SHP - 388
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA LOCAL 100 (CAW - CANADA)
GRIEVANCE RE CARMEN R. GIESBRECHT, B. RIDDOCH; D. FERENS; R. KORB; J. BORGES; B. COPE; F. URSO and W. NOBLE
SOLE ARBITRATOR:Michel G. Picher
APPEARING FOR THE UNION:
J. R. Moore-Gough – General Chairman, Great Lakes Region
John Fix – General Chairman, Mountain 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.
This arbitration concerns a claim by the Union that the Company violated the collective agreement by failing to call employees in auxiliary service for wrecking work in relation to a derailment. The Union’s ex parte Statement of Dispute and Statement of Issue, filed at the hearing, reads as follows:
Claim on behalf of Carmen R. Giesbrecht, B. Riddoch, D. Ferens, R. Korb, J. Borges, B. Cope, F. Urso, and W. Noble of Symington Car Shop, Winnipeg, Manitoba concerning not being called for an assignment on the Winnipeg Auxiliary at a derailment on the Thicket Subdivision from June 11, 1992, through June 20, 1992.
UNION’S STATEMENT OF ISSUE:
On June 11, 1992, the Winnipeg Auxiliary was sent to a derailment site on the Thicket Subdivision to work along with Canadian National’s Auxiliary from The Pas to clear the derailment. The company staffed the Winnipeg Auxiliary with two individuals, Carman G. Lamoureux one of the Auxiliary Crane Operators and Carman W. Rodger an Auxiliary Crane Operator in training.
The Union contends that the Company should have ordered a full wrecking crew for the Winnipeg Auxiliary and by not doing so the Company has violated the provisions of Appendix IX of Agreement 12.35 concerning crew consists of auxiliaries. The Union requests in settlement of the dispute that the grievors be compensated for all wages and benefits lost, including overtime, as a result of not being called for the derailment on the Thicket Subdivision.
It was the Company’s contention throughout the grievance procedure that they had designated the Winnipeg Auxiliary as a System Spare Crane for the duration of the derailment and in turn had designated the System Spare Crane to be the Winnipeg Auxiliary. The Company further contends that the Union agreed to the staffing for the Winnipeg Auxiliary prior to the assignment.
The material facts are not in dispute. The grievers are carmen at the Symington Car Shop in Winnipeg, Manitoba. Apart from their regular assignments in the Symington Car Shop, they hold secondary assignments protecting the Winnipeg auxiliary crane. The auxiliary crane is a heavy crane which operates on railway trackage, and is principally used to clear derailments. The regular auxiliary crane at Winnipeg has a 250 ton lifting capacity. When it attends at derailment sites it is generally accompanied by up to 17 support cars, including cars which carry tools and equipment and cars dedicated to meals and sleeping accommodation for the wrecking crews.
The material before the arbitrator establishes that the normal complement of equipment at Winnipeg include the 250 ton auxiliary crane, as well as a spare auxiliary crane with a lifting capacity of 160 tons. The unchallenged representation of the Union is that the spare crane is normally used for the purposes of replacing the regular auxiliary crane when it is out of service for repairs. That position is not substantially disputed by the Company, whose brief discloses that system-wide, there are some nine auxiliary wrecking cranes and, that in three of the nine locations, including Symington Yard, there are also spare auxiliary cranes.
The evidence establishes that in June of 1992 a derailment on The Thicket Subdivision caused the Company to dispatch the auxiliary train stationed at The Pas, Manitoba to perform wrecking work. The Company soon decided that further manpower and equipment were needed at the derailment site. On June 9, 1992 Company officers at Symington met with several of the grievors, including Mr. R. Strong, who was in an acting capacity as local chairman for the Union. The employees were informed that the Company had decided to dispatch the 160 ton spare crane to the derailment on the Thicket Subdivision. Two days later, on June 11, 1992, the Company again met with the employees, advising that it had decided to send the Winnipeg auxiliary crane to the derailment site, rather than the spare crane. It then advised the employees that the lighter staffing anticipated for the use of the spare crane would nevertheless be implemented. This meant that the auxiliary crane would be accompanied by auxiliary crane operator G. Lamoureux and auxiliary crane operator in training, W. Rodger. In the result, the full auxiliary crew and support consist would not be sent to the site. It was decided, however, that auxiliary supervisor, Carman C. Murphy, would be sent to assist the auxiliary supervisor from The Pas.
