SHP - 44

IN THE MATTER OF AN ARBITRATION

BETWEEN

THE RAILWAY ASSOCIATION OF CANADA

(the "Company")

AND

THE RAILWAY EMPLOYEES' DEPARTMENT, DIVISION NO. 4, A.F.ofL.C.I.O.

(the "Union")

RE: CP Rail and I.B.E.W. Reassignment of certain train radio maintenance work to the vocations department CP Rail

 

SOLE ARBITRATOR: Stanley H. Hartt

 

 

APPEARING FOR THE UNION:

J. Asprey President, Division No. 4

V. Redhead System General Chairman, I.B.E.W. (CP)

E. Forzely System General Chairman, I.B.E.W. (CN)

Carl Walsh Special Representative, Canadian Association of Pipefitters

 

 

APPEARING FOR THE COMPANY:

J. A. McGuire Manager, Labour Relations

T. E. Munford Manager of Communications

R. T. Charron System Supervisor Communications

R. J. Rose Supervisor of Motive Power

M. M. Yorston Labour Relations Officer

 

 

A hearing in this matter was held in Montreal on Tuesday, May 10, 1977

 

AWARD OF THE ARBITRATOR

This is a grievance raised against a notice dated October 1, 1976, addressed by CP Rail to Mr. W. K. Redhead, System General Chairman and Secretary-Treasurer, I.B.E.W., the contents of which were as follows:

October 1, 1976

File Nos. M9-4/24 E 4/24 W

Mr. W. K. Redhead

System General Chairman and Secretary-Treasurer,

System Council No. 34,

International Brotherhood of Electrical Worker,

8050 Boyce Street,

Montreal, Quebec. H1L 2C3

Dear Mr. Redhead:

In accordance with the provisions of Article 8, Clause 1 of the Job Security Technological, Organizational, Operational Changes Agreement dated June 29, 1976, please accept this as official notice of the Company's intention to transfer the voice radio maintenance work presently done on diesel units, caboose and passenger car equipment, i.e., radio sets, bases, control heads, antennas, radio frequency and radio control cabling, including connections between them to the Rail Communications Department as far as practicable, on January 10, 1977.

As a result of this organizational change in maintenance routine, it is expected that the following positions will be abolished:

1 Electrician at St. Luc Yard and

1 Electrician at Toronto Yard

The benefits provided for in, the Job Security Technological, Organizational, Operational Changes Agreement dated June 29, 1976, will be available to any employees affected who are qualified therefor.

The undersigned and/or his delegated representative will be prepared to meet with you and/or your delegated representative to discuss any aspects of this change.

Very truly yours,

Chief Mechanical Officer

On October 15, 1976, Mr. Redhead replied to Mr. C. R. Pike, in the following terms:

Mr. C. R. Pike

Chief Mechanical Officer

CP Rail

Windsor Station

Montreal Que.

October 15, 1976

Re: Radio maintenance work

Dear Sir,

We acknowledge receipt of your letters dated September 29 and October 4, 1976, file M9-4/24 E & W, advising us of the Company's intention to have the voice radio maintenance work done by the Company's Rail Communications Department, effective January 10, 1977.

We hereby advise that we are totally against such a move, as we feel the radio maintenance work on the diesel units, cabooses and passenger car equipment, as done in the past for many years, comes under the jurisdiction of Wage Agreement No. 16 between Division No. 4, Railway Employees' Department and the Railway Association of Canada and governs the "rates of pay" and "rules of service" for the locomotive and car Departments.

We feel that the transfer of this work out of the jurisdiction of the electrical craft and Division No. 4, will cause a major dispute amongst the employees. We are therefore referring this matter to Division No. 4 R.E.D., as holder of the certification governing the employees in the Locomotive and Car Departments, for further action.

Fraternally yours,

(sgd) Walter K. Redhead

Walter K. Redhead

System General Chairman & Secretary Treasurer

cc: J. Asprey - Div. #4

The parties have agreed that, although the grievance procedure in the Collective Agreement was not followed strictly, the grievance is properly before the arbitrator for adjudication.

The parties have submitted to the arbitrator the following Joint Statement of Fact and Issue:

DISPUTE BETWEEN THE RAILWAY ASSOCIATION OF AND THE RAILWAY EMPLOYEES' DEPARTMENT, DIVISION NO. 4, A.F.ofL.C.I.O., CONCERNING THE RE-ASSIGNMENT OF CERTAIN TRAIN RADIO MAINTENANCE WORK TO THE COMMUNICATIONS DEPARTMENT, CP RAIL

JOINT STATEMENT OF FACT

On October 1, 1976, the Company advised the System General Chairman, International Brotherhood of Electrical Workers, that due to an organizational change, certain voice radio maintenance work presently performed on diesel units, cabooses and passenger equipment, would be transferred to the Communications Department of CP Rail.

JOINT STATEMENT OF ISSUE

It is the position of the Union that the Company has violated the provisions of Rules 57.2 and 24.1 of Wage Agreement No. 16 in that the voice radio maintenance work referred to above, has been done for many years by Electrical Workers in the Locomotive and Car Departments of CP Rail, represented by the I.B.E.W., working under the jurisdiction of Division No. 4, Railway Employees' Department, and that such work should continue to be performed by those employees.

