IN THE MATTER OF AN ARBITRATION
VIA Rail Canada Inc.
National Automobile Aerospace and Agricultural Implement Workers Union of Canada
IN THE MATTER OF THE GRIEVANCE of CARMAN J. KLEBAN
SOLE ARBITRATOR: Jane H. Devlin
There appeared on behalf of the Union:
J. R. Moore-Gough
There appeared on behalf of the Company:
H. A. Pride
A hearing in this matter was held in
In this case, Mr. J. Kleban claims 10 hours' pay at overtime rates as a result of the Corporation's failure to call him for emergency service on March 14, 1990.
Mr. Kleban is employed as a Carman at the Toronto Maintenance Centre ("TMC") which is located in Etobicoke. His seniority date is September 15, 1969. In March of 1990, Mr. Kleban was assigned to the servicing section and was working on the day shift from 0700 to 1500 hours, with Saturdays and Sundays as rest days.
On Thursday, March 14, 1990, Car 3463 was set off at Kingston due to air brake problems. As it was necessary to move the car quickly, the Corporation first attempted to obtain assistance from the nearest CN Rail Yard. As no personnel were available at that location, a decision was made to dispatch a Carman from the TMC to effect the necessary repairs. At approximately 10:00 a.m. on March 14th, the Director of the TMC dispatched Carman M. Brown to perform the work which resulted in 10 hours' overtime. Mr. Brown was regularly assigned to the maintenance section where he was also working on the day shift, with Sundays and Mondays as rest days. Mr. Brown's seniority date is December 3, 1974.
There was no dispute that in dispatching Mr. Brown to repair the air brake system on March 14th, the Corporation did not follow the usual procedure with respect to the assignment of overtime. The calling of overtime at the TMC is done by the Chairman of the Local Protective Board for the Union. When overtime is required, Supervisory personnel provide the Local Chairman with requisitions specifying the number of employees required, the hours involved and the classification in which the work is to be performed. The Local Chairman then consults the overtime list and calls employees by classification and overtime is distributed and equalized on that basis. The work area to which the employee is assigned has no bearing upon eligibility for overtime provided the employee is qualified to perform the work in question.
It was the position of the Union that in dispatching Mr. Brown on March 14th without consulting the Local Chairman and without regard to the overtime list, the Corporation violated Rule 8.1 of Collective Agreement No. 3 which provides as follows:
8.1 Every effort will be made to avoid the necessity for overtime; however, when conditions necessitate, employees will perform authorized overtime work. Records of overtime worked and calls will be maintained and employees will be called with the purpose in view of distributing the opportunity of overtime work equally.
It was the position of the Corporation that Rule 8.1 has no application and that instead, Mr. Brown was properly assigned and compensated in accordance with Rule 9 of the Collective Agreement which provides as follows:
RULE 9 Emergency Service
9.1 In the event a work force is required to perform emergency service away from the home terminal, employees regularly assigned to work at a shop, engine house, repair track or inspection point, will be engaged in such service and paid in accordance with the following rules.
9.2 Employees used in emergency service during their regular work hours will be paid from time of departure from home terminal until released upon return to home terminal. If called during overtime hours, they shall be considered to have been in emergency service from time called, except that an employee may be notified to report for a specific time, in which event he would be accorded one hour preparatory time.
9.3 Employees returning from emergency service who commenced such service prior to the eight (8) hour period immediately preceding the starting time of their regular assignment at their home location, and who because of such service have been unable to secure five (5) hours rest immediately prior to starting time of their regular assignment at their home location, shall be accorded a minimum of five (5) hours rest with no loss of pay before being requested to report on their regular assignment at home location. Such five (5) hours shall commence from the time the employees are released from service at their home locations.
9.4 Employees will be called as soon as possible before departure from home terminal. Upon return to home terminal they will deliver tools at points designated.
9.5 Employees called for emergency service shall be paid at straight time rates for all time working, waiting or travelling during those hours within their regular hours of duty as established at the home terminal, and time and one-half during overtime hours except as otherwise provided in Rule 8.5. Such employees relieved from duty for five (5) hours or more between the hours of 2100 and 0700 hours will not be paid for such time, provided sleeping accommodation is available and provided they are not travelling during such five (5) hours or more.
