SHP 336

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

National Automobile Aerospace and Agricultural Implement Workers Union of Canada

GRIEVANCE RE KEVIN COLLINS

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

J. R. Moore-Gough General Chairman

Tom Wood System General Chairman

Kevin Collins Grievor

 

 

There appeared on behalf of the Company:

D. A. Watson System Labour Relations Officer, Montreal

L. Caron System Labour Relations Officer, Montreal

W. A. Armstrong Equipment Officer, Macmillan Yard, Toronto

P. Nicholson Coordinator Special Projects, Montreal

 

A hearing in this matter was held in Montreal on January 18, 1991.

 

AWARD

The parties are agreed that the Company violated the collective agreement by denying to the grievor promotion to a position of Wreckdozer Operator on June 22, 1988. The sole issue is whether the grievor has lost any earnings by reason that violation and, if so, what the quantum of compensation should be. The dispute and joint statement of issue filed at the hearing are as follows:

Dispute:

Claim on behalf of Carman K. Collins of Macmillan Yard, Toronto, Ontario.

Joint Statement of Issue

By letter dated June 22, 1988, Mr. Collins was advised that he was disqualified from the position of Wreckdozer Operator due to the accumulation of demerits to his driver's license. During the grievance procedure the Company agreed that Carman Collins should not have been disqualified.

In the view of the Company however, although Mr. Collins should not have been prevented from qualifying for the Wreckdozer Operator position, he did not suffer any monetary losses.

The Union contends that Carman Collins is entitled to compensation for all overtime opportunities lost as a result of being denied the position of Wreckdozer Operator.

The Company has declined the Union's request.

***

The grievor has been employed as a carman at the Company's Macmillan Yard facility in Toronto since March 25, 1976. On April 19, 1988 while he held a regular assignment as a carman on the repair track the grievor successfully applied and obtained the position of Wreckdozer Operator pursuant to bulletin C-08-88. The position involved a regular assignment, operating a piece of equipment utilized at derailment sites for lifting and moving cars and locomotives. The Wreckdozer Operator positions are emergency assignments, supplementary to regular assignments on the repair track and generally involve a certain amount of overtime assignments. Pursuant to a letter of Mr. H. Emerson, Superintendent Car of the Northern Ontario District, dated June 22, 1988, the grievor was informed that he was disqualified from the position of Wreckdozer Operator because he had six demerit points registered against his class A Ontario Drivers Licence. This, in the Superintendent's view, disqualified the grievor pursuant to a Company policy, in light of the fact that he would be required to perform highway driving as part of his assignment.

Initially the Company maintained its position. Later, however, at step 4 of the grievance procedure in July of 1990, the Company acknowledged that the grievor should not have been disqualified from the position of Wreckdozer Operator.

The record establishes that between June 22, 1988 and December 15, 1988 the grievor worked as a carman, and did not apply for any other emergency assignment, notwithstanding that three such assignments for which he was a senior and qualified were bulletined as follows:

1. June 23, 1988 Spare groundman Hi-Rail.

2. June 27, 1988 Spare Hi-Rail Crane Operator.

3. August 24, 1988 Spare groundman no. 1 auxiliary.

On December 15th, 1988 the grievor did obtain an assignment as spare Hi-Rail Crane Operator. It appears that that position later matured into a regular Hi-Rail Operator's assignment, and that in any event after December 15, 1988 the grievor earned overtime at or greater than the level that would have been available to him as the Wreckdozer Operator. The issue, therefore, is whether he lost the opportunity to earn wages between the time of his removal from the Wreckdozer Operator's position on June 22, 1988 and his assumption of the position of Hi-Rail Crane Operator.

The Union points to one assignment in particular which brought overtime earnings to the Wreckdozer Operator in October of 1988. It notes that Mr. J. Deavitt, who occupied the position of Wreckdozer Operator was called to an assignment in Picton, Ontario on Tuesday, October 25 until Sunday, October 30, 1988, whereby he earned $ 1,587.70 in overtime. While the Union accepts that there were no further calls for overtime for the Wreckdozer Operator after December of 1988, and thereby limits its request for compensation to the period prior to that time, it submits that the grievor should have been allowed to continue in the position, and that if he had earnings such as those which were paid to Mr. Deavitt would have been available to him with some allowance for scheduling and his own days off.

The Company submits that the grievor has failed to mitigate his damages in the circumstances disclosed. It argues, in part, that Mr. Collins was under an obligation to take reasonable steps to obtain such other assignments as a means of reducing his losses and that his failure to do so prior to assuming the position of Hi-Rail Crane Operator in December of 1988 effectively forecloses any claim on his part for compensation. Specifically, the Company stresses that Mr. Collins, as the senior qualified employee, could have claimed any of the three posted positions listed above, in consequence of which he would have earned substantial overtime hours that would have more than compensated for the overtime hours which he lost by virtue of his removal from the Wreckdozer Operator's position.

