BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Michel G. Picher

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:

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:

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:

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:

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;

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.