BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Charles O’Connell, Q.C.

There appeared on behalf of the Company:

P.A. McDiarmid – Labour Relations Assistant, Montreal

D. O. McGrath – Labour Relations Assistant, Montreal

Hollett Peet – Employee Relations Supervisor, St. John’s

And on behalf of the Union:

Esau E. Thoms – General Chairman

Michael Walsh – Chairman, St. John’s Lodge

George Noseworthy – Local Chairman, Argentia Lodge

T. F. Snow – Local Chairman, Lewisporte

W. C. Y. MacGregor – International Vice-President

A hearing in this matter was held at Montreal, Quebec, on the 18th day of September, 1967.

This Board of Arbitration was set up to resolve a dispute between the parties hereto. The said Board was established pursuant to Clause 10.4 of Article 10 of the Collective Agreement entered into between the Canadian National Railway Company, hereinafter referred to as the "Company", and the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Stations Employees hereinafter referred to as the "Union" in force of the material time.

The Arbitrator, Charles O’Connell, Q.C., of Sydney, N.S. was appointed by the Honourable John B. Nicholson, Minister of Labour.

The Board held a meeting in Montreal, Quebec, on the 18th day of September, 1967 at which the representatives of both the Company and the Union were present. The Company was represented by P.A. McDiarmid, Labour Relations Assistant, Montreal, and by D.O. McGrath, Labour Relations Assistant, Montreal, and by Hollett Peet, Employee Relations Supervisor, St. John’s.

The Union was represented by Mr. Esau E. Thoms, General Chairman and by Mr. Michael Walsh, Local Chairman, St. John’s Lodge, and by Mr. George Noseworthy, Local Chairman, Argentia Lodge and by T.F. Snow, Local Chairman, Lewisporte, and by W.C.Y. MacGregor, International Vice-President. At the Montreal meeting both parties were given a full opportunity to adduce all relevant information concerning the matters in dispute and briefs and oral arguments were submitted to the Board.

Mr. D.L. Martin, the Grievor herein, was employed as a Janitor at Lewisporte under Seniority Group 3 of the Collective Agreement from 1961 up and including February 10, 1967. He was laid off when the closing of navigation at Lewisporte reduced the need for such services on a regular basis. The Company felt that some cleaning services were still required at Lewisporte and a "Contract" was offered Mr. Martin to mop the office floors twice a week and to clean the Station Waiting Room once a month.

Mr. Martin accepted this "Contract" with the Company and first performed this service on February 15, 1967.

At the meeting held by the Board it was agreed between the parties

(1) that the Board was properly constituted and

(2) that the Board had jurisdiction to make a final adjudication of the issues and that all preliminary requirements prior the establishment of the Board had been complied with.

As mentioned previously, this Board has been set up pursuant to Clause 10.4 of Article 10 of the current Collective Agreement between the Company and the Union at page 10.

Mr. Martin, the Grievor herein, and covered by Seniority Group 3 of the Collective Agreement is claiming that no Janitor was on duty at Lewisporte from February 17, 1967 and that Article 1 of the Collective Agreement was violated as the janitorial work was done by employees other than Seniority Group 3 employees.

Mr. D.L. Martin claims that by not using his services as a janitor as aforesaid, there was a breach of the scope rule of the Collective Agreement and as a consequence is claiming eight hours pay per diem at the janitor’s rate of pay for the period February 13 to February 17, 1967.

For the Union to succeed it must establish either that the said Collective Agreement states that Janitorial services at Lewisporte are to be exclusively performed by Seniority Group 3 employees - or if and when janitorial work was assigned to or performed by other Company personnel, if the work performed by them is of such scope and duration that one could say that for all practical purposes they were carrying out janitorial duties, then there would by a violation of the Collective Agreement because they would be usurping the duties assigned to janitors under the Collective Agreement. However, if the janitorial work, whether performed by members of the Brotherhood or non-union members is only incidental to the duties carried out by them, then there is no violation of Article 1 of the Collective Agreement.

In simpler terms, if the janitorial work performed by Company personnel referred to above was on a full time basis, then there would be a violation of the said Collective Agreement.

The Board finds that the Collective Agreement does not state that janitorial work at Lewisporte is to be performed exclusively by Seniority Group 3 employees.

In arriving at his decision on this point, the Board looked closely at the Company’s operation at Lewisporte. The Board noted that the Union herein is an industrial union and work ownership barriers do not exist between different types of work as is the general practice with craft Unions.

This view is strengthened by the fact that Article 19 of the Collective Agreement contemplates that Union members at times will perform work other than their ordinary classification. Article 19 sets forth that an employee is fully protected when he does work out of his usual job category. If he performs higher rated work he receives the higher rate of pay but if used on lower rated work his rate of pay is not affected.

When Mr. Martin’s position as janitor at Lewisporte was discontinued, Mr. T.F. Snow, the Union’s Local Chairman at Lewisporte sought to have added non-janitorial duties to the reduced janitorial duties to be performed at Lewisporte in an effort to keep Mr. Martin on the payroll.

The evidence indicates that from February 13 to February 17, 1967 at Lewisporte certain janitorial duties were performed by Group 2 Clerical Workers and by two operators non-members of the Brotherhood.

The Company contends that the janitorial work performed by the Clerical workers and the operators was only incidental to the duties assigned them. This contention was not rebutted by the Union.

The Board finds that from February 13 to February 17, 1967 that the janitorial services performed by certain clerks and operators were so limited in scope and duration that they could not be considered to be carrying on janitorial duties as contemplated by the Collective Agreement and the limited janitorial duties they did perform in no way contributed to the Grievor herein being laid off.

The Board is of the opinion that Article 1 of the Collective Agreement was not violated for reasons set out above.

The appeal of the Union for eight hours pay per day from February 13 to February 17, 1967 as a janitor for Mr. D.L. Martin is dismissed.

DATED at Sydney, in the County of Cape Breton, Province of Nova Scotia, this 9th day of November, A.D., 1967.

Arbitrator

COMMENTARY: The Company laid off a Janitor at the end of a seasonal operation and contracted out the reduced month’s duties. The laid-off employee in question was awarded the contract. He subsequently grieved claiming compensation on the basis that the other employees under the Agreement and employees not covered by the Agreement were performing janitorial duties. The Arbitrator ruled that such limited janitorial duties as had been performed by the other employees were incidental to their regular duties and did not constitute a violation of the Agreement.