AD HOC 258

AWARD

PARTIES TO THE DISPUTE:

The parties before the Arbitrator are the United Transportation Union – General Committee of Adjustment – Canadian Pacific Lines – Prairie and Pacific Region (hereinafter referred to as the Union) and CP Rail West – Heavy Haul Systems (hereinafter referred to as the Company).

The dispute referred to the Arbitrator in this matter involves employees covered by the collective agreement between the Union and the Company on behalf of Yard and Assistant Yardmasters.

DISPUTE:

Claim of the Union that the positions of Assistant Supervisor, Operations, at Revelstoke and Golden, B.C. should be classified as Yardmasters covered by the Collective Agreement.

JOINT STATEMENT OF ISSUE:

On April 1, 1987, the Company established positions of Assistant Supervisor, Operations, at both Revelstoke and Golden, B.C. At the same time the Company abolished the positions of Yardmaster at Revelstoke. There never were Yardmasters at Golden.

The Union contends that although there are some differences between the work performed by the persons classified as Assistant Supervisor, Operations at Golden and Revelstoke Yards, the essential duties of these persons, at both yards, are the same as the essential duties of a Yardmaster. Therefore, it is the Union’s position that the persons the Company has classified as Assistant Supervisors, Operations, at these locations are covered by the terms and conditions of the Yardmasters and Assistant Yardmasters Collective Agreement.

It is the position of the Company that the duties assigned to the position of Assistant Supervisor, Operations are considerably different from those of a Yardmaster. The incumbents of these positions are also expected to perform functions which are more responsible and managerial in nature than any function performed by Yardmasters and these positions are not Yardmasters positions to which the Collective Agreement applies.

The background facts are not disputed. On April 1, 1987 the Company established new positions of Assistant Supervisor, Operations at Revelstoke and Golden, B.C., and abolished the positions of Yardmaster which had previously existed at Revelstoke. Golden had not previously had any Yardmaster positions before the expansion of its yard. That expansion was a large part of the reason for the adjustment made by the Company. The establishing of a substantial coal train carshop and switching yard at Golden resulted in the diversion of a substantial amount of switching from the Revelstoke Yard, where extensive switching in relation to coal train equipment had previously been done.

Prior to the change four yardmasters were employed at Revelstoke, constituting the highest ranking employees in yard service represented by the Union. Because their duties and responsibilities were in part supervisory of the work of other employees the yardmen were constituted into a separate bargaining unit with its own collective agreement, as has been the case since the Union first obtained certification for Yardmasters in 1944. The Yardmasters at Revelstoke worked under the supervision and direction of three Assistant General Yardmasters and one General Yardmaster with primary responsibility for the Yard. Under that arrangement a total of eight staff had overall supervisory responsibility in respect of yard operations at Revelstoke, four of them being Yardmasters in the bargaining unit.

With the changes effective April 1, 1987, all yardmaster positions were abolished and were replaced by four positions of Assistant Supervisors, Operations (ASO) which positions are treated by the Company as excluded from the bargaining unit. It is not disputed that the ASO positions were offered to the incumbent Yardmasters, some of whom accepted them. It is also established that the ASOs at both Revelstoke and Golden perform all of the functions previously performed by the Yardmasters at Revelstoke.

The dispute turns on the additional duties and responsibilities of the ASOs. The material before the arbitrator discloses that the newly established position involves a number of duties and responsibilities not previously discharged by the Yardmasters. Among these are:

– conducting disciplinary investigations and recommending discipline

– decisions in respect of crewing

– supervising the work of clerks in the office, crewing centre and shop

– customer liaison

– communicating with the Power Bureau in Montreal with respect to the composition and deployment of power consists

– supervisory responsibility over the yard at Field, B.C. (from Golden)

The Company submits that the foregoing additional responsibilities, which traditionally belonged to management in the person of the Assistant General Yardmasters, comprise the greater part of the work performed by the ASOs, and takes their positions out of the more restricted ambit of the former yardmaster’s positions. The Union strongly disagrees. It maintains that the great bulk of what the ASOs do is the same day-to-day work that these individuals performed as Yardmasters. Its counsel concedes that additional responsibilities have been conferred on the ASO, but argues that they are not so substantial as to alter the fundamental nature of the job. He asserts that as the ASOs continue to perform all of the functions of the yardmasters, and that the core duties of the yardmasters constitute the greatest portion of their regular duties, the ASOs are in fact yardmasters falling under the terms of the collective agreement.

