SHP – 504
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA), LOCAL 101
RE GRIEVANCE OF ELECTRICIAN KOLOPENUK & MACHINIST BURGESS
SOLE ARBITRATOR: Vincent L. Ready
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Vancouver, B.C., September 28, 1999.
The issue giving rise to this dispute concerns an alleged violation of Rule 6, whereby the Company “by-passed” calling the night shift employees for repair services at Broadview, Manitoba, as per the Local Road Board Agreement.
On May 22, 1997, during night shift, management at Moose Jaw was advised that Locomotive 6212 was experiencing motor problems and had, as a result of those difficulties, been set-off at Broadview, Manitoba. A decision was then made to wait and send the day shift Road Board personnel to deal with the problem.
The Union filed a grievance alleging that Mr. B. Kolopenuk, an Electrician and Mr. H. Burgess, a Machinist, were not called out for the Road Work on May 22, 1997 at 02:30 a.m., while on shift, to perform repairs to the locomotive at Broadview in violation of Rule 6 and the Local Road Board Agreement. The Company denied the grievance and maintained that no violation of Rule 6 existed.
Rule 6 of the Collective Agreement outlines the provisions necessary for Supplementary Service, including Road Work. The Local Road Board Agreement supports Rule 6 and reads as follows:
ROAD BOARD LOCO DEPARTMENT AS AGREED BY LODGE 204 AND MANAGEMENT
1) EACH SHIFT WILL HAVE ITS OWN BOARD
i.e. 23k – one board 7k – one board 15k – one board
one board each for elect & mach. per shift
non bid position all who wants to be on the board will be
*) Status Quo.
2) TURNS HOW DECIDED
Road board works on a Rotation basis on the shift except if on days off will not be called but stay at the top of board.
a trip will be one outside yard limit and beyond one hour yard limit is pasqua to the east and 32nd to the west
a trip made or refused said person will go to the bottom of the rotation of his board
3) If Road trip is called within (1) hour of the end of shift, the worker from the next shift will be called.
Must be at the discretion on Manager on duty
4) 2 men on the truck at all times while on the Road. (Safety Concern)
Safety will be the first consideration each trip will be judge as to requirement
5) No penalty for not being Qualified.
Qualification will be decided by the tradesman at the top of the list.
6) Machinist / Electrician to be called when mishap involves units and the calling of Machinist / Electrician for work on Off Track Cat.
At discretion of Facility Manager
7) Hours worked on Road work to on the Overtime Board.
8) Refusal penalty if overtime is incurred
As per Bulletin
9) When the road board on the shift is exhausted the OT board will be used calling LOW MAN.
It is the Union ,s position that by waiting to send the day shift Road Board personnel to Broadview, the Employer violated the agreement reached between the parties on this matter, namely the Local Road Board Agreement. The Union contends that the Employer is obligated under that agreement, when a call-out is required, to assign those on shift to Road Work, except when the call is within one hour at the end of the shift.
The Union argues that a violation of the local agreement is a violation of Rule 6 and, therefore, asks that the grievors be paid eight hours at prevailing overtime rates, plus three hours at double time to compensate them for the lost earnings as a result of this incident.
The Employer, on the other hand, argues that it has not violated either the local agreement or Rule 6.
It is the Employer ,s position that the language, “If the Road trip is called (“ contained in item 5 of the Road Board agreement means that the assignment of the work is a decision afforded Facility Management. At the hearing, Employer ,s Counsel presented the following argument:
What is important to this whole dispute is the reference to the words, “If a Road Trip is called 8. The Company retains the sole right to decide if a call-out is required. The Facility initiates the call based on three critical factors. Is the work an emergency? Is the work as such that it requires immediate attention? Are the resources available on duty, and would the call-out of employees to an off-site location be disruptive to the operational needs of the facility? All of these questions must be reviewed and determined prior to any call-out taking place, on a shift by shift basis, due to the fact available resources become more critical to the operational needs of the facility, by way of a reduced staff on the off shifts. Nothing within the terms of the collective agreement prevents Management from making this decision, based on sound business practices.
In essence, the Employer ,s contention is that there is nothing in the Collective Agreement that specifically requires management to immediately call out the Road Crew when a Locomotive experiences a defect. That is a decision that rests with the Facility Management.
Consequently, the Employer does not agree that there was a violation of Rule 6 and asks that the grievance be dismissed.
Having considered the submissions and the provisions of the agreement, in particular Rule 6 and the Local Road Board Agreement, I find that the Employer is compelled to assign Road Work to the crew on shift, except if it is done during the last hour of the shift.
I agree with the Employer, however, that there is no specific language to remove the right of management to make the decision as to when such work will be done. In fact, on its face, the local agreement clearly spells out that management has discretion when it comes to putting the agreement into effect.
In my view, the Local Road Board Agreement only governs who will perform the work when it is called during the course of the shift prior to the last hour.
In the result, the grievance is dismissed.
It is so awarded.
DATED AT VANCOUVER in the Province of British Columbia this 29th day of October, 1999.
(signed) VINCENT L. READY