SHP 260

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

BROTHERHOOD RAILWAY CARMEN OF CANADA

(The "Brotherhood")

AND IN THE MATTER OF THE GRIEVANCE OF G. GUGLIANO

SOLE ARBITRATOR: J. F. W. Weatherill

 

APPEARING FOR THE UNION:

J. Moore-Gough

APPEARING FOR THE COMPANY:

S. A. MacDougald

 

A hearing in this matter was held in Montreal on February 23, 1989.

 

AWARD

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

DISPUTE:

Claim for overtime payment for Carman G. Gugliano of MacMillan Yard, Toronto, Ontario, when not called to accompany the No. 1 Auxiliary as a Groundman from January 21, 1987 to January 28, 1987.

JOINT STATEMENT OF ISSUE:

On January 21, 1987, the MacMillan Yard No. 1 Auxiliary was required for a derailment. The Company called Carman Woodhouse as Crane Operator for the No. 1 Auxiliary.

The Brotherhood alleges that Company violated established manning practices and Appendix VIII of Agreement 12.35, when it failed to use Carman Nichols, the Lead Hand Groundman assigned to the No. 1 Auxiliary to work as Auxiliary Crane Operator. This would have created a vacancy as a Groundman for Carman G. Gugliano, who held a position as Spare Groundman.

The Brotherhood requests that Carman G. Gugliano be compensated for all overtime hours earned by Carman Woodhouse while working as the Auxiliary Crane Operator between January 21, 1987 and January 28, 1987.

The Company has declined the Brotherhoodís claim.

The material portion of Appendix VIII to collective agreement 12.35 is clause 1 thereof, which is as follows:

1. At locations where Carmen are required to protect emergency services such as conventional auxiliaries, hy-rail cranes, wreck dozers, and road repair trucks, they shall be given an opportunity, by bulletin, to bid on the position they wish to protect. For each such service there shall be a regular list and a spare list. Where practicable, Carmen will be permitted to hold a position in only one such service at any one time.

There were two classifications required for the work to be done by the auxiliary wrecking outfit, Crane Operator, and Groundman (including Lead Hand Groundman). Employees had bid on and been given positions on both a regular and a spare basis in each of chose classifications. At the material time, no one held a position in more than one such service, so that there was compliance with the last sentence of clause 1.

In the classification of Crane Operator, two persons were required for the auxiliary in question. There were two regular Operators holding the position and one spare. The senior Regular Operator, Mr. White, was called. That was correct. The next regular Operator in line, Mr. Lusk, was not called, because he was on leave of absence. That also was correct. The spare Crane Operator, Mr. Belle, was not called because he had not yet been trained for the position. Whether or not that was correct is the subject of another grievance. If that grievance succeeds, then the result will be that Mr. Belle ought to have been called, and there is no doubt that there would then have been no occasion to look elsewhere for another Crane Operator, and the present grievance must fail.

In fact, of course, Mr. Belle was not called, and the company then called Mr. Woodhouse, who was qualified, but who did not then hold either a regular or a spare secondary assignment as a Crane Operator. It is the unionís position that the company ought instead to have called Mr. Nichols to be Crane Operator. Had Mr. Nichols been called, he would not have filled his assigned position as Lead Hand Groundman, someone else would in turn have filled that job, and there would then have been an opening for the grievor as a Groundman.

Mr. Nichols who, it should be said, was also qualified to have been a Crane Operator, did not hold that classification as a secondary assignment, either on a regular or spare basis. He did, however, hold a regular secondary assignment as Lead Hand Groundman. It is in that capacity that he was called, and there can be no doubt that he was entitled so to be called. The company called the other persons holding regular secondary positions as Groundmen, and filled its needs, quite properly, in that way. It did not need to call the grievor, who would have been entitled to be called if a spare Groundman were required.

Thus, the grievorís claim in this case depends on Mr. Nicholsí entitlement to be called as a Spare Crane Operator. Appendix VIII, however, creates no such entitlement. It does give employees entitlement to be called in seniority order for positions which they hold by bulletin, the calls going first to those holding regular secondary assignments and then to those holding spare secondary assignments. Mr. Nichols got precisely the call he was entitled to, and had no claim, under Appendix VIII, on any other call. Mr. Woodhouse, likewise, appears to have had no enforceable claim to a call as Spare Crane Operator. That does not in itself mean that it was improper to have called Mr. Woodhouse (there being no evidence of anyone having a preferential claim under Appendix VIII), nor does it somehow create a claim for Mr. Nichols (as advanced by the grievor).

While the matter is to be determined having regard to the provisions of the collective agreement itself (which simply do not support the grievance), even if past practice were to be considered as affecting the matter, it has not been shown that there was any clearly established practice which would require the company not to call Mr. Woodhouse for such work, and to require it to call Mr. Nichols for some other assignment than the one to which he was entitled.

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

DATED AT TORONTO, this 13th day of March, 1989.

(signed) J. F. W. Weatherill

Arbitrator