AH – 50
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES
IN THE MATTER OF THE GRIEVANCE OF R. Keeping
SOLE ARBITRATOR: Charles O’Connell, Q.C.
There appeared on behalf of the Company:
P.A. McDiarmid – 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 Station Employees hereinafter referred to as the "Union" in force at the material time.
The Arbitrator, Charles O’Connell, Q.C. of Sydney, N.S. was appointed by the Honourable John R. Nicholson, Minister of Labour.
The Board held a meeting at Montreal, Quebec, on the 18th day of September, 1967 at which time representatives of both the Company and the Union were present. The Company was represented by P.A. McDiarmid, Labour Relations Assistant, 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.
STATEMENT OF FACTS
Mr. R. Keeping, the Grievor herein, is employed as a General Clerk at Argentia. Up until February 14th, 1967, Mr. Keeping’s duties included the collating of express waybills and placing them in envelopes for forwarding to St. John’s. As a result of the integration of express and freight operations at St. John’s in January, 1967, the Company combined the processing of express and freight waybills leaving Argentia for St. John’s. As a result of collating and listing of the express waybills, a duty formerly performed by Mr. Keeping was assigned to the Operator, a non-member of the Brotherhood who was already performing the listing of the less-than-carload freight waybills at Argentia
JURISDICTION OF THE BOARD AND NATURE OF AWARD
At a 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 to 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. Keeping the Grievor herein, is claiming that the waybills collated and listed in Argentia on February 14, 16 and 18, 1967 and subsequent Mondays, Wednesdays and Fridays should have been done by him rather than by an employee not coming under the provisions of the Collective Agreement presently in force between the Company and the Union and that Article 1 of the Collective Agreement was violated as the handling of express waybills was done by employees not members of his Union.
Mr. Keeping claims that by not assigning the handling and listing of express waybills to him as aforesaid there was a breach of the scope rule of the Collective Agreement and as a consequence is claiming four hours’ pay per day on February 14, 16 and 18, 1967 and on subsequent Mondays, Wednesdays and Fridays.
FINDING OF BOARD AND BASIS FOR DECISION
For the Union to succeed it must establish either that the Collective Agreement expressly states that the listing and handling of express waybills at Argentia is to be exclusively performed by the General Clerk - or if and when the handling and listing of express waybills is assigned to or performed by Operators, if the work performed by the said Operators is of much scope and duration that one could say that for all practical purpose they were carrying out general Clerk’s duties, then there would be a violation of the Collective Agreement because they would be usurping the duties assigned to General Clerks under the Collective Agreement. However, if the handling and listing of express waybills by Operators is only incidental to the normal duties carried out by them then there is no violation of article 1 of the Collective Agreement.
The Board finds that the Collective Agreement does not state that the handling and listing of express waybills at Argentia is to be performed exclusively by General Clerks.
The Board has noted that with the integration of express and freight operations at St. John’s in January this year, it was necessary for the Company to consolidate the listing of express waybills with the less than carload lot waybills at Argentia so that a single integrated listing would be available to cover the traffic to St. John’s.
It should be remembered that on February 14, 16 and 18 and subsequent Mondays, Wednesdays and Fridays the period for which the Grievor is claiming four hours wages per day, the said Grievor, General Clerk Keeping, was fully occupied with other clerical work and his rate of pay was not affected.
Prior to January of this year, the Operators at Argentia prepared the less than carload lot listing of waybills at Argentia which made up the bulk of such work and with integration referred to above it was deemed advisable by the Company to add the listing and handling of express waybills to the Operator’s duties. The Company contends that at Argentia an average of 10 express waybills are handled daily, a duty which requires between ten and fifteen minutes to perform. This contention was not rebutted by the Union. The Board finds that the transfer of the handling and listing of express waybills from the General Clerk to the Operator at Argentia were minor in nature particularly since Mr. Keeping, the Grievor herein, remained fully occupied with other clerical work.
The Board finds that on February 14, 16 and 18, 1967 and subsequent Mondays, Wednesdays and Fridays that the listing and handling of express waybills by Operators at Argentia were so limited in scope and duration that they could not be considered to be carrying on General Clerk duties as contemplated by the Collective Agreement and the extremely limited General Clerk duties they did perform in no way affected the status of the Grievor herein.
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 four hours wages per day on February 14, 16 and 18 and subsequent Mondays, Wednesdays and Fridays for Mr. R. Keeping is dismissed.
DATED at Sydney, in the County of Cape Breton, Province of Nova Scotia, this 10 day of November, A.D., 1967.
Charles O’Connell, Q.C.
COMMENTARY: The Company reassigned certain duties from a clerical employee covered by the Agreement to an Operator covered by another Agreement. A grievance was lodged on the basis of ownership of the work by the employees covered by the Agreement. This transfer of duties did not adversely affect the hours of work or rate of pay of the grievor. The Arbitrator supported the Company and ruled that transfer of such duties were minor in nature and in no way affected the status of the grievor.