AH – 293
IN THE MATTER OF AN ARBITRATION
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL 6
GRIEVANCE RE Rail Lubricators Arbitration
SOLE ARBITRATOR: H. Allan Hope, Q.C.
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Prince George, B.C., on June 27, 1991.
This dispute relates to two grievances in which the Union alleges that the Railway was in breach of the collective agreement by reason of its assignment of maintenance and repair work to employees outside of the classification of travelling mechanic. The work in question relates to a device described variously as “rail lubricators”, “track oilers” and “track lubricators”. The position of the Union is that the maintenance and repair of lubricators is work falling within the exclusive jurisdiction of travelling mechanics under the following provision of the collective agreement:
36.3 Except in cases of emergency or temporary urgency, employees outside of the Engineering Service shall not be assigned to do work which properly belongs to the Engineering Service, nor will Engineering Service employees be required to do any work except such as pertains to their division or department of the Engineering Service.
The facts were not in serious dispute. The maintenance and repair of lubricators is normally assigned to employees in the classification of travelling mechanic. Employees in that classification are in the bridge & building department, one of nine departments that make up the engineering service. In the case of both grievances the dispute arose when maintenance and repair work on lubricators was assigned to employees in other departments. In one case the work was assigned to an employee in the classification of maintainer. Employees in that classification are assigned to the work equipment repair department. In the second grievance the work was assigned to two employees, a section foreman, Paul Papineau, and a rail truck operator. Both of those employees were in the track department. The position of the Railway was that the maintenance and repair of rail lubricators has not been assigned exclusively to travelling mechanics or employees in the bridge and building department and that Article 36.3 has no application to the facts.
The onus is upon the Union under Article 36.3 to establish in a particular case that work assignments which form the subject matter of a jurisdictional claim falls within the terms of the provision. That is, where the Union alleges that “work which properly belongs to the engineering service” has been assigned to employees outside of the service, the onus is upon the Union to establish that the work in question does, as a question of fact, “properly belong” to the service. In the same vein, where the Union seeks to rely on Article 36.3 to prohibit an assignment of work as between departments of the engineering service, the onus is upon the Union to establish that it is work that “pertains” to a particular division or department.
In that context I note that the second part of Article 36.3 dealing with work assignments between departments of the engineering service is expressed in the form of a prohibition. That is, the language prohibits the Railway from requiring employees in one department of the service to perform work that “pertains” to another department. That aspect of the provision must be taken to mean that work assigned to one department of the service will not be assigned to employees in another department. In the context of that provision, the onus upon the Union is to establish that the work in question “pertains” to a particular department in the sense that it is performed by employees from that department except in “cases of emergency or temporary urgency”.
In this dispute the Union adduced ample evidence to support its contention that the work of maintaining and repairing rail lubricators is normally done by travelling mechanics. That evidence was sufficient to establish prima facie that the work assignments in question constituted work which “pertains” to the bridge & building department. In seeking to meet that prima facie case, the Railway called evidence from the two supervisors who made the disputed work assignments giving rise to the grievances and evidence from a supervisor who had previously worked in the bargaining unit as both a travelling mechanic and a heavy duty mechanic. He said that he had maintained and repaired rail lubricators as a heavy duty mechanic in the work equipment repair department. The Railway also called evidence from a supervisor who gave the history of that department and the nature of the work performed by employees in various repair classifications, including heavy duty mechanic and travelling mechanic.
The evidence of Bob Kilborn, the former travelling mechanic and heavy duty mechanic, was to the effect that he worked from 1974 to 1979 in the classification of travelling mechanic in Fort St. John Subdivision; that he served an apprenticeship as a heavy duty mechanic in that subdivision from 1979 to 1981, and that he worked there as a journeyman from 1981 to 1989. He said that there were no rail lubricators in the subdivision until 1980 when six lubricators were installed on a section of track called the Peace River Hill. It is a section of approximately six miles of line located between Mile 705 and Mile 725 in the Fort St. John Subdivision. Mr. Kilborn said that he was assigned to maintain and repair the lubricators on the Peace River Hill while he was a travelling mechanic and that he continued to service them in subsequent years as an apprentice heavy duty mechanic and as a heavy duty mechanic. Mr. Kilborn said that his assignment to perform those duties was never challenged. He said further that during that period of time he served on the union’s general committee of adjustments for a period of approximately four to six years during the late 70’s and early 80’s.
