SHP - 387
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 (CAW - CANADA)
(the "Union")
GRIEVANCE RE CARMEN A. BEGERT AND S. CERMINARA
SOLE ARBITRATOR:
Michel G. Picher
APPEARING FOR THE UNION:
John Fix – General Chairman, Mountain Region
J. R. Moore-Gough – General Chairman, Great Lakes Region
B. DeBaets – Local Chairman, Northern Star Lodge #371
APPEARING FOR THE COMPANY:
D. C.Gignac – System Labour Relations Officer, Montreal
R. Bateman – Labour Relations Officer, Toronto
D. A.Capper – Equipment Officer, Manitoba District, Winnipeg
W. A Darg – Assistant Superintendent, Equipment, Car Terminal, Winnipeg
R.K. Goebel – Assistant Superintendent, Equipment,Car, Edmonton
A hearing in this matter was held in Toronto on November 30, 1993.
AWARD
This arbitration concerns a claim in respect of an alleged violation of the agreement by reason of the Company’s failure to call the grievors to work as cooks on an assignment of the Calder Auxiliary. The Dispute and Joint Statement of Issue, filed at the hearing, read as follows:
DISPUTE:
Claim on behalf of Carmen A.Begert and S, Cerminara of Calder Car Shop, Edmonton, Alberta, concerning not being called for an assignment on the Calder Auxiliary at Clover Bar on May 31st, 1990.
JOINT STATEMENT OF ISSUE:
On May 31st,1990, seven cars on Train 780 derailed on Track VF02 at Clover Bar Yard. The Company called the Calder Auxiliary for this assignmnent and staffed the Auxiliary with two Crane Operators and three Groundmen.
The Union contends that the Company should have called the full complement of the Calder Auxiliary crew to Clover Bar and by not doing so the Company has violated Rule 6.12 and Appendix IX of Agreement 12.35. The Union requests in settlement of this dispute, the grievors be compensated for all lost wages and benefits, including overtime, on account of not being called for the derailment at Clover Bar.
The Company submits that the crew operated within the Edmonton Terminal and that the full complement of the Calder Auxiliary crew was not required. It further denies any violation of Rule 6.12 and Appendix IX of Collective Agreement 12.35 and therefore declined the Union’s request for payment of the claim.
The position of the Company is that the Greater Edmonton Terminal includes Clover Bar, On that basis, it submits that the assignment of the Calder Auxiliary to Clover Bar is an assignment within the Terminal, in respect of which the Company has a discretion as to the size of the crew to be utilized. The Union submits that Clover Bar is outside the Edmonton Terminal, and that the assignment was therefore subject to Appendix 9 of the collective agreement. It relies, in ,substantial part, on the provisions of Rule 6.12 of the collective agreement which it alleges that the Company has violated. It provides, as follows:
6.12 Employees used in wrecking 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 wrecking 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. This exception means an employee may be notified to report during the day before the assignment is scheduled to commence. For the purpose of this Rule 6.12, where home terminals contain more than one yard, employees will be considered to have departed the home terminal when they have departed from the yard, or location or assigned work area within that yard, where they have obtained equipment or tools.
In the arbitrator’s view the provisions of Rule 6.12 are of no substantial assistance in the resolution of the dispute at hand. I must agree with the representative of the Company that the provision is fashioned for the purposes of compensation, stressing as it does, that employees are to be paid from the tine of departure from their home terminal. While Rule 6.12 would identify Calder Yard as a home terminal for the purposes of timekeeping and the payment of wages, it does not purport to deal with the local policies or practices, as contemplated under Appendix IX of the collective agreement, governing the size of crew consists for conventional auxiliary service.
In the case at hand the burden of proof is upon the Union. It must establish, on the balance of probabilities, that Clover Bar is to be considered as outside the Edmonton Terminal for the purposes of assigning crew consists for conventional auxiliary service. When the totality of the evidence is examined, it is equivocal at best. From the standpoint of practice, it appears that on two prior occasions, in November of 1987 and January of 1991, the cook car and cooks were called to auxiliary service at Clover Bar. On both occasions the wrecking crew worked for between 12 and 18 hours. Those assignments are not, in the arbitrator’s view, inconsistent with the exercise of a discretion on the part of the Company to add cooks to the crew in the circumstances disclosed.
In counter-balance to the examples cited by the Union, including one instance which involved a grievance settled in its favour relating to a derailment at Bissell in January of 1985, stands the statement of Assistant Superintendent Equipment, Mr. R.K. Goebel dated November 29, 1991. That statement reflects an assertion that, at least since 1976, the dispatching of the auxiliary in the Greater Edmonton Terminal has involved the discretion of the supervisor with respect to the equipment and manpower to be assigned. According to Mr. Goebel, this specifically included assignments for wrecking work at Clover Bar.
The Union points to factors such as the designation of eligibility territories under the Employment Security and Income Maintenance Agreement and the fact that Scotford Yard is a separate terminal for the purposes of seniority. However, those distinctions do not, with respect, speak to the agreement of the parties for the purposes of defining the geographical limits beyond which full auxiliary crews must be assigned.
On balance the arbitrator is persuaded that the evidence more persuasively supports the position of the Company, to the effect that the greater Edmonton Terminal is the geographic designation for the purposes of assigning the auxiliary for the purposes of Appendix IX of the collective agreement. I can find no compelling evidence to sustain the position of the Union to the effect that the terminal is to be confined to Calder Yard, between the west junction and the east junction, including certain industrial switching areas and spurs. In the result, I am not satisfied that the organization has, on the balance of probabilities, discharged the burden of proof in the case at hand.
For the foregoing reasons the grievance must be dismissed.
DATED at Toronto this 6th day of December, 1993.
(signed) MICHEL G. PICHER
ARBITRATOR