AH – 35
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
(the "Company")
AND
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES
(the "Union")
IN THE MATTER OF THE GRIEVANCE CONCERNING WORK OWNERSHIP
SOLE ARBITRATOR: J. A. Hanrahan
There appeared on behalf of the Company:
P. A. McDiarmid – Labour Relations Assistant
D. O. McGrath – Labour Relations Assistant
O. W. McNamara – Labour Relations Assistant
And on behalf of the Union:
E. F. Downard – Vice Grand President
E. Thoms – General Chairman
A hearing in this matter was held at Montreal, Quebec, on October 19, 1966.
AWARD
This dispute arises from a claim presented by Mr. E. Thoms, Local Chairman, under date of April 21, 1966, in a letter addressed to the CNR Agent at Argentia, Newfoundland, reading:
According to information I have received, you have assigned work that normally was performed by General Clerk, John Merner, to Operator C. Smith.
As a result, on April 20, 1966, Mr. Smith performed work that should have been performed by Mr.Merner and on his behalf I am requesting that you reimburse Mr. Merner two hours punitive overtime for April 50, 1966 and discontinue the assigning of Mr. Merner’s work to Mr. Smith. The latter not being covered by the Clerk’s agreement. On Mr. Merner’s behalf, I am also requesting two hours punitive overtime for each succeeding evening that you assign this work to an employee not covered by the Clerk’s agreement.
It has been established that an operator cannot perform a general clerk’s position and by doing this you are violating our agreement and that portion dealing with ‘Scope of Agreement.’
On March 3, 1964, this Union was certified as the bargaining agent for certain classifications of employees in the Newfoundland Area. Included in a lengthy list of classifications is that of "general clerk". Specially excluded are "those employees in the Newfoundland Area exercising train order skills and handling telegraphic message traffic."
The Arbitrator was given background information establishing that for approximately ten years prior to September 23, 1965, all express work performed at Argentia was performed by a supervisory express agent, Mr. Thomas Donovan, formerly employed by the Marine Department as a purser. He did this as a non-scheduled employee. On September 23, 1965, Mr. Merner, mentioned in the foregoing letter, was appointed to the classification of general clerk. This resulted, it was stated by the representative of the Brotherhood, from a Canada Labour Relations Board ruling that work performed by Mr. Donovan should be covered by this agreement. Mr. Merner carried on the same work as previously performed by Mr. Donovan from the time of his appointment until April 19, 1966. It was admitted that on April 20, 1966, some of the duties normally performed by Mr. Donovan and Mr. Merner were assigned after 5:30 p.m. on Mondays, Wednesdays and Friday nights to the Operator at this station, an employee not included in the certification.
The representative for the Company told that the station staff at Argentia number six – three members of the TCEU and two members of his Brotherhood. Prior to March 17, 1966, all six worked from 8:30 a.m. to 5:30 pm. During a survey made by the Company it was discovered that the train from St. John’s arrived during a six months period after 5:30 pm. on thirteen occasions out of seventy-seven runs. Deciding that the work schedule in existence did not meet the needs of the service, on the date mentioned there was a rescheduling of the hours of work providing for:
Agent (TCEU) 9:00 a.m. to 6:00 p.m.
Asst. Agent (TCEU) 4:30 a.m. to 12:30 p.m.
Operator (TCEU) 1:00 p.m. to 10:00 p.m.
Clerk Typist (BRSC) 9:00 a.m. to 6:00 p.m.
General Clerk (BRSC) 8:30 a.m. to 5:30 p.m.
Before rescheduling it had been necessary for the general clerk to take a break for supper at 5:30 p.m., then return to work on an overtime basis when the train was late. This was stopped after the rescheduling, and the Operator, whose hours of duty were from 1:00 p.m. to 10:00 p.m, did the manifesting of express that arrived on the train. This was described as checking in parcels of express from the train. These were then taken on freight handlers to the boat at the dock. The operator was responsible for the articles until he obtained the purser’s signature of their receipt.
It was disclosed that during the day the general clerk, in addition to his express duties, assisted the agent and other members of the staff in compiling and checking miscellaneous data for the balance sheet, processing correspondence, answering the telephone and inquiries.
The essence of the argument advanced by the representative for the Brotherhood was that the Company has no right, without consultation or mutual agreement, to assign work falling under the jurisdiction of this Union to an employee covered by another wage agreement.
The principle argument advanced by the representative for the Company was that the scope rule of the agreement is based upon the Union’s certification by the Canada Labour Relations Board, in which reference is made only to classifications and not to the type of work or duties of various positions.
