AH 229

 

 

 

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN:

 

 

THE CANADIAN UNION OF TRANSPORTATION EMPLOYEES,

LOCAL #6 (MAINTENANCE OF WAY)

 

(the ”Union”)

 

 

AND

 

THE BRITISH COLUMBIA RAILWAY COMPANY

 

(the “Employer”)

 

 

 

Sole Arbitrator:  Bryan E. Williams

 

 

There appeared on behalf of the Employer:

                                                                Mr. Hugh Collins

 

 

There appeared on behalf of the Union:

                                                                Mr. Ian Donald

 

 

 

A hearing in this matter was held at Vancouver, British Columbia, on the 27th day of September , 1978.

AWARD

                The parties agreed that I was properly constituted as a single arbitrator with jurisdiction to decide the issue in dispute.

The Issue:

(1)           Was the Company in violation of the Collective Agreement in assigning August Thibault between the 20th of March, 1978, and the 7th of April, 1978, and assigning Pierre Langevin between the 20th of March, 1978, and the 7th of April, 1978, to perform repair work on “outfit cars”?

(2)           Is the Company obligated to pay August Thibault and Pierre Langevin the difference between the regular rate of pay and the pay rate applicable to the job classification to which the work properly belongs?

(3)           If the answer to question No.2 is in the affirmative, what is the amount to which the grievors are entitled?

 

                The Union alleged that the dispute arose from the assignment of work to the grievors which was not within the jurisdiction of the bargaining unit to which they belong. The work assigned was on “outfit cars”. “Outfit cars” are railway cars modified to provide accommodation for work gangs.

 

                The Union claims that by past practice and by the terms of the applicable Collective Agreements, this work falls within the jurisdiction of the Mechanical Department. The employees in the Mechanical Department are represented by the Brotherhood of Railway Carmen of the United States and Canada, Locals 1490 and 30, and by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 170.

 

                The Employer argued that some “outfit cars” are a conventional type of box car which has been modified to suit the purpose for which they are intended, while other “outfit cars” are in reality trailers which have been secured to conventional type of railway flat cars.

 

                There is no argument as to the two different types of cars. The Union and the Employer agree that C.U.T.E. has the jurisdiction to perform work on the “trailers which have been secured to conventional types of flat cars”. The Union argues that work performed on the “modified box cars” is not within its jurisdiction., therefore, the Employer is in violation of Section 32.3 of the Collective Agreement which provides:

“Except in cases of emergency or temporary urgency, employees outside of the Maintenance of Way service shall not be assigned to do work which properly belongs to the Maintenance of Way Department, nor will Maintenance of Way employees be required to do any work except such as pertains to his division or department of Maintenance of Way service.”

 

                The Union further argued that the work to which the grievors were assigned was not a case of emergency or temporary urgency. The Employer agreed with this statement.

 

                The Employer stated that one of the grievors was an Electrician and the other grievor was a Pipefitter, that their work was consistent with their respective job classifications, and that they were paid the hourly rate specified in the Collective Agreement.

 

                The Employer argued that if the parties had intended that Maintenance of Way Service Electricians and Pipefitters were entitled to a higher hourly rate when required to perform certain work, this intention would have been reflected in the Collective Agreement.

 

                The Union introduced into evidence a letter dated May 16, 1977, File: 8339, to Mr. S. A. Horodyski, Brotherhood of Railway Carmen, from Mr. S. J. Pudney, Personnel Resources Officer, which states:

“Further to our recent discussion at Prince George regarding the work being performed by B & B personnel on trailers mounted on flats cars for gang accommodation service.

As pointed out to you during our discussions, the trailers are not a permanent part of the cars on which they are mounted, indeed they are often removed from the cars … they can be worked on by B & B personnel without any infringement of carmen’s work rights, as spelled out by Rule 58.2.

There has never been any question on the Company’s part regarding the actual flat cars used in this service, or those outfit cars which are modified freight cars and other rolling stock equipment. Work on this type of equipment continues to be recognized as being within the Carmen’s jurisdiction.”

 

                The Employer took the position that the subject matter of the letter was not relevant to the grievance.

 

                I cannot agree with the Employer. In fact, that letter precipitated the grievance.

 

                There is no doubt that the grievors performed the work in question. The Employer is in agreement with the Union as to where and when as well as the number of hours worked.

 

                Mr. Pudney (an agent of the Employer), in his letter, has clearly defined the jurisdiction of the two unions. There is no doubt that it was intended that Carmen would work on flat cars and modified box cars, and that B & B personnel would work on the trailers mounted on the flat cars. There, I must find that the Employer was in violation of the Collective Agreement in assigning the grievors to perform work on the modified box cars.

 

                Having ruled that Section 32.2 of the Collective Agreement has been breached, we come to the question , “Is the Company obligated to pay … the difference between the regular rate of pay and the rate applicable to the job classification…”.

 

                The Union conceded that unless there is a provision for a link-up between collective agreements, the amount cannot be decided upon. However, the Union argued that there should be some form of damages assessed because the Employer had been unjustly enriched and should not have gained any advantage by paying a lower rate.

 

                I am in agreement with the union that damages should be paid. The only reasonable means of assessing damages should be reflected by the difference in the rate. There is no other economic balance. The difference in the rate is from $7.05 to $9.64, an amount of $2.59 per hour. Thibault worked 88 hours and Langevin worked 80 hours, therefore the amounts owing to them would be $227.92 and $207.20 respectively.

 

                My findings are as follows:

                (1)           The Employer was in violation of the Collective Agreement in the Section 32.2 was breached.

                (2)           the Employer is obligated to pay damages representing the difference between the rates.

                (3)           Question 2 is answered in the affirmative and August Thibault is entitled to an amount of $227.92 and Pierre Langevin is entitled to an amount of $207.20

 

                It is so awarded.

 

                Dated at Mission, British Columbia, this 14th day of November, 1978.

 

                                                                                                                                Bryan E. William, Arbitrator