden and unexpected disasters, such as a train wreck, a major power loss or a ship in distress, it was nevertheless, as I have noted, a situation of some urgency.

The collective agreement makes various provisions with respect to assignments and hours of work, overtime, travel time and related matters. These occur mostly in articles 1 to 10 of the collective agreement. The grievors appear to have had regular assignments, and it is not suggested that those assignments had been abolished at the material times. They would, it seems, have continued at their regular work had they not been assigned to perform the work required to be done at North Sydney.

It is the companyís contention that the grievors were transferred temporarily, pursuant to article 7.1 of the collective agreement. That article is as follows:

Temporary Transfers

7.1 Employees sent out to temporarily fill vacancies at an outlying point or shop, or sent out on a temporary transfer to an outlying point or shop will be paid continuous time from time ordered to leave home station to time of reporting at point to which sent, straight time rates to be paid for straight time hours at home station and for all other time, whether waiting or travelling. If on arrival at the outlying point there is an opportunity to go to bed for five (5) hours or more before starting work, time will not be allowed for such hours.

In my view, this article is not applicable in the instant case. The grievors were not temporarily filling vacancies, they were, from the material before me, performing the work of their own classification, and while they performed that work at a location distant from their home station, they were not "transferred" (except in the sense that any assignment of work away from home, as for example, "emergency" work, involves a form of transfer, or change of the actual work site), nor could they properly be described as temporarily filling "vacancies". If this had been such a situation, then the seniority provisions set out in article 23, and in particular article 23.12 of the collective agreement would have applied. They were not followed by the company, and in my view did not have to be in the circumstances.

Article 6.1 of the collective agreement, relied upon by the union, is as follows:

Emergency Calls and Wrecking Service

6.1 Employees regularly assigned to work at a shop, engine house, repair track or inspection point, when called for emergency work away from such shop, engine house, repair track or inspection point, will be paid from the time ordered to leave home station until his return for all time worked, in accordance with the practice at home station, and all time waiting or travelling shall be paid for at straight time rates for straight time hours and time and one-half for overtime hours.

While it may be that the need to have the grievorís work performed was not an "emergency" in the ordinary sense above referred to, the grievorsí assignment, being one of some urgency to the company, may properly be considered as coming generally within the class of service described as "emergency calls and wrecking service" in this article. To the extent that the term "emergency" may be considered ambiguous (and in the context of this agreement I consider that it is), the past practice in this respect is quite clear: such assignments in the past (some of them indeed involving what would clearly be emergencies on any definition, but others being analogous to that in the instant case), have been treated as subject to article 6 for purposes of payment. Such a practice, in my view, is consistent with the scheme of the collective agreement, and with this distinction between "emergency and wrecking service" and a "transfer", that the one is typically (as here) an addition to a regular assignment, whereas the other is, in a sense, a substitute for it. That is, there is in the circumstances a rationale for the grievorsí receiving the higher travel-time rate provided for in article 6 than that to which an employee taking up a temporary transfer would be entitled under article 7. Certainly from the employees point of view, there would appear to be no significant distinction between their assignment in the instant case, and one which the employer might call an "emergency".

For all of the foregoing reasons it is my conclusion that in the circumstances the grievors were entitled to payment in accordance with article 6 of the agreement. The grievances are, therefore allowed.

DATED AT TORONTO, this 15th day of May, 1984.

(signed) J. F. W. Weatherill

Arbitrator