SHP – 504
IN THE MATTER OF
AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY
(the “Company”)
AND
NATIONAL
AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA
(CAW-CANADA), LOCAL 101
(the “Union”
RE GRIEVANCE OF
ELECTRICIAN KOLOPENUK & MACHINIST BURGESS
SOLE ARBITRATOR: Vincent L. Ready
There
appeared on behalf of the Company:
Gilles Pepin
And on
behalf of the Union:
Brian
McDonagh
A hearing in
this matter was held at Vancouver, B.C., September 28, 1999.
AWARD
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.
Agreed
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
Agreed
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.
Agreed
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.
DECISION
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
ARBITRATOR