AH – 310
IN THE MATTER OF AN ARBITRATION
BC RAIL LTD.
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL NO. 6
GRIEVANCE RE HAND GRINDER 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 Vancouver, B.C., on April 27, 1992.
This dispute arose from a grievance filed by the Union on October 25, 1989 in which it is alleged that the Railway was in breach of the collective agreement when it refused to pay two grievors, Rajinder Varan, and Bajinder Bhullar, at a machine operator 5 rate during a two-week period when they were assigned to the task of grinding switches. The dispute arose because the grievors performed their task with a hand-held grinder rather than a machine grinder. The Union said it was the task and not the machine that determined the rate. The position of the Railway, in effect, was that the rate paid to employees is calculated under Article 18 of the collective agreement on the basis of the classification of the employees to whom the work is normally assigned and that the grievors were not performing work falling within the machine operator 5 classification.
In that context, the Railway submitted that at the material time the grievors were assigned to the classification of sectionmen working in the Prince George yard. That classification entitled them to receive the rate of a first class sectionman under Article 18.1. The position of the Railway was that switch grinding with a hand-held grinder fell within the work tasks of a sectionman. The higher rate, said the Railway, was reserved for employees operating machines listed in the operator 5 classification. I pause to note that there are four classifications relating to rail grinders in Article 18.7, being the provision relating to employees in the Material Handling and Railyard Department, but that they have no application to this dispute. That is, there was no suggestion that the work assignment in question fell within the Material Handling Department. The issue was whether the work assignment fell within Article 18.5.
The central question raised in the dispute is whether a similarity in tasks is sufficient to bring work within a higher classification. In particular, the thrust of the Union argument was that where the task assigned involves the grinding of rails, the fact that the grinding done by the grievors was being done with a hand grinder did not distinguish it from rail grinding done by machine operator group 5 employees working with a frog and switch point grinder. The position of the Union was that the assignment of the grievors to the performance of rail grinding on a steady basis for a period of two weeks, albeit with a hand grinder, was the equivalent of operating a frog and switch point grinder and entitled the grievors to receive the higher rate.
The position of the Railway was that employees are not deemed to fall within the machine operator group 5 classification unless they are operating one of the machines specifically listed under group 5 in Article 19.1, being the provision designating the machine groupings upon which operator rates under Article 18.5 are determined. The provision lists 16 specific machines, one of which is the frog and switch point grinder. On the facts it was clear that the hand grinders used by the grievor did not fall within that grouping.
The Union took as its broad position the assertion that the claim in this dispute was by way of example only and that the group 5 rate should be paid to employees operating any gas or electric powered machine, even those which were not included in the machine groupings in Article 19. Its view was that the sectionman rate was restricted to tasks involving the use of what may be described as traditional hand tools. It based that position on the submission that the Railway had followed the practice of paying the higher rate to section and gang employees when they used hand-held power tools.
The Union’s alternative position was that the Railway was obligated to negotiate a rate with the Union for any new equipment introduced into the operation and, in the absence of those negotiations, to have a rate fixed by arbitration. The Railway had neglected to a fix a rate for hand-held grinders and other power tools and machines, said the Union, and the appropriate rate to be fixed was the one the parties had negotiated for the operation of group 5 machines. Its reasoning in that regard was that the group 5 classification was the lowest machine operator classification available.
Turning to the extrinsic evidence of practice, the response of the Railway was that any circumstance in which employees had been paid at the group 5 rate to operate machines not falling within the Article 19 groupings occurred without the knowledge or consent of management. The Railway said those circumstances were isolated and said that they were redressed as soon as they came to the attention of management. The Railway said that the circumstances giving rise to this dispute made it clear that the Union had no basis for concluding that it had agreed to pay the group 5 rate to employees assigned to operate equipment other than the equipment listed in the group 5 classification.
