BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

Barbara Mittleman – Counsel

M. E. Keiran – Assistant Manager, Labour Relations, Vancouver

B. P. Scott – Labour Relations Officer, Montreal

R A Colquhoun – Manager, Labour Relations, Montreal

D. J. McKEllan – Superintendent, Winnipeg Division

K. E. Webb – Labour Relations Officer, Vancouver

And on behalf of the Union:

M. A. Church – Counsel

W. M. Jessop – General Chairperson, General Committee of Adjustment, Calgary

B. Marcolini – Vice-President, UTU, Ottawa

B. Gudmundson – Local Chairperson, UTU, Winnipeg

L. Cook – Yardmaster, Winnipeg

Larry Olson – Vice-President, Edmonton

A hearing in this matter was held in Toronto on April 17 and 23, 1990.

The Union grieves that the Company has violated the collective agreement by assigning the work performed by Yardmasters at Winnipeg to management personnel. The Statement of Dispute and Issue filed by the Union is as follows:

The material establishes that on December 7, 1988 the Company provided to the Union notice under Article 15 of the collective agreement respecting the abolishing of four Yardmasters positions at Winnipeg. The letter, addressed to Mr. W.M. Jessop, General Chairman, from J.M. White of the Company is as follows:

Article 15 of the collective provides, in part, as follows:

Article 15 further provides for a process of negotiation between the parties in respect of conditions to minimize the adverse effects of a material change upon affected employees. In the event of an inability to agree the parties may proceed through a Board of Review process and, thereafter, failing agreement may proceed to arbitration. The notice provided by the Company in respect of the positions at Winnipeg resulted in extensive negotiations between the parties. The Union took the position that an article 15 notice was not appropriate in the circumstances, as there was no material change impacting the duties and responsibilities of Yardmasters at Winnipeg. Without prejudice to the Union’s position, on October 26, 1989 the matter was referred to a Board of Review under the terms of article 15. The Board of Review did not result in any settlement of the matter, and it has now proceeded to this arbitration for final determination. It may be noted that in the interim the abolishment of the Yardmasters’ positions has not been effected, in a technical sense, in that they have been retained on payroll although their duties have been re-distributed. Practically speaking, however, the changes described in the Company’s notice to the Union have been proceeded with, as described below.

The issue to be resolved at this point is whether the Company was entitled to give notice, as it did, under article 15 of the collective agreement or whether, as the Union contends, there has been no material change, but as it alleges, a transfer of bargaining unit work to non-bargaining personnel. If the Company’s position should be sustained, it is common ground that the matter is to be remitted to the parties for further processing under the terms of article 15 with respect to the negotiation of measures to minimize adverse effects upon the employees concerned.

The evidence establishes that the Company operates a number of freight yards within its Winnipeg terminal. Part of that facility, known as the Southside Industrial Yard, has traditionally been devoted to the marshalling of movements and switching operations servicing a number of industrial spurs surrounding the terminal. Under the direction of Yardmasters located in the Southside Industrial Yard office, yard crews proceeded to and from the Southside Yard to the locations of commercial and industrial customers on the industrial spurs. Loaded cars and empties were moved to and from those locations in accordance with customer’s needs. Orders were generally communicated by the customer to an industrial clerk located in the Southside Yard Office, who in turn relayed them to the Yardmaster. It was part of the Yardmaster’s responsibilities to then relay to the yard crews the switching which they would be required to perform to meet the customer’s needs.

Part of the Company’s properties at Winnipeg is the St. Boniface Yard, which is located at some distance from the heart of the main terminal. It is common ground that in 1984 the Company closed the yard office which previously operated at that location. This resulted in a transfer of Yardmaster’s positions, as well as supervisory positions of Assistant General Yardmasters from St. Boniface to the Southside Industrial Yard. Thereafter the St. Boniface switching was directed from the Southside Industrial Yard office. It does not appear disputed that three Yardmasters positions at St. Boniface were abolished at that time. The St. Boniface yard crews were then transferred to the Southside Industrial Yard where their assignments were overseen by the Yardmasters working at that location. Also included in the Winnipeg terminal is a main yard with a main yard office. Historically the main yard was devoted to marshalling trains moving eastward and westward through Winnipeg from Toronto and Calgary on the Company’s system. Because of the volume of through traffic which was then handled in the two hump yards of the Winnipeg main yard, local traffic was accommodated in the Southside Yard.