It is the position of the Company that the voice radio maintenance work referred to above, has not been done exclusively by employees represented by the I.B.E.W., and that by assigning responsibility for this work to the Communications Department of CP Rail, Rules 57.2 and 24.1 of Wage Agreement No. 16 were not violated.

FOR THE COMPANY: FOR THE EMPLOYEES:

(sgd) J. A. McGuire (sgd) John W. Asprey

Manager, Labour Relations President and Secretary,

CP Rail Division No. 4, Railway Employees' Department, A.F.ofL.-C.I.O.

Date: Apr. 7/77

The relevant sections of the Collective Agreement are Rule 57.3 and Rule 24.1 which are cited below:

Rule 57.2 - Electricians' Work

Electricians' work shall include electric wiring, maintaining, rebuilding, repairing, inspecting and installing all generators, switchboards, meters, motors and controls, motor generators, magnetos, igniters, electric welding machines, electric headlights and headlight generators, storage batteries, axle lighting equipment, and welding on work generally recognized as electricians' work. All inside work on public address, shop telephone, fire alarms and electric recording systems, radio equipment and electric clocks, electric lighting fixtures, winding armatures, fields, magnet coils, rotors, transformers and starting compensators. Inside and outside wiring of shops, buildings, yards and on structures, all electric wiring and conduit work in connection therewith, including steam, gas electric, diesel electric and electric locomotives, passenger trains, motor cars, electric tractors and trucks and buses. Repairs to wiring of ignition for internal combustion engines, magnetic, electronic and all other types of electric control. Electric cable splicers, electric crane operators for cranes of forty (40) ton capacity and over, linemen who are required to work on live catenary as part of their regular assignment, and all other work generally recognized as being electricians' work

Rule 24 - Assignment of Work

24.1 Mechanics or apprentices regularly employed as such shall do mechanics' work as per special rules of each craft.

The facts are not in dispute. Certain repair and maintenance work previously performed on radio equipment installed on diesel units, cabooses and passenger cars has been re-assigned from the electricians' category to the category of radio technicians falling into the Communications Department, i.e., outside the bargaining unit. The work in question has variously been performed since the commencement of the use of such equipment by radio technicians falling outside the bargaining unit (sometimes unrepresented by any bargaining agent, sometimes represented first by one bargaining agent and later by another, by CP Telecommunications (outside the bargaining unit), by outside contractors and by the electricians falling within the bargaining unit.

The legal issue resolves itself to a relatively simple one: Is Rule 57.2 describing Electricians' Work a contractual commitment equivalent to a clause banning contracting out, which recognizes the I.B.E.W. as the only entity whose members will be assigned work described in the said rule, or is Rule 57, together with Rules 53, 54, 55, 56, 58 and 59 regarding the Craft Special Rules for other crafts party to the same Collective Agreement, a mere definition of the work jurisdiction as between the seven crafts involved in the Collective Agreement, so as to permit work distribution and avoid jurisdictional conflicts as between them? If the former is the case, then, of course, the mention of radio equipment in Rule 57.2 would seem to amount to a contractual undertaking to grant exclusive jurisdiction over this work to the electricians. If the latter is true, then the collective Agreement does not confer an exclusive jurisdiction except, as between the unions involved and the divided jurisdiction which is apparently been in effect since 1947 would be perfectly in order and not amount to a violation of the Collective Agreement. This very question has been addressed by an arbitration award between Ontario Northland Railway and Division No. 4, Railway Employees' Department, A.F.ofL.-C.I.O., in which J. F. W. Weatherill was the sole arbitrator. After setting forth the facts and Article 57.2 of the Collective Agreement, Mr. Weatherill states:

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 B.R.A.C. 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 "mis-assignment" 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 employees 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.

Mr. Weatherill's reasoning commends itself to me. I have before me the certification of the Canadian Telecommunications Union for the work involved, dated March 23, 1972 and issued by the Canada Labour Relations Board. It appears to me that the work in question could properly be described as falling within the scope of that certification. There is no argument of a bad faith assignment of work or one which has the effect of making an employee who previously fell outside the bargaining unit a part of the bargaining unit. For the foregoing reasons I would conclude that the work jurisdiction rules of the Collective Agreement before me as between the various crafts party to the agreement, are designed to delineate jurisdiction among the employee parties and not to reflect a contractual commitment of exclusivity. Accordingly, this radio repair work which has historically been carried on by various employees of the company, (both inside and outside of the bargaining unit) and by employees of others, would be entirely in order. Naturally, the union party to this Collective Agreement retains, together with the Canadian Telecommunications Union, a non-exclusive jurisdiction in the event of any re-organization or other change effected by management results in a re-assignment of the work into the bargaining unit here involved.

The question of the article 8 notice was not an issue and appears, in any event, to have been in order and in accordance with the collective agreement.

For the foregoing reasons, I would dismiss the grievance for all legal purposes.

DATED at Montreal, Quebec, this 28th day of December, 1977.

STANLEY H. HARTT

ARBITRATOR