IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 100

(the "Union")

RE: CLEAN-UP OPERATION AT THE GHOST RIVER DERAILMENT SITE, JANUARY 27, 1997

Sole Arbitrator: Michel G. Picher

Appearing For The Union:

Brian McDonagh – National Representative, Vancouver

Dennis Wray – Vice-President, Local 100, Prairie Region

Bryon De Baets – Local Chairman, Symington

George Wood – President, Lodge 551, Local 100

Appearing For The Company:

Scott MacDougald – Manager, Labour Relations, Montreal

Rob Fuller – Human Resources Associate, Winnipeg

Wayne Nohlgren – Senior Technical Officer, Mechanical

Ross Bateman – Human Resources Associate, Toronto

Verne Kalichuk – Business Partner, Winnipeg

Basil Laidlaw – Human Resources Associate, Winnipeg

A hearing in this matter was held in Winnipeg on November 1, 1999.

AWARD

This arbitration concerns the allegation of the Union that the Company failed to assign certain wrecking work to bargaining unit members. The nature of the claim is reflected in the Ex Parte Dispute and Statement of Issue filed by the Union, which reads as follows:

DISPUTE:

The Company’s alleged violation of Rules 41, 53, 62 and the Trades Modernization Agreement signed September 12, 1996 of Wage Agreement 12.35 when it dispatched a Works Equipment Crane to a derailment site to assist in a clean-up operation at Ghost River on January 27, 1997.

EX PARTE STATEMENT OF ISSUE:

On November 26 1996 a derailment occurred at Ghost River. The Winnipeg Auxiliary attended the initial call to the derailment. On January 27, 1997, the Pettibone Crane from Thunder Bay, the Sioux Lookout Wreckdozer and a Work Equipment Crane were called to the site on a clean-up operation.

It is the Union’s position that the Company is in violation of Rules 41, 53, 62 and the Trades Modernization Agreement signed September 12, 1996 of collective agreement 12.35 when it called a Works Equipment Crane rather than the Winnipeg Auxiliary to attend the clean-up operation at Ghost River. The Union requests full redress for ten employees assigned to the Winnipeg Auxiliary including wages, benefits and all lost overtime.

The Company disagrees with the Union’s position.

At the outset of the hearing, prompted by the initial attendance of representatives of another trade union, the parties agreed that this award is to be confined to the facts of the case at hand, and that any conclusion herein is not to be binding for the purpose of any general issue of work ownership or work jurisdiction.

It is common ground that on November 26, 1996 a thirty car derailment occurred at Ghost River, Ontario. This resulted in the dispatching of the Symington auxiliary crane, the Sioux Lookout Wreckdozer and the Thunder Bay mobile crane, all of which are operated by members of the bargaining unit. It appears that employees represented by the Union cleared the main line, placing some nineteen cars and salvage material to the side, to be cleaned up later. The following day, November 27, Engineering forces represented by the Brotherhood of Maintenance of Way Employees (BMWE) and the International Brotherhood of Electrical Workers (IBEW) attended at the derailment cite to repair track, roadbed and signal communications equipment. It appears that between December 9 and 11, the Sioux Lookout Wreckdozer, manned by members of the Union’s bargaining unit, as well as the Wellman crane of the Engineering Department operated by the BMWE, attended at the site. The work on that date principally involved bundling salvage lumber and transferring salvage loads.

The dispute arises in relation to a further clean-up operation which was conducted between January 27 and February 1, 1997. During that time the Mobile crane from Thunder Bay and Wreckdozer from Sioux Lookout were on site, and operated by members of the bargaining unit. The Wellman crane operated by the BMWE forces was also present. The Company submits that the Wellman crane was on site for the purpose of loading salvage freight car lading and scrap, in keeping with the normal duties assigned to employees in the Engineering Department.

The allegation of the Union is that the Engineering Work Equipment Wellman crane was in fact utilized on January 27, 1997 to perform work in relation to scrapping cars, in a manner contrary to rule 41 of the collective agreement which provides as follows:

41. Work of scrapping engines, boilers, tanks and cars or other machinery will be done by crews under the direction of a mechanic. Torch work as now performed by mechanics shall continue to be so performed.

The Union also cites rules 53 and 62 which read, in part, as follows:

53. Carmen’s work shall consist of … car inspectors, safety appliances and train car repairers, on track auxiliary and hy-rail wrecking crane operator.

62. Except as permitted by this Rule, work will be performed by employees in the trade to which such work is now assigned. …

In essence the allegation of the Union is that the Work Equipment crane was utilized to perform wrecking functions on January 27 which are work of the carman’s craft. The thrust of the Union’s position is that the scrapped rail cars which were loaded into gondola cars at the wreck site could not have been lifted solely by the Pettibone crane, and that the inference must be drawn that in fact the Wellman crane was used to assist in that aspect of the scrapping work. This, the Union submits, is work which in fact should have been performed by the Winnipeg auxiliary crane and crew.

The Company questions the Union’s interpretation of the facts. It stresses that the Company did dispatch Mechanical Department employees to the wreck site to perform work normally performed by the carman’s craft. It submits that car mechanics from Thunder Bay and Sioux Lookout were dispatched to perform work traditionally performed by members of the bargaining unit. It maintains that in the circumstances the Winnipeg Symington auxiliary crane and crew were not required. With respect to the Wellman crane, the Company maintains that the work performed by that piece of equipment and the BMWE represented employees associated with it was in relation to the general clean-up of spilled cargo and incidental scrap, work which it maintains has been performed by Engineering Department employees for many years. It also notes that on site was certain other equipment operated by an independent contractor. The contractor was there to load and remove scrap cars which it had purchased in furtherance of a salvage contract. The Company’s representative stresses that any scrapping work performed in that regard was under the direction of a mechanic, in full compliance of rule 41 of the collective agreement. Most centrally to the grievance, the Company asserts that the Wellman crane of the Engineering Department was not utilized in the dismantling or scrapping of cars.

While the parties referred the Arbitrator to a number of prior awards, in my view this is a case which falls to be determined on its own specific facts. Central to my determination of the grievance is the fact that the Union bears the onus of proof. If, as the Union alleges, the evidence disclosed that the Wellman Crane of the Engineering Department was utilized for scrapping work in a substantial way, beyond the incidental scope of the Trade Modernization Agreement of September 12, 1996 and rule 62, the grievance would succeed. In fact, however, the Union has produced no direct evidence to establish that in fact the Engineering Equipment, and in particular the Wellman crane, was in fact utilized in any substantial fashion to either assist the Pettibone crane or in any other way perform work which would otherwise have been properly assigned to the auxiliary crane and crew. Moreover, as appears from the facts related above, there was nothing unusual in the Wellman crane being on site, to the extent that there was work in the nature of cargo salvage and incidental scrap clean-up available to be performed by the Engineering Department employees, in keeping with the traditional assignment of work to their crafts.

On the whole, the Arbitrator cannot conclude, on the balance of probabilities, that the Company violated the collective agreement by failing to assign the Winnipeg auxiliary crane and crew to the Ghost River derailment site on January 27, 1997, or that it improperly assigned bargaining unit work to employees of the Engineering Department.

For all of the foregoing reasons the grievance must be dismissed.

Dated at Toronto, November 22, 1999

_________________________________________

MICHEL G. PICHER

ARBITRATOR