It does not appear disputed that the handling of long through freight movements in the main yard caused substantial congestion problems in the early 1980s. To relieve against this problem the Company instituted extra-long tracks in the G-Yard, adjacent to the main line. this enabled the Company to yard lengthy through freight movements of up to 110 cars, eliminating the need to take apart and rebuild the continental freight movements moving through Winnipeg. This in turn, relieved congestion in the main yard and freed portions of it for other purposes.

Another aspect of operations supervised from the main yard office was, and remains, the break-up and assembly of piggyback rail movements. It is common ground that the main yard office has never employed Yardmasters. The marshalling of trains in the main yard, as well as the piggyback operations, have traditionally been overseen by Assistant General Yardmasters (A.G.Y.M.) working out of the main office. The material discloses that they have performed functions analogous to those of the Yardmasters working in the Southside Industrial Yard office, insofar as the train movements and yard switching they have overseen are concerned. There have, however, been certain clear differences in the method of operation, as well as the duties and responsibilities of Assistant General Yardmasters, as compared to Yardmasters. Unlike the Yardmaster, the A.G.Y.M. does not spend the greatest part of his or her working hours in the yard office. While the A.G.Y.M. issues assignments to yard crews under his or her direction, much as the Yardmaster does, he or she spends a substantial period of the working day in the yard as the delegate of the General Yardmaster, supervising the crews at work. The A.G.Y.M. remains in touch with yard crews by means of radio or cellular telephone in his or her vehicle. The A.G.Y.M. is also occasionally involved in chauffeuring crews to and from work locations within the terminal, as well as providing updated instructions as they may arise during the working day. As members of management, A.G.Y.M.s also have other duties such as the preparation and filing of accident reports, attending to injured employees, conducting disciplinary investigations and such other incidental management responsibilities as might arise from their general supervisory obligations.

The principal evidence adduced on behalf of the Company was given by Mr. D.J. McMillan, Superintendent of the Winnipeg Division. His testimony establishes to the satisfaction of the Arbitrator that a number of events contributed to a substantial change in circumstances at the Winnipeg Terminal. Firstly, his evidence confirms that there has been a marked decline in the volume of local industrial switching at Winnipeg over the last five years. That is not disputed by the Union and is indeed confirmed in the evidence of Mr. Bruce Gudmundson who worked as a Yardmaster at the Southside Industrial Yard office over that period of time. What the evidence discloses is that the industrial spur switching assignments which were traditionally overseen from the Southside Industrial Yard office, including the St. Boniface Yard assignments, have continued to operate to the present time. The volume of traffic being handled, however, has declined. While the parties are not agreed on the precise amount of the reduction, or its impact on the work of Yardmasters, I am satisfied on the basis of the figures tabled in evidence by Mr. McMillan concerning the number of cars being handled for several major industrial customers that there has been a significant reduction in the scale of industrial switching in the geographic areas traditionally overseen by Yardmasters working out of the Southside Industrial Yard at Winnipeg.

Mr. McMillan also spoke to the installation of a number of television cameras at strategic locations in the main yard. As Mr. Gudmundson himself explained, that development has freed up Assistant General Yardmen previously assigned to the supervision of piggyback operations. The area where those operations are performed is now fully scrutinized by a bank of television monitors overseen by a Senior Assistant Yardmaster located on the third floor of the main yard office. This has eliminated the need for direct on-site supervision of piggyback operations by A.G.Y.M.s. The evidence of Mr. McMilIan also establishes that the cameras do provide some perspective of a significant portion of the Southside Yard, as a result of which there is now less need for supervisory staff in the main yard office to obtain information on the status of the Southside Yard by radio or by telephone from a Yardmaster in that location.