The evidence reveals that one of the employees in attendance at the meeting of June 11, 1992 expressed concerns. Mr. Joe Borges, the carman who held the bid assignment as operator of the conventional auxiliary crane (250 ton) expressed the view that, as he was assigned to that crane, he should be allowed to accompany the equipment to the derailment site and be allowed to work on the assignment. Assistant Superintendent W.A. Darg responded that the Company needed Mr. Borges at Symington, to protect the Symington auxiliary. He explained that during the assignment of the regular auxiliary crane to the Thicket subdivision the Company was classifying the 160 ton spare auxiliary crane as the regular conventional auxiliary crane for Winnipeg, and treating the conventional auxiliary crane (250 ton) as a spare crane being assigned to assist the auxiliary crew from The Pas.
The Union alleges that the Company has violated the collective agreement, and in particular the provisions of Appendix IX. It submits that when the Company dispatched the conventional auxiliary crane to the derailment site, that it was under an obligation to assign a total crew consist of nine carmen to accompany the equipment, pursuant to the terms of a letter of understanding dated March 11, 1982, amending an earlier letter of understanding dated January 30, 1979. The understanding provides, in part, as follows:
In keeping with the "Status Quo" as described in the letters as described above, the following method will be used in calling the crew to avoid any confusion in the future;
1. When the auxiliary is ordered, the first 8 men on the 10 man board will be called. If any of the first 8 men do not respond or are not available, then the next 2 men on the board will be eligible for the call to fill the normal requirement of 8 men. (emphasis added)
By the Letter of Understanding of March 11, 1992, an additional person, in the position of Assistant Cook, was added to the auxiliary crew, making a total of nine persons on the crew.
The Union relies on the provisions of Appendix IX of the collective agreement. It is a letter of understanding dated May 24, 1989 which provides, in part:
The Company will continue to practice the same local policies, as are in effect on this date, with respect to the size of crew consist for conventional auxiliary service. …
Before the arbitrator it is not disputed that at Winnipeg the ordering of the auxiliary for the purposes of Appendix IX involves the calling of nine carmen in keeping with the letters of understanding related above.
In the arbitrator’s view the grievance can be resolved by reference to two prior awards. In SHP 168, an award between these same parties dated July 27, 1992 the arbitrator dealt with a grievance by the Union claiming that the assignment of a spare auxiliary crane based at Edmonton to perform wrecking work at Kinsella, Alberta, required the assignment of the same complement of carmen that would normally accompany the regular conventional auxiliary crane. That position was rejected, in part based on the purpose of the spare crane, as explained in correspondence between the parties. At pp.5-7 of the award, the arbitrator noted the Company’s response to an inquiry from the Union with respect to its intention in the manning of spare auxiliary cranes. The Company’s reply and the arbitrator’s comments are as follows:
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. M|izrahi 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.
It is significant, in my view, that the statement of the Company made in the above-quoted correspondence was made at the national level, in response to an inquiry by the Union’s System General Chairman, Mr. S.A. Horodyski, by the Chief of Motive Power and Car Equipment of the Company, Mr. Mizrahi. As the correspondence discloses, the parties went forward on the express understanding that spare auxiliary cranes were being introduced solely for the purpose of replacing "regularly assigned cranes" which are out-of-service. There was no suggestion that such cranes would be used in substitution of regularly assigned cranes, at the discretion of the Company. On that basis the arbitrator concluded that the Union’s claim for similar crew consist for spare cranes was not justified.