9.6 Employees called during overtime hours for emergency service who report for work but not used, will be paid the equivalent of four (4) hours at straight time rates.
9.7 Employees called for emergency service who are thereby prevented from working their regular hours at their home terminal, shall be paid for a total of not less than the equivalent of eight (8) hours at straight time rates for each regular work day. This rule shall also apply on rest days with the exception that, if held over on rest days and not required to work they shall be paid a maximum of eight (8) hours at straight time rates for each rest day so held.
9.8 Employees called for emergency service where meals and lodging are not provided shall be allowed actual necessary expenses. Receipts to cover actual necessary expenses are not required, except when such expenses exceed $7.00 per day.
9.9 The methods of payment provided for in this Rule shall apply except as they may be affected by the application of the provisions governing service on general holidays.
The Corporation pointed out that the work in question involved emergency service away from the home terminal and was, therefore, governed by Rule 9. The Corporation further contended that because emergency service was involved, an immediate response was required.
Finally, the Corporation submitted that employees in the maintenance section are normally called for emergency service because positions in the servicing section must be manned on an ongoing basis. When an employee in the servicing section is absent, an employee from another section is usually reassigned to servicing.
While the Union acknowledged that employees in the maintenance section may generally be assigned to emergency service during straight time hours, it disputed that such a practice exists where overtime is involved. The Union further contended that in view of the distance between Etobicoke and Kingston, it was apparent that overtime would be required to perform the necessary repairs on March 14th. As a result, it was contended that the Corporation was obliged to assign the work in accordance with Rule 8.1.
In this case, the work in question involved emergency service away from the home terminal which is dealt with in Rule 9 of the Collective Agreement. Rule 9 provides that employees regularly assigned to work at a shop, engine house, repair track or inspection point will be engaged in such service and paid in accordance with the Rule. The Rule, however, does not establish entitlement to emergency service based upon the section to which an employee is assigned and, therefore, cannot support the assignment of an employee from maintenance rather than from the servicing section. Moreover, Rule 9 does not purport to override the requirements of Rule 8.1 which deals with overtime. While the Corporation suggested that employees in the maintenance section are generally assigned to emergency service, it does not appear that such a practice exists where overtime is involved. (Overtime is distributed and equalized on the basis of classification.) Further, it was not suggested that an employee from servicing could not be spared during straight time hours but only that if an assignment were made, it would be necessary to reassign an employee from maintenance or heavy repair to the servicing section.
Mr. Brown was dispatched to Kingston at approximately 10:00 a.m. on March 14th and given the distance between Kingston and Etobicoke, it was clear that overtime would be required. Had it become apparent only after Mr. Brown had been dispatched that overtime would be necessary, different considerations might have applied. This, however, was not the case. Moreover, while the Corporation contended that an immediate response was necessary, there was nothing to indicate that any particular delay would have occurred had the Corporation consulted the Local Chairman and followed the usual procedure with respect to the assignment of overtime. Both Mr. Brown and Mr. Kleban were working at the TMC on the day shift and there was no dispute that they were both qualified to perform the work. In these circumstances, and given that the assignment necessarily involved overtime, I find that the Corporation was required to make the assignment in accordance with Rule 8.1 of the Collective Agreement.
In the event that I were to find that the overtime provisions applied, the Corporation acknowledged that Mr. Kleban was the proper claimant. The issue, therefore, is whether monetary relief or a remedy in kind is appropriate. In this regard, the Union pointed out that the Corporation keeps records of overtime worked and calls made and at the end of the calendar year, credits are erased and employees revert to zero. Although the Corporation could not confirm at the hearing that overtime records are maintained on the basis of the calendar year, the Corporation acknowledged that the period in which opportunities were equalized, relative to the assignment on March 14, 1990, has passed. In these circumstances, it has been held that monetary relief is appropriate as a remedy in kind has the potential to detrimentally affect the rights of other employees: see Re 3M Canada Inc. and Energy and Chemical Workers' Union, Local 294 (1984) 15 L.A.C.(3d) 316 (M.G. Picher). For this reason, the grievance is allowed and I direct the Corporation to compensate Mr. Kleban for the loss of the overtime opportunity on March 14, 1990. I shall remain seized for purposes of implementation of this award.
DATED AT TORONTO, this 24th day of July, 1991.
(sgd) Jane H. Devlin