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The facts are not in dispute. On July 20, 1987 an auxiliary crew was needed as a result of a derailment at Tomiko, Ontario. Having exhausted the auxiliary call list, as well as the spare auxiliary call list, the Company found itself still in need of an additional crew member. Auxiliary Foreman R. Lalonde then called employees from the carman’s pool list in seniority order, as a result of which Carman S. Maisano was assigned to the auxiliary work. The grievor, Carman L. Chassie, who is senior to Mr. Maisano, claims that he was wrongfully run-around, and should be entitled to the hours worked by Mr. Maisano, in consequence of which he claims 28 hours pay.

It is common ground that Mr. Chassie is among those employees who have chosen not to have their names put on the auxiliary or spare auxiliary crew call lists.

In other words, he has indicated, as a general matter, that he does not wish to be called for auxiliary duty.

The parties signed a joint Letter of Understanding dated March 11, 1987 with respect to the interpretation of the overtime agreement application. It provides as follows:

In the instant case the auxiliary foreman was responsible for administering the auxiliary calls. He formed the view that since all employees had the opportunity, by order of seniority, to place their name on the auxiliary and spare auxiliary crew call lists, senior employees who declined to place their name on those lists should be expected to refuse to respond to a call even if asked. Consequently, when the auxiliary and spare auxiliary lists were exhausted, and he was required to go to the general pool list, the auxiliary foreman began making his calls with the most senior employee who had not been given the opportunity to accept or decline a position on the auxiliary or spare auxiliary lists. He then proceeded down the list in order of seniority. In effect, therefore, he excluded from his calls the more senior pool of carmen who had already declined to place their names on the auxiliary or spare auxiliary lists, reasoning that it should be inferred from their refusal to go on those lists that they would decline a call in any case.

The Company submits that the assumption applied by the auxiliary foreman was reasonable and consistent with the intention of the Letter of Understanding of March 11, 1987. The Company’s representative also suggests that the grievance involves a degree of opportunism on the part of Mr. Chassie who, it is argued, seeks payment for the hours worked by Mr. Maisano when, in all likelihood, he never would have accepted the work himself if called.

In the Arbitrator’s view the grievance cannot be disposed on the basis of speculation as to what Mr. Chassie would or would not have done in the hypothetical. The issue to be resolved is whether he was entitled, in accordance with the language of the Letter of Understanding, to be called in advance of Mr. Maisano when the auxiliary and spare auxiliary lists had been exhausted, in accordance with the terms of the Letter of Understanding of March 11, 1987.

In the Arbitrator’s view the position advanced by the Union is more compelling. It is important in the circumstances of this grievance, to appreciate the purpose of the Letter of Understanding of March 11, 1987. It is common ground that it was motivated, in part, by difficulties encountered by the Company when auxiliary list employees did not in fact respond to calls when needed. In the result the auxiliary call system established by the parties makes it clear to employees whose names appear on the auxiliary or spare auxiliary lists that they stand to lose the advantage of being on the list if they do not respond to a call, and that the refusal of a call must be for a bona fide reason. In the result, therefore, what an employee gains by letting his or her name stand on the auxiliary or spare auxiliary list is a guarantee of being among the first group of employees called in response to an emergency, which constitutes an overtime opportunity of some importance.

There is, however, nothing on the face of the Letter of Understanding to indicate that an employee who declines to place his or her name on the auxiliary list that such an employee becomes disentitled to any call whatsoever in the event of overtime work relating to an emergency. In the Arbitrator’s view it is one thing for an employee to refuse to be placed in a situation where emergency overtime cannot be refused, and quite another to remain available to be called on an ad hoc basis, without any obligation to respond in every case. The interpretation which the Company applied to the Letter of Understanding in the circumstances in this case results, in the Arbitrator’s view, in an "all or nothing" approach to the order of calling. The wording of the parties’ Letter of Understanding, however, does not expressly, or in my view implicitly, reflect any such limitation on the right of employees in the pool to be called in order of seniority once the auxiliary and spare auxiliary lists have been exhausted. It would not be inconsistent with the wording of the Letter of Understanding, nor with the normal expectation of employees, if pool employees who declined to commit themselves to the auxiliary or spare auxiliary lists were nevertheless willing to accept the occasional call, depending on their own personal circumstances at the time. There is nothing in the wording of the document to suggest that pool employees who have declined to go on the auxiliary or spare auxiliary lists are entirely disentitled from any call once those lists have been exhausted. On the contrary, the plain language of the letter simply states that pool employees are to be called in seniority once the auxiliary and spare auxiliary lists have been exhausted. While this may cause some inconvenience to the Company to the extent that pool carmen may refuse to respond positively to the call, that is their right as it appears from the language of the Letter of Understanding of March 11, 1987. Had the parties intended a more restrictive system to govern the calling of pool employees they could have so provided in the language of the Letter of Understanding. Because they did not, the interpretation advanced by the Union must be preferred to that of the Company.

For the foregoing reasons the grievance is allowed. The Arbitrator finds and declares that the Company violated the terms of the Letter of Understanding of March 11, 1987 and the overtime calling provisions of the collective agreement by declining to call Grievor L. Chassie and assigning auxiliary work to a junior employee in the pool. The Company is not entitled to begin calling for additional carmen for auxiliary service in the way described above. The Arbitrator therefore orders that the Company pay forthwith to Carman L. Chassie the time claim submitted by him in respect of the work which is the subject of this grievance. The Arbitrator retains jurisdiction in the event of any dispute between the parties regarding the interpretation or implementation of this Award, or the amount of compensation payable.

DATED AT TORONTO, this 12th day of June, 1989.

Arbitrator