AD HOC

AWARD

The Union grieves that the Company has disregarded the provisions of the collective agreement by assigning to management personnel the work of four traffic coordinators, also known as yardmasters, at the Brampton Intermodal Terminal, resulting in the abolishment of four traffic coordinator positions at the terminal. The dispute is reflected in the Union’s statement of issue, filed at the hearing, which reads as follows:

On April 05, 2002, the Company served notice upon the United Transportation Union, pursuant to article 22 of agreement 4.2, with respect to the abolishment of these [traffic coordinator] positions.

The Union advised the Company, on April 25, 2002, and again on 11 June 2002, that the abolishment of traffic coordinators for the purpose of assigning scheduled work to management was a violation of agreement 4.2, established jurisprudence and the specific provisions of the recently signed memorandum of agreement.

The Company disagrees with the Union’s position.

The contrary position of the Company is reflected in a separate statement of issue which it filed at the hearing, which reads as follows:

On 5 April 2002, the Company served notice upon the United Transportation Union, pursuant to article 22 of agreement 4.2, with respect to the abolishment of these four (4) [traffic coordinator] positions.

As a result of an organizational and operational change that occurred on 01 March 2002, there now exists a duplication of duties between the terminal coordinators (managers) and the traffic coordinators (UTU) at that location, which the Company wishes to address.

The Union contends that this change is in violation of the provisions of agreement 4.2, the recent memorandum of understanding and established CROA jurisprudence. Further, the Union contends that the work of traffic coordinators cannot be transferred and therefore does not accept the Company’s offer of maintenance of basic rates to address adverse effects.

The Company disagrees with the Union’s position.

The Brampton Intermodal Terminal (BIT) is a significant part of the Company’s operations. Located some twelve kilometres west of MacMillan Yard in Toronto, the terminal handles intermodal and container traffic in Ontario, utilizing nine pad tracks for loading and unloading and ten yard tracks for storing equipment.

At the BIT management personnel known as terminal coordinators are responsible for prioritizing and determining loading and unloading requirements. Their role has been to communicate that information to traffic coordinators who then work directly with the road and yard crews who are involved in setting up or pulling the pad tracks.

In or about March of 2002 the Company made certain organizational changes with respect to the management of its intermodal terminal system. During that organizational review it came to the view that it could eliminate what it viewed as overlapping duties as between the terminal coordinators and the traffic coordinators, thereby abolishing four traffic coordinator positions at the BIT. The terminal operates with four terminal coordinator positions and four traffic coordinator positions providing seven day a week, around the clock coverage.

The terminal coordinators are responsible for planning and managing the loading and unloading of intermodal traffic on a day-to-day basis. They therefore develop plans for car utilization, pad utilization, the prioritizing of customer requirements, the assignment of car department staff and the overall coordination of all activities, including ensuring that performance programs are maintained and periodically updated.

There is no doubt that there has been an interface between the terminal coordinator and the traffic coordinator. The terminal coordinator is the individual who determines the yarding of trains to the pads and gives information to the traffic coordinator as to where equipment is to be placed. As noted above, it is the traffic coordinator who is then responsible for communicating with road and yard crews to carry out the assignments so determined. Traffic coordinators also perform other related duties, overseeing all movements and work within the yard and performing related record keeping. The change proposed by the Company would eliminate the traffic coordinator, and have the terminal coordinator communicating directly with road and yard crews with respect to the movement of traffic into and about the BIT terminal. To that end the Company served a material change notice on the Union on April 5, 2002, indicating that the four traffic coordinator positions would be eliminated. It emerged from subsequent meetings that in fact the work of the traffic coordinator was to some degree being divided. The principal duties of the function, concerning communication with and direction of road and yard crews are to be handled entirely by the terminal coordinators. Certain clerical and paperwork functions previously performed by the traffic coordinators would separately be assigned to clerks, employees in another bargaining unit represented by the CAW.

The Union submits that the Company has effectively taken the core functions of a bargaining unit position and transferred them into the hands of management personnel, in a way which undermines the bargaining unit and is contrary to the most fundamental precepts of the collective agreement. Its counsel submits that the language of the collective agreement recognizes that traffic coordinators’ work is to be performed by traffic coordinators and that the terms and conditions of such work are to be governed by the provisions of collective agreement 4.2. In that regard he points to the following provisions of the agreement:

2.1 The rules and rates of pay contained in this agreement shall govern the services of employees who, at the effective date of this agreement, are recognized as Traffic Coordinators, and employees subsequently appointed to such positions.

