SHP - 379

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA, LOCAL 100

(the "Union")

GRIEVANCE RE ALLEGED VIOIATION OF RULE 6.16 OF AGREEMENT 12.35

 

SOLE ARBITRATOR: Michel G. Picher

 

APPEARING FOR THE UNION:

John Fix General Chairman, Mountain Region

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

APPEARING FOR THE COMPANY:

Scott A. MacDougald Manager, Labour Relations

Laurent F. Caron System Labour Relations Officer

Dave P. Edison Assistant Chief,Car

Laurie Doroshenko System Training Officer (Observer)

 

A hearing in this matter was held in Montreal on April 7, 1993.

 

AWARD

This arbitration concerns the payment of carmen working in wrecking service for a continuous period of 24 hours. The dispute and joint statement of issue outline the facts and disagreement between the parties, and read as follows:

DISPUTE:

Alleged violation of Rule 6.16 of Agreement 12.35 claimed by Carmen J. Powell, M. Wojcik and B. Melnyck of Calder Yard, Edmonton, Alberta when they were called with the Calder Mobile Crane in wrecking service in order to assist with the cleanup operation at Pedley, Alberta, on December 8, 1991.

JOINT STATEMENT OF ISSUE:

Messrs. Powell, Wojcik and Melnyck of Calder Yard held regular secondary assignments on the Calder Yard Mobile Crane. On November 30, 1991, the Calder Yard Auxiliary and Wreckdozer assignments were required at Pedley, Alberta, to work at a train derailment. The Calder Yard Mobile Crane was not initially called to the derailment on November 30, 1991.

On December 8, 1991, the Calder Yard Mobile Crane was called to assist in the cleanup operation. The grievors were on duty at 1500 hours at Calder Yard on December 8, 1991, and paid until 2300 hours when they were taken off duty for rest. They resumed work at 0600 hours on December 9, 1991, and worked until 2400 hours that night.

The Union contends that the grievors' pay should have continued throughout the seven hours unpaid rest period as per the past practice on the Mountain region to pay the 24 hour payment to those employees who did not attend the first call to the same wreck site. The Union contends that the Company violated Rule 6.16 as it did not compensate the grievors for the first 24 hours in continuous service, i.e, continuously from 1500 hours December 8 to 1500 hours December 9, 1991.

It is the Company's position that the grievors were not entitled to be paid in continuous service for the first 24 hours as they were working on a second call in wrecking service to the same work site pursuant to Rule 6.11 of Agreement 1235.

The company denies the Union's contentions and has declined its request.

The grievance must turn on the application of Rules 6.16 and 6.11 of the collective agreement which provide as follows:

6.16 Employees engaged in wrecking service, provided they are in such service for a continuous period of twenty- four hours, will be considered as in continuous service for the first twenty-four hour period including meal periods. Employees relieved from duty subsequent to this twenty-four hour period for five hours or more, will not be paid for such time, provided sleeping accommodation is available and provided they are not travelling during such five hours or more. After the first twenty-four hour period, all employees shall be considered to have been assigned hours of 8:00 to 4:00 p.m.

6.11 Wrecking service is defined as a call of any duration during which the Company provides both meal(s) and sleeping accommodation for that employee. Where an employee is reimbursed for such expenses they are considered to have been provided by the Company.

Where a second call (or subsequent calls) to the same work site is to perform clean-up operations, and where that call is in wrecking service, the twenty-four hour continuous service provision of Rule 6.16 shall not apply to that call.

Where one call contains both emergency and wrecking service the entire call shall be considered to be in wrecking service.

The Company takes the position that the grievors fell under the exception of Rule 6.11, in that their call to wrecking service at Pedley was the second time carmen had been called to work at that location. In its view it is immaterial whether the call in question was the first call for the individuals called. It submits that the first call issued to employees occurred on November 30, 1991 when the Calder auxiliary and wreck dozer from Edmonton, and the mobile crane from Jasper were dispatched to the worksite for emergency clearance work. That equipment, and the crews attached to it, were released from the site and returned to Calder Yard on December 3, 1991. Although the main track was restored to normal service on December 5, 1991, further clean-up work remained to be done. It is in relation to that work for which the grievors were called on December 8, 1991.

