SHP 418:

SHP – 418

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC RAILWAY (MECHANICAL OPERATIONS)

(the "Company")

AND

NATIONAL, AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 101

(The "Union")

GRIEVANCE REGARDING OVERTIME CLAIM OF O. J. MENARD

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

Ken Webb – Manager, Labour Relations

J. J. Worrall – Labour Relations Officer

And on behalf of the Union:

B. R. McDonagh – National Representative

Ron Laughlin – Witness

A hearing in this matter was held in Toronto on August 2, 1996.

AWARD

The Union claims eight hours of overtime rates for the assignment of a labourer to engine attendant work. The dispute, joint statement of fact and joint statement of issue read as follows:

DISPUTE:

Claim for eight (8) hours wages at prevailing overtime rates for Engine Attendant O.J. Menard.

JOINT STATEMENT OF FACT:

On September 27, 1995 the Company assigned Labourer G. Lemay to fill a one-day vacancy created by the absence of Engine Attendant R.O. Regimbal, thereby by-passing senior Engine Attendant O.J. Menard.

JOINT STATEMENT OF ISSUE:

It is the position of the union that:

the absence of Engine Attendant R.O. Regimbal clearly created a vacancy pursuant to Article 6.2 of Collective Agreement No. 60.

the vacancy was in the classification of Engine Attendant and not the classification of Labourer.

in the filling of the vacancy the Company was obligated to utilize the senior qualified Engine Attendant.

by their actions the Company violated Article 1.1, Article 5.I4, Article 6.2 and the letter of understanding outline the procedure to be used when repaging Engine Attendant vacancies, of collective agreement No. 60.

Therefore, eight (8) hours at prevailing overtime rates based on the basic rate for an Engine Attendant be paid to O.J. Menard.

The Company contends that there has been no violation of the Collective Agreement and denies the Union’s allegations and claim.

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The Union’s claim is based on Rule 6.2 of the collective agreement which provides as follows:

Article 6 Filling Vacancies and New Positions

6.2 When vacancies occur or new jobs are created or additional staff is required on a classification for an expected period of less than 90 calendar days, such vacancies or new positions may be claimed by the senior qualified employees from the respective point within the home seniority terminal desiring same, the local committee to be consulted in each case. Employees assigned to fill such positions shall be considered as temporarily assigned and on completion of such regular positions they shall be returned to their former basic regular assignments.

In defence of its actions in calling a junior labourer to perform the work of an Engine Attendant, the Company’s representatives cite Article 1.13.2 of the collective agreement which provides as follows:

1.13 Engine Attendant Helper

1.13.2 When unexpected requirements occur for Engine Attendant Helpers, the Company may assign a qualified available Labourer in such circumstances. Labourers so assigned will, in addition to the rate applicable to the classification of Labourer be compensated as provided for in Article 1.13.5.

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The union relies, in part, on the settlement of a grievance in relation to a similar issue, as reflected in a letter dated September 15, 1994 whereby facility manager G.M. Trites recognized the right of a Labourer to be promoted to Engine Attendant and paid the higher rate when such work is to be so assigned. The letter also recognizes that if there is no qualified labourer working, the engine attendant’s list is to be exhausted before a qualified labourer is so called.

The arbitrator is satisfied that the grievance must succeed. There is nothing on the face of Article 1.13.2 of the collective agreement which would contradict or override the general provisions of article 6.2 which governs the filling of vacant engine attendant positions in circumstances of vacancies of less than 90 days. The fact that either labourers or engine attendant helpers may be qualified as engine attendants is not determinative, for the purposes of establishing the relative rights of employees to be called to a given vacancy. Nor, as the Union’s representative quite correctly argues, can a provision, whether negotiated locally or otherwise for the equalization of overtime among labourers , be resorted to justify the Company’s actions in the case at hand.

In the result, therefore, the grievance is allowed. The arbitrator directs that the Company pay eight hours at prevailing overtime rates, based on the basic rate for an engine attendant, to engine attendant O.J. Menard.

DATED at Toronto this 13th day of August 1996.

(signed) MICHEL G. PICHER

ARBITRATOR