Article 1, headed "Recognition and Scope" read:
1.1 The following rules and rates of pay shall govern the service of employees on positions of the occupational classifications specified in Appendix 1, subject to the exclusions set out in Appendix 11 …
It was contended that no position of general clerk is assign to work the hours beyond 5:30 p.m. at this station. However, the operator working after that hour follows what was described as a standard practice in doing clerical work.
The assigning of duties ordinarily performed by a member of a bargaining unit to one not a member of that unit has been the subject of many arbitration decisions.
The view held on the subject by this Arbitrator was expressed in a matter concerning United Electrical Workers and Canadian General Electric Company, 14 L.A.C. 289. The headnote reads:
In this case a majority of the Board followed what appears to be the general principle that unless a collective agreement contains a provision preventing non-unit personnel from doing bargaining unit work at any time, that the company is within its rights in so assigning such work, provided that, in the result, the work so assigned does not occupy the time of the person performing it to an extent which in effect makes him a member of the bargaining unit.
In a matter concerning United Steelworkers and American Standard Products (Canada) Ltd., 11 LAC 283, His Honour, Judge C.E. Bennett held:
We concur in the view that has been expressed by a number of arbitrators that in the absence of a specific restriction in the agreement a company may assign work previously performed by employees within the bargaining unit to employees excluded from the bargaining unit, provided always that it is open to the union to prove in a grievance that the employees to whom the work has been assigned are doing the work normally performed by the members of the bargaining unit to such an extent as to bring them within the bargaining unit.
Many experienced arbitrators have come to the conclusion in both ordinary contracting out cases and where the issue is the right of the company to assign work in the bargaining unit to employees outside the bargaining unit that such recognition, purpose and management clauses, plus job descriptions and wage rates do not add up to a contractual right of the union to "own" the work being performed in the bargaining unit. If the parties here had intended to restrict the right of the company to assign work of the bargaining unit to persons outside the unit, we believe they would have so stated in unmistakable language."
In a matter concerning Fittings Limited and Local 1817, United Steelworkers, His Honour Judge Walter Little approved this principle:
That unless the contract forbids foremen doing the jobs ordinarily done by production workers in the bargaining unit, they are free to do the work, provided the doing of the work was not of such of an extent as to bring the person doing it within the bargaining unit.
In a matter concerning UAW and Canadian Industries Limited, 5 LAC 1605, this Arbitrator held that the company did not violate the agreement by assigning work previously performed by an employee within the bargaining unit to persons excluded from the unit. In that judgment I cited a number of judgments from Arbitrators in the United States in which this view was held.
Again in International Electrical Workers and J.A. Wilson Display, 14 LAC 61, His Honour Judge R.W. Reville held:
In the absence of a specific prohibition in the collective agreement a company was not prevented from assigning to members of its supervisory staff work normally performed by members of the bargaining unit unless such work occupied so large a percentage of the supervisor’s time that in effect he became a member of the bargaining unit, and that this did not result unless the volume of such work or the nature of the assignment prevented the supervisor from exercising his ordinary supervisory functions.
This claim is for a continuation of the overtime work previously assigned to the general clerk. In that area there is a decision by His Honour, the Late Judge E.W. Cross, in a matter concerning UAW and Ford Motor Company, 5 LAC 1609, in which it was held:
Failing some ‘clear and explicit prohibition’ in the collective agreement, Company may assign overtime work to persons outside the bargaining unit, although such work is normally performed by employees within the unit.
The following is typical of the specific prohibition mentioned in these decisions that is found in many industrial collective agreements :
The Company agrees that foremen and other salaried supervision shall not perform work properly coming under the jurisdiction of the bargaining unit, except in cases of emergency or for the purpose of instructing employees as to the proper method of performing the operation.
There is no such provision in the collective agreement under consideration. The problem is therefore reduced to determining whether the amount of work assigned to the operator in relation to the express shipments arriving on the late train on the evenings in question could fairly be said to occupy such a percentage of his time as would justify bringing him within the classification of general clerk. In my opinion it would not.
For these reasons this claim is not allowed.
Dated at Brampton, Ontario, this 31st day of October, 1966.
J. A. Hanrahan
Arbitrator
COMMENTARY: The Company reassigned the hours of work of the station staff at Argentia, Newfoundland, to cover a wider time span and in instances of late train arrivals had the Operator on duty perform clerical duties which had formerly been performed by a General Clerk on an overtime basis. The Brotherhood of Steamship Clerks, Freight Handlers, Express and Station Employees, who represent the position of General Clerk, challenged the Company’s right to fill out the duties of the Operator represented by the Transportation-Communication Employees Union. The Arbitrator supported the Company and found that the assignment of clerical duties to the Operator was not of sufficient magnitude to bring him within the classification of General Clerk nor was there any restriction in the Agreement preventing such assignment of work.