The position argued by the Company in the case at hand, however, would effectively undermine that rationale, which is premised on the understanding that there is a distinction between regularly assigned cranes and spare auxiliary cranes, and that they are not to be interchangeable. As the outcome of SHP 168 discloses, the arbitrator was satisfied that there was nothing in the understanding between the parties which would prevent the Company, however, from making such manpower assignments as it deemed appropriate when a spare auxiliary crane is sent to assist a regularly assigned conventional auxiliary crane in wrecking operations. However, there are very different considerations at play where, as in the instant case, the Company purports to reclassify two cranes at a given location, whereby the crane which was previously classified, in Mr. Mizrahi’s words, as a regularly assigned crane is said to beco|me a spare crane, and the spare crane assumes the status of the regularly assigned crane. The arbitrator can see no basis in the understandings between the parties for that possibility. Indeed, as the material reviewed above indicates, the staffing provisions of Appendix IX of the collective agreement are predicated on a clear understanding between the parties as to the difference between a regularly assigned conventional auxiliary crane and a spare auxiliary crane. That understanding is central to the staffing agreement under the collective agreement and cannot be undone by a unilateral re-definition of terms by the Company.
The arbitrator is satisfied that the case at hand is indistinguishable from the case considered by arbitrator Weatherill in SHP 66, a case involving the same parties in respect of a claim for payment by the Jonquiere wrecking crew. In that case, the Senneterre auxiliary crane and crew were working at a derailment site on the St. Lawrence Region. Partial damage to the Senneterre auxiliary crane caused the Company to dispatch the auxiliary crane from Jonquiere to assist in the operation. The arbitrator concluded that the circumstances required the dispatching of the full consist and crew for the Jonquiere crane, as claimed by the Union At pp.4-5, arbitrator Weatherill commented as follows;
Had the Senneterre crane suffered damage, of a sort to render it of no substantial use in the clearing operation, so that another crane had to be substituted for it, then it would simply be a case of substituting one piece of equipment (with its operator) for another. For example, had the Senneterre crane been removed and the Jonquiere crane put in its place, then it would have become in effect, and for the purpose of that operation, "the Senneterre crane" and while the regular operation of that equipment would, I gather, have been retained, the Senneterre crew would have worked with the crane as groundcrew. In that case, a grievance such as that in the instant case would have failed.
Such is not however, the instant case. Certainly the Senneterre crane was disabled and it was no doubt appropriate to call in another crane. What happened, however, is that both cranes, the Senneterre crane with its operator and the Jonquiere crane with its operator, worked at clearing the wreckage. The work, it is clear, was in fact accomplished more quickly than if one crane (even fully operating) had been involved. The deployment of the two cranes may well have been such that two ground crews were not really necessary, although it may be (there is no evidence as to this), that the work might have been accomplished even more quickly in that case. That consideration, however, is simply not relevant to the determination on which this case turns, namely, whether the Jonquiere crane was used as such to assist in clearing the derailment or whether it was used to replace the Senneterre crane.
As the material discloses, in the case at hand the Syinington Crane was not used to replace the auxilialary crane from The Pas. Rather, it was dispatched, as in the Jonquiere case, to participate fully in the wrecking operation on the Thicket Subdivision. For the reasons related in SHP 66, the arbitrator is satisfied that the Company was under an obligation to assign the full complement of auxiliary staff, as claimed by the Union.
The arbitrator accepts, in part, the suggestion of the Company’s representative that the failure of the Union’s representative at the meeting of June 11, 1992, Mr. Strong, to object clearly to the manner in which the regularly assigned crane was being staffed could have given rise to a degree of injurious reliance by the Company. That, however, was clearly corrected when Local Chairman B. DeBaets communicated the Union’s objection to the Company’s practice on June 16, 1992, to Equipment Officer D. Capper, and thereafter to Superintendent D. Dolphin on June 17, 1992. Plainly the Company was on notice, as of the 16th of June, that the Union objected to the assignment of the regular conventional auxiliary crane to the wrecking work at mileage 189.1 on the Thicket Subdivision, without a full crew consist. The grievance must therefore be allowed, on the basis that the grievors are entitled to compensation as of that date. The arbitrator retains jurisdiction with respect to the issue of the amount of compensation payable, or any other matter with respect to the interpretation and implementation of this award.
DATED at Toronto this 6th day of December, 1993.
(signed) MICHEL G. PICHER