SHP – 506

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. BOYAK – 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 5.14, whereby the Company used Labourers to perform Engine Attendant’s work on September 10 and 12, 1998.

The Union filed a grievance alleging the Company set up a Labourer, R. Armstrong, on August 10, 1998, and Labourer, R. Dattero, on August 12, 1998, to fill one day vacancies of Engine Attendants without calling all employees on the Engine Attendant overtime list. The grievance alleges this is a violation of Rule 5.14, which reads as follows:

EQUALIZING OVERTIME

5.14 When it becomes necessary for employees in a classification to work overtime they shall not be laid off during regular working hours to equalize the time.

At points where there are sufficient numbers, employees shall not (except as provided for in Rule 5.12) work two (2) consecutive rest days (holidays to be considered as rest days).

All overtime shall be distributed equally. (see Appendix 1).

Records shall be kept by the Company of all overtime worked and by whom it was worked. Such records of overtime worked shall be updated weekly, or more often if practicable, and shall be provided to the duly authorized Local Representative of the Union upon request.

All hours worked on a general holiday, overtime hours worked in supplementary service (Rule 6), and general shop/terminal overtime shall be included in the equalization of overtime.

Overtime in Supplementary Service shall first be available to employees awarded positions in such service or to employees on Supplementary Service spare boards as governed by the appropriate rules.

At the end of each calendar year, overtime hours worked as recorded on the equalization lists and supplementary overtime board(s) shall be rationalized in the following manner:

(a) the employee with the lowest hours shall have his/her hours reduced to zero

(b) all other employees shall have their total recorded hours reduced by an amount equal to the amount reduced in (a) above.

Employee(s) on an overtime equalization board refusing an overtime call from that respective board shall have their total hours adjusted to reflect the number of hours worked by the employee actually accepting the call.

Seniority shall govern in the establishment of new overtime boards and in the initial calling of overtime from such newly established boards.

It is the position of the Union in this case that both vacancies were in the classification of Engine Attendant and not in the classification of Labourer. The Union asserts that, by filling the vacancies with Labourers, the Employer is in violation of Rule 5.14.

As a remedy to this grievance, the Union seeks compensation of eight hours, pay at the prevailing overtime rate to be paid to the Engine Attendant with the least hours on the overtime list.

It is the position of the Employer that, on August 10th, it made every effort to call in Engine Attendants to fill a vacancy on the 08:00 to 16:00 shift. Unfortunately, after exhausting the list, the Employer could only fill the position from 08:00 to 12:00. Coincidental to this attempted call, another regular Engine Attendant called in sick. It is the Employer’s contention that since “reasonable efforts” had already been made to the fill in on the same shift, it would be unreasonable and unnecessary to make a second call.

Similarly, with respect to the August 12th situation, the position of the Employer is that it had already made the necessary effort under Rule 5.14 to call-in to fill a vacancy and, when that employee did not show up for work, the Employer had no choice but to fill the vacancy with a Labourer.

Consequently, it is the Employer’s position that there has not been any violation of Rule 5.14 and that the grievance should be dismissed.

DECISION

In the circumstances of this case I find that there was no violation of the Collective Agreement because the facts reveal that the Company did make, in my view, every reasonable attempt to call in the appropriate Engine Attendants pursuant Rule 5.14.

In the August 10th situation, clearly there was no one available from the list. In the August 12th situation, the call-in had been made, however, due to circumstances out of the control of the Employer, the employee did not attend at work. Having made “reasonable efforts” to call-in from the Engine Attendant seniority list, the Employer was not required to re-call all employees again.

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