SHP - 83

IN THE MATTER OF AN ARBITRATION

BETWEEN

Ontario Northland Railway

(the "Company")

AND

DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO

(the "Union")

RE: APPLICATION OF RULE 23.11 OF THE COLLECTIVE AGREEMENT

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

APPEARING FOR THE UNION:

J.W. Asprey

 

APPEARING FOR THE COMPANY:

A. Rotondo

 

 

A hearing in this matter was held in Montreal on October 9, 1980.

 

AWARD OF THE ARBITRATOR

The Joint Statement of Issue and Joint Statement of Fact in this matter are, as follows:

Joint Statement of Issue

The use of coach carmen to work on vans.

Joint Statement of Fact

During the latter part of 1979, it was necessary to complete the building of seven vans from newly purchased shells. The company suspended all work on passenger coaches, except Northlander Equipment and emergency work, to enable it to free up and assign a number of Coach Carmen to work on the van program. The union claimed a violation of Rule 23.11 of Wage Agreement No. 16. Although the Company agreed that work on vans had traditionally been regarded as freight car work, it maintained that no violation of the Collective Agreement took place.

The work in question was the construction of vans (based on purchased van shells) on company property. Certain parts of the work on each van were performed on the freight heavy repair track, some on the coach track, and some in the paint shop.

While the material before me is not clear as to the precise distribution of work on the vans, the company states that the work on each van started on the freight heavy repair track and was carried out there by Freight Carmen. Subsequently, work on the coach track was carried out by Coach Carmen. Both jobs come within the classification of Carman, but they are in separate departments for seniority purposes.

Work on vans has traditionally been regarded as freight car work (as is acknowledged in the joint statement), and has been performed by Freight Carmen. It may be noted, however, that the development of modern vans has meant that certain of the work involved now more closely approximates the sort of passenger car work done by Coach Carmen than the freight car work done by Freight Carmen. I say nothing as to the relative proportion of such work, however, and certainly much of the work in question was properly assigned to Freight Carmen.

The union contends, however, that Coach Carmen should not have been assigned to work on the vans, and that the jobs they filled ought to have been bulletined and assigned to Freight Carmen in the "pool".

Because the company regarded the work as urgent, it suspended much of its work on passenger coaches, so that the Coach Carmen thus freed up could be assigned to work on the vans. It would appear that what occurred was (for the Coach Carmen) simply a change of assignment from work on passenger cars to work (on the coach track) on vans. There would appear to have been no change in the number of employees in each department.

The union relies on article 23.11 of the collective agreement, which is as follows:

23.11 When vacancies occur for which replacements are required, or new jobs are created or additional staff is required in a classification in, a craft for an expected period of 90 calendar days or more such vacancies or new jobs shall be bulletined for a period of not less than 7 calendar days to employees in the classification at the seniority terminal where they are created and will be awarded to the senior employees, subject to Rule 23.29, the local committee to be consulted. (See miscellaneous letters of understanding).

Within a main shop successful applicants will be permitted to move within fifteen (15) calendar days of the close of the bulletin. This period may be extended to 30 days by mutual agreement with the General Chairman of the Craft concerned.

The only issue arising with respect to the application of that article in the instant case is whether or not the jobs in question (performed by Coach Carmen) represented "vacancies" or "new jobs" within the meaning of the article. In my view they did not. The complement of Coach Carmen was not altered, and it is not suggested that the assignments given them went beyond their qualifications. While Freight Carmen had traditionally done "van work", that is not to say that they had an exclusive claim to perform the particular work that was done in this case by Coach Carmen on the coach track.

Even if article. 23.ll does apply, and the jobs ought to have been bulletined, they would be bulletined "to employees in the classification" and not simply to Freight Carmen.

Both parties referred to the "Interpretation of Rules" provision attached to the collective agreement and relating to article 23.11. That provision is as follows:

Rule 23.11

Discussions between the Railways and the Negotiating Committee of Division No. 4 with regards to Rule 23.11 have resulted in the Railways issuing instructions to the supervisor staff that in the instance of the transfer of men from one section (department) of the shop to another for a period of over 90 days where there is no change in the rate and no change in hourly or rest days and where no overall increases in total staff was involved. The Union representatives claimed that such situations were covered by Rule 23.11 and. consequently. the new positions would have to be bulletined and awarded to the senior qualified employees making application.

The Railways contended that this rule was only intended to apply in respect of staff additions when there were additions being made in a craft in a shop proper and not to addition in a section (department) of a shop with equivalent reductions in another section (department) of the shop with no overall increase taking place.

The union representatives were not adamant that bulletins would be issued in every case if this were unnecessary. especially at small points, so long as senior qualified employees desiring to transfer were given the opportunity to do so. The Railway stated that without prejudices to their interpretation of the meaning of the rule, they would advise all concerned that in such circumstances, senior men desiring to transfer will be allowed to do so subject to qualifications,of course,that this does not apply in respect of staff adjustments within a section (department) of a shop but only to transfers between sections (departments) of a shop, where no overall change occurs in total employment in the shop. This understanding does not prejudice the interpretation of the Unions concerning 23.11.

It would appear, from the material before me, that what occurred was simply a reassignment (whether or not it should also be called a "transfer") within a section or a department. If it was a transfer between sections, there was in any event no overall change in total employment in the shop. Thus, the matter would be covered by the "interpretation".

In any event, then, it is my view that there has been no violation of agreement, and that the company was entitled to assign Coach Carmen in the way it did, without the necessity of bulletining. The grievance must therefore be dismissed.

DATED AT TORONTO, this 30th day of October, 1980.

(signed) J.F.W. Weatherill

Arbitrator