Mr. McMillan further draws to the Arbitrator’s attention the impact of computer printouts in the assignment of work to yard crews. He states that whereas in the past there was a need for either a Yardmaster or an Assistant General Yardmaster to convey verbal or written directions to a yard crew with respect to their switching assignments, that has been somewhat reduced by the use of the computer printouts which now provide crews with the same information. He submits that as crews familiar with the routine of industrial switching proceed about their duties, they can gain sufficient information from a printout of their assignment without, as a general matter, extensive input from a Yardmaster with respect to the priority of assignments.

Mr. McMillan relates that all of the above developments had a substantial impact on yard operations within the Winnipeg Terminal. Primarily, he stresses that the introduction of G. Yard to accommodate through freight has substantially freed up large portions of the main yard, traditionally directed by A.G.Y.M.s to handle local industrial switching and way freight. He further asserts that the reduction in local and industrial traffic volumes are such as to no longer justify the retaining of full-time Yardmen’s positions on any tour of duty. In his view the work performed by Yardmen in relation to those assignments is so marginal as to be capable of being subsumed into the duties of an A.G.Y.M., without the creation of any new positions.

The Union argues that there has been a wholesale transfer of the duties of the Yardmaster to the A.G.Y.M. to such an extent that the A.G.Y.M. is in performing a job which properly belongs within the bargaining unit. Its counsel points to the fact that persons who had previously performed supervisory assignments out of the main yard office were, over time, phased into the Southside Industrial Yard office, initially working in conjunction with the Yardmaster and, eventually taking over their work entirely. The desk, computer terminal and printer, radio and other equipment and furnishings used by the Yardmaster came to be fully occupied and utilized by the A.G.Y.M. who assumed responsibility for overseeing the crews performing the local industrial switching traditionally done out of the Southside Yard office. The evidence discloses that once the Yardmasters were phased out the work of the A.G.Y.M., including the equipment used, was transferred to the main office. Union counsel argues that that makes no practical difference. In his submission the work traditionally performed by the Yardmasters working out of the Southside office continues to be performed in its entirety by A.G.Y.M.s in the same manner as it had previously been done by the four Yardmasters whose positions were abolished. Counsel argues that in the circumstances the evidence discloses the transfer of the core functions of an entire position from the bargaining unit into the hands of supervisors who became more available for other work because of the installation of G Yard and the automation of supervision in the piggyback operations.

The Union relies on the evidence of Mr. Randy Kostenuk, a person who in recent months has performed the work of an A.G.Y.M. overseeing local industrial switching and who previously worked as a Yardmaster in the Southside Yard office. He states that as an AGYM he performed the core functions of the Yardmaster’s job. When asked to estimate the percentage of his time spent doing Yardmaster’s work he displayed some hesitation, initially estimating his time (doing Yardmaster’s tasks as sixty percent, and later as seventy to seventy-five percent. He acknowledged, however, that he is uncertain as to the precise breakdown of his duties and, for example, could not recall total number of occasions over the last year he worked as an A.G.Y.M. that he would have been responsible for investigating crossing accidents or transporting injured employees to hospital for first aid. Mr. Kostenuk’s evidence, which I judge to have been given fairly and honestly, leaves some doubt about its accuracy insofar as the account he gave was impressionistic, and not the result of a considered study or analysis.

Equally uncertain evidence was given, on behalf of the Company, by Mr. Kenneth T. Dudjinski, who for some six weeks has worked as an A.G.Y.M. overseeing industrial switching. On the whole, Mr. Dudjinski seemed to have difficulty separating his past responsibilities as a relief A.G.Y.M. in the Southside Yard with supervisory authority over Yardmasters, from his current duties. In any event it is Mr. Dudjinski’s evidence that his present duties as an Assistant General Yardmaster are not substantially changed by the additional assignment to him of responsibility for the local industrial switching previously overseen by Yardmasters. He states that he retains responsibility for holding safety meetings, filling out accident reports, conducting disciplinary investigations and maintaining liaison with mechanical staff, track maintenance personnel and staying in contact with dispatchers about general traffic flows. According to Mr. Dudjlnski’s evidence his time spent inside the office doing the tasks of a Yardmaster would occupy one to two hours in a working day. On the whole he estimates that his ratio of inside to outside work has not changed from what it was when he performed A.G.Y.M. functions previously in the main yard.