2.2 The word “traffic coordinator” as used hereinafter shall be understood to mean any employee holding seniority under this agreement.

2.3 Traffic Coordinators are defined as those who are directly responsible for yard operations in a certain specified territory during the hours of their assignment.

2.4 Assistant Traffic Coordinators are defined as those who are working under the supervision of a Coordinator during the hours of their assignment.

Additionally, the Union draws to the Arbitrator’s attention the language of Appendix AJ, which is a letter of understanding executed May 13, 2001 in the form of a letter from the Company’s senior vice-president addressed, among others, to the general chairpersons of the Union. That appendix reads as follows:

One of the Council’s concerns during this round of negotiations was the utilization of management personnel when qualified CCROU employees are available for the service required to be performed at the time.

This will confirm the Company recognizes that the main function of management is to direct the work force and not engage in work currently or traditionally performed by employees in the bargaining unit when qualified CCROU employees are available.

It is recognized management employees will accompany crews from time to time when required to perform refresher training.

The Union submits that it is not open to the Company to effectively abolish the bargaining unit position of traffic coordinator, and essentially hand the core functions of that position to terminal coordinators who, it stresses, have not performed those functions in the past. He submits that the provisions and framework of the collective agreement recognize that traffic coordinators’ work is to be performed by persons in that classification, and that the Company’s proposed action would effectively undermine the bargaining unit by taking the same work, all of which continues to be performed, and placing it into the hands of persons outside the bargaining unit. In support of the Union’s position counsel cites the following authorities: Re North West Co. Inc. and Retail, Wholesale & Department Store Union, Local 468 (1996) 57 L.A.C. (4th) 158 (Freedman); Re Hydro Electric Commission of the City of Ottawa and International Brotherhood of Electrical Workers, Local 636 (2000) 90 L.A.C. (4th) 62 (Stanley); CROA 2169, 2279, 2403. Counsel for the Union relies particularly on a decision from the railway industry involving the abolishment of yardmasters’ positions: CP Rail and United Transportation Union (grievance re Revelstoke and Golden Yardmasters) an unreported award of Arbitrator Michel G. Picher dated May 8, 1989.

The Company maintains that the action it proposes is permissible. It stresses that the traffic coordinators have worked hand in glove with the terminal coordinators, who effectively give them the plans and directions which determine train movements, including road and yard assignments within the yard which the traffic coordinators oversee directly in communication with the road and yard crews. The Company asserts that there is no language within the collective agreement which would give to the traffic coordinators proprietary rights over the work they perform. In the absence of any work ownership restrictions, its representative submits that the Company is free to make changes of the kind which it proposes to implement at the BIT. Its representative also stresses that the language of Appendix AJ represents a commitment by the Company to the Union to avoid using managers when temporary vacancies exist on a short term, day to day basis, as long as employees are available. He submits that that was the Union concern which the appendix was intended to address.

In support of the general proposition asserted by the Company reference is made to CROA 1160, 2006 and Ad Hoc 301, an arbitration award between CP Rail and the United Transportation Union concerning the abolishment of positions of yardmasters in the South Side Industrial Yard at Winnipeg, an unreported award of Arbitrator Michel G. Picher dated May 1, 1990.

I turn to consider the merits of this dispute. Grievances involving the reassignment of all or part of the work of a given classification to employees in other bargaining units, or to management personnel, present some of the most challenging issues for boards of arbitration. There are, however, certain guiding principles which have emerged from the jurisprudence. A governing principle is that management cannot, simply by assigning the core functions of a bargaining unit position to a person outside the bargaining unit effectively eliminate the application of the collective agreement to the work in question. That sentiment is reflected in the following passage of the award of Arbitrator Freedman in the North West Company case at p. 169:

That analysis is compelling, and one which I adopt. For the concept of the Bargaining unit to be meaningful, and for the bargaining unit to have integrity, both of which are necessary conditions to a meaningful collective agreement, it must be acknowledged that (absent express language so stipulating) the Company has not reserved to itself the right of assign in a material way work to non-unit members that is normally and regularly done by unit members. Were that not so, then the sanctity of the bargaining unit, and indeed the value of the collective agreement would be fragile and greatly limited at best. That result would be inconsistent with the labour relations regime in this province and country, and could not be sustained without clear language in the Agreement.

