SHP – 505

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”

IN THE MATTER OF THE GRIEVANCE OF K. RACE – WINNIPEG DIESEL SHOP

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 12, and Rule 5.14, and a claim in favour of Mr. K. Race, for not being called for overtime on August 11, 1998.

The Union filed a grievance alleging that Mr. Race was not called for overtime to fill a vacancy, a violation of Rule 5.14, and the Company used a Supervisor to perform the work, a violation of Rule 12, when in fact Mr. Race was available to the assignment. The Union seeks resolution that the employee with the least amount of overtime hours be compensated for loss of earnings under Rule 5.14. The Company denied the grievance and resolution based on the circumstances of the situation, and that no violation of Rule 5.14 and Rule 12 occurred in this instance.

The Company’s position was stated as follows:

On August 11th, 1998, the Company was advised by the regularly assigned 16:00 hour shift Engine Attendant, E. Rohatynsky, that he was booking off early from work, unexpected and unplanned, at 22:30 hours, prior to the completion of his regular assignment at 24:00 hours. No other Engine Attendants were available on site, or could be spared, at the time of the occurrence, to effect the move of the Locomotive.

The Winnipeg Diesel Shop Management develops a scheduled plan for each shift, and this involves setting up the work plan for the on-coming shift. This plan is essential to ensuring the efficient and effective operational needs of the facility and enhances the productivity needs of the work. This plan involves ensuring Locomotive are placed within strategic work areas, prior to the commencement of each shift, thereby minimizing delays in the performance of the work by the employees, on the next shift, and to ensure timely servicing and release of locomotives to work in train service.

The absence, unexpected, of the regularly assigned employee to complete his/her shift and the scheduled plan for the up-coming shift, places the facility at a disadvantage for the progression of work. The facility has two decisions to make, one is to stop the operation until employees are available, or progress the work using available qualified resources on site for the progression of work.

At 23:00 hours, the Facility Management decided to line up and move a Locomotive to a strategic work area, West end of #0 track at old Diesel Shop, for the upcoming shift. With the absence of the regularly assigned Engine Attendant, due to an unexpected book off, a Supervisor assisted the remaining regular Engine Attendant Helper to move the Locomotive. The move, starting at 23:00 hours, took one half an hour and was completed at 23:30 hours in time for the 24:00 hour shift employees. Considering the time frame, it took to make the move, it is only be viewed as incidental in nature.

The calling for overtime, at the time, 22:30 hours, to fill an immediate vacancy to complete a single shop move that took 30 minutes, is unreasonable, given that under the provisions of Rule 5.14 the call-in would result paying an employee a minimum of three hours at overtime rates. The time it would take to solicit and retain the services of a called-in employee could not be accomplished within the 30 minutes it took to make the move.

Based on the circumstances that were presented to the facility, a decision was made to have a qualified Supervisor perform the movement of Locomotive 1203 with the assistance of the on-shift Engine Attendant Helper. Article 12, of the current collective agreement does not exclusively forbid Management or Supervisory personnel, as in this case, from performing this incidental work. Rule 12 states:

Official, managerial or supervisory employees shall not be allowed to perform the work of bargaining unit members when the latter are available. This is not intended to restrict the use of working foremen in accordance with established practice at small points.

There are no provisions within the collective agreement which state that when employees are not available, we must call for the overtime equalization list, prior to complying with the provisions of Rule 12.

It remains the Company’s position, given the circumstance on the date in question, that bargaining unit members were not immediately available at the occurrence, nor could they be made available within a reasonable period of time to perform the work, before the completion of the shift.

By way of the performance of this incidental work, no one was adversely effected, as a result of this decision. Mr. Arbitrator, we ask that given the circumstances of this situation, that we were proper in following the provisions of Rule 12, and we were not bound to fill the absence of the employee by calling in for overtime. emphasis in text)

It is the position of the Union that:

– the vacancy in question was in the classification of Engine Attendant and not the work of an official or excepted position. Engine Attendants were available for a call in on the day in question.

– by their actions the Company violated Rule 12 and Rule 5.14.

The Union therefore asks that the prevailing overtime rates be paid to an Engine Attendant with the least hours on the overtime list.

DECISION

In the circumstances of this case I find that the grievance fails for the following reasons. First, there was no person available at the time to perform the work. Moreover, it would have taken longer to call in an employee to move the train than to have the Supervisor perform the movement of the locomotive. Clearly this was a limited amount of work to be performed at the time. I observe that Rule 12 clearly states:

Official, managerial or supervisory employees shall not be allowed to perform the work of bargaining unit members when the latter are available.

In this case, there was no person available at the time the work had to be performed. In those circumstances, 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