The parties have referred the Arbitrator to a number of prior arbitral awards dealing with the assignment of functions performed by bargaining unit members to non-bargaining unit personnel. The Union relies on a recent arbitral award respecting a grievance between the same parties concerning the Revelstoke and Golden Yardmasters (Award dated May 8, 1989 (M.G. Picher)). In that case it was found that where the Company established new positions of Assistant Supervisors Operations, abolished Yardmaster positions and effectively gave to the newly-established ASOs jobs which, in substance, involved all of the work formerly performed by Yardmasters, the collective agreement had been violated. The principles applied in that Award were generally stated in the following terms at pp 4-5:

In the instant case the Union does not claim an exclusive proprietary right to perform all of the work previously done by Yardmasters. It acknowledges that the Company has the prerogative to assign work done by Yardmasters to other persons. The ground upon which this grievance is based is the Union’s claim that the transfer of all of the Yardmasters’ functions to the A.G.Y.M.s has effectively brought them within the bargaining unit in the sense noted by the Arbitrator in CROA 406.

In the Arbitrator’s view care must be taken in assessing a claim such as that made by the Union in this case, particularly where the evidence discloses that traditionally the type of work performed by bargaining unit employees has also been performed by others, including supervisors. Re Consolidated Bathurst Packaging Ltd. and International Woodworkers of America, Local 2-69, (1975) 9 L.A.C. (2d) 132 (O’Shea),an award referred to the Arbitrator by the Union, illustrates the kinds of considerations that can arise in situations of "concurrent jurisdiction". At p. l35 tile Arbitrator made the following comments:

The instant grievance raises the recurring difficulty of reconciling jurisdictional lines in respect of work of non-management employees who are nevertheless assigned supervisory authority which is similar to, or supplementary to, the authority of management personnel. The particular problems which arise in such circumstances were identified by the arbitrator in Re Inland Steel (1955) 25 L.A.C. 538 (Updergraff) who commented at p539 of that award:

See also Re Westrock industries Ltd. and United Cement, lime and Gypsum Workers, Local 366,(1973) 5 LAC. (2d) 61 (Beatty).

The Canadian Railway Office of Arbitration has, on a number of occasions, been required to consider grievances in respect of work jurisdiction where the type of work in question had previously been performed both by bargaining unit personnel and by members of management. In particular it has been found that collective agreements were not violated when supervisors who traditionally exercised a role of track inspection were assigned track inspection work formerly performed by maintenance of way personnel. (See CROA 1655, 1803 and see also CROA 322, 324 and 1379).

With the foregoing principles in mind, I turn to consider the merits of the instant grievance. In the Arbitrator’s view the facts of the instant case are markedly distinguishable from those arising in the case of the Revelstoke and Golden Yardmasters. The position of A.G.Y.M. is not newly established, and in fact has existed It Winnipeg for good number of years. The uncontroverted evidence before the Arbitrator is that in respect of tile main yard, persons occupying the position of A.G.Y.M. have traditionally discharged duties and responsibilities which are in substance, indistinguishable from those of a Yardmaster. like the Yardmaster working in the Southside Industrial Yard, the A.G.Y.M.s working out of the main yard office have assigned and supervised the switching work of yard crews operating in and around the area of the main yard. This has included the breaking up and marshalling of trains for through traffic prior to the implementation of G Yard, the switching of movements to relieve against congestion in the main yard, the supervision of yard crews involved in piggyback service and lastly, the supervision of switching operations to service customers on what was described as the "merchandise service". In overseeing these yard functions the A.G.Y.M.s have discharged responsibilities which are virtually indistinguishable from those of Yardmasters. Significantly, A.G.Y.M.s have been exclusively responsible for yard crews working in and from the main yard. While it is true that they have not been as office-bound as the Yardmasters, they have nevertheless maintained ongoing contact with the crews under their supervision, either by being physically present when the work is performed, or accessible by means of radios or cellular telephones in their vehicles.

