IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE,
TRANSPORTATION AND GENERAL WORKERS UNION OF
RE: GRIEVANCE OF PATRICK FOUCAULT
Sole Arbitrator: Michel G. Picher
Appearing For The
McDonagh – National Representative,
Drew Ratajueuski – Regional Vice-President
Robert Davis – Lodge Chairman
Patrick Foucault – Grievor
Appearing For The Company:
Bateman – Sr. Manager, Labour Relations,
A hearing in this matter was held in Toronto on Friday, 10 July 2009.
alleges that the Company failed to follow the provisions of the collective
agreement in assigning a car mechanic from
Statement of Fact:
According to Car Mechanic Patrick Foucault he was
forced from his seniority terminal of
Even though Patrick Foucault ceased being the junior
employee at Capreol on
Statement of Issue:
The Union contends that the Company has no right to
force a junior employee at a specific Seniority Terminal (Capreol) to work at
another Seniority terminal (
If further the position was temporary as alleged, the
Company should have bid [sic] such temporary Assignment to the Region as has
been done in the past and if not claimed, should have forced the junior car
mechanic on the Region to
It is further the position of the Union that the alleged Temporary position in North Bay was in fact a permanent position expected to be required for a period of over 90 days in North Bay and therefore should have been bid [sic] as a one man point in accordance with Rules 23.11, 23.13 and 52.17 of the collective agreement.
In regard to the above it is the
The Company has a substantially different view of this dispute. To that end it filed a separate ex parte statement of issue which reads as follows:
Statement of Issue:
When a temporary vacancy was created at
The Union submitted a grievance on
A Permanent Car Mechanic One Man Point position at
It is the Company’s position that temporary vacancies
underlying the grievance are not in substantial dispute.
that initially the Company dispatched the road repair truck from Capreol to
fundamental position of the
appears to reflect that in fact Mr. Foucault was forced to
fundamental position of the Union is that the Company was obliged to establish
a permanent position at
23.3 (a) Seniority of employees covered by this Agreement shall, except as otherwise provided herein and in the Trade Special Rules and Employment Security and Income Maintenance Agreement, be confined to the seniority terminal at which employed and to the date of entry into their respective classifications.
23.11 When vacancies occur for which replacement is required, or new jobs are created or additional staff is required in a classification in a respective trade for an expected period of 90 calendar days or more such vacancies or new jobs shall be bulletined for a period of not less than 7 calendar days to employees in the classification at the seniority terminal where they are created, and will be awarded to the senior employees, subject to Rule 23.29, the local committee to be consulted. An employee who is awarded a position under this Rule 23.11 will not be awarded the vacancy caused by the employee’s departure from the employee’s former position unless the employee is the only qualified applicant. The foregoing sentence will only apply when the bulletined duties, hours of work and rest days are identical to the bulletined position the employee has vacated during the ninety (90) calendar days previous to the closure date for applications to the new bulletin.
(See Appendices II and IX
Within a main shop, successful applicants will be permitted to move within fifteen (15) calendar days of the close of the bulletin. This period may be extended to 30 days by mutual agreement with the Regional Vice-President.
23.13 If a vacancy or new position of expected duration of 90 calendar days or more requiring additionally staff is not filled by an employee in the classification at a home seniority terminal, it shall be bulletined for not less than 7 calendar days, firstly to the employees holding seniority in the classification in the trade union on the basic seniority territory and, secondly, to such employees on the Region. Subject to qualifications, seniority will govern.
A running point employee who bids on a position at a main shop in accordance with this rule 23.13 and is delayed in transferring to the main shop for a period of thirty days or more shall, on transferring to the main shop, be entitled to exercise seniority on any position bulletined within the main shop during such delay.
Employees who transfer under this rule 3.13 shall, after 90 calendar days forfeit their seniority at the seniority terminal form which transferred and shall carry their seniority rights to the new seniority terminal; except that employees on laid-off status at their home seniority terminal may exercise their rights under this rule without forfeiting their seniority at their home seniority terminal. The Regional Vice-President shall receive a copy of all such bulletins.
For the purpose of this Rule 23.13 the number of employees to be transferred and the method to be used shall be mutually arranged between the proper officer of the Railway and the Regional Vice-President in order to meet the requirements of the Railway service.
