AND

SOLE ARBITRATOR: J. F. W. Weatherill

A. Rosner

L. Biniaris

S. MacDougald

A hearing in this matter was held in Montreal on December 14, 1988.

In this grievance, the grievor claims 226 hours at punitive rates on account of not being called to perform work from August 8 to 22, 1987.

The Joint Statement of Issue is as follows:

The derailment was a serious one, and occurred at a remote location. Three locomotives and twelve cars went off the track. The locomotives were tipped on their sides, and were partially submerged in water, and/or were buried under lumber from the cars. Although the derailment occurred on August 1, the auxiliary outfit was not called until August 8, and did not arrive at the site until August 9, as there were mud slides and washouts on either side of the derailment.

Each locomotive required very substantial repair and reoutfitting. These were carried out by Machinists and other appropriate tradesmen at Main Shops in Winnipeg and Montreal. The repairs to the locomotives were completed at various times between March and June, 1988.

There would appear to have been no loss of regular work for Machinists at Edmonton. The grievor, in particular, worked at his regular job during much of the time for which the present claim is made. Nevertheless, if the company was under an obligation to call a Machinist to work at the derailment site, then it is clear that the grievor did lose certain work which would have been paid for at punitive rates. The issue is whether or not the company was under an obligation to include Machinists in the auxiliary force, in the circumstances of this case.

Whether or not Machinists were required to be called depends on what the work was which was required to be done, and which was in fact done. The work which was performed on the engines at the derailment site included cutting bolts, pinions and other equipment, and checking the oil in journal boxes, suspension bearings and gear cases. It is the union's contention that such work is exclusively that of Machinists.

"Machinists' Work" is described in Rule 53.2 of the collective agreement as follows:

Rule 53.4 (a), which is also material as indicating work which Machinists as well as their Helpers may Perform, is as follows:

It was argued that the work in question (which was performed, it appears, by Carmen), included the following tasks which are referred to in Rule 53.2 and Rule 53.4: "dismantling engines", "assisting in dismantling locomotives and engines", "engine inspecting", "removing equipment" and "locomotive oiling", and was work generally recognized as that of Machinists or Machinist Helpers. There is obviously a sense in which those terms, taken in isolation, might be taken as referring to the tasks in question in this case. In my view, however, to do so would actually do violence to the language of the collective agreement when the words referred to are read in context, as they should be. For example, the engines were, to a certain degree, "taken apart" at the derailment site (both by the force of the derailment and by the subsequent work of the auxiliary crew), and were thus "dismantled". That would, however, be an inapt use of the term in the context of the present claim, just as it would be inapt to say, for such a purpose, that the engine was "dismantled" by a bomb! The activity (dismantling), to which Rule 53 refers is the skilled trades activity of Machinists, and the material before me does not establish that that sort of dismantling was performed at the derailment site.

By the same token, any "engine inspecting" or "locomotive oiling" was not the sort of inspecting or oiling associated with the exercise of the Machinist trade. The equipment in question could not be and was not used as locomotive power: Machinists could not have effected "repairs" to the equipment at the derailment site, and the Carmen who performed the work in question did not repair or did not try to repair that equipment.

A similar issue arose – on rather different facts – in Shopcraft Case No. 217 (January 12, 1987), where the following is said at p. 4 of the award:

That analysis applies, with appropriate changes, to the present case. Just as in the case of the interpretation or application of Rule 53 itself, however, or indeed as in the case of any other analysis or reasoning, the words, expressions or turns of phrase used should not be taken out of context, or taken as having implications which were not necessary to the purpose for which they were used. What was said in Case No. [SHP] 217 was in some ways rather broadly put, and I would agree with the union's objections to the use of those statements for purposes for which they were not intended. There are two particular respects in which I think that what was said in Case [SHP] 217 should be read with care.

The first of these is that it should not be thought that Machinists' work is confined to work performed in shops. No doubt most of their work is performed in shops, and certain tasks can only be performed where the requisite machines are located, but there is much Machinist work which can be performed outside of a shop, including being performed at wreck sites, as indeed the collective agreement contemplates. The fact that, as in the instant case, the work was performed at a remote location far from any shop is only of significance as part of the general background of the case. It could very well be the case – and it has been the case – that Machinists have been required to perform the work of their trade at remote sites, and that they have been called to such sites to perform it. Indeed, they must be so called in cases to which Rule 53.7 applies That Rule was not one on which the instant grievance was based, but it was referred to in argument It requires the calling of a Machinist (and helper if required), to accompany the wrecker "in cases of wrecks where engines are disabled". In Shopcraft Case No. 84 (November 25, 1980), – where it was not alleged that Machinists were in fact required to perform the work – the following was said at pp. 8 and 9 of the award:

The Second respect in which what was said in Case No. 217 (and the same would apply in respect of Case No. 84) may be said to have been too broad is in its reference to the work of Machinists as being "repair" work, performed to make engines "operative" or "fit for service". Of course, while making engines operative may, in a general way, be the goal of most Machinists' work in the railways, Machinists' work is certainly not limited to work which is for that purpose. Dismantling an engine, for example, need not have the ultimate goal of reassembling it and making it operative, to have it be proper (and, with respect to most tasks at least, exclusive) Machinists' work. The question is whether the tasks required to be done are those of the Machinists' trade. Again, it is to be remembered that "dismantling" is used in Rule 53.2 as a craft term.

It appears in the following context in Rule 53.2 itself, as set out above:

The material before me does not establish that there was skilled craft work of that sort being required to be done at the derailment site in question here.

While I agree, then, with certain of the union's cautions as to the reading of the award in Case No. 217, it remains a question in each case of whether or not Machinists' work is in fact being required to be done. Where it is, then Machinists must be called to do it. In the instant case, it has not been shown that the work in question was indeed Machinists' work – or at least, it has not been shown that it was exclusively Machinists' work. That Machinists might do such work, or that they have been called in many instances (and practices may have varied from one region to another), does not establish exclusive entitlement to performance of what were (in this particular case), non-craft tasks.

With respect to this last point, I note the union assertion that "there is only one way to cut a pinion", and its argument that only Machinists were entitled to perform that task. Without making any finding on this matter of expertise (which was not itself in issue), I think that what must be said in the instant case is that while there may be only one proper way to cut a pinion, and while the determination of whether or not a pinion need be cut is, in the normal course, a matter of expertise (that is, a matter for a Machinist), it did not appear to matter to the company whether pinions that were cut in the wreck-clearing process in this case were cut properly, or really needed to be cut.

Thus, while in many cases Machinists may be required at wreck sites, the material before me in the instant case does not establish that they were required, or that work to which they have an exclusive entitlement was performed at the site in question here. Accordingly, it is my conclusion that there was no violation of Rule 53, and hence no occasion for the application of Rules 6 and 8, which would apply in respect of payment if Machinists had been required to be called.

For all of the foregoing reasons, the grievance must be dismissed.

DATED AT TORONTO, this 30th day of December, 1988.

Arbitrator