The evidence establishes that over a period of time the industrial switching performed under the direction of Yardmasters out of the Southside Industrial Yard experienced a sharp decline in volume. While it is true, as the Union asserts, that all or nearly all of the same switching assignments servicing local industries continue to operate, they do so at markedly lower volumes. A consequence of that change was a reduction in the amount of work available to fill a Yardmaster’s time. Simultaneously, other changes came to bear. The implementation of G Yard for the yarding of large through freight movements freed up substantial sections of the main yard previously dedicated to that purpose. Additionally, the installation of cameras to monitor piggyback assembly operations liberated A.G.Y.M.s to perform additional duties. In light of all of these factors the Company decided to move the greater part of the Industrial switching work from the Southside industrial Yard into the main yard, and to place that work under the direction of A.G.Y.M.s who had traditionally overseen switching movements in and out of that location. The evidence discloses that as a result only a small percentage of the industrial switching which previously existed remains attached to the Southside Industrial Yard, while the St. Boniface Yard switching is now overseen by A.G.Y.M.s in the main yard office.

The Arbitrator is aware of nothing within the terms of the collective agreement, or in general principle, which in the circumstances of this case would have limited the Company’s ability to remove industrial switching work from the Southside Yard, and the Southside Yard office, into the main yard, to be directed out of the main yard office. The supervision of yard crews working in and out of those locations has traditionally been performed by A.G.Y.M.s. The material discloses that the transfer of that work has been accomplished for good and sufficient business purposes.

Can it be said that what has transpired is the wholesale transfer of Yardmaster work contrary to the collective agreement? I think not. Firstly, the supervision of yard crews within the Winnipeg Terminal has been a matter of concurrent jurisdiction, shared by Yardmasters and Assistant General Yardmasters for many years. In this respect the facts of this case are closer to those of CROA 1803 and CROA 1655 than they are to the facts disclosed in the Revelstoke and Golden award. Additionally, the Arbitrator is not prepared to conclude on the basis of the evidence before him that the work now being performed by the A.G.Y.M.s, including that small portion of the work which still is located in the Southside Industrial Yard, constitutes a major burden of the working time of an A.G.Y.M., so as to bring the person in that classification within the ambit of the bargaining unit. As noted above, Mr. Kostenuk was generally unreliable in attempting to break down the components of his working time. While it is true that he performs all of the responsibilities previously performed by Yardmasters, that is not inconsistent with the kind of work traditionally performed by A.G.Y.M.s in the main yard. And although the value of Mr. Dudjinski’s estimates may be equally doubtful, I think it is fair to conclude that the portion of the working time of an A.G.Y.M. which relates to industrial switching movements still utilizing the Southside Yard is extremely small.

In summary, the Arbitrator finds that yard switching within the Winnipeg Terminal has been a matter of concurrent jurisdiction as between Yardmasters and Assistant General Yardmasters for many years. The transfer of industrial switching into the main yard, an area traditionally overseen by A.G.Y.M.s was implemented for valid business reasons. A.G.Y.M.s continue to devote a substantial period of their working day to other functions, such as transporting crews, overseeing safety and discipline and all of the related managerial documentation and record-keeping. In all of the circumstances, and having particular regard to the history of the concurrent jurisdiction disclosed, the Arbitrator cannot find that the article 15 notice served upon the Union was improper, or that any violation of the collective agreement is disclosed.

For the foregoing reasons the grievance must be dismissed. The matter is referred back to the parties for further progressing under the terms of article 15, in respect of which the Arbitrator shall retain jurisdiction.

DATED at Toronto this 1st day of May, 1990.