Further, at p. 171 Arbitrator Freedman says the following:

Many authorities may be cited which discuss this general concept. These authorities deal with bargaining unit work, which is work normally and customarily performed by unit members, being performed by non-unit members, and engage in a consideration of the “extent” question. What we are dealing with here is a question of fact. Perhaps the issue may be quantitatively determined, or perhaps it is best understood from a qualitative perspective.

It must be recalled that what we are dealing with in this case and in others like it is a question of the preservation of the integrity of the bargaining unit and the related collective agreement. If on an analysis of what has been done by the non-unit member it can be fairly and reasonably concluded that the integrity of the unit and agreement is likely to have been impaired by management’s performing of work, then it must be found that the line, difficult though it may be to discern, has been crossed, and that the “extent” issue must be resolved in favour of the Union.

The same approach has been acknowledged in the awards of the Canadian Railway Office of Arbitration. In CROA 2169, a grievance which involved the elimination of an on-board services bargaining unit position, and the re-assignment of the same duties to a management person who held the title Manager, Guest Services, the grievance was allowed and the following comments appear:

A consistent line of decisions in this Office has confirmed the position pleaded by the Corporation that the instant collective agreement does not confer upon the Brotherhood a right of exclusive property in all of the tasks assigned to bargaining unit members. Consequently, the occasional assignment of some of the work performed by members of the bargaining unit to members of other bargaining units and on occasion to members of management has been deemed to disclose no violation of the terms of the collective agreement. By the same token, however, this Office has consistently expressed the view, reflected in the arbitration awards cited above, that it is not open to the Corporation to disregard the collective agreement by effectively assigning all of the work of a position established within the collective agreement to a non-bargaining unit employee or to a member of management. If that should occur, the conclusion to be drawn is that the person holding the newly established assignment is in fact performing bargaining unit work and must be treated as falling within the bargaining unit. That principle was expressly recognized in CROA 2006 which involved the analysis of a collective agreement similar to the instant agreement, where the Arbitrator commented as follows:

An extensive line of decisions issuing from this Office has confirmed that Collective Agreement 5.1 does not confer a proprietary right to bargaining unit work to the Brotherhood. The awards have acknowledged that in some circumstances the creation of a job or assignment which involve essentially performing little more than the duties of a position falling entirely within the bargaining unit could result in a finding that the person performing the work must be treated as performing work within the bargaining unit. That, however, is not tantamount to saying that the Company is prohibited from assigning tasks which are sometimes performed by employees in the bargaining unit to non-bargaining unit employees. As Arbitrator Weatherill observed in CROA 527:

I was not referred to any provision in the collective agreement (and there appears to be none) which would require the Company to continue to assign particular work to employees in the bargaining unit, or which would prevent it from “contracting out” certain work, or from assigning it to employees in another area, or in another bargaining unit, or to employees not coming from any bargaining unit.

(See also CROA 117, 118, 246, 322, 381, 693, and 1160.)

In my view the principles which apply in a case of this kind were well canvassed in the decision of Arbitrator O.B. Shime in Re Ontario Hydro and Canadian Union of Operating Engineers, Local 1110 (1976), 12 L.A.C. (2nd) 143. At pp 145-47 Arbitrator Shime made the following comments:

We now turn to the collective agreement. The agreement is concerned both about employees and work. The union, according to the recognition clause, is entitled to represent certain defined employees, but it is not just employees in the abstract. The agreement goes on to indicate in the wage schedule the type of work or the occupations which the represented employees are expected to perform. For example, the union is entitled to represent persons who are described as “Turbine Boiler Operator”, “Carpenter”, “Cleaner” and “Crew foremen”. The inference to be drawn is that the collective agreement is concerned both about the employees and the work they perform: see also Re U.S.W., Local 1817 and Fittings Ltd. (1969), 20 L.A.C. 249 (Weatherill).

Arbitrators have been liberal in reviewing management’s rights to rearrange the work that falls within the perimeter of the collective agreement. This area of work may be determined by totalling the duties and functions of the individual jobs or job classifications, and internal rearrangements of this work are necessary to respond to the normal exigencies of business, or as one arbitrator has indicated, management should be entitled to react to “dynamic, technical and market changes”: Re Windsor Public Utilities Com’n and Int’l Brotherhood of Electrical Workers, Local 911 (1974), 7 L.A.C. (2d) 380 (Adams). Other arbitrators have viewed internal rearrangements in the same vein by stating that employees do not have a “proprietary interest in specific job functions” or that “there is no fence around a particular set of job functions” or that particular job classifications are not necessarily “self-enclosed watertight compartments”. Generally, management has been given a wide latitude to react in a reasonable way to both normal and abnormal business conditions. The only condition that from time to time has been attached to the rearrangement of work or to a response to a particular set of facts is that in some cases employees who have been affected have been awarded compensation.

