SHP – 199
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
(the "Company")
AND
CANADIAN DIVISION, BROTHERHOOD RAILWAY CARMEN OF US & CANADA
(The "Union")
IN THE MATTER OF THE OVERTIME CLAIMS OF M. N. WOJCIK et al.
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
J. Cameron
S. MacDougald
And on behalf of the Union:
S. A. Horodyski
A hearing in this matter was held at Montreal on May 27, 1986.
AWARD
The Joint Statement of Issue in this matter is as follows:
On 7 January 1984 a derailment occurred at Winter, Saskatchewan. Equipment and employees from Edmonton and Saskatoon participated in clearing the main track on 7 and 8 January. Damaged freight cars remained at the site to be cleared at a later date. On 17 January, equipment and employees from the same locations returned to the derailment site to pick up the damaged freight cars and clear the site.
On 24 January, Carmen Wojcik, Shuchuk, Rosenberger and Pruden submitted a grievance concerning the use of the Saskatoon Mobile Crane and Crew at the derailment site for the clean-up operation. The grievors claimed forty-three and one half hours payment at punitive overtime rates as compensation for the work performed by the Saskatoon Mobile Crane.
The Brotherhood contends that the use of the Saskatoon Mobile Crane and Crew for the clean-up operation at Winter, Saskatchewan is in violation of Rules 23.14 and 23.25 of Agreement 12.1 and past practice, because these employees hold no seniority on the Mountain Region, and have no right to displace a Mountain Region employee off of an emergency assignment. The Brotherhood requests payment of the overtime claims. The Company denies having violated the Agreement and has declined payment of the claims.
The derailment in question occurred on the Mountain Region. There is no doubt that it was proper to call, as the company did, the Calder (Edmonton) Auxiliary and Wreckdozer. The company did not, however, call the Calder Mobile Crane and Crew (the grievors), but instead called the Saskatoon Mobile Crane and Crew, whose headquarters is in the Prairie Region. The Calder crew (the grievors), were, it is said, available for the work, and the issue is whether or not they were entitled to be called in preference to the Saskatoon Crew.
The work performed at the derailment site on January 7 and 8 was performed by the Auxiliary and Wreckdozer crews from Edmonton and by the Auxiliary and Wreckdozer crews from Saskatoon. It does not appear that the Saskatoon Mobile Crane crew were used on that occasion. Had the Calder Mobile Crane been sent at that time, there would have remained no emergency equipment at Edmonton. The derailment site was somewhat closer to Saskatoon than to Edmonton.
The work performed on January 18 and 19 was performed by the Auxiliary and Wreckdoser crews from Edmonton, and by the Mobile Crane crew from Saskatoon. Again, had the Edmonton Mobile Crane crew been sent, there would have remained no emergency capacity at Edmonton. The grievors did in fact work on those days, although it would appear that they did not work at overtime rates.
Rule 23.14 of the collective agreement is as follows:
23.14 The exercising of seniority within a seniority terminal to displace a junior employee shall not be permitted except when positions are abolished, or rate of pay or hours of work or days off are changed.
The affected employee shall have the right to displace the junior employee in the designated work area of his choice with the shift, days off, hours of work and rate of pay of his choice except as may be provided by the Craft Special Rules.
For the purpose of this Rule 23.14 the designated work area shall be as defined in bulletining positions in accordance with Rule 23.11.
Such employee initially affected shall be given, during his regular working hours, as much advance notice as possible but, in any event, not less than twenty-four hours. The affected employee shall make his intentions known within forty-eight hours of notification and subsequent displacement shall be made without undue delay. The Local Committee shall be consulted.
In the instant case, there were no positions abolished, and the grievors were not "displaced" from their own positions. In any event, this case does not involve the exercise of seniority within a terminal nor is there any evidence to establish that the grievors had greater seniority than the members of the Saskatoon crew. The issue is, rather, whether or not it was open to the company to assign the Saskatoon crew to work in the Mountain Region at all, or at least during times when a Mountain Region crew would be available. Rule 23.14 clearly does not apply in the instant case because the grievors’ positions were not abolished, but it should be added that it does not imply any prohibition on the performance, at least in appropriate circumstances, of work in one Region by employees whose headquarters are in another. In the instant case at least, there was no violation of Rule 23.14.
The other provision alleged to have been violated is Rule 23.25, which is as follows:
23.25 When through an unusual development it becomes necessary to transfer work from a seniority terminal, Area (Division) or Region, to another seniority terminal, Area (division) or Region, not more than a sufficient number of employees to perform such work shall, in seniority order be given the opportunity to transfer, carrying their seniority rights with them. The proper officer of the Railway and the General Chairman shall cooperate to determine the number of employees who shall transfer.
Employees who transfer, under the Rule 23.25, shall after 90 calendar days lose their seniority at they seniority terminal they left.
In the instant case, the assignment of the Saskatoon crew to perform wrecking work in the Mountain Region did not, I think, amount to a "transfer" within the meaning of this provision. The employees concerned remained at all times headquartered in the Prairie Region. Rule 23.25, therefore, has no application to the instant case.
It was contended that what the company did was contrary to past practice. It may well be the case that most assignments of wrecking work are made in respect of work performed in the same Region as that in which the employees assigned have their headquarters. It is not the case, however, that there has been a practice not to assign employees to wrecking work outside their own region. The material before me shows that in many instances wrecking and repair crews from the Prairie Region have worked at locations on the Mountain Region. It would appear that there are fewer instances of Mountain Region employees being assigned to such work on the Prairie Region. That might be thought to create some inequality of work opportunity, but that is not a matter dealt with by the collective agreement provisions in issue in this case.
No violation of the collective agreement has been established in the instant case, and the grievance must accordingly be dismissed.
DATED AT TORONTO, this 23rd day of June, 1986.
(signed) J. F. W. Weatherill