IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
SYSTEM COUNCIL NO. 11
RE: LEDCOR PROJECT
Arbitrator: Michel G. Picher
Appearing For The Union:
Stuebing – Counsel, Toronto
Couture – International Representative. Hawkesbury
Kearn – Sr. System General Chairman, Boston Bar
Dembinski – System General Chairman, Burlington
Watt – Eastern General Chairman, Woodstock
Appearing For The Company:
Shannon – Counsel, Calgary
Moran – Labour Relations Officer, Calgary
Azim – Manager, Labour Relations, Calgary
Henty – Manager, Signals & Communications, SOSA
Bilson – Counsel, Calgary
Gauthier – Manager, Signals &
A hearing in this matter was
held in Montreal on Monday, 12 February 2007.
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:
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
The Company denies the
Brotherhood’s contentions and declines the Brotherhood’s request.
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.
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.
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
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.
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.
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.)). ).
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”.
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.
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:
holding a permanent position shall not be appointed to fill a temporary
position in his classification, except when:
from a 40 hour per week position to a standby position; or
bidding on a preferred shift.
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.
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.
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.
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.
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