The Union’s submission with respect to North Bay being a one car mechanic point, and its submission that the grievor should have been compensated, at a minimum, on the basis of the provisions governing one car mechanic points is a reference to rule 52.17 which provides, in part, as follows:
52.17 (a) A “one car mechanic point” is an outlying point where there is employed one car mechanic, day, and one, night, or where there is only one car mechanic employed.
(b) Car mechanics stationed at one car mechanic points shall be allowed 179.3 hours per four week period made up of 160 hours at straight time and 19.3 hours at tome and one-half at the hourly rate provided in Rule 31.
(c) Where car mechanic inspectors, including work train inspectors, or car repairers at one car mechanic points are required by order to work a total of more than 179.3 hours per four-week period, they shall be paid for all time worked in excess of 179.3 hours per four-week period in accordance with the following:
In the application of rules 52.17(b) and 52.17(c):
Actual overtime hours worked in excess of 160 hours will be accumulated over a twelve-week period.
If these total overtime hours worked exceed 57.9 (comprised of 19.3 hours x 3 four week periods) such additional hours worked in excess of 57.9 will be paid for at the rate of time and one-half at the conclusion of the twelve-week period.
submits that there is nothing within the terms of the collective agreement
which prevents it from making a temporary transfer of a junior employee, as it
did with Mr. Foucault to fill a temporary vacancy. Its representative stresses
that while there have been exceptions, the Company does not generally assign
apprentices to unsupervised assignments at remote locations. He argues that it
was within the rights of the Company to transfer the junior most qualified
employee at Capreol to cover the temporary vacancy at
Rule 7 – Temporary Transfers
7.1 Employees sent out to temporary vacancies at an outlying point or shop, or sent out on a temporary transfer to an outlying point or shop will be paid continuous time from time ordered to leave home station to time or reporting at point to which sent, straight time rates to be paid for straight time hours at home station and for all other time, whether waiting or travelling. If on arrive at the outlying point there is an opportunity to go to bed for five (5) hours or more before starting work, time will not be allowed for such hours.
7.2 While at such outlying point they will be paid straight time and overtime in accordance with the bulletin hours at that point, and will be guaranteed not less than eight hours for each day.
7.3 Where meals and lodging are not provided by the Company, actual necessary expenses will be allowed.
7.4 On the return trip to the home station, straight time for waiting or travelling will be allowed up to the time of arrival at the home station.
7.5 If required to leave home station during overtime hours, they will be allowed one hour preparatory time at straight time rate.
Company’s representative submits that the merits of this grievance fall within
the principles canvassed by the Arbitrator in SHP 268, a grievance between the Ontario Northland Railway and the
Brotherhood of Railway Carmen of Canada and the resulting award dated
The Union objects to the Company’s assignment of
Junior Carmen at
It is not disputed that in the instances that gave
rise to this grievance the Company did post bulletins in an attempt to obtain
volunteers for vacation relief positions at the northern terminals. When those
efforts proved unsuccessful, junior carmen at
The Union’s representatives have not directed the
Arbitrator to any language in the collective agreement which would prohibit the
employer from temporarily assigning junior Carmen at
The facts giving rise to the instant case disclose no violation of Rule 23.12, nor of any other provision of the collective agreement. For the foregoing reasons the grievance must be dismissed.
I turn to
consider the merits of this dispute. In doing so, it appears to the Arbitrator
that a significant issue to be sorted out at the outset is whether the Company
was entitled to treat the work at
In answering that question, the Arbitrator is satisfied that the principles expressed in SHP 268 do properly apply in the case at hand. In the instant dispute the Union has pointed to no provision of the collective agreement which would effectively guarantee to Mr. Foucault that he could not be forced from his position at Capreol or, if forced, was somehow entitled to be paid wages based on work which would have been available to him at Capreol rather than for the work which he actually performed at North Bay.
Nor can the
Arbitrator attach great weight to the suggestion of the
In the result, the Arbitrator cannot find that the rules and appendix asserted by the Union as having been violated were not respected by the Company it its handling of the assignment to Car Mechanic Foucault. No violation of the rules is disclosed and the grievance must therefore be dismissed.
Dated at Ottawa this 23rd day of July, 2009.
“Michel G. Picher”
MICHEL G. PICHER