AH600

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC RAILWAY COMPANY

(the “Company”)

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

SYSTEM COUNCIL NO. 11

(the “Union”)

RE: LEDCOR PROJECT

Sole Arbitrator: Michel G. Picher

Appearing For The Union:

K. Stuebing – Counsel, Toronto

L. Couture – International Representative. Hawkesbury

K. Kearn – Sr. System General Chairman, Boston Bar

S. Dembinski – System General Chairman, Burlington

P. Watt – Eastern General Chairman, Woodstock

Appearing For The Company:

M. Shannon – Counsel, Calgary

M. Moran – Labour Relations Officer, Calgary

A. Azim – Manager, Labour Relations, Calgary

K. Henty – Manager, Signals & Communications, SOSA

K. Bilson – Counsel, Calgary

M. Gauthier – Manager, Signals & Communications, NOSA

A hearing in this matter was held in Montreal on Monday, 12 February 2007.

AWARD

The Union grieves the Company’s actions in relation to the assignment of employees for a construction project for the laying of glass fibre for communications in conjunction with a private company referred to as Ledcor. The nature of the dispute is reflected in the statement of dispute and joint statement of issue filed at the hearing, which reads as follows:

DISPUTE:

In the Year 2000 work season the Company undertook a Construction Project in conjunction with Ledcor, involving the laying and installation of glass fibre for communications. The work in this Construction Project was done by Union members but the Union objects to the manner in which work was assigned and the work schedule employed.

JOINT STATEMENT OF ISSUE:

The Brotherhood contends:

1. The Company should have issued a special bulletin for this project.

2. The Company had our members work a schedule that was not negotiated with the Union.

3. That maintainers and technicians were refused to work overtime hours on their territories when Ledcor was actually passing through.

The Company denies the Brotherhood’s contentions and declines the Brotherhood’s request.

The facts pertinent to the grievance are not in dispute. Sprint Canada, a telecommunications company, contracted to install a transcontinental fibre-optic network using, in part, the Company’s right of way to establish a network extending from Vancouver to Toronto. The construction itself, which principally involved trenching and burying the line, was contracted to a contractor known as Ledcor, and was planned in six phases over a period of five years commencing in 1997. It became necessary for the Company to utilize S&C employees to assist on the project, although they were not utilized to perform the direct construction work. The tasks assigned to bargaining unit employees included locating cables, repairing cables damaged by Ledcor crews, flagging for Ledcor when work was performed within ten feet of the rails, providing entry to S&C housings, as needed, and relocating cables to ensure that they did not interfere with the operation of Ledcor’s plow. The Company’s bargaining unit employees also did other tasks necessary to protect the track infrastructure, bridge connections and general signal operations during the course of construction.

The Company decided to utilize S&C Wiremen, as well as S&C Foremen and S&C Assistant Foremen and Helpers to perform the work in question. It expressly did not make the work available to persons holding the classification of S&C Maintainer. The position of the Company is that S&C Maintainers are required to protect communication equipment and signal systems on their assigned territories, to ensure twenty-four hour coverage in the event of any equipment failure or outages. To that end, S&C Maintainers are in fact paid a stand-by allowance said to be an additional 7-1/2 hours pay each week at the regular rate of pay, as a result of which they remain available to be called on their days of rest, with the exception of every second weekend.

It is important, at the outset, to determine the parameters of the grievance of which the Arbitrator is seized and the agreements which might govern my jurisdiction. Among the documents contained in the Union’s brief to the Arbitrator is draft agreement dated June 23, 2000. It takes the form of a letter of understanding addressed to Senior System General Chairmen Mr. Luc Couture and Mr. Kevin Kearns from Mr. R.M. Andrews, the Company’s Manager, Labour Relations. The draft memorandum of agreement purports to deal with access to Ledcor Project work, including Ledcor flagging positions, on District 2, for S&C Maintainers/Wiremen from District 4 who were then laid off or who, being qualified as Maintainers/Wiremen, were not working as such. That draft agreement appears to have been executed by Mr. Couture, but not signed by Mr. Kearns.

