SHP 368

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

National Automobile Aerospace and Agricultural Implement Workers Union of Canada

Grievance re Carmen F. MacKinnon, J. Boake, F. Perry and W. Derzak of Calder Yard Car Shop, Edmonton Alberta

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

J. R. Moore-Gough General Chairman, Great Lakes Region, Local 100

Tom Wood System President, Local 100, General Chairman

 

 

There appeared on behalf of the Company:

D. A. Watson System Labour Relations Officer, Montreal

S. A. MacDougald Manager, Labour Relations, Montreal

W. Cosman System Manager, Car Maintenance, Montreal

R. K. Goebel Assistant Superintendent, Car Shop, Edmonton, Alberta

D. Laurendeau System Labour Relations Officer, Montreal

K. Hall Labour Relations Officer, Edmonton, Alberta

A hearing in this matter was held in Montreal on July 13, 1992.

 

AWARD

This grievance concerns a claim by the Union that the Company failed to assign the appropriate number of spare groundmen to work in conventional auxiliary crane service at the site of a derailment at Kinsella, Alberta. The facts giving rise to the grievance, and the issues to be resolved, are reflected in the Dispute and Joint Statement of Issue filed at the hearing, which are as follows:

Dispute:

Claim on behalf of Carmen F. MacKinnon, J. Boake, F. Perry and W. Derzak of Calder Car Shop, Edmonton, Alberta.

Joint Statement of Issue:

On October 4, 1988, the Calder Yard Car Department's auxiliary was dispatched to the site of a derailment at Kinsella, Alberta. On October 8, 1988 a spare conventional wrecking crane was dispatched to the derailment site at Kinsella, Alberta where it assisted in the rerailing of locomotives. On October 8, 1988, Carman G. Laroque was assigned to travel with the spare conventional wrecking crane to Kinsella. Carman G. Laroque held the secondary assignment of Spare Groundman Auxiliary.

The crew consist size is normally seven Carmen for the Calder Yard auxiliary outfit, for this derailment it was nine Carmen assigned as follows:

1 Write up man

2 Crane Operator

3 Groundmen

4 Cooks

9 Carmen in total on the auxiliary outfit

The assignment of Carmen sent to the derailment site at Kinsella was as follows:

9 to the Calder Auxiliary including one write up man

3 to the Wreckdozer

1 to the Spare Conventional Wrecking Crane

The Union contends that the spare conventional auxiliary crane was in conventional auxiliary service and requires its own crew with a crew consist of five Carmen (excluding the write up man).

The Union further contends the Company violated Appendix IX of Agreement 1235 because the spare conventional auxiliary crane should be considered to be in conventional auxiliary service. Therefore, there also should have been a separate crew of five Carmen with it at the work site at Kinsella.

Carmen Boake, Perry and MacKinnon held the following secondary assignments:

Carman J. Boake - Spare Groundman Auxiliary

Carman F. Perry - Spare Groundman Auxiliary

Carman F. MacKinnon - Spare Groundman Auxiliary

Carman W. Derzak was regularly assigned as Carman in the Calder Car Shop and did not hold a secondary assignment.

The Union requests the four grievors be compensated 73 hours each at the Carman overtime rate of pay for the call on October 8 11, 1988.

The Company disagrees with the Union's contentions and with the eligibility of one grievor who does not hold a secondary assignment in wrecking service to be the proper claimant, and has declined the Union's request for payment of the claim.

***

The material before the Arbitrator establishes that an auxiliary crane is a high-capacity crane which travels exclusively by rail and which is utilized to lift cars and locomotives at the site of derailments. Prior to August of 1976 Calder Yard had two conventional auxiliary cranes, each with its own wrecking service crew. In August of 1976 one of the auxiliary outfits was taken out of service, as the Company had acquired a mobile crane, which travels either by road or by rail, for use at Calder. It is common ground that the mobile crane performs similar work to that done by auxiliary crane. At the time of the change the auxiliary positions were abolished, and by bulletin #72, dated August 9, 1976, some 15 positions were posted, all of them relating to service on the single auxiliary crew remaining in place at Calder Yard.

The auxiliary crane at Calder Yard, in Edmonton, is part of a wrecking outfit which consists of a total of 17 cars, in addition to the crane, which can be dispatched to wreck sites as needed. According to locally negotiated policy, the minimum complement of staff assigned to a conventional auxiliary outfit is to include seven carmen. As reflected in the joint statement, nine carmen were assigned to the auxiliary outfit dispatched at Kinsella.

The thrust of the Union's position is that the Company was required to assign five carmen to work in conjunction with the spare conventional wrecking crane which was also sent to Kinsella. The spare crane is one of four such cranes which the Company has located at various points across Canada. It is not disputed that the spare crane at Calder is utilized in Western Canada, and has occasionally been used for training purposes. The issue raised by the grievance is whether the spare crane is to be considered a conventional auxiliary crane for the purposes of the collective agreement, so that the Company is under an obligation to assign the number of carmen provided for in the collective agreement for service with an auxiliary crane, to work in conjunction with the spare crane.

The Union's claim is based on the application of Appendix IX of Agreement 12.35 with reads as follows:

This will confirm our understanding in connection with your addendum demand No. 4 respecting wrecking service which was contained in your notice of 1 October 1977.

The Company will continue to practice the same local policies, as are in effect on this date, with respect to the size of crew consists for conventional auxiliary service. At points where such auxiliaries are located, local management will meet with the representatives of the Carmen's organization during the closed period of the contract. The sole purpose of these meetings will be to confirm the policies referred to above presently in effect at such locations and not to negotiate new or revised rules. This understanding will remain in effect subject to cancellation upon sixty days' notice from either party to the other.