The issue in this grievance is whether the persons occupying the title of Assistant Supervisor Operations at Revelstoke and Golden in fact perform duties that would bring them sufficiently within the core functions of the Yardmaster’s positions so as to fall within the collective agreement governing yardmasters. Arbitral jurisprudence establishes that an employer cannot avoid the terms of a collective agreement by merely renaming or reclassifying a position which continues to involve the performance of what are substantially the same duties and responsibilities as belonged to a bargaining unit position. This concept, which was articulated in Fittings Ltd (1969) 20 L.A.C. 249 (Weatherill) has been consistently recognized in CROA cases. In CROA 406, which involved a grievance between these same parties respecting yardmen’s work Arbitrator Weatherill stated:

The collective agreement does not set out any definition of yardmen or yardmasters. This is not to say that the terms are not capable of definition. Generally speaking, it is surely true that the parties know very well which of their employees come under the collective agreements in question. Where the Company assigns an employee to carry out a set of tasks typical of those of a yardman or yardmaster, then that person must be said to be a yardman or yardmaster and subject to the appropriate agreement, and the Company bound by that agreement with respect to the assignment of the employee.

(See also CROA 322, 337, 1655, 1803).

A number of arbitral awards have considered what percentage of involvement with bargaining unit work is necessary to bring a non-unit supervisor within its ambit. On this issue no clear consensus has emerged, if indeed one could be possible. In this arbitrator’s view, however, it is helpful to ask two basic questions: does the non-bargaining unit supervisor perform the core functions of a job that has traditionally been within the bargaining unit? And are the additional functions performed by that person incidental or peripheral to the core function of the bargaining unit position, or do they constitute the core or main substance of the new position? If the answer to the first question is affirmative, and it is clear that the non-bargaining unit functions are peripheral and do not represent the principal or core function of the newly established position, absent compelling evidence to the contrary, it may be concluded that the newly established position in fact falls within the bargaining unit.

The circumstances in the instant case are not unlike those reviewed by the board of arbitration in Re Ontario Hydro and Canadian Union of Operating Engineers, Local 110 (1976), 12 L.A.C. (2d) 143 (Shime). In that case a number of crew foremen, who were members of the bargaining unit, saw their positions eliminated when the company assigned their functions to newly established management foremen, to which positions the affected employees were all promoted. The board of arbitration concluded that the work in question continued to be bargaining unit work and, at p.147 made the following observations:

… Management cannot merely sprinkle or add management functions to bargaining unit work and thereby remove the bargaining unit positions from the bargaining unit because to do so would not only destroy the integrity of the bargaining unit, but the basis upon which the collective agreement was negotiated. Such acts, if permitted, could completely remove all of the work from the bargaining unit and thereby destroy the effect of the collective agreement. The effect of adding management functions to bargaining unit work is, in our view, the same as changing hourly or piece-work employees to salaried employees doing the same work. Both in our view, are contrary to the very essence of the agreement.

In the result, we determine that if the employer wishes to have the work performed which had formerly been performed by crew foremen within the bargaining unit, it must have that work performed by members of the bargaining unit and the mere addition of additional duties and responsibilities to that work cannot remove the work from the bargaining unit.

The Arbitrator is satisfied on the material before him that in the instant case the core functions of the yardmaster’s job continue to be performed at Revelstoke and Golden, and that they are done entirely by the Assistant Supervisors, Operations. I am also compelled to the conclusion that the additional functions which the ASOs perform including those of a managerial nature, are not so substantial so as to fundamentally alter the core duties and responsibilities of the yardmen’s function. In other words, the essence of the ASO’s work, notwithstanding their overall managerial responsibility, remains the core function of the Yardmaster’s position. I am satisfied that the great bulk of the dally duties and time of the ASO is devoted to the very functions which were routinely performed by the Yardmasters at Revelstoke. In the circumstances I must conclude that the Company has violated the collective agreement by assigning the Yardmaster’s work at both Revelstoke and Golden to persons excluded from the bargaining unit.

The foregoing conclusion is made without prejudice to the right of the Company, in any location, to abolish a position of Yardmaster where it is established that the work of such a position is no longer performed to a sufficient degree. That, however, is not established in the instant case as regards Revelstoke or Golden. Moreover, it always remains open to the Company and the Union to negotiate such terms as they deem appropriate in respect of the deployment of manpower in any location.

It was requested at the hearing that I limit the conclusion of this arbitration for the time being, to the finding that the grievance must succeed on its merits. I therefore do so, and retain jurisdiction with respect to any dispute between the parties which may arise in regard to the remedy appropriate in the circumstances.

DATED at Toronto this 8th day of May, 1989.

(signed) MICHEL G. PICHER

ARBITRATOR