AD HOC TEMPLATE

AWARD

This arbitration concerns a grievance against the alleged violation of rule 46.10 of the collective agreement, which governs work on statutory holidays. The facts giving rise to the dispute are reflected in the Dispute and Joint Statement of Issue filed at the hearing, which read as follows:

DISPUTE:

The alleged violation of Rule 46.10 of Agreement 12.35 with respect to the Statutory Holiday of November 11th, 1996, Remembrance Day.

JOINT STATEMENT OF ISSUE:

On November 4, 1996, the Company issued a notice from the general office at the Walker Locomotive Reliability Centre advising that all employees would be required to work their Statutory Holiday of November 11th 1996, Remembrance Day, due to the anticipated heavy workloads.

It is the Union’s contention that the Company was in violation of Rule 46.10 of Agreement 12.35 as the work that was performed on November 11th 1996 was not work which was absolutely essential to the continuous operation of the Railway other than those employees assigned to the Trip Centre and Pre-dispatch work areas.

In resolution of the grievance the Union asks that each employee other than those who worked the Trip Centre and Pre-dispatch work areas, be given a day off of their choice and that the Company cease from requiring employees to work on Statutory Holidays when such work is not absolutely essential to the continuous operation of the Railway.

It is the Company’s position that they have complied with Rule 46.10 of Agreement 12.35 as in their view the work performed was absolutely essential to the continuous operation of the Railway.

The Walker Locomotive Reliability Centre (WLRC), located at Edmonton, is a major facility for the performance of scheduled maintenance on the Company’s locomotives. Part of the facility is devoted to performing lighter repairs, prior to placing locomotives immediately into service. Such work, including light maintenance, oil and water service and the changing of brake shoes is performed in the Trip Centre and Pre-Dispatch. The Union takes no issue with the scheduling of employees to work in those two departments, acknowledging that such work is essential to maintaining a sufficient number of locomotives immediately available for service.

The dispute before the Arbitrator centres on the other forms of maintenance performed in the Walker Locomotive Reliability Centre. These include more complex repairs, including various forms of heavy scheduled maintenance. Additionally, some parts of the facility are devoted to the servicing and stockpiling of locomotive components for future use. One such example provided to the Arbitrator is the repair and maintenance of pre-mounted traction motors. It appears that these and other components are worked on on an ongoing basis, so as to maintain an sufficient inventory of components to supply ongoing and future needs.

The dispute before the Arbitrator concerns the interpretation and application of rule 46.10 of the collective agreement which reads as follows:

46.10 Holiday work shall only be required when absolutely essential to the continuous operation of the Railway.

The position of the Company is that it was essential to call all employees of the Centre, save employees on modified duties, to work on November 11, 1996. The Company states that some 250 employees were called to work, 225 of whom were assigned to work on locomotives, in one capacity or another.

According to the Company’s submission, it faced a particular urgency in the fall of 1996. Its representative relates that, on average, twenty-eight to thirty-five locomotives are normally out of service at Edmonton in mid-November. However, in November of 1996 there were some fifty-two locomotives out of service at that location. It stresses that as a result of work performed on November 11th, thirteen locomotives were released to service. Citing the truism that trains cannot move without locomotive power, its representative submits that the failure to service the locomotives released on November 11th would have caused delays to trains, thereby disrupting the continuous operation of the railway. He further adds that if the position of the Union is to be accepted, thirteen additional locomotives would have been out of service, thereby adding to the service workload for the following day. This, it is submitted, would have further strained levels of overtime, which are described as already being at a peak in the Centre through the fall of 1996. The Company’s fundamental position is that repairing locomotives for immediate release was essential, and was the primary function of the employees who were required to work on November 11, 1996. In support of that submission, the Company’s representative notes that of the thirteen locomotives released, eleven were dispatched on trains within twenty-four hours of their release from the WLRC.