In cross-examination Mr. Kilborn agreed that the fact that he continued to maintain and repair lubricators after the commencement of his apprenticeship was not brought to the attention of the Union and never became an issue between the Union and the Railway. It was apparent in the evidence that it was in the best interests of Mr. Kilborn not to challenge the assignment, even assuming that he considered that he had a right under Article 3 6. 3 to refuse to perform the work. In particular, Mr. Kilborn said that he continued to perform the same duties during his period as a travelling mechanic, an apprentice heavy duty mechanic and a heavy duty mechanic and that the only difference was in the classification and rate of pay that he received. His rate of pay as an apprentice and as a heavy duty mechanic was higher than as a travelling mechanic. In short, declining the job of maintaining and repairing rail lubricators may have jeopardized his acceptance into the apprenticeship program and the consequent increase in wages. In any event, it was clear from the evidence that the Union leadership was not aware of the fact that when Mr. Kilborn was performing duties as an apprentice and as a heavy duty mechanic, he had performed work as a travelling mechanic. It seems clear on the facts that if that fact had come to the attention of the Union leadership, the assignment would have been challenged by grievance.
The additional evidence of Mr. Kilborn relied on by the Railway was to the effect that in his capacity as a travelling mechanic he was assigned to perform all maintenance and repair work on equipment in the subdivision that he was capable of performing. He said that he continued to perform the same work during his apprenticeship and after his certification. The Railway relied on that evidence to support its contention that there is an overlap in the work assignments given to employees in classifications having to do with the operations, maintenance and repair of machinery and equipment.
Similar evidence was given by Bryon MacDonald, superintendent of the work equipment rail yard. He gave a history of the establishment of the work equipment repair department and its operation in the maintenance and repair of equipment on the Railway. He said that the department was created in 1971 at a time when all major repairs were done in Squamish by employees certified by a different union. The operation was considered inefficient and that led to a contracting out of all major repairs to a private contractor. In 1976 the work equipment department established in Prince George as a new department. At that time the existing departments were the track department and the bridge & building department.
Mr. MacDonald said that the classification of Maintainer I and 2 was established at that time to preserve jobs in Prince George occupied by employees represented by the prior union who faced the loss of their jobs by reason of the change in unions and reorganization of the maintenance and repair functions on the Railway. Initially the maintainers were in the track department and they were then transferred to the work equipment repair department when it was established in March of 1979. It was not made express in the evidence but my assumption is that travelling mechanics were in the bridge & building department initially and have remained there throughout.
Mr. MacDonald said that there has always been an overlap between the maintenance and repair services performed by equipment operators, travelling mechanics and heavy duty mechanics. He said that operators perform maintenance and repair tasks to the level of their ability. I digress to note that it was clearly implicit in the evidence that the mechanical ability of operators varies considerably. There was no indication that their qualifications as operators are measured on the basis of their ability to perform mechanical repairs on the equipment they operate.
Mr. MacDonald said that after the equipment operators, the resource relied on by the Railway for the maintenance and repair of equipment in the field are the travelling mechanics. He said that travelling mechanics, like operators, are assigned to repair equipment to the level of their ability. Once again, the clear implication was that travelling mechanics vary as to their level of skill. Mr. Kilborn, for example, was described as possessing extensive skill as a travelling mechanic with a capacity to repair a broad range of machinery and equipment used in the Fort St. John Subdivision. Recognition of that level of skill was what led to his acceptance as an apprentice heavy duty mechanic and, in fact, he received substantial credit in that apprenticeship for the experience he gained as a travelling mechanic. However, travelling mechanics are not required to have the qualifications of heavy duty mechanics.
Historically, the expectations with respect to the nature of the work to be performed by travelling mechanics was recorded in rules imposed unilaterally by the Railway in a publication called Maintenance of Way Rules and Instructions. In the January 1, 1977 revision to those rules the following extract outlines in part the duties of travelling mechanics and the qualifications required of them:
250. The Travelling Mechanic is responsible for the inspection and repair of work equipment in his charge in accordance with current instructions. He will report to and receive instructions from the Roadmaster, Assistant Supervisor of Work Equipment and then designated officer.