The Company takes the position that it never became an agreement between the parties, and that the provisions within the memorandum addressing the flagging positions as working on a 15/6 arrangement, with a twenty hour straight time “equalizer” to ensure an eighty hour pay cheque never went into effect. Upon a careful review of the record the Arbitrator is satisfied that the Company is correct. As indicated by the Union’s representatives themselves at the hearing, there was some profound uncertainty as to the nature of the arrangement negotiated in relation to the Ledcor Project and a general view that no binding agreement had in fact been made. That, to some extent, is reflected in the language of the brief submitted by the Union. In the Arbitrator’s view the most that can be said is that there was a draft memorandum executed between the parties, and that it was in fact abandoned and never enforced as an operating agreement. Alternatively, even if it can be said to have been operational, it does not address the issue which is before the Arbitrator in the case at hand, namely the claim of the Union that all work on the Ledcor Project should have been bulletined and made available to S&C Maintainers from District 2. Indeed the grievance at hand is filed on behalf of seven individuals from District 2 who claim that they should have been given access to the work in question. As stressed by counsel for the Company, in fact no employee who actually worked on the Ledcor Project has grieved any aspect of their treatment, whether in respect of access to the work, wages or work schedules. All of the grievors, except for one S&C Technician, were permanent S&C Maintainers at the time of the grievance.

The Union’s representative submits that the grievance is in fact a policy grievance filed on behalf of all employees who may have been adversely affected by what the Union characterizes as the Company’s breaches of the collective agreement. When questioned, however, the Union’s representative acknowledges that he can produce no evidence of any written understanding with the Company to the effect that the seven individual grievances filed were to be treated as a broader policy grievance on behalf of all employees affected. Counsel for the Company denies that there was ever any such agreement or acknowledgement by the Company, and strenuously submits that, as reflected in the joint statement of issue, the sole question at hand is the merit of the grievances filed by seven employees claiming that there should have been a special bulletin for the Ledcor Project, that the work schedule was not, in any event, properly negotiated with the Union and that the Maintainers and Technicians in the bargaining unit were improperly refused overtime work when the Ledcor Project was passing through their territory.

The Arbitrator is satisfied that the position of the Company must be sustained. From the outset of this dispute the Union had the obvious option of properly filing and giving notice of a policy grievance in relation to the Ledcor Project. For reasons it best appreciates, it did not do so. To allow the Union to now re-characterize the seven individual grievances which are before the Arbitrator as a general policy grievance would be tantamount to converting the dispute into an entirely new and different grievance, something which a board of arbitration cannot and should not do. This is not, as counsel for the Union submits, a case where, because of a mere technicality, the reasoning of the Blouin Drywall case should apply to assist the Union (Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 8 O.R. (2d) 103 (Ont. C.A.)). ).

What, then, can be said of the merits of this grievance? Counsel for the Union submits that the Company has violated articles 4.3, 8.2, 9.01.1, 7.12 and 3.5 of the collective agreement. Article 4.3 concerns the assignment of rest days. Article 8.2 deals with the awarding of bulletined vacancies in accordance with a classification line of promotion based on seniority. Article 9.01.1 provides for bulletins to issue monthly in relation to positions or vacancies of more than sixty calendar days, and to establish seniority dates in the classifications of S&C Maintainer, S&C Wireman, S&C Maintainer’s Helper and S&C Technician. Article 7.12 describes the on-call obligations of employees on their territories, or on other territories if required, outside of regular hours. Article 3.5 falls under an article entitled “Overtime and Calls” and provides that work to be performed on a day which is not part of an assignment is to be performed by a person who was unassigned, laid off or newly employed if that person would otherwise have less than forty hours of work in the week and in all other cases by “the regular employee”.

