BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

J. H. Clark

A. Rotondo

A hearing in this matter was held in Montreal on March 10, 1976

This is a claim for three hours’ overtime submitted by the grievor, an electrician. On March 26, 1975, at approximately 4:00 p.m., a radio unit was inserted in Engine 1517 by Communications Maintainer W. Moore, who was on a training session with his instructor, Train Radio supervisor J. Beverley. Mr. Moore, as a Communications Maintainer, is employed by the Ontario Northland Transportation Commission in a branch known as Ontario Northland Communications which would appear to be distinct, at least for some purposes, from the Commission’s railway operations. It is the Union’s claim that the work which was performed on the occasion referred to ought to have been assigned to an Electrician in the employ of Ontario Northland Railway, and in particular that it ought to have been assigned to the grievor.

At the hearing of this matter the Company’s representative raised the preliminary objection that the matter was not arbitrable, since the matter of jurisdiction over the employee concerned was not covered by the collective agreement. With the consent of the parties, I reserved my ruling on this question, and proceeded to hear the matter on its merits. As to the preliminary objection, it is my conclusion that it must fail. The question whether or not the assignment was in violation of the collective agreement is a question of substance in this case, and it is clearly one which an arbitrator has jurisdiction to determine. It cannot properly be dealt with as a preliminary matter, since it involves the determination of the issue itself.

The Union’s claim, is that the work in question is Electrician’s work, within the meaning of article 57.2 of the collective agreement. The collective agreement itself is between two parties, namely The Railway Association of Canada and Division No. 4, Railway Employees’ Department, AFL-CIO. It is, binding on a number of employers, including Ontario Northland Railway, and on a number of trade Unions, including the International Brotherhood of Electrical Workers, Local 1790, of which the grievor is a member. The collective agreement deals with wages and working conditions for employees in a number of crafts, including that of Electrician, and it sets out certain special rules with respect to the jurisdiction of the several crafts.

These rules would appear to have been agreed to, not only by the parties to the collective agreement, that is the Railway Association and Division No. 4, but also by the several craft Unions bound by the collective agreement.

Mr. Moore, who performed the work, is a member of a bargaining unit represented by the Brotherhood of Railway, Airline and Steamship Clerks. Neither Mr. Moore, nor the trade Union representing him, would be bound by the collective agreement made between the parties to these proceedings, nor would they be bound by the award in this case, although any employee would be affected by an award which determined that he came within the scope of a particular bargaining unit. In this case, however, the only claim is that the work in question ought to have been assigned to the grievor.

Article 57.2 of the collective agreement defines "electrician’s work" as follows:

The Union relies particularly on the words "All inside work on … radio equipment …" as justifying its claim that the work should have been assigned to the grievor. Article 61.1 of the collective agreement is as follows:

In the light of that provision, it would seem that as between an Electrician and a member of some other craft covered by the collective agreement, the assignment should be given to an Electrician. In the past, such work has been performed by Electricians, although the Ontario Northland Transportation Commission has, in recent years, developed radio communication for its railway operations under the direction of a distinct branch, Ontario Northland Communications, as has been noted. From the material before me, it would seem that the same work, as among employees of Ontario Northland Communications, would properly be performed by a Communications Maintainer, a member of the Brotherhood of Railway, Airline and Steamship Clerks’ bargaining unit. In this award, however, I do not determine whether the work properly "belongs" in one or another bargaining unit. My jurisdiction is limited to determining whether there has been a violation of the particular collective agreement which is before me.

Having regard to the nature of the work and the provisions of article 61.1, it is my conclusion that, as between the craft employees of Ontario Northland Railway, the work should properly be assigned to an Electrician. That conclusion does not resolve the issue in this case, however, because the assignment that was made was one to a person outside the bargaining unit. The issue is therefore analogous to that which arises in "contracting-out" cases, where an employer arranges to have certain work performed by an independent contractor. Here, while Ontario Northland Communications might not be regarded as an independent contractor in that the actual employer of persons working for Ontario Northland Communications as well as of those working for Ontario Northland Railway appears to be the Ontario Northland Transportation Commission, nevertheless the principle involved is the same. The Company has made an assignment of work which might properly have been performed by a member of the bargaining unit, to a person who is not a member of the bargaining unit, and the question is whether that was a violation of the collective agreement.

Where an employer assigns "bargaining unit" work on a regular and substantial basis to one of its employees, then the conclusion may be drawn that that employee is a member of the bargaining unit, and it would be a violation of the collective agreement to treat him otherwise: see the Fittings Ltd. case, 20 L.A.C. 249 (Weatherill). In the instant case, however, there is no suggestion that a Communications Maintainer, as such, comes within this bargaining unit. It appears that, by virtue of his work taken as a whole, he comes properly within the BRAC unit. It may be that in the course of his duties he performs work which might also be done by a member of the bargaining unit to which this collective agreement applies. Where the work here in question is assigned to a member of this bargaining unit, then it should be assigned to an Electrician, but it is not necessarily a violation of the collective agreement to have the work performed by a person who is not within this bargaining unit. That is what was done in this case.

This is not then, a case of "misassignment" in violation of the craft special rules. Rather it is a case of assignment of work outside of the bargaining unit. The collective agreement does not contain – any provision which prohibits such assignments. Article 61 has been discussed earlier in this award. Article 65.1 deals with the duration of the collective agreement and of "all mutually accepted rulings or interpretations". The assignment of work is not a "ruling or interpretation" within the meaning of this provision. While any employee’s adversely affected by a change of assignment such as this might be entitled to some relief pursuant to the provisions of the Job Security Agreement, that matter is not in issue here, where the claim is, in essence, one for the exclusive right to perform certain work. That right is not created by the collective agreement here.

For the foregoing reasons it is my conclusion that there has been no violation of the collective agreement, and that the grievance must be dismissed.

DATED at Toronto, this 31st day of March, 1976.

Arbitrator