SHP – 513

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”

GRIEVANCE RE ENGINE ATTENDANT’S WORK

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 23.12 and Rule 5.14, and a claim for compensation to an Engine Attendant with the lowest overtime hours, for failure to call for overtime.

On March 1, 1997, the regularly scheduled Engine Attendant advised that he would be late for work. The Employer used a Machinist to make shop locomotive moves instead of calling-in available Engine Attendants on overtime.

The relevant provisions of the Collective Agreement read as follows:

23.12 When vacancies occur or new jobs are created or additional staff is required in a classification, in the craft for an expected period of less than 90 calendar days, such vacancies or new positions may be claimed by the senior qualified employees form the respective point within the home seniority terminal desiring same; the local Union Representative to be consulted in each case.

Employees assigned to fill positions under this Rule 23.12 shall be considered as temporarily assigned and on completion of such temporary positions they shall be returned to their former basic regular assignments. For the purpose of this Clause, annual vacation relief, leave of absence, sickness, injury, etc., shall be positions coming under the scope of this Rule 23.12. (See Appendix 4)

For Road and Terminal Electricians, temporary vacancies of less than thirty days in positions covered by this Agreement shall be filled by the senior qualified employee desiring same.

5.14 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 that the vacancy in question was in the classification of Engine Attendant and not in the classification of Machinist and, therefore, the Employer was obligated to utilize qualified Engine Attendants pursuant to Rule 23.12. In failing to do so, the Employer was in violation of Rule 5.14.

As a resolve to this dispute, the Union asks that the Engine Attendant with the least amount of overtime hours be compensated for three (3) hours at the prevailing overtime rates.

The Employer denies that a violation of Rule 5.14 or Rule 23.12 occurred in this instance.

The Employer argues that Rule 23.12 specifically sets out provisions related to the filling of vacancies for periods of less than 90 days, within a classification, and the right to claim a position by the senior qualified available employee.

The Employer takes the position that the critical component to this Rule is the phrase “for an expected period.” The Employer argues this language implies that the vacancy is a planned event, known or scheduled in advance. In this case, the regular Engine Attendant called in late, resulting in an unplanned and unexpected vacancy. No other Engine Attendants could be made available on site to affect the moves of the locomotives in question.

The Employer argues that, based on the circumstances that were presented to the Facility at the time, a decision was made to have a qualified Machinist assist with the movement of locomotives with the assistance of an available on-shift Engine Attendant. The move was incidental in nature.

The Employer submits that calling for overtime to fill an immediate vacancy would have resulted in a minimum three hour paid call-in. This, argues the Employer, was not reasonable given the incidental nature of the situation.

Finally, the Employer argues that, since it was not required to call in overtime, the provisions of Rule 5.14, equalization of overtime, do not apply.

DECISION

In my view, the provisions of Rule 23.12 govern the dispute at hand. Rule 23.12 sets out the procedure for filling of vacancies such as this. That is, for expected periods of less than 90 days, “such vacancies or new positions may be claimed by senior qualified employees from the respective point within the home seniority terminal”.

Consequently, the Union’s claim succeeds and I direct that the Company pay three hours at the prevailing overtime rates to an Engine Attendant with the least hours on the overtime list.

In the result, the grievance succeeds.

It is so awarded.

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

(signed) VINCENT L. READY

ARBITRATOR