IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
Canadian Council of Railway Shopcraft Employees and Allied Workers
IN THE MATTER OF THE GRIEVANCE OF P. T. MOFFITT AND A. E. HERRON
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
J. H. Blotsky
M. M. Yorston
And on behalf of the Union:
J. W. Asprey
A hearing in this matter was held at Montreal on July 16, 1982.
The Joint Statement of Fact and Joint Statement of Issue in this matter are as follows:
JOINT STATEMENT OF FACT:
Carmen P.O. Moffitt and A.E. Herron are employed as Carmen in the McAdam Car Department. On August 3, 1981, tank car UTLX 74953 derailed in McAdam Yard. The Mechanical Supervisor, assisted by Yardmen on duty, rerailed the car between 0725 and 0805.
Carmen Moffitt and Herron submitted claims for three hours, at the prevailing overtime rates as per Rule 5.4 of Wage Agreement No. 16, due to the fact that they were not called to rerail the car.
JOINT STATEMENT OF ISSUE:
It is the position of the Union that the Company violated Rules 12.1, 58.2 and 58.18 of wage Agreement No. 16 when utilizing other employees to perform the work normally performed by Carmen. Therefore, Carmen Moffitt and Herron should be allowed payment as claimed.
It is the Company's position that there is no provision in the Collective Agreement that designates that rerailing a wheel is exclusively Carmen's work and that other employees can be required to rerail cars when necessary. The Company denies the Union's contentions.
At the time of the derailment, there were no Carmen on duty at McAdam Yard. One wheel of the tank car had derailed, due to a spread track. As noted, it was rerailed by the Mechanical Supervisor. He carried out this work with the assistance of the Yard Foreman and two Yardmen. They used wooden blocking and wedges, and used the yard engine to pull the tank car back on the track. The operation took 45 minutes.
At the time there were no Carmen on duty at McAdam Yard. In fact, the grievors were the only Carmen employed there, other Carmen's positions having been abolished the previous year, coincidental with the opening of a new repair facility at St. John.
The company retained two Carmen's positions at McAdam "for inspection of inbound traffic and light and emergency repairs". Their claim is that they were entitled to be called in on an overtime basis to perform the work in question.
It may be that had the grievors been on duty at the time of the derailment, they would have been assigned to work on rerailing the tank car. They would no doubt be capable of doing such work. The question, however, is as to their right to be assigned to it to the exclusion of others.
Article 58.2 sets out what Carmen's work shall consist of. Many particular tasks are listed, including that of inspecting freight cars and there is reference as well to "all other work generally recognized as Carmen's work". The "inspection" referred to there involves, I think, rather more than the visual inspection which was no doubt performed when the tank car was rerailed in this case. Whether or not a thorough inspection of the wheel bearings was then required, or carried out, are different matters. Such work would not be done out on the yard trackage, and is not in issue here. The rerailing operation itself is not specifically listed as Carmen's work. It may be that it would be "generally recognized" as work which Carmen might do. It is not the effect of article 58.2, however, to give Carmen exclusive jurisdiction over such work.
Article 58.2 is one of the craft special rules in the collective agreement, and has been held to delineate, as between the craft trade unions parties to the agreement, the scope of the work particular to each craft. Where work clearly appears as coming within the scope of one craft and not within that of another, then as between members of the bargaining unit, it should be assigned to those within whose craft it falls. Here, however, the work in question (even if it might properly have been assigned to Carmen), was not performed by members of the bargaining unit at all. There is nothing in article 58.2 to support the conclusion that the assignment of the work was improper.
Article 58.18 does oblige the company to send Carmen to perform certain repair work "on the road or away from the shops". Such work as "putting in couplers, draft gear, truck repairs, putting cars on centre, and wheels, and work of similar character" is work to which Carmen are to be sent. The job in question, a simple rerailing of one wheel, was not work such as that listed, nor was it of similar character. "Putting cars on centre" is not a reference to putting a car on the track. This article was not violated on the occasion in question.
Article 12.1 of the collective agreement is as follows:
12.1 Master Mechanics or foremen shall not be allowed to do mechanics' work when mechanics are working on a reduced hourly basis and are available. This is not intended to restrict the use of working foremen in accordance with established practice at small points.
This article prohibits the performance of bargaining unit work by supervisors in certain circumstances. In the instant case, it must be said first, that the work in question was not work to which the grievors had any sort of exclusive claim, and certainly not as against other employees; and second, that the circumstances in which the prohibition would be in effect did not arise. There were no mechanics "working on a reduced hourly basis and available". The abolished carmen's positions were not due to "reduced hours" in any sense, but to the establishment of other facilities. In any event, the grievors held regular positions, and could not rely on article 12.1 in circumstances such as these.
In the circumstances of this case, then, there was no violation of any material provision of the collective agreement, and the grievance must be dismissed.
DATED AT TORONTO, this 23rd day of July, 1982.
(signed) J. F. W. Weatherill