251. The Travelling Mechanic is in charge of and responsible for the Proper installation and maintenance of rail lubricators. He must inspect all lubricators on his territory at least once a week or as of ten as necessary, and report to the Roadmaster any lubricator not working or awaiting repairs. He must insure that each lubricator delivers the correct amount of grease as conditions require. He must insure that grease containers have an adequate supply of grease to maintain uninterrupted operation.
252. The Travelling Mechanic must promptly report any case which comes to his attention of negligence in the care or operation of a machine.
253. The Travelling Mechanic is responsible for the repair and maintenance of water pumps and piping, and stoves used in Maintenance of Way Camps.
254. The Travelling Mechanic, as he travels, must watch for and report any track defects or other unusual conditions that may require attention.
255. The Travelling Mechanic must have completed “D” Examination Book and Maintenance of Way Track Motor Car Examination.
I will refer to those rules later. At this stage I note that they have undergone a number of subsequent revisions and a change in format. In particular, the contemporary version of the rules does not repeat the particular rules outlined above. However, there was no evidence to indicate that the qualifications for travelling mechanics have changed to the point of requiring them to have a capacity to perform field repairs on all machinery and equipment operated by the Railway. Hence, while there may be an overlap in the work performed by travelling mechanics as compared with equipment operators on the one hand and heavy duty mechanics on the other hand, the question of the application of the disputed language is raised with respect to whether the maintenance and repair of rail lubricators is an identifiable task that can be seen as pertaining to the bridge & building department of the engineering service in the sense that the performance of that work has been assigned traditionally to travelling mechanics.
The Railway also called evidence from Peter Rebagliati who is currently the superintendent of track maintenance. He had served as roadmaster in both the Fort St. John Subdivision and the Tumbler Ridge Subdivision. Mr. Kilborn worked under his supervision as a travelling mechanic, apprentice and heavy duty mechanic. He confirmed that Mr. Kilborn had extensive mechanical skills. He said that a major upgrading of the line in the subdivision was commenced in 1980 which resulted in a larger quantity of heavy equipment in the form of D8s, D9s and Scrapers being assigned to the subdivision. He said that Mr. Kilborn wanted to be upgraded so that he could be assigned to perform the field work on those machines. He was given credit in his apprenticeship for time spent as a travelling mechanic and received his certification as a heavy duty mechanic in 1981.
He said that thereafter Mr. Kilborn bid on jobs on gangs in the subdivision during the construction season and he was replaced on a temporary basis by a travelling mechanic. Mr. Rebagliati said that with Mr. Kilborn in the area, even during his period as a travelling mechanic, the Railway did not need a heavy duty mechanic and used him instead to perform a full range of field repairs. In cross-examination Mr. Rebagliati said that it was possible and perhaps likely that Mr. Kilborn’s position was initially posted as a heavy duty mechanic I position and then reposted as a travelling mechanic I position when there were no applications received for the position from qualified heavy duty mechanics.
Turning to the issue of maintainers, Mr. Rebagliati said that in the Tumbler Ridge Subdivision in 1984 there was an influx of heavy equipment for snow removal during the winter and that maintainers and heavy duty mechanics from the work equipment repair department did the field repairs. He said that there was considerable overlap between the classifications so that they could be said to be performing similar work. He also confirmed the evidence that machine operators do as much maintenance and repair of their machines as their experience and skills permit.
Mr. Rebagliati then said that 12 rail lubricators were installed in the Tumbler Ridge Subdivision in the fall of 1984 and that the travelling mechanic assigned to that territory was not able to attend to their maintenance because the area he was required to cover was too extensive. He said that he met that problem by assigning the section foreman to ensure that the lubricators were full of grease and working. He said that the result was that the section foreman spent so much time on the lubricators that he did not perform all of his own duties. Mr. Rebagliati then said that in 1986 there was an extensive reorganization of the engineering service, with the result that a travelling mechanic assigned to Tacheeda section was able to maintain the oilers. Once again, there was no evidence to indicate that his use of the foreman to maintain lubricators came to the attention of the Union in circumstances which would invite the filing of a grievance.
