IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY
(the “Company”)
-and-
CANADIAN SIGNAL AND COMMUNICATIONS SYSTEM COUNCIL
NO. 11 OF THE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
(the “Union”)
RE: WORK PERFORMED BY S&C MAINTENANCE EMPLOYEES
ON THE INDIAN HEAD SUBDIVISION
GRIEVANCE NUMBER 2050-122811
SOLE ARBITRATOR: MICHEL G. PICHER
APPEARANCES FOR THE COMPANY:
Michael Moran - Manager, Labour Relations
Deanne Cote - Officer, Labour Relations
Marcel Gauthier - Superintendent, S & C
Cory Wogrinc - Manager, Track Renewal
APPEARANCE FOR THE UNION:
Denis W. Ellickson - Counsel
Brian Strong - Senior General Chairman SC #11 IBEW
Lee Hooper - Assistant General Chair
Ron Hewson - General Chairman CSCSC #11
Luc Couture - International Representative IBEW
A hearing this matter was held in Montreal on September 14, 2012.
AWARD
The Union grieves the Company’s decision to assign an S&C Maintenance employee to perform work which it maintains was construction work rather than maintenance work on a territory other than the Maintainer’s own territory, providing that individual benefits in excess of those available under the collective agreement in what it characterizes as improper direct dealing. The Company denies any violation of the collective agreement.
At the hearing the parties filed a Joint Statement of Issue which reads as follows:
In September 2011, S&C Maintainer Brent Boux was directed to work on the Indian Head Subdivision, which is away from his assigned bulletined headquarters; and was specifically directed to perform installation work at Hot Box Detectors. The Hot Box Detectors in question were on other S&C Maintainers’ assigned territories (per Article 9). S&C Mobile Maintainer Saskatoon Rick Jawa was also directed to perform this work alongside Mr. Boux. While Mr. Boux was away on the Indian Head Subdivision, S&C Maintainer Dennis Bodnar was forced to cover Mr. Boux’s calls.
The Union contends that the Company’s assignment of the above-noted work entailed several violations of the Collective Agreement (as detailed in its grievance correspondence) as well as direct dealing with the employees in question, contrary to the Canada Labour Code. The Union further contends that the work that these S&C Maintenance employees were directed to perform was S&C Construction Project work which is performed by S&C Wiremen under the supervision of S&C Foremen; the Union contends that, in doing so, the Company breached the Collective Agreement as well as arbitral jurisprudence and is in any event estopped from directing these assignments to S&C Maintenance employees.
The Union seeks a declaration that the Company has violated the Collective Agreement, the Canada Labour Code, arbitral jurisprudence and/or that the Company is estopped from directing the work as set out above. The Union seeks an order that the Company cease and desist such assignments and direct dealing, and that the S&C Construction employees affected by the Company’s actions be made whole for their losses. The Union further requests an order that S&C Maintainer Bodnar be compensated for his forced coverage of Mr. Boux’s headquartered territory.
The Company denies the Union’s contentions and declines the Union’s request.
The collective agreement covers a number of classifications including the classifications of S&C Maintainer and S&C Wiremen. The distinction between those classifications was succinctly described in a prior award of this Arbitrator concerning a grievance between these same parties (Re: Ledcor Project), an award dated February 15, 2007. At page 6 of that award the following passage appears:
… 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.
Brent Boux is a Maintainer whose bulletined territory is Swift Current East, in Saskatchewan. He is responsible for the maintenance of hot box detectors in a territory extending from mile 49.41 to mile 95.77 on the Swift Current Subdivision.
It appears that the Company was encountering difficulties with hot box detectors in severe winter conditions. In 2011 S&C Maintainer Boux collaborated with an S&C Technician, in conjunction with the manufacturer of the hot box detector system, to develop a hot air blower system for the Company’s upgraded hot box detectors. Once the prototype was perfected sites were selected on a priority basis for the installation of the improved blowers. It appears that among the first installations were hot box detectors east and west of Regina as well as on the east side of Moose Jaw. As the S&C Maintainers at those locations were otherwise occupied and did not have the same familiarity with the blower and hot box systems, the Company determined that Mr. Boux should work on the installation with the assistance of the local Maintainers, as required. The Company maintains, without apparent contradiction, that the installation of improved blower systems has, in the past, been performed by both S&C Maintainers and S&C Wiremen from the construction forces. The record confirms that Mr. Boux was assisted in his work by S&C Mobile Maintainer Rick Jawa.
