AH – 437
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
GRIEVANCE RE HOURS OF WORK IN THE CUSTOMER SUPPORT CENTRE, WINNIPEG
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
D. S. Fisher – Director, Labour Relations, Montreal
S. Grou – Manager, Labour Relations, Montreal
D. Rennie – Manager, Human Resources, Customer Support Centre, Winnipeg
B. Boucher – General Manager, Montrain, Montreal
And on behalf of the Union:
D. Olshewski – National Representative, Winnipeg
A. Wepruk – National Coordinator, Montreal
D. Zueff – Local Chairman, Ste. Anne
G. Paradis – Material Attendant, Winnipeg
R. Johnston – Local Chairman, Montreal
J. Kosary – Local Chairman
S. Pogorzelec – President Local
R. Doherty – Local Chairman, Winnipeg
P. Didine – Senior Engineering Clerk, Edmonton
A hearing in this matter was held at Montreal on Monday, 10 February 1997.
This grievance alleges a violation of article 4.4 of the collective agreement, by what the Union maintains is an improper extension of the hours of work of employees assigned to positions in the Company’s Customer Support Centre in Winnipeg. The Dispute and Joint Statement of Issue, filed at the hearing are as follows:
The hours of work assigned to positions in the Customer Support Centre in an alleged violation of article 4.4 of Agreement 5.1.
JOINT STATEMENT OF ISSUE:
On February 17, 1995, the Company served notice on the Union to abolish 320 positions of various classifications. From this streamlined process, a new classification of Customer Service Representative was established and centralized in Winnipeg. Day shift positions were posted with eight hours of assigned work per shift, not including a one-hour unpaid lunch period.
The Union contends that this is in violation of past practice and that the Company has violated article 4.4 of agreement 5.1, be establishing different hours of work for these newly created positions. The Union further alleges a case of res judicata (CROA 2050).
The Union requests that the hours of work be amended and that the positions in question be red-adjusted accordingly. As well, the Union requests that those employees affected be compensated retroactively at punitive rates as is inherent to the power of the Arbitrator.
The Company denies any violation of the collective agreement.
Furthermore, the Company argues that the request for punitive rates for compensation was not raised in the Union’s grievance and appeals, and therefore does not form part of the dispute.
For The Company: For The Union:
S. GROU D. OLSHEWSKI
for: Director, Labour Relations for: National Coordinator
Article 4 of the collective agreement deals with hours of work and provides, in part, as follows:
4.4 Where it has been the practice for weekly rated employees to work less than eight hours per day, that practice shall be continued unless changed on account of conditions beyond the control of the Company. Should conditions occasionally demand, employees working such reduced hours may be required to work eight hours per day and overtime will not accrue until after eight hours’ service has been performed. To take care of regular requirements such employees may be required to work extra hours on certain days and overtime shall only accrue after eight hours’ service has been performed.
The material before the Arbitrator establishes that on February 17, 1995 the Company issued to the Union a notice under article 8.1 of the Employment Security and Income Maintenance Agreement. The notice concerned the abolition of 320 positions, system wide, and the related creation of 237 Customer Service positions at the newly established Customer Support Centre in Winnipeg. Among the positions newly established in Winnipeg are some 167 positions of Customer Service Representative. The Union alleges that the new positions involve little more than the same functions of the previous bargaining unit position of Service Representative, a position whose hours of work involved an eight hours shift with a thirty minute paid lunch period, inclusive. The Union alleges that the hours of work established for the new position of Customer Service Representative at Winnipeg, with eight hours of assigned work, exclusive of a one hour unpaid lunch period, constitute a violation of the protections for pre-existing hours provided under article 4.4 of the collective agreement. In support of its position the Union cites CROA 2050.
It is clear from the award in CROA 2050 that the Company cannot abolish a position whose hours of work are less than eight hours in a day, and subsequently re-establish a new position which essentially involves little more than the same core functions of the prior job, but with longer hours of work. The issue in the instant case, therefore, becomes whether the newly established positions of Customer Service Representative at Winnipeg are, as the Union contends, little more than the pre-existing positions of Service Representative, so that the Company must be constrained to respect the previously existing arrangement of an eight hour work day, inclusive of a half-hour paid lunch period.
Upon a close examination of the material filed, the Arbitrator is persuaded by the position of the Company, in this particular case. As the evidence discloses, the establishing of the new Customer Support Centre at Winnipeg, and the positions of Customer Service Representative or, according to the Company’s nomenclature, Customer Support Representatives, did involve a substantial increase in responsibility over and above what was previously vested in Service Representative positions. Significantly, the Customer Support Representatives now perform functions of direct and on-going contact with given customers, and in that capacity exercise customer relation functions which are described as constituting between fifty percent to seventy percent of the responsibilities previously discharged by persons occupying the management positions of Customer Service Representative and Sales and Service Representative. In recognition of the increase in direct customer relations functions, and enhanced responsibility for direct trouble-shooting and decision making, the Company established a new rate of pay for the new classification.
It is undeniable that there is a certain degree of overlap between the new position and the former Service Representative positions. I am satisfied, on the balance of probabilities, however, that the two positions are significantly different, principally by reason of the vesting in the new position the preponderant core functions previously performed by management staff in the former position of Customer Service Representative and Sales and Service Representative. That change is, in my view, a significant qualitative alteration of what went before, so as to fairly take the newly established position out of the ambit of article 4.4 of the collective agreement. The instant case must, in my view, be distinguished from CROA 2050 where, as appears from that award, the newly established position was, for all practical purposes, indistinguishable from the prior which had the protections of article 4.4 as regards hours of work.
For all of the foregoing reasons the grievance must be dismissed.
DATED AT TORONTO, this 5th day of March, 1997
(signed) MICHEL G. PICHER