In that context, the Railway relied first on the grievance documents to support its contention that the Union was aware that the Railway’s position was contrary to what was asserted by the Union. The Railway relied in particular on a submission from the Union in a letter dated February 8, 1990, which reads as follows:
Most recently it appears that a number of machines have been brought onto the property, and operated by the section crews. Examples are: hand-held air compressors (backpack), hand-held frog and switch grinders, weedeaters, pionjars, electric drills for crossing repairs, generators used for multipurpose jobs, polar pack brushcutters, law movers, snowblowers, and a multitude of other small machinery. The employees are not being compensated for the additional responsibility involving the proper use of the machinery. The General Committee of Adjustment is suggesting that a meeting be held between your office and the Committee to discuss these matters, although a blanket application has been made for placing the responsibilities of operating hand-held Power tools into the Collective Agreement based on a Group 5 Operators Rate. The Committee raised the concerns about the unilateral imposition of new tools without negotiating, as being a contravention against the Collective Agreement.
That letter, said the Railway, was inconsistent with the suggestion that the Railway was perceived by the Union as having agreed in practice that the group 5 rate would be paid to employees operating the machines enumerated in the letter. The Railway said further that the isolated incidents where employees received the higher rate occurred under Article 18.14 and arose outside of management’s direct control. That provision reads:
Employees temporarily assigned to higher-rated positions shall receive the higher rates while occupying such positions.
It was explained that employees fill in time cards in which they indicate any positions they have occupied on a temporary basis and their time cards are approved by their shift foreman. There was evidence that gang members and sectionmen are routinely assigned to operate various of the group 5 machines and regularly claim the higher rate under Article 18.14 on a temporary basis. The evidence of the Railway was that there is no way in which the validity of a claim under group 5 can be determined upon a review of the time card. It was conceded that some sectionmen had received the higher rate when operating hand-held equipment, but that supervisory employees were instructed to cease the practice whenever it came to the attention of senior management. In short, there was no evidence to support a finding that management of the Railway had acceded to the Union interpretation.
The Railway relied further on the bargaining history of the disputed provisions to support its contention that both parties understood that group 5 rates would only be paid to employees assigned to operate group 5 machines. Filed in evidence were copies of a Union proposal dated February 6, 1990 with respect to amendments the Union sought with respect to Article 19. 1. In particular, the Union proposed to have the group 5 listing amended to include “pionjar tamper [and] all hand-held gas and electric power equipment”. That proposal was carried forward to joint council negotiations on May 10, 1990 as one of the proposals made by this Union. The changes were not agreed to by the Railway.
The Railway said that its position had always been that the appropriate remedy for the Union when seeking to include equipment in the group 5 listing was to negotiate that issue with the Railway, a fact it saw as consistent with the Union’s bargaining proposal. The Union response was that it had sought the changes in bargaining so that the language would be in accord with what it understood to be the practice. In any event, said the Union, the nature of the bargaining in the 1990 session was such that the failure to amend Article 19.1 in the terms requested should not be seen as a rejection of the proposal by the Railway. The Union position was based on the fact that 1990 bargaining was facilitated by mediator Vincent L. Ready and that there continued to be some question of the legal status of the agreement that came out of those proceedings. However, it was clear that the Union proposal was not accepted.
The evidence in the dispute went well beyond the use of rail grinders and dealt with other hand-held equipment, including rail saws and rail drills. The position of the Union was that hand-held equipment that performs a work task equivalent to that performed by equipment that does fall within the group 5 listing should be paid for at the group 5 rate. Stripped to its essentials, the submission of the Union was that function should determine the rate and that where employees performed the task of rail grinding, whether in the operation of a frog and switch point grinder or a hand-held grinder, they were entitled to the same rate.
In addressing those issues, I am restricted to a consideration of the breach of the collective agreement alleged in the grievance. That is, the question is whether the grievors were entitled to claim the group 5 machine operator rate even though the hand-held grinders they were using did not fall within the group 5 listing. This collective agreement does not have a job evaluation or job description provision in it and does not have provisions for determining disputes with respect whether particular work is properly classified within the wage rate structure of the collective agreement.
