IN THE MATTER OF AN ARBITRATION
Ontario Northland Railway
International Association of Machinists and Aerospace Workers
GRIEVANCE RE N.O. GIROUX
SOLE ARBITRATOR: M. G. Picher
There appeared on behalf of the Union:
Roger S. Barker – Regional Chairman, Lodge 413
There appeared on behalf of the Company:
M. J. Restoule – Labour Relations Assistant
R. G. Leach – Chief Mechanical Officer
J. J. Morrison – Superintendent, Car Equipment
R. Hardwick – Superintendent, Motive Power Maintenance
A hearing in this matter was held in North Bay, Ontario on September 4, 1990.
At the hearing the following statement of dispute and joint statement of fact and issue was filed by the parties:
A claim by Machinist N. Giroux for six hours pay at the overtime rate and 4.5 hours pay at the straight time rate.
Joint Statement of Fact & Issue
On October 13, 1988, Machinist T. McKenney was sent from North Bay to Cochrane to assist in the troubleshooting, repair and set-up of a plant steam generator. Mr. Giroux felt that he should have been called and entered a time claim for six hours pay at the overtime rate and 4.5 hours at the straight time rate. The Association progressed the grievance based on a violation of the overtime agreement and Rule 23.12 - senior man in department was not asked if he wanted the call.
The company denied the claim and maintained that Mr. McKenney was properly assigned.
A resolution was not reached through the grievance procedure.
The material establishes beyond controversy that there are two machinists assigned to steam and generator work at North Bay. The grievor, Mr. Giroux, normally performs work on locomotive power, while Machinist T. McKenney is the individual regularly assigned to steam plant work. It is common ground, however, that both individuals are able to perform both types of work, and are so assigned on occasion. The Company's representative explains that Mr. McKenney was, however, being trained to troubleshoot the steam generator plant at Cochrane, and was assigned to work with the previous incumbent in that function, Mr. Orville Brown, who is retired and has been called back to work on a contract basis as required. The Company justified having sent Mr. McKenney to perform the assignment on the basis that it was part of his training and orientation, to facilitate his being able to take over the work previously done by Mr. Brown. It does not deny, however, that the work in question was performed on an overtime basis.
Overtime assignments are governed by the terms of the parties' Memorandum of Understanding dated December 19, 1986. It provides in part, as follows:
MEMORANDUM OF UNDERSTANDING
Machinist and Machinist Helpers Overtime Rules – North Bay
The following rules will apply to all overtime calls performed by Machinist and Machinist Helpers in North Bay.
1) Each of the following designated areas will have its own separate overtime list hereinafter referred to as the main list.
Diesel Shop (including Ramp and Backshop)
Air Brake Shop
Mobile Equipment Maintenance
Steam Generator Repairs
Shop and Equipment Maintenance
2) The main list will comprise of all employees working in that designated area desiring to be on the overtime list. Separate lists for Machinists and Machinist Helpers will be maintained in each area.
4) When overtime is required in one of the designated areas employees will be called in order of rotation. If no employee on the main list wishes to work then the auxiliary list for that area may be called.
The Union further relies on the provisions of article 23.12 of the collective agreement which provides as follows:
23.12 When vacancies occur or new jobs are created or additional staff is required in a classification, in the respective crafts for an expected period of less than 90 calendar days, such vacancies or new positions may be claimed by the senior qualified employees from the respective point within the come seniority terminal desiring same; the local committee to be consulted in each case.
Employees assigned to fill positions under this Rule 23.12 shall be considered as temporarily assigned and on completion of such temporary positions they shall be returned to their former basic regular assignments. For the purpose of this clause annual vacation relief, leave of absence, sickness, injury, etc., shall be positions coming under the scope of this Rule 23. 12.
In the Arbitrator's view rule 23.12 has no application to the instant case. What the facts reveal is plainly a circumstance of overtime work being generated by an unforeseen emergency. That is qualitatively different from the creation of a temporary vacancy or a new job, as contemplated in article 23.12, in which circumstance senior qualified employees are given a preferential right. The work at Cochrane in relation to the steam generator plant was plainly overtime work, to be performed by bargaining unit employees under the terms of the parties' collective agreement and Memorandum of Understanding.
The material establishes that Mr. Giroux was assigned to the steam generator repair shop by bulletin. As noted above, his work generally involved steam generators. Mr. McKenney did not hold a bulletined position. After three years of service in steam generator repairs, however, the parties considered Mr. McKenney to be permanently assigned to that area. It does not appear disputed that the main thrust of his responsibilities was taking over from Mr. Brown the primary responsibility for steam plant repairs. When Mr. Brown retired Mr. McKenney assumed his duties in the repair and maintenance of plant steam generators, including the facility at Cochrane.
The Company acknowledges that the Memorandum of Agreement governing overtime work contemplates the establishment of a list of machinists designated as responsible for steam generator repairs on an overtime basis. It asserts, however, that no list was ever established for the purposes of recording the equitable distribution of overtime within the terms of rule 5.14 of the collective agreement. That is not contradicted by the Union. In other words, while the Memorandum of Agreement and collective agreement would contemplate an equitable distribution of overtime between Mr. Giroux and Mr. McKenney, on the basis of a simple rotation, that mechanism has not been jointly set up by the parties. Rather, as reflected in the correspondence filed before the Arbitrator, the parties appear to have proceeded on a loose understanding that an even distribution of overtime to these two employees would be achieved by the primary assignment of steam plant repairs to Mr. McKenney and the primary assignment of locomotive steam generator repairs and maintenance on an overtime basis to Mr. Giroux. That characterization of the past practice, which does not appear to be disputed by the Union, appears in a letter from Mr. P.A Dyment, President of the Company, to the Union's regional chairman on February 21, 1989.
What the material discloses is that the Company proceeded, for some two years, on the understanding that the distribution of overtime as between Mr. Giroux and Mr. McKenney on the above described basis was acceptable to the Union. The dispatching of Mr. McKenney to Cochrane on October 13, 1988 was in furtherance of that understanding.
In the Arbitrator's view it would be inequitable to permit the Union to revert to the strict language of the Memorandum of Understanding respecting the assignment of overtime in steam generator repairs in these circumstances. As the uncontradicted assertion of the Company discloses, no record of overtime worked by the two employees has ever been maintained, and they have apparently worked overtime primarily in their own respective area of assignment, with the acquiescence of the Union over a substantial period of time. It seems to me that while the Union may be within its rights to require the Company to establish a list and record keeping procedure for the two employees, and to assert a strict assignment of overtime by rotation without regard to their areas of primary expertise, it has not done so to this date in a manner that would justify the allowing of this grievance. In summary, the Union has effectively assented to a pattern of overtime assignment whereby Mr. Giroux has been assigned to locomotive steam generator repairs while Mr. McKenney has been assigned to plant repairs, on an overtime basis. I must accept the position advanced by the Company that should the Union wish to change that arrangement and revert to the strict terms of the Memorandum of Understanding it must communicate its wish to do so to the Company forthwith.
For the foregoing reasons the grievance must be dismissed.
DATED at Toronto this 17th day of September, 1990.
(sgd) M. G. Picher