SHP – 507

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 C. WEISS

SOLE ARBITRATOR: Vincent L. Ready

There appeared on behalf of the Company:

John Bate

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 in favour of Mr. C. Weiss for a missed overtime call.

On January 29, 1997, the Employer required six employees to work overtime. The Employer called five employees and utilized Mr. Stettner, as the sixth employee, pursuant to a resolve to a previous grievance. In doing so, the Employer was guided by the decision in an arbitration award dated October 3, 1996 concerning Carman D. Turner. This award set out the process to correct situations related to the equalization of overtime under Rule 5.16, now Rule 5.14. In this award, Arbitrator Picher states:

Having regard to the agreement of the parties, expressed through their representatives at the arbitration hearing, the arbitrator finds that the Company did fail to offer overtime hours for April 1, 1994 to the grievor, Carman D. Turner of Toronto. It appears that the failure to do so arose out of a general misunderstanding with respect to the implementation of Rule 5.16 which has been, to some degree, rectified by the subsequent implementation of a spreadsheet system whereby, as a general matter, available overtime is first offered to employees who have recorded the lowest amount of overtime.

Having further regard to the agreement of the parties, with respect to the circumstances of this particular case, the arbitrator directs that the Company offer to Mr. Turner the opportunity to work a total of eight hours at overtime rates, the scheduling of such time to be at the discretion and mutually convenient to him and the Company.

The Union filed a grievance on behalf of Mr. C. Weiss, the grievor, for a missed overtime call. The Union claims the grievor lost an overtime opportunity and wages as a result of not being called by the Employer to work overtime from the regular Road Board when another employee, Mr. Stettner, from the spare Road Board was allowed to work the overtime.

The Union argues that the Employer, in offering Mr. Stettner a next opportunity resolution to a missed overtime opportunity, should not have impacted on the six required employees.

The Union further argues that the grievor was ready and available for the said overtime call and, in failing to call him the Employer violated Rule 5.14. The Union seeks resolution of twelve hours, pay at the prevailing overtime rates for the missed call on January 29, 1997.

The Union also seeks that the Employer ensure proper application of the Picher award.

For its part, the Employer argues that no violation of Rule 5.14 occurred in this instance.

The Employer contends that, based on providing the “next” overtime opportunity to Mr. Stettner, it had no intention of circumventing the provisions of the agreement. The Employer argues that giving Mr. Weiss the opportunity would have resulted in a seven-person crew, which was not necessary to fulfil the work requirements.

The Employer further argues that providing a “next opportunity” to the grievor is not a proper resolve. If this is found to be the proper resolve, then the “next opportunity” provided to Mr. Weiss may well lead to a dispute by someone else who may also determine that they missed an opportunity. The Employer argues that these situations will continue to manifest themselves and a satisfactory conclusion will never be reached.

DECISION

In the circumstances of this case I am persuaded to follow the earlier award between these two parties concerning Mr. Dave Turner. That is, I find that the Employer did fail to offer overtime hours to the grievor on January 29, 1997 and, therefore, I direct the Employer to offer Mr. Weiss the opportunity to work a total of twelve hours at overtime rates, the scheduling of such time to be at his discretion and mutually convenient to him and the Employer.

I remain seized of this matter in the event any difficulties arise out of the implementation or interpretation of this Award.

It is so awarded.

DATED AT VANCOUVER in the Province of British Columbia this 29th day of October, 1999.

(signed) VINCENT L. READY

ARBITRATOR