It is not disputed that the crew called to the derailment location on November 30, 1991 were paid in accordance with the 24-hour guarantee contained in Rule 6.16. The crew called on December 8, however, who are the grievors in the case at hand, were not paid the 24-hour guarantee, and specifically were not paid the seven hours between 23:00 hours on December 8, 1991 and 06:00 hours on December 9, 1991. It is payment for those hours which is the subject of this grievance.

The arbitrator has some difficulty with the position advanced by the Company. Firstly, the language of Rule 6.16 appears, as the Union's representatives argue, to be drafted in contemplation of the rights of individual employees, rather than in contemplation of employees in general. On a plain reading it appears to suggest that upon a call to wrecking service, the first 24 hours are to be paid on a continuous basis. The exception contained in Rule 6.11 relates to a second or subsequent call where the work to be performed is in the nature of clean-up operations. There is nothing in the context of Rule 6.11, or indeed in the language used, to suggest other than the contemplation of an individual employee. In support of that view, the Union points to the use of the phrase "that employee" and "an employee" in the language of Rule 6.1 1. The arbitrator also notes the use of the phrase "that call" in the second paragraph of the Rule.

It is, of course, possible to interpret the language of Rule 6.11 in the manner advanced by the Company. It is arguable, from a purposive point of view, that clean-up operations which can be performed on a scheduled basis, with a lesser degree of urgency, would obviate the need for the 24-hour guarantee of Rule 6.16.

It is a well-established rule of interpretation that where the language of the collective is susceptible of two possible constructions, or where there is ambiguity apparent in a provision, recourse may be had to extrinsic evidence, and in particular to past practice as a means of determining the intention of the parties. In my view, this is such a case. The Company sought to establish that the practice in the application of Rules 6.16 and 6.11 is mixed. In support of that position, it filed statements of supervisors on the Prairie Region, the St. Lawrence Region and the Atlantic Region which would suggest that they apply the interpretation of the Company. No clear picture as to the practice in the Great Lakes Region was put forward. The uncontradicted evidence before me, however, is that since 1970, on the Mountain Region, the practice of the Company has been to interpret and apply the Rules in question in the manner argued by the Union. In other words, for more than 20 years the Rules have been applied in such a way as would allow the payment of the claims made before me.

It is significant, I think, that the Rules have more frequent application on the Mountain Region than they do in other areas of the country. That is because it is more common to separate initial emergency wrecking service, to immediately restore traffic to a given line, and subsequent clean-up operations in single track territory, such as is common on the Mountain Region. In areas of the country where there are greater numbers of lines, it is easier to re-route traffic and to accomplish all wrecking work, both emergency clearance and clean-up, in a single operation. Given that reality, there is reason to doubt the significance of the practice alleged to be more common on the Regions cited by the Company. To put it differently, the evidence before the arbitrator would suggest that the preponderant application of the Rules in question has, in fact, taken place over the years in the Mountain Region. There the consistent practice for more than 20 years has been to apply the Rules in the manner stipulated by the Union. Given that the collective agreement has been renewed several times, without change, over those many years, I find it difficult to accept the suggestion of the Company that its practice simply constituted an error. In my view, in fight of the length, consistency and preponderance of the practice, it is better understood as reflecting the original understanding of the parties.

For the foregoing reasons, the grievance is allowed. The arbitrator, therefore, directs that Carmen J. Powell, M. Wojcik and B. Melnyck be compensated for all wages and benefits lost, including overtime, as a result of the violation of Rule 6.16 in relation to their call of December 8 through December 9, 1991.

DATED at Toronto this 8th day of April, 1993

(signed) MICHEL G. PICHER

ARBITRATOR