IN THE MATTER OF AN ARBITRATION

BETWEEN:                                        CANADIAN NATIONAL RAILWAY COMPANY

AND                                                   CAW/TCA LOCAL 100

AND IN THE MATTER OF THE GRIEVANCE OF P. HAMILTON

ARBITATOR:                                                J.F.W. Weatherill

A hearing in this matter was held at Toronto on December 4, 2012.

B. Stevens, for the union.

R. Bateman, for the company.

    AWARD

The Dispute, Joint Statement of Fact, and Joint Statement of Issue in this matter are as follows:

Dispute:

A dispute related to the change of working hours of  Car Mechanic Helper               P. Hamilton.

Joint Statement of Fact:

On 16 February 2012 Ms Hamilton was informed her hours of work were to be changed from 07:00 - 15:00 to 08:00 - 16:00h.  Ms Hamilton contacted her Union representative regarding her right to displace a junior employee since her hours of work were going to be changed.  On 22 February 2012 Ms Hamilton’s hours of work were changed from 07:00 - 15:00 to 08:00 - 16:00.

Joint Statement of Issue:

The Union contends when the Company changed Ms. Hamilton’s hours of work she was entitled to exercise her seniority pursuant to Rule 23.14 and displace a junior employee.  By denying her right to displace a junior employee the Company violated her seniority rights.

The Union further contends when Ms Hamilton’s hours of work were changed, the Company created a new Rail Car Mechanic Helper position that must be bulletined pursuant to Rule 23.11.  By failing to bulletin this position, all other employees in the Rail Car Mechanic Helper classification were denied their ability to bid for this new position.  The Company violated their seniority rights.

The Company contends their ability to change Ms Hamilton’s hours of work is supported by Rules 1.7 and 1.11.  The Company declined the Union’s grievance.

There is no dispute as to the facts relating to the particular case, which are set out in the Joint Statement.  The grievor had, it appears, displaced onto the position she held at the material times, one of Rail Car Mechanic Helper at the Brampton Intermodal location within the Toronto Seniority Terminal.  The bulletin for that position had specified that it was a day shift position with hours of work from 07:00 - 15:00 hours, rest days being Monday and Tuesday.  The change in question here required the grievor to work from 08:00 - 16:00, although she remained on the day shift and her rest days were unchanged.

There is no doubt that this change, which was made for operational reasons, created a genuine difficulty for the grievor.  She lives, it appears, in Oshawa, to the east of Toronto, while the Brampton facility is to the west of Toronto, and her commuting distance is considerable.  The change in hours of work is sufficient to place her, both going to and coming from work, in the midst of very heavy traffic, and has increased her travel time substantially.  In an attempt to reduce this somewhat, she takes a toll road which costs her, it is said, approximately $ 180.00 per month.  It may well be that the grievor would not have bid on, or displaced into a position with hours of 08:00 - 16:00, unless it were absolutely necessary.  These difficulties might not affect other employees residing closer to the workplace.

The questions are, however, whether or not it was open to the company to alter the grievor’s hours of work in this way, whether it should have bulletined the position with hours of 08:00 - 16:00 as a new position, and whether in these circumstances the grievor was entitled to displace a junior employee.

It appears that the Brampton facility is one where three eight-hour shifts are worked, and the bulletin for the grievor’s position, as noted, specified that it was a day shift position.  The general provisions with respect to the hours of work for each shift are set out in Rule 1.7 as follows:

1.7       Where three (3) eight-hour shifts are worked, the hours for commencing duty shall be between 7 a.m. and 8 a.m., 3 p.m. and 4 p.m., and 11 p.m. and midnight.

In this case, the grievor, on the day shift, was to work a shift whose time for commencing duty might fall between 7 a.m. and 8 a.m., and in her case the time for commencing duty, which had been 7 a.m., was changed to 8 a.m.  An 8 a.m. start, like a

7 a.m. start, is appropriate for someone on the day shift.  That is what Rule 1.7 provides.