In the Arbitrator's view the position advanced by the Corporation is more compelling. It is well established that a party claiming to be aggrieved by the violation of a collective agreement must act reasonably to mitigate its losses. (See Brown and Beatty in Canadian Labour Arbitration (2nd Ed. at p.62)). It is plainly inequitable for an employee to claim the denial of an opportunity to make certain earnings by the deprivation of overtime, and to thereafter refuse to seek other overtime opportunities while pursuing a claim for losses based on the overtime which he or she would have worked but for the violation of the collective agreement. The evidence before me establishes beyond controversy that each of the bulletined positions available to the grievor subsequent to June 22, 1988 would have brought to him overtime hours in excess of those which he claims to have lost by virtue of his removal from the Wreckdozer Operator's position.

The Union advances several arguments to suggest that the grievor should not have been expected to pursue those work opportunities. Firstly, it submits that the second bulletin, for the position of Spare Hi-Rail Crane Operator, would not, in any event, have been available to the grievor in accordance with the purported "policy" which would have foreclosed him from operating vehicles because of his driver's licence demerits. That is not altogether clear to the Arbitrator. It is common ground that the grievor had already previously been trained and upgraded as a Hi-Rail Crane Operator, and it appears that the erroneous "policy" was limited to the circumstance of an employee who needed to be fully trained and upgraded. This, moreover, was borne out by the fact that the grievor was himself successful in bidding on a Spare Hi-Rail Crane Operator's position in December of 1988. Moreover, even if one accepts the validity of the Union's argument in this regard, there remained two positions of Spare Groundman available to Mr. Collins, with substantial overtime opportunities attached to them.

This brings the Arbitrator to the second position advanced by the Union. Essentially it submits that Mr. Collins should not have been required to take another job opportunity which was less attractive to him or less desirable than the one which he was denied. The Union's representative argues that the position of Spare Hi-Rail Crane Operator, particularly if taken during the summer period, would have required the grievor to work more overtime hours than he wished, as the hi-rail crane is utilized more frequently, and on smaller jobs, than the Wreckdozer, which is generally assigned less frequently, and for longer periods, in situations of major disrailments. Secondly, he submits that the work of Spare Groundman is less attractive than that available to a Wreckdozer Operator, and that the grievor should not be expected to seek that type of work in mitigation.

As a matter of principle the Arbitrator accepts that the duty to mitigate does not require an employee to accept any and all positions that become available when he or she is grieving the loss of a work opportunity. By the same token, however, the employee cannot turn his or her back on a number of assignments which are normally and regularly performed by employees with his or her qualifications and background, and who are part of the same classification. In the instant case it does not appear disputed that the work of Spare Groundman and Spare Hi-Rail Crane Operator are tasks normally performed by carmen like the grievor. In my view, when the possibility of overtime assignments in those positions became available to him, while he was free to decline to pursue them, his decision to do so must bear on the issue of whether he has truly lost any opportunity for extra earnings. In my view he has not. Additionally, I can see little merit in the Union's suggestion that a different standard should apply to the grievor in the pursuit of overtime opportunities in the summer as opposed to any other time of the year. As an employee holding the position of Wreckdozer Operator the grievor could not know with any certainty whether he would have a heavy burden of overtime in any season, as the nature of the work was in response to derailments and emergencies. Therefore the fact that he could have successfully bid on a position of Spare Hi-Rail Crane Operator on June 27, 1988 must be taken as evidence that the opportunity for comparable overtime was fully available to him, and that he voluntarily chose not to pursue it.

In coming to that conclusion I am inclined to reject the suggestion of the Union's representative that Mr. Collins was proceeding under an impression that he would not be allowed to obtain a Spare Hi-Rail Crane Operator's position because of the same policy which removed him from the Wreckdozer Operator's position on June 21, 1988. There is no objective evidence to sustain any such belief on the part of the grievor. To the contrary, it does not appear disputed that he did successfully apply for a Spare Hi-Rail Crane Operator's position in December of 1988, well in advance of the Company's reversal of position on the issue of its policy.

On the whole, therefore, the Arbitrator must conclude that the Company's violation of the collective agreement did not, on the evidence before me, deprive the grievor of a fair opportunity to earn overtime in the period between June and December 1988. Having failed to pursue equal or better opportunities, the grievor cannot now claim any loss of earnings.

For the foregoing reasons the grievance must be dismissed.

DATED at Toronto this 25th day of January, 1991.

(sgd) M. G. Picher

Arbitrator