In this agreement, rates of pay are based upon the classification into which the work an individual employee performs is assigned. Positions are created by posting under Article 9.2, a process which designates the “classification of [the]position”. The classifications and their respective rates of pay are set out in Article 18. In the ordinary course the question of the rate of pay is determined routinely by determining the classification of the position occupied by a particular employee at a particular time. Further, Article 18.14, which, as stated, provides that employees temporarily assigned to a different classification are to receive A 4.3 the higher rate of pay, addresses that right in terms of the positions into which the work assignment falls.
In short, an employee claiming a higher rate than the rate fixed for the position the employee occupies must establish that the claim is based upon an assignment to a higher-rated position. In order to meet that onus in this dispute, it would be necessary for the grievors to establish that the operation of hand-held grinders falls within the group 5 operator classification and that they were assigned to positions in that classification. Here there was no dispute on the facts that the grievors had not been assigned to operate any equipment within the group 5 machine operator classification.
In asserting its position the Union relied on Re Canadian General Electric Co. (Davenport Works) and United Electrical, Radio and Machine Workers of America (1951), 3 L.A.C. 991 (Laskin), where Professor Laskin wrote on p. 993 as follows:
It is accepted that the Company cannot evade its obligation to pay the rate annexed to a particular classification by assigning all the duties thereof to an employee in another classification. If this were permitted, it would empty the various occupational classifications of all meaning. Similarly, it would be improper f or the Company to give a new name to the duties of an existing classification and seek to attach a lower rate of pay to the new category.
However, the Union’s reliance on that decision is based on the assumption that operating a hand-held grinder constitutes the same work as operating a frog and switch point grinder. The same can be said with respect to the Union’s reliance on the decision in Re Dunham Bush (Canada) Ltd. and United Steelworkers (1969), 20 L.A.C. 419 (Weiler), where Professor Weiler said, in effect, that job classifications must incorporate measurable distinctions between categories of work in order to justify distinctions in the rates paid for that work. He wrote in particular on p. 421 as follows:
The purpose of a wage schedule with different job classifications is to ensure that equal work will attract equal pay and that relevant differences in skill, complexity, difficulty, etc. will be reflected in monetary rewards …
The Union relied on that passage to support its contention that here the work performed by the grievors was the work of rail grinding regardless of the machine used to perform that function.
For its part, the Railway relied on Professor Weiler’s decision to support the assertion that it is management that has the right to classify work and fix rates subject only to the test of good faith and any express provisions of the collective agreement. On p. 423 Professor Weiler expressly acknowledged the right in management, in the absence of limiting language, to fix the rate for new work. The Railway also pointed to the following passage on p. 422:
Though job classifications must have some real and objective content, they are not necessarily complete self-enclosed, water-tight compartments. Any classification contains a variety or related tasks and functions. Parties should not be presumed to have intended that there be absolutely no overlap in the functions that are performed by differently-classified employees earning different rates.
Here, said the Railway, the rates at issue were negotiated under the collective agreement. It submitted that the structure of the machine groupings in Articles 19.1 and 19.2 carried the clear implication that rates are based upon the nature of the machine and the complexity of its operation, with the highest rate going to operators of the machines listed in group 1 and the lowest rate going to the operators of machines listed in group 5. In the face of that negotiated structure, said the Railway, there was no basis for an implication that employees assigned to perform tasks that are similar in purpose are entitled to the same rate regardless of how the task is performed. Here the issue is not whether the grievors were grinding rails, said the Railway, the question is whether they were operating machines that carried a designated rate.
The Union sought to rely on the previous decision between these parties in the Article 36.3 Arbitration, unreported, July 29, 1988, to support the proposition that when each piece of hand operated power equipment was introduced to the Railway, the Railway had a contractual obligation it had failed to meet to classify the equipment in accordance with the existing classification and rate structure. The Union relied on the following passage appearing on p. 23:
Further, it is implicit that the parties intended that new work and changed work would be assigned in a manner sensitive to the jurisdictional lines that are implicit in the departmental and classification structure.