The letter of understanding dated March 1, 1976 on this subject is hereby cancelled. In addition the addendum demand mentioned above is considered settled insofar as CN is concerned.

Part of the Union's case is based upon an exchange of correspondence which it submits confirming its position that spare cranes are to be given the same manpower as conventional auxiliary cranes. It appears that in September of 1984 the issue was raised by the Union's System General Chairman, Mr. S.A. Horodyski in the following letter addressed to the Chief of Motive Power and Car Equipment of the Company:

Dear Mr. Mizrahi:

There currently exists a number of spare conventional (on track) auxiliary cranes at certain locations over the system.

We are unsure of any specific designation for these cranes, i.e. system or regional spare cranes.

Our concern develops when these cranes are put into service in a derailment or emergency situation with no clear m 9 procedure.

It is our view when a spare crane is utilized at any location, either working alone or in conjunction with another wrecking outfit, the manning of the spare outfit should be based on the principles set out in Appendix XIII (page 182-183) of Agreement #12.1 and the local practice that existed at that location, whether there remains an assigned conventional crane or not, should be considered.

Your response to this matter will be appreciated.

Mr. Mizrahi replied to Mr. Horodyski in the following terms on September 26, 1984:

Dear Mr. Horodyski:

Subject: Auxiliary Cranes

This will acknowledge your letter dated September 5, 1984, requesting information on spare Auxiliary Cranes.

We currently have four (4) spare Auxiliary Cranes located systemwide. The purpose of these cranes is to replace regularly assigned cranes when they require shopping for repairs or are out of service for any other reason. These units are controlled by System H.Q., and are moved across the system as the situation dictates.

Inasmuch as it is not intended to supplement the presently assigned cranes, these spare cranes should not disturb current manning practises.

The Union submits that the response provided by Mr. Mizrahi supports its view that the parties are in agreement that spare cranes ought to be treated as conventional auxiliary trains for the purposes of manpower assignments. The Arbitrator has some difficulty accepting that interpretation of the letter of September 26, 1984. The second paragraph of Mr. Mizrahi's letter seems to indicate that when one of the spare auxiliary cranes is utilized to replace regularly assigned cranes which are out of service there is to be no departure from the normal manning practices. The letter does not directly address, however, the circumstance which arose at Kinsella, where a spare crane is used as a supplement, working in conjunction with a conventional auxiliary crane.

That circumstance is arguably addressed, however, indirectly, in the final paragraph of the letter of September 26, 1984. If anything, however, the words used by Mr. Mizrahi would suggest that the use of spare cranes as supplements to conventional cranes working on a wreck site would give rise to different manning practices. The Arbitrator cannot, on a careful review of the correspondence, glean from the Company's response any agreement or understanding that when a spare crane is assigned to supplement a conventional auxiliary crane, it is to be manned in the same manner as a crane which is part of an auxiliary outfit By the same token, it would appear clear that where the spare crane is used to replace a conventional auxiliary crane which is out of service (which was not the case at Kinsella) it is to be manned in the same manner as provided under the local agreement respecting the conventional auxiliary crane.

In the Arbitrator's view the facts of the instant case are to be distinguished from those reviewed by Arbitrator Weatherill in an award involving the same parties dated March 5, 1980. In that case wrecking work was being performed by the Senneterre auxiliary crane, when the Company ordered the Jonquière auxiliary crane to the site to assist in the wrecking work. The Arbitrator found that in that circumstance the collective agreement contemplated that the entire crew for the Jonquière crane was to be dispatched, in accordance with the established practice. That case, however, involved the assignment of employees to work in conjunction with an established conventional auxiliary crane. in that circumstance the Arbitrator concluded, quite properly in my opinion, that the established conventions with respect to the manning of such a crane must be respected. That case did not, however, involve the use of a spare crane, as occurred in the circumstances at hand.

As appears from the material reviewed, since the mid 1970s the parties have been careful in establishing local practice with respect to the manning of cranes permanently assigned to conventional auxiliary service. In the Arbitrator's view, as reflected in Appendix IX of Agreement 12.35, the phrase "conventional auxiliary service" refers to the use of conventional auxiliary cranes which are a normal component of an established wrecking outfit. There is nothing in the language of Appendix IX, however, nor, it appears, in the practice of the parties, which would support the position of the Union that a spare regional auxiliary crane is to treated as a crane in established conventional auxiliary service when it is utilized other than as a replacement for such equipment.

In my view any uncertainty with respect to the competing positions of the parties is resolved by the fact that since 1976 there has been only a single bulletined auxiliary service crew established at Calder Yard, notwithstanding the presence of the spare crane, over a substantial number of years. Without commenting on whether it would have been open to the Union to grieve the failure of the Company to establish a permanent second auxiliary assignment at Calder Yard, the fact that it did not do so indicates that the parties did not view each and every assignment of the spare crane to wrecking work as constituting auxiliary service for the purposes of Appendix IX of the collective agreement.

For the foregoing reasons the Arbitrator cannot find that there has been any violation of the collective agreement. As the spare crane was not substituting in conventional auxiliary service while working at Kinsella, the Company was under no obligation to assign a crew consist for conventional auxiliary service to it.

For the foregoing reasons the grievance must be dismissed.

DATED at Toronto this 27th day of July, 1992.

(sgd) M. G. Picher

Arbitrator