The work done by Mr. Boux and Mr. Jawa was on the Indian Head Subdivision. It is not disputed that that is not a territory adjacent to Mr. Boux’s home territory, being some 250 kilometres distance from his headquarters. The work in question appears to have occupied some ten (10) days spread over a three (3) week duration. Mr. Jawa’s assigned territory is said to be on the Saskatoon Division.
The fundamental position of the Union is that as an S&C Maintainer, Mr. Boux could not be assigned to perform what it characterizes as construction work on the Indian Head Subdivision. Counsel for the Union submits that there is no basis in the collective agreement for an S&C Maintainer to be assigned to perform construction work. Nor, he submits, is there any basis for a Maintainer to be directed to work away from his own territory on an overnight basis for some three (3) weeks. This is not, the Union emphasizes, the case of an S&C Maintainer being assigned on an emergency basis to perform Maintainer’s work in an adjacent territory, something which the Union acknowledges is contemplated within the collective agreement.
The Union stresses that an indirect effect of the Company’s action was to place a greater burden of coverage on S&C Maintainer Dennis Bodnar of Swift Current, who was effectively required to cover the Mr. Boux’s territory for a period of three (3) weeks. That, in the Union’s view, is well beyond what is contemplated in the collective agreement, which is normally coverage for weekends or days off. The Union submits that the treatment of Mr. Bodnar was effectively in derogation of the Company’s commitment to the Lifestyle Improvement Fatigue Education (LIFE) program to improve the safety and quality of life of S&C employees.
It also appears that the Company assisted Mr. Boux with the transportation to his work location of his personal vehicle, a motorcycle, allowing him to pick up that vehicle during Company time. In what the Union characterizes as part of a series of “extraordinary indulgences” of Mr. Boux, it appears that he also received assistance in returning his Company vehicle back to Swift Current, a task which was performed by an S&C Technician.
S&C Maintainers do not bank or receive overtime. Rather, they receive standby pay to be available for emergency callouts. However, the Union notes that Mr. Boux and Mr. Jawa were both allowed to bank overtime under the provisions of article 2.11 of the collective agreement, an article which expressly applies to employees in S&C construction. The Union also stresses to the Arbitrator that Mr. Boux remained in full receipt of his own standby pay for all three (3) weeks that he was involved in the blower installation project. That, the Union submits, is itself a violation of articles 7.1 and 7.12 of the collective agreement which governs the payment of standby allowance, the premise of which is that employees hold themselves available to protect service on their own territories, something which Mr. Boux was in no position to do.
In summary, the Union alleges that Mr. Boux and Mr. Jawa received preferential treatment, not negotiated with or agreed to by the Union, with respect to the transportation of a personal vehicle as well as a Company vehicle, the banking of overtime and the receipt of standby pay in a manner contrary to the terms of the collective agreement and which, in the Union’s characterization, involved direct dealing in disregard of the Union’s status as exclusive bargaining agent for these employees. With respect to direct dealing the Union cites the Company’s own Industrial Relations Handbook which has a section on direct dealing. The Union quotes to the Arbitrator’s attention a passage which includes the following:
… A collective agreement entered into between the employer (representatives of whom include all supervisors and managers) and the bargaining agent is binding on the bargaining agent, every employee in the bargaining unit, and the employer. In other words, because the Unions that represent our employees are certified as bargaining agents for the various bargaining units that currently exist at CPR, they retain exclusive rights to bargain and arrive at agreements containing provisions respecting terms and conditions of employment and related matters for all employees in their bargaining unit.
As a result individual agreements between the employer and an employee or a group of employees are prohibited. In the past, some managers have attempted to make deals directly with employees in regard to things such as scheduling, relocation, or time off in lieu of payment of overtime. These actions are not in keeping with collective bargaining. Collective agreements may contain specific provisions about such issues and these agreements must be respected.
The Union stresses that the position of the Company in the instant case is diametrically opposed to the argument which it made in the prior award concerning the Ledcor Project. In that case the Company stressed a distinct line between the works to be performed by S&C Wiremen as compared to that which belongs to S&C Maintainers.
The position of the Company is radically different from that of the Union. Its representative submits that, in accordance with longstanding practice, it is not uncommon for S&C Maintainers to work side-by-side with S&C construction employees in the installation or upgrading of equipment. Conversely, he submits, S&C Wiremen can also be assigned to assist S&C Maintainers in their own work. There is, the Company asserts, no work ownership within the collective agreement as between these two classifications.