The Union takes a different view. It raises no dispute with respect to the employees who worked in the Trip Centre, where some forty-three locomotives were oiled, sanded and watered in anticipation of immediate service, nor does it dispute any work scheduled within the Pre-Dispatch area. Its representative submits, however, that much of the work performed by employees scheduled for November 11, 1996 cannot fairly be characterized as “absolutely essential to the continuous operation of the Railway”. Its representative argues that the ongoing scheduled maintenance of a large number of locomotives, motive power not being prepared for immediate release, cannot be viewed as work of the type contemplated in rule 46.10. Nor, he submits, can the avoidance of overtime be a justification for scheduling employees to work on a statutory holiday. Further, he stresses that work of the kind performed by those employees assigned to work on maintaining the inventory of pre-mounted traction motors is clearly not related to assuring the immediate release of sufficient motive power for the railway’s immediate operating needs, in the sense contemplated by rule 46.10.

The Union’s representative questions the general approach taken to the concept of what is “absolutely essential” by the Company’s representatives. He disputes the suggestion that maintenance work was essential on November 11, to ensure that trains would operate in a timely fashion on the next day. In this regard he draws to the Arbitrator’s attention the fact that the Edmonton facility contains locomotive storage tracks, said to accommodate as many as forty-five units at a time. He argues that, as a general rule, there is a reserve of locomotives held in the storage tracks which can be dispatched into active service, as needed. When questioned further on this aspect of the case by the Arbitrator, neither party was able to obtain documentary or other information with respect to the precise number of locomotive units available on the storage tracks on or about November 11, 1996.

I turn to consider the merits of the dispute. In doing so it is first necessary to make reference to a prior arbitration award which dealt with the interpretation of rule 46.10 in a very similar circumstance. In a decision issued in a grievance between the Company and the then Canadian Council of Railway Shopcraft Employees and Allied Workers, an unreported award of Arbitrator J.F.W. Weatherill dated November 24, 1981, facts and arguments very similar to those arising in the instant case were dealt with. In that grievance the Union challenged, in part, the Company’s mandatory scheduling of certain employees to work on Christmas Day and New Year’s Day in the 1980-81 holiday period. At pp. 5-6 Arbitrator Weatherill rendered the following interpretation of rule 46.10:

It is argued that the requirement that the grievors work on the days in question was improper, in that it was not “absolutely essential to the continuous operation of the Railways”. From the material before me, it is my conclusion that that is correct. While it is certainly a managerial responsibility to determine what work is to be done, and to schedule work, the collective agreement places certain limitations on the exercise of these responsibilities. The scheduling of work, and certainly its assignment to particular individuals, is limited by seniority provisions, for example. Rule 46.10 is a somewhat unusual, and a quite strongly worded restriction on the right to schedule work in certain cases, namely on holidays. The obvious purpose of the provision is to ensure, so far as is possible, that employees be able to enjoy the holidays provided for under the collective agreement. In this connection, it is to be noted that the grievors, pursuant to their schedules, did work on the actual holidays themselves. For the grievors , their holidays had been replaced by “compensating days off” (which were equally “holidays” for the purposes of Rule 46.10).

While the company did indeed have good reason to schedule work on the days in question – and for those for whom they were not holidays no objection could be taken to that – the material before me does not establish that the grievors’ work was “absolutely essential to the continuous operation of the Railways”. That language is clear, and it is far‑reaching. A part or a function is, in general, “essential” to an undertaking, like fuel to an engine, where it will not operate without it. Something is “absolutely essential” where its importance is such that its absence causes a break‑down of the operation. Here, the “operation” is “the continuous operation of the Railways” (rather a large undertaking), and the effect of Rule 46.10 in the instant case was to protect the grievors’ holidays unless it could be shown that their work was absolutely essential to the continuous operation of the Railway. Their work, it appears, was in the shop on what the union describes as “dead work”, that is, work other than on locomotives immediately scheduled to leave. Of course, work such as the grievors’ is of importance, and indeed “essential” to efficient operation in the long term. But I think it cannot properly be said that the grievors’ presence and work on the days in question was absolutely essential to the continuous operation of the Railways.