The Union argued in particular that when various pieces of hand operated equipment were introduced by the Railway, they should have been classified with respect to its appropriate rate on the basis of the task to be performed by the machine. The Union relied heavily on the following statement made on p. 31:
Nothing in the collective agreement or in the arbitral authorities contemplates that the Railway has a unilateral right to impose fundamental changes in the classification structure. The railway, as I will detail shortly, has the right, subject to grievance and arbitration, to introduce new classifications and new rates during the currency of a collective agreement to accommodate new or changed work that does not fit within the existing classification and rate structure negotiated by the parties.
But it cannot amend the terms of the agreement, including implied terms, without the consent of the union.
The Union also relied on the following statement on p. 33:
If this dispute had followed the ordinary course the railway would have fixed a classification and rate for a job in which employees were required to operate UTV’s and perform other work on the section. The union would have had the right to challenge the classification and rate. If the dispute went to arbitration, the arbitrator would review the decision of the railway and apply well defined arbitral principles in determining whether the new classification and rate were appropriate, having regard to the nature of the new or changed work in comparison with the work performed by employees in existing classifications and the rates paid for that work.
In assessing the reasoning in those extracts, the following comments appearing on pp. 36-7 should be considered:
Where a new machine is introduced to assist in the performance of existing work, the railway is free to assign it in accordance with its view of the exigencies of the operation. It is further acknowledged that the existing classification structure does not incorporate operator positions in various departments outside the machine operator departments. But once again the collective agreement does not prevent the railway from introducing such classifications if the decision reflects a reasonable response to changing circumstances and if it does not compromise or subvert the existing classification and rate structure.
Here the Union said the introduction of hand-held machines required the Railway to fix a rate for their operation and that the rate paid to group 5 machine operators was a good indicator of an appropriate rate. The Union said that hand-held machines were labour saving devices which had resulted in a significant decrease in the size of the labour force. That fact, said the Union, provided a basis for requiring the Railway to fix a rate higher than that paid for hand labour. But that position is not consistent with the rate structure of the collective agreement or the manner in which rates are negotiated. Rates paid for operating machines have been negotiated on the basis of the complexity of the individual machine, not the task it is designed to perform.
I conclude that the Union did not establish that the Railway was in breach of the collective agreement when it assigned the grievors to grind switches with a hand-held grinder with no increase in rate. Undoubtedly the Railway is accountable for rates it fixes unilaterally for the performance of new work, including the operation of new machines. For example, if the Railway introduced a new type of crane but assigned the operation of it to a group 5 machine operator, that would be a clear violation of an implied term of the collective agreement that work will be assigned in a manner consistent with the existing classifications and wage rates negotiated between the parties. That conclusion reflects the principle that equal work will receive equal pay. In that context, it may have been open to the Union to assert in a timely fashion that hand-held equipment should attract a higher rate and to pursue that position through grievance and arbitration. In that case, it would be open to the parties to address the issue of whether an operator of a particular hand-held machine fell properly within a higher classification.
I digress to say that the facts before me did not indicate that the operation of hand-held grinders was equivalent to the operation of the machines listed in the group 5 classification. In addition, and in any event, the very structure of the group 5 provision and its listing of specific equipment implied an intention to have its application limited to the operation of the list of machines negotiated between the parties. Here the Railway did not agree to include hand-held grinders in the list and the facts do not support a finding that the parties intended that employees using hand-held grinders would receive the same rate as group 5 operators. More particularly, it appeared from the evidence that hand-held grinders are used routinely by sectionmen with no pretence that the use of them justified a higher rate. In the result, I conclude that the Union failed to prove any breach of the collective agreement and the grievance must be dismissed.
DATED at the City of Vancouver, in the Province of British Columbia, this 10th day of November, 1992.
(signed) ALLEN HOPE, Q.C.