The Arbitrator has substantial difficulty in seeing in any of the provisions raised by the Union an obligation of the Company which is demonstrated to have been violated. The submission of the Company, substantially unchallenged by the Union, is that the Signals and Communications function of the Company has traditionally been divided along two lines. S&C Maintainers are those persons identified and assigned to maintain the day-to-day operation and repair of S&C equipment, on a territory basis. Their charge is the ongoing maintenance of the system, a purpose in relation to which they are assigned a significant on-call pay premium. They cannot, the Company submits, be spared from that critical troubleshooting function to perform work outside the maintenance function. The second line of classification is that of S&C Wiremen. While those individuals may have the same qualifications as S&C Maintainers, their function is essentially related to construction projects, including projects such as the Ledcor Fibre-Optic Project which gives rise to this grievance.

As indicated by counsel for the Company, article 9.02.03 of the collective agreement recognizes the distinction between the maintenance and the construction functions, and to that extent the distinction between the S&C Maintainer on the one hand, and the S&C Wireman on the other. It reads as follows:

9.02.03 Employees holding a permanent position shall not be appointed to fill a temporary position in his classification, except when:

i) bidding from a 40 hour per week position to a standby position; or

ii) when bidding on a preferred shift.

NOTE: Preferred shift will be the shift preferred by the individual employee. The employee will only be allowed to bid on a preferred shift at the same Headquarters location.

Very simply, the Company maintains that the above provision expressly prohibits persons in the position of the grievors, who hold permanent S&C Maintainer positions, from attempting to fill temporary positions in their classification, namely positions as S&C Wiremen on the Ledcor Project.

The submission of the Company is that the division between maintenance and construction, and hence between the work of S&C Maintainers and S&C Wiremen, has long been in effect. Counsel for the Company maintains that the manner in which the Ledcor Project was administered was in fact in keeping with a well-established past practice which has not been the subject of Union protest or grievance in the past. Indeed, he submits that in geographic areas other than District 2, the same Ledcor Project was administered by utilizing S&C Wiremen in the very manner which is the subject of this grievance, albeit without any protest from the Union in those locations.

On the whole, therefore, the Arbitrator is satisfied that the Union has not discharged the burden of proof of establishing that the Company was under any obligation to bulletin, for the benefit of person holding permanent positions as S&C Maintainers or S&C Technicians, the temporary wiremen’s work associated with the Ledcor Project. Nor, in the light of the language of article 3.5 of the collective agreement, can the Arbitrator conclude that S&C Maintainers were somehow entitled to perform overtime work when Ledcor was passing through their territory. As that provision clearly states, such overtime work is to be performed by “the regular employee”, which in this case must be taken to mean S&C Wiremen normally employed on a construction project.

What of the claim that the Company effectively compelled the Union’s members to work a schedule which was not negotiated with the Union, the second point raised in the joint statement of issue? With respect to that issue the Arbitrator is compelled to the conclusion that the evidence is simply not conclusive. One witness brought on behalf of the Union indicated that his work, generally as a foreman, was consistent with working on a 15/6 work schedule arrangement. On the other hand the representations of the Company indicate that the wiremen employed in District 2 were essentially paid on the basis of receiving overtime for their regular days off, and were voluntarily given the opportunity to work or not as they chose. In support of that characterization of the facts, counsel for the Company again reiterates that no employee who actually worked on the Ledcor Project has grieved any aspect of his or her treatment.

Bearing in mind that it is the Union which has the burden of proof in this case, the Arbitrator cannot find, on the balance of probabilities, that in fact the Company forcibly implemented a 15/6 work schedule arrangement against the Union’s wishes. While the Arbitrator can appreciate the position which motivates the Union’s grievance in respect of this aspect of the case, the payroll records and other evidence tendered are simply not sufficient to make a determination on this matter.

For all of the foregoing reasons the grievance must be dismissed.

Dated at Ottawa this 15th day of February, 2007.

(original signed by) MICHEL G. PICHER

ARBITRATOR