The Arbitrator considers that the foregoing passage is central to the resolution of this grievance. It is significant to note that the language of rule 46.10 has remained unchanged from the time of Arbitrator Weatherill’s award to the date of the events giving rise to this grievance. Given the repeated renewal of the collective agreement through successive rounds of collective bargaining, without any change in the language of rule 46.10, the parties must be taken to have accepted and adopted as their own the interpretation of rule 46.10 rendered by Arbitrator Weatherill.

As is evident from the passage quoted above, rule 46.10 makes a distinction between work which is important, and arguably necessary to the long-term ongoing operation of the railway, on the one hand, and work is of a sort which is absolutely essential to immediate continuous operations, on the other hand. Work of the first type, which would include planned maintenance and the repair and warehousing of parts and components for future use could not, in the Arbitrator’s view, be fairly characterised as work of the “absolutely essential” kind which justifies recourse to work on a statutory holiday, as in the contemplation of rule 46.10. Work of that kind, characterised in the Weatherill award as “dead work”, which does not involve work on locomotives immediately scheduled to leave, is not deemed to be work which is absolutely essential to continuous operations. By the same token, work performed on locomotives which, as reflected in the evidence, can be shown to be essential to their release into immediate service must be viewed as falling within the contemplation of that which is absolutely essential to continuous operations. In my view the phrase “continuous operation” places the focus on the time period immediately surrounding the holiday, and not to the long term maintenance of operations. If it was otherwise, all productive maintenance work would, arguably, be permitted by the rule. That, however, is not the intention, as clearly enunciated by Arbitrator Weatherill.

How do the foregoing principles apply to the case at hand? Firstly, it must be borne in mind that in this grievance, as in any grievance involving the interpretation of the collective agreement, the burden of proof is upon the Union. While its representative has suggested, understandably, that in the normal course the storage tracks would have contained sufficient locomotive power to service the Company’s immediate needs at the time, no precise evidence of the number of locomotives, if any, then in the storage facility has been put before the Arbitrator. Conversely, the Company’s unchallenged representations establish that some eleven locomotives which were worked on by employees on November 11, 1996 were utilised on trains within twenty-four hours of being released from the WLRC. While the Arbitrator appreciates that the eleven locomotives so dispatched into service could possibly have by-passed an equal number of locomotives on the storage track, there is simply no evidence from which to draw that conclusion on the material before me. In the result I must, on the balance of probabilities, find that the Company did require employees to perform work on not less than eleven locomotives in a situation of urgency which fell within the wording of rule 46.10, to the extent that the maintenance in question was absolutely essential to continuous operations.

Notwithstanding the foregoing conclusion, however, the grievance must be allowed, in substantial part. By the Company’s own admission, employees were compelled to work in a number of non-essential maintenance functions doing “dead work”, including the servicing of pre-mounted traction motors, and the repair of a number of locomotives which were apparently not needed for immediate service and which, had it been necessary, could have been made available for subsequent service by the scheduling of overtime. Employees called to perform that work were, in the Arbitrator’s view, clearly called in violation of the prohibition of rule 46.10 of the collective agreement.

The grievance is therefore allowed, in part. The Arbitrator finds and declares that such employees as were called to work on the eleven locomotives released to service and utilised within twenty-four hours of November 11, 1996 were required to work in conformity with rule 46.10. All other employees, save those who worked in the Trip Centre and Pre-Dispatch, were called in violation of the rule, and are to be accorded an alternate day off, on a date to be agreed between the Company and the Union, in consultation with the individual employee. The Arbitrator notes that the Union has made no request in the nature of compensation or punitive damages, and limits its request to the scheduling of an alternate day off.

The matter is therefore remitted to the parties for the purposes of identifying the number and identity of employees who are entitled to the remedial relief provided by this award. I retain jurisdiction in the event of any dispute between the parties in that regard, or in relation to any other aspect of the interpretation or implementation of this award.

Dated at Toronto, February 20, 1998

(signed) MICHEL G. PICHER

ARBITRATOR