Mr. Rebagliati said that in the reorganization, an additional territory with an additional roadmaster was established and that he invited the new roadmaster to determine how he would organize for the maintenance and repair of rail lubricators in the new territory. The roadmaster in question established a position for a maintainer at Chetwynd who was assigned to perform the maintenance and repair of the rail lubricators. It was that assignment that led to one of the two grievances giving rise to this dispute. The roadmaster in question, Gordon Helgeson, gave evidence and said that when he went to Chetwynd, he discovered that prior to the reorganization there was one travelling mechanic who was assigned to a territory of 250 miles. When the new territory was established with him as roadmaster he made the decision that he would create a position, but that he “wanted someone more capable of looking after vehicles”.
Mr. Helgeson explained that his territory employed hy-rail vehicles and that he needed a maintainer to work on those vehicles and keep them maintained properly. He said the maintainer was assigned to perform all duties, including the maintenance and repair of rail lubricators. He too said that he understood that there was a considerable overlap in the work performed as between maintainers and travelling mechanics. He also said that section foremen performed any mechanical work they were able to perform. Once again, it was clear in his evidence that the overlap did not involve a general practice of assigning the maintenance and repair of rail lubricators to employees other than travelling mechanics in any pervasive sense. In fact, when the assignment at Chetwynd came to the attention of the Union, a grievance was filed challenging it.
The Union filed documents disclosing that the evolution of the track maintenance rules had resulted in the introduction of what are called Standard Practice Circulars and that SPC-79 issued in October of 1985 contains the same provisions relating to travelling mechanics that appeared in the January 1, 1977 revision of the Maintenance of Way Rules and Instructions, but with some amendments. For instance, where Rule 251 in the January 1, 1977 Rules provided; “The Travelling Mechanic is in charge of and responsible for the proper installation and maintenance of rail lubricators”, Rule 22 of SPC-79 reads; “In some areas, the Travelling Mechanic is in charge and responsible for the proper installation and maintenance of rail lubricators in accordance with SPC-228”.
No copy of the SPC-228 referred to in that extract was filed in evidence. A copy of an SPC-228 dated August 1, 1990 was filed. It relates to “the installation and maintenance of rail flange lubricators”. It contains a passage which can be read as contemplating that employees other than travelling mechanics can be assigned to maintain and repair lubricators. In particular, s. 8(b) provides that “lubricators must be inspected once per week by a qualified maintainer as directed by the roadmaster”. S. 11 contains the general designation, “personnel responsible for the maintenance of lubricators”. No copy of the August 1, 1990 version of SPC-79 was filed, if one exists. In any event, it is clear that the evolution of the SPCs is in the control of the Railway. The Railway submitted that the term “qualified maintainer”, and the use of the phrase, “personnel responsible for the maintenance of lubricators” indicates that the task no longer belongs in any exclusive sense to travelling mechanics.
But it is not a reasonable interpretation of Article 36.3 to conclude that the Railway is free to avoid the application of that provision by changing work assignments through SPCS. Furthermore, the SPC falls short of directing that the maintenance and repair of lubricators is a task that can be performed by any “qualified maintainer”.
The question of whether a particular work assignment falls within the scope of Article 36.3 is a question to be answered on the basis of how the disputed work has been performed. That general issue was address in British Columbia Railway Company and Canadian Union of Transportation Employees, Local No. 6 (Maintenance of Way) , September 13, 1979, unreported (Williams). In that decision the arbitrator was concerned with the second part of what is now Article 36.3. For convenience, that part is repeated as it appears on p. 3 of the decision as follows:
… 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.
That dispute arose with respect to employees in classifications falling within the heavy duty equipment operator’s department. During an equipment breakdown the Railway sought to assign the grievors in that dispute to work in the track department until their machines were repaired. They refused and the question arising was whether the assignment by the Railway was in breach of the provision. on p. 6 of the decision Mr. Williams wrote of the language:
Unless Article 23.3 (36.3) is to be rendered meaningless, it must be seen as a considerable restriction on management’s right to transfer employees inter-departmentally.
Mr. Williams went on to find that a breakdown of equipment in the circumstances fell within the term, “temporary urgency” and thus took the circumstances outside the reach of the language. However, the Union relies on his reasoning that an assignment to perform the work of another department would be a breach of the provision. I agree with that reading of the award. In particular, I agree that where it is established that the Railway assigns employees to perform work that “pertains” to another department in the sense of being work that, in the ordinary course of events, leaving aside emergencies and temporary urgencies, would be assigned to employees in that department, that will constitute a breach of the provision. To conclude otherwise would be find that the provision is meaningless in the sense contemplated by Mr. Williams.