…

There are also some awards which draw an analogy between the subcontracting cases and the assignment cases, but in our view since the Russelsteel award, the two situations cannot be considered analogous because the theoretical basis is not the same. We do not propose to resurrect the pre-Russelsteel controversy in connection with the work assignment cases; suffice it to say that the integrity of the bargaining unit must be given greater support when the total control of the work, the work assignments and the employees within and without the bargaining unit lie with a single employer. In this regard the decision in the Re U.S.W., Local 3684 and Standard Sanitary and Dominion Radiator Ltd. (1954), 5 L.A.C. 1684 (Roach), is particularly instructive.

...

In our view similar considerations apply to the instant case. 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.

In the Arbitrator’s view, in addition to the above principles, a comparison of the two yardmasters cases relied upon by each of the parties is instructive to the resolution of this grievance. In the case involving the Revelstoke and Golden yardmasters the Company abolished positions of yardmaster at Revelstoke and introduced management positions, entitled “Assistant Supervisor Operations” which performed the functions of yardmasters at both Revelstoke and Golden. In allowing the grievance in that case the arbitrator commented, in part, as follows:

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 LA-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 those terms are not capable of definition. Generally speaking, it is surely true that the parties know very 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.

In the case at hand it is not substantially disputed that virtually all of the operational duties of traffic coordinators will be reassigned into the hands of terminal coordinators. I am satisfied that so radical a shift of responsibilities does constitute the transfer of the core duties of the traffic coordinators out of the bargaining unit and into the hands of management. The fact that certain peripheral duties relating to record keeping and paper work have been distributed to clerical employees in another bargaining unit does not change the substance of what has occurred.

Additionally, it is significant to note the distinctions between the instant case and the facts reviewed in the Winnipeg Yardmasters case, relied upon by the Company. In the Winnipeg case a number of significant differences appear. Firstly, it does not appear disputed that in the circumstances there under review there had been a degree of genuine jurisdictional overlap, as the assistant general yardmasters, who were part of management, had previously done a significant amount of the core functions performed by yardmasters. Additionally, the evidence in that case indicated that there had been a substantial reduction in the volume of yardmasters’ work available. Neither of those factors come into play in the case at hand. There is no suggestion in the evidence before the Arbitrator that there has been any significant alteration in the volume of traffic coordinators’ work at the BIT. Significantly, there is no evidence that the core functions of traffic coordinators were at any time shared with members of management, or employees from any other bargaining unit. What the case at hand discloses is, without substantial controversy, the transfer of virtually all of the operational work of traffic coordinators into management ranks. As the Union asserts, that work had previously been performed exclusively by the traffic coordinators. This is plainly not, therefore, a case of concurrent jurisdiction such as was found to operate in the Winnipeg Yardmasters award. In my view the facts of the instant case are substantially closer to those which operated in the award involving the yardmasters’ work at Revelstoke and Golden.

In the case at hand there is an additional factor. Even accepting the interpretation of Appendix AJ which has been advanced by the Company, to the effect that the appendix was intended to address the use of management to perform traffic coordinators functions in short term relief situations, the appendix is nevertheless instructive of the general understanding of the parties. At a minimum, it confirms the recognition on the part of the Company that the traffic coordinators’ work is to be assigned to traffic coordinators, and not to management. If the agreement of the parties expressly limits the ability of management to do traffic coordinators’ work in the instance of temporary absences, in locations where there is no concurrent jurisdiction how can the collective agreement be construed so as to allow the Company to effectively take over the same work on a permanent basis by assigning it into the hands of management? While it might be entitled to do so in circumstances which are similar to those found in the Winnipeg Yardmasters case, I have some difficulty in understanding how it can do so on the facts of the case at hand, given the exclusive jurisdiction which has been accorded to traffic coordinators in respect of the core functions of their work at the BIT.

For all of the foregoing reasons the Arbitrator finds that the grievance must succeed. The Arbitrator declares that the Company’s proposed abolishment of the positions of traffic coordinator at the BIT is contrary to the collective agreement. It can be presumed that the foregoing declaration will suffice for the purposes of the parties’ guidance. In the event that it should not, I retain jurisdiction for the purposes of any further remedy, if necessary.

Dated at Toronto, this 17th day of October 2002

(signed) MICHEL G. PICHER

ARBITRATOR

AH516