The Company also asserts that it is not uncommon for S&C Mobile Maintainers, such as Mr. Jawa, to relieve or assist in various work functions as determined by the employer. It disputes the Union’s suggestion that Mr. Jawa should be compensated at the rate of full standby pay, stressing that such compensation is only appropriate where a Mobile Maintainer relieves an S&C Maintainer who would otherwise be in receipt of standby allowance. Finally, the Company disputes the burden allegedly placed upon Mr. Bodnar, noting that he was responsible only for coverage on the dates of September 6 to September 8, and was called upon to respond to only one call on Mr. Boux’s territory. On the basis of the foregoing the Company submits that there was no violation of the collective agreement in the manner in which Mr. Boux and Mr. Jawa were assigned and compensated.
I turn to consider the merits of the dispute. On the basis of the material before me, and bearing in mind that the Union has the burden of proof, I can find nothing in the collective agreement which would categorically prevent the Company from assigning an S&C Maintainer to perform or assist in the performance of S&C construction work on a territory other than his or her own. I accept the representation of the Company, which is substantially unchallenged, that S&C Maintainers and S&C Wiremen assist each other interchangeably, as required and as assigned by the Company. While it is true that each of them normally performs a different form of work, neither can lay a proprietary claim to any particular work or an immunity from being assigned to work which is different from their usual assignment. I must agree with the Company that Mr. Boux was not performing S&C construction work, but was properly assigned to repair an existing system.
Nor do I find a violation of the collective agreement, or of the Canada Labour Code, in the fact that the Company may have done Mr. Boux a favour with respect to retrieving his personal vehicle or having his Company vehicle returned by someone else. With respect, I find the Union’s position on this aspect of the grievance to be somewhat harsh and unrealistic. Will it be a violation of the collective agreement if the Company should agree to an employee’s request for time off or an early quit to deal with a child’s or other family member’s activity without first clearing that arrangement with the Union? Absent clear language in the collective agreement, the regime of collective bargaining does not of itself displace the potential for small personal favours in the workplace. As a result, having regard to all of the evidence, I can find nothing irregular or contrary to the collective agreement in the manner in which Mr. Boux and Mr. Jawa were assigned to perform the work in relation to the installation of blowers on hot box detectors on the Indian Head Subdivision.
Greater concern arises, however, when the manner in which Mr. Boux was compensated is examined. Bearing in mind that Mr. Boux was not reclassified as a Wireman for the purposes of his temporary assignment off his territory, and that he continued to perform functions proper to an S&C Maintainer, on what basis can it be claimed that he was entitled to bank overtime? That privilege is, as the Union alleges, one which is exclusive to construction employees, which Mr. Boux is manifestly not. Additionally, on what basis could the Company properly continue to pay to Mr. Boux his standby pay, a form of payment intended to compensate him for holding himself available for emergency calls on his territory when in fact he was some 250 kilometres distant from his headquarters? In my view the Union is entirely correct in its objection to the manner in which Mr. Boux was paid. On the basis of the material before me, I cannot identify any similar flaw in the wage treatment of Mr. Jawa.
For the foregoing reasons the grievance is allowed, in part. The Arbitrator denies the Union’s grievance to the extent that it challenges the right of the Company to have assigned Mr. Boux as it did, to work on a territory which was not adjacent to his own in the installation of blowers for hot box detectors. I cannot conclude that that work could not have been assigned to him as an S&C Maintainer, albeit on an exceptional basis. Nor has the Union pointed to any part of the collective agreement which would have prohibited the Company from assigning and compensating Mr. Jawa as it did. The grievance is allowed, however, to the extent that there was improper compensation paid to Mr. Boux, in that he was allowed to bank overtime and that he continued to receive standby pay when he offered no availability or service in that regard. Nor, for the reasons touched upon above, can I find that there was any improper treatment of S&C Maintainer Dennis Bodnar.
As requested by the Union at the hearing, I limit this Award to the foregoing findings and declarations, and remit the matter to the parties for discussion of the issue of compensation. I retain jurisdiction in the event that they should not reach agreement on that question, or on any other aspect of the interpretation or implementation of this Award. Nor do I consider it necessary to issue a cease and desist order to the Company, being satisfied that the findings and analysis within this Award will be sufficient guidance to it. Finally, and for the purposes of clarity, I am not persuaded that there was any violation of the rule against direct dealing in the manner in which the Company treated Mr. Boux.
Dated at Ottawa, Ontario this 28th day of September, 2012.
_____________________________
Michel G. Picher
Arbitrator