IN THE MATTER OF AN ARBITRATION
ONTARIO NORTHLAND RAILWAY
- and -
BROTHERHOOD OF RAILWAY CARMEN OF CANADA
GRIEVANCE OF G. ZABARELO
SOLE ARBITRATOR: M. G. Picher
APPEARING FOR THE COMPANY:
Michael Restoule – Labour Relations Assistant
Ron Leach – Chief Mechanical Officer
APPEARING FOR THE Brotherhood:
Brian Stevens – General Chairman
Michael G. Pilon – Vice-Chairman
A hearing in this matter was held in North Bay, Ontario on September 22, 1989.
The Union statement of fact and statement of issue are as follows:
JOINT STATEMENT OF FACT:
On May 19, 1988, the Company reassigned Carman C. Kemp to work 1600 to 2400 hrs. in the Roller Bearing Shop.
JOINT STATEMENT OF ISSUE:
The Brotherhood grieved that carman G. Zabarelo should have been called to work at overtime rates bases on;
1) The application of Rules 1, 2.1 and 4 of Wage Agreement No. 12.
2) and the interpretations, spirit and past practice of the applications of the Memorandum of Understanding Between the Ontario Northland Railway and the Brotherhood of Railway Carmen regarding Auxiliary Service, Road Repair Work, Local Work and Overtime at North Bay dated October 20, 1975 and signed, Lyle Davis for the Union and Ken Moorehead for the Company.
and submitted a claim for 3 hours at overtime rate for work performed by C. Kemp. The company denied the grievance.
The material discloses that on May 19, 1988 the Company required two carmen to clear up a backlog of work in the Roller Bearing Shop. The overtime list for the shop was called and only one carman on that list, Mr. Sylvio Ricci accepted the call. Under the terms of the memorandum of understanding governing the assignment of overtime the Company is first required to call employees on the overtime list for the area where the overtime work is required. Failing the availability of employees from that list, where overtime in the Roller Bearing Shop is concerned, the Company must then call, in order, employees on the overtime lists from the pool, coach shop, air brake, hose mounting, yard and diesel shop.
In the instant case it is common ground that having obtained Mr. Ricci from the Roller Bearing Shop overtime list the Company proceeded to call employees in the pool to secure the second carman required. However, before exhausting the lists the Company changed courses and decided to assign the work of one extra employee in the Roller Bearing Shop to carman C. Kemp who was at work occupying a bulletined position on the Pool Relief Shift. The Pool Relief Shift is governed, in part, by the provisions of rule 4 which include the following:
4.3 Regular relief assignments may on different days have different starting times, duties and work locations, provided such starting times, duties and work locations are those of the employee or employees relieved.
In the Arbitrator’s view the instant grievance must succeed. It is not necessary for the purposes of this grievance to determine whether at the outset the Company was obligated to call for overtime to fill its manpower requirements in the Roller Bearing Shop. The uncontroverted fact, however, is that in the instant case it did so, proceeding first to assign overtime to Mr. Ricci and secondly to explore the availability of employees on the overtime pool list. In the Arbitrator’s view the intention of the memorandum of understanding governing the assignment of overtime is dear. Once it is decided to resort to overtime to cover extra manpower needs the procedure for calling employees outlined in the memorandum must be followed. In this case it was followed, but only in part. As a result, the employees on the coach shop list, including Carman Zabarelo were never canvassed with respect to their availability to take the overtime in question. While it may be that if the coach shop and successive lists had been exhausted without success the Company may have turned to alternative means of filling the position, that situation did not mature in this case.
The Arbitrator’s conclusion in this matter is reinforced by the language of rule 4.3 which, by its very terms, would appear to restrict the assignment of pool relief shift employees to the starting times, duties and work locations of the employees relieved. In this case the assignment given to Mr. Kemp did not fall within that definition of a relief assignment, as the work he was performing was plainly additional to any regular assignment, and was in fact being performed on an overtime basis by Mr. Ricci.
For the foregoing reasons the grievance is allowed. The time claim submitted by Mr. Zabarelo for hours worked by carman Kemp submitted by carman Zabarelo shall be paid forthwith. The Arbitrator retains jurisdiction in the event of any dispute respecting the interpretation or implementation of this Award.
DATED AT TORONTO, this 29th day of September, 1989.
(signed) Michel G. Picher