BETWEEN

AND

SOLE ARBITRATOR: M. G. Picher

Brian Stevens – General Chairman

André Bedard – General Chairman

M.J. Restoule – Labour Relations Assistant

R.G. Leach – Chief Mechanical Officer

A hearing in this matter was held at North Bay, Ontario on January 3, 1990.

The issue in this grievance is whether the work should have been assigned to the grievor, from the Coach Shop overtime list. It is common ground that the work fell under the terms of a Memorandum of Understanding between the Company and the Brotherhood, dated October 29, 1975. That document makes specific provision for passenger trains being serviced at the North Bay C.N. Station. It provides, in part, as follows:

It is not disputed that in the past the parties have not strictly enforced the terms of the foregoing provision. While the specific terms of the Memorandum do not contemplate the assignment of Coach Shop Carmen to repairs at the C.N. Station, following the introduction of European coaches on the Northlander in or about 1977 the Company experienced the need to have specialized Coach Shop carmen attend at times to effect repairs to the Northlander at the C.N. Station. This was acceded to by the Union and, for a period of some nine years, Coach Shop carmen were called, on occasion, to the C.N. Station to perform in-service repairs as needed. Roughly over the same period of time the Company employed Car Inspectors, whose normal tasks included watering, inspecting and brake testing the Northlander during its stop at the C.N. Station.

The instant grievance arises because a carman in service as an on-duty Car Inspector was used to perform minor repairs in relation to the replacement of a water pump in a passenger car during the stopover of the Northlander at the C.N. Station. The Brotherhood maintains that according to the terms of the Memorandum, and the practice of the parties, the Company was under an obligation to call the grievor, who was on the Coach Shop overtime list, to perform the work in question. In the Arbitrator's view neither the language of the Memorandum of Understanding nor the practice related to the Arbitrator is sufficient to sustain the position of the Brotherhood in this grievance. The portion of the Memorandum which governs this dispute is entitled "Local Trips". On its face, it appears to address the circumstance in which one or more carmen are required to be dispatched to one of the Local Trip destinations described within the Memorandum, as required. The triggering circumstance, in other words, is that there be a need to dispatch someone to that location. Once that need is established the Memorandum determines which employees have the first right to be sent. It is not clear to the Arbitrator, however, that where there is no need to send carmen, whether from the pool, or from one of the shops because there is already a qualified carman on site, that the Company is nevertheless under an obligation to send one.

In considering the language of the Memorandum it is, in my view, instructive to compare the language in reference to "road trips" which also, by its language, predicates assignments, "When employees are required for road trips... " The overall tone of the document appears to reflect the intention of the parties to reserve to the Company the decision as to whether carmen are required to be sent to a given location. Once it is decided that they are needed, the Memorandum provides the ground rules for which carmen are to be sent, and in which order.

In my view the past practice described above does not, on the whole appear to have been contrary to that general intention. It does not seem disputed that the use of shop carmen as opposed to pool carmen was proposed by the Company and accepted by the Union based on a recognition of the requirement for specialized assistance in given situations. In those cases, however, the Company continued to exercise the decision as to whether it was necessary to dispatch a carman to the local trip destination.

In the instant case the facts disclose that a carman working as a car inspector in the yard area was at the C.N. Station when the Northlander arrived with a disabled car. It is not disputed that he was fully qualified to assist the pipefitter in replacing the water pump, and indeed that the work connected with the repair of the pump was relatively straightforward and uncomplicated. I am aware of no provision of the collective agreement, nor of the Memorandum of Understanding, which would prohibit the Company from assigning to a carman working in car inspection a repair such as was undertaken on the occasion in question. Because a qualified carman was on-site, the need to dispatch a qualified carman to the C.N. Station did not arise. Consequently the provisions of the Memorandum of Understanding did not come into play, and no violation of its provisions is disclosed.

For the foregoing reasons the grievance must be dismissed.

DATED at Toronto this 12th day of January, 1990.