I also agree with the authorities submitted by the Railway. In particular, the Railway relied on principles stated by the authors in Brown & Beatty, Canadian Labour Arbitration, (1991) , para. 5:2000, p. 5-21 as follows:
For the same reasons that may cause it to reorganize and assign work to independent contractors or non-unit employees, management may also perceive a need to reorganize the procedures and methods of performing work within the bargaining unit. As a general presumption, arbitrators have taken the view that where the reorganization is not contrary to the general law, where it is done in good faith, and where it does not contravene clear prohibitions in the agreement, management is free, subject to such overriding principles as waiver, to reorganize the work procedures and methods within the bargaining unit as it requires. And this is so whether the assignment of work is temporary or permanent, and whether it is within a job classification or crosses classification or departmental lines.
However, I note immediately that the exception to that general management right is where the change in work assignments “does not contravene clear prohibitions in the agreement”. Here the essential question remains whether the language in question is a prohibition and whether the work assignment in question falls within its terms. That same essential question was at issue in a further decision relied on by the Railway, being Gates Canada Inc. and United Rubber Workers, Local 733, (1990), 6 L.A.C. (4th) 435 (Hunter). There the question was whether the disputed work assignment fell within the scope of the prohibition set out in the collective agreement. That prohibition restricted the right of the employer to “assign a skilled trades employee to work which lies outside the scope of his classification”. The question at issue was whether having operators perform a routine repair task was a breach of that language. The arbitrator pointed out that the language did not encompass any such prohibition and he dismissed the grievance. However, as in this dispute, the real question was whether the disputed assignment falls within the reach of a prohibition contained in the collective agreement.
The Railway also relied on a series of prior decisions between these parties. Respectively they are Hard Hat Arbitration, December 14, 1982; Travelling Mechanic Arbitration, May 2, 1983; Air Dump Arbitration, January 24, 1986; and Plumber Arbitration, October 1, 1986. In the Hard Hat Arbitration it was concluded on p. 24 that this collective agreement contained no specific management’s rights provision and that management retains all traditional rights except to the extent they have been proscribed in collective bargaining. The Railway relied on the Air Dump Arbitration for the proposition that the obligation in an employee seeking to assert jurisdiction over work under Article 36.3 is to establish that the work assignment falls within the scope of the provision in the sense of involving work that pertains to the department claiming jurisdiction over it.
In that same context, the Railway relied on the Plumber Arbitration for the proposition that where an assignment of work is reasonable in the context of its response to operating conditions and the skill levels required by the position, it will not be overturned. The Railway then went on to point out that the decision in the Travelling Mechanic Arbitration was expressed as being limited to the precise facts in issue. There the issue was whether the Railway was free to reject a senior applicant qualified in the travelling mechanic classification on the basis that he was not a heavy duty mechanic.
Having reviewed the authorities, I am of the view that the basic issue raised in this dispute is whether the Union met the onus of establishing that the work of maintaining and repairing rail lubricators is work which “pertains” to the bridge & building department in the sense that it is work performed by travelling mechanics. It is clear in the evidence that historically that work has been assigned to travelling mechanics and that there have been no assignments to employees in other departments which would support a finding that the Union had acquiesced in the change in the assignment of the work in the sense contemplated on p. 19 in the Air Dump Arbitration. I am reinforced in that regard by a series of notices given under the Job Security Agreement by the Railway to the Union which acknowledged, in effect, that the Railway could not assign the work of a travelling mechanic to employees in other departments.
In the result, I am left to conclude that the Union has established that assigning the maintenance and repair of rail lubricators to employees outside of the bridge & building department in circumstances other than an emergency or temporary urgency is a breach of Article 36.3. The grievance is granted. The Union is entitled to a declaration that the work of maintaining rail lubricators is within the jurisdiction of the bridge & building department.
DATED at the City of Vancouver, in the Province of British Columbia, this 25th day of November, 1991.
(signed) H. ALAN HOPE, Q.C.