Rule 1.11 addresses the possibility, and the limitation, of changes to such a starting time.  It is as follows:

1.11     The starting time for each employee shall be fixed and shall not be changed without at least twenty-four hours’ notice.

In the instant case the grievor was given substantially more than twenty-four hours’ notice that her starting time would be changed.  Rule 1.11 clearly implies that, subject to the requirement of notice (which was met in this case), employees’ starting times may be changed, provided of course that the changed time complies with Rule 1.7.  In this case, as is clear from the above, an 8:00 a.m. starting time met the requirements of the collective agreement.

SHP 19, a case between the same parties, or their predecessors, dealt with a situation where the company altered certain employees’ schedules from a three-shift basis to a day-work basis.  That was of course a different situation from that in question here.  It was held that the company was entitled to make such a change, and it was said, with respect to what is now Rule 1.7, that

That article clearly expresses the Company’s right to change employees’ hours, subject to the giving of notice.

It would have been more accurate to say that the Rule expresses the company`s right to change employees’ starting times.  In my view, the effect of Rules 1.7 and 1.11 is to allow the company to make changes to the starting times of employees on three-shift operations, although such changes may not exceed one hour (must conform to the limits established in Rule 1.7), and must be on notice.  A change of this sort is a change to the individual employee’s schedule, and does not have the effect of removing the employee from his or her assigned position.  It is the union’s position, however, that that would be the effect of such a change since it would, it is argued, trigger the operation of Rule 23.14, and allow the employee whose start time is changed to displace a junior employee.

Rule 23 is the seniority provision of the collective agreement, and deals substantially with the accumulation and exercise of seniority.  The material paragraph of Rule 23.14 is as follows:

23.14   The exercising of seniority within a seniority terminal to displace a junior employee shall not be permitted except when positions are abolished, or rate of pay or hours of work or days off are changed.

SHP 653, on which the union relied, dealt with a case where the company issued a bulletin purporting to create an assignment across two separate work locations, and which would require employees to protect assignments other than their regular one, and to work the hours of another assignment on a temporary basis.  The grievance was allowed because in such cases an employee’s own “hours of work” would be changed, and the employee would then be entitled to exercise seniority pursuant to Rule 23.14.

That case was quite different from the instant case, and may be considered an instance of a situation where hours of work are (at least under the bulletin there in question) subject to substantial change.  In the instant case, the change in starting time was of the sort contemplated in Rule 1.11 and did not constitute the effective abolition of the position as it had been bulletined, thus permitting the exercise of seniority.  That is, the “hours of work” as described in Rules 1.7 and 1.11 (eight hours, with start times within the limits set out for each shift) are still in effect.  The company has exercised the degree of flexibility permitted in Rule 1.11, and the “hours for commencing duty” remain, for the day shift, “between 7:00 a.m. and 8 a.m.”, and that has not changed.  I conclude that this is not a case in which the exercise of seniority is permitted under Rule 23.14.

This conclusion would appear to be consistent with the past practice.  The interpretation set out above may indeed have been accepted by the union which, in collective bargaining some years ago, sought to amend Rule 1.11 by eliminating the notice requirement, so that the Rule would provide that the starting time “shall be fixed and shall not be changed”.  That amendment was not agreed to.  Starting times on three-shift operations may be changed within the limits set out in Rule 1.11.

The change in the grievor’s start time was, I find, not in violation of the collective agreement.  She continued in the same position, with a modified starting time which was within the hours of work contemplated by the collective agreement.  Her position did not become vacant in these circumstances, and no new position was created.  There was no need for the company to post a bulletin.  Article 23.11, which would require such a bulletin if a vacancy had been created and if a replacement was required, has no application in these circumstances.

For all of the foregoing reasons, the grievance is dismissed.

DATED AT OTTAWA, this 18^th day of December, 2012,

,

Arbitrator